Uriaere v Minister for Home Affairs

The mandatory revocation of Mr Uriaere's visa 7 On 17 February 2017, while Mr Uriaere was serving a term of imprisonment for, amongst other things, the offence of aggravated break and enter, Mr Uriaere's visa was cancelled by a delegate of the Minister for Home Affairs. The cancellation of Mr Uriaere's visa was a mandatory cancellation pursuant to s 501(3A)(a)(i) of the Migration Act 1958 (Cth), a particularly harsh and uncompromising provision which was inserted into the Act in December 2014. The cancellation of Mr Uriaere's visa was mandatory because he had been sentenced to a term of imprisonment for 12 months or more and therefore had a "substantial criminal record", as defined in s 501(7)(c) of the Act. He accordingly did not pass the "character test", as provided for in s 501(6) of the Act. There was and is no dispute that Mr Uriaere failed the character test in the Act.

The decision not to revoke the cancellation 8 The Minister may revoke the mandatory cancellation of a visa under s 501(3A). It would be interesting to see how many times that power, which is found in s 501CA of the Act, has been exercised. It was not exercised in Mr Uriaere's case. 9 Under the terms of s 501CA(3), the Minister was required to give Mr Uriaere particulars of "relevant information", which was defined in s 501CA(2) as including information that "would be the reason, or a part of the reason, for making the original decision" and invite Mr Uriaere to make representations about the revocation of the original decision. The Minister complied with his obligations under s 501CA(3) and Mr Uriaere made representations to the Minister concerning the revocation of the original cancellation decision. On 13 July 2017, however, a delegate of the Minister decided not to revoke the cancellation.

The Tribunal's review of the refusal to revoke the cancellation 10 Mr Uriaere subsequently applied to the Administrative Appeals Tribunal for a review of the decision not to revoke the cancellation of his visa. He was able to do so by virtue of s 500(1)(ba) of the Act. 11 Mr Uriaere's review application in the Tribunal was successful. On 4 October 2017, Deputy President Rayment, having considered the facts and circumstances of Mr Uriaere's case and applied the directions made by the Minister under s 499 of the Act, decided that the preferable decision was to revoke the cancellation of Mr Uriaere's visa under s 501CA(3). 12 Two points should perhaps be emphasised, if only because they are potentially relevant to the arguments that have been raised on Mr Uriaere's behalf in this proceeding. 13 The first point is that the Tribunal specifically addressed the question whether Mr Uriaere was likely to reoffend. It considered the views of the judge who had sentenced Mr Uriaere in respect of his most recent offending and heard evidence from Mr Uriaere in respect of that issue. The Tribunal referred to Mr Uriaere's completion of an intensive drug and alcohol program while he was incarcerated and noted that his drug use had been in remission for the better part of two years. Mr Uriaere told the Tribunal that he was determined to maintain his drug-free status. The Tribunal nevertheless found that "the possibility of his [Mr Uriaere's] reoffending is undeniable". 14 The second point is that the Tribunal gave primary consideration to the best interests of Mr Uriaere's three younger siblings, each of whom was a minor. The Tribunal heard evidence from those siblings, as well as from Mr Uriaere, in relation to Mr Uriaere's relationship with them. The Tribunal had no doubt that Mr Uriaere would, if allowed to remain in Australia, "continue to play a positive role in their lives" and that, if he were removed, "the three minor children would suffer and probably for a long time continue to suffer real pain". The Tribunal's ultimate decision reflected the fact that it considered that the interests of the three minor children effectively outweighed all other considerations that may have weighed against the cancellation of the revocation decision. 15 The faint glimmer of hope that Mr Uriaere may have experienced after the Tribunal's decision was short-lived.

The Minister sets aside the Tribunal's decision 16 The Minister has the power to set aside a decision made by the Tribunal to revoke the cancellation of a visa under s 501CA if satisfied that the cancellation of the visa is in the national interest. That power, which is found in s 501BA(2) of the Act, may only be exercised by the Minister personally. Section 501BA(3) provides that the rules of natural justice do not apply to the making of such a decision. Some may think that rather extraordinary. 17 On 9 January 2018, the Minister set aside the Tribunal's decision and cancelled Mr Uriaere's visa. The Minister provided a detailed Statement of Reasons which set out his reasons for his decision. The Reasons recorded that the Minister was satisfied that Mr Uriaere did not pass the character test and that the Minister had concluded that it was in the national interest to cancel Mr Uriaere's visa. The Minister's conclusions in relation to the national interest were summarised in the following terms (Reasons at [84]-[86]): Overall, I find that there is an ongoing likelihood that Mr URIAERE will continue to engage in criminal conduct. Given his past serious offending, particularly that involving violence, if Mr URIAERE were to commit further violent offences it would put members of the community at risk of physical or psychological harm. If Mr URIAERE were to commit any other offending it will also impose further costs upon the community associated with law enforcement and the administration of justice. In sum, having regard to the above, including the seriousness and nature of his criminal history and the risk to the Australian community, were he to re-offend, I conclude that those matters are of such seriousness that it is in the national interest to cancel Mr URIAERE's visa. 18 The Reasons also record that the Minister recognised that his decision was discretionary and set out, in considerable detail, the considerations to which he had regard in exercising the discretion in the way he did. The discretionary considerations included: the best interests of minor children; the expectations of the Australian community; the strength, nature and duration of Mr Uriaere's ties to Australia; and the extent of any "impediments" if Mr Uriaere was removed. The Reasons reveals that the Minister accepted that the best interests of Mr Uriaere's three minor siblings would be "best served" by not cancelling his visa. 19 Unfortunately for Mr Uriaere, however, the Minister found that he "could not rule out the possibility of further criminal conduct by Mr Uriaere" and that the "Australian community should not tolerate the risk of further harm he poses": Reasons at [149]. The Minister ultimately reasoned that Mr Uriaere represented an "unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations": Reasons at [152].

This Court's limited jurisdiction 20 This Court has original jurisdiction to grant relief in relation to decisions made by the Minister pursuant to s 501BA: s 476A of the Act; s 39B of the Judiciary Act 1903 (Cth). That jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution. Relief can only be granted when jurisdictional error has been established. It is well-established that the Court's jurisdiction in relation to decisions by the Minister to cancel a person's visa is strictly supervisory; the question is whether the Minister's exercise of power was lawful. It is not an appellate procedure enabling either a general review of the decision, or a substitution of the decision with one which the Court thinks the Minister should have made: Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [23]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66]. 21 An application for relief under s 476A of the Act must be made within 35 days of the date of the decision, though the Court may extend that period if an application for an extension is made and the Court is satisfied that it is necessary in the interests of the administration of justice to make the order: s 477A(2) of the Act.

Mr Uriaere's extension of time application 22 Mr Uriaere sought to engage the Court's jurisdiction and challenge the Minister's decision to cancel his visa. He was, however, unable to file an application under s 476A of the Act within the 35-day time limit. That was mainly a result of the fact that he was incarcerated, had no or limited access to legal advice, and was moved between correctional facilities at or around the time by which the application was required to be filed. He eventually filed an application for an extension of time pursuant to s 477A(2) of the Act on 22 March 2018. 23 Fortunately for Mr Uriaere, he was able to secure pro bono legal representation. He filed an affidavit explaining why he was unable to file an application within the time limit. The Minister did not challenge that explanation and, quite fairly and reasonably, did not oppose Mr Uriaere being granted an extension of time. In all the circumstances, including Mr Uriaere's explanation and the Minister's non-opposition, the Court was satisfied that it was necessary in the interests of justice to make an order extending the 35-day time limit. 24 The hearing of Mr Uriaere's application proceeded on the basis that it was the hearing of Mr Uriaere's substantive application under s 476A of the Act.

Mr Uriaere's challenge to the Minister's cancellation decision 25 The precise basis of Mr Uriaere's challenge to the Minister's decision was not apparent from his application. Ultimately, however, his case was articulated in written submissions filed by pro bono counsel on his behalf. His arguments were further developed orally in submissions made on his behalf at the hearing. 26 Mr Uriaere contended, through his counsel, that the Minister acted unreasonably in deciding to cancel his visa. The decision was said to be unreasonable, in the legal sense, because the Minister failed to give any, or any genuine and realistic, consideration to certain matters that he was required to consider in determining what was in the national interest. More broadly, it was contended that the Minister did not act reasonably in satisfying himself that it was in the national interest to cancel Mr Uriaere's visa. 27 It is well-established that an administrative decision-maker can be said to have acted unreasonably, in the legal sense, and to therefore have failed to properly exercise their jurisdiction, if they failed to "obey rules requiring proper application of the law, consideration of mandatory relevant matters and exclusion from consideration of irrelevant matters": Li at [27] (French CJ) referring to the observations of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229. It has also been said, in the context of a decision which requires the decision-maker to be satisfied as to a state of affairs, that the decision-maker must attain that satisfaction reasonably: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [73] (Gleeson CJ and Gummow J). 28 While the specific errors which were said to compel the conclusion of legal unreasonableness were put in various ways in the submissions advanced on behalf of Mr Uriaere, his case ultimately came down to two main contentions. 29 First, it was contended that the Minister was required to, but did not, take into account the fact that Mr Uriaere's family were Australian citizens. Mr Uriaere contended that, in considering the national interest, the Minister was required to consider the effect of the decision to cancel his visa would have on Australian citizens. That included members of his family. In Mr Uriaere's submission, citizenship involves particular obligations on the part of the State to the individual. In that regard, Mr Uriaere relied on the following observations of Gaudron J in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 304: Citizenship involves more than obligations on the part of the individual to the community constituting the body politic of which he or she is a member. It involves obligations on the part of the body politic to the individual, especially if the individual is in a position of vulnerability. And there are particular obligations to the child citizen in need of protection. So much was recognised as the duty of kings, which gave rise to the parens patriae jurisdiction of the courts. No less is required of the government and the courts of a civilised democratic society. 30 Second, Mr Uriaere contended that the Minister did not consider, or did not give any genuine and realistic consideration to, certain reports or other information that was relevant to Mr Uriaere's rehabilitation. In Mr Uriaere's submission, the Minister failed to have regard to the findings of the sentencing judge, when sentencing Mr Uriaere for the offence of aggravated break and enter, that there was a "real prospect of rehabilitation" if Mr Uriaere followed the recommendations of the forensic psychiatrist whose report had been tendered in the sentence proceedings. The point that appeared to be made in oral submissions was that the Minister did not have regard to the fact that Mr Uriaere had followed the psychiatrist's recommendations. The Minister was also said to have failed to have regard to the fact that Mr Uriaere had completed an intensive drug and alcohol treatment program. Those matters, in Mr Uriaere's submission, contradicted the Minister's finding that there was an ongoing likelihood that Mr Uriaere would continue to engage in criminal conduct and that he therefore posed a risk to the Australian community.

The merits of Mr Uriaere's challenge to the Minister's decision 31 Allegations that a decision was made unreasonably, including allegations that the decision was unreasonable because the decision-maker failed to give genuine or realistic consideration to relevant matters, frequently amount to little more than "an impermissible attack on the merits of the decision": Jia Legeng at [73] (Gleeson CJ and Gummow J), referring to what was said by Brennan J in Foley v Padley (1984) 154 CLR 349 at 370. Despite the valiant efforts of Mr Uriaere's counsel to persuade the Court otherwise, when closely analysed, that is what Mr Uriaere's complaints ultimately amounted to.

Failure to consider citizenship 32 There are a number of difficulties with Mr Uriaere's contention that the Minister was required to, but did not, give any consideration to the fact that members of Mr Uriaere's family were Australian citizens. 33 First, it does not appear that Mr Uriaere gave any particular prominence or significance to the fact that some of his siblings were, or may have been, Australian citizens in the material he provided to the Minister's Department and the Tribunal in support of his application that the original cancellation decision be revoked. Indeed, the citizenship status of his siblings was relatively unclear on the materials. The oldest of Mr Uriaere's sisters, who, like Mr Uriaere himself, was born in the Cook Islands, does not appear to have been an Australian citizen. His other siblings may have been citizens by virtue of being born in Australia and having been ordinarily resident in Australia for a period of 10 years since birth: s 12(1)(b) Australian Citizenship Act 2007 (Cth). It is, however, at best unclear whether Mr Uriaere knew that his siblings were citizens on that basis. In any event, there is nothing to suggest that he clearly drew that to the attention of either the Minister's Department when applying to have the original cancellation decision revoked, or the Tribunal in support of his application for review. It is, in those circumstances, not at all surprising that the Minister did not specifically advert to the citizenship of Mr Uriaere's siblings in his reasons for setting aside the Tribunal's decision. 34 Second, Mr Uriaere did not go so far as to contend that that the citizenship of some of his siblings was a mandatory relevant consideration in the Minister's exercise of his discretion under s 501BA. Nor is there any sound basis for finding that the citizenship of Mr Uriaere's siblings was a mandatory relevant consideration. The Minister's discretion to set aside a decision of the Tribunal under s 501BA is enlivened once the Minister is satisfied that the cancellation is in the national interest. The considerations that the Minister can have regard to in considering the broad criterion of "national interest" are essentially undefined and unconfined. Similarly, once the discretion is enlivened, it is not expressly circumscribed or confined. There is nothing in the subject matter, scope and purpose of the Act to suggest that an obligation to consider a matter such as the citizenship of members of the visa holder's family should be implied in relation to the exercise of power under s 501BA: cf. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. 35 Third, Mr Uriaere's contention that the Minister's decision was legally unreasonable because he did not have regard to the citizenship of his siblings is equally problematic. If the Minister was not relevantly bound to have regard to the citizenship of Mr Uriaere's siblings, it is difficult to see why the fact that he did not expressly have regard to that matter would alone necessarily make his exercise of discretion legally unreasonable. 36 Fourth, the Minister undoubtedly gave detailed consideration to the interests of Mr Uriaere's siblings and the impact that the revocation of Mr Uriaere's visa would have on them. In particular, the Minister accepted that Mr Uriaere's younger siblings were unlikely to relocate to New Zealand if he was removed, formed the view that it was in the best interests of Mr Uriaere's younger siblings if his visa was not cancelled, and treated that as a primary consideration: Reasons at [99], [101], [104]. In those circumstances, even accepting the force of the dicta of Gaudron J in Teoh referred to earlier, it is difficult to see why the fact that those siblings were Australian citizens would or could have made any difference to the exercise of the discretion. It is equally difficult to see how or why the Minister's decision could be said to be unreasonable simply because he did not have regard to the citizenship of the siblings.

Failure to consider material relating to rehabilitation 37 Mr Uriaere's submissions based on some of the material that was before the sentencing judge relevant to rehabilitation are even more problematic. 38 The Minister undoubtedly gave close and detailed consideration to the judgment of the sentencing judge and his Honour's consideration of the prospects of rehabilitation. The sentencing judgment was before the Minister and there is plainly no basis for finding that he did not read or consider that judgment. The judgment refers to the forensic psychiatrist's report. While the report itself was not before the Minister, the Minister was entitled to rely on what the sentencing judge said about it. The Minister noted that the psychiatrist's evidence before the sentencing judge was that she was optimistic about the prospects of Mr Uriaere's rehabilitation and that she had recommended a management plan. The Minister also noted the sentencing judge's view that "there is a real prospect of rehabilitation but only after [Mr Uriaere] pursues those treatment recommendations will it be known as to whether or not he can overcome the extent of his drug problems which then, hopefully, will lead to a lack of likelihood of recidivism". 39 In oral submissions at the hearing, it was contended that the Minister failed to have regard to the fact that Mr Uriaere had complied with the psychiatrist's recommendations. The factual basis for that contention was and is unclear. It may be that the submission was based on the fact that there was information before the Minister which suggested that Mr Uriaere had completed an intensive drug and alcohol treatment program. The difficulty for Mr Uriaere's submissions based on his completion of that program, however, is that it is clear that the Minister had regard to the fact that Mr Uriaere had completed it. The Minister also accepted that Mr Uriaere's completion of the program "may reduce his risk of drug-related offending": Reasons at [57]. 40 The submission that was ultimately advanced on Mr Uriaere's behalf was that it could be inferred from the Minister's finding that "there is an ongoing likelihood that Mr Uriaere will continue to engage in criminal conduct" that he did not give proper, genuine and realistic consideration to the significance of Mr Uriaere having completed the intensive rehabilitation course: Reasons at [84]. When pressed, however, counsel for Mr Uriaere conceded that she could not go so far as to submit that the Minister's finding was not reasonably open. That concession was properly and reasonably made. 41 The information that was before the Minister, in particular in relation to Mr Uriaere's past offending, was such that the conclusion reached by the Minister concerning the likelihood of Mr Uriaere reoffending was at least reasonably open. It may be noted, in that regard, that the Tribunal also found that "the possibility of his [Mr Uriaere] re-offending was undeniable" and that the "past offending of [Mr Uriaere] produces the risk that he will reoffend". While the Tribunal went on to note that it did not find that it was more likely than not that Mr Uriaere would reoffend, that simply demonstrates that reasonable minds might differ as to the extent of the risk that Mr Uriaere would reoffend. 42 The contention that the Minister failed to have regard to the fact that Mr Uriaere had complied with the psychiatrist's recommendations and had completed the intensive drug and alcohol treatment program has no proper basis and is rejected. So too is the contention that the Minister failed to give those matters proper, genuine and realistic consideration. Allegations that an administrative decision-maker failed to give a matter proper, genuine and realistic consideration are "apt to cause a slide into impermissible merits review": Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [22]; Belmorgan Property Development Pty Ltd v GPT RE Ltd (2007) 153 LGERA 450; [2007] NSWCA 171 at [76]-[77]. That was the case here. 43 Finally, it should also be emphasised that, even if there was some merit in the submission that the Minister failed to have regard to these considerations when assessing the likelihood of Mr Uriaere reoffending, it would not necessarily follow that the Minister erred in any jurisdictional sense. That is because the Minister was not bound to have regard to them. As was noted earlier in the context of the contention that the Minister failed to have regard to the citizenship of Mr Uriaere's siblings, there is nothing in the subject matter, scope or purpose of the Act to suggest that an obligation to consider any such factual matters should be implied in relation to the exercise of power under s 501BA of the Act. 44 It also follows that, even if the Minister did fail to have regard to these considerations, his decision could not be said to be legally unreasonable on that basis alone. A decision could scarcely be said to be legally unreasonable simply on the basis that the decision-maker did not have regard to a consideration that he or she was not in any event bound to consider.

Legal unreasonableness generally 45 There were some suggestions in the submissions advanced on behalf of Mr Uriaere that the outcome of the Minister's decision - essentially the removal of Mr Uriaere to New Zealand, the country of his citizenship - was illogical, irrational and unreasonable. To the extent that any such submission was made, it is rejected. 46 A decision can be considered to be "legally unreasonable" if its outcome appears to be illogical, irrational, arbitrary, capricious, without common sense or plainly unjust: Li at [28]; Minister for Immigration and Border Protection v Singh (2014) 231 FR 437 at [44]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [129]-[131]. It might also be legally unreasonable if there is no evident, transparent or intelligible justification for it in the decision-making process or reasons: Li at [105], Singh at [44]-[45]. In assessing whether a particular outcome is unreasonable, however, it is necessary to bear in mind that there is an area of "decisional freedom" within which a decision-maker has a genuinely free discretion and within which reasonable minds might differ as to the outcome. Decisions made within that area of decisional freedom cannot be said to be legally unreasonable: Li at [28], [66]. The area of decisional freedom is determined by construing the relevant statutory power: Li at [24], [67]. 47 While reasonable minds could no doubt differ as to whether, in all the circumstances, the cancellation of Mr Uriaere's visa was in the national interest and was the preferable decision, it could not be said that the Minister's decision to set aside the Tribunal's decision and cancel Mr Uriaere's visa was illogical, irrational, arbitrary, capricious or plainly unjust. Nor could it be concluded that there was no evident, transparent or intelligible justification for the decision. While many people might disagree with them, the Minister's Reasons could not be said to be illogical or irrational. Nor could the outcome be said to be arbitrary or capricious. 48 As for whether the decision could be said to be "plainly unjust", the subject matter, scope and purpose of the Act, and s 501BA in particular, would tend to suggest that the area of decisional freedom in relation to decisions under s 501BA is very broad indeed. While many decision-makers would not have made the same decision as the Minister, as perhaps evidenced by the Tribunal's decision, it cannot be concluded that the Minister's decision was outside the area of decisional freedom. It accordingly could not be said to be plainly unjust. 49 In Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, the Full Court said (at [103]): Parliament has entrusted the power to cancel a visa on character grounds under s 501(2) of the Act to the Minister. Where the Minister exercises that power personally, Parliament has expressly provided for no merits review of that decision, unlike the situation which prevails if the decision is made by the Minister's delegate. In such circumstances, the Court must be astute to ensure that it is not seen to engage in a form of impermissible merits review under the guise of the legal unreasonableness ground of judicial review. In such circumstances, one would expect (consistently with the observation of Gageler J in Li at [113]) that in the case of decisions made by the Minister personally, intervention on the ground of legal unreasonableness would be fairly rare and would only occur in relatively clear cases. This was not such a case. 50 The same applies to the Minister's exercise of power under s 501BA of the Act. This is not one of those rare cases where the stringent test of legal unreasonableness has been made out.

Conclusion and disposition 51 The time within which Mr Uriaere be permitted to file an application under s 476A of the Act should be extended to 22 March 2018. His application for an extension of time should be taken to be his originating application and the grounds of his application should be taken to be the grounds set out in paragraph 6 of the written submissions filed by his counsel on 9 July 2018. 52 Mr Uriaere failed to establish any jurisdictional error on the part of the Minister in respect of his decision to set aside the decision of the Tribunal and cancel Mr Uriaere's visa. Mr Uriaere's substantive application must accordingly be dismissed with costs. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.