Lesianawai v Minister for Immigration and Border Protection

JUDGE: ROBERTSON J DATE: 23 APRIL 2014 PLACE: SYDNEY

Introduction 1 On 7 January 2014 the Administrative Appeals Tribunal (the Tribunal) decided to affirm the decision made on 11 October 2013 by a delegate of the Minister that the applicant's visa be cancelled. 2 The Tribunal found that the applicant was a 29-year-old Fijian national whose parents had brought him and their four elder sons to Australia in January 1988. The applicant has lived in Australia ever since and he has never been back to Fiji. In November 1999 the family members obtained permanent residence visas. 3 These proceedings were commenced on 30 January 2014 under s 476A of the Migration Act 1958 (Cth) (the Act). By an amended originating application filed in Court on 23 April 2014, the applicant sought certiorari to set aside the decision of the Tribunal and mandamus directed to the Tribunal that it determine the applicant's application in accordance with law.

The decision of the Tribunal 4 The applicant's inability to satisfy the character test in s 501(6) of the Act enlivened the visa cancellation power in s 501(2). 5 The Tribunal noted that in reviewing a visa cancellation decision by a Ministerial delegate, the Tribunal was required to comply with the direction issued by the Minister under s 499 of the Act being Direction No. 55 - Direction Under Section 499 Migration Act 1958 (Direction 55). 6 The Tribunal then spent some paragraphs analysing Direction 55. 7 The Tribunal made findings as to the applicant's criminal conduct, setting out his offence history. The Tribunal then considered the nature and seriousness of the applicant's conduct. The Tribunal referred to a formal warning contained in a Departmental letter of 17 December 2008 which was signed by the applicant on 21 December 2008 and returned to the Department. 8 The Tribunal reviewed the totality of the applicant's conduct during his adult incarceration. 9 The Tribunal then made a contemporary assessment of the applicant's risk of re-offending. The Tribunal considered that the applicant represented a significant risk of future re-offending, and a significant risk of serious harm as a result of any such re-offending. Those risks, the Tribunal said at [72], strongly favoured cancellation of the applicant's visa. 10 The Tribunal then considered the applicant's Australian ties, noting that the applicant was only three years old when his parents brought the family to Australia. The Tribunal noted that at the date of its decision, all of the members of the applicant's immediate family lived in Australia and most of them, including his parents and at least two of his brothers, would almost certainly remain living in Australia. 11 The Tribunal also referred to the applicant's relationship with his fiancÉe. The Tribunal referred to their young son, who was just over three years of age. The Tribunal said that the applicant's fiancÉe had no intention of joining the applicant in Fiji if he had to return. 12 The Tribunal said that all those considerations indicated the strength of the applicant's Australian ties, and strongly favoured his continued Australian residence. At [79] the Tribunal said the strength of those considerations was reduced by the facts that, first, he had spent almost the preponderance of his adult years in prison, second, his serious offending began in his teenage years, third, he had continued to offend and to display little evidence of sustained capacity to reform, and, fourth, he was unable to point to any strong links to the Australian community other than his own family members, his fiancÉe and his infant son. 13 The Tribunal then went on from [80] to consider the best interests of minor children. The Tribunal said the only minor whose interests had been identified as requiring significant consideration was the applicant's only child, the son to whom his fiancÉe gave birth in October 2010. 14 The Tribunal found at [81] that the applicant's only contact with his son had been limited to occasional prison visits. They had never lived together. The applicant did not have the means to contribute, and had not contributed meaningfully, to his son's care and development. The applicant professed a high degree of motivation to participate constructively in his son's development and upbringing, but there was no significant evidence that they had any meaningful relationship. This was unsurprising, the Tribunal said, given the applicant's son's tender age and the limitations imposed by the applicant's continuing incarceration. 15 The Tribunal found at [82] that the applicant's son's best interests included the material needs of home, physical and emotional support. All of those needs had been met to date, though not without difficulty, by the applicant's fiancÉe, and the parents and sister with whom she lived. They were likely to continue to be able to provide that support for the future. The Tribunal also found that it was in the child's best interests that his home environment be as comfortable and supportive as possible. The Tribunal found that the applicant would have a potential contribution to make to that environment. His real capacity to do so, with either financial, physical or emotional support was doubtful, given the history of his offending and the "general psychological malaise" to which the Tribunal had referred, but it was in the best interests of the applicant's son that the applicant had the opportunity to contribute in those ways. He would have the opportunity to contribute financial and emotional support even if he were required to return to Fiji. But contributions of that kind, made from a distance, were inherently unlikely to have the same qualitative significance as those made with an immediate and ongoing physical presence and guidance. For all of those reasons, the Tribunal accepted, at least at a conceptual level, it was in the best interests of the applicant's son that he remain in Australia. However, the Tribunal did not accept that it could confidently conclude that the applicant's presence would be likely either to contribute to his son's best interests in any other specific way, or that it would be free of unacceptable risk of future and serious offending conduct. 16 The Tribunal also noted, at [83], in considering the effect on family members, that the applicant's return to Fiji would at least be disappointing for his son and that was a consequence which was by no means insignificant. But there was no evidence that, at the date of the Tribunal's decision, the applicant had contributed tangibly to his fiancÉe or his son. His part in their lives since 2010 had been limited to prison visits and, presumably, phone calls. To the extent that the applicant was motivated, and welcome, to pursue contact with them in the future, he would be able to communicate with them from Fiji. They would also be able, should they so choose, to visit the applicant there. 17 The Tribunal said that in the circumstances of the past offences and the real risk of the applicant reoffending, there were good grounds to exercise the visa cancellation power by regarding as determinative the primary consideration of protection of the Australian community. The weight of that protective consideration, the Tribunal said at [86], had to be assessed against the significance not only of the applicant's Australian ties, but also the best interests of his young son. Those matters counted against the cancellation of the applicant's visa. The task of determining where the balance between those, essentially countervailing, considerations should be struck was a matter of impressionistic evaluation, neither without difficulty nor reasonably open to only one conclusion, the Tribunal said. 18 The Tribunal said, at [87], its assessment was that the visa cancellation power in this particular instance should be exercised by preferring the purpose of protecting the Australian community from harm. The Tribunal said that the applicant's past conduct precluded any degree of real satisfaction that he was unlikely to re-offend and to do so in a serious way. If he reoffended, he could expect custodial sentences even longer than those he was currently serving. In those circumstances, the Tribunal said, it was not at all satisfied that there was a sound basis to conclude that the applicant was likely to fulfil a significant parental role with his son. 19 The Tribunal said, at [88], that in this situation the length of a non-citizen's Australian residence, particularly residence as a minor, was a significant but not determinative matter in the exercise of the visa cancellation power. 20 The Tribunal recognised, at [89], the apparent harshness of the "large step" to deny a father and son the benefit of living together and sharing the joys, and the travails, of ordinary family life but said at [90] that it did not have any degree of real satisfaction that the applicant would be likely to contribute meaningfully, reliably and consistently to the kind of family life that would be in his son's best interests. The Tribunal considered it rather more likely that the applicant was at risk of visiting upon his son, his fiancÉe, and the Australian community, a future at least punctuated, if not typified, by uncontrolled drug addiction and violent criminality. In those circumstances, the preferable course to take was to exercise the visa cancellation power by striking the evaluative balance in favour of the protection of the Australian community from a real, and unacceptable, risk of harm caused by the applicant reoffending.

The proceedings in this Court 21 The amended application was made under s 476A of the Act. The grounds of the application, as amended, were as follows (as amended by me to correct typographical anomalies): 1. The second respondent failed to comply with s 499(2A) of the Act. Particulars (a) the second respondent erred by failing to make a finding as to whether cancellation of the applicant's visa is or is not in the best interests of the applicant's child in conformity with the direction no 55 made by the Minister pursuant to s 499 of the Act (Direction 55) paragraph 9.3 (1). (b) the second respondent considered that its power was not fettered by any specific restriction in the Migration Act itself which was contrary to the terms of s 499(2A) of the Act and Direction 55. 2. The second respondent failed to take into account relevant considerations. Particulars the second respondent erred by failing to make a finding as to what the best interests of the applicant's child required. 3. The second respondent misapplied the law and impermissibly fettered its discretion. Particulars the second respondent answered the question posed by paragraph 7 of Direction 55, which question was narrower than that posed by s 501(2) of the Act.

Ground 1(a) and ground 2 22 The applicant submitted, in relation to ground 1(a) and ground 2 that by cl 9.3(1) of Direction 55 the Tribunal was required to make a determination about whether cancellation of the applicant's visa is or is not in the best interests of the applicant's child. 23 The applicant reproduced the following passages from [82] and [90] of the reasons of the Tribunal: For all of these reasons, I accept that, at least at a conceptual level, it is in the best interests of Mr L's son that he remain in Australia. However I do not accept that I could confidently conclude that his presence would be likely either to contribute to his son's best interests in any other specific way, or that it would be free of an unacceptable risk of future and serious offending conduct. … … I do not have any degree of real satisfaction that Mr L would be likely to contribute meaningfully, reliably and consistently to the kind of family life that would be in his son's best interests. The applicant submitted that the Tribunal stopped short of making a determination whether cancellation of the applicant's visa was or was not in his son's best interests. This, it was submitted, was a jurisdictional error. The applicant relied in particular on Spruill v Minister for Immigration and Citizenship [2012] FCA 1401; (2012) 135 ALD 45 at [13]-[19]. 24 In my opinion the reasoning of the Tribunal shows that it did find that cancellation of the applicant's visa was not in his son's best interests but found that the protection of the Australian community from a real and unacceptable risk of harm caused by the applicant re-offending outweighed those interests. I reach this conclusion primarily by reference to what the Tribunal said at [82] but also by reference to the Tribunal's evaluation of the quality of that conclusion at [86] and at [89]-[90] of its reasons. I do not regard the use of the expression "at a conceptual level" in [82] as showing the finding was merely hypothetical, as contended for by the applicant, or as detracting from the Tribunal's finding as to the son's best interests. The Tribunal was explaining that while it had decided that the cancellation of the applicant's visa was not in his son's best interests, it did not accept that the applicant's presence would be likely to contribute to those best interests in specific ways. Again, at [86] the Tribunal said the best interests of the applicant's young son counted against the cancellation of his visa. I do not accept the submission on behalf of the applicant that the Tribunal did no more than have regard to, rather than make a determination about, whether cancellation was or was not in the best interests of the child. 25 I therefore reject these grounds.

Ground 1(b) 26 In relation to ground 1(b), the applicant drew attention to paragraph 8 of Direction 55 and primary consideration 9.2, as follows: 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.… (2) … (3) Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa. (4) Primary considerations should generally be given greater weight than the other considerations. (5) One or more primary considerations may outweigh other primary considerations. … 9.2 Strength, duration and nature of the person's ties to Australia (1) Reflecting the principles at 6.3, decision-makers must have regard to: a) How long the person has resided in Australia, including whether the person arrived as a young child, noting that: i. Less weight should be given where the person began offending soon after arriving in Australia; and ii. More weight should be given to time the person has spent contributing positively to the Australian community. b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia. 27 The applicant then referred to the following reasoning of the Tribunal at [88], when the Tribunal was considering the relevance of the applicant having been in Australia from a young age (I have underlined the passage relied on by the applicant): I accept, and I have endeavoured to recognise fully, that it is a harsh step to deny Mr L continued residence in the country in which he has spent almost all of his formative years. There are numerous instances where the harshness of such an exercise of the visa cancellation power has been remarked upon with significant disfavour: see for example Pochi v Macphee (1982) 151 CLR 101 at 115; Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420 and Ayan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 152. Nevertheless, previous decisions have rejected the notion that the proper exercise of the visa cancellation decision should be influenced either by the limited availability of the deportation power in ss 200 - 203 of the Migration Act 1958 (see Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566) or by the notion that Australia owes a non-citizen some kind of obligation to continue the privilege of Australian residence where that residence has involved either the predominant part, or the whole, of their minority: see Re Toia and Minister for Immigration and Citizenship [2007] AATA 2078 at [12] and Re Ung and Minister for Immigration and Multicultural Affairs (AAT 13387, 21 October 1998) at [50]-[52]. In this situation the length of a non-citizen's Australian residence, particularly residence as a minor, is a significant, but not determinative matter, in the exercise of the visa cancellation power. The power is not fettered by any specific restriction in the Migration Act itself, and is only the subject of very general guidance in the principles in Direction no. 55 paragraph 6.3(4). Consequently, it is a situation which the remarks of Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 are appropriate. His Honour said: … where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The applicant submitted that the Tribunal's understanding of the applicable approach was misconceived and reflected on its jurisdiction. The applicant submitted that Direction 55 specified both the relevance of and weight to be attributed to arrival as a young child. The Tribunal was to apply the policy to the particular circumstances of the case. The Tribunal was not at large to determine what was relevant and what importance it afforded to the applicant's residence in Australia from a young age. The applicant submitted the Tribunal exceeded its jurisdiction and misunderstood the applicable law. Reference was made to Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] FCA 1052; (1994) 50 FCR 189 at 207. 28 I accept the submission on behalf of the first respondent that a fair reading of the Tribunal's reasons shows that the Tribunal was aware that it had to have regard to the general guidance given by Direction 55 and the relevant primary and secondary considerations set out in that Direction and did so, particularly at [12], [72], [78]-[79], [82]-[84] and [85]-[90] of its reasons. 29 In my opinion, the submission on behalf of the applicant that Direction 55 has specified both the relevance of and weight to be attributed to arrival as a young child should not be accepted, if intended to mean that Direction 55 requires a specific weight to be given to arrival as a young child. In my view paragraph 9.2 of Direction 55 requires the decision-maker to have regard to how long the person has resided in Australia, including whether the person arrived as a young child, but then notes that less weight should be given to that factor where the person began offending soon after arriving in Australia and more weight should be given to time the person has spent contributing positively to the Australian community. The Direction does not specify the actual, as opposed to the relative, weight to be given to those considerations. 30 However the reference to the passage in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 where Deane J spoke of relevant considerations not being specified, with reference to s 40AE(3) of the National Health Act 1953 (Cth), was incorrect in circumstances where Direction 55 sets out primary and other considerations, relevant to the individual case, which decision-makers must take into account: see Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [47] where the Full Court said in relation to Direction No 41 that that Direction contained express statements relating to the weight to be attached to particular considerations and explained the general statement of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 in that light. What Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 41 expressed the same principle as Sean Investments Pty Ltd v MacKellar at 375 and indeed expressly cited that page. 31 Although, as I have said, in the earlier part of its reasons the Tribunal did not in fact proceed on the basis that relevant considerations were not specified, the Tribunal's erroneous reference to Sean Investments Pty Ltd v MacKellar cannot be ignored. 32 It is not that the Tribunal did not address and have regard to the matters in paragraph 9.2(1)(a) as, in my opinion, it did so in its discussion of the applicant's Australian ties, particularly at [79]. Rather, the jurisdictional error was to state as part of its exercise of the ultimate discretion in [88] of its reasons that the visa cancellation power was only the subject of very general guidance in the principles in Direction 55, paragraph 6.3(4) and to reason that it was therefore largely for it, as the decision-maker, to determine which matters the Tribunal regarded as relevant and the comparative importance to be accorded to matters which the Tribunal regarded as relevant. 33 In light of its place in the reasoning of the Tribunal, I cannot conclude that this erroneous misstatement about the fetters on its discretion was immaterial or that there was no material error because the balance of the reasons showed that the Tribunal understood it was fettered in other aspects of the exercise of the discretion to cancel the visa. 34 It may be that the Tribunal was reproducing at the end of [88] what was said in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 at [126]. That decision had been referred to earlier in [88] of the Tribunal's reasons. But that paragraph in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom was directed to the position of the Minister and not to the position of the Tribunal. The result is that that source of the reference to Sean Investments Pty Ltd v MacKellar would confirm the error rather than expunge it. 35 I therefore uphold this ground.

Ground 3 36 As to ground 3, the applicant submitted that s 501 of the Act provided a discretion unconfined in its terms to cancel a visa where a person failed to satisfy the Minister that they passed the character test. 37 The written submissions on behalf of the applicant set out paragraph 7 of Direction 55 as follows: 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. 38 The applicant relied on the underlined part of the following passage from Williams v Minister for Immigration and Citizenship [2013] FCA 702 at [42]-[43] per North J: [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. 39 The applicant submitted that by requiring the decision-maker to make a determination which focused on the particular reason why the visa should be cancelled, the policy was inconsistent with the discretion provided by the Act. In the present case, it was submitted, the Tribunal applied the narrower formulation in paragraph 7 of Direction 55 and thereby unlawfully fettered its discretion. This submission involves treating paragraph 7(1)(b) as positing the only question for a decision-maker, and what the Tribunal did as answering only that question. 40 As to this ground, in my opinion the Tribunal did find, at least at [90], that the risk of future harm was unacceptable. The Tribunal also referred to that matter at [13], [69], [70] and [82]. There was therefore no error of the nature of that found by North J in Williams at [43], if that contention was put on behalf of the applicant. 41 Further, once it is accepted, as counsel for the applicant did accept, that whether the risk of future harm is unacceptable is a matter relevant to the discretion, I am unable to conclude that requiring the decision-maker to make a finding as to that risk is inconsistent with the discretion provided by the Act. 42 As to the submission that Direction 55 limits or purports to limit the Tribunal's inquiry or consideration to whether the risk of future harm by a non-citizen is unacceptable, I do not accept that construction of the Direction. So to construe the Direction would be to ignore its terms, including the terms of paragraph 7(1)(a), which require the decision-maker to take into account the considerations in Part A or Part B, where relevant. I also do not accept that the second part of paragraph 7(1)(b) sets out all the other considerations relevant to the discretion: this is because the considerations there referred to are directed only to the unacceptability of the risk of future harm. It follows, in my view, that Direction 55 was not invalid. 43 As to the submission that the Tribunal erred by considering only the matter of whether the risk of future harm by a non-citizen was unacceptable, I do not accept that submission in light of the reasoning in fact used by the Tribunal which I have referred to above. I do not accept that in [90] or at the end of [90] of its reasons the Tribunal was taking into account only that the risk of future harm by the applicant was unacceptable. The Tribunal referred to wider circumstances and to an evaluative balance. I do not accept that that balancing exercise was limited to that referred to in paragraph 7(1)(b) of Direction 55: [13] and [14] of the Tribunal's reasons stand firmly against that construction. 44 I therefore reject this ground. 45 I record but do not need to decide, and therefore do not decide, the correctness of the submission of the Minister that even if the only relevant matter was that specified in paragraph 7(1)(b), such a Direction would be valid.

Conclusion 46 Because I have upheld ground 1(b), I grant the application, quash the decision of the Tribunal and issue a writ of mandamus to the Tribunal to determine the applicant's application in accordance with law. The first respondent must pay the applicant's costs. 47 I record my appreciation of the concise and precise submissions of counsel, particularly counsel for the applicant who was acting pro bono, which allowed the efficient and expeditious hearing and determination of the application. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.