Salahuddin v Minister for Immigration & Citizenship

Introduction 1 The applicant, Mr Fahad Salahuddin is a 24 year old citizen of Pakistan whose visa to remain in Australia was cancelled by a delegate of the Minister in October 2012 under s 501(2) of the Migration Act 1958 (Cth) (the Act). He seeks judicial review of a decision of the Administrative Appeals Tribunal dated 7 January 2013 in which a Senior Member of the Tribunal affirmed the delegate's decision. 2 There was no issue before the Tribunal that Mr Salahuddin failed the character test referred to in s 501(2) because he had a substantial criminal record within the meaning of s 501(7) of the Act. His record consisted of 40 offences, all committed from and after the age of 16, most of which were property related. A number of the offences resulted in sentences of terms of imprisonment, the longest of which was 15 months. 3 The sole issue before the Tribunal was whether the power of cancellation contained in s 501(2) should be exercised. In determining that issue, the Tribunal was required to have regard to Direction No 55 made under s 499 of the Act: see s 499(2A). 4 The only issue which arises in the application for judicial review is whether the Tribunal had regard to the consideration stated in cl 9.1.2(1)(a) of Direction No 55 which required it to take into account the nature of the harm to individuals or the Australian community should Mr Salahuddin engage in further criminal conduct.

Direction No 55 5 Direction No 55 was given by the then Minister for Immigration and Citizenship, Mr Bowen, on 28 July 2012. It commenced on 1 September 2012 and replaced Direction No 41 which it revoked with effect from that date. 6 The structure and terms of Direction 55 are similar to Direction 41 but a number of changes have been made to the language in which the Direction is expressed. 7 Direction 55 is divided into two sections. Section 1 is headed "Preliminary" and includes, in cl 6, a Preamble which states the "Objectives", "General Guidance" and "Principles" to be applied. 8 Clause 6.1(1) states that the objective of the Act is to regulate in the national interest, the coming into, and presence in Australia of non-citizens. 9 The remaining paragraphs of cl 6.1 go on to state, relevantly, that where the discretion to cancel a visa is enlivened, the decision-maker must consider whether to exercise it in the specific circumstances of the case and that the purpose of the Direction is to guide decision-makers in the exercise of the discretion. 10 The statements of "General Guidance" are found in cl 6.2. That clause states, relevantly, that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. It also states that the principles provide a framework within which decision-makers should approach their task. 11 The Principles are stated in cl 6.3 which contains six numbered paragraphs, of which those numbered (2), (3) and (4) are of relevance. 12 Clause 6.3(2) states that a non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable persons such as minors, the elderly or disabled, should generally forfeit the privilege of staying in Australia. 13 Clause 6.3(3) states that in some circumstances, criminal conduct and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even strong countervailing considerations may be insufficient to justify not cancelling the visa. 14 Clause 6.3(4) states that Australia has a low tolerance of any criminal conduct, but that a higher level of tolerance may be afforded to non-citizens who have lived here for most of their lives, or from a very young age. 15 Section 2 of Direction No 55 deals with, and is headed, "Exercising the Discretion". It is divided into two parts, Part A and Part B, which set out the primary and other considerations applicable to, respectively, visa holders and non-visa holders. 16 Clause 7 is headed "How to exercise the discretion". It states in cl 7(1) that the decision-maker is to be informed by the principles set out in cl 6.3 and must take into account the considerations in Part A or Part B where relevant. Clause 7(1)(b) goes on to state that the decision-maker: …is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community. 17 Clause 9 is contained in Part A which deals with cancellation of existing visas. It is headed "Primary considerations - visa holders". 18 Clause 9(1) lists the primary considerations. The first of these is the protection of the Australian community from criminal or other serious conduct: see cl 9(1)(a). Three further primary considerations are set out in sub-paras (b), (c) and (d) of cl 9(1) but it is unnecessary to repeat them. 19 Clause 9 then proceeds in a "telescopic" way to amplify and further explain each of the primary considerations, in much the same way as was carried out in cl 10 of Direction No 41: see Minister for Immigration and Citizenship v Makasa (2012) 207 FCR 488 at [28]. 20 Clause 9.1 provides additional content and explanation of the primary consideration of protection of the Australian community. 21 Clause 9.1(1) states that when considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. It goes on to state that remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law abiding and will not cause or threaten harm to the Australian community. 22 Clause 9.1(2) states: Decision-makers should also give consideration to: (a) The nature and seriousness of the person's conduct to date; and (b) The risk to the Australian community should the person commit further offences or engage in other serious conduct. 23 Further amplification of the matters to be taken into account is contained in cl 9.1.1. It is headed "The nature and seriousness of the conduct". It sets out ten factors to which decision-makers must have regard in considering the nature and seriousness of the person's criminal conduct. 24 The factors, which are listed in paragraphs (a) to (j) of cl 9.1.1(1), include the principle that violent and/or sexual crimes are viewed very seriously, the principle that crimes against vulnerable members of the community as well as any conduct that forms the basis for a finding that a person does not pass the character test stated in s 501 of the Act is considered to be serious. 25 Clause 9.1.2 explains the factors to be taken into account in considering the risk to the Australian community should the person commit further offences. It commences by stating in cl 9.1.2(1) that in considering whether the person represents an unacceptable risk of harm to the community, decision-makers should have regard to the principle that tolerance for risk of harm becomes lower as the seriousness of the potential harm increases. Some conduct is said to be so serious that any risk that it may be repeated may be unacceptable. 26 The critical portion of cl 9.1.2(1) is as follows: In making this assessment, decision-makers must have regard to, cumulatively: (a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and (b) The likelihood of the person engaging in further criminal or other serious conduct… .