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[2013] FCA 588
Federal Court of Australia
2013-06-28
Mr P, Jacobson J
Original judgment source is linked above.
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… .
The Tribunal's reasons 27 Before turning to the facts of the case, the Tribunal set out the relevant parts of Direction No 55. It then referred to the nature of Mr Salahuddin's offences, after which it quoted in full the terms of cl 9.1.2 of the Direction. 28 In its discussion of the nature of the offences, the Tribunal stated that Mr Salahuddin's criminal history revealed a pattern of offences commencing when he was a juvenile. It noted that his offences were mainly property and drug related, although a small number involved violence including two convictions for assault occasioning actual bodily harm. 29 The Tribunal observed at [16] that Mr Salahuddin's offences were not committed against children, the elderly or the disabled. 30 In a section of its reasons under the subheading "Drug dependence", the Tribunal deals at some length with Mr Salahuddin's heroin addiction and his attempts at rehabilitation. 31 The substance of the Tribunal's reasons commences at [35] under the subheading "Findings and conclusions". The Tribunal reiterated the primary consideration of protection of the Australian community which must be applied in light of the principles stated in cl 6.3. It said that the principles: … require consideration to be given to the nature and seriousness of the visa holder's conduct and the risk to the Australian community should the person go on to re-offend. 32 The critical paragraph of the Tribunal's reasons is [36] which includes the following observations and findings: None of his offences could be described as particularly serious, even those involving violence. However, as the Direction instructs, the seriousness and nature of Mr Salahuddin's conduct must be assessed not only by reference to the nature of the individual offences but also by their cumulative effect together with the other factors listed at cl 11.1.1(1) of the Direction. Mr Salahuddin has offended on a regular basis since 2005. As Magistrate Keady remarked on sentencing Mr Salahuddin for the offence of larceny in February 2012, over time he has become a serial offender and 'the sentencing options of various kinds ... have not dissuaded him from continuing to offend'. This pattern of offending coupled with the breach of numerous undertakings made to the courts and parole services, together with the misleading information provided to the Department, leads me to conclude that Mr Salahuddin's conduct must be characterised as serious, although not at the most serious end of the scale. 33 The Tribunal noted at [37] Mr Salahuddin's acknowledgment that the likelihood that he will re-offend is inextricably tied to whether he is able to break his drug addiction. It observed that he was yet to complete a structured treatment program and said there was no evidence of him making any concerted attempt to do so. 34 The Tribunal accepted that, if Mr Salahuddin were to remain in Australia he would receive a considerable level of support from his parents who are "plainly decent and hardworking people". 35 The Tribunal member then said at [40]: Even with the support of his family I think at this point in his life it is unlikely that Mr Salahuddin will be able to beat his addiction. Even if it is accepted that he is genuine in his commitment to stop using illicit drugs, the length of his criminal history, the strength of his addiction, his failure to have undergone a structured rehabilitation program coupled with his immaturity and impulsivity, indicate that even with the help of his parents the odds are stacked against him. I think the risk of Mr Salahuddin returning to drug use if he were to remain in Australia is moderate to high. In my opinion if he were to continue to use drugs in the community it is almost inevitable that he will re-offend. 36 She went on to say at [41]: While the crimes committed by Mr Salahuddin to date are not at the high end of the scale in terms of seriousness, the real risk that he will re-offend leads me to conclude that the primary consideration of the protection of the Australian community weighs heavily against him.
Consideration 37 Counsel for Mr Salahuddin submitted that what was required by the Tribunal, in order to satisfy the terms of the Direction in cl 9.1.2(1), was that it engage in an active intellectual consideration of the two matters referred to in sub-paragraphs (a) and (b) of that clause: Tickner v Chapman (1995) 57 FCR 451 at 462. 38 The Minister's counsel accepted the correctness of that submission, although he pointed out that this should not be seen as an adoption of the phrase "proper, genuine and realistic consideration" which may fail to distinguish properly between judicial review and merits review: see Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [30]. 39 The matters referred to in cl 9.1.2(1)(a) and (b) are not themselves primary considerations. However, they must be taken into account by the decision-maker in the course of deliberating on the primary consideration of protection of the Australian community: Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390 at [18]; Shi v Minister for Immigration and Citizenship (2012) 128 ALD 531 at [42]-[44]. 40 It is true that in the present case, the Tribunal did not refer expressly to the nature of the harm to individuals or the Australian community should Mr Salahuddin engage in further criminal conduct. But it seems to me that it is plain that the whole thrust of the decision was that Mr Salahuddin is unlikely to break his drug addiction and that it is almost inevitable that he will re-offend by committing the same sort of offences as were demonstrated in his existing criminal history. 41 Thus it seems to me that, on a fair reading of the decision, the Tribunal considered both of the matters referred to in sub-paragraphs (a) and (b) of cl 9.1.2. 42 The position here seems to me to be very similar to that which was considered by Katzmann J in Minister for Immigration and Citizenship v Obele [2010] FCA 1445. As her Honour said at [47] when dealing with similar language in Direction No 41, the enquiry (or assessment) which the decision-maker is to make is directed to the future. 43 The decision-maker is directed by cl 9.1.2 to consider whether the person represents an unacceptable risk of harm. He or she is required to make this assessment having regard to both the nature of the harm should the person re-offend and the likelihood of the person re-offending. 44 In my opinion it is clear that the Tribunal made this assessment by reference to the nature of the offences committed by Mr Salahuddin in the past and the link to his drug addiction. 45 In carrying out this exercise, the Tribunal took into account the fact that Mr Salahuddin's past conduct was serious, although not at the most serious end of the scale. It said this in the concluding words of [36]. I do not see any tension between this remark and its finding at [41]. 46 What the Tribunal was doing in those paragraphs was to project from Mr Salahuddin's past conduct the nature of the harm should he re-offend. As Katzmann J observed in Obele at [58]-[59], the Tribunal considered the seriousness and nature of the past conduct as well as the likelihood of it being repeated. Assessment of the risk and nature of re-offending is routinely based on past behaviour. 47 It is implicit in [36], [37], [40] and [41] of the Tribunal's reasons that it had regard to the nature of the harm to the community should Mr Salahuddin re-offend and the likelihood of Mr Salahuddin doing so.
Conclusion and Orders 48 The application must be dismissed with costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.
Salahuddin
Minister for Immigration & Citizenship