Shi v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 Mr Shi is a 27 year old citizen of the People's Republic of China. His right to reside in this country arises from his holding of a visa which confers a right of permanent residency. Such visas may be cancelled by the Minister for Immigration, in his discretion, if he reasonably suspects that the visa holder has been sentenced to a term of imprisonment of 12 months or more: Migration Act 1958 (Cth) ss 501(2)(a), (6)(a) and (7)(c) ('the Act'). Mr Shi has been sentenced to such terms of imprisonment on three occasions: to two years and eight months imprisonment for malicious wounding in company; six years for the supply of a commercial quantity of a prohibited drug; and four years for the offence of taking or detaining a person with intent to obtain an advantage. A cancellation of a visa in such circumstances is said to be on 'character grounds'. 2 The Minister's power to cancel Mr Shi's visa, therefore, arises. In practice, it is rare for the Minister to be troubled by individual cases, a state of affairs foreseen by the Act: 'The Minister may, by writing signed by him or her, delegate to a person any of the Minister's powers under this Act' (s 496(1)). In this case, one such delegate decided that Mr Shi's visa should be cancelled. In reaching that decision the delegate's discretion was not unconfined nor completely at large. This was so because the Minister was empowered generally to give directions to his delegates as to the manner in which his discretions were to be exercised by them: s 499(1). In the case of his power to cancel visas on character grounds, he stipulated an extensive set of directions entitled 'Direction No 41 - Visa refusal and cancellation under s 501' ('the Direction'). 3 Part B (of Part 2) of the Direction directly regulated the exercise by the delegate of the discretion to cancel. Relevantly, delegates were directed to 'take into account the primary considerations in every case. The other considerations (defined in paragraph 11) should be taken into account where relevant'. There were a number of primary considerations including, as one might expect, the need to protect 'the Australian community from serious criminal or other harmful conduct, particularly crimes including violence' but also pertinently for this case, 'whether the person was a minor when they [sic] began living in Australia'. 4 I say pertinently because Mr Shi had arrived in Australia at the age of 14 whereupon he attended Randwick Boys High School. He left school half way through Year 10 and then, as the Administrative Appeals Tribunal ('the Tribunal') put it, 'gravitated towards older Chinese speaking males who were drug users and indulged in criminal activity' (Shi v Minister for Immigration and Citizenship [2011] AATA 83 at [31]). 5 Paragraph 10.2 of the Direction told the delegate that: If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration. 6 I need not spend time on the delegate's decision to cancel Mr Shi's visa. What matters for present purposes is, instead, the decision of the Tribunal when it came to review that decision. There is no question that the Tribunal well-understood the need for the issue of Mr Shi's arrival in Australia as a minor to be addressed. It dealt with it in these terms (at [52] of its reasons for decision): The Applicant was aged 14 years when he arrived in Australia. To that extend [sic] this primary consideration weighs in his favour. On the other hand a large part of his upbringing and character formation was in China. Such ties to the Australian community that the Applicant did develop appear to have been ethnically based and with persons who had little regard for the law. 7 It is plain that the Tribunal's reference to the associations being 'ethnically based' was a reference to the Australians in question being ethnically Chinese. It was on this passage that Mr Nair of counsel, who appeared for Mr Shi, rested his first submission. He submitted that the question of whether Mr Shi's ties to the Australian community were with persons of a particular ethnicity was not relevant to the decision which had to be made. In his written and oral submissions, Mr Nair developed this argument by reference to paragraphs 10 and 11 of the Direction which, he submitted, constituted an exhaustive statement of the matters which could be taken into account in reaching a decision to cancel a visa on character grounds. The question of the ethnicity of the persons with whom a visa holder associated was not amongst the matters set out in those clauses from which it followed that the matter was not to be taken into account. 8 Mr Reilly of counsel, who appeared for the Minister, submitted that paragraphs 10 and 11 were not an exhaustive statement of what could be taken into account and he called in aid of that contention the decision of Rares J in Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390 at 396 [19]. Further, so he submitted, paragraph 10.2(1) in terms directed attention to an applicant's ties and linkages to the Australian community so that, far from being a forbidden or irrelevant consideration, the question of Mr Shi's integration into the Australian community was mandatory and centrally relevant. 9 I accept Mr Reilly's submission that paragraphs 10 and 11 are not exhaustive in their nature: 'The provisions of [paragraphs] 10.1 to 10.4 are not intended or expressed to be exhaustive' (Rosson at 396 [19]). That statement, of course, was concerned with paragraph 10 but the case for paragraph 11's exhaustive nature is even thinner, beginning, as it does, with the words 'other considerations, although not primary, may be relevant and, if so, must be considered'. 10 However, this is not the end of the matter. The burden of Mr Nair's argument was that the question of ethnicity was, in a sense, a forbidden consideration. Where, as here, the discretion is largely unconfined (save by the Direction itself) the factors that may be taken into account are similarly unconfined 'except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard': Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J. 11 As the argument was eventually developed there were two limbs. The first, so Mr Nair submitted, was to be discerned in the form of the Direction itself. Paragraph 5.2(4), in particular, was to be seen as important: In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia. 12 Mr Nair submitted that this showed that the ethnicity of the Australians with whom an applicant associated was 'wholly irrelevant to this primary consideration'. On the other hand, Mr Reilly submitted that paragraph 10.2's invocation of 'ties and linkages to the Australian community' made it particularly relevant to know, in effect, whether an applicant had integrated into the Australian community and this, in turn, not only permitted, but in some cases required, a consideration of whether an applicant was integrating into the wider community or, instead, maintaining links only within their own ethnic groupings. 13 Plainly the Direction requires some consideration of integration into the wider community ('greater ties and linkages to the Australian community' is the language of paragraph 10.2(1)) but what exactly is the Australian community and how are those ties or links to it to be assessed? 14 These questions are not idle. If the facts of this case were changed so that the applicant was English and of Anglo-Saxon origin the Tribunal's present remark at [52], '[s]uch ties to the Australian community that the Applicant did develop appear to have been ethnically based and with persons who had little regard for the law', takes on a different hue. One should accept, of course, the correctness of the Tribunal's additional focus of the nature of the associates as being persons 'who had little regard for the law' but that only throws into sharp relief what the relevance of their having been of a particular ethnic origin might have been. 15 It is very easy to be sympathetic to the position in which the Tribunal found itself. Mr Shi's criminal record is, on any view, appalling. Nor do the findings of the sentencing judges (which were before the Tribunal) leave any room for the slightest scepticism about the fact that Mr Shi kept company with criminals of various Asian ethnicities. There is no difficulty in the Tribunal seeking to downplay the links to the Australian community constituted by such criminals - common sense demands no less - but is it really legitimate also to downplay it because of their ethnic backgrounds? 16 One might well understand an alternative approach which said that Mr Shi had no ties with the Australian community because he associated exclusively with people who were not Australians. The difficulty here, however, is that this is not what the Tribunal said. It did not use the ethnicity of the associates to aid the conclusion that Mr Shi had no links to the Australian community; rather, it used them to reduce the significance of the links whose existence it otherwise appeared to accept. 17 I have come to the view that Mr Nair's argument should be accepted. Whilst I do not doubt that the Tribunal was fully entitled and, indeed, obliged to consider whether Mr Shi had links to the Australian community I do not think that the Act or the Direction permitted it to reduce the significance of such links as did exist because of ethnicity. For reasoning of that kind to be open it would be necessary to construe the Act and the Direction as permitting, in effect, an approach based on ethnicity. That Mr Shi chose to associate with Australians of one ethnicity rather than another appears irrelevant to any issue to be resolved. 18 Section 10 of the Racial Discrimination Act 1975 (Cth) ('the RDA') is explicit in providing that where a law of the Commonwealth has the effect that persons of a particular ethnic origin enjoy a right to a more limited extent than persons of another ethnic origin then 'notwithstanding anything in that law, persons of the first-mentioned… ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other… ethnic origin.' 19 Had Mr Shi been associating with Australian criminals of Italian or Russian ethnicity one could not criticise the Tribunal for having due regard to the fact of his associating with criminals. But it would be evidently unsound to regard as relevant the fact that his associates were ethnically Italian or Russian. Indeed, it would be nonsensical. The only difference between that hypothetical case and this (actual) case is the fact that the ethnicity in question is Mr Shi's own ethnicity. If the ethnicity of Mr Shi's Australian associates is irrelevant when those Australian associates are of different ethnic extraction to Mr Shi (for example, Russian or Italian) it cannot become relevant when they are the same (that is, Chinese). To read the Direction as authorising such an approach would, so it seems to me, be contrary to the instruction in s 10(1) of the RDA. In effect, if permitted it will require the conclusion that visa holders who choose to associate with Australians of their own ethnicity are exposed by s 501 to a greater risk of visa cancellation than they would be if they associated with Australians of a different ethnicity. The effect of s 10(1) is (subject to the issue considered in the next paragraph) to require this Court to construe the Act (and, hence, the Direction) as not permitting decision-making processes in which ethnicity is an integer. It is true, as the Minister submits, that the Tribunal had to consider the links which Mr Shi had to the Australian community. But the effect of s 10 of the RDA is that, whatever else that concept denotes, it lacks ethnic features. Mr Shi's links to the Australian community could quite properly be viewed sceptically because they were criminals. I do not think, however, they could be downplayed because they were Australians who were ethnically Chinese. 20 The Direction, of course, finds its authority in s 499(1) of the Act. Section 499(2A) requires that '[a] person or body must comply with a direction under subsection (1)'. The power to make the direction does not go so far as to permit a direction which would contravene the Act or any regulations made thereunder: s 499(2). Nor, in my opinion, does it authorise the making of a direction which would contravene s 10 of the RDA. Although the matter is not entirely free from doubt, there is authority for the proposition that 'it would require express words to convey an intention that a general power to make regulations for a stated purpose authorised the repository to repeal or amend the Parliament's own enactments': De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 at 212 per Brennan CJ and Dawson J; Pearce and Argument, Delegated Legislation in Australia (3rd ed, 2005) at [19.21]. 21 That being so, I cannot conclude that the Direction can lawfully be construed so as to operate by reference to Mr Shi's ethnicity when persons of a different ethnicity are not similarly affected: as I have said, it would have been irrelevant if Mr Shi had been ethnically Russian to downplay his links to the Australian community because he was associating with Chinese Australians. It cannot be relevant just because he was himself ethnically Chinese. It follows that I do not think that the Tribunal was entitled to take account of the fact that Mr Shi's links to the Australian community were 'ethnically based'. 22 Mr Reilly sought to outflank the direction in which this argument was drifting by submitting that the Tribunal's reasons should not be read so strictly. All that the Tribunal was trying to say, on this view, was that Mr Shi had been associating with persons having little regard for the law and that this group, as a matter of fact, was Chinese in origin. This was to be seen as supported by the fact that the sentencing judges had themselves made similar observations. For example, when sentencing Mr Shi for the offence of malicious wounding in company, Judge Hulme SC of the District Court of New South Wales had said '[f]rom [the time of leaving high school] on he spent his days associating with peers in the City and was introduced to illegal drugs'. To put the matter another way, the Tribunal was simply trying to communicate the failure of Mr Shi, in effect, to integrate adequately into the Australian community. 23 I accept, of course, the need to avoid reading the Tribunal's reasons with an eye closely attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. In this case, however, I do not think that principle is sufficient to avert review. The Tribunal was not explaining that Mr Shi had no links to the Australian community. Rather, and to the contrary, it was explaining why the links with the Australian community which it accepted he did have were to be discounted - one was the criminality of those associates (to which there can be no conceivable objection); the other was the fact that the ethnicity of those associates was the same as his. I cannot read the Tribunal's reasons in any other way even allowing it the proper degree of latitude permitted. 24 Mr Reilly also submitted that even if the contrary view were to be arrived at the Court should still decline relief on the basis that the result could be no different. This submission is not without some attraction given Mr Shi's demonstrable lack of social graces. However, its siren call should be resisted. The grant of the writ of certiorari, it is true, is discretionary (Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at 415 [95] per McHugh J) and no different position obtains in relation either to the grant of the constitutional writs under s 75(v) of the Constitution or, more pertinently, the grant by this Court of similar relief under s 39B of the Judiciary Act 1903 (Cth) (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618 [28] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). In particular, it is true that relief could be refused if it was apparent that its grant might lead to no useful result (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 108 [56] per Gaudron and Gummow JJ). 25 It is correct to say that Mr Shi's criminal record is abysmal: every chance of reform proffered to him heretofore has been eschewed. For myself, although my views are quite irrelevant, the prognosis is poor. Mr Shi is a seasoned criminal of a distinctly unpleasant kind. It is difficult to avoid the conclusion that persons of his ilk are probably the very kind whom the Parliament had in mind in enacting s 501 of the Act. That, however, is not presently the question. It is possible that the Tribunal, when it puts from its mind the ethnicity of Mr Shi's links to the Australian community, may come to a different view. The fact of his arrival here as a boy requires - by reason of the Direction - a certain degree of latitude and I cannot say that the Tribunal must inevitably find against him. As has often enough been said, judicial review of administrative action is not concerned with the merits of the underlying matter but only with the procedures by which the decision has been arrived at. Ordinarily this is said in the context of seeking to have the review court arrive at some different view of the merits to those which the body reviewed arrived at but there will be cases - the present is one - where one can be quite sympathetic to the views of those below. Be that as it may, I do not see a principled basis upon which I can refuse relief. 26 For completeness, it is to be explicitly noted that these reasons are not to be construed as involving any criticism of the Tribunal. One may have considerable sympathy for the Tribunal, confronted as it was with Mr Shi's evidence, in reaching the conclusion that he had failed to integrate into the Australian community. Within the Direction's invocation of the Australian community it is easy to understand how the Tribunal reasoned as it did. Further, no argument took place before the Tribunal about the limits of ethnicity in that inquiry. In those circumstances, no criticism is to be directed towards the Tribunal's reasoning although, for the reasons given, I do believe it involved the taking into account of an irrelevant consideration. 27 That conclusion makes it unnecessary to consider further Mr Shi's second and third arguments. For completeness, however, I should indicate that had they arisen I would have rejected them. For the second argument, Mr Nair submitted that by taking into account the ethnicity of Mr Shi's Australian linkages the Tribunal had given rise to an apprehension of bias. This, it was submitted, arose from 'extraneous information': Webb v The Queen (1994) 181 CLR 41 at 74 per Deane J. However, the kind of consideration involved in that situation arises not where an irrelevant consideration is taken into account (as here) but where, instead, the Tribunal of fact or law has had some prior involvement in the matter; for example, a judge has heard some earlier but connected case. 28 Nor do I think that the third argument can be embraced. It is true that the Direction required the Tribunal to assess the risk that Mr Shi's conduct might be repeated: paragraphs 10.1(2)(b) and 10.1.2. But, contrary to the applicant's submissions, it did not fail to do so only because it concluded that there was a 'real' risk of him reoffending, still less when it regarded the offences which he might commit as serious ones. The Tribunal dealt in detail with this issue at [36]-[51]. It referred in terms to paragraph 10.1(2) showing clearly that it understood the question at hand. It proceeded to analyse thoroughly the evidence on the issue: the history of his incarceration; a report by the NSW Probation and Parole Service; a report by a psychologist retained on Mr Shi's behalf, a Ms Nasr; the inconsistencies between Mr Shi's remarks to Ms Nasr about his non-violent disposition and the facts of his conviction for malicious wounding; the significance of the timing of his plea on the question of whether he accepted responsibility for his actions; the nature of recidivism and the case law concerning it; and, Mr Shi's evidence that he would not make contact with his former associates. In light of those matters, it is clear that the Tribunal had indeed carried out the very task required of it by paragraphs 10.1(2) and 10.1.2. 29 I turn then to the issue of relief. In cases concerning decisions to cancel visas on character grounds review in this Court is limited to cases in which jurisdictional error is established: see my own decision in Bhullar v Minister for Immigration and Citizenship [2010] FCA 1337 at [4]-[6]. Generally speaking the taking into account of an irrelevant consideration will constitute a jurisdictional error at least where it was material to the decision. It follows that Mr Shi is entitled to constitutional relief consisting of a writ of mandamus to compel the performance by the Tribunal of its duty to determine Mr Shi's application to it and also to the ancillary issue of a writ of certiorari to quash its present orders. The writ of mandamus will be accompanied by a direction that the Tribunal be differently constituted. Because this Court has not issued an order nisi the writs will be made absolute in the first instance. 30 I can see no principled basis upon which Mr Shi should be denied his costs. 31 I make the following orders: 1. Order absolute in the first instance for a writ of certiorari to quash the decision of the Second Respondent made on 11 February 2011 in proceeding No 2010/5110. 2. Order absolute in the first instance for a writ of mandamus to compel the Second Respondent to determine the applicant's application to it in proceeding No 2010/5110 according to law. 3. The Second Respondent be differently constituted on the rehearing. 4. The first respondent to pay the applicant's costs in this Court. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.