Nguyen v Minister for Immigration and Border Protection

Section 501BA & the Minister's reasons 9 Section 501BA of the Migration Act provides as follows: Cancellation of visa--setting aside and substitution of non-adverse decision under section 501CA (1) This section applies if: (a) a delegate of the Minister; or (b) the Administrative Appeals Tribunal; makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person. Action by Minister--natural justice does not apply (2) The Minister may set aside the original decision and cancel a visa that has been granted to the person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or (ii) paragraph 501(6)(e); and (b) the Minister is satisfied that the cancellation is in the national interest. (3) The rules of natural justice do not apply to a decision under subsection (2). Minister's exercise of power (4) The power under subsection (2) may only be exercised by the Minister personally. Decision not reviewable under Part 5 or 7 (5) A decision under subsection (2) is not reviewable under Part 5 or 7. 10 Section 501BA(2) requires the Minister to reach a state of "satisfaction" as to whether a person passes the "character test" (a matter "the subject of clear legislative prescription") and as to whether the cancellation of a visa is in "the national interest" (a phrase which is undefined): Candemir v Minister for Home Affairs [2018] FCA 1360 at [23] per Gleeson J. Her Honour there referred, however, to the "breadth of the statutory power" as explained by Burley J in Anaki v Minister for Immigration & Border Protection [2018] FCA 77, a case also involving the cancellation of a visa pursuant to s 501BA. Burley J there drew parallels between ss 501BA and 501A and cited with approval Bromberg J's reasons in Gbojueh v Minister for Immigration and Citizenship [2012] FCA 228, (2012) 202 FCR 417 at 426: [43] The authorities which have considered s 501A(2) (and in a similar context the reference to the national interest in s 501(3)), make it clear that the matters that the Minister may take into account in determining the national interest are largely matters for the Minister: … [44] The exercise calls for a broad evaluative judgment. It calls for the Minister's satisfaction in relation to a power that may only be exercised personally by the Minister: s 501A(5). Political responsibility and accountability is reposed in the Minister in relation to a subject matter of wide scope. All of that strongly suggests that the Minister is left largely unrestrained to determine for him or herself what factors are to be regarded as relevant when determining whether the cancellation or refusal of a visa is in the national interest and thereafter whether to exercise the discretion conferred by s 501A(2). (citations omitted) In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [156], (2017) 252 FCR 352 at 390 the Full Court, when considering s 501, also said that the expression "the national interest" was "one of considerable breadth and essentially involves a political question which was entrusted to the Minister". These observations were endorsed by Jagot J in Weti-Safwan v Minister for Immigration and Border Protection [2018] FCA 1761 at [15] to [16], when her Honour was dealing with another decision involving the cancellation of a visa pursuant to s 501BA. 11 When reaching the state of "satisfaction" of those matters set forth in s 501BA(2), the Minister it may be assumed is required to act "reasonably". Although the "legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable than no reasonable person could have arrived at it" (cf. Minister for Immigration and Citizenship v Li [2013] HCA 18 at [68], (2013) 249 CLR 332 at 364 per Hayne, Kiefel and Bell JJ), it remains a standard that is applied with some "stringency" ([2013] HCA 18 at [108], (2013) 249 CLR at 376 per Gageler J). A concern of a reviewing court is "with the existence of justification, transparency and intelligibility within the decision-making process": [2013] HCA 18 at [105], (2013) 249 CLR at 375 per Gageler J. 12 The standard of legal unreasonableness, like other grounds of review, is one which is informed by the statutory context in which a decision is made. In the present statutory context, s 501BA(2) calls for a state of "satisfaction" to be reached with respect to what is "in the national interest", a subject matter requiring a "broad evaluative judgment". Where the statutory context requires a Minister to reach a state of "satisfaction" with respect to something which "is a matter of opinion or policy or taste it may be very difficult to show that it has erred …, or that its decision could not reasonably have been reached": Buck v Bavone (1976) 135 CLR 110 at 118 to119 per Gibbs J. 13 Within the bounds of legal reasonableness, there thus remains a band of a decisional freedom or flexibility within which a reviewing Court should not interfere - even if an individual Judge may well have reached a different, or indeed a contrary, decision. 14 When explaining the manner in which he applied s 501BA to the facts and circumstances of Mr Nguyen's case, the Minister's Statement of Reasons sets forth his conclusions as to why Mr Nguyen does not pass the "character test" prescribed by s 501(6)(a) of the Migration Act (at paras [11] to [14]). The reasons thereafter address: the National Interest, including consideration of:

• Mr Nguyen's criminal conduct (at paras [19] to [29]);
• the risk to the Australian Community (at paras [30] to [31]);
• "[m]itigating/causal factors/rehabilitation" (at paras [32] to [39]);
• Mr Nguyen's "[r]emorse and insight into his offending" (at paras '[40] to [45]); and
• Mr Nguyen's "[c]onduct in custodial and non-custodial environment" at (paras [46] to [49]). A "conclusion" in respect to the "national interest" is reached at paras [50] to [54]. The reasons then separately address questions as to how the discretion should be exercised, including a consideration of:
• the "[b]est interests of minor children" (at paras [56] to [67]);
• the "[e]xpectations of the Australian community" (at paras [68] to 70]);
• "International non-refoulement obligations" (at paras [71] to [73]);
• "[t]he strength, nature and duration of ties to Australia" (at paras [74] to [83]); and
• the "[e]xtent of impediments if removed" (at paras [84] to [91]).

The grounds relied upon 15 The Amended Originating Application relied upon by Mr Nguyen set forth five Grounds of Review being arguments (in summary form) that: the Minister's decision was "unreasonable" by reason of his assessment as to the risk Mr Nguyen's posed to the community, particularly insofar as the prospect of Mr Nguyen reoffending, especially given the observations of the sentencing Judge (Ground 1); the Minister's decision was "unreasonable" because the Minister had failed to take into account the best interests of Mr Nguyen's daughter and his family ties to Australia (Ground 2); the Minister's decision was "unreasonable" because his assessment as to the prospects of Mr Nguyen re-offending was "not rationally/logically supported by facts" (Ground 4); and the Minister "fell into jurisdictional error in making the Decision, in that the [Minister] failed to conduct the task required by the Act" (Ground 5). The final Ground of Review (Ground 3) alleging a failure to "intellectually engage with all the factors" was abandoned in the oral submissions, presumably as a consequence of the Full Court's decision in Buadromo [2018] FCAFC 151. Each of the remaining Grounds should be separately considered.

Unreasonableness - Grounds 1 and 4 16 The oral submissions directed to the first and fourth Grounds alleging unreasonableness focused attention primarily upon the Minister's assessment as to the prospect of Mr Nguyen re-offending. 17 The Minister variously expressed his conclusion as to the prospect of Mr Nguyen re-offending, that being that there was "an ongoing likelihood that Mr NGUYEN will reoffend" (at para [52]) or that he "could not rule out the possibility of further offending" (at para [96]). It was against this assessment that the Minister proceeded to weigh the other considerations of relevance and reached his decision to cancel the visa. 18 Mr Nguyen's argument is that this assessment was unreasonable either because: it runs counter to the assessment of the sentencing Judge; and/or it remains unexplained - or is "irrational" or not "logically supported by facts". Both lines of challenge are rejected. 19 The relevant parts of the Minister's reasons appear in that part of the Statement of Reasons under the heading "Mitigating/causal factors/rehabilitation". The Minister's reasons refer to reports which were before him and continue on as follows: 35. I note in a 2014 pre-sentence report, Mr NGUYEN was assessed as a medium/low risk of reoffending according to the Level of Service Inventory - Revised actuarial risk/needs assessment tool with criminogenic needs stated as being 'drug issues'. … 38. I note the 2014 sentencing Judge considered that Mr NGUYEN was unlikely to reoffend and that he has good prospects of rehabilitation. He also noted he would need assistance to maintain his domestic relationship, and require direction in respect of his associates. The Minister then addresses Mr Nguyen's "[c]onduct in [the] custodial and non-custodial environment" and states: 48. Mr NGUYEN has supplied letters from members of the community and church groups. The available information indicates that Mr NGUYEN has the support of the members of the church and friends in the community. His legal representative submits that Mr NGUYEN has the support of family and friends, and that Mr NGUYEN's offending is not consistent with his true nature and purpose and there is a very low risk of him committing further offences. The 2014 sentencing remarks note that Mr NGUYEN had an offer of employment upon his release, from a former employer. The Minister then express his "[c]onclusion" in part as follows: 51. However, I also note that Mr NGUYEN has used drugs socially for a long period and this escalated to more frequent use, to the point that he was said to be smoking ice daily in the lead up to his offending in 2013. I considered that leading up to his offending he had his close family and friends for support and was employed, yet these did not act as protective factors. Further, Mr NGUYEN did not cease his offending despite receiving convictions in 2001 and 2002 and having the benefit of non-custodial sentences, and reoffended some 11 years later in 2013, committing a serious drug supply offence. I also take into account that his rehabilitative efforts and ability to refrain from drug use, this being linked to his risk of reoffending, has not been tested in the community for a substantial period. 52. Overall, I find that there is an ongoing likelihood that Mr NGUYEN will reoffend. If Mr NGUYEN did reoffend involving serious drug offending, it places members of the community at risk of physical or psychological harm. The "[c]onclusion" expressed at the very end of the Minister's reasons, following an exposition of each of the considerations of relevance to the decision to be made, includes the following: 96. I find that the Australian community could be exposed to significant harm should Mr NGUYEN reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr NGUYEN, notwithstanding factors including his efforts at rehabilitation and his strong family and community support. The Australian community should not tolerate any further risk of harm. 20 The assessment made by the Minister as to the prospects of Mr Nguyen re-offending were thus made in the context where (inter alia): the 2014 pre-sentence report assessed the risk as being "medium/low" (at para [35]); and the sentencing Judge was of the view that Mr Nguyen was "unlikely to reoffend" (at para [38]). The context also included: the consideration given to Mr Nguyen's drug use (at para [51]). 21 The assessment to be made by the Minister was for him to make; the Minister was by no means bound to accept the assessment of the sentencing Judge as determinative. The remarks of the sentencing Judge were taken into account - as were the other matters to which the Minister referred. 22 It cannot be said that the Minister's assessment was unreasonable. 23 Nor can it be said that his reasoning process is "irrational" or not "logically supported by facts". The reasoning process is to be found primarily in para [51] of the Statement of Reasons. That paragraph explains the path whereby the Minister reached his "overall" assessment in para [52]. Although others may well have reached a different conclusion, it cannot be said that the reasons relied upon were not disclosed or were "irrational". The facts referred to in para [51], regarding Mr Nguyen's drug use in the lead up to his offending, were common ground. It was the weight to be given to these facts which in substance attracted the debate; but the weight to be given to those facts was a matter for the Minister. 24 The first Ground, in addition to focussing attention upon the risk of re-offending, also sought to contend that the decision was unreasonable by reason of the Minister's failure to have regard to Mr Nguyen's role in the criminal syndicate he was a member of and the steps taken in respect to his supervision by Community Corrections. The former argument is without merit. Reference was made by the Minister in his Statement of Reasons (at para [22]) to the role played by Mr Nguyen as acting "as an 'internal courier' rather than an organiser or distributor of drugs". The latter argument is also without merit. There is no necessity in an administrative statement of reasons to refer to each and every aspect of a particular issue in order for that issue as a whole to be properly considered. The latter argument, it is respectfully considered, formed part of the Minister's assessment as to the risk of re-offending. 25 Grounds 1 and 4 of the Amended Originating Application are rejected.

A failure to consider the best interests of the daughter & family ties - Ground 2 26 The second Ground of Review, alleging that the Minister failed consider the best interests of Mr Nguyen's daughter or his family ties to Australia, is without substance. 27 Not only did the Minister expressly refer to both the interests of Mr Nguyen's daughter and his family ties to Australia, he resolved those considerations in favour of Mr Nguyen. 28 The Minister's reasons thus record in part, as follows (without alteration): 64. Mr NGUYEN states that his wife and child will not move to Vietnam as they are settled in Australia and there is no future for children there. 65. I have considered the emotional hardship and developmental impact cancellation of Mr NGUYEN's visa may have on Miss Nguyen, given her young age. Taking these matters into account, I find that it is in the best interests of Miss Nguyen not to cancel Mr NGUYEN's visa to enable her to live with and be parented by her father and be emotionally and financially supported by him. 66. I also note that Mr NGUYEN's legal representative refers to Mr NGUYEN's sister-in-law, Ms Thi Khanh Le and that he is well loved by her and her children. I note that Mr NGUYEN's sister-in-law regularly visited him in prison as did two nephews, who I consider may be minors. 67. I find that it would be in the best interest of any minor nephews that Mr NGUYEN's visa is not cancelled to enable them to spend time with their uncle, although I give this less weight as their mother has the parenting responsibility for their day-to-day and long-term care and development. 29 Ground 2 of the Amended Originating Application is therefore rejected.

A failure to conduct the task required - Ground 5 30 The final Ground of Review was not addressed in oral submissions - but it was nevertheless understood to be a Ground relied upon. 31 This Ground is understood to be an argument that the Minister failed to "conduct the task required by the Act" by reason of the Minister (for example): referring the prospect of Mr Nguyen committing a further "serious" offence but failing to make a finding that he "would or may engage in further conduct constituting those specific offences, as opposed to the likelihood that the applicant would commit some further unspecified criminal offence"; stating that he had "considered" or referred to the fact that Mr Nguyen was "remorseful" but made no finding that Mr Nguyen was "genuinely remorseful" for his conduct; and "ma[king] no finding as to whether [Mr Nguyen] would in fact face the difficulties he claimed to face" if returned to Vietnam. 32 The difficulty with the argument is that, in the circumstances of the present case, the Minister was not required to do more than take into account the submissions being made and was not required to go on and more definitively resolve the factual merits of those submissions. A consideration of submissions does not necessarily require a decision-maker to do more than genuinely direct their attention to and take into account the subject-matter of the submissions being made; an active engagement with a submission does not necessarily require, and in some case may not be susceptible of, an objective resolution. Whether or not a person will re-offend is only susceptible of a necessarily subjective evaluative judgment. In some cases a decision-maker may accept at face value what a claimant is asserting and not progress further to question what is being said. 33 The Ground may be tested (for example) by reference to the second of these matters relied upon. There, Counsel for Mr Nguyen in his written submissions, in submitting that the Minister had failed to find Mr Nguyen was genuinely remorseful, directed attention to the following passages in the Minister's reasons: 43. I have also considered that Mr NGUYEN has expressed in his submissions in 2016 that he is very apologetic and understands that what he did was 'really wrong'. He was naive in his judgment and was hasty in making a decision about what to do with the difficulties in his personal life. He also states he was glad he was arrested and stopped for such 'horrendous activity' and he recognizes the harm his actions could have caused to the community and is glad the illicit substances did not make their way into the community. … 50. I have taken into account the various factors indicative of lowering the likelihood of Mr NGUYEN reoffending, including his remorse for and insight into his offending conduct, his compliant conduct in prison and willingness to work, his good behaviour in detention, his completion of courses for substance abuse and to assist him in the community, his offer of employment upon his release, and that he is currently residing in the community without known incident, and that he has the support of his wife and other close family and friends. Read in context, the Minister's reference to Mr Nguyen's expression of being "very apologetic" and his expression of "remorse" are to be understood as an acceptance on the part of the Minister that Mr Nguyen was in fact "very apologetic" and that his expression of "remorse" was to be accepted as genuine. 34 Ground 5 of the Amended Originating Application is therefore rejected.

CONCLUSIONS 35 None of the Grounds of Review relied upon by Mr Nguyen has been made out. 36 The proceeding should be dismissed. 37 There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE: (1) The proceeding is dismissed. (2) The Applicant is to pay the costs of the Respondent, either as assessed or agreed. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.