Coderre v Minister for Immigration and Border Protection

INTRODUCTION 1 This is an application by Mr Kent Coderre for constitutional writs directed to the Minister for Immigration and Border Protection. On 17 December 2013, the applicant applied for a Bridging E (Class WE) visa ("Bridging visa"). On 14 March 2014, the respondent, acting under s 501(1) of the Migration Act 1958 (Cth) ("the Act"), refused the applicant's application for a Bridging visa. The applicant applies for a writ of certiorari to quash that decision. He also applies for a writ of prohibition to prohibit the respondent and his delegates, servants, and agents, from acting upon, or giving effect to, the decision. 2 The applicant was born in Canada on 14 April 1983. Between 2000 and 2005, he committed a number of driving offences in Canada, including drink driving and impaired driving. The applicant arrived in Australia on 4 June 2010 on a subclass 417 - Working Holiday (Temporary) (Class TZ) visa. He committed a serious offence in the Northern Territory in February 2011 when he caused the death of another man. He was driving a vehicle whilst heavily intoxicated, and he was charged with driving a vehicle dangerously and causing the death of another person. The maximum penalty for this offence was imprisonment for 10 years. The applicant's working holiday visa ceased to have effect on 4 June 2011 and, on 1 July 2011, the applicant was granted a Criminal Justice Stay certificate to regulate his status while he faced court proceedings. He pleaded guilty to the offence and he was sentenced by the Supreme Court of the Northern Territory on 4 April 2012. He was sentenced to a term of imprisonment of two years and nine months commencing on 31 March 2012. The sentence was suspended on conditions after he had served four months in prison. The Criminal Justice Stay certificate was cancelled on 11 December 2013 by operation of law upon the applicant's release from criminal custody. On 17 December 2013, the applicant was detained in immigration detention and he is currently being held at the Adelaide Immigration Transit Accommodation. 3 As I have said, on 17 December 2013, the applicant lodged an application for a Bridging visa. On 19 December 2013, a Detention Review Officer determined that the applicant may not pass the character test under s 501 of the Act and the applicant's case was referred to the Visa Applicant Character Consideration Unit for what is described in the evidence before this Court as character consideration under s 501. 4 Although the applicant applied for a Bridging visa, he sought to reside in Australia permanently on the basis of a relationship he had with an Australian citizen. However, he was not able to apply for what is described in the evidence before this Court as a further substantive visa while he did not hold a visa. A Bridging visa is a temporary visa, but a refusal to grant such a visa means that the applicant is precluded from lodging an application for a permanent visa whilst he remains in Australia. 5 On 14 March 2014, the respondent personally considered the applicant's application for a Bridging visa. He had before him a paper entitled "Issues for Consideration of Possible Visa Refusal under Subsection 501(1) of the Migration Act 1958" ("Issues Paper") and a number of attachments. He decided to refuse the application and he prepared a statement of his reasons for making that decision. His statement of reasons consists of 19 paragraphs.

the respondent's reasons 6 The respondent noted in his reasons that the applicant was convicted in the Supreme Court of the Northern Territory of the offence of "Drive Motor Vehicle Cause Harm or Death" and that, in relation to that offence, he was sentenced to a term of imprisonment of two years and nine months. The respondent found that, by reason of the sentence of imprisonment, the applicant had a substantial criminal record within ss 501(6) and 501(7) of the Act. He found that the applicant had not satisfied him that he passed the character test (s 501(1)). 7 The respondent turned to consider whether to exercise his discretion to refuse the applicant's visa application. He said that he was mindful of "the Government's commitment to using s 501 of the Act to protect the Australian community from harm that may result from the criminal activity or other serious conduct by non-citizens". He was also mindful "that remaining in Australia is a privilege in the expectation that non-citizens are law abiding and will respect Australia's law enforcement framework". The respondent considered the nature of the applicant's criminal conduct and noted that the applicant had been convicted of an offence which had caused the death of another person and grief and trauma to that person's family. He noted that that had occurred as a result of the applicant's decision to drive whilst heavily intoxicated. The respondent said that that conduct must be considered to be very serious, even though the applicant was only required to serve four months of the term of imprisonment imposed on him. 8 The respondent noted that, although the offence committed by the applicant was unintentional, any further behaviour of a similar nature would carry a high risk of injury or death for members of the Australian community. He also noted that the applicant had a history of other driving offences in Canada, including other drink driving offences. 9 The respondent turned to consider what he described as mitigating factors and rehabilitation. He referred to the fact that the Court had accepted that the applicant was remorseful for his offending and that he had reasonable prospects of rehabilitation, taking into account his employment and his current family circumstances. The Court had considered that the applicant represented a low risk of further offending. I take the reference to the Court to be a reference to the sentencing judge. A copy of the sentencing judge's remarks were an annexure to the Issues Paper. The respondent said that he had noted that the applicant had again (i.e., in his submissions) expressed deep remorse for his offending and that he had remained alcohol free since his offending. He noted that the material before him contained strong expressions of support for the applicant from his partner, friends, and workmates. On the other hand, the respondent also noted that the applicant had a record of repeated drink driving offences and that he was still serving the probation part of his sentence. The respondent said that he considered that it was too soon to be confident that the applicant will be able to refrain from alcohol use in the future. 10 The respondent then turned to consider what he described as the best interests of minor children. He said that he gave "primary" consideration to the best interests of any children who are less than 18 years of age and whose best interests may be significantly affected by the refusal of the applicant's visa application. He noted that the applicant had one child, a daughter (Pyper Jan Coderre), born on 7 January 2012. Pyper Coderre is an Australian citizen. The respondent noted that the applicant separated from Pyper's mother not long after the child's birth and now lives in another State. He noted that the applicant did not provide daily care and guidance to his daughter. Nevertheless, the respondent accepted that the applicant felt a strong attachment to his daughter and that, with the support of his daughter's mother, he maintained regular contact with her by telephone calls and video calls. He also provided regular financial support for his daughter. 11 The respondent said that he found that it was in the child's best interests not to refuse the applicant's application, as this would be likely to lead to the applicant's removal from Australia and his daughter would thereby be greatly limited in her ability to have physical contact with her father in the future. However, he noted that the applicant could continue to have contact similar to the contact he now had with his daughter and to provide her with financial support, even from Canada. 12 The respondent then turned to consider what he described as other considerations. He noted that the applicant had a partner who was an Australian citizen, and that she was strongly committed to her relationship with the applicant and would suffer hardship as a result of any decision to refuse the applicant's visa application. That hardship would follow from the applicant's likely removal from Australia, which would require her to be separated from him or to accompany him to Canada, and thus be separated from her family, friends, and "other life circumstances". 13 The respondent said that he had concluded that the applicant represented a risk of harm to the Australian community, and that the protection of the Australian community outweighed the countervailing considerations he had discussed, including the best interests of the applicant's daughter and the consequences of refusal for his partner. He said that he found the harm that the applicant could potentially cause if he were to re-offend to be so serious that it was unacceptable to the Australian community. He said that he had given full consideration to all of these matters and he had decided to exercise his discretion to refuse to grant the applicant's application for a Bridging visa. 14 The respondent was required by the Act to give the applicant a written notice setting out the reasons for his decision to refuse the applicant's application for a Bridging visa (s 501G(1)). Those reasons were to contain the respondent's findings on material questions of fact and refer to the evidence or other material on which those findings were based (s 25D of the Acts Interpretation Act 1901 (Cth)). 15 A decision under s 501(1) of the Act might be made by the Minister or by his or her delegate. The Minister may give written directions under s 499 of the Act to delegates about, among other things, the exercise of the power in s 501(1). A delegate is required to comply with the directions (s 499(2A)). The Minister has issued written directions, and the relevant direction in this case is Direction No. 55. 16 In this case, the Minister exercised the power under s 501(1). He was not bound to follow Direction No. 55, but it is apparent from his reasons that, at least in some respects, he has followed aspects of it.

The grounds of the application 17 In order to succeed, the applicant must prove that the respondent committed a jurisdictional error in making his decision. The applicant advanced three grounds in support of his case that jurisdictional error was made out. First, he contends that the respondent failed to take into account the risk that the applicant would re-offend. He contends that the risk that he would re-offend is a mandatory relevant consideration, and that the failure by the respondent to take it into account is a jurisdictional error (Ground 1). 18 Secondly, the applicant contends that, even if the risk of re-offending was not a mandatory relevant consideration, the failure to take it into account was, in the particular circumstances of this case, a breach of the rules of procedural fairness. His contention is that he was led to believe by the letter from the Department of Immigration and Border Protection, which gave him notice of intention to consider the refusal of his application under s 501(1) of the Act, that the risk that he would re-offend would be taken into account by the respondent. In the circumstances, the respondent's failure to take that matter into account was a breach of the rules of procedural fairness (Ground 2). 19 Thirdly, the applicant put an alternative contention in the event that the Court found that, in reaching his decision, the respondent had taken into account the risk that the applicant would re-offend. The contention is that, in all the circumstances, the respondent's decision breached the legal standard of reasonableness and that gave rise to jurisdictional error (Ground 3).

Ground 1 20 The applicant accepts that the respondent took into account the harm that might result if he re-offended. However, the applicant submitted that the respondent did not assess and take into account the risk that he might re-offend. 21 The applicant relied on a number of matters in support of that contention. First, he drew attention to the Issues Paper that the respondent took into account. He submits that it did not contain any material from which a conclusion about the risk that the applicant might re-offend could be assessed and taken into account. Secondly, he submitted that the respondent's reasons do not contain any finding concerning the risk that the applicant might re-offend. The applicant submitted that the closest the respondent came to making a finding about the risk of re-offending was an observation that it was too soon to be confident that the applicant will be able to refrain from alcohol use in the future. The applicant submitted that that was not a finding about the matter. 22 The absence in the reasons of a finding on a matter is likely to lead to the conclusion that a finding was not made as to that matter, and may lead to the conclusion that the decision-maker did not consider that the matter was a relevant one: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, at 330-331, [5] per Gleeson CJ; 338, [34]-[35] per Gaudron J; and 346, [69] per McHugh, Gummow and Hayne JJ. 23 The applicant submitted that the risk that he would re-offend was a mandatory relevant consideration so that the respondent's failure to take it into account amounted to a jurisdictional error. The applicant submitted that the power in s 501(1) is not to be used to impose an additional punishment for the offence which engaged the section. As I understood the applicant's submission, it was that the risk of re-offending must be assessed and taken into account, otherwise the inexorable, or perhaps invariable, inference will be that the power to refuse an application has been used to punish, rather than for the purposes of the section. In the context of this submission, the applicant referred to the following observations of Buchanan J in NBMZ v Minister for Immigration and Border Protection (2014) 307 ALR 49 ("NBMZ"), at 86-87, [192]: If the minister's decision was to avoid the charge that he was intent on some form of punishment (normally the preserve of the courts) then his assessment of whether the applicant should be granted a visa should also have been directed to some assessment of the consequences for the Australian community if the applicant was granted a visa. Normally, there should be an attempt to assess the likelihood of similar, or other, criminal conduct of the kind which had aroused the minister's displeasure and provoked the censorious conclusion that the applicant had demonstrated a fundamental disrespect for Australian laws, standards and authorities. That is because the discretion to be exercised under s 501 is fundamentally forward, rather than backward, looking. It concerns the future, not the past. 24 In dealing with Ground 1 of the applicant's application for judicial review, the respondent put his submissions in reverse order to the way in which the applicant had put his submissions. He submitted that he was not required to assess and take into account the risk that the applicant might re-offend. He submitted that the discretion under s 501(1) is a very broad one and that he is not required to consider the risk of re-offending of a visa applicant who has a substantial criminal record as defined in s 501(7). In support of this submission, the respondent referred to Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 ("Huynh") at 523, [72]-[74] per Kiefel and Bennett JJ, and Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 ("Nystrom"), at 606-607, [126]-[129] per Heydon and Crennan JJ. 25 The respondent submitted that, in any event, he did assess and take into account the risk that the applicant might re-offend. 26 The above is a summary of the submissions of the parties. 27 I do not need to decide whether the Minister is bound to take into account the risk a visa applicant who has a substantial criminal record might re-offend because, in this matter, I think that the respondent did assess that matter and take it into account. However, I will address the issue because, on the view I take of the issue, it provides an alternative ground for rejecting Ground 1. It is convenient to deal with it first. 28 Section 501(1) does not set out any criteria to be applied in the exercise of the discretion to refuse to grant a visa once the decision-maker has reached the point of not being satisfied that the person passes the character test. It is largely left to the Minister to determine what matters are relevant and what weight is to be accorded to such matters. At the same time, it is also well established that considerations relevant or irrelevant to the exercise of a statutory discretion may be identified by reference to the nature, scope, and purpose of the power, understood in its context in the Act (Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 ("Sean Investments"), at 375 per Deane J; Water Conservation and Irrigation Commission (New South Wales) v Browning (1947) 74 CLR 492, at 505 per Dixon J (as his Honour then was); and NBMZ, at 51, [6] per Allsop CJ and Katzmann J). The object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens (s 4(1)). 29 In Huynh, Kiefel and Bennett JJ, in considering the scope of the Minister's power to cancel a visa under s 501(2) of the Act, said (at 523, [74]): A reference to those matters confirms the breadth of the Minister's discretion. The object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens: s 4(1). To advance that object provision is made for the removal or deportation from Australia of non-citizens whose presence is not permitted by the Act: s 4(4). If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister's part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed. By way of illustration, the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment for the requisite term. To construe the section as requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion. It follows in our view that the obligation of which his Honour the primary judge spoke cannot be read into s 501. (Emphasis added.) 30 In Huynh, the Court was concerned with a decision to cancel a visa under s 501(2) of the Act and the significance to that decision of the visa holder's level of involvement in the offences constituting the "substantial criminal record" as defined in s 501(7). In this case, I am considering a decision to refuse an application for a visa and the significance to that decision of the risk that the applicant might re-offend. Neither of those matters mean that the observations of Kiefel and Bennett JJ are not applicable to the circumstances of this case. 31 In Nystrom, Heydon and Crennan JJ (with whom Gleeson CJ agreed on this point), after referring with approval to Sean Investments and the reasons for judgment of Kiefel and Bennett JJ in Huynh, said (at 606, [128]): Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia. Considerations relevant to the exercise of the power depend on the nature, scope and purpose of the power, understood in its context in the Act. As Ministerial Direction No 21 makes clear, the Minister considers that two of the factors relevant to the exercise of the discretion are related to the protection of the Australian community and the expectations of the community. 32 I do not think that the passage in Buchanan J's reasons in NBMZ is to the contrary. His Honour was not saying that the risk of re-offending was a relevant mandatory consideration. As I read his Honour's reasons, all he was saying was that the failure to assess and take into account the risk of re-offending might, in a particular case, lead to the conclusion that the Minister had exercised his power for the purpose of punishment. In any event, Allsop CJ and Katzmann J did not, in that case, base their decision on this ground. 33 In any event, as I have said, I think the respondent did assess and take into account the risk that the applicant might re-offend. 34 The respondent referred to the sentencing judge's remark that the applicant had reasonable prospects of rehabilitation. Despite what the respondent said in his reasons, it was not the sentencing judge who expressed the view that the applicant represented a low risk of re-offending. That was a view expressed some 20 months later (i.e., December 2013) by a Probation and Parole Officer, and was referred to in a Compliance Report of the Northern Territory Department of Correctional Services. The Compliance Report was an annexure to the Issues Paper that was before the respondent. The respondent seems to have erred, as a matter of fact, in attributing the opinion that the applicant represented a low risk of re-offending to the sentencing judge. However, that error does not advance the applicant's case. 35 The sentencing judge said that the applicant had reasonable prospects of rehabilitation, and that means that there were reasonable prospects that he would not re-offend. The respondent was entitled to accept that view and to act on it. He was also entitled to accept the view that the applicant represented a low risk of re-offending and to act on it. Furthermore, he was entitled to add to those views his own view that alcohol had been a feature of the applicant's offending in the past and that it was too soon to be confident that he would refrain from alcohol use in the future. 36 The applicant accepted that the respondent was not required to reach a view about the risk that the applicant would re-offend which could be expressed in percentage terms. I have no doubt that that is correct, but I would go further and say that, in many cases, it is notoriously difficult to be at all precise as to the risk of re-offending. The respondent assessed the risk that the applicant would re-offend as low, or on the low side, and he proceeded on that basis. 37 Ground 1 of the applicant's application must be rejected.

Ground 2 38 As to the alleged breach of the rules of procedural fairness, the applicant submitted that the respondent indicated that the risk of re-offending would be taken into account by forwarding Direction No. 55 to him prior to the making of the decision, but then did not take that matter into account. The applicant pointed to various parts of Direction No. 55 where the risk of re-offending is identified, expressly or impliedly, as a relevant matter (Section 1, clause 7(1)(b); Part B, clauses 11.1(1), 11.1.2(1) and 11.1.2(2)). The applicant referred to the following observations of Buchanan J in NBNB v Minister for Immigration and Border Protection (2014) 307 ALR 90 ("NBNB") at 126, [153]: The provision of Direction No 55 to the applicants, with the advice that delegates would be required to follow it and the minister may also, not only indicated what the applicants should address but also served to exclude from practical relevance, so far as their responses were concerned, any prospect that the minister might rely instead on an unannounced and undisclosed consideration. His Honour then considered a submission that the visa applicant could, by diligent research, have ascertained that general deterrence would be a relevant consideration. He rejected the submission saying (at 126, [156]): In my view, any argument of this kind should be rejected. First, it is an unsatisfactory and unrealistic response to the position of non-English speaking refugees who had been detained for a long time and who, it must be accepted, were each psychologically fragile and anxious about their detention. Second, suppositions of this kind are no substitute for practical, direct and honest advice to a visa applicant about the matters which will be relevant to an assessment of their application. There can be no justifiable reason to withhold from a visa applicant in the situation of the applicants a plain statement, which they might understand, of the factors critical to the success or failure of their visa application, and critical to their future. 39 Ground 2 must fail because, as I have said, the respondent did assess and take into account the risk that the applicant would re-offend. 40 I would add that, even if I am wrong and the respondent did not take the risk of re-offending into account, I do not think that that would mean that there had been a breach of the rules of procedural fairness. The letter inviting submissions from the applicant made it clear that, if the Minister personally made the decision, he was not required to follow Direction No. 55. Furthermore, there is a difference between, on the one hand, not being advised that a matter would be taken into account and that matter subsequently being taken into account, and, on the other, being advised that a matter would be taken into account and then that matter not being taken into account. This case falls into the latter category. It is difficult to see a breach of the rules of procedural fairness in the case within the latter category unless the effect of the advice is to distract the applicant from addressing the issues which are taken into account (NBNB, at 92, [3] per Allsop CJ and Katzmann J). There is no evidence of that occurring in this case. 41 Ground 2 of the applicant's application must be rejected.

Ground 3 42 The High Court considered the concept of unreasonableness in the context of judicial review in its recent decision in Minister for Immigration and Citizenship v Li and Another (2013) 249 CLR 332 ("Li"). In particular, the Court considered the meaning and scope of Lord Greene MR's observations in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. 43 In joint reasons, Hayne, Kiefel and Bell JJ said that, properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker (at 363, [66]). The legal standard of reasonableness is the standard indicated by the true construction of the statute (at 363-364, [67]). Their Honours said that the standard of legal reasonableness was not limited to bringing down irrational, if not bizarre, decisions, and it included decisions where, although a specific error could not be identified, the decision was unreasonable applying a similar approach to the approach applied to the review of judicial discretions (House v The King (1936) 55 CLR 499) (at 364, [68]). Their Honours said that the same principles informed what was said by Dixon J (as his Honour then was) in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, at 360, about the review of administrative action (at 364, [68]). Their Honours also referred to the test in the case of an exercise of the power to make delegated legislation formulated in Kruse v Johnson (1898) 2 QB 91 by Lord Russell of Killowen CJ, at 99-100 (at 365, [70]). 44 Their Honours noted that, ordinarily, the weight to be accorded to the relevant matters is for the decision-maker to determine. After referring to the reasons of Mason J (as his Honour then was) in Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 41, their Honours said (at 366, [72]): Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense. 45 Finally, their Honours said (at 367, [76]): As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. (Citations omitted. See also Gageler J at 376-377, [110].) 46 Where there are reasons, as there are here, and the reasons do not reveal any of the specific errors, it will not often be the case that a court will conclude that the result is unreasonable or plainly unjust, such that error is to be inferred. 47 The applicant pointed to many factors which he submitted should have meant that his application was granted, not refused. He pointed to the unintentional nature of the offence, the fact that the prior drink driving offences were committed when he was young and are now quite stale, his abstinence from alcohol since the offence, the fact that there was a low risk of re-offending, and the fact that the respondent referred to the best interests of minor children as something to which he gave primary consideration. He emphasised this last matter, but I think the respondent's statement must be understood in the context of the reasons as a whole. The statement by the respondent that he gave primary consideration to the best interests of children under the age of 18 years is consistent with Direction No. 55 (Part B, clause 11(1)). At the same time, it is to be noted that there are two other primary considerations, and one of them is the protection of the Australian community from criminal or other serious conduct. However, in considering the best interests of children under the age of 18 years, the respondent noted that Pyper Coderre did not live with the applicant and that, even if he were returned to Canada, he could continue to have contact with her which is similar to the contact he is presently having. 48 I have considered the matter carefully. I have considered those matters in favour and those against the respondent's decision and asked myself whether, in light of those matters, the respondent's decision was unreasonable or plainly unjust. If that conclusion is reached in a case where there are reasons and no specific error is identified, it will be because the respondent failed to give adequate weight to a relevant factor of great importance or gave excessive weight to a relevant factor of no great importance. In this case, I do not think the respondent's decision was unreasonable or plainly unjust in the relevant sense. I reject the applicant's contention that the respondent gave disproportionate weight to the risk of re-offending or the nature of the harm should re-offending occur. 49 I do not think that the applicant advanced illogicality or irrationality in the sense described in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611 as a separate ground but, to the extent he did, I would reject it for the same reasons. 50 Ground 3 of the applicant's application must be rejected.

CONCLUSION 51 The applicant's application for judicial review must be dismissed. I will hear the parties as to costs. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.