Discussion
56 The question which arises is whether, in assessing the level of risk of harm to the Australian community, the Tribunal exceeded its jurisdiction by taking into account a reasonable apprehension that Mr Makasa was culpably involved in serious criminal conduct on the evening of 30 August 2006. The question is thrown into stark relief by the fact that the Tribunal was not prepared to find that Mr Makasa was actually involved in that conduct.
57 The primary judge answered that question by holding that although the Tribunal was bound by Direction 41 to take into account the factors referred to in para 10.1(2), the only conduct which is engaged by that paragraph is conduct which is found to have actually occurred. On that approach, conduct which is not found to have occurred, but which is merely apprehended to have occurred, is irrelevant to the exercise of the discretion to cancel a visa.
58 The correctness of his Honour's approach is the only real question which arises in the appeal. It is to be determined by reference to the scope of the power conferred on the Minister under s 501(2) to cancel a visa, having regard to the terms of the direction given to decision-makers under s 499(1) and Direction 41 with respect to the exercise of that power.
59 Section 501(2) confers a discretionary power on the Minister to cancel the visa of a non-citizen if the jurisdictional facts stated in the two paragraphs of that subsection are satisfied. In short, the discretion arises where the person does not satisfy the Minister that he or she passes the character test. The discretion conferred on the Minister is unconfined in its terms. Thus, any limitations on the scope of the power must be derived from the subject matter, scope and purpose of the enactment: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 at [67], citing inter alia, Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J.
60 The Minister's power to give directions under s 499(1) is also expressed in wide terms. It is a power to give directions about the performance of the decision-maker's functions and the exercise of the powers. But directions such as those contained in Direction 41 must be construed in light of the scope of the visa cancellation power, having regard also to any limitations inherent in the subject matter, scope and purpose of that power.
61 Section 501(2) was enacted under the aliens power contained in s 51(xix) of the Constitution. It is a valid exercise of power because it is non-punitive in nature and, instead, has at its heart, the protection of the Australian community from the risk of serious criminal activity. For this reason, s 501(2) does not offend Ch III of the Constitution. See the propositions derived from the authorities in Djalic at [66].
62 Moreover, the discussion of the authorities by the Full Court in Djalic at [68] - [72], including their Honours' reference to an earlier form of Direction 41, makes it clear that the purpose of s 501 is to protect the Australian community from persons who have committed "or might commit" serious crimes if they remain in Australia. The use of the hypothetical "might" should be read in the entire context of their Honours' observations which are summed up in the concluding words of [71], namely that s 501:
... is designed to protect the community from criminal or other undesirable conduct and to permit the Minister to give effect to what might loosely be described as community expectations that perpetrators of such conduct, should not be permitted to remain in Australia.
63 In coming to that view, the Full Court in Djalic drew upon the observations of another Full Court in Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65. In Akpata the Court set out portions of the predecessor of Direction 41, thereby suggesting that the Court was of the view that it contained a fair statement of the principal purpose of the visa cancellation power in s 501.
64 The Court in Akpata said at [105], and we respectfully agree, that:
The definition of a person passing the character test in s 501(6) shows that Parliament intended that persons who have been convicted of relatively serious crime; associate with criminals; have a history including an immediate history of criminal conduct or general conduct indicating bad character; are a significant risk of engaging in criminal conduct or undesirable conduct (s 501(6)(d)), should not be permitted to travel to or remain in Australia. Shortly put, persons who have committed or are likely to commit criminal or other like conduct should not be permitted to travel to or remain in Australia. Because the purpose is to exclude those persons, the matters that are relevant to the exercise of the Minister's discretion will include any fact or circumstance which would suggest that a person of otherwise bad character (as it is defined in the Act) should be allowed to travel to or remain in Australia.
(emphasis added)
65 These facts and circumstances are the considerations that are relevant to determining whether it is appropriate to exercise the discretion in the specific circumstances of the case. It is these considerations which the Minister has directed the decision-maker to take into account as either primary considerations or other considerations: see Part 2, para 2 (Part B) and para 9 of Direction 41.
66 The first of the primary considerations is stated in very broad terms in para 10(1)(a) as the protection of the Australian community from serious criminal or other harmful conduct.
67 Paragraph 10.1, together with sub-paras 10.1.1 and 10.1.2, then set out the relevant factors which the decision-maker must take into account in assessing the primary consideration of the protection of the Australian community. The factors identified in para 10.1 and the succeeding sub-paras are not primary considerations in themselves but they are considerations which will need to be taken into account by the decision-maker in the course of his or her deliberation: Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390 at [18] per Rares J.
68 It may be accepted that the factors stated in para 10.1 and the succeeding sub-paras are not an exhaustive statement of the relevant factors: Rosson at [19]; Shi v Minister for Immigration and Citizenship [2011] FCA 935 at [9] per Perram J. However, the question of whether an apprehension that a person may have committed a serious crime or other harmful conduct is a relevant factor may be gleaned from the terms of para 10.1 and the succeeding sub-paras as well as what we have said about the objectives of s 501 and its constitutional underpinnings.
69 In our view, for the reasons set out below, a reasonable apprehension that the person has committed a serious crime or other harmful conduct is not a relevant factor. The primary judge was plainly correct in coming to the view that the conduct with which sub-paras (a) and (b) of para 10.1(2) is concerned is past conduct which is found to have actually occurred. This follows, in particular from the fact that the conduct which is the subject of those sub-paras is conduct that may be "repeated". As the primary judge said, this presupposes that the conduct has actually occurred.
70 However, the question of whether a "reasonable apprehension" that conduct has occurred is a relevant factor turns upon a consideration of para 10 of Direction 41 in its full context.
71 Although the discretion conferred under s 501(2) is unconfined in its terms, the Minister has stated the primary and other considerations which the decision-maker must take into account in considerable detail. Nowhere in that detailed statement is there any reference to a "reasonable apprehension" that the person has committed certain conduct as a factor to be taken into account. Indeed, the consideration of such a factor does not sit easily with the detailed statement set out in paras 10.1, 10.1.1 and 10.1.2.
72 It is clear from those paragraphs that the Minister turned his mind to the nature of the task to be undertaken by the decision-maker in determining the primary consideration of the protection of the Australian community.
73 It is true as Counsel for the Minister emphasised that the factors stated in para 10.1(2) are inclusive and that, as was stated in Rosson and Shi, the matters set out in the abovementioned paras are not an exhaustive statement. Nevertheless, all of the matters set out in the Direction assume the existence of actual criminal or other harmful conduct.
74 This may be seen in the list of offences stated in sub-paras 10.1.1(1) and 10.1.1(2) and the requirement to have regard to the sentences imposed as stated in sub-para 10.1.1(3). Also, factors such as judicial comments and mitigating factors in sub-para 10.1.1(4) all rest upon an assumption that the conduct in question has actually been found to have taken place.
75 So too, the person's previous general conduct and criminal history referred to in sub-para 10.1.2 is concerned with actual past conduct, not conduct which may be apprehended to have occurred.
76 Indeed, one may ask how that factor could be sensibly applied and how a visa holder, albeit one who has failed the character test, could answer a case that he or she is reasonably apprehended to have engaged in other serious criminal conduct or other harmful conduct. The provisions of Direction 41 give no guidance to the decision maker as to what he or she must take into account in determining such a factor. In light of the detailed exposition of the factors relevant to the assessment of the primary considerations, in our view the "reasonable apprehension" factor does not form part of Direction 41 and cannot be taken into account in the exercise of the discretion to cancel a visa.
77 This approach is supported by well established authority. The proper construction of a statutory provision may show that a particular factor is a fundamental matter or a "focal point" for consideration by a decision-maker. The statutory provision may also show that a particular matter to which the decision-maker may have regard is not fundamental to the decision-making process: see Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248 at [60] per Stone, Foster and Nicholas JJ citing the observations of Mason J in R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 338 and R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329; see also Zhang v Canterbury City Council (2001) 51 NSWLR 589 at [71] - [73].
78 It follows in our view that a proper approach to construction of the statutory provision may show that a matter which is not spelled out as relevant to the focal point is not a matter which is to be taken into account, albeit that the relevant factors are not stated exhaustively. That is the correct approach to the present matter.
79 In short, if the Minister's argument is correct, once the discretion to cancel a visa is enlivened, the decision-maker may exercise the discretion in a relatively unconstrained manner upon the basis of a mere suspicion or apprehension (albeit a reasonable one) that the person has engaged in criminal or other harmful conduct. This seems to us to be inconsistent with the detailed scheme of Direction 41 which requires the decision-maker to assess the primary consideration of the protection of the Australian community by reference to a series of specific matters which are described in some detail by reference to identified past conduct.
80 Of course, some scope must be given to the non-exhaustive nature of the factors identified in para 10.1(2)(a) and (b). But that issue of construction was correctly answered by the primary judge at [12] of his reasons. As his Honour said, the non-exhaustive statement of the factors in those paragraphs does not permit an examination of matters ranging beyond identified past conduct, in particular an apprehension that such conduct may have occurred. Rather, it permits an assessment of identified past conduct from perspectives other than its seriousness and the risk that it may be repeated.