Lafu v Minister for Immigration and Citizenship

Facts 4 Mr Lafu was born in New Zealand on 27 December 1970. On 19 May 2007 he moved to Australia. Upon entering Australia he was the holder of a Class TY Subclass 444 Special Category (Temporary) visa. The visa permitted Mr Lafu to live in Australia permanently while he remained a citizen of New Zealand. 5 On 9 October 2008 Mr Lafu was convicted of "Grievous Bodily Harm" in the District Court of Queensland and sentenced to four years' imprisonment with a non-parole period of 16 months. Briefly recounted, the facts of the offence were that, on or about 4 August 2007, less than three months after he had arrived in Australia, Mr Lafu involved himself in a fight between a person who was in his group and another man (the complainant). The complainant was knocked to the ground by the other man. A security officer came over to help him. The complainant appeared to be unconscious. Mr Lafu walked up to the complainant and stomped on his face, probably once. A cracking sound was heard. The complainant suffered head injuries with permanent effects. 6 On 7 November 2008, Mr Lafu was given a notice of intention to consider cancellation of his visa. At that time he was due to be released at the end of the non-parole period on 2 January 2009. 7 After communications between the Department of Immigration and Citizenship and Mr Lafu, the detail of which does not matter, on 24 December 2008 the Delegate cancelled Mr Lafu's visa under s 501(2) of the Act. Accordingly, after the completion of the service of his sentence on 2 January 2009, by which time he had served 16 months in prison, Mr Lafu was detained by the Department. He has since remained in detention at the Immigration Detention Centre at Villawood. 8 On 16 January 2009 Mr Lafu applied to the AAT for review of the Delegate's decision. On 2 April 2009 the AAT affirmed that decision. 9 On 20 April 2009 Mr Lafu filed in this Court what was treated as an application under s 39B(1)(c) of the Judiciary Act 1903 (Cth) and s 476A of the Act in relation to the AAT's decision. 10 On the hearing before the primary Judge Mr Lafu relied upon an amended application filed on 22 June 2009.

legislation 11 Under s 501(2)(b) of the Act, the Minister may cancel a visa if the Minister reasonably suspects that the visa holder does not pass "the character test", and the visa holder does not satisfy the Minister that he or she passes the character test. 12 Under s 501(6) the holder of a visa does not pass the character test if one of the grounds in that subsection is met. In the present case the relevant ground is that set out in para (a) of subs (6) read with subs (7) of s 501. This is, relevantly (see para (c) of subs (7)), that the person has a substantial criminal record, which the person has if the person has been sentenced to a term of imprisonment of 12 months or more. 13 Mr Lafu was sentenced to such a term of imprisonment. Therefore the Minister (and the AAT on review) was entitled to reasonably suspect that Mr Lafu did not pass the character test, and to conclude that Mr Lafu had not satisfied him (or the AAT) that Mr Lafu passed the character test. 14 In these circumstances, the discretion under s 501(2) to set aside or affirm the Delegate's decision was enlivened. 15 Section 499(1) of the Act provides relevantly that the Minister may give written directions to a person or body having powers under the Act about the exercise of those powers. Under s 499(2A) a person or body must comply with such a direction. 16 On 23 August 2001 the Minister issued Ministerial Direction No 21 entitled "Visa refusal and cancellation under section 501 of the Migration Act 1958" (Direction 21). 17 In its preamble Direction 21 states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501 of [the Act]". 18 Under the heading "Preliminary", Direction 21 states that the Direction is divided into two Parts. Part 1 is said to provide directions on the application of the character test. The Direction states that Part 2 provides directions on the primary and other considerations that decision-makers are to take into account when exercising "the discretion to consider whether to refuse or cancel a visa". The Preliminary section of the Direction foreshadows that Part 2 provides directions on what those considerations are and the weight to be given to them. 19 Part 2 of Direction 21 is headed "Exercising the Discretion". Within that Part, para 2.1 states that if a non-citizen does not pass the character test, decision-makers "must" have regard to the considerations set out in the following paragraphs of Direction 21 when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia. 20 Paragraph 2.2 provides that a decision-maker "should" have regard to three primary considerations and a number of other considerations. Paragraph 2.2 also provides that decision-makers "must" have regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations. 21 Notwithstanding the use of the word "should" once in para 2.2, it was common ground that the three primary considerations were mandatory considerations: a decision-maker was obliged to have regard to them. 22 The primary considerations are set out in paras 2.3-2.16, and the other considerations at paras 2.17-2.24. 23 The three primary considerations are set out in para 2.3 as follows: (a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children. 24 The first of these primary considerations is elaborated upon in paras 2.4-2.11. Relevantly, para 2.5(c) provides that the factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include "whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)". 25 The heading to para 2.11 together with that paragraph are as follows: (c). general deterrence - the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons 2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways: (a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and (b) the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes. 26 Paragraph 2.12 elaborates on the primary consideration reproduced in para (b) at [23] above (the expectations of the Australian community) and paras 2.13-2.16 elaborate on the primary consideration reproduced in para (c) at [23] above (the best interests of the child) but neither of these is relevant in the present appeal. 27 The issue raised in the appeal is whether the AAT had regard to the factor of general deterrence which, it is common ground, the AAT was required to do, albeit subject to the balancing exercise referred to in para 2.2 referred to at [20] above. We now turn to the reasons of the AAT.

Reasons of the AAT 28 The only reference to general deterrence in the AAT's reasons was at [124]-[127]. However, before setting out those paragraphs, we note the following earlier observations made by the AAT to which counsel referred. 29 At [9] the AAT set out the issues in the case as being: (i) whether the applicant passed the character test in s 501(6)(a) of the Act, given his substantial criminal record as defined in s 501(7) of the Act; and if not, (ii) whether the Tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant's visa, applying Direction 21. 30 At [10]-[13] the AAT set out relevant provisions of the Act and referred to the making of Direction 21 but did not there discuss the content of the latter. 31 Over many paragraphs, the AAT summarised the evidence. 32 Under the heading "Applicant's submissions", the AAT set out (at [92]) Mr Lafu's submission that: Given the lack of publicity about the matter, and the lack of any gang involvement, cancelling the applicant's visa would have no deterrent value. As will be seen below, the AAT neither accepted nor rejected that submission. 33 Under the heading "Application of the Law and Findings of Fact", the AAT (at [97]-[103]) referred to paras 2.2, 2.3, 2.4, 2.6 and 2.8 of Direction 21, and stated (at [103]): With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, "aims to deter other people from committing the same or a similar offence" (emphasis supplied). 34 At [104]-[146], the AAT dealt successively with the three primary considerations and with the "Other considerations", clearly by reference to headings within Part 2 of Direction 21 noted earlier. 35 Under the heading "Protection of the Australian Community", the AAT (at [108]) addressed a submission by counsel for Mr Lafu that the offence did not form part of any gang crime. The AAT said that while that might be so, Mr Lafu himself said that he had been "mixing with the wrong crowd" and the offence had been committed by him in conjunction with another member of that group. The member added: "In that sense the offence had elements of collective action". In saying this, the AAT was addressing the seriousness of Mr Lafu's offence, not the issue of general deterrence. 36 After addressing (at [120]-[123]) the question of the risk of recidivism, the AAT turned to the question of general deterrence in the following paragraphs: 124. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance. The concept can perhaps also be expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community. 125. Its incorporation in Direction 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does. 126. As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, "Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort". 127. While general deterrence cannot be a decisive, or even a substantial, factor in the exercise of the discretion, it is a factor that must be taken into account. We will return to these paragraphs below.

Reasons of the primary judge 37 Her Honour identified (correctly in our view) the issue between the parties as being whether the AAT had, at [124]-[127] of its reasons, given no more than an "abstract recitation of principle" (at [18]). 38 Her Honour referred (at [19]) to the fact that in another decision, Filipo v Minister for Immigration and Citizenship [2008] AATA 1144 (Filipo), the same Tribunal member had used precisely the same formula of words (at [83]-[86]) but with the addition (at [86]) of a factor relevant to the individual applicant in that case, namely, that that case involved serious gang violence with the consequence that the deterrent factor was particularly important. Her Honour observed that no equivalent observation specific to Mr Lafu was apparent from the AAT's reasons in the present case. 39 Her Honour accepted (at [22]) that the AAT's observations at [124]-[127] of its reasons, read in isolation, were capable of giving rise to a suspicion of abstract recitation of principle irrespective of the facts of the individual case. Nonetheless her Honour observed that those paragraphs were not to be read in isolation and considered that when the AAT's reasons were read fairly as a whole, Mr Lafu's complaint did not rise above a mere suspicion of error. 40 The primary Judge referred to the fact that the AAT had correctly identified (at [9]) the questions it had to answer; the operation of Direction 21 (at [12]-[13]); the considerations made relevant by Direction 21, including general deterrence (at [98]-[103]); and Mr Lafu's evidence and submissions about general deterrence (at [19] and [92]). Her Honour said (at [23]): In other words, the issue of general deterrence was evidently in the Tribunal's mind throughout its assessment. 41 The primary Judge also remarked that other factors identified in Direction 21 were relevant to the question of general deterrence, including the "seriousness and nature of the conduct" (para 2.5(a)) and the expectations of the Australian community (paras 2.3(b) and 2.12). Her Honour referred to the AAT's description of Mr Lafu's conduct as "gratuitous violence" (at [43]) which had elements of "collective action" despite not being part of a gang crime (at [108]), warranting the conclusion that he had a "very serious" criminal record in Australia "as a consequence of which one Australian had already been caused to suffer 'permanent disability'" (at [123]). 42 Ultimately, her Honour's conclusion was that the AAT's observations on general deterrence at [124]-[127] had to be read in the light of the preceding findings of fact to which she referred. When so read, those paragraphs represented, according to her Honour, an assessment by the AAT that general deterrence was neither a decisive nor even a substantial factor, but merely a relevant factor. Her Honour said (at [25]): A fair reading of the Tribunal's reasons indicates that this assessment must be understood as the Tribunal's conclusion on the facts of the individual case and not in the mere abstract. 43 The primary Judge also considered (at [26]) that this view was supported by the AAT's subsequent assessment of the expectations of the Australian community. 44 Finally, her Honour characterised the AAT's assessment as being that general deterrence was relevant to the first of the three primary considerations (protection of the Australian community) but that it was not a decisive or even a substantial factor. Rather, the decisive or substantial factors in respect of the first primary consideration were those specified in paras 2.5(a) and (b) (respectively, the seriousness and nature of Mr Lafu's conduct and the likelihood of his re-offending). 45 Her Honour quoted (at [28]) an observation of the Full Court of this Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (WAEE) at [47] as follows: The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

Consideration 46 The Delegate's decision was a privative clause decision: see s 474(2) of the Act. This Court had jurisdiction in relation to the decision: see s 476A(1)(b) of the Act. That jurisdiction was the same as the jurisdiction of the High Court under s 75(v) of the Constitution: see s 476A(2) of the Act. Section 483 of the Act had the effect of excluding the Court's jurisdiction to hear an "appeal" from the AAT in relation to its decision in this case. In order to succeed before her Honour, Mr Lafu had to establish jurisdictional error by the AAT: see Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345 at [4]. 47 The Minister accepted that jurisdictional error would be established if the AAT did not genuinely take into account the question of general deterrence as required by Direction 21: see the primary Judge's decision at [21]; and the discussion by Rares J in Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 181-182 [105]-[107], and by the Full Court in Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267]. 48 With respect, we consider that her Honour misapplied the statement made by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 in inferring from other parts of the AAT's reasons that [124]-[127] were to be read as an engagement by the AAT in an "active intellectual process" (Tickner v Chapman (1995) 57 FCR 451 at 462). The High Court said at the passage referred to (and quoted by her Honour at [22]): … reasons of an administrative decision-maker are meant to inform and [are] not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. 49 When the allowances called for by this passage are made, we remain of the view that the AAT's reasons for decision fall on the wrong side of the line: they do not show an active intellectual engagement with the question how the factor or consideration of general deterrence was taken into account, and therefore whether it was taken into account at all, in the exercise of a discretion to cancel. Mr Lafu would be left to guess what role, if any, the issue of general deterrence had played. Yet it will be recalled (see [32] above) that Mr Lafu had expressly submitted that "[g]iven the lack of publicity about the matter, and the lack of any gang involvement, cancelling the applicant's visa would have no deterrent value". 50 We do not think that the structure of the AAT's reasons for decision is to be ignored. It was at [124]-[127] that the AAT deliberately turned its attention to the requirement that it consider a question of general deterrence, yet we find in those paragraphs no engagement with the question how the AAT considered the way, if any, that the issue of general deterrence related to the facts of Mr Lafu's case. 51 The Minister submits that [127] is a statement to the effect that, on the facts, general deterrence is a factor that must be given little weight. We do not accept the submission. At that paragraph the AAT was still stating the general position in relation to general deterrence. In Filipo, the comparable paragraph ([86]) authored by the same member was: While deterrence cannot be a decisive, or even a substantial factor in the exercise of the discretion, it should be taken into account, especially in the case of serious gang violence such as occurred here. [emphasis added] The words emphasised in the passage quoted show some application of the member's mind to the question whether, on the facts of Filipo, the particular case, the matter of general deterrence told in favour of a cancellation. Comparable words do not appear in the AAT's reasons for decision in the present case. 52 Arguably, the words "must be taken into account" in [127] of the AAT's reasons in Mr Lafu's case and the words "should be taken into account" in Filipo, mean that the AAT is required as a matter of law to take into account general deterrence as a factor telling against the individual in all cases. It can be accepted that in virtually all cases there would be at least one person other than the visa holder who will learn of a cancellation, so that, at least theoretically, general deterrence will always have some role, even if a miniscule one. We do not think, however, that a bland statement that as a matter of conceptual analysis, general deterrence must always tell in favour of cancellation, without any reference to how and to what extent it does so on the facts of the particular case, meets the requirements of paras 2.5(c) and 2.11 of Direction 21 set out earlier. Paragraph 2.11 states that general deterrence "may be relevant in a number of ways" and requires a decision-maker to consider and identify whether, and if so, the way in which, it is relevant on the facts of the particular case 53 We are not persuaded that the passage from WAEE set out at [45] above signifies that the AAT was relieved from giving reasons as to the actual relevance general deterrence had to its decision to affirm the cancellation of Mr Lafu's visa. In the present case the AAT did expressly refer to the issue of general deterrence in the statement of its reasons. The problem is that [124]-[127] where the AAT did so, turn out, upon analysis, not to expose a consideration of the question of general deterrence as it relates to the facts of the present case at all. 54 Notwithstanding her Honour's careful analysis, our own careful analysis of the AAT's reasons convinces us that so far as those reasons reveal, the AAT did not reach a conclusion in relation to whether and to what extent general deterrence was relevant to the circumstances of Mr Lafu's case. Apart from reciting the requirement that that factor be taken into account, the AAT's reasons do not indicate whether the AAT was influenced, and if so by what process of reasoning, by the factor of general deterrence, in deciding that Mr Lafu's visa was to be cancelled. We conclude that the AAT did not give real consideration to the factor of general deterrence as it related to the individual circumstances of Mr Lafu's case.

Conclusion 55 For the above reasons the appeal should be allowed and the decision of the AAT set aside. There should be an order for a writ of certiorari quashing the AAT's decision and a writ of mandamus requiring it to hear and determine the application before it according to law. The first respondent should pay the appellant's costs of the appeal and of the hearing at first instance. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lindgren, Rares and Foster.

Dated: 9 October 2009 Counsel for the Appellant: Ms L Clegg

Date of Hearing: 11 September 2009

Date of Judgment: 9 October 2009