The national interest
21 The applicant's first submission was that although the Minister was satisfied cancellation was in the "national interest" as he conceived of it, his conception was not one contemplated by s 501BA(2)(b). As put for the applicant, whilst the sub-section allows the Minister latitude to adopt and apply a reasonably appropriate conception of the national interest, the Minister cannot give the phrase "national interest" a meaning which effectively renders nugatory the condition on the exercise of the Minister's discretionary power. The conception of the national interest the Minister applied in the present case was unreasonably narrow. In particular, it excluded the citizens of the national community most proximate to the applicant and most affected by the consequences of cancellation; her child and immediate family. Thus, it was submitted, the Minister failed to ask and answer the right question, with the consequence that Minister failed to attain the state of satisfaction which was a condition precedent to the exercise of the Minister's discretionary decision-making power.
22 This, it was submitted, was supported by Lord Atkin's warning against the "Humpty Dumpty" method of construction in Liversidge v Anderson [1942] AC 206. The case was about whether a wartime statute required the Secretary of State to have "reasonable cause to believe" in a fact (as the express terms of the provision said) or required only a bona fide belief that he had "reasonable cause to believe" in a fact as a condition precedent to making the discretionary decision to detain a person. In arguing against the latter construction, Lord Atkin invoked the absurdity of Lewis Carroll's Humpty Dumpty (at 228):
"'When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean, neither more nor less.' 'The question is,' said Alice, 'whether you can make words mean so many different things.' 'The question is,' said Humpty Dumpty, 'which is to be master - that's all.'" ("Through the Looking Glass," c. vi.)
23 Lord Atkin's warning is often associated with the following statement of Latham CJ in R v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 432:
It is therefore well settled that if a statute provides that a power may be exercised if a person is of a particular opinion, such a provision does not mean that the person may act upon such an opinion if it is shown that he has misunderstood the nature of the opinion which he is to form. Unless such a rule were applied legislation of this character would mean that the person concerned had an absolutely uncontrolled and unlimited discretion with respect to the extent of his jurisdiction and could make orders which had no relation to the matters with which he was authorized to deal. It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.
24 The principle upon which the applicant relied may be accepted but I consider that it is not engaged in the circumstances of the present case. My reasons reflect those given by the Full Court in Carrascalao at [158]. Although the Minister did not refer to the best interests of the applicant's child or family in the section of his reasons which directly addressed the national interest, there is nothing in the Minister's reasons to suggest he excluded from his conception of the national interest the interest of these citizens who were most proximate to the applicant.
25 Under the heading "National Interest", the Minister said:
16. 'National interest' is not defined for the purposes of s501BA of the Act. Generally, courts have been reluctant to attempt to define the meaning of national interest in statutory contexts, but the national interest has been determined to be a different concept to the public interest.
17. In Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220, at [86], the Full Federal Court noted that the question of what is or is not in the national interest is entrusted by the legislature to the Minister to determine according to his or her own satisfaction, which must be attained reasonably. The court said:
'The Minister in considering the national interest under s501A(2) may properly have regard to the circumstances which underpin the failure to satisfy him that an applicant for a visa passes the character test. There may be circumstances in which the seriousness of a person's criminal history will be sufficient to satisfy the Minister that the refusal of a visa is in the national interest'.
18. I find that matters of national interest could include, amongst other things, the seriousness of Ms WETI-SAFWAN's criminal conduct, having regard to the circumstances and nature of the conduct and the dispositions imposed by the court (emphasis added).
26 The Minister then considered the seriousness of the applicant's criminal conduct. He said she has an "extensive criminal history which predominantly involves offences of dishonesty, driving and some drug related offences" and that "her numerous offences, the frequency of her offending and her breaches of dispositions, together with the cumulative effect of her offending, render her criminal history as serious": at [19]. He referred to her conviction for numerous offences on 1 December 2015 and the characterisation the judge gave to her shoplifting offences as "serious": at [20]-[21]. He referred to the Tribunal's acceptance that the frequency and cumulative effect of the applicant's offending was a matter of "serious concern", "partially mitigated" by the fact that her offences were non-violent and did not target vulnerable members of the community: at [22]. He recorded his findings that although the applicant's offences seem minor "considered individually", "the cumulative effect on the community of her many offences is serious, as it includes the financial costs to her victims…together with the cost to community resources such as the courts, the police and the corrective services system": at [23]. He also took into account that courts had sentenced her to incarceration which is a "last resort" and noted that, most recently, on 19 March 2015, a court sentenced her to 13 months imprisonment: at [24]-[25]. He noted that the applicant had appeared before court on more than 20 occasions and, in addition to the 13-month sentence, had received prison sentences of 12 months or longer on three occasions: at [26]. He concluded that the applicants conduct "was of such seriousness that I am satisfied it is in the national interest to cancel her visa": at [27].
27 In his conclusion, the Minister said:
89. I find that the Australian community could be exposed to further harm should Ms WETI-SAFWAN reoffend in a similar fashion. I could not rule out the possibility of further offending by Ms WETI-SAFWAN notwithstanding factors including her efforts at rehabilitation, her stated remorse, her intended rehabilitation from the use of illicit drugs and the strong support from her family. The Australian community should not tolerate further risk of harm.
90. I found the above consideration outweighed the countervailing considerations in Ms WETI-SAFWAN's case, including the primary consideration in relation to the best interests of…her minor Australian citizen child and her minor siblings in Australia; the length of time Ms WETI-SAFWAN has resided in Australia; her strong familial and social ties to Australia; the hardship to her family members and others in Australia; and the impediments she is likely to face in returning to New Zealand.
91. I am cognisant that where significant harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of criminal conduct by Ms WETI-SAFWAN than I otherwise would, because she has lived in Australia for most of her life and from a very young age.
92. In reaching my decision I concluded that Ms WETI-SAFWAN represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.
93. Having given full consideration to all the information before me in this case, I find that the considerations above favouring non-cancellation are outweighed by the national interest considerations referred to above. …
28 The applicant's written submissions said:
9. In the absence of a test of what is in the national interest, criteria of significance to the Australian people which appear relevant to administrative discretions exercised in the national interest in the contexts arising under the Migration Act must include:
• the stability of the family;
• the welfare of Australian children;
• consideration of the impact on Australian citizens of executive decisions made without natural justice to those citizens (in this instance those citizens include Ms Weti-Safwan's daughter, siblings, parents, step-parents and broader family members);
• maintenance of and compliance with the rule of law through people paying and serving penalties imposed according to law;
• restraint by the executive from imposing additional significant penalties when sentences imposed by the courts have been served.
• proportionality in the exercise of bureaucratic authority.
10. Ms Weti-Safwan's daughter Miriam Safwan's right as a citizen of Australia for her welfare to be taken into account as a primary consideration was stated by Gaudron J in Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh [[1995] HCA 20; (1995) 183 CLR 273 at 375]. …
11. The criteria the Minister finds amount to matters of national interest are:
a. "the seriousness of Ms Weti-Safwan's criminal conduct having regard to the circumstances and nature of the conduct and the dispositions imposed by the Court". In support of this view the Minister recites the frequency of Ms Weti-Safwan's shop lifting and two counts of larceny as having a cumulative effect meaning her offending conduct is a matter of serious concern. The Minister notes the AAT's finding that Ms Weti-Safwan's offending is "partially mitigated by her non-violent behaviour ..and that… she had not committed offences against vulnerable members of the community".
b. the financial costs to the victim and the community's resources such as the courts, police and the corrective services system in the administration of justice.
12. These criteria - the cumulative effect of multiple offences and financial cost to the community - satisfy the Minister "it is in the national interest to cancel her visa."
13. Ms Weti-Safwan submits that the Minister was unreasonable when he considered how matters of national interest applied to her circumstances, that the criteria applied are too narrow to be a proper exercise of the scope of the statutory authority conferred upon the Minister and therefore lack evident and intelligible justification.
29 Putting to one side for the time being the references to "scope of statutory authority" and "evident and intelligible justification" at the conditional stage of the decision-making process, it is true that the Minister found the two identified matters relevant and, ultimately, determinative of his satisfaction that cancellation was in the national interest. It is not necessarily true that he found those two matters the only matters that could be relevant. He recognised that "matters of national interest could include…other things": at [18]. To adopt what the Court said in Carrascalao at [158], "at best, an inference might arise that the Minister regarded the best interests of the child [and family] as not bearing upon his assessment of the national interest in the particular circumstances of the case".
30 Nor can it be inferred that because the Minister considered the best interests of the appellant's child and family to favour non-cancellation and the national interest to favour cancellation (at [93]) that he necessarily excluded family considerations from national interest considerations. It is true that the family group is most proximate to the appellant, and in that sense it may have been open to the Minister to give them more attention than other citizens in considering the national interest. But there is no suggestion to the Minister took a contrary view. And even if he did, there would be no legal error in considering that continued offending could negatively affect enough people, not just immediate victims but everyone who contributes to the community's criminal justice resources, that the family's interests did not make a determinative impact on the national interest as a whole.