ABOLAIL v Minister for Immigration
[2016] FCCA 3363
•21 December 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABOLAIL v MINISTER FOR IMMIGRATION | [2016] FCCA 3363 |
| Catchwords: MIGRATION – Minister for Immigration and Border Protection – Class BC Subclass 100 Partner (Migrant) visa – whether the Minister failed to take into relevant considerations – whether the Minister gave effect to a non-existent principle – whether community expectations are irrelevant considerations for the purposes of s.501CA – no jurisdictional error identified – Amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.4, 476, 501, 501CA, 501E. |
| Cases cited: Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 |
| Applicant: | HUSSAM ABOLAIL |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2489 of 2016 |
| Judgment of: | Judge Street |
| Hearing date: | 21 December 2016 |
| Date of Last Submission: | 21 December 2016 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2016 |
REPRESENTATION
| The Applicant appeared via video link. |
| Solicitors for the Respondent: | Mr A Markus Australian Government Solicitor |
ORDERS
Grant leave to the Applicant to rely on the amended application dated 21 December 2016 and dispense with the need for any further filing thereof.
The amended application dated 21 December 2016 is dismissed.
The Applicant pay the Respondent’s costs fixed in the amount of $7.206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2489 of 2016
| HUSSAM ABOLAIL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Minister made under s.501CA(4) of the Act, declining to revoke the cancellation of the applicant’s Class BC Subclass 100 Partner (Migrant) visa that was cancelled on 27 January 2015 pursuant to s.501(3A) of the Act.
The applicant is a national of Jordan and arrived in Australia on 12 April 2006 as an adult of 30 years of age. On 16 October 2008 the applicant was granted a partner visa. On 12 April 2012, the applicant was sentenced in the Penrith District Court to six years imprisonment for two counts of cause grievous bodily harm to person with intent.
Cancellation of the applicant’s visa
On 27 January 2015, a delegate of the Minister cancelled the applicant’s visa under s.501(3A) of the Act. Relevantly, the delegate was satisfied that the applicant did not pass the character test because the applicant had a substantial criminal record and had been sentenced to a term of imprisonment of 12 months or more and it is apparent that the applicant was serving a sentence of imprisonment at the time of the decision.
On 25 February 2015 the applicant made representations that the cancellation decision should be revoked. The applicant provided his own submissions, as well as supporting letters from family members, and from a particular Father in the Christian faith. On 22 June 2015, the applicant was invited to comment on further information regarding the possible cancellation of his visa, which included the National Police Certificate and the New South Wales Department of Corrective Services convictions, sentences and appeals record dated 7 January 2015, as well as the sentencing remarks of Judge Cogswell of the District Court.
On 12 February 2016, the applicant was sent a further document, being a client incident report on which the applicant was invited to comment. That client incident report identified a number of incidents while the applicant was in detention. The applicant responded to the incident by a letter dated 16 February 2016 which addressed some but not all of the incidents identified in the incident report.
The Minister’s decision
On 4 August 2016, the Minister decided not to revoke the cancellation decision under s.501CA(4) of the Act. The decision in the present case was made by the Minister and the non-revocation outcome was signed personally by the Minister under a commencing paragraph. The commencing paragraph identified that the Minister had considered all relevant matters, including an assessment of the character test as defined by s.501 of the Act, and all evidence before the Minister provided by and on behalf of the applicant in connection with the possible revocation under s.501CA(4) of the decision under s.501(3A) to cancel the applicant’s Class BC Subclass 100 Partner (Migrant) visa.
Minister’s statement of reasons for decision not to exercise discretion to revoke a mandatory cancellation visa decision
The reasons included a statement summarising the evidence and material for the applicant and a statement of reasons. That statement of reasons identified the statutory requirements of s.501CA(4) of the Act. The Minister concluded that the applicant had made representations in accordance with the invitation as required under s.501CA(4)(a) of the Act. The Minister turned to whether the applicant passed the character test and relevantly found that he was not satisfied the applicant passed the character test as defined by s.501 of the Act with the result that s.501CA(4)(b)(i) of the Act was not met.
Consideration of whether there is another reason why the original decision should be revoked
The Minister then turned to the question of whether there is another reason why the original decision should be revoked under s.501CA(4)(b)(ii) of the Act. The Minister expressly identified that he had to consider whether he was satisfied that there is another reason why the original mandatory visa cancellation decision should be revoked. The Minister expressly referred to the fact that in undertaking that task, the Minister had assessed all of the information set out in the attachment, identifying the evidence and material before the applicant.
The Minister made reference to the representations and documents submitted on behalf of the applicant and in particular, the reasons articulated by the applicant why the decision should be revoked, including the applicant being deeply sorry for his offending, that the applicant is a low risk of reoffending, and he is allegedly of no risk to the Australian community, that the applicant has completed various rehabilitation and education programs while incarcerated, that the applicant’s crime was allegedly a ‘one off’ and not an indication of his alleged actual character, that the applicant has the support of family and his parish priest in the community, and that the applicant has six nieces and nephews residing in Australia with whom he has a special bond. The applicant referred to the passing away of the applicant’s father and said that since his father’s death, the applicant has been looked on as the ‘family head.’ The applicant also plans to lead a healthy and productive life and get back into the workforce.
Consideration of the best interests of minor children
The Minister made reference to the best interests of the nieces and nephews and found that the best interests of the nieces and nephews would be served by revocation of the cancellation decision. The Minister did however, acknowledge that the applicant did not have daily care and control of the children as a parent, but nonetheless found that it is in the best interests of the nieces and nephews that the cancellation decision be revoked to enable their relationship to continue into the future.
Consideration of international non-refoulement obligations
Materially in the present case, the Minister made reference to the claim by the applicant that the applicant comes from a Christian family and that if returned to Jordan, the applicant would face violence, racism, hatred and discrimination on a daily basis. The Minister identified that the applicant was able to make a valid application for another visa. In particular, the Minister noted that the applicant was not prevented by s.501E of the Act from making an application for a protection visa. It was in these circumstances that the Minister determined that it was unnecessary to decide whether Australia owed a non-refoulement obligation to the applicant for the purpose of this decision.
The Minister noted that the existence of a non-refoulement obligation does not preclude the non-revocation of a decision to cancel a non-citizen’s visa. The Minister noted that Australia will not remove a non-citizen as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
Consideration of the strength, nature and duration of ties
The Minister then made reference to the strength, nature, and duration of the applicant’s ties to Australia from the time the applicant arrived. The Minister found that the applicant had strong ties in the form of familial and employment ties to the Australian community.
The Minister considered that the applicant had contributed to the Australian community through his role as an uncle and through his employment. The Minister found that the removal of the applicant to Jordan is likely to cause emotional hardship to his family, including his niece and nephews. The Minister concluded that the effect of non-revocation on the applicant’s immediate family in Australia would be one where those persons would experience emotional hardship. The Minister also found that the applicant had been making a contribution to the community and had taken into account the effect of non-revocation for his family members in Australia.
Consideration of impediments if removed
The Minister took into account the mental health issues identified by the sentencing judge in relation to the applicant. The Minister found that if the applicant was returned to Jordan, he will have access to medical assistance and will not encounter any cultural or linguistic obstacles in Jordan. The Minister also found the treatments for his medical issues are available in Jordan. The Minister found that the non-revocation of the cancellation decision would involve substantial hardship for the applicant and may exacerbate the applicant’s mental health problems.
Consideration of protecting the Australian community
The Minister referred under the heading “Protecting the Australian Community” for the need to have regard to the consideration of the protection of the Australian community and the Minister noted that the applicant claims he does not pose an unacceptable risk of reoffending. The Minister made reference to a commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens. The Minister also made reference to taking into account a consideration that remaining in Australia is a privilege that Australia confers on non-citizens an expectation that they are law abiding.
The Minister then referred to the violent and serious offences committed by the applicant. The Minister referred to part of the sentencing judge’s remarks. The Minister did take into account that this was the only recorded offence in relation to the applicant. However, the Minister identified in considering the nature and seriousness of the conduct that the applicant had engaged in physical violence using a weapon to inflict serious injury on the face of two of his fellow workers.
The Minister turned to the issue of risk to the Australian community. The Minister made reference to accepting that the applicant through his use of alcohol and drugs had aggravated his pre-existing mental conditions which contributed to his offending. The Minister also made reference to what was described as several major incidents while the applicant has been in Immigration Detention. The Minister made reference to the courses the applicant had completed in particular, in relation to rehabilitation.
The Minister referred to the material submitted relating to the applicant’s rehabilitation and efforts to obtain education programs whilst in prison. The Minister made reference to the applicant having completed several rehabilitation courses whilst incarcerated and his rating as a low to medium risk of recidivism and that he had remained drug and alcohol free. Notwithstanding those matters, the Minister found that the applicant’s offending was of a very serious nature and if repeated, the potential harm to members of the community would be significant.
The Minister’s conclusion
Under a heading “Conclusion”, the Minister again identified having considered all the relevant matters and including an assessment of whether the applicant has made a representation, and an assessment of whether satisfied that the person passes the character test, and an assessment of whether the Minister was satisfied that there is another reason why the original decision should be revoked for the purpose of s.501CA(4)(b)(ii) of the Act, and referring to all the available evidence before the Minister including the material provided by the applicant.
The Minister concluded that the applicant had made representations in accordance with the invitation. The Minister was not satisfied the applicant passed the character test. The Minister made reference to having given primary consideration to the best interests of the applicant’s nieces and nephews and the finding that their best interest will be served by revocation of the mandatory visa cancellation decision. The Minister made reference to having considered the length of time the applicant had made a positive contribution to the Australian community and the consequences of the decision for the applicant’s family members.
The Minister then made reference in relation to considerations whether the Minister was satisfied that there is another reason why the original decision should be revoked by giving significant weight to the very serious nature of the crime committed by the applicant. The Minister also made reference to being mindful of the principle that the persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia. The Minister found that the Australian community could be exposed to great harm should the applicant re-offend in a similar fashion. The Minister made a finding that he could not rule out the possibility of further offending by the applicant.
The Minister made reference in having reached his decision about whether he was satisfied that there is another reason why the original decision should be revoked. The Minister concluded that the applicant represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of the applicant’s nieces and nephews as a primary consideration and any other considerations described above. The Minister identified that that included the strong familial and social ties of the applicant to Australia, his employment in Australia, the lack of support available to him in Jordan, the applicant’s history of mental health problems and the hardship the applicant and his other family members will endure in the event the original decision is not revoked.
The Minister then made reference to having given full consideration to all of these matters, that the Minister is not satisfied for the purposes of s.501CA(4)(b)(ii) that there is another reason why the original decision to cancel the applicant’s visa should be revoked. The Minister concluded that he had decided not to revoke the original decision to cancel the applicant’s Class BC, Subclass 100 Partner (Migrant) visa.
Before this Court
The applicant was given leave to rely upon an amended application, the grounds of which are as follows:-
1. The minster's Decision is affected by a Jurisdictional Error in that he failed to, properly consider all my claims because the Minister failed to consider whether he should revoke the cancellation of my visa because of the risk of imposed on me should I return to my country of origin. This was a mandatory consideration under s 501CA(4) because it had been given as a reason by the applicant in response to an invitation under s 501 CA(3) since I informed the department of in my response to the visa cancellation that should I return home and as a person of the “Christian” faith I will be facing violence, racism and hatred on daily basis.
Priticulars: in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 which I provide a copy of the ruling in the way of affidavit.
2. The minster's Decision is affected by a Jurisdictional Error in that he failed to, properly give, all my claims, the nature and the circumstances of my offence the appropriate weight and consideration against the likelihood of reoffending (medium low) mentioned in my (pre-release report, “Annexure A" page 48-54) and the risk posed to the Australian community should I remain in Australia.
3. The minster's Decision is affected by a Jurisdictional Error in that he failed to properly engage with countervailing factors going against visa cancelation, in that having no regard to the merits of my individual case, in that he failed to properly consider that I’m not a repeat or habitual offender and my offense was a one off and doesn't actually reflect my character as well as failing to properly engage with all relevant consideration and information provided in my pre-release report (Annexure A, “Page 48-54'') by the parole authority and other expert bodies in regard to the prospect of rehabilitation.
4. The minster's Decision is affected by a Jurisdictional Error in that he failed to, properly consider the dear evidence of rehabilitation including all the programs and courses I finished while in custody (Annexure A, page 9), such as getting smart and other educational and drug and alcohol programs.
5. The Minister's decision in my case was unreasonable, In that he failed to properly consider my ties and contributions to the Australian community as the main body of my family, friends and support network lives here in Australia and how my removal from Australia would affect all of them and all of us as a family unit, including the minor children in the family.
6. The Minister's decision is affected by a jurisdictional error because in the statement of reasons for decision under s501 CA of the migration act 1958 (THE ACT) not to exercise discretion to revoke a mandatory cancellation visa decision under s.501 (3A), in paragraph (13), the minister states that as a primary consideration they (the minister) have concluded that it is in the best interest of my nieces and nephews for the visa cancellation to be revoked, and in the same statement paragraph (17) the minister states that it is in the best interest of my nieces and nephews that the cancellation decision be revoked to enable our relationship to continue into the future, but on the other hand and in the non-revocation outcome, the minister stated that they( the minister) are not satisfied there is another reason why the original decision should be revoked and decided not to revoke the original decision which contradicts the findings listed above, and makes the non-revocation outcome unlawful.
7. The Minister's decision is affected by a jurisdictional error because the Minister found that he did not need to consider the risk of facing violence, religious discrimination and hatred in my country of origin if I'm to return because I was free to apply for a protection visa as well as the possibility that I could apply for a protection visa did does not protect me from all forms of harm, in particular, a protection visa would not protect me against harm motivated by religious hatred and discrimination in my country of origin. The error was the same as that identified by (Goundar v Minister for Immigration and Border Protection [2016] FCA 1203) Date of judgment: 12 October 2016.
PARTICULARS:
a- 12. In the representations/documents submitted by or on my behalf l articulated reasons why the original decision should be revoked, which include: the best interests of minor children; strong ties to Australia; positive contributions to the community; my support from family and friends in Australia; the hardship that 1 would suffer due to me having hardly any support in Jordan and there is a risk of violence and religious discrimination against me. In addition that I do not pose an unacceptable risk to the Australian community in terms of re-offending because My risk of re-off ending is on the lower end of the scale.
b- In my representations to the department I expressed my concerns if I'm to return to my country of origin that I will be facing Violence, Racism, religious hatred and discrimination on daily bases as I’m a person who follows Christian Faith and come from a Christian family.
c- The Minister's error was that he Failed to appreciate the relevance of relevant evidence and did not consider whether the threat of harm was a reason to revoke the cancellation of my Visa.
d- The Minister's error was that he failed to have regard, or proper regard to a mandatory consideration. The religious persecution, discrimination and violence claim was a mandatory consideration for the minister because it had been given as a reason in response to the invitation to apply to have the decision of my visa cancellation revoked. The error was the same as that identified by (Goundar v Minister for Immigration and Border Protection [2016] FCA 1203) Date of judgment: 12 October 2016.
8. The Minister’s decision is affected by a jurisdictional error because the Minister did not properly exercise his powers under s 501CA and s 601CA(4) of the Migration Act because there is no such “principle” as such that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia. The error was the same as identified by (Tesic v Minister for Immigration and Border Protection [2016] FCA 1465) Date of Judgment: 7 December 2016
PARTICULARS
a – In the minister's statement of reasons for decision under s501A of the migration act 1958 (the act) not to exercise discretion to revoke a mandatory cancellation visa decision under s 501(3A), paragraph (39) under the heading “PROTECTING THE AUSTRALIAN COMMUNITY” the minister states:
In coming to mv decision about whether or not there is another reason why the original decision should be revoked I have had regard to the consideration of the protection of the Australian Community. Noting in particular Mr ABOLAIL's claim he does not pose an unacceptable risk of reoffending. I considered the government's commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens. I also took into consideration that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are law abiding.
b- In the minister's statement of reasons for decision under s501A of the migration act 1958 (the act) not to exercise discretion to revoke a mandatory cancellation visa decision under S501 (3A). and in reaching a CONCLUSION paragraph (72) the minister states:
On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the
crime committed by MR ABOLAIL. Cause grievous bodily harm with intent, which is of a violent nature. I am also mindful of the principle that persons who commit a serious crime should expect to forfeit the privilege of remaining in Australia.
c- In (Goundar v Minister for Immigration and Border Protection [2016] FCA 1203) Judge COLLIER stated:
53 In his statement of reasons before me. the Minister referred to this “principle” of a number of times. Critically, I note his statement at paragraph 31 where he said, in relation to the issue of protecting the Australian community:
I also took into consideration that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are law abiding.
54 This statement was complemented by paragraph 55 in the Conclusion to the statement of reasons where the Minister said:
I am mindful of the principle that persons ·who commit serious crimes should expect to forfeit the privilege of remaining in Australia.
55. I do not accept that the statements of the Minister in respect of “privilege” in this case could properly be confined to rhetoric expounding the relevant considerations concerning Mr Tesic's criminal history and the importance of protecting the Australian community.
56 The fact that the Minister “took into consideration" that remaining in Australia is a privilege that Australia confers on non-citizens indicate that the decision-making process was distorted. The “principle" coloured the Minister's reasoning process. The Minister approached the decision from that perspective. As was explained by the Full Courts in both Stretton [2016] FCAFC 11 and AZAFO [2016] FCAFC 105, that perspective was not correct. The fact that the Minister subsequently repeated the statement concerning privilege in paragraph 55, elevating it to a “principle", reinforces the point that the Minister attributed importance to this irrelevant consideration in reaching his decision.
57 The statement of reasons in this case may be contrasted with that of the Minister in Stretton [2016] FCAFC 11, where the Minister referred to the “privilege of being able to remain in
Australia" in the conclusion, and in the course of elucidating the expectations of the Australian community. Similarly, in AZAFO [2016] FCAFC 105 the Minister summarised his reasons for cancelling the appellant's visa including the generalised statement that non-citizens who committed serious, violent offences should “generally expect to forfeit the privilege of remaining in Australia". Unlike in these cases, the Minister in the statement of reasons in Mr Tesic’s case referred to the “privilege” as a principle of law referable to the exercise of the power, rather than a general policy statement.
9- Please find attached a copy of (Tesic v Minister for Immigration and Border Protection [2016] FCA 1465) Date of Judgment: 7 December 2016.
On 29 September 2016, a Register of the Court made orders providing the applicant with an opportunity to file affidavit evidence and amended applications. The applicant filed affidavits annexing decisions on which the applicant sought to rely in support of these grounds of error, in particular the decision in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 and the decision in Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 (“Tesic”).
At the commencement of the hearing, the Court explained to the applicant that this was a hearing to determine whether the Minister’s decision was affected by relevant legal error. The Court explained to the applicant that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that in summary, this meant the Court was considering whether the Minister’s decision was unlawful or whether the Minister’s decision was unfair. The Court explained that it would have identified the evidence, then hear submissions from the applicant, hear submissions from the solicitor for the respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court.
From the bar table, the applicant sought to maintain that the Minister had impermissibly in the present case approached the decision-making task under s.501CA(4) of the Act on the basis of a non-existent principle of the kind identified by Collier J in Tesic. Specific reference was made to the decision at [53] to [57]:-
[53] In his statement of reasons before me, the Minister referred to this “principle” of a “privilege” a number of times. Critically, I note his statement at paragraph 31 where he said, in relation to the issue of protecting the Australian community:
I also took into consideration that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are law abiding.
[54] This statement was complemented by paragraph 55 in the Conclusion to the statement of reasons where the Minister said:
I am mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.
[55] I do not accept that the statements of the Minister in respect of “privilege” in this case could properly be confined to rhetoric expounding the relevant considerations concerning Mr Tesic’s criminal history and the importance of protecting the Australian community.
[56] The fact that the Minister “took into consideration” that remaining in Australia is a privilege that Australia confers on non-citizens indicates that the decision-making process was distorted. The “principle” coloured the Minister’s reasoning process. The Minister approached the decision from that perspective. As was explained by the Full Courts in both Stretton [2016] FCAFC 11 and AZAFQ [2016] FCAFC 105, that perspective was not correct. The fact that the Minister subsequently repeated the statement concerning privilege in paragraph 55, elevating it to a “principle”, reinforces the point that the Minister attributed importance to this irrelevant consideration in reaching his decision.
[57] The statement of reasons in this case may be contrasted with that of the Minister in Stretton [2016] FCAFC 11, where the Minister referred to the “privilege of being able to remain in Australia” in the conclusion, and in the course of elucidating the expectations of the Australian community. Similarly, in AZAFQ [2016] FCAFC 105 the Minister summarised his reasons for cancelling the appellant’s visa, including the generalised statement that non-citizens who committed serious, violent offences should “generally expect to forfeit the privilege of remaining in Australia”. Unlike in these cases, the Minister in the statement of reasons in Mr Tesic’s case referred to the “privilege” as a principle of law referable to the exercise of the power, rather than a general policy statement.
The applicant submitted that his case was consistent with the facts in the decision of Tesic and that the Minister’s decision in the present case reflected the same kind of error as was found by Collier J in Tesic. The applicant also submitted that this was a case where the Minister had made error by failing to determine whether the applicant would face the risk of violence, alleged discrimination and hatred in his country of origin. The applicant maintained that the principle in Tesic had application to the circumstances of his case.
Consideration
In relation to Ground 1, the applicant contends that the Minister erred by failing to consider whether there should be a revocation because of the risk faced by the applicant should the applicant be returned to his country of origin. The applicant asserted that that was a mandatory consideration. Contrary to the applicant’s submissions, the risk the applicant may face on return to his country of origin was not a mandatory consideration that the Minister had to take into account in circumstances where the Minister identified that the applicant could make an application for a protection visa if the applicant so chose. It was open to the Minister to take that course.
The decision in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 is clearly distinguishable as this is a case where the applicant claimed to fear harm for a convention related reason and the Minister identified that the applicant had a course that the applicant could take. From the bar table, the applicant submitted that any application for protection was futile because the applicant could not pass the character test. The Minister’s statement of reasons identified that regardless of whether the applicant passed the character test, Australia would not remove a non-citizen to a country in respect of which it was found that there was a non-refoulement obligation. Ground 1 fails to make out any error of law by the Minister.
In relation to Ground 2, there was no inconsistency in the Minister’s reasoning in identifying and recognising the best interests of the nieces and nephews of the applicant. The best interests of the nieces and nephews of the applicant did not mean that the Minister was bound to determine that there was other reason for revoking the cancellation. Ground 2 fails to make out any error of law.
In relation to Ground 3, the suggestion that the Minister failed to take into account countervailing factors is without substance. It is apparent that the Minister referred to the applicant’s contention that this was a one-off offence and would not be repeated and the applicant’s contention he was otherwise of alleged good character. It also is apparent that the Minister took into account the material that was provided by the applicant. It is not necessary for the Minister to set out every piece of evidence that is provided to him. Ground 3 fails to make out any jurisdictional error.
In relation to Ground 4, it is apparent that the Minister did refer to the applicant’s alleged rehabilitation steps and programs. It is a matter for the Minister to determine what weight to give that factor. Ground 4 fails to make out any error of law by the Minister.
In relation to Ground 5, it is apparent that the Minister did take into account the applicant’s ties and contributions to the Australian community and the impact of the cancellation decision on the applicant’s family. The Minister’s decision cannot be said to lack an evident and intelligible justification in relation to finding that the applicant’s ties did not outweigh the best interests of the Australian community in the circumstances of the serious offence in the present case. There is no legal unreasonableness in the decision of the Minister as alleged in Ground 5. Ground 5 fails to make out any error of law.
Ground 6 is in substance a repetition of the same issue raised by Ground 3. It was a matter for the Minister to determine whether there was another reason for taking into account the best interests of the applicant’s nieces and nephews, just as the best interests of the applicant. Neither dictated a mandatory outcome in respect of the discretion to be exercised by the Minister. There was no error of law made out by Ground 6.
Ground 7 is in substance a repetition of the issues raised in Ground 1. It was not unreasonable for the Minister to identify that the applicant could make an application for protection. The Minister was not bound to determine the applicant’s claims of alleged fear upon return to his country of origin. The reasoning as to the applicant’s ability to make a protection visa does not reflect legal unreasonableness. No error of law is made out by Ground 7.
In relation to Ground 8, the applicant contended that the Minister had given effect to a non-existent principle. The Minister’s reasons are not to be read with a keen eye for error and are to be read as a whole. In considering Ground 8, it is relevant that the objects of the Act relevantly provide:-
Object of Act
(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.
(3) To advance its object, this Act provides for non-citizens and citizens to be required to provide personal identifiers for the purposes of this Act or the regulations.
(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.
(5) To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country.
Section 4(1) of the Act especially makes reference to regulating non-citizens in Australia. Australia is a constitution of democracy in which the rule of law is entrenched by the constitution. In fact, the constitution under Australian law entrenches a doctrine of supremacy of the rule of law. That supremacy of the rule of law means that all persons whether citizens or non-citizens must comply with the laws of the Commonwealth or applicable laws of the state or territory. The failure by the applicant in the present case to comply with the laws by reason of the offences committed is, in essence, a departure from the rule of law. No person is entitled to depart from the principles and supremacy of the rule of law, citizen or non-citizen.
It is apparent from the Minister’s reasons read as a whole that the Minister fully understood the nature of the statutory function that the Minister was performing in relation to the valuation of whether there was other reason to exercise the Minister’s discretion. This is a case where the Minister personally made the decision. The reference in paragraph 39 of the Minister’s statement of reasons, to non-citizens being expected to be law-abiding is a principle applicable to every person on Australian soil just as every person on Australian soil is bound by the principle as to the supremacy of the rule of law. The reference to the expectation that non-citizens will comply with the laws of the Commonwealth is not just an expectation. It is an obligation that all persons have. The reference to remaining in Australia as a privilege should not on a fair reading in the present case be understood as elevating the same to some unqualified or absolute proposition of right.
It is apparent on a fair reading of the Minister’s decision that the Minister was highly live to the entitlement of the applicant to make application for protection. On a fair reading, the reference to the expectation that non-citizens are law abiding was not one in which the Minister was suggesting that the applicant did not have a right to apply for protection or that Australia would not comply with its obligation for non-refoulement in respect of a person to whom Australia was found to have a non-refoulement obligation. Moreover, on a fair reading it is apparent that the Minister was identifying that expectation as a consideration. There is no basis to suggest on a fair reading of the Minister’s reasons that the reference to the consideration of non-citizens being law abiding, was being elevated to a principle of law.
Equally, the reference in the paragraphs under the conclusion by the Minister to the concept that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia is not one in which the Minister was doing more than identifying a general consideration in respect of community expectations. There is little doubt that community expectations reflect a concept that persons who commit serious crimes should expect to forfeit the benefit of a visa in respect of which compliance with Australian law is generally a condition in respect of that visa.
The scheme and structure of s.501 of the Act makes clear the importance of serious crimes in relation to the continuation of the holding of visas under the Act. I do not regard the Minister’s statement on a fair reading of the decision as a whole, to reflect any understanding or application by the Minister of a principle of law as was found in the decision in Tesic. In my opinion, the reasoning of the Minister in the present case expressly acknowledged the entitlement of the applicant to make application for protection. That is a real and significant distinguishing feature from the reasoning in Tesic.
It could not be said in the circumstances of the present case that the Minister by use of the expression, “principle”, had embraced a notion that there was a legal principle to the effect that the person who commits serious crimes should expect to forfeit the privilege of remaining in Australia, on a fair reading of the decision as a whole.
The Minister identified a further consideration in relation to community expectations of a consideration that cannot be said to be irrelevant for the purpose of s.501CA of the Act. The scheme of the Act and in particular s.501 of the Act, taken together with s.501CA of the Act, identifies a legislative scheme to address serious crimes and the consequences of those who are non-citizens. Neither the use of the word “principle” or “privilege” in paragraph 72 of the Minister’s statement of reasons reflects any erroneous understanding by the Minister that there was a principle of law to the effect that persons who commit serious crimes should expect forfeiture of visa entitlements in Australia.
The notion of protecting the Australian public and the importance of the assessment of the risk of repetition of offence by the applicant and the impact on the Australia community are obvious considerations in circumstances where a person has committed a serious crime. Community expectations are not irrelevant considerations for the purpose of s.501CA of the Act. I find the decision in Tesic is distinguishable from the circumstances of the present case. No jurisdictional error of the kind mentioned in Ground 8 is made out.
Ground 9 is in substance, a repetition of Ground 8, annexing the decision in Tesic. Ground 9 fails to make out any jurisdictional error.
Conclusion
Nothing said by the applicant identified any error of law by the Minister in the decision making process. On the face of the material before the Court, the Minister complied with the requirements of procedural fairness in the determination under s.501CA(4) of the Act. No jurisdictional error as alleged in the amended application is made out. The amended application dated 21 December 2016 is dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 18 January 2017
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