Contreras v Minister for Immigration and Border Protection

The legislative provisions 11 Section 501(2) of the Act provides as follows: 501 Refusal or cancellation of visa on character grounds Decision of Minister or delegate - natural justice applies … (2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. 12 Section 501(6) provides the circumstances in which a person does not pass the character test. Relevantly, s 501(6)(a) provides that a person does not pass the character test in the following circumstance: Character test (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); 13 Section 501(7) provides the circumstances in which a person has a substantial criminal record for the purposes of the character test. Section 501(7)(c) provides the following: Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal record if: … (c) the person has been sentenced to a term of imprisonment of 12 months or more 14 It was not in dispute before me, and indeed before her Honour, that the applicant has a substantial criminal record and did not pass the character test set out in s 501(6). 15 At this point I should mention s 499(1) of the Act. That provision gave the Minister power to give written directions to a person or body having functions or powers under the Act if the directions were about the performance of those functions or the exercise of those powers. A person or body is required to comply with a direction made under s 499(1) (s 499(2A)). 16 On 25 July 2012, the Minister made Direction No 55 under s 499 of the Act entitled "Visa refusal and cancellation under s 501" (the Direction). 17 A decision to cancel a visa under s 501 involves a two-stage process: (a) First, the Tribunal must consider whether the visa holder passes the character test as defined in s 501(6). If the Tribunal is not satisfied that the visa holder passes the character test, then a discretionary power to cancel the visa is enlivened. (b) Second, in the context of considering whether to exercise that discretion, the Tribunal is bound by s 499(2A) of the Act to comply with any direction given by the Minister under s 499 of the Act. 18 The present matter only concerns the second stage of this decision-making process, and whether the Tribunal failed to comply with the Direction. The issue in substance before me, and also before her Honour, is whether the Tribunal complied with the Direction. 19 The Direction comprises a number of parts, including the following: (a) Clause 6.3 identifies key principles or principles of "critical importance" (cl 6.2(1)). Among those principles are cll 6.3(3)-(4) which state: 6.3 Principles … (3) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa. (4) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age. (b) Clause 7 is entitled "How to exercise the discretion". It states: 7. How to exercise the discretion (1) Informed by the principles in paragraph 6.3 above, a decision-maker: a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and b) is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community. (c) Clause 8 is entitled "Taking the relevant considerations into account". It states: 8. Taking the relevant considerations into account (1) Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B. Separating the considerations for visa holders and visa applicants recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved. … (d) Clause 9 at the start of Pt A is entitled "Primary considerations - visa holders". It states inter alia: 9. Primary considerations - visa holders (1) In deciding whether to cancel a person's visa, the following are primary considerations: a) Protection of the Australian community from criminal or other serious conduct; b) The strength, duration and nature of the person's ties to Australia; c) The best interests of minor children in Australia; d) Whether Australia has international non-refoulement obligations to the person. 9.1 Protection of the Australian Community (1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, .and will not cause or threaten harm to individuals or the Australian community. (2) Decision-makers should also give consideration to: a) The nature and seriousness of the person's conduct to date; and b) The risk to the Australian community should the person commit further offences or engage in other serious conduct. … 9.1.2 The risk to the Australian community should the person commit further offences or engage in other serious conduct (1) In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment decision-makers must have regard to, cumulatively: a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and b) The likelihood of the person engaging in further criminal or other serious conduct, taking into account: i. information and evidence on the risk of the person re­offending; and ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). (e) Generally, cll 9.1 to 9.4 identify particular matters that a decision-maker must consider in considering each of the four primary considerations. (f) Clause 10 is entitled "Other considerations - visa holders". It states: 10. Other considerations - visa holders (1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to): a) Effect of cancellation of the person's visa on the person's immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia permanently; b) Impact on Australian business interests; c) Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person's criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness; d) The extent of any impediments that that person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: i. The person's age and health; ii. Whether there are substantial language or cultural barriers; and iii. Any social, medical and/or economic support available to them in that country.

The Tribunal's decision 20 The applicant did not meet the character test set out in s 501(6) of the Act. Accordingly, the discretion to cancel the visa pursuant to s 501(2) was enlivened. The Tribunal summarised the more significant offences of which the applicant had been convicted and sentenced (see at [4]). 21 The Tribunal's statement of reasons was divided as follows: (a) The first section was entitled "Reasons for decision" (see [1]-[6]). In this section the Tribunal recorded that the applicant did not pass the character test. It correctly identified the issue as to whether the Tribunal ought to exercise its discretion to cancel the applicant's visa. (b) The second section was entitled "The exercise of discretion" (see [7]-[12]). The Tribunal set out various clauses of the Direction. (c) The third section was entitled "Primary considerations" (see [13]-[70]). Its title indicates its close tracking to cl 9 in Pt A. The Tribunal considered each of the four primary considerations identified in cl 9 of the Direction. In considering the first primary consideration, the Tribunal made findings to the effect that because of the applicant's criminal conduct, he presented an unacceptable risk of future harm. These findings were made without reference to any consideration of countervailing matters. Accordingly, the Tribunal stated: [The applicant's] conduct is of a nature and extent which presents an unacceptable risk of harm to the Australian community (at [23]). … [T]he harm which could be caused if his conduct were repeated is so serious that any real risk that it may be repeated would be unacceptable (at [28]). … … any risk of [the applicant] re-offending is wholly unacceptable to the Australian community (at [44]). (d) The fourth section was entitled "Other considerations" (see [71]-[79]). Its title indicates its tracking to cl 10 in Pt A. In this section the Tribunal considered the other considerations identified in cl 10 of the Direction. (e) The final section was entitled "Weighing up the considerations" (see [80]-[86]). In this section the Tribunal again considered, in turn, each of the primary considerations and the other considerations. In considering the first primary consideration the Tribunal again made findings to the effect that because of the applicant's criminal conduct, he presented an "unacceptable" risk of future harm. Accordingly, the Tribunal stated at [82] the following: I find that [the applicant] presents an unacceptable risk to the Australian community should he remain in this country. Should he resume his violent reoffending, any risk of that occurring is unacceptable… There is no reference in [82] to the last element of cl 7(1)(b), namely, the extent to which, if at all, any risk of future harm should be tolerated by the Australian community. It was said by the Minister in submissions before me that such a matter was implied in the language of [82]. At least for present purposes, it may be said that there is a reasonable argument to the effect that no such implication was contained in [82]. All that [82] was doing was summarising the first primary consideration (cl 9.1). (f) The Tribunal in [86] then purported to balance the various considerations. Paragraph 86 was expressed in terms: I find that the protection of the Australian community outweighs all of the other considerations which support Mr Contreras remaining in Australia. That is because of the nature and the seriousness of his offending and the consequences on the Australian community should he re-offend. His remaining in Australia poses an unacceptable risk. Despite having been warned on two prior occasions, in 2001 and 2005, that his continued offending would result in cancellation of his visa, it appears Mr Contreras has not stopped for one moment to consider what the effect might be on other persons, particularly his children. (g) It does not appear that the Tribunal expressly discussed and engaged in the specific exercise required under cl 7(1)(b). The Tribunal had referred to cl 7(1)(b) at the outset of its reasons (see at [10]), but the text and discussion at [86] did not expressly follow the text or process arguably required by cl 7(1)(b). At the least, there is a reasonable argument to the effect that the balancing exercise that the Tribunal engaged in under [86] was a more general balancing of the relevant primary and other considerations rather than being a calculus corresponding to the balancing exercise through the arguably different lens of cl 7(1)(b).

Application for judicial review 22 The applicant sought judicial review of the Tribunal's decision. The applicant contended that the Tribunal had "identified the wrong issue or asked itself the wrong question, by failing to undertake the 'balancing exercise' required by cl 7(1)(b) of the Direction". The applicant invoked North J's analysis in Williams v Minister for Immigration and Citizenship (2013) 136 ALD 299; [2013] FCA 702 (Williams) and, in particular, North J's observations at [42] - [43] expressed in the following terms: 42. The reasoning process which the Tribunal adopted was, first, to address the factors listed in respect of the two primary considerations and the other considerations as stipulated by the Direction. The Tribunal then made a judgment as to whether each of the considerations favoured or told against cancellation of the applicant's visa. At the end of the process the Tribunal placed those assessments into the balance to determine the question which it had posed for itself, namely, "Should the discretion to cancel the visa be exercised?" 43. This is not however the process contemplated by [7] of the Direction. The question which the Tribunal is required to determine is stated in [7(1)(b)]. That question is "whether the risk of future harm by a non-citizen is unacceptable". This is a different question than the question whether by balancing the considerations for and against cancellation, the applicant's visa should be cancelled. It is a narrower question which focuses on a particular reason why the visa should be cancelled. The Tribunal made a passing reference to [7] of the Direction but the relevant question was not asked by the Tribunal. Further, the process of considering and weighing the primary and other considerations does not necessarily produce an answer to the relevant question. It is, of course, not to the point that the Tribunal might have answered the relevant question in the same way as it answered the question which it in fact considered. 23 Gordon J dismissed the application for judicial review. Her Honour placed emphasis on the following matters: (a) The Tribunal had "specifically identified" cl 7(1)(b) in its reasons (see her Honour's reasons as [36]); (b) The Tribunal had proceeded to consider the question "whether the risk of future harm by a non-citizen is unacceptable" in various parts of its reasons; in particular her Honour identified [23], [28], [43], [44], [68], [74], [78], [82], [84] and [86] of the Tribunal's reasons (see her Honour's reasons at [37]-[40]); (c) Accordingly, the Tribunal "started and finished with the right question" (see her Honour's reasons as [40]). 24 Gordon J also observed at [40] that: If the Applicant's submissions were accepted, the practical result would be that a decision maker must consider a fact or matter under paragraph 7(1)(a) and then separately consider that fact or matter (to the extent that is relevant) again, at a different time and in a different place, under paragraph 7(1)(b). That submission is rejected to the extent that it suggests that there is some prescribed method or formula of recording the decision making process…

Extension of time considerations 25 The principles to be applied in determining whether there should be an extension of time are not in doubt. 26 First, the length of the delay needs to be considered. In the present case, there has only been a 9 day delay. Her Honour's decision was handed down on 25 August 2014. A notice of appeal was required to be filed and served within 21 days (see r 36.03(a) of the Rules). The present application was filed on 24 September 2014. The Minister has accepted that "the Court would generally not treat such a delay as an impediment to an extension of time, where the applicant's proposed grounds are sufficiently meritorious". 27 Second, is there any prejudice to the Minister if an extension of time was granted? The Minister did not point to any such prejudice. 28 Third, has an acceptable explanation been provided for the delay? In my view, the applicant has provided an acceptable reason. The applicant has deposed that he had no idea of, and was not advised of, the 21 day period. Apparently, he made enquiries about his proposed appeal with the Registry of this Court on 18 September 2014. At the time of that enquiry, and then being informed that an extension of time was necessary, he was only several days late. Given that the applicant then had no legal representation and that he was in immigration detention at the time, in my view the applicant's affidavit provides an adequate explanation for the reasons for the delay. 29 Fourth, what are the merits of the proposed appeal grounds? Does the proposed appeal have any reasonable prospect of success? It is this question on which the applicant and the Minister have given differing answers.

Arguable grounds of appeal 30 The applicant contends that the Tribunal was required by cl 7(1)(b) to consider a particular question and to follow a particular balancing process. 31 The question that the Tribunal was required to consider was whether the risk of future harm by the applicant was "unacceptable". However, the applicant contended that cl 7(1)(b) also mandated the manner in which that question must be considered. It "requires a balancing exercise". This involved consideration of three matters: the likelihood of any future harm, the extent of the potential harm should it occur and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community. 32 North J in Williams said at [43] that: [T]he process of considering and weighing the primary and other considerations [in cll 9 and 10] does not necessarily produce an answer to the relevant question [in cl7(1)(b)]… The Tribunal by cl 7(1)(a) was required to take into account the primary and other considerations. That was not in doubt. Further, cl 8 provided some guidance as to how the Tribunal should decide what weight to give to those considerations for that purpose. But as the applicant argued before me, the Tribunal nevertheless was also required to answer the particular question in cl 7(1)(b) and to do so in a manner that accorded with the express balancing exercise referred to in cl 7(1)(b). 33 In Williams v Minister for Immigration and Border Protection (2014) 142 ALD 76; [2014] FCA 674 at [41], Mortimer J described cl 7(1)(b) as "specify[ing] the ultimate task to be performed by the decision-maker in exercising the discretion." 34 Now, the analysis of North and Mortimer JJ on cl 7(1)(b), its scope and its significance does not appear to be free of controversy. 35 Buchanan J in Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141 (Lesianawai) disagreed (at [43]) with Mortimer J's characterisation. At [41], he made the following observation: 41. In my view, the requirement in cl 7(1)(b) to determine whether the risk of future harm is unacceptable, which is to be made by balancing factors which are all mentioned in cl 9.1, does not signify that the conclusion about that issue is determinative, or that the evaluation then directed by cl 8 is in any way altered… 36 The Minister made a submission before me to the effect that Perry J had in substance agreed with Buchanan J in Lesianawai. I am not so convinced. Perry J did not expressly agree with [41] of Buchanan J's reasons. But I do note that at [73] of Perry J's reasons, she did agree with Buchanan J's reasons at [67], which had some resonance with what his Honour said at [41]. 37 On one view, it might be said, as the applicant has said here, that Buchanan J's observations may also be in tension with North J's observations in Williams. North J formed the view that merely to consider and weigh up the factors in cll 9 and 10 would not necessarily produce the answer to the question in cl 7(1)(b). The applicant contends that the emphasis given to cl 7(1)(b) by North J and perhaps supported by Mortimer J is to be preferred. 38 If the construction favoured by North J is correct and cl 7(1)(b) mandates that a particular question is to be answered in a particular manner and through a different exercise than merely weighing up the factors in cll 9-10, then the question is whether the Tribunal in the present case has complied with that requirement. The applicant has argued that the Tribunal failed to appreciate or undertake that specific exercise. 39 The Minister before me contended that Williams (before North J) was a case where the Tribunal did not even ask itself the correct question, whereas it was said that in the present case the Tribunal did ask itself the correct question. I am not so convinced. True it is that the Tribunal referred to cl 7(1)(b) (see at [10]). But it is arguable that the Tribunal never properly engaged with the specific task required under cl 7(1)(b). It may not have understood the precise task required of it under cl 7(1)(b). It is reasonably arguable that it did not so appreciate. True it is that the Tribunal's reasons are replete with references to the risk of future harm and its unacceptability. And of course provisions such as cl 9.1.2 refer to this. But cl 7(1)(b) required the expressed three elements that I have referred to earlier to be considered and required those elements to be taken into account and balanced through the lens of cl 7(1)(b). In my view, it is reasonably arguable that [82] and [86] of the Tribunal's reasons suggest that the Tribunal did not specifically engage with such a task. 40 The applicant contends more specifically that the Tribunal did not grapple with the particular evaluative question concerning the Australian community, as distinct from the applicant, which the Tribunal was required to consider. Putting it slightly differently, what the Tribunal was required to consider was to what extent the Australian community should tolerate a risk of future harm. The applicant describes this as an evaluative question. I agree with that description. Moreover, it is not an answer, arguably, which is necessarily arrived at by generally weighing up the factors identified in cll 9-10. I should say that the passage in cl 9.1.2(1) "the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases" is only a theoretical statement and not the issue that needs to be expressly addressed in relation to the applicant, which is set out as the last consideration in cl 7(1)(b). The Tribunal did make findings to the effect that the risk of future harm was unacceptable (see for example [23], [28], [44], [82] and [86]). But, as the applicant describes it, in one sense those references were in answer to the headline question in cl 7(1)(b), but not necessarily an answer given following the approach of the particular balancing process described in cl 7(1)(b). 41 The applicant has argued that Gordon J erred by treating cl 7(1)(b) as identifying only a particular mandatory question, and that she ought to have found that it also prescribed a mandatory process of consideration of that question. It would seem that the applicant accepts that the Tribunal identified the correct question, but says that it did not address or answer the question in the required manner. 42 In my view, I cannot say that the applicant's contentions are not reasonably arguable. 43 Second, the applicant contended that, contrary to the reasoning of Gordon J, the proposition that the Tribunal had not engaged in the requisite balancing exercise is reinforced rather than diminished by the repeated findings that the risk of harm is "unacceptable". In [23], [28], [44] and [82] of the Tribunal's reasons, such a finding is expressed to follow simply as a result of the applicant's past criminal conduct. But the applicant contends that it is not open to the Tribunal to make a conclusion about the "unacceptability" of risk of harm divorced from consideration of any countervailing considerations, and without considering whether the relevant risk "should" be tolerated by the Australian community. The existence of the "principle" in cl 6.3 of the Direction says nothing to the contrary. Clause 6.3 indicates that in "some circumstances" involving past criminal conduct, even "strong countervailing considerations" may be insufficient to "justify not cancelling … a visa". But it is argued that such countervailing considerations must first be considered before they can be rejected as insufficient having regard to the particular balancing process prescribed by cl 7(1)(b). 44 Again, in my view I cannot say that the applicant's contention is not reasonably arguable. 45 The Minister has contended that the applicant has identified paragraphs in the Tribunal's reasons in isolation from the entirety of the Tribunal's consideration, and that the reasons of the Tribunal should be read as a whole and not too fastidiously or over-zealously scrutinised (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271- 2 per Brennan CJ, Toohey, McHugh and Gummow JJ). This statement of principle is accepted, but I am not convinced that the applicant has fallen into the vice contended for by the Minister. 46 The Minister has also contended that the reasons of the Tribunal are entitled to a "beneficial" construction. I accept such a proposition in its generality, but so to do does not deny that the applicant's arguments are reasonably arguable. 47 Third, the applicant contended that the Tribunal's finding in [86] ought to be read in the context of its repeated findings to the same effect, but which are arguably divorced from consideration of any of the countervailing factors. The applicant accepts that there is no statutory obligation on the Tribunal to record its findings or structure its statement of reasons in any particular way. However, a Court may seek to glean from the way in which the Tribunal has expressed its reasons, whether the Tribunal has complied with the mandatory requirements of the legislative scheme in making its decision. The applicant submits that the better view of [86] is that the Tribunal has not complied with the mandatory requirements of cl 7(1)(b). 48 Again, this seems to me to be a position that is reasonably arguable. 49 Fourth, the applicant contended that insofar as Gordon J had rejected the notion that the Tribunal might be required to "consider a fact or matter under cl 7(1)(a) and then separately consider that fact or matter… again", then her Honour was not correct. The Minister has directed the Tribunal to comply with two separate requirements in cl 7. Under cl 7(1)(a) there must be a consideration of the matters set out in Pt A of the Direction, which embraces cll 9 and 10. But under cl 7(1)(b) there is to be a further consideration through an associated lens, where some of the matters dealt with in Pt A have to be looked at again and through the calculus stipulated in cl 7(1)(b). It would seem that the structure and text of cl 7(1) requires separate consideration of the relevant matters both under cl 7(1)(a) and then separately under cl 7(1)(b). Further, as North J pointed out, conceivably looking at cll 9 and 10 and taking those matters into account for the purposes of cl 7(1)(a) might produce an answer different to that produced by considering a narrower subset of those considerations for the purposes of answering the inquiry set out in cl 7(1)(b). 50 Again, I cannot say that the applicant's contention is not reasonably arguable. 51 In summary, the applicant submits that the Tribunal's decision was infected with jurisdictional error. Accordingly, the applicant contends that her Honour also was in error for failing to so find. 52 In my view, the applicant has put forward reasonably arguable points to support his position. Moreover, given that there appears to be differing approaches (or at least emphases) between various judges of this Court as to the particular balancing approach identified in and required by cl 7(1)(b) and its significance to the exercise of the relevant discretion, that reinforces my view that the applicant's arguments warrant further consideration on appeal.

Conclusion 53 In my view, the extension of time sought should be granted. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach.