Hodgson v Minister for Immigration and Border Protection

Solicitor for the First and Second Respondents: Australian Government Solicitor

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

PARLIAMENTARY SECRETARY TO THE MINISTER FOR IMMIGRATION AND BORDER PROTECTION (AKA "ASSISTANT MINISTER FOR IMMIGRATION AND BORDER PROTECTION") Second Respondent

JUDGE: TRACEY J DATE OF ORDER: 28 SEptember 2017

1. The application be dismissed.
2. The applicant pay the respondents' costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

TRACEY J: 1 The applicant, Mr David Hodgson, was born in the United Kingdom in 1977. Four years later he came to Australia with his parents. He has lived here since then. He has been entitled to reside in Australia as the holder of a Class BF transitional (permanent) visa. 2 Since 1994 he has accumulated over 70 criminal convictions. In November 2012 he was convicted of multiple offences in the Kyneton Magistrates' Court. He was sentenced to an aggregate of 12 months imprisonment. 3 On 20 March 2013 an officer of the Department of Immigration and Border Protection ("the Department") sent Mr Hodgson a formal counselling letter ("the counselling letter"). Mr Hodgson's attention was directed to the provisions of s 501 of the Migration Act 1958 (Cth) ("the Act"), a copy of which was attached to the letter. He was advised that: At present, no consideration is being given to cancelling your visa under section 501 of the Act. Your visa therefore continues to provide you with authority to remain in Australia. The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in consideration of the cancellation of your visa. The consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia. (Emphasis in original.) 4 Despite this warning Mr Hodgson continued to offend. Subsequent offences included burglary and drug possession. In January 2016 he was convicted and imprisoned for 104 days for unlawful assault, intentionally destroying property, contravening a family violence intervention order and resisting a police officer. The property was a house in which Mr Hodgson lived with his partner and two of her young children. 5 On 22 February 2016 a delegate of the Minister for Immigration and Border Protection ("the Minister") cancelled Mr Hodgson's visa pursuant to s 501(3A) of the Act. That subsection relevantly provides: 501 Refusal or cancellation of visa on character grounds … Decision of Minister - natural justice does not apply … (3A) The Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or … (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. 6 The delegate considered that Mr Hodgson did not pass the character test prescribed by s 501(6)(a) and (7)(c) of the Act. There was no dispute that Mr Hodgson did not pass the test because of the 12 month sentence of imprisonment imposed on him in 2012. Those provisions relevantly provide as follows: (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)); … (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. 7 The delegate also considered that Mr Hodgson satisfied the requirement in s 501(3A)(b). It was not in dispute that he met that criterion because he was, at the time of the delegate's decision, serving the 104 day sentence of imprisonment. 8 The delegate's decision was recorded in a letter dated 22 February 2016 which was sent to Mr Hodgson in prison ("the cancellation letter"). Mr Hodgson was advised of his right to apply to the Minister, under s 501CA(4) of the Act, for a revocation of the cancellation decision. Section 501CA relevantly provides: 501CA Cancellation of visa - revocation of decision under subsection 501(3A) (person serving sentence of imprisonment) (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. (2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for making the original decision; and (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (3) As soon as practicable after making the original decision, the Minister must: (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. (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. … 9 In the letter Mr Hodgson was told about how to make representations in support of an application for revocation. He was provided with a number of documents enclosed with the letter including "Direction 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA" ("Direction 65"). This direction was given by a previous Minister under s 499 of the Act. Delegates and members of the Administrative Appeals Tribunal were bound to act consistently with the Direction when making decisions covered by it: s 499(2A) of the Act. The Minister and Assistant Minister were not so bound: Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68 at [79] (Bromwich J, Bromberg and Charlesworth JJ agreeing). 10 Mr Hodgson's application for revocation was received by the Department on 18 March 2016. He engaged solicitors who made a number of written submissions on his behalf and filed a series of supporting documents including statutory declarations. These were provided between March and November 2016. 11 On 6 December 2016, the Department wrote to Mr Hodgson in relation to his application. The letter invited comment on certain information which might be taken into account by the Minister when making the decision whether to revoke the cancellation decision. Further submissions were provided by letter dated 21 December 2016 from Mr Hodgson's solicitors. 12 The submissions were considered personally by the Assistant Minister for Immigration and Border Protection ("the Assistant Minister"). On 31 January 2017 the Assistant Minister determined not to revoke the cancellation decision. In making this decision, the Assistant Minister was exercising the powers of a Minister under the Act: cf Bochenski at [46]. 13 Mr Hodgson sought judicial review of the Assistant Minister's decision in the Federal Circuit Court. On 20 March 2017 a judge of that Court transferred the proceeding to this Court under s 39(1) of the Federal Circuit Court Act 1999 (Cth).

THE APPLICANT'S GROUNDS 14 In his amended originating application for review, Mr Hodgson relied on five grounds. 15 The first two alleged denial of procedural fairness. Both grounds focused on the counselling letter. In Ground 1, Mr Hodgson argued that there had been a failure to draw to his attention a relevant "issue", namely that his criminal convictions which pre-dated the counselling letter might be taken into account. In Ground 2, he complained that the counselling letter had contained a misrepresentation that any future cancellation decision would only be concerned with any later offences. As a result, his submissions had concentrated on the circumstances of his post-2012 offending and he had been deprived of the opportunity to make some, unspecified, additional submissions. He further complained that the Assistant Minister had, in some way, departed from the alleged representation. 16 Ground 3 was that the Assistant Minister had failed to comply with Direction 65. This was put as a formal submission having regard to the decision of the Full Court in Bochenski. 17 Ground 4 was that the Assistant Minister had failed to have regard to government policy relating to the cancellation of visas. 18 The final ground, Ground 5, was that the Assistant Minister had failed to have regard to certain submissions made on Mr Hodgson's behalf by his solicitors.

GROUNDS 1 AND 2 19 The relevant parts of the counselling letter on which Mr Hodgson relied are set out above at [3]. It was contended that the Department had thereby represented to Mr Hodgson that, in the event that the cancellation of his visa on character grounds was later to be considered, only subsequent offending would be brought into account. Thus, when responding to the cancellation letter, he had focussed on his post-2012 offending thereby depriving himself of a chance to persuade the Assistant Minister to revoke the cancellation. 20 The alleged deficiencies in the counselling letter were said, in Ground 1, to constitute a failure to identify an issue that was critical to the decision in the manner described in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 162; [2006] HCA 63 at [29] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ). 21 In Ground 2, it was said that the Minister departed from a representation about the decision-making process, thus occasioning unfairness of the kind identified in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 122, [2000] HCA 57 at [103] (McHugh J), [128] (Kirby J), [212] (Callinan J); Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 617-618, 660; [2002] HCA 30 at [61]-[63] (Gaudron J), [257] (Hayne J); Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at 12-13; [2003] HCA 6 at [34] (Gleeson CJ); and Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at 441; [2014] FCA 673 at [72] (Mortimer J). 22 Mr Hodgson's solicitor affirmed an affidavit on 1 March 2017 in which he deposed that: I also understood the [counselling letter] to state that any future consideration of character cancellation of [Mr Hodgson's] visa could only arise based on events taking place after the date of the [counselling letter]. As a result of my understanding of the intent and purpose of the [counselling letter], our written submissions to the Department addressed convictions post-dating the [letter], and not the convictions which were considered in the process that led to the [counselling letter]. He also deposed that had he known that earlier convictions would have been taken into account in any later decision under s 501CA(4) of the Act, "we would have provided comment and submissions in relation to [Mr Hodgson's] offending prior to the date of the [counselling letter]." 23 The language employed by the author of the counselling letter does not, in my view, convey any representation of the kind alleged by Mr Hodgson. He was told that "[a]t present" consideration was not being given to the cancellation of his visa. The purpose of the letter was then identified: it was to warn him that any further criminal convictions could result in consideration being given to cancellation. Any further convictions would, thus, be the catalyst for the consideration of cancellation. They were not said to constitute the exclusive foundation for any future adverse visa decision. Furthermore, the counselling letter did not foreclose, either expressly or impliedly, the possibility that the Minister would have regard to criminal conduct that pre-dated its issue. Indeed, the convictions which led to the 12 month sentence of imprisonment, which brought Mr Hodgson within the reach of s 501(6)(a) and (7)(c), pre-dated the issuing of that letter. 24 The solicitor's affidavit does not identify the parts of the counselling letter which it is said gave rise to his understanding of its intent and purpose. 25 Even had the solicitor considered that a representation of the kind alleged in Mr Hodgson's application had been made, any such misconception must have been disabused by the terms of the cancellation letter dated 22 February 2017. In that letter Mr Hodgson was relevantly advised that: The delegate had determined that he (Mr Hodgson) had not passed the character test by reason of his November 2012 convictions and the imposition of the aggregate sentence of 12 months imprisonment. That information had been drawn from a national police certificate dated 22 January 2013. That certificate, a copy of which was enclosed with the cancellation letter, contained a record of all of Mr Hodgson's convictions going back to 1994. Mr Hodgson could make an application for revocation of the cancellation decision. Direction 65 (a copy of which was provided to Mr Hodgson with the cancellation letter) identified the issues which would, potentially, be relevant to consideration of any application for revocation of the cancellation decision. If the Minister made the decision personally he would not be bound by Direction 65 although the Direction provided "a broad indication of the types of issues that the Minister is likely to take into account in deciding whether or not to revoke the decision to cancel your visa." If Mr Hodgson made representations about revocation, the information enclosed with the cancellation letter, including the national police certificate, would "be taken into consideration when deciding whether or not to revoke the mandatory cancellation decision." "As some of the enclosed information is adverse information that may undermine the possible revocation of the decision to cancel your visa, if you decide to make representations in support of revocation of the decision to cancel your visa, you may also wish to provide specific comments regarding the enclosed information, in particular the adverse information." As noted, among the "enclosed information" was a copy of the national police certificate. 26 Mr Hodgson's attention was thus drawn to his long criminal record, most of which preceded his 2012 convictions. He was clearly invited to deal with his criminal history and the implications of it for any revocation application. 27 It is apparent that Mr Hodgson did address his earlier criminal history in his revocation application. Not surprisingly, in written submissions dated 22 March 2016 made on Mr Hodgson's behalf and in a statutory declaration made by him on 12 March 2016, he dealt with these earlier convictions and sought to explain the reasons for them. Both documents, for example, refer to the earlier period of his offending and attribute his criminal conduct to drug addiction and the need for him to obtain funds to obtain drugs. This history was also referred to and commented on by a consultant psychiatrist who provided a report which was considered by the Assistant Minister. 28 In the letter dated 6 December 2016, the Department again drew Mr Hodgson's attention to his criminal record. That letter stated that the Department had information which may be taken into account when making the decision whether to revoke the decision to cancel Mr Hodgson's visa. This information included a national police certificate dated 18 October 2016, sentencing remarks at the Sunshine Magistrates' Court on 27 January 2016, and two incident detail reports from 2016. Copies of these documents were enclosed with the letter. Relevantly, the police certificate contained a record of offences dating from 1994 to 2016. The letter stated: "You are invited to comment on this information." The subsequent submissions made by Mr Hodgson's solicitors, dated 21 December 2016, focused on the 2016 conduct and did not address his earlier offending. 29 Mr Hodgson was given every opportunity to make his case for revocation to the Assistant Minister. He was told about his right to apply, the manner in which he could make his application, the terms of the relevant legislation and the considerations which were potentially relevant to the making of the decision. Acting through solicitors he availed himself of this opportunity. In doing so he did not confine himself to explaining the circumstances in which his post-2012 convictions came to occur. 30 It is notable that Mr Hodgson's solicitor did not identify any particular material submissions which would have been made on Mr Hodgson's behalf, but were not, by reason of the alleged representation contained in the counselling letter: cf Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 342; [2015] HCA 40 at [59] (Gageler and Gordon JJ); Tanielu at 441 [73] (Mortimer J). 31 No practical injustice was occasioned to Mr Hodgson by reason of any of the contents of the counselling and the cancellation letters: cf Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14; [2003] HCA 6 at [37] (Gleeson CJ); WZARH at 337 [36] (Kiefel, Bell and Keane JJ), 342 [57] (Gageler and Gordon JJ); Minister for Immigration and Border Protection v SZSSJ (2016) 333 ALR 653 at 670; [2016] HCA 29 at [82] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ). 32 Grounds 1 and 2 must be rejected.

GROUND 4 33 Mr Hodgson contended that, in addition to being a Direction under s 499 of the Act, Direction 65 amounted to a statement of government policy. Although the Assistant Minister was not bound by the Direction he was, it was submitted, obliged to have regard to its contents pursuant to the common law obligation to take account of mandatory relevant considerations. 34 One aspect of the policy was said to be found in Clause 14.4 of Direction 65. Clause 14 deals with "other considerations" which must be taken into account where relevant when a delegate is deciding whether to revoke the mandatory cancellation of a visa. One of these considerations is the impact of the decision on victims of the relevant misconduct. This consideration is developed in Clause 14.4 and is not confined to victims. Clause 14.4 reads: 14.4 Impact on victims (1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness. Mr Hodgson complained that the Assistant Minister had failed to have regard to these considerations when reaching his decision. 35 Reliance was placed on the judgment of French and Drummond JJ in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189; [1994] FCA 225. The case was concerned with the relevance of ministerial or governmental policy statements in the process of administrative decision-making. More specifically, the question was whether the Administrative Appeals Tribunal was bound to have regard to policy statements made in relation to what was then described as "criminal deportation" when dealing with appeals from deportation orders made by delegates of the Minister. Their Honours held that the Tribunal was not bound by governmental policy (at 205-206). Nonetheless, and subject to certain qualifications, they said (at 206) that: … the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by the Tribunal. In the case of the power to deport non-citizens convicted of criminal offences, the existence and content of a lawful criminal deportation policy is a matter the Tribunal is bound to take into account and to give such weight as it thinks proper having regard to all the circumstances of the case. This decision pre-dated the enactment of s 499 of the Act. The relevant government policy on criminal deportation had been explained in Parliamentary statements made by Ministers. It may well be that the introduction of the scheme of ministerial directions under s 499 has displaced any common law requirements which might have bound decision-makers to take into account government policy. Another issue which may be thought to arise is whether ministers, as distinct from other statutory decision-makers, are bound by government policy or are bound to have regard to it when personally making decisions. 36 It is not necessary that these matters be pursued further on this application because it is clear that, in reaching his decision, the Assistant Minister did have regard to the matters referred to in Clause 14.4 to the extent to which they were relied on by Mr Hodgson and even though the Assistant Minister did not expressly refer to that part of Direction 65 in his reasons. 37 The cancellation letter invited Mr Hodgson to deal with any of the considerations identified in Direction 65 which he wished the Minister to take into account when deciding whether to revoke the cancellation decision. 38 The submissions dated 22 March 2016, prepared by Mr Hodgson's solicitors in response to the invitation contained in the cancellation letter, dealt at length with the effect the deportation of Mr Hodgson would have on his partner, children and his parents. Subsequent correspondence dated 27 April 2016, as well as submissions made by email on 25 November 2016 and by letter dated 21 December 2016 again raised with the Department the adverse effects of Mr Hodgson's separation from his family members. 39 In his statutory declaration, made on 12 March 2016, Mr Hodgson said that he considered it "relevant for the department to consider the impact that a decision not to revoke the cancellation of my visa will have on a number of innocent people including my parents, my partner … and in particular, her children and of course our recently born son." 40 In his reasons the Assistant Minister had regard to the adverse impact which the deportation of Mr Hodgson would have on his family and friends in the Australian community. At [77] of his reasons, the Assistant Minister summarised these considerations as "the hardship Mr Hodgson, his family and social networks will endure in the event the original decision is not revoked." Mr Hodgson's partner was a victim of his criminal behaviour. The others whom he claimed would suffer, were he to be deported, were members of the Australian community. The impact of an adverse decision on these people was a matter which the Assistant Minister was entitled to and did consider. This was a relevant matter under Clause 14.4 and other provisions of Direction 65. The hardship associated with removal of Mr Hodgson from Australia was brought into account in Mr Hodgson's favour but was found, by the Assistant Minister, to be outweighed by the risks to the Australian community of the potential for further violent offending by Mr Hodgson. 41 Ground 4 has not been made out.

GROUND 5 42 The submissions which Mr Hodgson contended had been made by his solicitors but which the Assistant Minister had failed to take into account were contained in the written submissions dated 22 March 2016 made in response to the invitation contained in the cancellation letter. In particular, it was alleged that there had been a failure to have regard to the submissions set out under the heading "Other considerations". 43 The solicitors had there argued that a decision by the Minister not to revoke the cancellation decision would amount to a "crushing" sentence and that it would be a "disproportionate result" having regard to the 104 day sentence of imprisonment already served by Mr Hodgson. The argument, as developed was that: The Court noted at [23] in the case of R v SSH [2006] VSCA 83 in reference to the prisoner's conditions in prison that: 'Whether this is caused by the neglect of the prison authorities, the fact remains: the appellant is suffering above and beyond what was initially contemplated by the sentencing judge.' We submit our client's 2 month prison sentence, arising out of a dispute that should have been settled out of Court, is not in proportion to his resulting visa cancellation. We contend that the sentencing Judge was not aware of the consequences of this sentence. We concede that this is a matter arising out of the Migration Act and not the Crimes Act, but given that our client's character is based on breaches of the Crimes Act, we request that the Minister have regard to the irreparable damage that will be caused to our client and his family should he be removed from Australia. 44 The consequence of the alleged failure to have regard to these submissions was, it was contended, a denial of procedural fairness akin to that discussed in SZSSC v Minister for Immigration (2014) 317 ALR 365 at 381-389; [2014] FCA 863 at [81] (Griffiths J). 45 The reference to Mr Hodgson's "2 month prison sentence" is, apparently, a reference to the time served of the 104 day sentence. The sentencing magistrate had not been advised that any penalty which he imposed might have implications for Mr Hodgson's immigration status. Had the magistrate been so advised it can but be a matter of speculation as to whether or not the risk that Mr Hodgson's visa might be cancelled would have been taken into account for sentencing purposes. The possibility of a shorter sentence was not a matter which the Assistant Minister was bound to take into account when reaching his decision. The gravamen of the submission was that, if the visa cancellation were not to be disturbed, the deportation of Mr Hodgson would turn the custodial sentence (which had already been served) into a "crushing" and "disproportionate" penalty. This was because of the impact of deportation on Mr Hodgson and his Australia-based family. 46 As already seen, in dealing with Ground 4, these effects of the deportation were matters which the Assistant Minister did have regard to and weighed in the balance of competing considerations. The fact that he did so under headings such as "[b]est interest of minor children", "[s]trength, nature and duration of ties" and "[e]xtent of impediments if removed" does not mean that the submissions were not considered. In any event, the Assistant Minister's reasons indicate that the length of the sentence, imposed on Mr Hodgson, in January 2016, was far less significant for the purposes of the exercise of the discretion under s 501CA(4) of the Act than was the violent nature of the offences of which he had been convicted. These included convictions for unlawful assault, intentionally destroying property and resisting a police officer. 47 Mr Hodgson was afforded an opportunity to make any mitigatory submissions he wished in relation to these convictions. He availed himself of that opportunity. The Assistant Minister was clearly alert to the penalty which had been imposed and to the potential impact of deportation on Mr Hodgson, his family and friends. He took these matters into account. The Assistant Minister was not required to form his own value judgment as to whether or not an adverse decision under s 501CA(4) would turn what would otherwise have been an appropriate criminal sentence into a "crushing" or "disproportionate" penalty. 48 This ground must fail.

DISPOSITION 49 The application must be dismissed with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.