Is the risk of harm to the community a mandatory consideration?
40 Two relatively recent decisions of single judges of the Court suggest that the answer to this question is "yes": Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417 (Gbojueh); and Tanielu. The Minister submits, however, that these cases are wrongly decided because they are contrary to the judgment of the majority in Huynh. The Minister also points to another recent single judge decision as indicating that Tanielu was wrongly decided, or at least as indicating a difference of opinion concerning this question: MZAGK v Minister for Immigration and Border Protection [2014] FCA 1190 (MZAGK).
41 The difficulty for the Minister, however, is that Huynh is not authority for the proposition that risk of harm to the Australian community is not a mandatory consideration in the exercise of the discretion under s 501(2) of the Act. It would also appear that, to the extent that there is any disagreement or difference of opinion in recent cases in the Court, that disagreement or difference of opinion relates more to the question how the Minister may or must go about assessing or determining the risk of harm. The difference is not about whether risk of harm is a mandatory consideration.
42 The question is, ultimately, one of statutory construction. The ambit of the Minister's discretion to cancel a visa under s 501(2) of the Act is broad and unconfined. It is not subject to any express limitations or constraints. It is well accepted that, in these circumstances, the Court will not find that the decision-maker is bound to take into account a particular matter unless that can be implied from the subject matter, scope and purpose of the act in question: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 (Peko-Wallsend).
43 The general object of the Act is set out in s 4 of the Act. It is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Subsections 4(2) and 4(4) make it plain that the provisions of the Act relating to visas, and the removal of persons whose presence is not permitted by the Act, which would include persons whose visas have been cancelled, are intended to advance that object.
44 Considered in the context of this broad object, s 501 can readily enough be seen to be dealing with one aspect of the national interest. That aspect is the protection of the Australian community by the removal from Australia of persons who, by reason of their bad character, may present a risk, or whose continuing presence may have adverse consequences for, the Australian community. The removal of such persons is effected, in the first instance, by the cancellation of their visas. Visa cancellation does not, however, automatically follow from a failure to satisfy the character test in s 501(6) of the Act. The Minister retains a discretion. Plainly enough, given the subject matter, scope and purpose of s 501, the nature and extent of the potential adverse consequences or risk posed by the continuing presence of the person in Australia must be seen to be a central consideration in the exercise of that discretion.
45 The protective nature of the Minister's power to cancel a visa appears to be well accepted: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 at [66]-[68]. Indeed, the Minister does not submit that the power to cancel is otherwise than protective in nature. The Minister's reasons in this matter also proceed on the basis that protection of the public is a primary consideration in the exercise of the discretion to cancel a visa on character grounds. Once that is accepted, it would seem to be but a short step to conclude that the risk or potential for harm to the Australian community posed by the continuing presence in Australia of a person whose visa is open to cancellation is a mandatory consideration. That is because the need to protect the public in this context only arises if there is a risk of harm.
46 In Gbojueh, Bromberg J gave consideration to the question whether there were any mandatory considerations which the Minister was bound to take into account in the exercise of his discretion under s 501A(2) of the Act. Section 501A of the Act empowers the Minister to set aside a decision of the Administrative Appeals Tribunal not to cancel a person's visa under s 501(2) of the Act. The only material difference between the discretions in s 501(2) and s 501A(2) is that s 501A(2) expressly introduces the national interest as a mandatory consideration.
47 Bromberg J concluded that the exercise of the discretion under s 501A(2) of the Act called for a broad evaluative judgment. The subject matter, scope and purpose of the section strongly suggested that the Minister was to be left largely unrestrained to determine for him or herself what factors are to be regarded as relevant when determining whether to cancel a visa in the national interest. Nevertheless, his Honour concluded that the risk of harm to the Australian community was a mandatory relevant consideration in the exercise of the discretion under s 501A(2) of the Act. His Honour said (at [45]):
There is however one consideration that is so central to the subject matter dealt with by s 501A(2), that it is difficult to imagine that Parliament did not intend it to be a consideration the Minister is bound to take into account, both for the purpose of determining the national interest and the residual discretion. It is unlikely that the potential for the Australian community to be harmed by the continued presence in Australia of the non-citizen was intended as an optional consideration at the Minister's election. In my view, and consistently with the view of the majority (Black CJ and Sackville J) in Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346, the Minister is bound to consider that potential for harm to the Australian community in the exercise of the power conferred by s 501A(2).
48 Whilst Gbojueh concerned s 501A(2) of the Act, it is to be noted that Bromberg J concluded that potential for harm is a mandatory consideration for the Minister in both determining the national interest and in respect of the "residual discretion". Bromberg J ultimately concluded that the Minister had given consideration to the risk of harm. Bromberg J's judgment was upheld on appeal, though the appeal did not turn at all on the question whether risk of harm was a mandatory consideration: Gbojueh v Minister for Immigration and Border Protection [2015] FCAFC 43. Rather, it turned on whether the Minister had considered a finding made by the sentencing judge.
49 In Tanielu, Mortimer J gave detailed consideration to the question whether the risk of harm was a mandatory consideration for the Minister in the exercise of his s 501(2) discretion. After an exhaustive review of the authorities, her Honour concluded as follows (at [154]):
The risk of harm to the Australian community posed by the subject of the visa refusal or cancellation is a matter a decision-maker, including the Minister personally, must take into account in exercising the s 501(2) power. That is because an assessment of such a risk is a necessary part of exercising the power for the purpose for which it was conferred: namely, protection of the Australian community, using "protection" in its broadest sense.
50 The Minister submits that Tanielu and, by implication, Gbojueh are wrongly decided. The principal basis for that submission is that these decisions are inconsistent with the majority decision of the Full Court in Huynh.
51 The specific issue in Huynh was not whether protection of the Australian community or the risk of harm were mandatory considerations. Rather, the question was whether the Minister was bound, in exercising the discretion to cancel in s 501(2) of the Act, to have regard to specific findings by the Court of Criminal Appeal concerning the visa-holder's (Ms Huynh's) complicity, and therefore the level of her criminality, in respect of the offence which resulted in her failing the character test. The sentencing judge had found that there was no evidence concerning the level of complicity of Mrs Huynh and her son (who had also been convicted of the same offence) and no "firm" evidence concerning their respective roles. The Court of Criminal Appeal, however, found that Mrs Huynh was not herself a drug dealer, but was simply assisting her son who was. The Minister had regard to what the sentencing judge had said on this topic, but did not have regard to the finding by the Court of Criminal Appeal.
52 Kieffel and Bennett JJ found that the Minister was not bound to consider what the Court of Criminal Appeal had said concerning Ms Huynh's level of complicity or criminality in exercising the s 501(2) discretion. Indeed, their Honours found that the Minister was not bound to consider the general topic of Ms Huynh's level of complicity or criminality at all. Such matters were not relevant considerations "in an administrative law sense" (at [76]).
53 The Minister relies on the following passage from the majority judgment (at [74]):
A reference to those matters [the subject-matter, scope and purpose of the statute] confirms the breadth of the Minister's discretion. The object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens: s 4(1). To advance that object, provision is made for the removal or deportation from Australia of non-citizens whose presence is not permitted by the Act: s 4(4). If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister's part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed. By way of illustration, the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment for the requisite term. To construe the section as requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion. It follows in our view that the obligation of which his Honour the primary judge spoke cannot be read into s 501.
(Emphasis added)
54 Whilst this passage supports the proposition that the Minister's discretion under s 501(2) is broad, it does not support the proposition that the discretion is entirely unconfined, or that there are no considerations that the Minister is bound to have regard to. Rather, this passage is authority only for the proposition that the Minister is not bound, in every case, to consider "specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed." In Mrs Huynh's case, that meant that the Minister was not required to consider the extent of Mrs Huynh's involvement or complicity in the offence.
55 Kieffel and Bennett JJ did not expressly find that risk of harm to the community is not a mandatory consideration. Nor can any such conclusion be implied from their Honours' reasons. In relation to the illustration given by their Honours in this passage, the fact that the Minister may decide to cancel a visa having regard to the nature of the particular offence committed, whatever the level of involvement of the visa-holder in the commission of the offence, does not mean that the Minister does not need to consider the risk of harm to the community. It just means that there may be some cases where the offences committed by the visa-holder are so serious that the Minister could form the view that there would be a risk of harm to the community arising from the continuing presence in Australia of the offender irrespective of the level of the offender's specific involvement in the offence.
56 In dissent, Wilcox J found that the Minister was required to have regard to the nature of the visa-holder's offence, this being an essential step in assessing the degree of criminality involved in the offence and therefore the desirability or otherwise of excluding the person from Australia. His Honour observed (at [43]) however, that "it is for the Minister, as the statutory decision-maker, to determine what information about the circumstances of the offence - that is, on what matters and to what level of detail - he or she wishes to receive in order to exercise the relevant statutory discretion."
57 His Honour referred to the well-known statement of Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375:
In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.
58 His Honour then said (at [44]):
Moreover, in relation to matters which are to be treated as relevant, either because of an expressed or implied command in the relevant statute or the choice of the decision-maker, in the absence of a statutory indication to the contrary, the decision-maker will not usually be bound to obtain the required information from any particular source. In a case involving criminal convictions, it will, no doubt, usually be convenient for the Minister to look to material emanating from the court that dealt with the person under consideration. However, the Minister is not bound to obtain and consider court material; the Minister may choose to rely on other sources for the requisite information.
59 Ultimately Wilcox J dissented because his Honour considered that, having relied on the sentencing judge's remarks, the Minister was bound to properly consider the matter and was therefore bound to have regard to the Court of Criminal Appeal's correction of the sentencing judge's findings concerning Ms Huynh's degree of complicity.
60 Difficult questions may arise concerning how far it is possible to take the broad statement by the majority in Huynh that the Minister is not bound to consider "specific factors, personal to the visa holder". There is no doubt, for example, that the Minister is not free to entirely disregard the particular circumstances of the visa-holder. As pointed out in NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [26] (Allsop CJ and Katzmann J) and [153] (Buchanan J) and NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44 at [123] (Buchanan J; Allsop CJ and Katzmann J agreeing at [7]), it is not permissible to put to one side, or fail to address, the merits of a particular visa-holder's case; see also Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [26].
61 It does not follow, however, that the Minister is bound, in the Peko-Wallsend administrative law sense, to take into account every or any particular facts or factors personal to the visa-holder that might be relevant to the exercise of the s 501(2) discretion in the particular circumstances of the case. It is ultimately up to the Minister to decide, in the light of the matters put before him (or her), what facts are relevant and what weight should be given to them. In some cases, a failure by the Minister to take into account certain facts concerning the offence or offences committed by the visa-holder may indicate error on the Minister's part. It may, for example, indicate that the Minister failed to address at all the merits of the visa-holder's case, or failed to give proper and genuine consideration to the risk of harm in the particular circumstances, or even made a legally unreasonable or irrational decision. That will depend on the particular facts and circumstances of the case and the particular fact or facts that it is alleged the Minister ignored. The point is, however, that the error in such a case is best addressed in these terms, rather than as a failure to take into account a mandatory consideration.
62 In any event, the point remains that, contrary to the Minister's submissions, Huynh is not authority for the proposition that risk of harm is not a mandatory consideration in the exercise of the s 501(2) discretion.
63 Nor is the Minister assisted by the fact that the majority of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 (Nystrom) at [127] (Hayden and Crennan JJ; Gleeson CJ agreeing at [1]) referred, with apparent approval, to the statement by the majority in Huynh that it is not possible to imply into the Act "some obligation on the Minister's part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed." Read in context, that approval again does not support the broad proposition advanced by the Minister that risk of harm is not a mandatory relevant consideration.
64 The issue in Nystrom was whether there was an implied obligation on the part of the Minister to ascertain the existence of, and take into account, the qualifications for every substantive visa which would be cancelled either directly or indirectly by reason of the Minister's decision. It was held that there was no such implied obligation. To use the language of Huynh, the Minister was not obliged to consider that "specific factor". That is not to say that the risk or potential of harm is not a mandatory relevant consideration. Indeed, it appeared to be accepted in Nystrom that protection of the Australian community was a relevant consideration.
65 The Minister also relies on the recent decision of Tracey J in MZAGK as providing some support for the proposition that risk of harm is not a mandatory consideration and that Mortimer J was wrong to conclude otherwise in Tanielu.
66 As in Gbojueh, the decision in issue in MZAGK was the decision of the Minister to cancel a visa under s 501A(2) of the Act, rather than under s 501(2). The applicant in MZAGK claimed that the Minister was bound to evaluate the seriousness of any future harm which the visa-holder might cause to the community and the likelihood of that harm occurring. The applicant relied on the decisions of Bromberg J in Gbojueh and Mortimer J in Tanielu. It appears that the Minister contended that those decisions were wrongly decided on the basis of the decisions in Huynh and Nystrom. Tracey J considered Huynh and a number of other authorities concerning s 501 and s 501A of the Act, including Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400; Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326; and Re Patterson; Ex parte Taylor (2001) 207 CLR 391. His Honour then said (at [34]):
These decisions emphasise the breadth of the power conferred on the Minister by s 501A of the Act. If the Minister is entitled to form the view that it is not in the national interest for a visa holder to be allowed to remain in Australia solely because of the serious nature of the crime or crimes of which the person has been convicted, it is difficult to discern a principled basis upon which the exercise of the power (either in determining where the national interest lies or in the exercise of the residual discretion) should be fettered by Court-imposed requirements that additional matters must be taken into account. The protective nature of the power is not compromised by such restraint. Indeed, it may be enhanced. The approach reflected in these authorities ensures that the Minister is not required to speculate on the degree of likelihood of the visa holder re-offending should he be permitted to remain in Australia. If the offence of which the visa holder stands convicted is open to be characterised as serious, the Minister will be able to decide (as he has done in the present case) that a risk exists and that any risk of re-offending is unacceptable and should be avoided.
67 It should be noted that, in this passage, Tracey J appears to accept that s 501A is "protective" and requires some consideration to be given to the risk of harm. His Honour concludes, however, that in considering the potential for harm, the Minister is not in all cases bound to have regard to specific considerations, such as the risk of re-offending. Or, as his Honour puts it in the following paragraph of the judgment (at [35]):
It is one thing to require the Minister to consider the potential for harm to the Australian community should the visa holder remain part of it; it is another, altogether, to prescribe the manner in which the Minister must undertake such a consideration.
68 It was ultimately unnecessary for Tracey J to decide whether the Minister was bound to have regard to considerations such as the likelihood of the visa-holder re-offending. That is because his Honour held that, in any event, the Minister had regard to such considerations.
69 The reasoning of Tracey J in MZAGK does not provide any support for the Minister's submission that risk of harm is not a mandatory consideration for the Minister in the exercise in his discretion under s 501(2) of the Act. Rather, it simply supports the proposition that, in addressing that consideration, the Minister is not bound to consider, in all cases, any specific matters, such as the risk of re-offending.
70 To the extent that there is any difference of opinion between Mortimer J in Tanielu and Tracey J in MZAGK, the difference is not whether risk of harm is a relevant mandatory consideration. Rather, the difference concerns what flows from that fact. Does it follow, for example, that in every case the Minister must consider and make findings concerning the risk or likelihood that the visa-holder will re-offend, as well as findings concerning the nature and seriousness of the further offences that might be committed? Does it follow, therefore, that these matters are also mandatory considerations?
71 It is unnecessary to resolve these questions here. The better view, however, would appear to be that the fact that the Minister is bound to consider the risk of harm to the community if the person's visa is not cancelled does not necessarily mean that the Minister is bound in every case to consider that issue in any particular or precisely defined way. It does not give rise to a series of additional mandatory considerations in every case. For example, it does not mean that in every case the Minister is bound to determine the risk or likelihood of the visa-holder re-offending.
72 One can readily imagine cases where the Minister, in assessing the risk to the Australian community of a visa-holder who has committed a serious offence being allowed to remain in Australia, might properly consider that the likelihood of the visa-holder re-offending is not a material or weighty consideration. For example, the Minister might consider that the continuing presence in Australia of a person who has been convicted of serious terrorism related offences would pose a serious risk of harm to the community, even if there was no risk of the person re-offending. That might be because of fear or concern that the person's continuing presence in Australia might inspire or provoke other like-minded supporters to commit similar or "copycat" offences. It is difficult to see why that approach would not be open to the Minister, or could be struck down on the basis that the Minister did not have regard to the likelihood of the visa-holder re-offending.
73 There may equally also be cases where the failure by the Minister to consider the risk of the person re-offending might indicate error. The preferable approach in such cases, however, would not be to ask whether the failure to consider that matter amounted to a failure to have regard to a mandatory relevant consideration. Rather, the question in such a case would be whether, in the particular circumstances and context of the case, the failure to consider the likelihood of the visa-holder re-offending reveals that the Minister failed to consider or decide the visa-holder's case on its individual merits, or failed to give proper or genuine consideration to the risk of harm posed by the visa-holder's continuing presence in Australia, or misunderstood the correct approach to the assessment of the risk of harm, or otherwise made a legally unreasonable decision.
74 In any event, for the reasons given earlier, the first proposition advanced by Mr Te Puke in support of ground 1 of his application is correct. The Minister was bound to have regard to the risk of potential harm to the Australian community if Mr Te Puke's visa was not cancelled and he was permitted to remain in Australia. This finding is supported by the authorities and it is not, as contended by the Minister, contrary to the judgments of the majority in Huynh or the majority in Nystrom.
75 The more difficult question is whether, as contended by Mr Te Puke, the Minister failed to have regard to this mandatory consideration.