Analysis and decision
13 The principle submission made for Mr Moana was that the risk of harm that the visa holder poses to the Australian community is a mandatory relevant consideration in making a decision to cancel a visa under s 501 of the Migration Act, citing Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 in support. In Tanielu, Mortimer J held that the risk of harm to the Australian community posed by the subject of a visa review or cancellation is a matter that a decision maker must take into account in exercising the power under s 501(2). Her Honour reasoned at [154]:
The risk of harm to the Australian community posed by the subject of the visa refusal or cancellation is a matter a decision-maker, including the Minister personally, must take into account in exercising the s 501(2) power. That is because an assessment of such a risk is a necessary part of exercising the power for the purpose for which it was conferred: namely, protection of the Australian community, using "protection" in its broadest sense.
14 A similar view in relation to the exercise of power under s 501A of the Migration Act was expressed by Bromberg J in Gbojueh v Minister for Immigration and Citizenship (2012) 289 ALR 107; [2012] FCA 288. His Honour stated at [45] that the risk of harm to the Australian community was "so central to the subject matter dealt with by [that provision]" that it was unlikely to be "intended as an optional consideration at the Minister's election".
15 In Tanielu [2014] FCA 673, Mortimer J further stated at [155] that:
In turn, a risk of harm posed by an individual can only be ascertained by evaluating the seriousness of any future harm which might be caused and the likelihood of that harm occurring.
16 Counsel for Mr Moana relied on this passage to argue that Tanielu is authority that the risk of harm can only be determined by an evaluation of the seriousness of any future harm which might be caused and the likelihood of that harm occurring. It was submitted for Mr Moana that the Minister made bare conclusory statements about the existence of a risk of harm by reference to Mr Moana's past criminal offending and failed to ask himself the correct question, which was whether there was an unacceptable risk of future harm to the Australian community, determined by an evaluation of the seriousness of any future harm which might be caused by Mr Moana, and the likelihood of that harm occurring. It was submitted that the Minister had therefore failed to give consideration to a mandatory requirement, namely the risk of harm to the Australian community, because he did not conduct the evaluation required and, therefore, that his decision is affected by jurisdictional error. Alternatively it was argued that even if the risk of harm is not a mandatory consideration, there was still jurisdictional error by reason that the Minister failed to consider the risk of harm properly, because he did not evaluate the seriousness of any future harm which might be caused and the likelihood of that harm occurring.
17 It was submitted for the Minister that the decision in Tanielu is incorrect if, and to the extent that, it is authority that the Minister, in considering risk of harm, must evaluate the seriousness and likelihood of future harm in the exercise of the discretion conferred by s 501(2). It was argued that such an attempt to "structure" the wide discretion conferred by s 501(2) is not supported by the language of the provision, nor by the scope, purpose and objects of the power. Reliance was placed on Coderre v Minister for Immigration and Border Protection [2014] FCA 769 where Besanko J held at [36] that it was not essential for the Minister, when considering the risk of harm, to make a finding that precisely quantifies that risk. It was further submitted that if the risk of harm is not a mandatory relevant consideration in the exercise of the s 501(2) power, a finding by the Minister that the risk of harm is "unacceptable" cannot attract any obligation or requirement as to the process of reasoning by which that conclusion is reached.
18 It is unnecessary to reach a view on whether the risk of harm that the visa holder poses to the Australian community is a mandatory relevant consideration because, in the present case, it was plainly considered by the Minister. It is also unnecessary to reach a view on whether the decision in Tanielu is authority that the assessment of risk requires an evaluation of the seriousness of any future harm which might be caused and the likelihood of that harm occurring because, in the present case, on a fair reading of the Minister's reasons for decision, the Minister did form a view about those matters in making his decision. Having considered the seriousness of Mr Moana's past criminal conduct, the Minister made findings about Mr Moana's risk of reoffending. The risk referred to was a risk that Mr Moana would commit further offences of a similar degree of seriousness as his past offences. In this regard, the Minister took into account: (1) that Mr Moana was a "repeat offender" with a continual criminal history in Australia; (2) that Mr Moana had shown disregard of judicial orders; and (3) that he had continued to re-offend after having been formally warned by the Department of the consequences for the potential cancellation of his visa. The Minister concluded that there "remains an ongoing risk" that he will re-offend in the future, given his criminal history and that Mr Moana's risk of reoffending represented "an unacceptable risk of harm to the Australian community".
19 It was argued strongly for Mr Moana that it was insufficient for the Minister to conclude that there "remains an ongoing risk" that he will re-offend in the future, without identifying the specific likelihood of that occurring. It was submitted that this consideration went to the question of discretion, as there was a balance to be conducted and the Minister must form a view about the weight to be given to matters. This was said to require some quantitative, as well as qualitative, assessment of the risk. It was asked rhetorically in oral submission how the Minister could weigh in the balance factors tending against cancellation if all he knows is that there is an ongoing risk without knowing anything further than that. The short answer is that the reasons for decision disclose that the Minister did weigh the factors.
20 The reasons for decision must be read as a whole and the statement that "there remains an ongoing risk that [Mr Moana] will re-offend in the future" must be considered in context. That context includes the Minister's consideration of the factors which pointed to a likelihood of re-offending, i.e. Mr Moana's history of offending and his continued offending after being warned about the potential consequences for his visa, as set out at [18] of the Minister's decision. The Minister formed a view about the likelihood of re-offending after taking into account, amongst other things, the matters set out at [19] of his decision that might be regarded as countervailing considerations, including Mr Moana's progress towards rehabilitation. The Minister formed the view that there was an ongoing risk which he considered unacceptable and that was a view that was open to him. The present case is distinguishable from Tanielu where Mortimer J found that there had been no evaluation at all of how likely it was that the applicant would engage in such conduct.