WASB v Minister for Immigration and Citizenship

WASB v Minister for Immigration and Citizenship - [2013] FCA 1016 - FCA 2013 case summary — Zoe

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APPLICATION FOR A PROTECTION VISA 5 Following his arrival on Christmas Island, on 28 August 2010 the applicant made a request for refugee status assessment. On 12 October 2010, he was found by the Minister's delegate to be not owed protection as a refugee. 6 On 21 October 2010, the applicant applied for independent merits review of this decision. 7 On 27 January 2012, the independent merits reviewer found the applicant in fact met the criterion for a protection visa as set out in s 36(2) of the Migration Act, and recommended that the applicant be recognised as a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (Convention). 8 Subsequently (in circumstances described further below), on 24 April 2012 the applicant was convicted in the Magistrates Court of Western Australia of the offence of destroying or damaging Commonwealth property, contrary to s 29(1) of the Crimes Act 1914 (Cth) (Crimes Act), by pulling plasterboard from the ceiling of his cell while in detention at the Perth Immigration Detention Centre. This offence was committed on 9 June 2011. The applicant was released by Chief Magistrate Heath on entering into a recognisance in the sum of $1,000 to be of good behaviour for a period of 12 months. 9 As the applicant had entered Australia at Christmas Island, an "excised offshore place", without a valid visa, the applicant was an "offshore entry person" (as such persons were then termed under the Migration Act) who was precluded from making a valid application for a visa unless the Minister personally made a decision under s 46A(2) of the Migration Act that it was in the public interest that he be permitted to do so. On 26 June 2012, the Minister determined that s 46A(1) of the Migration Act did not apply to a protection visa application made by the applicant. Consequently, the applicant was free to make an application for a protection visa and on or about 6 July 2012 did so. 10 On 29 October 2012, however, the Minister exercised his discretion under s 501(1) of the Migration Act to refuse to grant a protection visa to the applicant, notwithstanding the earlier recommendation of the independent merits reviewer, on the ground that the applicant had not satisfied the Minister that he passed the character test (as defined in s 501(6)). Section 501 relevantly provided: (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. … (6) For the purposes of this section, a person does not pass the character test if: … (aa) the person has been convicted of an offence that was committed: (i) while the person was in immigration detention… 11 In his statement of reasons for this decision, the Minister found that the offence for which the applicant was convicted on 24 April 2012 was "serious and the kind of conduct that will not be tolerated while people are in immigration detention" (while noting the applicant's assertion that his offending was due to stress and he was unlikely to re-offend). Further, although the Minister accepted that the applicant did have a well-founded fear of being persecuted in the foreseeable future if he was returned to Iran and that Australia has a non-refoulement obligation under the Convention to the applicant in respect of Iran, the Minister noted that a decision to refuse the applicant a protection visa is not in itself a decision to remove him from Australia. In concluding, the Minister stated that: In reaching my decision I have taken the view that engaging in any criminal behaviour while in immigration detention is serious and the Australian community has an expectation that people who seek to remain in Australia will respect Australia's laws and legal authority, and be of good character. I considered that the consequences of such behaviour in particular cases should also provide a disincentive to others who may be at risk of engaging in criminal behaviour while in immigration detention. … … notwithstanding that [the applicant] is person to whom Australia has protection obligations, his behaviour demonstrated a fundamental disrespect for Australia's laws, standards and authorities and, consistent with the introduction of s501(6)(aa), that behaviour should attract consequences under the Migration Act. 12 About one month later, on 28 November 2012, the Minister, pursuant to s 195A(2) of the Migration Act, granted the applicant a Bridging (Removal Pending) (Subclass 070) visa (bridging visa) with various conditions. In a letter to the applicant advising him of the grant of the visa, the applicant was also informed that the Minister had indicated that he intended to reconsider the applicant's circumstances in December 2014.

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JUDICIAL REVIEW IN THIS COURT 13 By application filed on 10 December 2012 (as amended), the applicant now seeks judicial review of the Minister's decision to refuse to grant the applicant a protection visa. As the decision to refuse to grant a protection visa to the applicant was a "privative clause decision" or "purported privative clause decision" made personally by the Minister under s 501 of the Migration Act, the decision is only reviewable by this Court: s 476A(1)(c) of the Migration Act. The jurisdiction of the Court under s 476A(1)(c) to judicially review the decision of the Minister is the same as the jurisdiction of the High Court under s 75(v) of the Constitution: s 476A(2) of the Migration Act. Accordingly, the application can only succeed if the Minister's decision was tainted by jurisdictional error. 14 The applicant advances the following grounds of review: (1) The exercise of discretion under s 501(1) of the Migration Act was not enlivened because: (a) the term "offence" in s 501(6)(aa) does not, in the context of an application for a protection visa, include an offence of the type for which the applicant was convicted on 24 April 2012; or (b) it was a precondition to the exercise of the discretion that the Minister determine that the risk of future harm to the Australian community by the applicant was unacceptable, and the Minister did not do so. (2) Alternatively, the Minister failed to exercise the discretion under s 501(1) of the Migration Act according to law in that the decision to refuse to grant a protection visa to the applicant: (a) was so unreasonable that no reasonable decision maker could have made it; (b) was not made for the purpose for which the discretion was conferred; (c) was an inflexible application of a policy without a proper consideration of all relevant circumstances; or (d) was made without taking relevant considerations into account. 15 In support of his application, the applicant seeks to rely upon an affidavit affirmed by him on 4 April 2013. The Minister objects to this affidavit being admitted into evidence on the basis that it does not depose to any facts that are probative of whether a jurisdictional error has been committed. The Minister says that the "court book" filed in the proceeding is the only material relevant to the issue of whether there has been jurisdictional error, being the only material upon which the Minister made the impugned decision. 16 At the hearing of the application I noted that I would admit the affidavit into evidence, subject to a ruling on its admissibility. I further noted that depending on the response I made to the parties' submissions on the various grounds of review, the material in the affidavit will or will not be relevant. For the reasons which follow it will be apparent that even if the material in the affidavit is considered relevant (and hence admissible pursuant to s 56(1) of the Evidence Act 1995 (Cth)), which may be considered doubtful, no jurisdictional error on the part of the Minister is made out. 17 The relevant facts deposed to in the affidavit (and which are said to support various of the grounds of review) may, then, briefly be stated: Following the applicant's detention after his arrival on Christmas Island, a doctor at the Christmas Island Immigration Detention Centre recommended that the applicant be transferred to a different compound on the grounds that this compound contained a medical clinic where the applicant was being treated for back pain and that this was where more of his friends were. However, this request was not granted. Later, similar requests by the applicant were also not granted. The applicant was denied an MP3 player and family photographs which he had received from his family in Iran. A few days later the applicant was given a replacement MP3 player, but was still denied the photographs. The applicant asked his case manager for assistance in transferring money to his family in Iran, but was told this was not possible as the applicant did not have a passport. The applicant was forcefully placed in solitary confinement after he was accused of assaulting an officer. While in solitary confinement there was a riot, which resulted in fires and the use of tear gas on the applicant. The applicant felt "very upset and traumatised" by being in solitary confinement during the riot. The applicant had various mental health reviews and consultations while in immigration detention. The applicant was diagnosed with anxiety, depression and post-traumatic stress disorder. While later being transferred to Villawood Immigration Detention Centre and then to Perth Immigration Detention Centre the applicant was handcuffed. The applicant had his mobile phone confiscated while detained at the Perth Immigration Detention Centre. While at this detention centre the applicant was placed in solitary confinement, and denied sufficient food and access to a psychologist and counsellor. The applicant had back pain, was "feeling worse mentally" and was getting increasingly anxious. It was during this solitary confinement that the applicant committed the offence for which he was convicted on 24 April 2012.

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Ground 1(a): the term "offence" in s 501(6)(aa) does not include an offence of the type for which the applicant was convicted 37 When interpreting a provision of a Commonwealth statute, it is, of course, necessary to prefer a construction that would best achieve the purpose or object of the statute (whether or not that purpose or object is expressly stated in the statute): s 15AA of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act). Section 15AA requires the purpose or object to be taken into account even if the meaning of the words, interpreted in the context of the rest of the statute, is clear. That said, the requirement of s 15AA that one construction be preferred to another can have meaning only where two constructions are otherwise open; s 15AA is not a warrant for redrafting legislation nearer to an assumed desire of Parliament: R v L (1994) 49 FCR 534 at 538; see also Mills v Meeking (1990) 169 CLR 214 at 235 (Dawson J). 38 The term "offence" in s 501(6)(aa) of the Migration Act is not defined in that Act. (Nor is it defined in the Crimes Act.) However, in my view there is nothing to indicate that the term carries any meaning other than its ordinary meaning and nor, in my view, is any other construction open - the ordinary meaning of "offence", as defined in the Oxford Dictionary, is "a breach of a law or rule; an illegal act". That is, there need be no recourse to s 15AA of the Acts Interpretation Act in order to construe the meaning of "offence". In any event, in my view this construction of the term "offence" promotes the object of the Migration Act as outlined in s 4. 39 Furthermore, s 15AB(1) of the Acts Interpretation Act provides: (1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or (b) to determine the meaning of the provision when: (i) the provision is ambiguous or obscure; or (ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable. 40 Pursuant to s 15AB(2), the material that may be considered in accordance with subsection (1) includes any second reading speech relating to the Bill containing the provision in question. 41 As noted by the Minister, when one has regard to extrinsic material relevant to s 501(6)(aa) of the Migration Act, it is apparent that the term "offence" in this paragraph does carry its ordinary, unrestricted meaning. For example, in the second reading speech in the House of Representatives on the Bill which became the Migration Amendment Act (which inserted s 501(6)(aa) of the Migration Act), the responsible Minister noted: The purpose of this bill is to ensure that a visa applicant or holder will fail the character test should they be convicted of any offence committed while they are in immigration detention… … Among other things, section 501 of the Migration Act currently deals with matters that constitute serious criminal offences where a person can fail the character test … The proposed measures will amend the character test in section 501 of the Migration Act so that a person will fail the character test if the person is convicted of any offence while they are in immigration detention, regardless of the sentence imposed. (Emphases added) See House of Representatives Hansard, 11 May 2011, pp 3509-3510. See also Senate Hansard, 14 June 2011, pp 2589-2591. 42 Finally, as the Full Court held in Cheedy v Western Australia [2011] FCAFC 100; (2011) 194 FCR 562 at [106]-[107]: … neither logic nor the judgment in [Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273] support the use of Australia's international obligations in the interpretation of the provisions under consideration in the absence of any ambiguity in the language of the provisions. If a provision has a clear meaning then that meaning either reflects Australia's international obligations or it does not. There is no scope for the application of any canon of construction to establish the meaning. But where there is more than one possible meaning of the provision, the canon of construction favouring Australia's international obligations is available to identify the intended meaning. In other words, the canon of construction only has work to do where the provision is open to more than one interpretation. 43 As outlined, in my view there is no ambiguity in the meaning of s 501(6)(aa) of the Migration Act. Therefore, contrary to the applicant's submission, there should be no recourse to Australia's international obligations under the Convention in interpreting this provision. 44 The result is that the applicant's conviction under s 29(1) of the Crimes Act was a conviction for an "offence" for the purposes of s 501(6)(aa) of the Migration Act (and which was committed while the applicant was in immigration detention). Consequently, the Minister's discretion under s 501(1) of the Migration Act was enlivened. 45 Ground 1(a) therefore fails.

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Ground 2(a): Minister's decision was so unreasonable that no reasonable decision maker could have made it 50 The most recent exposition of the law in relation to the judicial review ground of "unreasonableness" in administrative decision making was provided by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 297 ALR 225 (Li). In Li, a unanimous High Court (albeit in three separate judgments) held that a decision of the Migration Review Tribunal to refuse an application for an adjournment of a merits review hearing (which adjournment was sought for the purpose of awaiting the receipt of material probative of a criterion relevant for the issue of the relevant visa) was so "unreasonable" as to constitute jurisdictional error. 51 At [68], the plurality (Hayne, Kiefel and Bell JJ) commented that "[t]he legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it" (but cf French CJ at [28], Gageler J at [88]-[89]). Rather, their Honours considered, at [76], that "[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification". In this sense, the applicant's formulation of this ground of review, drafted as it was before the handing down of Li, is perhaps more restrictive than it needed to be. Notwithstanding, I will determine the ground of review on the basis of the most recent exposition of the law. 52 The applicant complains that the Minister's decision to refuse to grant him a protection visa was unreasonable having regard to Australia's obligations under art 32 and art 33 of the Convention, and the circumstances surrounding his conviction under s 29(1) of the Crimes Act. The question is, then, did the Minister's decision lack an evident and intelligible justification having regard to these matters? 53 The first point to note is that the decision to refuse to grant the applicant a protection visa was not a decision to remove the applicant from Australia in breach of art 32 of the Convention (nor a decision which offended the non-refoulement obligation in art 33): MZYYO at [68]-[69]. 54 Secondly, in my view it may reasonably be inferred that the Minister did have regard to the circumstances surrounding the applicant's conviction. For the purposes of considering the applicant's application for a protection visa, an Issues Paper was prepared for the Minister by the Department of Immigration and Citizenship (Department). Importantly, this Issues Paper specifically noted: A submission made on behalf of the applicant that Chief Magistrate Heath did not regard the applicant's conviction as particularly serious. The full text of this submission, as well as the order of Chief Magistrate Heath and the transcript of the proceeding, was attached to the Issues Paper. Under a sub-heading titled "Mitigating Factors", submissions made on behalf of the applicant in relation to the extenuating circumstances surrounding the applicant's conviction under s 29(1) of the Crimes Act (albeit not to the same level of detail as in the applicant's affidavit). The full text of this submission was attached to the Issues Paper. That there is no evidence of the applicant breaching any judicial orders and that he pleaded guilty to the offence under s 29(1) of the Crimes Act. 55 In his statement of reasons, the Minister specifically noted that he had assessed the information set out in the Issues Paper and attachments. Furthermore, that he had "considered all relevant matters including … all other evidence available to me, including evidence provided by, or on behalf of [the applicant]". 56 The fact that a person fails to satisfy the Minister that he or she passes the character test triggers the Minister's discretion under s 501(1) of the Migration Act. Given my findings in relation to grounds 1(a) and 1(b) of the application, this discretion was triggered. As outlined above, the Minister considered: Australia's non-refoulement obligations to the applicant; the fact that it was his view that engaging in any criminal behaviour while in immigration detention is serious and the Australian community has an expectation that people who seek to remain in Australia will respect Australia's laws and legal authority, and be of good character; that the consequences of such behaviour in particular cases should also provide a disincentive to others who may be at risk of engaging in criminal behaviour while in immigration detention; as well as the circumstances surrounding the applicant's conviction, before concluding that his discretion should be exercised to refuse to grant the applicant a protection visa. Clearly, this decision was (legitimately) informed by considerations of policy: Li at [108] (Gageler J). In such circumstances, I do not agree that this decision lacked an evident and intelligible justification. The decision was rationally open to the Minister; it was not arbitrary: Li at [30] (French CJ). 57 Lastly, in one of the particulars to this ground of review, the applicant contends that: [T]he consequences of the refusal of the application for a protection visa were so disproportionate to the conduct which gave rise to the applicant's conviction, considered in its circumstances, that the exercise of discretion was manifestly unreasonable. 58 In Australia, the role of the concept of "proportionality" in considering whether a decision is so unreasonable as to constitute jurisdictional error is not settled: Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 at [12]; James v Military Rehabilitation and Compensation Commission [2010] FCAFC 95; 186 FCR 134 at [41]. This position may become clearer in light of Li, in which several members of the High Court appeared to consider that a disproportionate exercise of an administrative discretion may indicate unreasonableness: Li at [30] (French CJ), [74] (Hayne, Kiefel and Bell JJ). In any event, for the reasons outlined, I do not consider that, in this case, the Minister's decision to refuse to grant the applicant a protection visa was a disproportionate exercise of his power under s 501(1) of the Migration Act. 59 Ground 2(a) therefore fails.

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Ground 2(b): improper purpose to the making of the decision 60 In Applicant M 117, Kenny J commented, at [45], that an essential purpose of a power such as s 501(3) of the Migration Act is to regulate the entry into, and presence in, Australia of non-citizens. Section 501(3) is similar to s 501(1) and s 501(2) (which relates to cancellation of visas on character grounds), except that in decisions under subsection (3) the Minister only has to reasonably suspect that a person does not pass the character test (which is also a requirement under subsection (2)), the rules of natural justice and the code of procedure set out in Subdiv AB of Div 3 of Pt 2 do not apply, a decision may only be made by the Minister personally, and the Minister must be satisfied that the refusal or cancellation of a visa is in the national interest. Accordingly, it may be taken that an essential purpose of s 501(1) of the Migration Act is also to regulate the entry into, and presence in, Australia of non-citizens. 61 In this case, the purpose of the Minister's exercise of power under s 501(1) on 29 October 2012 was to regulate the presence in Australia of the applicant. The effect of the Minister's decision was for the applicant to remain in immigration detention (until, on 29 November 2012, the Minister granted the applicant a bridging visa). This decision under s 501(1) was made by reference to the very kind of matter to which the provision directs attention; namely, that the applicant had not satisfied the Minister that he passed the character test: Applicant M 117 at [45]. 62 Accordingly, given there was a probative basis for the decision, it is not open to the Court to second-guess the Minister in this regard and, in so doing, impute an improper purpose: Applicant M 117 at [48]. 63 In any event, in my view neither the reasons that the Minister gave for refusing to grant the applicant a protection visa nor any subsequent conduct by the Minister provide any sufficient basis for an inference of improper purpose: Applicant M 117 at [48]. In particular, I reject the applicant's submission that the purposes of the Minister's decision were: (1) to provide a disincentive for others who may be contemplating engaging in criminal behaviour while in immigration detention; (2) to require the applicant to demonstrate good character over a period of two years out of immigration detention before deciding whether to permit the applicant to make a further application for a protection visa; and (3) to attempt to avoid Australia's obligations under art 32 and art 33 of the Convention. 64 In my view, on a fair reading of the Minister's statement of reasons the first of these alleged "purposes" should properly be construed as a consequence of the Minister's decision or, at best, a component of his reasoning. 65 In regard to the second of these alleged "purposes", it is true that the possibility of the applicant being granted a bridging visa in the event he was refused a protection visa was alluded to as "alternative management option" in a submission by the Department to the Minister regarding the applicant's application for a protection visa. However, absent further evidence to support this contention, in my view the Court should not second-guess the Minister and impute an improper purpose (if indeed this purpose would be improper): Applicant M 117 at [48]. Rather, in my view this alleged "purpose" should properly be construed as simply a consequence of the grant of the bridging visa. 66 In regard to the third of these alleged "purposes", as noted above, the decision to refuse to grant the applicant a protection visa was not a decision to remove the applicant from Australia in breach of art 32 of the Convention (nor a decision which offended the non-refoulement obligation in art 33): MZYYO at [68]-[69]. Accordingly, I would reject this particular submission by the applicant. 67 Ground 2(b) therefore fails.

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Ground 2(c): inflexible application of a policy 68 Without making a finding on the issue, it may be assumed, for the purpose of taking the applicant's case at its highest, that what the applicant characterises as the Minister's stated view that engaging in any criminal behaviour while in immigration detention was sufficient reason, without more, to refuse the applicant a protection visa is a "policy" in an administrative law sense. The question is, then, was this policy inflexibly applied without regard to the merits of the applicant's case? 69 In this regard, it is worth noting the particulars to this ground of review. Under the first particular, the applicant complains that the Minister took the view that engaging in criminal behaviour while in immigration detention was sufficient reason, without more, to refuse the applicant a visa under s 501(1) of the Migration Act. Under the second particular, the applicant complains that the Minister did not have regard to the following facts: 1. The applicant's conviction was in relation to a relatively trivial act, occurring in extenuating circumstances; 2. At the time the act was done the applicant was suffering from depression, post traumatic stress disorder and anxiety, which had been aggravated by the applicant's treatment while in immigration detention; 3. The applicant's conviction followed the applicant's plea of guilty; 4. in the 15 months between the applicant's act and the respondent's decision, the applicant had remained in immigration detention and had not committed any other offence. 70 In his written submissions, the applicant contends that these facts were contained in a submission from the applicant's migration agent to the Department dated 10 September 2012. 71 However, in my view a fair reading of the Minister's statement of reasons indicates that the Minister did have regard to the "extenuating circumstances" surrounding the applicant's conviction under s 29(1) of the Crimes Act (that is, the merits of the applicant's case), and so did not inflexibly apply a policy. 72 In the statement of reasons, under the heading "Discretion", the Minister stated: Having found that [the applicant] does not pass the character test and having assessed the information set out in the Issues Paper and attachments, I considered whether to exercise my discretion to refuse to grant [the applicant] a visa. (Emphasis added) 73 One of the attachments to this Issues Paper was the submission from the applicant's migration agent dated 10 September 2012. Therefore, contrary to the applicant's contention as regards this submission, it may reasonably be inferred that the Minister did, in fact, consider the material within it. 74 Furthermore, as outlined in part above, the Issues Paper itself specifically noted: A submission made on behalf of the applicant that Chief Magistrate Heath did not regard the applicant's conviction as particularly serious. The full text of this submission, as well as the order of Chief Magistrate Heath and the transcript of the proceeding, was attached to the Issues Paper. Under a sub-heading titled "Mitigating Factors", submissions made on behalf of the applicant in relation to the extenuating circumstances surrounding the applicant's conviction (albeit not to the same level of detail as in the applicant's affidavit). The full text of this submission was attached to the Issues Paper. That there is no evidence of the applicant breaching any judicial orders and that he pleaded guilty to the offence under s 29(1) of the Crimes Act. That the applicant has no recorded convictions in Australia or in Iran apart from the conviction under s 29(1) of the Crimes Act. 75 Then, as noted above, in the statement of reasons the Minister specifically noted: that the applicant failed the character test in s 501(6) of the Migration Act; that the applicant's criminal conduct is "serious and the kind of conduct that will not be tolerated while people are in immigration detention"; the applicant's migration agent's assertion that the applicant's offending was due to stress and that he is unlikely to re-offend; and Australia's non-refoulement obligations to the applicant; before concluding that his discretion should be exercised to refuse to grant the applicant a protection visa. 76 In such circumstances, it cannot, in my view, be said that the Minister inflexibly applied a policy without regard to the merits of the applicant's case. 77 Ground 2(c) therefore fails.

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