Tesic v Minister for Immigration and Border Protection

Federal Court of Australia|2016-12-07|Before: Collier J

The decision of the respondent made 18 March 2016 be quashed and the respondent be restrained from giving effect to that decision.
The respondent reconsider, according to law, the applicant's application for review.
The respondent pay the applicant's costs and disbursements properly incurred, in accordance with Part 40 of Chapter 5 of the Federal Court Rules 2011 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLLIER J: 1 There are two matters before the Court. The principal matter is an amended originating application made under s 476A of the Migration Act 1958 (Cth) (the Migration Act) and filed in Court at the hearing of this matter, for review of a decision of the Minister for Immigration and Border Protection. The second matter is an application, made orally at the hearing by Counsel for the applicant, to read and rely on affidavits of the applicant Mr Tesic and his migration agent. 2 It is convenient to examine the background facts before turning to the applications before the Court.

Decision not to revoke visa cancellation decision 11 By a notification dated 21 March 2016 the Minister informed Mr Tesic that, after careful consideration of Mr Tesic's representations, the Minister had decided not to revoke the original decision to cancel his visa. 12 Key documents before the Court in respect of the Minister's decision included: an undated document entitled "Issues for consideration of possible revocation under s 501CA of the Migration Act of mandatory visa cancellation decision"; a statement of reasons for the Minister's decision dated 18 March 2016 under the hand of the Minister. 13 As to the reasons for the Minister's decision, the Minister stated that he was not satisfied that Mr Tesic passed the character test as defined by s 501, with the result that s 501CA(4)(b)(i) of the Migration Act was not met. The Minister then considered whether, in light or Mr Tesic's representations, he was satisfied that there was another reason why the original mandatory visa cancellation decision should be revoked. In undertaking this task the Minister stated that he assessed all of the information set out in the issues paper and attachments, in particular Mr Tesic's representations and the documents he submitted. 14 At paragraph 12 of his statement of reasons the Minister said: In the representations and documents submitted by or on his behalf, Mr Tesic has articulated reasons why the original decision should be revoked, which include: revocation is in the best interests of his minor god-daughter and niece; he is fully rehabilitated from drug use and has only a "minimal or remote" chance of re-offending; the expectation of the Australian community would support revocation of cancellation; he has positive employment prospects in Australia; he is engaged to an Australian citizen, and she, other family members and friends would suffer hardship in the event of his removal from Australia; and he would suffer hardship if he cannot remain in Australia. 15 In summary, the Minister found: It would be in the best interests of Mr Tesic's minor god-daughter and niece, and his other nieces and nephews, for the visa cancellation to be revoked. The Australian community would expect that Mr Tesic should not hold a visa. This was because: 18. While I find that the Australian community would have some sympathy for Mr Tesic's circumstances, I also consider that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or whether [sic] there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Mr Tesic has breached this trust as he has been convicted of serious offences including trafficking in dangerous drugs. Mr Tesic had very strong ties to the Australian community through his lengthy residence, his spousal, familial and social relationships, as well as extant employment ties. The Minister also took into account the positive contributions Mr Tesic had made to the Australian community. Another reason the original decision should be revoked concerned the impediments Mr Tesic would face if removed from Australia to his home country of Serbia in establishing himself and maintaining basic living standards. The Minister took into account Mr Tesic's submission that he would experience extensive impediments including language and cultural barriers in Serbia, and the absence of relationships with people in Serbia. The Minister thought it likely Mr Tesic would experience serious practical and financial hardships in Serbia, that his separation from his fiancée, family members and friends would be likely to cause him significant emotional hardship, and that these hardships would be likely to compromise his rehabilitation. The Minister considered the need to protect the Australian community. He considered that the likelihood of Mr Tesic reoffending was low, however the harm associated with him reoffending, particularly if he trafficked dangerous drugs again, was high. The Minister observed, inter alia: ○ Mr Tesic's criminal history included some violent offending; ○ sentencing remarks of the trial Judge in relation to Mr Tesic's drug trafficking conviction included that Mr Tesic was heavily involved in the distribution of drugs in Gladstone, Queensland; ○ when Mr Tesic was apprehended for trafficking in dangerous drugs he was on conditional liberty, having been granted bail for drug possession; ○ the sentencing Judge clearly regarded Mr Tesic's offending as serious; ○ Mr Tesic commenced offending as a minor, and he was required to serve a term of imprisonment in 2002; ○ Mr Tesic was a relatively frequent offender whose offending had generally escalated in seriousness; ○ psychiatric evidence suggested that Mr Tesic likely suffered an adjustment order with mixed anxiety and depressed mood following the sudden death of his step-father; ○ Mr Tesic pleaded guilty before the trial judge and expressed remorse, which was taken into account by the trial judge in setting eligibility for parole; ○ Mr Tesic had undertaken drug-specific rehabilitation, and had a highly positive custodial performance; ○ Mr Tesic claimed that his knowledge of the immigration consequences of any further offending would deter him from any criminality in future; ○ Mr Tesic has support available to him in the Australian community. 16 Importantly the Minister said: 48. Factors which I consider may reduce the likelihood of Mr Tesic re-offending include: his insight and expressed remorse, his abstinence from drug use and completion of a course of rehabilitation; his positive conduct in correctional and immigration detention; his assessment as suitable for release to parole; the strict conditions of his parole and the supervision of the Parole Board until late 2019; Professor Coyle's assessment of his risk of recidivism; the strong family and community support available to him; his demonstrated ability to refrain from re-offending during his lengthy bail period; and the deterrence from offending associated with the risk of his removal from Australia. 49. However, I also took into account Mr Tesic's 20 year history of illicit drug use and his lengthy history of relatively frequent offending, from 1993 until his apprehension in 2010, which is not limited to drug-related offending. Mr Tesic continued to traffick dangerous drugs when he had ceased personal use, and while he was on bail for drug possession offences. I consider that his abstinence from drug use and his lack of recent re-offending is in the context of his conditional liberty, on bail, and his criminal and immigration detention, and his ability to refrain from re-offending in the long-term is untested. 17 Further, the Minister said: 51. I considered all relevant matters including (1) an assessment of whether the person has made representations in accordance with the invitation for the purposes of s501CA(4)(a); (2) an assessment of whether I am satisfied that the person passes the character test (as defined by section 501) for the purposes of s501CA(4)(b)(i); (3) an assessment of whether I am satisfied that there is another reason why the original decision should be revoked for the purposes of s501CA(4)(b)(i) and (4) all evidence available to me, including evidence provided by, or on behalf of, Mr Tesic. 18 The Minister concluded that Mr Tesic represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the other considerations, including Mr Tesic's lengthy residence and very strong ties to Australia. It followed that the Minister was not satisfied for the purposes of s 501CA(4)(b)(ii) of the Migration Act that there was another reason why the original decision to cancel Mr Tesic's visa should be revoked.

Amended application 19 Mr Tesic made his amended application under s 476A(1)(c) of the Migration Act on the basis that the decision of the Minister to refuse to revoke the cancellation of Mr Tesic's visa was a privative clause decision. I understand that this matter was previously before the Federal Circuit Court of Australia, which transferred the matter to this Court. 20 Mr Tesic has sought orders as follows: 1. In respect of the decision of the Respondent made 18 March 2016, orders for certiorari to quash that decision, prohibition directed to the Respondent to restrain his giving effect to that decision; and mandamus requiring the Respondent to reconsider, according to law, the Applicant's application for review. 2. Such further orders as the Court considers appropriate. 3. The Respondent pay the Applicant's costs and disbursements properly incurred, in accordance with Part 40 of Chapter 5 of the Federal Court Rules 2011. 21 The grounds of Mr Tesic's application are expressed to each be independent grounds for judicial review, and each being an independent and alternative basis for establishing judicial error. They are as follows:

The respondent did not properly apply s 501CA and s 501CA(4) of the Migration Act 1958 (Cth).
The respondent's decision was unreasonable.
The respondent took into account irrelevant considerations.
The respondent failed to take relevant considerations into account.
There was insufficient evidence or no evidence to support various findings made by the respondent.
[not pressed]
The respondent failed to properly exercise his discretion under s 501CA and s 501CA(4) of the Migration Act 1958 (Cth).
The respondent's decision involved an error of law.
[not pressed]
The respondent in making the decision did not comply with the rules of natural justice and/or the applicant was denied procedural fairness. 22 Before turning to the applicant's application for additional evidence to be considered by the Court it is convenient to first examine submissions made on behalf of the parties.

Submissions of the parties 23 Mr Tesic was represented at the hearing before me. Detailed submissions were made, however these submissions were in the nature of issues demonstrating jurisdictional error rather than by specific reference to grounds of review. It is useful to summarise the submissions of Mr Tesic, and in doing so refer to the grounds of review to which, I understand, the submissions relate: At the time the decision came to be made under s 501CA(4) of the Migration Act, Mr Tesic was not aware that the Minister was to make the decision personally on whether to revoke the cancellation of the visa. This was important because the approach of Mr Tesic to his case in support of cancellation of the revocation would be different if put to the Minister, as compared with the case to the delegate. The delegate, unlike the Minister, is bound by Ministerial Direction No 65. On the other hand, the Minister's decision is at large, and the range of factors upon which submissions can be made is broad, potentially including general community support of the visa applicant. The failure of the Minister to inform Mr Tesic that the Minister would make the decision constituted a denial of procedural fairness. (I understand that this submission is referable to ground of review 10.) The Minister misapplied s 501CA of the Migration Act by referring to the "principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia" in circumstances where there is no such "principle". (I understand that this submission is referable to grounds of review 1, 3, 7 and 8.) Mr Tesic ceased trafficking after being given an ultimatum by his fiancée to cease his involvement in drugs, and there was no police evidence before the Minister to justify the Minister's conclusion that Mr Tesic had continued to traffick after that point. (Mr Tesic does not identify which to which ground of review this submission relates. Potentially, it is relevant to grounds of review 2, 4 and 5.) The Minister concluded that the expectations of the Australian community were that Mr Tesic's visa should be cancelled, however the Minister did not define those expectations. The Minister's conclusion in this respect was not reasonable or rational (referable to ground of review 2). 24 The Minister submitted, in summary: In relation to ground of review 10: there was no practical injustice occasioned to Mr Tesic in not informing him that the Minister personally would make the decision in respect of whether Mr Tesic's visa cancellation would be revoked. Mr Tesic was invited to provide any information he felt the decision-maker should take into account, and that the decision could be made either by a delegate (who was required to follow Direction 65) or the Minister (who was not). In relation to grounds of review 1, 3, 7 and 8: Mr Tesic's criticism of the use of the term "principle" by the Minister invites an overzealous examination of the Minister's reasons, contrary to principles explained in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. In relation to Mr Tesic's submission concerning his drugs trafficking conduct referable to grounds of review 2, 4 and 5: there must be a complete absence of evidence which would permit the Minister to draw the necessary inference to support the finding. There is no error of law in an administrative decision-maker making a wrong finding of fact. Even if Mr Tesic's migration agent made an error, that of itself would not constitute jurisdictional error. Further, the Minister did not refer to the representations by Mr Tesic's representative - there was other material to support the finding that Mr Tesic continued to traffic dangerous drugs when he ceased personal use. In any event it was open to the Minister to draw the inference that Mr Tesic continued to traffic drugs after ceasing his personal use in February 2010, in circumstances where he was convicted of the offence for a period up to March 2010. In relation to Mr Tesic's submission concerning expectations of the Australian community referable to ground of review 2: the Minister is not required to set any limitations, boundaries or definitional requirements in considering those expectations. Similarly to the national interest, it is an evaluative process.

Application for additional evidence 25 At the hearing Counsel for Mr Tesic sought to read two affidavits which were not before the Minister. The first of those affidavits was sworn by Mr Tesic on 22 October 2016, the second was sworn by Mr Tesic's migration agent, Mr Markwell, on 25 October 2016. 26 Counsel for the applicant submitted, in summary, as follows: In his statement of reasons the Minister referred to alleged trafficking in drugs by Mr Tesic after he had stopped personal use, and after he received an ultimatum from his fiancée. The applicant conceded that if it were true that Mr Tesic had continued to traffic in drugs after he had stopped personal use, this would indicate a fairly pernicious sort of character and would be a relevant consideration for the Minister to take into account. Principles explained in Gondarra v Minister for Families, Housing, Community Services and Indigenous Affairs [2012] FCA 185 and Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707 are relevant. The material upon which the applicant sought to rely was not fresh evidence - it demonstrated that something the Minister took into account did not exist. 27 The Minister objected to those affidavits in the context of this matter, on the basis that: The matter before the Court was judicial review of the Minister's decision personally. The Court assesses the decision in terms of the material that was before the actual decision-maker. In seeking to rely on the additional affidavits, the applicant sought to engage with the merits of the decision. In particular, the applicant sought to supplement the record by adducing fresh evidence to demonstrate an error of fact, which is immaterial to the question whether there was an error of law or a jurisdictional error. The material appears to go towards supporting the applicant's ground 5, namely that there was no evidence upon which the Minister could make his decision. To the extent that Mr Markwell's affidavit might indicate some kind of mistake or error by him that was made during the process leading to the decision of the Minister the decision of SZSXT v Minister for Immigration and Border Protection (2014) 222 FCR 73 is authority for the proposition that mere negligence, inadvertence or incompetence on the part of the agent representing a visa applicant will not constitute fraud so as to warrant judicial intervention. As SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 shows, it must be demonstrated that there is fraud on the decision-maker. 28 In particular the Minister sought to rely on Chandra v Webber (2010) 270 ALR 393 and Mentink v Minister for Justice [2015] FCA 1094. 29 I turn now to examine whether the evidence upon which Mr Tesic seeks to rely before me should be allowed. Mr Tesic's affidavit sworn 22 October 2016 is very brief. Materially, he states: 1. … 2. I RETAINED Solicitors AKS Lawyers and Migration Agents, who in turn instructed Mr William John Markwell Migration Agent 0101142 and Barrister-at-Law to act for me when I received notification that my visa was cancelled on 2 March 2015. Mr Markwell drafted my Statutory Declaration based on my instructions. 3. I REFER to the comment by Mr Markwell found at page (at page 113 of the Court Book) [sic] it does seem, that the Applicant did continue trafficking for a short while after Larissa's ultimatum … 4. I DID NOT TELL Mr Markwell that I continued drug trafficking for a short period after Larissa gave me the ultimatum to cease involvement in drugs or she would leave me (as detailed in my Statutory Declaration at page 150 of the Court Book). 5. I NOTE that I pleaded guilty to an indictment which referred to a period between 18 September 2009 and 11 March 2010. By 19 November 2010, when I pleaded guilty in Court I was prepared to plead guilty to the charge based on the evidence that was collected. There was no evidence presented by the police that I saw, of my drug trafficking after February 2010. Obviously the police collected evidence after 29 February 2010 but it related to activity prior to 1 March 2010. 6. I CEASED all drug trafficking by February 2010. 7. The date 10 March 2010 was the date the police carried out an investigation at the house I was living in at 8 Lagoon Court Gladstone, Queensland. 30 Mr Markwell's affidavit sworn 25 October 2009 is similarly brief, although he also exhibits a copy of the official police diary concerning Mr Tesic. Materially Mr Markwell deposes: 1. … 2. I have been supplied by the Department of Immigration and Border Protection and Mr Tesic with what I believe to be all the material presented by the police to the Court. 3. I now realised I was distracted by the dates on the indictment which referred to the period of 18 September 2009 to 11 March 2010. 4. The date of 11 March 2010 was the day after a search warrant was executed at the premises of Mr Tesic. The police documents show that, that search warrant was executed on 10 March 2010 … 5. However my examination of the all [sic] the police material which was supplied to me shows that no drug trafficking activity involving Mr Tesic occurred after February 2010. 6. I made error when I wrote in my submissions as follows (at page 113 of the Court book) it does seem, that the Applicant did continue trafficking for a short while after Larissa's ultimatum … 7. In actual fact based on the police material with which I was provided there was no evidence of any drug trafficking beyond February 2010. 8. I directly obtained oral instructions from Mr Tesic for the preparation of his Statutory Declaration (pages 148 to 152 of the Court Book). I state that at no stage did Mr Tesic tell me he continued drug trafficking after February 2010. Hence there was no factual basis for me to make the comment in my submission outlined in paragraph 6 above. 31 The question is whether, in seeking to rely on this material, it can properly be said that Mr Tesic seeks to engage with the merits of the Minister's decision or whether the material upon which he seeks to rely is relevant to a ground of review upon which Mr Tesic relies. Relevant principles in this respect were explained by Bromberg J in Chandra 270 ALR 393 where his Honour said: 40. The admissibility of evidence on an application for judicial review of an administrative decision will depend on the ground of review and the circumstances of the case: McCormack v The Commissioner of Taxation [2001] FCA 1700; (2001) 114 FCR 574 at [38]-[40] per Sackville J. The touchstone for the determination of admissibility will usually be relevance. That is, is the evidence sought to be adduced relevant to the ground of review sought to be relied upon? Ordinarily there is no reason, in a case involving judicial review, for any evidence to be placed before the court, apart from evidence of what was before the decision-maker at the time of the decision: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 at [442] per Weinberg J. However, the admissibility of evidence not before the decision maker depends upon the grounds of review on which the application relies: Attorney-General for the Northern Territory v Minister for Aboriginal Affairs [1989] FCA 159; (1989) 23 FCR 536 at 539-540 per Lockhart J; Australian Retailers at [455]; Attorney-General (NT) v Hand [1988] FCA 272; (1988) 16 ALD 318 at 319-320 per Wilcox J; and Saint v Holmes [2008] FCA 987; (2008) 170 FCR 262 at [54] per Siopis J. 41. Authorities dealing with ADJR Act challenges have recognised that in relation to particular grounds of review, evidence beyond the evidence that was before the decision maker may be relevant and admissible. Without seeking to suggest that the following list is exhaustive, evidence beyond that which was before the decision maker may be relevant where the following grounds of review are raised: • the unreasonable exercise of the power given to the decision maker: Attorney-General for the Northern Territory v Minister for Aboriginal Affairs at 539-40; Australian Retailers at [458]; Hand at 320; Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 169; • excess of jurisdiction because of the absence of a jurisdictional fact: McCormack at [38]-[40]; Attorney General for the Northern Territory v Minister for Aboriginal Affairs at 539-540; and • a breach of the rules of procedural fairness: Percerep v Minister for Immigration [1998] FCA 1088; (1998) 86 FCR 483 at 495 per Weinberg J; McCormack at [38]; Hand at 320. 42. The position at common law is similar, if not the same. As Denning LJ said in R v Northumberland Compensation Tribunal, ex parte Shaw [1952] 1 KB 338 at 352: When Certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as a rule, necessary. 32 Counsel for the Minister submitted that, notwithstanding the submission by Counsel for Mr Tesic that the evidence sought to be read related to the second ground of review (that is, unreasonableness), it was more obviously relevant to the fifth ground of review (that is, there was insufficient evidence or no evidence to support various findings made by the respondent). 33 In the Issues Paper prepared by the Department and presented to the Minister to assist in reaching a decision, there appear the following statements: 125. Of relevance to Mr Tesic's rehabilitation and risk of re-offending is his current abstinence from drug use. In his statutory declaration Mr Tesic states: In February 2010, Larissa who was not previously aware of my illegal activity GAVE ME AN ULTIMATUM when she found out and advised it was either her or the drugs and I DECLARE that I have stopped and have not used any drugs since … I MUST STATE that my life was so much better when I stopped using drugs and my relationship with Larissa and my family flourished and I realised just how bad my life had become since I had started using drugs when I was 13 … I have now been drug free since February 2010 and I must state once again that life is so much better (Attachment L, page 6) 126. It appears Ms Anderson became aware of Mr Tesic's drug use after he was apprehended by police in September 2009, in possession of cocaine, amphetamines and MDMA (Attachment L, page 6). However, although Mr Tesic claims to have ceased his own use of drugs in February 2010, he continued to traffic drugs, while he was on bail for drug possession offence, until 11 March 2010 (Attachment C, pages 2-3). This is acknowledged by his representative who submits "It does seem, that the Applicant did continue trafficking for a short while after Larissa's ultimatum, but he was from all appearances starting to wind this down" (Attachment F, page 7) 34 As a threshold issue I consider that the evidence is relevant to both grounds, and also relevant to the fourth ground of review (that is, the respondent failed to take relevant considerations into account). The material seeks to explain why it is that the decision-making process of the Minister was compromised, by a false assumption, to which his representative may have contributed. 35 As is clear from such cases as Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 and Ruatita v Minister for Immigration and Citizenship (2013) 212 FCR 364, failure on the part of the Minister to take into account the applicant's correct criminal record or correct length of custodial sentences can amount to jurisdictional error. Similarly, I consider that the failure on the part of the Minister to take into account the time when Mr Tesic ceased drug trafficking could constitute jurisdictional error, as being referable to a number of his grounds of review, in particular ground 4. 36 Whether it does is, of course, a separate issue. 37 I will allow Mr Tesic to rely on his affidavit and the affidavit of Mr Markwell, and now turn to the grounds of review before the Court.

The Minister made the decision: ground of review 10 38 Mr Tesic relied on the following observation of the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152: 29. No submission was made on behalf of either the appellant or the Minister that the existence or content of the obligation to accord procedural fairness was directly affected by any provision of the Act. Rather, the argument proceeded, for the most part, by reference to what had been said by the Full Court of the Federal Court in Alphaone. The Full Court (Northrop, Miles and French JJ) said: Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. (emphasis added.) (footnotes omitted, emphasis in original.) 39 The critical issue on which Mr Tesic relied was that the Minister would make the decision, and the Minister's discretion was at large. 40 My primary difficulty with this aspect of Mr Tesic's claim, that is, that he was denied natural justice and/or procedural fairness because he was not informed of the critical issue of the possible personal intervention of the Minister, is that he was informed that potentially the Minister might make the decision rather than the delegate, and in that light he was invited to submit anything he thought appropriate. This is clear from the letter of 2 March 2015 from the Department to Mr Tesic which relevantly provided: If you decide to request revocation you can write to us with the reasons why you think the original decision should be revoked using the attached Revocation Request Form. Direction 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA identifies issues that are relevant to the revocation consideration. You should address each paragraph in PART C that is relevant to your circumstances. A copy of Direction 65 is enclo9sed for your information. If the decision-maker is a delegate of the Minister, they must follow Direction 65. If the minister makes a revocation decision personally, he or she is not required to give consideration to Direction 65, though it provides a broad indication of the types of issues that he or she may take into account in determining whether or not to revoke the original decision. You can provide any other information that you feel the decision-maker should take into account, including letters of support from your family, friends, employers or others. 41 It is difficult to identify how this information could have been clearer. Either a delegate or the Minister could make the decision, and the Minister would not be bound by Direction 65. To the extent that Mr Tesic claims that Direction 65 was irrelevant this is not strictly accurate - as the letter of 2 March 2015 explained Direction 65 provided a broad indication of the types of issues the Minister could take into account in determining whether or not to revoke the original decision. In any event however Mr Tesic was invited to submit any information he wished (which would have included letters of community support to which his Counsel referred in submissions). Mr Tesic was advised of this information. 42 In light of this correspondence, Mr Tesic was not denied natural justice by the fact that the Minister ultimately personally made the decision and Mr Tesic was not informed that the Minister had elected to do so. 43 Ground of review 10 has no merit.

"Principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia": grounds of review 1, 3, 7 and 8 44 Mr Tesic claims that the Minister did not properly exercise his powers under s 501CA and s 501CA(4) of the Migration Act because there is no such principle as such that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia. 45 In claiming that the Minister had committed jurisdictional error by "relying" on the principle as articulated by the Minister, Mr Tesic relies on observations of the Full Court in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 and AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105. 46 In Stretton [2016] FCAFC 11 the Minister made a decision pursuant to s 501(2) of the Migration Act cancelling the respondent's visa on character grounds. In so determining, the Minister observed in the course of his statement of reasons: 50. I considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, and (2) all other evidence available to me, including evidence provided by, or on behalf of Mr STRETTON. 51. In reaching my decision I concluded that Mr STRETTON, a non-citizen, is expected to forfeit the privilege of being able to remain in Australia given the serious nature of his criminal offending 47 The Chief Justice observed: 26. Whilst not the focus of any argument, it is to be doubted that the judicial review of decisions such as this is affected or impeded by the use by the Minister in his reasons of phrases such as "the privilege of being able to remain in Australia". At one level such an expression can be seen as an unremarkable synonymous phrase for the statutory rights held under the Migration Act. To the extent, however, that the use of that language seeks to surround, or has the apparent effect of surrounding, the decision with an aura of a non-justiciable assessment of community values, I would not necessarily accept such. It is unnecessary for the resolution of this appeal to explore the full fabric of the scope and purposes of s 501 beyond the protection of the Australian community. In particular, there is no call to consider the relevance of what might be called broader political or policy considerations (whether expressed as such, or expressed as a judgment as to the expectations of the Australian community) in the exercise of the power. 48 In his judgment Griffiths J said: 70. … It is important that there appears from a statement of reasons provided in compliance with the obligation imposed by s 501G(1)(e) (see also s 25D of the Acts Interpretation Act 1901 (Cth)) that the decision-maker has made a balanced and objective appraisal and weighing of the potentially wide range of matters requiring consideration in exercising the significant and substantive power under s 501(2). One of the important purposes served by the obligation to provide a statement of reasons is to show whether or not the power conferred by s 501(2) has been exercised for legitimate purposes and not for an impermissible purpose, such as to punish the visa-holder (see Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513 at [37] per Flick, Griffiths and Perry JJ). In particular, without doubting the relevance to the exercise of that power of protecting the Australian community, it is important that the value of the statement of reasons is not diminished by resort to superficial aphorisms or empty rhetoric, which is illustrated by phrases such as "expectations of the Australian community" and the "privilege" of being a visa-holder. The former concept has the potential to mask a subjective value judgment and to distort the objectivity of the decision-making process. The latter expression is simply misleading as a legal concept. Under Australian law, having the status of a visa-holder is not a privilege. Visa-holders hold statutory and non-statutory rights which are inconsistent with the notion of their status being described simply as a "privilege". For example, many visa-holders have statutory rights of review and all visa-holders have rights relating to judicial review of adverse migration decisions. The statutory rights of a visa-holder are, of course, subject to the lawful exercise of executive powers such as those under s 501. But that fact does not justify the position of a visa-holder under Australian law being described as merely one of "privilege" in a legal sense. 49 In AZAFQ [2016] FCAFC 105 the Minister had made a decision pursuant to s 501 of the Migration Act cancelling the appellant's visa. Relevantly in that decision the Minister said: 37. [The appellant's] offending is contrary to the Australian community expectations that visa holders respect and abide by Australian laws, values and standards. A non-citizen who has committed serious, violent offences should generally expect to forfeit the privilege of remaining in Australia. 50 The appellant claimed that the decision of the Minister was unreasonable in the legal sense because, inter alia, the Minister failed to take into account the protection obligations which were owed to the appellant, as was said to be reflected in the reference in [37] of the statement of reasons to the appellant's ability to remain in Australia being a "privilege". The Full Court said: 47. If the reference to "privilege" in the Minister's statement of reasons is read in isolation from the balance of those reasons, there might appear to be some force in the appellant's complaint. This Court has previously commented on the danger of describing a visa holder's entitlement to remain in Australia as a "privilege" (see Stretton at [26] per Allsop CJ and at [70(d)] per Griffiths J). The inappropriateness of describing such entitlement as a "privilege" is further underlined in the following passage from Gummow J's judgment in Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 611: ... in other respects aliens are not outlaws; many will have a statutory right or title to remain in Australia for a determinate or indeterminate period and at least for that period they have the protection afforded by the Constitution and the laws of Australia. 48. In our view, however, it would be wrong to conclude in the particular circumstances here that the Minister's use of the word "privilege" discloses jurisdictional error. In accordance with well-known and often cited authority (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259), the Minister's reasons should be read as a whole and without an eye keenly attuned to detecting error. Applying those principles here, it is clear that the Minister did turn his mind to, and take into account, Australia's protection obligations to the appellant. As noted above, the Minister made express reference to, and relied upon, the two Departmental assessments which concluded that there was no legal impediment to returning the appellant to South Sudan and, specifically, to Juba. 51 It is unfortunate that, in such decisions as that before me, and in Stretton [2016] FCAFC 11 and AZAFQ [2016] FCAFC 105, the Minister continues to refer to the privilege of remaining in Australia as a "principle" when, as was pointed out in Stretton [2016] FCAFC 11 and AZAFQ [2016] FCAFC 105, visa-holders have rights conferred by statute rather than an entitlement to "privileges". 52 I note the important principle explained in Minister for Immigration and Ethnic Affairs v Wu Shan Liang 185 CLR 259 that administrative decisions should not be scrutinised with an overzealous eye to error. However, and with some hesitation, I consider that there is an important distinction between the facts of this case, and the facts before the Full Courts in Stretton [2016] FCAFC 11 and AZAFQ [2016] FCAFC 105, as to whether the Minister had properly exercised his powers pursuant to s 501CA of the Migration Act, and in doing so had regard to irrelevant considerations. 53 In his statement of reasons before me, the Minister referred to this "principle" of a "privilege" a number of times. Critically, I note his statement at paragraph 31 where he said, in relation to the issue of protecting the Australian community: I also took into consideration that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are law abiding. 54 This statement was complemented by paragraph 55 in the Conclusion to the statement of reasons where the Minister said: I am mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia. 55 I do not accept that the statements of the Minister in respect of "privilege" in this case could properly be confined to rhetoric expounding the relevant considerations concerning Mr Tesic's criminal history and the importance of protecting the Australian community. 56 The fact that the Minister "took into consideration" that remaining in Australia is a privilege that Australia confers on non-citizens indicates that the decision-making process was distorted. The "principle" coloured the Minister's reasoning process. The Minister approached the decision from that perspective. As was explained by the Full Courts in both Stretton [2016] FCAFC 11 and AZAFQ [2016] FCAFC 105, that perspective was not correct. The fact that the Minister subsequently repeated the statement concerning privilege in paragraph 55, elevating it to a "principle", reinforces the point that the Minister attributed importance to this irrelevant consideration in reaching his decision. 57 The statement of reasons in this case may be contrasted with that of the Minister in Stretton [2016] FCAFC 11, where the Minister referred to the "privilege of being able to remain in Australia" in the conclusion, and in the course of elucidating the expectations of the Australian community. Similarly, in AZAFQ [2016] FCAFC 105 the Minister summarised his reasons for cancelling the appellant's visa, including the generalised statement that non-citizens who committed serious, violent offences should "generally expect to forfeit the privilege of remaining in Australia". Unlike in these cases, the Minister in the statement of reasons in Mr Tesic's case referred to the "privilege" as a principle of law referable to the exercise of the power, rather than a general policy statement. 58 In respect of this issue grounds of review 1, 3, 7 and 8 are substantiated.

Alleged continuation of drug trafficking by Mr Tesic: grounds of review 2, 4 and 5 59 In his reasons the Minister extensively discussed the consideration of the protection of the Australian community, and the commitment of the government to protecting the Australian community from harm as a result of criminal activity by non-citizens. In particular, the Minister detailed Mr Tesic's criminal history, including the sentencing remarks of the trial Judge in 2010. 60 At paragraph 43 of the statement of reasons the Minister said: 43. Accepting that Mr Tesic's criminal offending relates in substantial part to his own drug use, I had regard to the drug-specific rehabilitation undertaken by Mr Tesic. Mr Tesic claims to have ceased his drug use in February 2010, following an ultimatum from his partner, Ms Anderson. However, I note that Mr Tesic continued to traffick drugs, following his cessation of their use, until he was apprehended by police. In custody, Mr Tesic completed the Pathways High Intensity Substance Abuse Program, over a period of nearly six months. I had regard to Mr Tesic's submission that he benefitted from the program and he is a "changed person" who realises his "life is so much better" now he is drug free. 61 After examining factors in Mr Tesic's favour, the Minister then said: 49. However, I also took into account Mr Tesic's 20 year history of illicit drug use and his lengthy history of relatively frequent offending, from 1993 until his apprehension in 2010, which is not limited to drug-related offending. Mr Tesic continued to traffick dangerous drugs when he had ceased personal use, and while he was on bail for drug possession offences. I consider that his abstinence from drug use and his lack of recent re-offending is in the context of his conditional liberty, on bail, and his criminal and immigration detention, and his ability to refrain from re-offending in the long-term is untested. 62 Mr Tesic has claimed that the Minister erred in stating that he continued to traffick in drugs after February 2010 when he ceased personal drug use, and has given evidence to this effect. The Minister did not concede this point, but submitted that there was direct evidence of Mr Tesic continuing to traffick in drugs after February 2010 given that the charge and conviction were for the period up to 11 March 2010, and in any event it was open to the Minister to draw the inference that Mr Tesic continued to traffick drugs as he was convicted for a period up to March 2010. 63 Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346 and Ruatita v Minister for Immigration and Citizenship (2013) 212 FCR 364 are authorities which provide guidance in these circumstances.

Lu v Minister for Immigration and Multicultural and Indigenous Affairs 64 In Lu 141 FCR 346 the Minister exercised power under s 501A(2) of the Migration Act cancelling Mr Lu's visa on the ground that he did not pass the character test, and that cancelling the visa was in the national interest. The background facts are summarised in headnote to the report as being as follows: The Minister had before him an Issues Paper containing the appellant's criminal record. The Issues Paper correctly identified that in 1991 the appellant was convicted of armed robbery, burglary and home invasion and sentenced to a term of imprisonment of six years and six months. While serving this sentence the appellant was convicted of offences relating to the possession and use of marijuana. In 1993 the appellant was fined $1,100 for such offences. In 1997 the appellant was sentenced to one month imprisonment to be served when his current sentence ended. The Issues Paper, however, did not identify the drug which was the subject of the 1993 and 1997 convictions, and incorrectly stated that the appellant had been sentenced to nine months imprisonment for them. 65 Mr Lu sought judicial review of the Minister's decision. At first instance he was unsuccessful. Mr Lu then appealed to the Full Court. 66 Materially for the purposes of this judgment, one of Mr Lu's grounds of review - reflected in his grounds of appeal - concerned the question whether a failure on the part of the Minister to take into account the appellant's true criminal record (the Minister having been misinformed in this respect) constituted a jurisdictional error warranting the grant of relief. As the Chief Justice explained at 348 [5]: The questions to be considered therefore are: (a) Did the Minister's failure to take into account the appellant's correct criminal record amount to jurisdictional error; (b) If so, should the appellant be denied relief on the ground that the failure could not materially have affected the Minister's decision? 67 Relevant questions were articulated in similar terms by Sackville J at 354 [40] and 357 [52]. 68 His Honour continued: 6. … Where jurisdictional error has occurred in the making of a decision as to which the decision-maker is invested with a broad discretion, it may be difficult to conclude, as a matter of logic, that the error did not deprive a person of the possibility of a favourable decision. The circumstance that a case seems very heavily weighted against a person does not logically deny that the error may possibly - not "probably" - have affected the outcome adversely to that person's interests. 7. It was common ground that the material placed before the Minister when he made the decision in question erroneously stated the appellant's criminal record and I agree with Sackville J, for the reasons he gives, that the Minister's consequent failure to give the requisite consideration to the appellant's true criminal record involved jurisdictional error. 69 The Chief Justice then turned to consider whether Mr Lu should be denied relief on the ground that the failure to take into account his true criminal record could not have materially affected the Minister's decision. His Honour noted that the misstatement concerning Mr Lu's convictions could not have deprived him of the possibility of passing the character test, since on any view Mr Lu had a "substantial criminal record" for the purposes of the test within the meaning of s 501(6) and (7) of the Migration Act (at 350 [17]). It followed that the prospect of any decision favourable to Mr Lu lay either in the Minister not being satisfied that the cancellation of his visa was in the national interest, or the Minister otherwise exercising his discretion favourably to him. The Chief Justice observed: 29. Had the sentences for the drug offences been correctly stated and put before the Minister there is a rational possibility that a more favourable assessment of the risk of recidivism would have been made in the Issues Paper or, in any event, by the Minister. There would have been a rational possibility of the risk of recidivism being seen as low and of the case being seen as one in which the Minister's discretion could be exercised favourably to the appellant in all the circumstances. I stress "possibility". 70 His Honour concluded that despite the strength of the considerations supporting the Minister's decision, the erroneous statement in the Issues Paper in respect of Mr Lu's sentences deprived Mr Lu of the possibility of a successful outcome. Had the Minister been given correct information about a matter he was bound to take into account, the Minister may have come to a different conclusion and may have refrained from cancelling Mr Lu's visa (at 352 [32]). 71 In relation to the first question, namely whether the Minister's failure to take into account the appellant's correct criminal record amounted to jurisdictional error, Sackville J observed that it was within the scope and purpose of s 501A(2) of the Migration Act that the Minister should have regard to the offences for which the person was convicted and the sentences imposed. His Honour noted: 55. … In short, they indicate the seriousness of the person's conduct and the threat he or she poses to the Australian community…. It follows that if the Minister fails to take into account a visa holder's correct criminal record because the Department provides incorrect information, ordinarily the Minister will have failed to act in accordance with the requirements of s 501A(2) and therefore will have acted in excess of jurisdiction. 72 Significantly his Honour continued: 56. As I have suggested, it may be that a minor error relating to the convictions or sentences imposed on the visa holder will not in substance result in the Minister failing, in a relevant sense, to take account of that person's criminal record. But I do not think that the errors in this case were consistent with the Minister's statutory obligation to take the appellant's correct criminal record into account. 73 His Honour concluded that there was no evidence the erroneous information provided to the Minister was corrected. 74 Turning to the second question, namely whether Mr Lu should be denied relief on the ground that the failure could not have materially affected the Minister's decision, his Honour concluded: 64. The test is whether the applicant has been deprived of the possibility of a successful outcome by the decision-maker's failure to observe the requirements of the statute. If so, the jurisdictional error could have had a bearing on the outcome and the applicant is not to be denied relief on the basis that the error was insignificant. The test must be applied by reference to the material actually before the decision-maker and, where the decision-maker's reasoning processes is known, taking into account his or her approach to the exercise of the particular statutory power. The question is not whether the decision-maker would probably have reached the same result even if the omitted consideration had been taken into account. 75 Sackville J noted that the incorrect material before the Minister may well have been interpreted by him as indicating that Mr Lu had been convicted of using "hard" drugs in prison, and that as a result Mr Lu was at a high risk of recidivism (at 361 [68]). It followed that Mr Lu was deprived by the errors of the Department of the possibility of a successful outcome.

Ruatita v Minister for Immigration and Citizenship 76 In Ruatita 212 FCR 364 the visa of the applicant, Mr Ruatita, had been cancelled by the Minister because Mr Ruatita had failed to pass the character test, and cancellation of his visa was in the national interest. Mr Ruatita applied for review of that decision. 77 In his statement of reasons the Minister said that the evidence before him showed that Mr Ruatita had spent more than four and half years in custody during his residence in Australia. Flick J found that the period of time stated in the Statement of Reasons - that is, "more than four and a half years … in criminal custody" - was erroneous. His Honour observed: 29. On behalf of the Minister it was submitted that the statement in paragraph 19 of the Statement of Reasons was neither: • misleading; nor • a matter of critical importance to the reasoning of the Minister. Neither submission is accepted. It is concluded that the erroneous statement as to the number of days Mr Ruatita had been in custody had both the potential to mislead the Minister when making his decision and that it deprived Mr Ruatita of the "possibility" of a favourable exercise of Ministerial discretion. 30. The erroneous statement, it is respectfully considered, vitiates the decision of the Minister. The erroneous statement exposes jurisdictional error such that the Minister's decision should be quashed and set aside. 78 Further, his Honour rejected the proposition that the statement as to the time which Mr Ruatita had served in custody was not "critical" to the reasoning process of the Minister. As his Honour noted: 36. … Very much at the forefront of the competing issues to be resolved by the Minister was an assessment as to whether someone with the criminal history of Mr Ruatita should be allowed to remain in Australia.

Consideration 79 In considering whether these grounds of review have merit in relation to Mr Tesic's drug use, and in particular whether the Minister has failed to take into account a relevant consideration, namely the accurate history of Mr Tesic's criminal activity, it is useful to paraphrase the questions posed by the Full Court in Lu 141 FCR 346, namely: (a) Did the Minister's failure to take into account the correct time from when Mr Tesic ceased drug trafficking amount to jurisdictional error; and (b) If so, should Mr Tesic be denied relief on the ground that the failure could not materially have affected the Minister's decision? 80 In my view the answer to question (a) is "yes". 81 Section 501CA(4)(b)(ii) of the Migration Act empowers the Minister to revoke the cancellation of a visa in circumstances where the Minister is satisfied that "there is another reason why the original decision should be revoked". The Minister explained from paragraph 31 of his statement of reasons that, in considering where there was "another reason", he "had regard to the consideration of the protection of the Australian community, noting in particular Mr Tesic's claim that he is fully rehabilitated from drug use, he has only a 'minor or remote' chance of re-offending, and that he does not present an unacceptable risk". 82 It is not in dispute that the accurate history of Mr Tesic's criminal activity, including when he ceased drug trafficking, was a relevant consideration for the Minister. 83 In this case it appears that: the Issues Paper informed the Minister that Mr Tesic had continued to traffick in drugs beyond February 2010, notwithstanding his cessation of personal use at that time; this understanding of the Department was contributed to by Mr Tesic's representative; and the Minister formed the same view as the Department, which contributed in turn to the Minister forming the subsequent view that "Mr Tesic's ability to refrain from re-offending in the long-term is untested". 84 However: the sentencing comments of the trial Judge in respect of Mr Tesic's conviction did not unequivocally support the proposition that Mr Tesic had continued to traffick in drugs after February 2010; Mr Tesic was charged with, and pleaded guilty to, multiple counts over a period of time ending at March 2010. As Mr Tesic's Counsel submitted at the hearing: In a plea of guilty, a person is not going to quibble with things like dates when one is seeking to have the favourable matter of a plea in cooperation with the system of justice. So it can't be at law that a plea of guilty to the charge, with those broad dates, is an admission or proof that he was trading after that date. It either has to be alleged that he was - through multiple counts that he was doing that, and which there wasn't, and so that's essentially what it comes down to, that - and there was an error as you obviously see where a submission was made that it was thought that he might have continued, but that turned out not to be the case. the Minister did not identify the basis on which he concluded that Mr Tesic continued to traffick dangerous drugs after he had ceased personal use; and the evidence of both Mr Tesic and Mr Markwell in this Court is that Mr Tesic ceased trafficking in drugs after he ceased his personal use in February 2010, and Mr Markwell was incorrect if he said the contrary to the Department. 85 As Bromberg J observed in Gbojueh v Minister for Immigration (2012) 202 FCR 417: 46. The seriousness of the past conduct of the non-citizen is probative of the potential for that conduct or like conduct to be repeated should the non-citizen be permitted to remain in Australia. The extent to which a non-citizen convicted of criminal conduct has been rehabilitated has an obvious and logical connection with the risk of that person re-offending. Each of these factors are germane to the potential for the Australian community to be harmed by the continued presence of the non-citizen. (emphasis added.) 86 The Minister also submitted, inter alia, that if there was an error in respect of when Mr Tesic ceased drug trafficking, it was nonetheless open to the Minister to reach that view, and that the error was potentially of fact not law. 87 I disagree. In my view the time at which Mr Tesic ceased drug trafficking, referable to his cessation of personal drug use, was an aspect of his criminal history, and a relevant factor potentially influencing the Minister as to his character, the likelihood of his rehabilitation, the risk of his re-offending, and the overall risk he posed to the Australian community. This is particularly so in light of the Minister's view of Mr Tesic and his alleged continuation of drug trafficking after February 2010 when he ceased using drugs himself. To paraphrase comments of the Chief Justice in Lu 141 FCR 346, it is difficult to conclude, as a matter of logic, that the incorrect assumption drawn by the Minister did not deprive Mr Tesic of the possibility of a favourable decision. There were other factors to which the Minister referred in concluding that Mr Tesic posed a risk to the Australian community. Again however the circumstance that a case seems very heavily weighted against a person (as perhaps it was against Mr Tesic) does not logically deny that the error in respect of when Mr Tesic actually ceased drug trafficking may possibly - not "probably" - have affected the outcome adversely to his interests. 88 In relation to question (b), in my view the correct answer is "no". If the Issues Paper had not indicated that Mr Tesic had continued trafficking dangerous drugs after his personal use ceased, and the Minister had not accepted this as a fact, there is a rational possibility that a more favourable assessment of Mr Tesic's character, the risk of his recidivism and the risk he posed to the Australian community would have been made in the Issues Paper or, in any event, by the Minister, such that the Minister may have altered his decision concerning revocation of the visa cancellation. 89 The material before the Court indicates that there is merit to ground of review 4 so far as concerns the issue of Mr Tesic's alleged continued drug trafficking and the view reached by the Minister in this respect.

Definition of expectations of the Australian community: ground of review 2 90 Mr Tesic submitted that the findings of the Minister so far as concerned the expectations of the Australian community were not reasonable or rational because the Minister did not define the nature of those expectations. Mr Tesic relied in this respect on comments of Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, where her Honour was critical of the lack of analysis in the Minister's reasoning. 91 At paragraphs 17-19 of the statement of reasons the Minister sets out his views of the expectations of the Australian community, including: the Australian community would have some sympathy for Mr Tesic; the Australian community expects non-citizens to obey Australian laws while in Australia; it may be appropriate to not revoke the mandatory visa cancellation of a non-citizen who has breached Australian laws; in light of Mr Tesic's history of offending and the nature of his offending the Australian community would expect that Mr Tesic should not hold a visa. 92 I am satisfied that the statement by the Minister constitutes a reasonable explanation of the "expectations of the Australian community" from the perspective of the Minister. I do not accept that the Minister's statement of reasons lacks a "rational discussion" of the issue, as submitted by Mr Tesic. 93 In my view ground of review 2 has no merit to the extent that it relates to the expectations of the Australian community.

Conclusion 94 For the reasons I am given the orders sought by Mr Tesic in his application should be made. This includes his application for costs, which in the circumstances should follow the event. I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

Migration Act 1958(Cth)ss 476A, 476A(1)(c), 501, 501(2), 501(3A), 501(6), 501(7), 501(7)(c), 501A(2), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)

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