Bochenski v Minister for Immigration and Border Protection

GROUNDS OF THE APPLICATION 12 In his amended application, he relied on the following grounds: The Assistant Minister erred by making his decision under s 501CA of the Act without taking into account a relevant consideration, namely Direction No 65, made under s 499 of the Act ("Direction 65" or "the Direction"). The Assistant Minister erred by denying him procedural fairness when making his decision under s 501CA(4) of the Act, when finding that "treatment for Mr Bochenski's physical and mental health problems is available in Poland". 13 Mr Bochenski seeks an order quashing the decision of the Assistant Minister, a writ of mandamus directing the Minister to determine his revocation application according to law, an injunction restraining the Minister, the Department, officers, delegates or agents from relying on the Assistant Minister's decision and from removing him from Australia.

THE LEGISLATION 14 Section 501(3A) of the Act provides that the Minister must cancel a visa if satisfied that the visa holder does not pass the character test and the person concerned is serving a sentence of imprisonment for an offence against a law of the Commonwealth or a State. A person does not pass the character test if he or she has a substantial criminal record: see s 501(6)(a). A person has such a record if he or she has been sentenced to a term of imprisonment of 12 months or more: see s 501(7)(c). 15 By s 501CA(3) the Minister is required, as soon as practicable after any decision is made under s 501(3A), to: "(a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision." 16 Section 501CA(4) provides that the Minister may revoke the cancellation decision if the visa holder makes representations in response to an invitation extended under s 501CA(3) and the Minister is satisfied either that the person passes the character test or "that there is another reason why the original decision should be revoked." 17 If the Minister revokes the original decision to cancel the visa, the original decision is taken not to have been made: see s 501CA(5).

FAILURE TO TAKE INTO ACCOUNT DIRECTION 65 UNDER S 499 18 Central to Mr Bochenski's first ground was the proposition that the Assistant Minister was bound, but had failed, to comply with Direction 65 when he made his decision. This raised two subsidiary questions: Whether the Assistant Minister was a "person" within the meaning of s 499(2A) of the Act; and If so, whether he had failed to take into account certain considerations which decision-makers under s 501CA(4) were required, by Direction 65, to take into account when deciding whether or not to revoke a visa cancellation.

The Direction 19 Section 499 of the Act provides that: "(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about: (a) the performance of those functions; or (b) the exercise of those powers. … (2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations. (2A) A person or body must comply with a direction under subsection (1). …" Any directions given by the Minister under this section must be tabled in Parliament: see s 499(3). 20 The relevant version of s 499 was introduced into the Act by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth). In introducing the Bill which became the Act to the Senate the responsible Minister said that: "this bill will enable the Minister for Immigration and Multicultural Affairs to give precise written directions on what weight is to be given to each of these factors. These directions must be binding on all decision makers, including merits review tribunals, to ensure a consistency of approach. The written directions will be tabled in Parliament." 21 On 22 December 2014, the then Minister issued Direction 65. 22 Under the heading "General Guidance", Direction 65 states: "(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction." 23 Under s 8 of the Direction, entitled "Taking the relevant considerations into account", it is stipulated that: "Decision-makers must take into account the primary and other considerations relevant to the individual case." "Decision-maker" is defined, in Annex B to the Direction, to mean "a person (sometimes referred to as a delegate), or a body (such as the Administrative Appeals Tribunal) with the power to perform functions or exercise powers under s 501 of the Act." No mention is made of s 501CA. This would appear to be an oversight. The absence of any reference to "the Minister" does, however, suggest that, in relation to decisions under s 501, the Direction is not intended to bind the Minister. 24 Part C of Direction 65 is relevant to decisions made under s 501CA regarding revocation. Section 13 identifies the primary considerations which are to be brought to account in deciding whether to revoke mandatory cancellations of a non-citizen's visa as: "a) Protection of the Australian community from criminal or other serious conduct; b) The best interests of minor children in Australia; c) Expectations of the Australian community." 25 Section 14 of the Direction provides: "(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to): a) International non-refoulement obligations; b) Strength, nature and duration of ties; c) Impact on Australian business interests; d) Impact on victims; e) Extent of impediments if removed." 26 Mr Bochenski claimed that the Assistant Minister had failed to comply with the Direction by failing to take into account three of these considerations: impact on Australian business interests, impact on victims and international non-refoulement obligations.

Was the Assistant Minister a "person" under s 499(2A) of the Act? 27 The decision-maker was Senator the Honourable James McGrath acting in his capacity as Assistant Minister for Immigration. 28 On 30 September 2015 the Governor-General published an Administrative Arrangements Order which provided that the Act was administered by "a Minister of State" administering the Department of Immigration and Border Protection. 29 On 18 February 2016, the Governor-General, acting pursuant to ss 64 and 65 of the Constitution, had appointed Senator McGrath to administer the Department of Immigration and Border Protection and to hold the office of Parliamentary Secretary to the Minister. The Minister submitted that, as a result of these appointments, Senator McGrath had the powers conferred upon the Minister by s 501CA of the Act and had exercised those powers as the Minister personally. So much was accepted by Mr Bochenski. 30 The concession was properly made. Section 19(1) of the Acts Interpretation Act 1901 (Cth) ("the AI Act") provides that a reference to "the Minister" in an Act is to be taken to refer to "the Minister, or any of the Ministers, administering the provision on the relevant day, in relation to the relevant matter." 31 At relevant times s 20 of the AI Act provided that: "In a provision of an Act…a reference in general terms to the holder or occupier of an office, appointment or position includes all persons who for the time being: (a) hold or occupy the office, appointment or position; or (b) perform the duties of the office, appointment or position." 32 Sections 19 and 20, in their present form, commenced operation on 5 March 2016: see Acts and Instruments (Framework Reform) Act 2015 (Cth), s 2(1). Both sections applied to Acts made before 5 March 2016, such as the Act presently under consideration: see s 4 of Part 2 of Schedule 2 of the Acts and Instruments (Framework Reform) Act 2015 (Cth). 33 The immediate predecessor of s 19(1) was s 19A(1) of the AI Act. That provision was recently considered by Perry J in Maxwell v Minister for Immigration and Border Protection [2016] FCA 47. Her Honour had raised the question of whether the Assistant Minister, who had cancelled the applicant's visa under s 501(2) of the Act, "was 'the Minister' for the purposes of the Act." Her Honour answered that question affirmatively, saying that: "19 The Act refers to "the Minister" but does not define or specify which Minister. In such a case, s 19A of the Acts Interpretation Act 1901 (Cth) relevantly provides that: (1) If a provision of an Act: (aa) refers to a Minister by using the expression "the Minister" without specifying which Minister is referred to;… then the reference is a reference to: … (b) if…for the time being, 2 or more Ministers administer the provision - any one of those Ministers;… 20 As the respondent submitted, the effect of s 19A is that the reference to "the Minister" in s 501 of the Act is a reference to the Minister or any one of the Ministers administering that provision. 21 Pursuant to ss 64 and 65 of the Constitution, on 18 September 2013 the Governor-General of the Commonwealth of Australia (the Governor-General) directed and appointed Senator the Hon Michaelia Clare Cash as a member of the Federal Executive Council to hold the office of Assistant Minister for Immigration and Border Protection and, relevantly, "to administer" the Department. In turn, on 23 December 2014, the Governor-General made an Administrative Arrangements Order (the AAO) which provided that the Ministers administering the Act were the Ministers administering the Department. Both the appointment and AAO were in force at the time that the cancellation decision in this case was made. It follows that I find that the Assistant Minister is "the Minister" for the purposes of the Act." (Original emphasis.) See also: Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 413 (Gaudron J); 449-452 (Gummow and Hayne JJ); 499-500 (Kirby J); 512 (Callinan J). 34 At the time at which Senator McGrath made his decision his position was indistinguishable from that of his predecessor Senator Cash. 35 While accepting that Senator McGrath was "the Minister" who made the impugned decision under s 501CA(4) of the Act, Mr Bochenski contended that the Assistant Minister was, nevertheless, bound, by s 499(2A), to comply with the Direction. 36 Mr Bochenski emphasised that the Direction had been made by a Minister for Immigration and Border Protection who was not the Minister at the time at which Senator McGrath made his decision. Mr Bochenski accepted that the Direction continued to apply despite the change of Minister: see Jagroop v Minister for Immigration and Border Protection (2013) 61 AAR 542 at 558-9 (Marshall J). He also accepted that it was theoretically possible that Senator McGrath could give written directions under s 499(1) of the Act. He was not, however, the author of Direction 65. It followed, so it was argued, that, even if it be accepted that the Minister who had given directions under s 499(1) and his or her successor could not be bound by those directions when exercising powers under the Act personally, the same could not be said of an Assistant Minister in the position of Senator McGrath. There was no reason why he should not be treated as a "person" within the meaning of s 499(2A) who was required to comply with directions given under s 499(1). 37 Mr Bochenski identified two other provisions in the Act in which the phrase "person or body" was to be found. The first was s 198AHA. The section applied if the Commonwealth had entered into an arrangement "with a person or body" concerning the regional processing of unlawful non-citizens. The second was s 501L(7) which deals with the definition of "agency" for the purposes of that section. Section 501L(1) empowers the Minister to require "the head of an agency" to disclose to the Minister personal information. The term "agency" is defined to include a Minister of a State or Territory: see paragraph (b) of the definition. Paragraph (e) extends the definition of "agency" to "a company in which a controlling interest is held by any one of the following persons, or by 2 or more of the following persons together: i) the Crown in right of a State or Territory; ii) a person or body covered by paragraph (b) or (d)." 38 In both sections, Mr Bochenski submitted, the word "person" was apt to cover a Minister. So much had been held, in the context of s 198AHA, by the High Court in Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 90 ALJR 297 at 340 (Keane J) where his Honour said that the phrase "a person or body" comprehended "a person or body who constitutes or represents the executive government of [the] other country." The definition of agency in s 501L(7) of the Act embraced State Ministers in terms. 39 Both parties acknowledged that there was no direct authority on the point taken by Mr Bochenski. Although it had been held on many occasions that the Minister who had given written directions under s 499(1) and his or her successors were not, themselves, bound by those directives when exercising powers personally, clear reasons for so holding had not been articulated. 40 The first reported decision to which I was referred which held that the Minister was not him or herself bound by directions given by him or her or a predecessor was Halmi v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 1. Hill J said simply (at 13) that: "I do not think that it can be said that the Minister is himself bound by directions he makes under s 499, although, no doubt it would be appropriate for the Minister to conform to matters which he had directed others to comply with." This formulation, of course, leaves open the question of who is comprehended by "others". 41 About a month earlier s 499 had been considered by Katz J (as a member of a Full Court) in Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. His Honour said (at 591) that: "It is unlikely either that Parliament intended that the Minister should use s 499(1) of the Act to give general directions to himself or that the Minister was seeking to do so in the Direction. However, it is likely that Parliament intended both that the Minister should be capable of using s 499(1) of the Act to give general directions to those persons to whom he had delegated powers such as that under s 200 of the Act and that the Minister was seeking to do so in the Direction." 42 The construction of s 499 was considered by French J in Damanik v Minister for Immigration and Multicultural Affairs [2000] FCA 771 at [10] where his Honour said: "As a matter of syntax s 499 does not bind the Minister himself. No doubt, however, he is entitled to take account of and apply the policy considerations reflected in any direction as factors relevant to the exercise by him of any discretion to which that direction applies." 43 In Misiura v Minister for Immigration and Multicultural Affairs [2001] FCA 133 Madgwick J referred to Halmi and Rokobatini and expressed his agreement with those decisions. His Honour said (at [14]) that: "I respectfully agree with these interpretations of the section. As submitted by counsel for the applicant, s 499 allows the Minister to issue directions which structure the exercise of discretion under the Act and promote consistency in decision making. However, there is nothing in the Act to suggest that the Minister is bound to follow that direction when personally making a decision under s 501 of the Act. Nevertheless, it would seem just and fair that the Minister should in general do so and that, if the Minister should choose not to follow the same criteria he had directed others to observe, he would indicate his intention, in advance, to depart from the direction. In other words, considerations of "procedural fairness" or "natural justice" may apply." 44 In Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 at 585 the Full Court (Ryan, Lander and Crennan JJ) referred to Halmi and Misiura as authority for the proposition that "[a] direction under s 499 does not bind the Minister …". 45 More recently two members of another Full Court in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 (Allsop CJ and Katzmann J) held (at 4) that the Minister is not bound by directions issued under s 499(1) of the Act. 46 In Maxwell Perry J also considered the question. Her Honour said (at [39]) that: "Thirdly, as the letter to the applicant dated 2 February 2015 explained, when making the decision personally the Minister was not bound by Direction 65, being a direction made under s 499 of the Act: see NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 (NBMZ) at 4 [6] (Allsop CJ and Katzmann J). Contrary to the applicant's submissions, therefore, it is for the Minister to determine those matters which she regards as relevant and the weight or importance to be afforded to those matters which are taken into account: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 (Deane J); Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (Peko-Wallsend) at 41 (Mason J). Accordingly, while the Minister may consider the factors identified in Direction 65, that does not mean that she is bound to apply those principles appropriately and giving them appropriate weight, as the applicant contended. Nor, in light of the terms of the letter of 2 February 2015, could the adoption of those factors give rise to any 'legitimate expectation'." 47 This line of authority perhaps explains the absence, in Direction 65 (and other directives considered in the cases) of any express statement that it did not bind the Minister. It no doubt also explains why the standard form letter (which was used in the present case) which the Department sends to persons whose visas have been cancelled under ss 501(3) and 501(3A) inviting them, if so minded, to apply to have the cancellation decision revoked, advises that, if the application is dealt with by the Minister, the Minister will not be required to have regard to the Direction although it could be assumed that it provided a broad indication of the types of issues that the Minister may or may not choose to take into account. 48 Senator McGrath had been appointed by the Governor-General to administer the Department of Immigration and Border Protection and to hold the Office of Parliamentary Secretary to the Minister. It was common ground that the effect of ss 19(1) and 20 of the AI Act was to render him "the Minister" within the meaning of s 499(1). 49 Once it is accepted that "[t]he Minister" referred to in s 499(1) may be an Assistant Minister appointed to administer the Department together with the Minister, Mr Bochenski's argument becomes difficult to sustain. The Minister may give the written directions "to a person or body having functions or powers under [the] Act". The syntax suggests, as French J observed in Damanik, that the persons or bodies to whom directions are to be given are persons or bodies other than the Minister (or Assistant Minister). It is these persons or bodies on whom an obligation to comply with such a direction falls under s 499(2A). 50 It may be accepted that the phrase "person or body" appearing in ss 198AHA and 501L(7) is apt, in the context of those provisions, to apply to Ministers as "persons". The syntax of s 499(1) and the context in which s 499(2A) appears tend against a similar construction of the latter provision. It would be an odd result if the phrase had a different meaning in two related sub-sections of the same section. In my view it does not apply to Assistant Ministers whether or not they may have been the authors of the relevant directions under s 499(1). 51 I would, in any event, have accepted the Minister's contention that, although not bound to do so, the Assistant Minister had, in making his decision, had regard to each of the three considerations which Mr Bochenski had complained had been ignored. 52 The first matter which, it was said, the Assistant Minister had failed to take into account was the impact of any decision he may make on Australia's business interests. Mr Bochenski said that he had raised this issue when seeking to persuade the Assistant Minister to revoke the cancellation decision. He referred to submissions, made on his behalf by his former solicitor, on 27 May 2014 and 19 February 2015 and to various attachments to those submissions. One of those attachments was a psychological report, which said that Mr Bochenski held a forklift licence. Another was a letter from a former employer, dated 11 March 2014, which stated that he was "hard working", "honest and diligent" and that the former employer would "not hesitate in reemploying" him. There was also other material attached to the submissions which stated that he was a plasterer/labourer and held qualifications in hospitality which, he said, were sought after by Australian businesses. 53 These matters were not overlooked by the Assistant Minister. He found (at [31] of his reasons) that: "The available evidence is that MR BOCHENSKI has been employed in Australia as a salesman, forklift driver, mechanic, plasterer and builder's labourer and most recently worked at Australian Trailers in 2007 for three weeks before sustaining a workplace injury." The Assistant Minister also had regard (at [82]) to a range of vocational education courses which Mr Bochenski has undertaken whilst he was imprisoned. 54 In a further submission, dated 30 September 2015, Mr Bochenski's former solicitor had said: "2. Impact on victims It is my submission that the cancellation of Mr Bochenski's visa or the revocation of that cancellation has had and will have no impact on the victim of his offending. The offence occurred in 2010 and there is no evidence that Mr Bochenski's visa status will be made known to or have any impact on the victim." This was the second matter which Mr Bochenski contended had not been taken into account by the Assistant Minister. 55 The Assistant Minister took into account (at [52]) the serious injuries which Mr Bochenski had inflicted on his victim in the course of the assault. He also took into account the extensive medical treatment which had been necessary to deal with these injuries. He implicitly rejected Mr Bochenski's "no impact" submission when he said (at [61]) that there had been physical and emotional effects which the assaults had had on the victim. 56 The third matter which Mr Bochenski submitted that the Assistant Minister was bound to, but had failed to take into account was Australia's non-refoulement obligations. 57 Mr Bochenski directed attention to references in the material accompanying his submissions to claims that his removal would cause his death or mental and physical suffering. This, it was alleged, amounted to "significant harm" as defined in s 36 of the Act because of his medical history. 58 This complaint was but faintly pressed at trial. This was because Mr Bochenski had not suggested, in his submissions to the Assistant Minister, that Australia owed him any international non-refoulement obligations. His claims to fear significant harm upon return to Poland because of his medical conditions were matters to which the Assistant Minister had regard: see at [35]-[40].

FAILURE TO ACCORD PROCEDURAL FAIRNESS 59 Mr Bochenski put material before the Assistant Minister concerning his physical and mental health issues. In his consideration of this material, the Assistant Minister stated that, "treatment for Mr BOCHENSKI's physical and mental health problems is available in Poland, although I have noted the submission of Mr BOCHENSKI's legal representative that the public health system in Poland is of a low standard and that his mental and physical health problems will not be well managed in that county." 60 Mr Bochenski contested this finding. He submitted that it was personal to him and that procedural fairness required that the Assistant Minister expose that information to him and give him the opportunity of responding to it before making his decision. He contended that no opportunity was accorded to him to provide information about the treatment that was available in Poland for his particular physical and mental health problems. 61 Mr Bochenski referred to a passage in his written submissions which cited an observation, made by the Administrative Appeals Tribunal, that "[t]here are unlikely to be the support services or rehabilitation facilities in Poland that he would have access to in Australia." This observation, he said, contradicted the Assistant Minister's finding. 62 There was no dispute that the Assistant Minister was required to afford procedural fairness to Mr Bochenski. This, as the High Court recently reaffirmed, required that he provide Mr Bochenski with an opportunity "to propound his … case for a favourable exercise of the power" in a manner that avoided "practical injustice": see Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 at [82]. See also: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 160. 63 In the written submissions, made on his behalf to the Assistant Minister, Mr Bochenski's solicitor had said that: "His [Mr Bochenski's] understanding is that the public health system in Poland is of a low standard, therefore it is submitted it is likely that his mental health and physical health issues (pain management for his carpal tunnel injury) would not be well managed there." It is notable that the submission tacitly accepted that treatment for Mr Bochenki's mental and physical health problems was available in Poland, albeit at a standard lower than that which could be provided in this country. The Assistant Minister's statement appears to be based on the submission. After stating that treatment is available in Poland, he notes the submission made by Mr Bochenski's solicitor that the public health system in Poland is of a low standard and that his mental and physical health problems will not be well managed in that country. It is also notable that the Administrative Appeals Tribunal's observation compared the treatment which might be available to Mr Bochenski in Poland unfavourably with the services available in Australia but did not assert that no relevant treatment was available in Poland. 64 The Assistant Minister was not required, as a matter of fairness, to expose his conclusion to Mr Bochenski before making a decision. Had Mr Bochenski wished to make more detailed submissions about the quality of the Polish health system and its capacity to treat his various conditions, he could have done so. The Assistant Minister was under no obligation to make further enquiries himself or to encourage Mr Bochenski to do so. 65 Mr Bochenski did not suffer any practical injustice. He was afforded a full and fair opportunity to make his case for revocation. That case was considered by the Assistant Minister. 66 This ground must fail.

DISPOSITION 67 The application must be dismissed with costs. 68 The Court is most grateful for the assistance provided by counsel who acted pro bono for Mr Bochenski. Counsel forcefully and effectively advanced all reasonably available arguments in support of Mr Bochenski's case. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.