Tewao v Minister for Immigration and Citizenship

THE APPEAL 1 This is an appeal against the order the primary judge made on 23 December 2011 dismissing the appellant's application under s 476A(1)(c) of the Migration Act 1958 (Cth) (the Migration Act) to set aside the decision of the respondent, the Minister for Immigration and Citizenship (the Minister), to cancel the appellant's visa. The primary judge's reasons for judgment are published as Tewao v Minister for Immigration and Citizenship [2011] FCA 1515. 2 The notice of appeal identifies four grounds, all of which relate to the Minister's consideration of "the national interest" as required by s 501A(2)(e) of the Migration Act. In summary, the appellant contends that the Minister's decision to cancel the appellant's visa is vitiated by jurisdictional error arising from both the substance of the Minister's consideration as to whether he was satisfied that the cancellation of the appellant's visa "is in the national interest" as required by s 501A(2)(e) and the denial of procedural fairness to the appellant in the circumstances of that consideration.

BACKGROUND 3 The primary judge's reasons are best understood against the relevant statutory and factual background. 4 The appellant, a citizen of New Zealand, held a temporary visa permitting his residence in Australia. After the appellant committed an offence resulting in his imprisonment a delegate of the Minister decided to cancel the appellant's visa under s 501(2) of the Migration Act. The appellant applied to the Administrative Appeals Tribunal (the AAT) for review of this decision. The AAT set aside the decision under review and decided instead that the appellant's visa should not be cancelled (Tewao and Minister for Immigration and Citizenship [2011] AATA 329). 5 Section 501A(2) of the Migration Act vests a further discretion in the Minister personally after the making of such a decision. Section 501A(2) provides that: (2) The Minister may set aside the original decision and: (a) refuse to grant a visa to the person; or (b) cancel a visa that has been granted to the person; if: (c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and (d) the person does not satisfy the Minister that the person passes the character test; and (e) the Minister is satisfied that the refusal or cancellation is in the national interest. 6 In s 501A(2) the "original decision" is the decision of the AAT or the Minister's delegate. 7 Subsections 501A(5),(6) and (7) are also relevant. They provide as follows: (5) The power under subsection (2) or (3) may only be exercised by the Minister personally. (6) The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances. (7) A decision under subsection (2) or (3) is not reviewable under Part 5 or 7. 8 Parts 5 and 7 of the Migration Act provide for merits review of certain decisions. 9 After the AAT set aside the decision of the Minister's delegate the Department of Immigration and Citizenship notified the appellant by letter of 5 July 2007 that the Minister "intends to consider whether to set aside the decision of the Administrative Appeals Tribunal and to cancel your visa under subsection 501A(2) of the Act". The letter continued: Migration law and visa cancellation on character grounds Under subsection 501A(2) of the Act the Minister may set aside a decision of the Administrative Appeals Tribunal not to exercise the power under subsection 501(2) of the Act to cancel a visa that has been granted to a person and cancel a visa that has been granted to the person if: • the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and • the person does not satisfy the Minister that the person passes the character test; and • the Minister is satisfied that the cancellation is in the national interest. The power to cancel a visa under subsection 501A(2) of the Act may only be exercised by the Minister personally. The full text of sections 501 and 501A of the Act is enclosed for your information. What is the character test? … What if you do not pass the character test? If the Minister reasonably suspects that you do not pass the character test, and you do not satisfy the Minister that you pass the character test (see 'Your opportunity to comment', below), the Minister will consider whether the cancellation of your visa is in the national interest. If the Minister is satisfied that the cancellation of your visa is in the national interest, he will then consider whether to exercise the discretion in subsection 501A(2) of the Act to cancel your visa. The Minister will weigh up all relevant available information before making that decision. In considering whether to exercise the discretion to cancel your visa under subsection 501A(2) of the Act, the Minister may have regard to, but is not bound by, the factors in the directions given by him under section 499 of the Act to section 501 decision-makers. Those directions are currently contained in Direction No. 41 - Visa Refusal and Cancellation under s501 ("the Direction"). A copy of the Direction is enclosed for your information. … Your opportunity to comment You have the opportunity to submit any information or material to satisfy the Minister that you pass the character test. You should note that under subsection 501A(2) of the Act, the Minister will take into consideration the issue of "national interest". Therefore, you may wish to address this issue too. You also have the opportunity to comment on the information that will be considered by the Minister and to submit additional information, if you wish. Further, you have an opportunity to provide reasons or information in relation to why your visa should not be cancelled, even if you are found not to pass the character test. In this regard, it is important to read the enclosed Ministerial Direction carefully and address each factor that you feel applies to you or is relevant to your circumstances. You can also provide any other information that you feel the Minister ought to be aware of and take into account. 10 Direction 41 - Visa Refusal and Cancellation under s 501 (Direction 41) is a direction given by the Minister under s 499 of the Migration Act. Direction 41 binds the Minister's delegate and the AAT in exercising functions under s 501 of the Migration Act. It does not bind the Minister and is not identified as a matter which the Minister must consider when exercising the Minister's power under s 501A(2) of the Migration Act. Amongst other things, Direction 41 specifies primary and other considerations relevant to the refusal or cancellation of a visa including the protection of the Australian community, the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated. 11 The appellant, by his solicitor, responded to this notice making a submission on 31 August 2011 that included sections dealing with the national interest and the Direction 41 matters. 12 On 13 September 2011 the Minister decided to cancel the appellant's visa under s 501A(2) of the Migration Act. This decision was recorded as follows: I have considered all relevant matters including (1) an assessment of the Character Test as defined by subsection 501(6) of the Migration Act 1958 (2) Ministerial Direction 41 made under section 499 of that Act, as I considered appropriate, and (3) all other evidence available to me, including evidence provided by, on behalf of, or in relation to Hayden Harlem TEWAO in connection with the exercise of my power in s501A (2). … Cancellation outcome (d) I reasonably suspect that Mr TEWAO does not pass the character test and Mr TEWAO has not satisfied me that he passes the character test and I am satisfied that cancellation of his visa is in the national interest. I have decided to exercise my discretion under s501A(2) to set aside the decision of the Tribunal not to cancel Mr TEWAO's visa. I hereby cancel Mr TEWAO's Class TY Subclass 444 Special Category (Temporary) visa. 13 Section 501G(1) of the Migration Act required the Minister to give notice of the decision to the appellant including the reasons for the decision (s 501G(1)(e)). The Minister's statement of reasons for the decision includes the following: STATEMENT OF REASONS FOR CANCELLATION OF VISA UNDER S501A(2) OF THE MIGRATION ACT 1958 … CHARACTER TEST 4. On 13 May 2010 Mr TEWAO was convicted in the District Court of New South Wales of Aggravated Robbery, for which he was sentenced to three years and three months imprisonment. 5. As a result of this sentence of imprisonment, Mr TEWAO has a substantial criminal record. I find that he does not pass the character test by virtue of s501(6)(a) with reference to s501(7)(c) of the Act and that he has not satisfied me that he passes the character test. NATIONAL INTEREST 6. I am satisfied that it is in the national interest that the visa held by Mr TEWAO be cancelled under s501A(2). In making this determination I gave primary consideration to a number of factors, including the seriousness and nature of the crime committed by Mr TEWAO, shown above. 7. I took into account that the above crime involved an unprovoked and brutal attack on another man, that it was committed with another offender and that Mr TEWAO is an exceptionally large man whose role was to be the 'enforcer' in the offence. After considering relevant information, I cannot be satisfied that the risk of further offending by Mr TEWAO is negligible and accordingly I found that the cancellation of Mr TEWAO's visa is in the national interest. DISCRETION 8. Having found that Mr TEWAO does not pass the character test and that it would be in the national interest to cancel his visa, I carefully assessed all of the evidence before me and considered whether to exercise my discretion to set aside the Tribunal's decision and to cancel Mr TEWAO's visa. In doing so, I had regard to the considerations in Ministerial Direction No. 41 - Visa refusal and cancellation under s501 ("the Direction") - in so far as I believed them relevant to the exercising of my powers under s501A(2). While the Direction does not apply to the exercise of my powers under s501A and in any event does not bind me, I considered that the matters set out in Part B of the Direction provide useful guidance for the exercise of my discretion under s501A(2). 9. I gave primary consideration to the protection of the Australian community, (taking into account the seriousness and nature of the conduct and the risk that the conduct may be repeated), the age at which the person commenced living in Australia, the length of time that the person has lived in Australia and any relevant international obligations. Protection of Australian Community Seriousness and nature of conduct 10. I have noted that the circumstances of the above offence committed by Mr TEWAO and that he inflicted serious injury on the victim without provocation. I consider that the substantial sentence of three years and three months imprisonment is a further indication of the seriousness of the offence. 11. I noted that Mr TEWAO has been convicted of other offences in Australia. 12. I have taken into consideration that Mr TEWAO has been assessed as having a mild to moderate degree of intellectual deficiency, that his offending was opportunistic rather than planned and that he was influenced by others and affected by drugs and alcohol at the time. Risk that the conduct may be repeated 13. I noted that Mr TEWAO has accumulated several offences of concern during his comparatively short time in Australia, though he has only one breach of a judicial order recorded against him. 14. I took into account the views of the court, which expressed some hope for Mr TEWAO's prospects of rehabilitation, provided he received substantial assistance over a long period. I also took into account that while his record during his recent incarceration contained some infringements of prison discipline, his behaviour in prison was considered generally good, particularly regarding his work. 15. I noted the comments of the court to the effect that Mr TEWAO, as a national of New Zealand, is affected by the limitation of access to certain forms of welfare support in Australia, which might preclude some options for him on probation. 16. I took into account a psychological assessment which found that the risk of Mr TEWAO re-offending was 'low-moderate'. I also took into account that the psychologist found that Mr TEWAO's offending has usually taken place in the context of peer influence and the abuse of alcohol, and that his prospects of avoiding criminal offending in future are accordingly dependent on his ability to avoid such external risk factors. 17. I noted that Mr TEWAO is presently living with his parents and has regular employment. … CONCLUSION 26. I have considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, (2) whether cancelling Mr TEWAO's visa was in the national interest (3) Ministerial Direction 41 under s499 of that Act, as I considered appropriate and (4) all other evidence available to me, including evidence provided by, or on behalf of Mr TEWAO. 27. In reaching my decision, I concluded that, given the nature and seriousness of Mr TEWAO's past offending, it was in the national interest to cancel Mr TEWAO's visa. I found that I could not be confident that that he would not re-offend. Given the serious, violent and unprovoked nature of Mr TEWAO's Aggravated Robbery offence, I considered any further offending by him potentially could be very serious. Consequently, I found that he represents an unacceptable risk of harm to the Australian community. I found that the protection of the Australian community outweighs Mr TEWAO's family links with Australia and any other countervailing factors identified above. 28. Having given full consideration to all of these matters, I decided to exercise my discretion to set aside the Tribunal's decision of 18 May 2011 and to cancel Mr TEWAO's Class TY, Subclass 444 Special Category (Temporary) visa under subsection 501A(2).