Wehi v Minister for Immigration and Border Protection

1. The application is dismissed.
2. The applicant pay the respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

RANGIAH J: 1 This is an application under s 476A of the Migration Act 1958 (Cth) (the Act) for review of a decision made by the Minister for Immigration and Border Protection (the Minister) refusing to revoke a decision to cancel the applicant's visa. 2 The applicant is a citizen of New Zealand. He has lived in Australia for some 36 years, having arrived at the age of 18 months. On 29 November 2013, he was convicted of an offence of trafficking in dangerous drugs and was sentenced to imprisonment for four years, six months and one week. 3 Under s 501(3A) of the Act, the Minister must cancel a visa if satisfied that the visa holder does not pass the character test because, relevantly, the visa holder has been sentenced to a term of imprisonment of 12 months or more. The Minister cancelled the applicant's visa on 29 September 2016. The applicant was notified of the cancellation decision and invited to make representations about its revocation. 4 Section 501CA(4) of the Act provides: (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 5 The applicant made representations to the Minister. On 28 February 2017, the Minister decided not to revoke the decision to cancel the applicant's visa. The Minister was not satisfied that the applicant passed the character test or that there was another reason why the cancellation decision should be revoked. 6 The Minister provided a statement of reasons for his decision. The Minister noted that the reasons articulated by the applicant as to why the cancellation decision should be revoked included: the best interests of his minor child; his strong and long-standing ties to Australia; emotional, financial and practical hardship to his partner and family; the support he has from his family in Australia; his remorse; the sexual abuse he suffered as a child; and his drug addiction and the hardship he would suffer in the event of his removal to New Zealand. The Minister also noted that the applicant had indicated that, with some support, he would not be a risk to the community. 7 The Minister said that the Australian community may afford a high tolerance of criminal conduct for someone like the applicant who has lived in Australia for most of his life. 8 The Minister concluded that the best interests of the applicant's minor child and his nine nieces and nephews favoured cancellation of the revocation decision. 9 The Minister noted that the applicant's partner is an Australian citizen. He accepted that the applicant's partner would suffer significant emotional, financial and practical hardship if the decision were not revoked. 10 The Minister noted that the applicant has a large extended family in Australia, including his parents and siblings. The Minister concluded that the applicant's parents would experience emotional and practical hardship and his siblings would experience emotional hardship if the decision were not cancelled. Further, he has other close relationships in the community and a non-revocation decision would also involve emotional distress for those persons. The Minister stated that he found that the applicant had been making a positive contribution to the community for some years. 11 The Minister stated that he had regard to the impediments that the applicant would face if removed to New Zealand. He noted that the applicant had a history of drug abuse and medical issues including sciatica, Hepatitis C and asthma. The Minister found that treatment for such problems is available in New Zealand. The Minister noted that the applicant has no friends, family or support in New Zealand, but said that New Zealand is culturally and linguistically similar to Australia and has comparable standards of healthcare, education and social welfare support. Nevertheless, the Minister found that not revoking the cancellation decision would involve substantial hardship to the applicant. 12 The Minister then turned to the issue of protection of the Australian community. The Minister noted the sentencing judge's remarks that the applicant's trafficking was "at street level" and that his offending was "typical of a drug addict". Mr Wehi submitted that his offending was "at the low end of the scale", but the Minister found that commercial trafficking of drugs causes serious problems for the community and, given the quantities that the applicant was selling, his offending was serious. The Minister noted that the applicant has a criminal history which commenced in 1997 and is extensive. It includes two offences of robbery with actual violence, for which he was sentenced to imprisonment. The Minister found that these offences were very serious as they involved violence. The Minister also concluded that all of the applicant's offences, when viewed in totality, amounted to serious offending. 13 The Minister recorded that the following submission had been made: Mr WEHI submits that he personally witnessed and experienced sexual abuse as a child while under the care of a government institution, namely Nudgee Junior College and Anglican Church Grammar School. He has recently been in contact with the Royal Commission into Institutional Responses to Child Sexual Abuse about his experiences and has undergone counselling sessions that have helped him realise that he was not at fault. While Mr WEHI is not using this to excuse his criminal behaviour, he states that he does think that it has had a big impact on the way he has handled certain situations and has ultimately behaved. 14 The Minister noted that the applicant said he had learnt from his mistakes and that there was no significant risk that his conduct would be repeated. He said he no longer wanted to use drugs, and that test results while he was in prison revealed that he was free from drugs. 15 The Minister noted that the applicant had been considered for possible visa cancellation in 2011 and was sent a formal "warning letter" dated 6 July 2011. However, he committed further serious offences after that warning. 16 The Minister concluded that there was a likelihood that the applicant would re-offend, notwithstanding his attendance at various programmes, his good behaviour while he was in prison, his remorse, his desire to be a law abiding citizen and the support he had from family and organisations in Australia. The Minister stated that he formed this view because the applicant's drug-related criminal history involved repeated offending despite warnings by the Courts. The Minister noted the failure of the previous immigration warning and previous sentences of imprisonment to deter his offending. He found that if the applicant re-offended in a similar way as he had in the past, there was potential for future harm. 17 The Minister stated that in circumstances where great harm could be inflicted on the Australian community, even strong countervailing considerations may be insufficient for him to revoke the decision to cancel the visa. The Minister concluded that the applicant represented an unacceptable risk of harm to the Australian community and that protection of the Australian community outweighed the other relevant considerations. Accordingly, the Minister decided not to revoke the cancellation decision. 18 The applicant's originating application sets out the following ground: The decision maker acted unreasonably, illogically and irrationally in refusing to revoke the visa in taking into account the following circumstances: • That the applicant had not been freshly sentenced; • That the sentence was at the lower end of the scale; • That the previous 'warning' given was in fact for that same offending; • That the previous 'warning' was in a decision by the Department not cancel the Applicant's visa with respect to that 'serious' offending for which the decision maker determined it was appropriate to make express comment in the decision and decided to cancel the Applicant's visa; and • The overall circumstances did not justify cancellation of the visa 19 The applicant's argument, as presented, does not rely upon the circumstances described in the first, third and fourth dot points of the ground. 20 The applicant submits that the Minister's decision "was so unreasonable that no decision maker acting reasonably could have made it". The applicant submits that his offending was not at the most serious end, was "street level" and was committed as a consequence of his drug addiction. He submits that his community involvement, his conduct while in prison and the courses he had undertaken favoured revocation of the decision. The support from his family and friends indicated that the applicant posed no risk to the community. Further, the applicant has lived almost his whole life in Australia and had believed that he was Australian. He had only recently found that an apparent error had led to his not becoming an Australian citizen as a child. His mother is Aboriginal, as is his partner, and all his family is in Australia. The applicant submits that the circumstances of the case, considered in totality, cannot justify the decision. 21 The applicant also submits that it is significant that he has been a victim of institutional child sexual abuse and that he made a contribution to the community by speaking to the Royal Commission. These factors are said not to have been adequately addressed by the Minister. The applicant submits, in particular, that the Minister failed to adequately address the applicant's claim to have suffered child sexual abuse at the hands of the State. 22 Further, the applicant submits that the Minister should have considered the effects of the sexual abuse upon the applicant, its relationship to his drug-related offending and his contribution to the Australian community. He submits that the Minister should also have taken into account that the applicant contracted Hepatitis C while in prison in the care of the State. 23 The applicant's submission that the Minister's decision "was so unreasonable that no decision maker acting reasonably could have made it" draws upon Lord Greene MR's formulation of unreasonableness in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 at 230. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, Hayne, Kiefel and Bell JJ at [68] indicated that a decision of that standard would be "an irrational, if not bizarre, decision". 24 The applicant relies upon the following passage from Li at [63]: The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably. 25 Although he did not directly express his case in this way, the applicant can also be taken to rely upon the following passage from Li at [72]: Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense. 26 Further, the applicant can be taken to argue that the decision is unreasonable in the sense that it "lacks an evident and intelligible justification": see Li at [76]. 27 The applicant's argument is, in substance, that the Minister gave excessive weight to the risk of harm to the community while giving inadequate weight to the countervailing factors. However, it must be borne in mind, as was said in Li at [66], that: …[T]here is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. (Citations omitted.) 28 In his written submissions, the Minister argues that the principles of legal unreasonableness are limited to discretionary decisions, relying upon Li at [29], [63], [88] and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40]. The Minister submits that a decision under s 501CA(4)(b)(ii) of the Act is not discretionary - the provision requiring the Minister to be satisfied that there is another reason to revoke: see Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 at [32], Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at [38]. The argument continues that legal unreasonableness does not provide a basis for vitiating a decision which requires the satisfaction of a decision-maker. The argument was not developed by the Minister in oral submissions, and the applicant did not engage with the argument. 29 As Edelman J explained in The Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 at [153]-[154], [170]-[175], it is doubtful that either Li or Eshetu provide any exhaustive statement as to the categories of decisions which may be vitiated on the basis of legal unreasonableness. In any event, there is ample authority for the proposition that where a statute requires that a decision-maker be satisfied of a matter, the decision-maker must reach the required state of satisfaction reasonably. For example, in Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [167], Gummow and Hayne JJ, referring to s 501(3) of the Act, said "The criterion that the Minister be "satisfied" is to be understood as requiring the attainment of that satisfaction reasonably": see also Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [73] (and the authorities cited therein, including Eshetu at [133]-[137] per Gummow J); Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at [89]. In my opinion, the Minister's state of satisfaction, or non-satisfaction, under s 501CA(4) is required to be attained reasonably. 30 The Minister's reasons demonstrate that his assessment of the risk the applicant posed to the Australian community was pivotal to his decision. The Minister found that the offence which triggered the cancellation decision, involving commercial trafficking of a significant quantity of drugs, was serious. The Minister also found that the totality of the applicant's criminal history was very serious, particularly as he had been convicted of offences involving violence. The Minister found that there was a likelihood that the applicant would re-offend because of the applicant's repeated drug-related offending in the past, despite the intervention of the Courts and despite a warning letter having been sent. The Minister concluded that this created the potential for future harm to the Australian community. Each of these conclusions was open to the Minister on the material before him. 31 The Minister considered a number of countervailing factors, including the best interests of the applicant's child, the harm to the applicant and his partner and other members of his family and friends and the length of time the applicant had lived in Australia. In the appeal, the applicant emphasised his sexual abuse as a child, his assistance to the Royal Commission and his Hepatitis C condition. Each of these matters was expressly considered by the Minister. The Minister concluded that the countervailing factors did not outweigh the risk of harm to the Australian community and, accordingly, decided not to revoke the cancellation decision. 32 The applicant's submission is, in substance, that the Minister gave too much weight to the risk to the Australian community and insufficient weight to the countervailing factors. The applicant's oral submissions were, at times, much like sentencing submissions, seeking to downplay the seriousness of the offending and emphasising the hardship to him and his family. However, any attempt to persuade the Court that the decision was harsh is not to the point. The Court is not in the Minister's position. The Court's role is limited to consideration of the legality of the decision. 33 In my opinion, the Minister cannot be described as obviously having given disproportionate weight to the risk to the community or to the countervailing factors. The decision was not illogical or irrational. The decision cannot be described as so unreasonable that no reasonable decision-maker would have made it. The decision did not lack an evident and intelligible justification. Accordingly, whichever way it is described, the allegation of legal unreasonableness cannot succeed. 34 The applicant also submits that the Minister failed to consider an argument raised in his representations to the effect that his offending was created or contributed to by his treatment at the hands of Australian government institutions. The applicant submits that he was sexually abused at two private schools, which should be regarded as government institutions because they were partially government-funded. He also submits that it is relevant that he contracted Hepatitis C while in a State prison. The applicant submits that the Minister should have considered the responsibility of Australian governments for his behaviour and, consequently, any risk he poses to the Australian community. 35 It is true that in some cases there may be jurisdictional error where an argument that was put to the decision-maker is overlooked. In Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, in the context of an application for a protection visa, Gummow and Callinan JJ (with whom Hayne J agreed) held at [24] that to fail to respond to a "substantial, clearly articulated argument relying upon established facts" was at least to fail to accord the applicant natural justice. In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, the Full Court said at [63]: It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. 36 In Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68, the Full Court at [139] indicated that the Minister was not under any obligation to consider a reason for revocation that had not been raised in the representations, at least in the circumstances of that case. The difficulty for the applicant is that he did not raise in his representations the argument that the Minister should have considered the responsibility of Australian governments for his behaviour. The applicant had emphasised his sexual abuse while at school and his cooperation with the Royal Commission, but these matters were raised in the context of demonstrating that he had now realised that his sexual abuse as a child had contributed to his behaviour, making it less likely that he would reoffend in the future. Although he described the relevant schools as "government institutions", the contention that the Australian government is responsible for sexual abuse at private schools as it partially funds such schools was first raised in argument in this application, not in the representations. The applicant's statement that he had Hepatitis C was made to show that he would suffer hardship if he is returned to New Zealand. The applicant did not raise these matters as part of any argument that Australian governments should take responsibility for his offending. In fact, the applicant said, "I don't blame Australia for being where I am now, because I love this country and would dearly love to remain here as a resident." In my opinion, the Minister was not obliged to consider an argument that was not clearly articulated, and in fact never appeared at all, in the applicant's representations. 37 For these reasons, the application cannot succeed. The application must be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.