FEDERAL COURT OF AUSTRALIA
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
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- AGLC
- Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
- Case
- [2015] FCAFC 83
- Decision Date
CaseChat Overview and Summary
The primary legal issues in this case were whether the risk of future harm to the Australian community was a mandatory relevant consideration when exercising the power under section 501 of the Migration Act, and whether the Minister had unreasonably departed from a previous decision of a Full Court. The appellant argued that the Minister had failed to take into account a mandatory relevant consideration, which led to an unreasonable decision.
The court found that the risk of harm to the Australian community was not a mandatory relevant consideration when exercising the power under section 501 of the Migration Act. The court noted that different views had been expressed by different Judges on this issue. While some Judges, such as Mortimer J, had concluded that the risk of harm was a mandatory relevant consideration, others, like Jessup J, disagreed. The court held that the Minister was not bound to evaluate the likelihood of a person engaging in future conduct which may cause harm, and that the power to cancel a visa under section 501(2) of the Act might validly be exercised upon the Minister taking into account no consideration other than the fact that the visa holder did not pass the character test.
The court further found that the Minister's decision was not unreasonable, as the Minister had an evident and intelligible basis for the decision. The court rejected the appellant's argument that the Minister had departed from a previous decision of a Full Court.
In conclusion, the court dismissed the appeal and ordered that the appellant pay the costs of the respondent. The court also granted leave to further amend the Notice of Appeal.
Orders
Orders of the court
1. Leave is granted to amend the Notice of Appeal in the form of the Further Amended Notice of Appeal filed on 28 May 2015.
2. The appeal is dismissed.
3. The Appellant is to pay the costs of the Respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The first Ground of Appeal is rejected.Consideration of the risk of harm The second Ground of Appeal is also expressed in a number of different ways. In substance it claims that the Minister failed “to take into account a mandatory relevant consideration, being the risk of future harm to the Australian community if the appellant were to remain in Australia…”. A variant of the manner in which that argument is expressed is to claim that the Minister erroneously “relied … upon a principle that ‘a non-citizen who commits a serious crime should forfeit the privilege of staying in Australia…’”. This Ground of Appeal further claims that the “Minister failed to complete his consideration on the merits of the question whether the anticipated risk of future harm constituted an unacceptable risk of harm to the Australian community”. Different views have been expressed by different Judges of this Court as to whether the “[t]he risk of harm to the Australian community” is a mandatory relevant consideration when exercising the power conferred by s 501 of the Migration Act. In Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, (2014) 225 FCR 424, for example, Mortimer J concluded that it was. Her Honour there canvassed the authorities and relevantly concluded:[122] None of the foregoing contradicts the well-established proposition that, although the discretion is not fettered by any express limitation, it must nevertheless be exercised by reference to considerations identified from the subject matter, scope and purpose of the statute … What is critical then is the identification of the particular relevant consideration and how the subject matter, scope and purpose of the statute might be said to require that it be taken into account …[123] The risk of harm to the Australian community is such a matter. Without assessment of this risk being an integral aspect of the exercise of the power in s 501(2), it is difficult to see how the power would otherwise stay within constitutional limits and advance the purposes and objects of the Migration Act in general, and of the cancellation provisions in particular.The Full Court in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 had occasion to consider this conclusion of her Honour. But different views were there reached. Rangiah J, with whom North J agreed, relevantly observed:[70] Mortimer J decided that the exercise of the discretion under s 501(2) requires the risk of harm to be considered and that an examination of the likelihood of a person engaging in future conduct which may cause harm is an essential part of any assessment of the risk that the person poses to the Australian community.[71] If the Minister is to be held to be bound to examine the likelihood of a person engaging in future conduct which may cause harm in every exercise of the discretion under s 501(2), then an implication to that effect must appear from the subject matter, scope and purpose of the Act. It is not enough to argue that principles concerning other statutory provisions with a protective purpose must apply analogously to s 501(2). It is one thing to conclude, as I have, that the Minister must consider the risk of harm, but it is a step removed to decide that the statute contains an implication that the Minister must evaluate the risk of harm in a particular way.[72] The cases concerning s 501A relied on by the Minister … establish that the seriousness of an offence may, of itself, lead the Minister to conclude that a visa should be cancelled in the national interest. I consider that the seriousness of an offence or other relevant past conduct may also lead the Minister to conclude that a visa should be cancelled in the discretion under s 501(2) without evaluating the likelihood that the visa holder will reoffend or engage in harmful conduct. It is implicit in s 501 that Parliament considers that a person who does not pass the character test poses a risk of harm of some kind, although that does not lead to a presumption that the discretion should be exercised in a particular way. In a particular case, however, the Minister may take the view the seriousness of the offence or conduct means that any risk is intolerable. It follows that in exercising the discretion in s 501(2), the Minister is not bound to engage in an evaluation of the likelihood of a person engaging in future conduct which may cause harm.Justice Jessup, however, dissented. In his Honour’s view, Mortimer J had “misstated the law”. In expressing his reasons for disagreeing with the conclusion of her Honour, Jessup J referred to her Honour’s reasons and her reference to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 and concluded:[7] In my respectful view, the judgment in Tanielu misstated the law and should not be followed. In Peko-Wallsend, Mason J did not say that, where the discretion to be exercised was unconfined by the terms of the statute, it was in all cases imperative for the decision-maker to identify, from the subject matter, scope and purpose of the relevant provision, the considerations that were, implicitly, to be taken into account. What his Honour said, in the concluding sentence in the passage set out in para 4 above, was that, where the discretion was unconfined in this way, the court would not find that the decision-maker was bound to take a particular matter into account unless an implication to that effect was to be found in the subject matter, scope and purpose of the relevant statute. That is to say, only if it were apparent from the subject matter, scope and purpose of the Act that the power in question ought not to be exercised without taking a particular consideration into account would a court hold that the power could not be so exercised.[8] The effect of the judgment in Tanielu, in my respectful view, was to turn this negative stipulation into a positive requirement, applicable in all cases in which there was no explicit setting out of the considerations which were required to be taken into account as part of the valid exercise of a discretionary power which is, in terms, unconfined. This does not represent the law as articulated by Mason J in Peko-Wallsend.[9] Moreover, it is not as though s 501(2) of the Act is utterly devoid of indications as to the considerations which ought to inform the exercise of the discretion for which it provides, such as, for example, a provision which said no more than that the Minister was empowered to cancel any visa at any time. The subsection is within a category of provisions, regularly found in legislation, which specify preconditions to the taking of an executive step, and thereby provide the context in which the discretion arises. For example, a power given to a local council to remove for disposal an unregistered vehicle left standing by the kerb for more than a month could be exercised on no other ground than that there was such a vehicle by the kerb. Likewise, in my view, the power to cancel a visa under s 501(2) of the Act might validly be exercised upon the Minister taking into account no consideration other than that set out in the subsection, namely, that, in circumstances where the Minister reasonably suspected that the person did not pass the character test, the person did not satisfy the Minister that he or she did pass that test.[10] This is not to hold that, in addition to the visa holder’s failure to satisfy the Minister that he or she did pass the character test, the discretion for which s 501(2) provides is not a real or useful one. There must be a decision made in the particular case. There may always be particular circumstances to which the Minister might validly give attention before exercising the power. But it is to hold that the power may be validly exercised in a situation in which, having turned his or her mind to the facts of the case, the Minister chooses not to take into account any consideration other than the fact that the visa holder does not pass the character test. There is, in my view, nothing in the subsection, or elsewhere in the Act, that has the effect that the power may not be validly exercised unless the Minister takes account of the risk posed to the Australian community of the visa remaining uncancelled.