The Minister's consideration of Mr Mehta's spousal relationship and unborn child
45 Having decided that it was not mandatory for the Minister to consider the interests of Mr Mehta's spousal relationship and unborn child, it might be seen as unnecessary to decide whether the Minister gave proper consideration to that question. However, the Minister referred to Mr Mehta's relationship with Ms Digilova and to the fact that she was pregnant with Mr Mehta's child in his Statement of Reasons. Mr Mehta submitted that, having raised the matter of his spousal relationship and unborn child as a consideration, the Minister was then required to give it proper or genuine consideration in a manner that was "more than merely formulaic": Fraser at [22] (Perram J); NBMZ at 7-8 [26] (Allsop CJ and Katzmann J).
46 Mr Mehta relied on the judgments of Wilcox J in Huynh and Mortimer J in Tanielu. In Huynh Wilcox J said at 517-518 [46]:
However, although it is for a decision-maker to determine, in the absence of expressed or implied statutory criteria, what matters he or she proposes to regard as relevant to the making of a particular administrative decision, it seems to me, as a matter of principle, that once the decision-maker selects a particular matter for consideration, he or she is bound to consider that matter properly. Although the relevance of that matter would arise, in that situation, from the decision-maker's selection, rather than the command of the statute, the principle enunciated by Mason J in Peko-Wallsend at 44 would apply. His Honour said:
Once it is accepted that the subject-matter, scope and purpose of the Act indicate that the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister's discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand … It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.
(Emphasis in Huynh.)
47 In Tanielu (at [158]) Mortimer J said:
Even if I am wrong and risk of harm to the Australian community is not a relevant consideration conditioning the exercise of the s 501(2) power, it is apparent on his reasons (and by the adoption of the approach in his own ministerial Direction) that the Minister chose to make the risk of harm to the Australian community his principal consideration. He chose also to hinge his decision whether to cancel the applicant's visa on whether that risk was "unacceptable". Having done so, the Minister was required to adopt an approach to assessing that risk of harm which accorded with the way Australian law requires risk of future harm or offending to be assessed: namely by examining the seriousness of any future harm as well as the likelihood of it occurring. The Minister did not undertake this approach and his decision was without jurisdiction for that reason.
48 The Minister argued that Wilcox J was in dissent on this issue in Huynh and relied on the statements of the majority (at [71] and [80]):
A relevant consideration in an administrative law sense has a limited meaning. It is one which the decision-maker is bound to take into account in making the decision in question. The factors which the decision-maker is bound to take into account are determined by the construction of the statute conferring the discretion. If they are not stated, they are to be determined by implication from the subject matter, scope and purpose of the Act.
…
The factor being considered, to which the material is relevant, must be essential to the exercise of the discretion before any obligation to examine the most recent and accurate information can arise. That is to say it must partake of the nature of a relevant consideration in the sense we have discussed… a consideration of remarks upon sentencing could not be said to be essential to the Minister's exercise of discretion. The fact that he chooses to refer to them does not convert them to relevant considerations in the administrative law sense from which other consequences might flow. That is determined by reference to the statute.
49 In my view, Mr Mehta's reliance on Tanielu is misplaced because the circumstances of the present case are quite different to those in Tanielu. In that case Mortimer J found that the Minister's principal consideration was the risk of harm to the Australian community, and that the Minister had chosen to hinge his decision on whether that risk was "unacceptable". In those circumstances her Honour considered the Minister failed to consider the risk of harm to the Australian community in the way Australian law required. In the present case, while the Minister referred to Mr Mehta's spousal relationship and unborn child, those matters were far from the Minister's principal consideration. The Minister's decision centred on the likelihood of harm to the Australian community.
50 Further, even if I accepted Mr Mehta's contention, I am not satisfied that the Minister failed to give proper consideration to Mr Mehta's spousal relationship and unborn child.
51 In NBMZ at [16] Allsop CJ and Katzmann J set out well-established principles concerning the approach to what is and what is not said in a statement of reasons:
…[T]he written reasons of the Minister may, and generally will (subject to a contrary finding of fact), be taken to be a statement of those matters adverted to, considered and taken into account; and if something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account: Acts Interpretation Act 1901 (Cth), s 25D, s 501G of the Act and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [5], [37], [69], [89] and [133].
52 In Ayoub at [45]-[48] the Full Court said:
[45] Reasons may be expressed differently by different Ministers. To the extent that be relevant, which may be doubted, a Minister may see fit to characterise a particular risk as "serious": eg, Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [17]-[20]. And some Ministers may see fit to try and effect some form of assessment by reference to the nature of the criminal conduct which gives rise to the exercise of the power conferred by s 501(2) and (6)(a) of the Migration Act by reference to the risk that re-offending may pose to the Australian community. In some cases a failure on the part of a Minister to do more than simply refer to there being a "risk" may evidence a failure properly to take that factor into account. A mere reference in passing to the prospect of there being a "risk" may not be sufficient for a conclusion to be reached on an application for judicial review that that factor was properly taken into account, assuming that there was a legal duty to take the factor into account.
[46] Mere advertence to a matter required to be taken into consideration may not be sufficient to establish that it has been properly considered: cf. Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113 at [100]; (2011) 179 LGERA 458 at 478 per Cowdroy J. The serious consequences confronted by an individual who has had a visa cancelled pursuant to s 501 may well require, in an appropriate case, such a conclusion being reached. Even a ritualistic incantation of a risk being, for example, an "unacceptable risk" or a "grave and serious risk", may not be sufficient to clothe a statement of reasons with impunity.
[47] The reasons provided in every case must each be considered by reference to the facts of each particular case and must all be construed in a practical and common-sense manner and not with "an eye keenly attuned to the perception of error": cf. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[48] In the present case, it is concluded that the Minister properly addressed the factor of "risk" and properly took it into account in the context of the other matters set forth in his reasons. He was not required to do more.
53 The thrust of Mr Mehta's contention is that it was insufficient for the Minister merely to note that Mr Mehta had been in a spousal relationship with Ms Digilova since 2007 and that he had been accepted by her family, including as the father of her child. He argued that was particularly so when he had filed extensive material which indicated that, due to her ties to her widowed mother, Ms Digilova would not leave Australia with Mr Mehta if his visa was cancelled, and that cancellation would have a significant impact on Ms Digilova as she would be required to raise their child without him.
54 Putting to one side the issue as to whether the Minister was required to give consideration to this issue, in deciding whether the Minister gave proper consideration to Mr Mehta's spousal relationship and unborn child it is first necessary to understand the information Mr Mehta submitted to the Minister and the significance Mr Mehta gave to it.
55 On 12 May 2014 Mr Mehta's solicitors informed the Minister that Ms Digilova was expecting his child, and submitted that information was "clearly relevant" to the Minister's pending decision. The solicitors said that:
The effect on Anna, Amit's Australian partner, should Amit's visa be cancelled, would be considerable. For this couple to be separated during Anna's pregnancy and into the indefinite future would be distressing and traumatic for Anna, who hopes to rely on Amit as her partner for emotional, pragmatic and financial support well into the future.
56 Overall, in my view Mr Mehta's submissions were aimed at the impact on Mr Mehta's spousal relationship and on Ms Digilova of a decision to cancel Mr Mehta's visa. This can be seen in the Department's submissions to the Minister (set out at [14]-[15] above) which endeavoured to capture the essence of the matters Mr Mehta put forward. At no point did Mr Mehta state that cancellation of his visa would have a significant impact on Ms Digilova because she would be required to raise their child without him, or draw the Minister's attention to anything about the particular interests of the unborn child that the Minister should consider. Similarly, while Ms Digilova said that if Mr Mehta's visa was cancelled she would not accompany him back to India she did not state that she would have to raise her soon to be born child alone or draw the Minister's attention to anything about the likely effect of that on her or the child. In my view the thrust of Mr Mehta's submission was that the matter weighing against cancellation of his visa was the effect of such a decision on Ms Digilova and her wider family, rather than any difficulty she would have in raising the child or the interests of the child.
57 When the Minister gave consideration to this matter he responded to the information provided and the submissions advanced on Mr Mehta's behalf. As I set out at [17]:
(a) under the heading "Ties to Australia" the Minister noted that Mr Mehta had been in a spousal relationship with Ms Digilova since 2007 and that it appeared that he had been accepted into their family;
(b) under the heading "Other Considerations" the Minister noted:
(i) that Mr Mehta had been in a spousal relationship with Ms Digilova since 2007 and that it appeared that he had been accepted into their family, including as the father of her child;
(ii) the submission that Ms Digilova hoped to rely upon Mr Mehta as her partner for emotional, pragmatic and financial support well into the future;
(iii) the statement of Ms Digilova's mother that "it would hurt our family deeply" if Mr Mehta's visa was cancelled;
(iv) Ms Digilova's statement that she would not accompany Mr Mehta to India if he was deported because she could not leave her mother, who was emotionally fragile and vulnerable; and
(v) Ms Digilova's statement that Mr Mehta's removal from Australia would result in Ms Digilova and her family experiencing emotional hardship.
58 The Minister then said that he had considered "all relevant matters" and "all other evidence available to me, including evidence provided by, or on behalf of, Mr Mehta." He said:
In reaching my decision I concluded that Mr Mehta represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations including his spousal relationship.
(Emphasis added.)
59 While the Minister did not expressly consider whether an effect of a decision to cancel Mr Mehta's visa might be that Ms Digilova was required to raise their child without Mr Mehta's assistance, his not doing so must be seen in light of the fact that Mr Mehta did not make that submission. I would have no difficulty accepting that Mr Mehta being returned to India and thereby being separated from Ms Digilova is likely to have, or is at least capable of having, a detrimental effect on her and her soon to be born child. However, it was a matter for Mr Mehta and his solicitors to provide information and make submissions identifying any such detrimental effect. Not having done so it is hard to see the Minister's light attention to that issue as indicating jurisdictional error on his part. The Minister was not under any free standing duty to make further enquiries: see Fraser v Minister for Immigration and Border Protection (2015) 145 ALD 337; [2015] FCAFC 48 at [17] (Kenny, Buchanan and Rangiah JJ). It is likely that the Minister's light treatment of the issue reflected the weight he gave it in the exercise of his discretion, and the weight to be given to it was a matter for him: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J).
60 Mr Mehta also contended that the Minister's consideration of his spousal relationship and unborn child was "merely formulaic" (Fraser at [22] (Perram J)). In my view Mr Mehta's real complaint is that the Minister did not give enough weight to the possible detrimental effect on his spousal relationship and unborn child. Again, Mr Mehta's submissions did not specify or even refer to any detrimental effects on Ms Digilova from having to raise the child alone or any detrimental effects on the child.
61 In my view, on a fair reading of the Statement of Reasons the Minister properly addressed the information and submissions made on Mr Mehta's behalf and properly exercised his discretion by reference to those matters. The Minister considered the effects of visa cancellation on Mr Mehta's spousal relationship, Ms Digilova, and her family (including her unborn child) but decided that the risk of harm to the Australian community outweighed those matters.
62 I can discern no jurisdictional error in the Minister's decision.