THE ARGUMENTS
96 As explained, the arguments advanced for Mr Morrison essentially fall into two categories. Grounds 1(a), (b) and (c) of the application challenge the lawfulness of the decision to cancel Mr Morrison's visas. Ground 2, however, challenges the lawfulness of the steps taken to remove Mr Morrison from Australia following the decision to cancel his visa. At the hearing, counsel for Mr Morrison did not pursue ground 1(b). It remains to consider the other two grounds in relation to the lawfulness of the decision to cancel Mr Morrison's visa.
97 It was clear that there was no dispute that Mr Morrison, by reason of his extensive criminal record, was deemed to be not of good character within the test provided under s 501 of the Act. It follows that the Minister clearly had the power to cancel Mr Morrison's visa.
98 The essential argument was that the power to cancel is a discretionary power and the discretion can only be exercised in accordance with law. There were two primary contentions in that regard.
99 The first was that the Minister had failed to take into account the interests of the children within his assessment of the expectations of the Australian community.
100 The second was that the Minister did not have before him the information of the pending charge before the District Court of Western Australia in respect of which it is said that Mr Morrison 'sought to clear his name'.
101 The approach taken on the first point was that in the reasons of the Minister, he recorded that he gave three matters primary consideration and divided those into the headings of 'Protection of the Australian Community', 'Expectations of the Australian Community' and 'Best Interests of the Child'. The Minister specifically noted that he placed 'great weight' on his belief that the Australian community would expect Mr Morrison's visa to be cancelled and for him to be removed. Indeed on his reasons, that was a matter to which he gave greatest emphasis. Other factors were referred to as having considerable, moderate or little weight.
102 However, in reaching this belief as to the expectations of the Australian community, it is said that the Minister acted without any evidence or without any consideration of the diversity of views of the Australian community. Secondly and in particular, it is said that the Minister did not take into account that many, if not most, would think that it was wrong to remove a long-term resident who had committed a very serious offence as long ago as 17 years but had been allowed to remain in Australia ever since that time and who in the last six years had become a family man with three young children under the age of 5 years for whom he cared and supported. At the same time it is said, that during that period, there was only one conviction in respect of which he received a sentence of six months imprisonment.
103 It is said that while the Minister recognised that the cancellation and removal from Australia would cause significant hardship to Mr Morrison's children, he failed to take into account that this was a factor which would inevitably affect the expectations of the Australian community. The greatest emphasis in this argument was on the interests of the children.
104 'The Expectations of the Australian Community', as observed by French J in Preston v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 107 at [23] that term which is used in Ministerial Direction No.21 '… invites a judgement akin to judgments about the "public interest" which is necessarily evaluative and conclusionary in character and not amenable to challenge or judicial review on its merits'.
105 Similarly the Full Court in M238 of 2002 v The Honourable Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260 at [59] said:
… However, the "expectations of the Australian community" is fundamentally a political notion. The Minister, as the member of the Executive responsible to Parliament, of which he is an elected member, is charged with the assessment of this question. It is not a question for decision only upon evidence placed before him. The Minister may consider the views of others (…); but, ultimately, the Minister's views as to what are the "expectations of the Australian community" are reflective of a political judgment by an elected Minister of the Crown.
106 As the Full Court observes, the nature of the assessment being of a political evaluation, the range of resources to which reference may be had in order to exercise the discretion is not only wide but may well exceed the precise material contained in the submissions before the Minister or in the reasons expressed by the Minister for arriving at that decision.
107 I consider there is a further difficulty with the argument advanced for Mr Morrison on this topic. Although it is true that in the Minister's decision, the interests of the children were recorded under a separate category or heading which immediately followed the category headed 'The Expectation of the Australian Community', it is unrealistic, in my view, to suggest that the Minister totally divorced his mind from the interests of the children when considering the expectations of the Australian community. Indeed, that the Minister turned his mind to interests of at least some of the children is evident on the terms of the passage headed 'Expectations of the Australian Community'. It is impossible to say, in my view, that the Minister did not take into account this topic. Equally it would be very difficult to conclude that by considering it in a separate category as suggested for Mr Morrison, he had erred in the exercise of his discretion in a way which was susceptible of judicial review.
108 It seems to me that in the absence of clear error demonstrable from the face of the record, what Mr Morrison is, in substance, challenging by virtue of these grounds is the merits of the Minister's decision. Such a challenge is clearly not open.
109 In Pull v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 20 at [42] a similar claim was made. The applicant in Pull considered that the Tribunal (the Administrative Appeals Tribunal) had not given genuine and proper consideration to the expectations of the Australian community because the Tribunal member did not refer to certain matters including that the applicant had 'two daughters who are Australian citizens and there is no evidence to suggest that they will ever be able to renew their relationship with the applicant'. At the time that those proceedings were commenced, s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) did not (by reason of s 483 of the Act) apply to a privative clause decision. Therefore, it followed that to succeed the applicant was required to show that the Tribunal committed a jurisdictional error. As observed by Besanko J at [43]:
There can be no doubt that the Tribunal member considered the expectations of the Australian community and it does not follow that simply because he did not mention or place emphasis on particular matters identified by the applicant that he failed to give the matter genuine and proper consideration.
110 Similarly, in the present situation there is no doubt that the Minister was aware and recorded the fact that Mr Morrison had children and stepchildren and in considering the matter of the best interests of the children he recorded that the children would suffer hardship relating to the loss of a father figure and that his removal from Australia would cause hardship to the children. He recorded that it would possibly be difficult for Mr Morrison's family to cope financially and for Ms Roberts to cope with six children. As in the case of Pull [2007] FCA 20 (in relation to the Tribunal), the Minister clearly took into account the hardship relating to Mr Morrison's children and clearly gave genuine consideration to that issue.
111 Ground 1(b), if not expressly abandoned was certainly not pursued at the hearing. As I perceived it, Mr Morrison appeared to acknowledge through counsel that as in the case of M238 of 2002 [2003] FCAFC 260 at [59] and as had also occurred in Pull [2007] FCA 20, while the Minister did not have specific evidence before him as to the expectations of the Australian community in relation to the factors outlined in these grounds, nevertheless, the Minister formed his own evaluative judgement as he was entitled to do. It was not necessary for the Minister to make specific reference to every item which Mr Morrison would wish the Minister to record. Further, it does appear to me in substance again that this is an attack on the merits of the decision rather than a ground of judicial review.
112 Ground 1(c) was certainly advanced seriously at the hearing. But in my view it was also without foundation. I would accept that ground 1(c) on its face did appear to set up a better basis for judicial review as distinct from merits review but the suggestion that the Minister should have had regard to the fact that Mr Morrison was facing serious criminal charges in the District Court of Western Australia is in itself unsustainable. It is common ground that Mr Morrison was facing further serious charges. It is also common ground that this factor was not put before the Minister and so the Minister was unable and, therefore, did not take it into account in reaching his conclusion. Where the argument breaks down, in my view, is the suggestion that such material should necessarily have been put before the Minister. The argument for Mr Morrison is that he was so keen on 'clearing his name' that the decision would have had to have been deferred so that Mr Morrison could have had the opportunity to 'clear his name' in relation to those charges.
113 Mr Morrison says that the charge of 'doing grievous bodily harm with intent' is said to have been based on an allegation that he shot a man in the leg on 17 March 2005. He says he had nothing to do with that alleged offence and has no knowledge of its circumstances. He has pleaded not guilty to the charge and when the charges eventually come to trial, (if they do) he says he fully expects to be completely cleared. In relation to the unlawful wounding charge, he had been remanded in custody but was eventually granted bail in December 2005. As a condition of the bail, he was required to attend at the Midland Police Station at specified times with which he fully complied (Midland is a suburb of the Perth metropolitan area). He says he regularly attended the Midland Police Station without any incident. The requirement to so attend as a condition of the bail was removed, he says, from early to mid-2006. His fiancée, Ms Roberts, was surety for his compliance with the bail conditions. He says that he was aware that any breach of his bail could put her house at risk.
114 In addition, he has attended a number of preliminary hearings at the District Court in Perth, Western Australia 'without fail and again without incident'. The trial was due to commence in November 2006. It did not proceed on that date and he next attended the District Court on 27 February 2007 when the matter was re-listed in order to proceed in August 2007. He contends that the charges were brought 'because of the attitude and prejudices of the Western Australian police against me'. He said it was very important to him that he had the opportunity to face the charges and to clear his name.
115 It is said that it was not only in the interests of Mr Morrison but also in the interests of the Australian community and of justice generally that those criminal proceedings be resolved and Mr Morrison be given the opportunity to clear his name. It was also pointed out that following the removal of Mr Morrison from Australia the criminal proceedings have been discontinued, albeit that Mr Morrison could be charged once again should he be returned to Australia as a result of these proceedings.
116 The argument for Mr Morrison attempts to rely on the decision of Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 per Black CJ at [7] and [8] and Sackville J at [56]. In that case their Honours accepted that the failure to accurately consider Mr Lu's criminal record amounted to jurisdictional error even though the offences which were misstated in the report to the Minister were in the submission for Mr Morrison, relatively minor. The argument for Mr Morrison acknowledges the distinction between misstating a criminal record and failing to include while referring to it, the fact that the record holder is currently facing additional serious charges. But it is submitted for Mr Morrison that it is equally relevant for the decision-maker to be aware of that fact.
117 In my view the two factual scenarios are quite distinguishable. An erroneous statement about the appellant's criminal record in Lu 141 FCR 346 meant that the information before the Minister and provided to him for the purpose of exercising his discretion was wrong in a material respect. It followed that there was jurisdictional error by the Minister in failing to take into account (as the Minister was unable to do so) an accurate statement of the person's criminal record. As the Chief Justice said at [8]:
I would add that the conclusion that there may be jurisdictional error if the Minister fails to take into account an accurate statement of a person's criminal record is perhaps reinforced by the circumstance that for the purposes of the character test defined in s 501(6) and (7) of the Act, and applicable to s 501A, the concept of "substantial criminal record" is defined, primarily, by reference to the sentence or sentences imposed upon a person.
118 His Honour went on to say that the nature of the sentence was at the heart of the definition.
119 The fact that Mr Morrison was facing further charges on a serious offence, did not pertain to established sentences for conviction. Indeed, given the presumption of innocence, there might have been complaints if the existence of the charges on the serious offence had been put before the Minister for him to take into account in the exercise of his discretion. Further, although Mr Morrison contends that in Lu 141 FCR 346 the misstatements about the criminal record were relatively minor, that was not the view of Sackville J who said at [58] 'The information in the Issues Paper concerning the appellant's 1993 and 1997 convictions was inaccurate in two major respects' (emphasis added). Indeed, his Honour earlier observed at [56] that it may be that a minor error relating to convictions or sentences imposed on a visa holder would not in substance result in the Minister failing in a relevant sense to take account of a person's criminal record.
120 I turn then to ground 2 which does not relate to the decision itself but to the conduct involved in detaining and removing Mr Morrison from Australia. Clearly most of the evidence which I have canvassed above and which was adduced at the hearing related to this issue. Mr Morrison pressed the serious submission that he was deliberately deprived of information as to DIAC's intentions to immediately deport him and that he was refused use of a telephone by which he might challenge that action through the Court. It was suggested that the express purpose of so depriving Mr Morrison was to preclude his opportunity to seek meaningful legal advice or representation to restrain his deportation.
121 Counsel for Mr Morrison submitted that the act of detention which was carried out by WAPOL (at the request and knowledge of DIAC and the Minister) was violent and unlawful. Mr Morrison had committed no offences immediately prior to his detention, he was not avoiding being detained and had not even been informed that a decision had been made to cancel his visa. It is contended that in those circumstances there was no basis at law for undertaking a violent arrest without warning. It was submitted that unlawful arrest and consequent false imprisonment was a very serious matter. I accept this is so. Indeed the seriousness of this allegation is to be borne in mind when considering whether the onus of establishing it has been discharged. The seriousness pertains not only to the false imprisonment allegation but also to the alleged intention to preclude the effective possibility of any intervention by the Court.
122 The Minister accepted that the nature of the detention was violent but stressed that there was so much information made available to DIAC to stress the high risk involved in detaining Mr Morrison due to his violent criminal record and propensities that the measures taken in the circumstances and which accord with standard procedure for WAPOL and the TRG, were justified.
123 It is not surprising that Mr Morrison and his family were shocked and astounded by the events which occurred. Mr Morrison and his family strongly dispute much of the factual basis upon which the Minister and DIAC relied as to Mr Morrison's tendencies and propensities. Further, the considerable violence of the initial detention coupled with the fact that Mr Morrison was effectively removed from the country before there was any real opportunity for that removal to be meaningfully challenged in Court, would quite reasonably lead Mr Morrison and his family to suspicion. The concern is whether the way in which he, in particular, was dealt with (in departure from the usual practice of permitting a 48 hour opportunity for challenge) was deliberately intended to deprive him of the opportunity for judicial review.
124 As against that it has now become known that there was a very substantial amount of official material in the hands of DIAC which rated Mr Morrison as a very high security risk. The Minister and DIAC make it clear that it was because of that information and the source from which it came that Mr Morrison was treated as being very dangerous.
125 Where there is a sharp disparity between the evidence Mr Morrison and the evidence of the various officers called for the Minister and DIAC is in relation to whether or not Mr Morrison was permitted the opportunity to make phone calls.
126 On that topic, I prefer the evidence of the officers. When Mr Morrison was cross-examined by telephone in the United Kingdom he stressed that after having been shot with the taser he remained 'stunned for most of the day, confused, dazed'. I also take into account the fact that it was very early in the morning in the United Kingdom when he gave his evidence. Nevertheless and perhaps understandably given the totality of the circumstances, his responses were at times somewhat aggressive and belligerent. However, one thing he was candid about, in particular, was that he could not recall everything that occurred in the early part of the day. He attributed this to being dazed and stunned and the fall to the road and the cut to the head. The cumulative effect of these events could most certainly cause the physical and mental reaction which Mr Morrison describes. Mr Morrison also points to the fact that there was no need, as he understood it, to use a telephone earlier in the day as he anticipated that he would be remaining in detention in Perth for some time. In either event, it appears to me that little turns on the point because by 1.08 pm the intentions of DIAC and the Minister had certainly been made clear to Mr Morrison. The officers were cross-examined strenuously on the topic. None of them was present in Court while others gave evidence. Counsel for Mr Morrison effectively put to them quite appropriately differences between their respective statements. While there were reasonably minor differences in the statements, the differences, in my view, were more consistent with the statements having been independently and individually prepared rather than in some collaborative or collusive effort.
127 There are two other factors which lead me to conclude that deliberately or otherwise depriving Mr Morrison of telephone use would have been very unlikely. The first is that it is clear that at about 1.08 pm Mr Morrison was offered the use of a telephone and at that stage he had expressly been told that he was to board the plane later that day headed for the United Kingdom. It is not unknown for injunctions to be sought when a person in Mr Morrison's position is actually already at the airport. In either case, the Minister and DIAC were well aware that the Court remains available (by telephone call) to urgently hear an application for an interim injunction in such circumstances. Indeed, that is what occurred in this case albeit it is said that this was due to a delay in the departure of the aircraft. Moreover, DIAC and the Minister had already prepared the day before an affidavit which explained the circumstances giving rise to the actions taken by the Minister. This clearly was in anticipation that there would be an application for injunctive relief. The preparation of such an affidavit would be redundant if Mr Morrison was to be dealt with in such a way that it would be impossible for him to contact a legal advisor to pursue an application for injunctive relief.
128 It remains necessary to examine whether those facts give rise to any contravention or departure from requirements under the Act. There appears to be no requirement under the Act that the person whose visa has been cancelled be given notice of that cancellation prior to the person being taken into immigration detention. In the circumstances of this case on the basis of information received from WAPOL and others, the strategic view was taken that Mr Morrison should not be so informed until he was securely in custody because of the high risk that he was believed to pose.
129 Once it was clear that Mr Morrison's visa had been cancelled, the officers involved having reasonable grounds to suspect that he was an unlawful non-citizen were actually required in any event to detain Mr Morrison pursuant to s 189 of the Act (Ruddock v Taylor (2005) 222 CLR 612 per Gleeson CJ, Gummow, Hayne and Heydon JJ at [31]).
130 There is in my view a distinction between the detention of Mr Morrison and arrest in the circumstances of the cases relied upon by Mr Morrison (R v Ul-Haque (2007) NSWSC 1251 and State of New South Wales v Riley (2003) 57 NSWLR 496). Those cases concerned the absence of arrest warrants before the arrests were effected. In the current situation, which is actually a detention rather than an arrest, there was a statutory obligation for officers to pursue the detention. Mr Morrison's detention was lawful and did not lead to false imprisonment: Ruddock (2005) 222 CLR at [31]. I do not accept that Mr Morrison was denied his rights under s 256 of the Act.
131 The application will be dismissed.
I certify that the preceding one hundred and thirty one (131) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.