Roach v Minister for Immigration and Border Protection

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FEDERAL COURT OF AUSTRALIA

Roach v Minister for Immigration and Border Protection [2016] FCA 750

File number: NSD 664 of 2015
Judge: PERRY J
Date of judgment: 24 June 2016
Catchwords:

MIGRATION - application for review of Minister’s personal decisions to refuse applicant’s visa on character grounds without notice under s 501(3) of the Migration Act 1958 (Cth) and not to revoke refusal decision under s 501C(4) after receiving representations – where Minister found applicant failed character test under s 501(6)(b) as he was suspected of being a member of a group suspected of criminal conduct – where Minister relied on information protected against disclosure under s 503A - where no opportunity to be heard on exercise of discretion if Minister chose to refuse visa application on character grounds under s 501(3) rather than s 501(1) (“no discretion consequences”)

MIGRATION - whether Minister failed to take into account mandatory relevant consideration of risk of harm to Australian community posed by the applicant in the exercise of discretion under s 501(3) – whether authorities on relevance of risk of harm under s 501(1) and (2) distinguishable – whether Minister failed to take into account the legal consequences of a decision to refuse the visa under s 501(3) – whether failure to have regard to “no discretion consequences” is a jurisdictional error - whether Minister failed to give primary consideration to best interests of applicant’s children - whether Minister misconstrued “member of a group” in s 501(6)(b) – whether applicant is not a “member of a group” unless he has sympathy with, support for, or involvement in the group’s suspected criminal conduct – decision in Minister for Immigration v Haneef (2007) 163 FCR 414 distinguished - whether Minister proceeded on erroneous footing that it was open for the applicant to satisfy him that he passed the character test given the extent and relevance of information protected under s 503A – construction of “involved in criminal conduct” in s 501(6)(b) – whether adverse inferences can be drawn from Minister’s failure to disclose information protected by s 503A - whether Minister erred in forming a state of satisfaction as to national interest – application for judicial review allowed and Minister’s decisions quashed

CONSTITUTIONAL LAW – where not appropriate to consider constitutional validity of provisions when unnecessary to do justice and determine the rights of the parties
Legislation:

ActsInterpretation Act 1901 (Cth) ss 15AB(1)(a), 25D

Corporations Act 2001 (Cth) s 79

Competition and Consumer Act 2010 (Cth) Sch 2, s 2(1)

Fair Work Act 2009 (Cth) s 550

Judiciary Act 1903 (Cth) s 78B

Migration Act 1958 (Cth) ss 4, 501(1), 501(2), 501(3), 501(6)(b), 501C, 503A

Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)

Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth)

Migration Regulations 1994 (Cth)

Explanatory Memorandum to the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998

Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014

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Details
Case
[2016] FCA 750
Decision Date

CaseChat Overview and Summary

The case of Roach v Minister for Immigration and Border Protection concerns an application for judicial review of the Minister's decision to refuse the applicant's visa on character grounds and not to revoke that decision after receiving representations. The applicant, who had applied for a Resident Return visa, was found by the Minister to have failed the character test under section 501(6)(b) of the Migration Act 1958 (Cth) due to suspicions that he was a member of a group involved in criminal conduct. The Minister's decision was based, in part, on information protected against disclosure under section 503A of the Act. The applicant argued that the Minister failed to take into account the risk of harm to the Australian community, did not give primary consideration to the best interests of the applicant's children, and misconstrued the meaning of "member of a group" in section 501(6)(b).

The legal issues the court had to decide included whether the Minister failed to consider the mandatory relevant consideration of the risk of harm to the Australian community, whether the Minister failed to consider the legal consequences of a decision to refuse the visa, and whether the Minister's failure to have regard to the "no discretion consequences" amounted to a jurisdictional error. The court also had to consider whether the Minister misconstrued the term "member of a group" and whether the Minister erred in forming a state of satisfaction as to the national interest.

In its reasoning, the court found that the Minister did indeed fail to consider the risk of harm to the Australian community, a mandatory relevant consideration under section 501(3) of the Act. The court held that the Minister's failure to consider this risk rendered the decision invalid. The court also found that the Minister did not give primary consideration to the best interests of the applicant's children, which was a relevant consideration under section 501(3)(c) of the Act. Additionally, the court determined that the Minister misconstrued the term "member of a group" in section 501(6)(b) and that the Minister erred in forming a state of satisfaction as to the national interest. Consequently, the court allowed the application for judicial review, quashed the Minister's decisions, and issued a writ of mandamus requiring the respondent to determine the applicant's visa application according to law. The question of costs was reserved.

Orders

Orders of the court

1. The application is allowed.

2. A writ of certiorari issue, quashing the decision of the respondent made on 3 May 2015 under s 501(3) of the Migration Act 1958 (Cth) to refuse the applicant a visa.

3. A writ of certiorari issue, quashing the decision of the respondent made on 29 June 2015 under s 501C(4) of the Migration Act 1958 (Cth) not to revoke the decision referred to in Order 2.

4. A writ of mandamus issue, requiring the respondent determine the applicant’s application for a Five Year Resident Return (Class BB) visa according to law.

5. The question of costs is reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Unlike non-disclosable information, information protected by s 503A is not expressly exempted from disclosure pursuant to the obligation in s 501C(3). Nonetheless, s 503A operates across the entire statutory scheme including to s 501C(3): Vella at 79 [72]-81 [83] (Buchanan, Flick and Wigney JJ). The purpose of the protection afforded by s 503A is, as the Full Court held in Vella, to ensure that the confidentiality of information conveyed to the Minister in accordance with the provision is maintained (at 78 [70]). As such, s 503A and the scheme relating to non-disclosable information are plainly intended to operate so as to abrogate the natural justice hearing rule. The extent to which s 503A and the requirement not to disclose non-disclosable information apply so as in fact to deprive a person of an opportunity to be heard in compliance with the requirements of natural justice will turn on the facts of the individual case. 4. BACKGROUND4.1 The application for a Resident Return visa As earlier noted, on 31 March 2015, the applicant applied for a Resident Return visa. The applicant departed for Thailand allegedly for a fitness training tour with a group of clients on 10 April 2015 before providing the necessary police clearance and before his visa application was decided. It appears that he intended to return on 23 April 2015. In his submission to the Minister on the non-revocation decision, the applicant alleges that he left Australia based upon assurances by the Department that a 30-day extension could be granted if the Resident Return visa processing had not been finalised before his departure. 4.2 The refusal decision4.2.1The material before the Minister An issues paper (the first issues paper) prepared by the Department was before the Minister at the time that he made his decision to which a number of documents were attached. These comprised the following: (1)Attachment A: movement records of the applicant identifying occasions on which the applicant used his visa to travel outside Australia and return for short periods. (2)Attachment B: Australian National Police Certificate dated 16 April 2015.(3)Attachment C: Strong and Secure: a Strategy for Australia’s National Security, a publication of the Australian Government Department of the Prime Minister and Cabinet, which explains Australia’s national security framework and examines the strategic outlook and sets priorities. The key national security activities identified included preventing, detecting and disrupting serious and organised crime as well as, for example, countering terrorism, espionage and foreign interference, and preserving Australia’s border integrity. (4)Attachment D: A press release of the ACC Media Centre, Serious and Organised Crime Coordination Committee entitled “National task force to set its sights on OMCGs: Serious and Organised Crime Coordination Committee”, dated 20 September 2014.(5)Attachment E: An ‘ICSE’ printout dated 21 March 2005 disclosing that the applicant had changed his name in 2001 but obtained a UK passport in 2002 in the name of Roach.(6)Attachment F: The applicant’s Application for a Class BB Five Year Resident Return lodged on 31 March 2015.(7)Attachment G: A news article published in The Courier entitled “Bikie fined for Bandido funeral ride” dated 21 May 2009. The article stated that police and a reporter had photographed the applicant riding a Harley Davidson motorbike among a large contingent of Bandido Motorcycle Club members on 31 October and that the applicant subsequently pleaded guilty to charges of unlicensed driving and using an unregistered vehicle on a highway.

Evidence

Evidence Before The Court

The remaining grounds of the application should be dismissed save that, in circumstances where the relief sought would lie in any event, it would be inappropriate for me to embark upon a consideration of the questions of constitutional invalidity raised by grounds 6, 6A and 8 of the application for reasons I later explain. 2. EVIDENCE No evidence was led by the applicant. The Minister led evidence comprising the notices of the two decisions given to the applicant, together with the attachments to those notices. The attachments included the issues papers prepared by the Department of Immigration and Border Protection (Department) for each decision, the Minister’s statements of reasons in each decision, and information relevant to those decisions. Further, in the case of the non-revocation decision only, the issues paper also attached correspondence from the applicant’s wife enclosing a folder which contained a large number of supporting documents: see further below at [51]. This constituted the totality of the material before the Minister in relation to the decisions aside from material which was protected under s 503A of the Act contained in Attachment X to each of the issues papers (the protected material). The protected material has not at any time been provided to the applicant or his legal representatives; nor has its substance been disclosed to them. This material is not before the Court. 3. THE STATUTORY FRAMEWORK The object of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens” (s 4(1)). It is not in dispute that the applicant is a non-citizen. The object in s 4(1) is advanced under the Act by making provision for the grant of visas permitting non-citizens to enter or remain in Australia. As s 4(2) makes express, the Parliament intends that the Act be the sole source of the right of non-citizens to enter or remain in Australia. A non-citizen in the migration zone is a lawful non-citizen if she or he holds a visa that is in effect, absent which the non-citizen is an unlawful non-citizen (ss 13(1) and 14(1) of the Act). Subject to the Act, the Minister may grant a non-citizen a visa under ss 29(1). A non-citizen who wants a visa must apply for a visa of a particular class (s 45). The Minister must grant a visa if satisfied that the criteria are met including, importantly, that the grant of the visa is not prevented by s 501 of the Act and, if not so satisfied, must refuse to grant the visa (s 65(1)(a) and (b) of the Act). Section 501(1) and (2) of the Act in turn relevantly provide that:Decision of Minister or delegate—natural justice applies(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.Note: Character test is defined by subsection (6).(2)The Minister may cancel a visa that has been granted to a person if:(a)the Minister reasonably suspects that the person does not pass the character test; and(b)the person does not satisfy the Minister that the person passes the character test.

Decision

Reasons for decision

As earlier noted, on 31 March 2015, the applicant applied for a Resident Return visa. The applicant departed for Thailand allegedly for a fitness training tour with a group of clients on 10 April 2015 before providing the necessary police clearance and before his visa application was decided. It appears that he intended to return on 23 April 2015. In his submission to the Minister on the non-revocation decision, the applicant alleges that he left Australia based upon assurances by the Department that a 30-day extension could be granted if the Resident Return visa processing had not been finalised before his departure. 4.2 The refusal decision4.2.1The material before the Minister An issues paper (the first issues paper) prepared by the Department was before the Minister at the time that he made his decision to which a number of documents were attached. These comprised the following: (1)Attachment A: movement records of the applicant identifying occasions on which the applicant used his visa to travel outside Australia and return for short periods. (2)Attachment B: Australian National Police Certificate dated 16 April 2015.(3)Attachment C: Strong and Secure: a Strategy for Australia’s National Security, a publication of the Australian Government Department of the Prime Minister and Cabinet, which explains Australia’s national security framework and examines the strategic outlook and sets priorities. The key national security activities identified included preventing, detecting and disrupting serious and organised crime as well as, for example, countering terrorism, espionage and foreign interference, and preserving Australia’s border integrity. (4)Attachment D: A press release of the ACC Media Centre, Serious and Organised Crime Coordination Committee entitled “National task force to set its sights on OMCGs: Serious and Organised Crime Coordination Committee”, dated 20 September 2014.(5)Attachment E: An ‘ICSE’ printout dated 21 March 2005 disclosing that the applicant had changed his name in 2001 but obtained a UK passport in 2002 in the name of Roach.(6)Attachment F: The applicant’s Application for a Class BB Five Year Resident Return lodged on 31 March 2015.(7)Attachment G: A news article published in The Courier entitled “Bikie fined for Bandido funeral ride” dated 21 May 2009. The article stated that police and a reporter had photographed the applicant riding a Harley Davidson motorbike among a large contingent of Bandido Motorcycle Club members on 31 October and that the applicant subsequently pleaded guilty to charges of unlicensed driving and using an unregistered vehicle on a highway. While Attachment X was also provided to the Minister, the first issues paper explained that the information in that attachment is protected from disclosure under s 503A of the Act. The first issues paper advised the Minister first that in light of all of the above material, being the open source information at Attachments C and D and the information at Attachment X:…it is open for you to reasonably suspect that Mr ROACH has been or is a member of a group and that the group has been or is involved in criminal conduct. Finding15. In light of the above, it is open to you to reasonably suspect that Mr ROACH does not pass the character test by virtue of paragraph 501(6)(b) in that you may reasonably suspect that he has been or is a member of a group and that group has been or is involved in criminal conduct.

Ratio Decidendi

Legal Principle Established

The Minister concluded by deciding not to revoke the decision refusing the applicant’s application for a visa. 5. CONSIDERATION: VALIDITY OF THE REFUSAL DECISION UNDER S 501(3)5.1 Introduction Before turning to the remaining grounds, it is convenient first to consider grounds 2 and 6B as, for the reasons set out below, the applicant has established that the Minister’s decision is invalid on these grounds. 5.2 Failure to consider risk of harm to the Australian community posed by the applicant’s presence in Australia (ground 2)5.2.1The issues The applicant identifies ground 2 of the judicial review application as involving two propositions: (1)first, the Minister was obliged to consider the risk of harm to the community posed by the applicant’s presence; and (2)secondly, the Minister in fact failed to consider that risk. As to the first proposition, the applicant relies upon the Full Court’s decision in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; (2015) 230 FCR 367 (Moana) in support of the proposition that the Minister was under a duty to “consider whether there [was] a risk to the of harm to the Australian community posed by the continued presence of [Mr Roach] in Australia and to take into account any such risk” (citing Moana at [1] and [66], and Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 (Tanielu) at [101]-[152]). As the Full Court observed in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513 (Ayoub) at 522 [33], different views have been expressed by different judges of this Court as to whether the risk of harm to the Australian community is a mandatory relevant consideration: see also Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 at [22] (the Court). The relevant authorities are explained in Ayoub at 522 [34]- 525 [38]. In Ayoub, the Full Court stated that it had reservations about the concern expressed by Mortimer J in Tanielu at 450 [123] to incorporate the risk of harm to the Australian community as “an integral aspect of the exercise of the power in s 501(2)”, despite the majority in Moana following this aspect of Tanielu: Ayoub at 525 [37]. However, the Full Court in Ayoub ultimately found it unnecessary to resolve the question of whether, as the Minister submitted, Moana was plainly wrong and should be overruled: Ayoub at 525 [39]. The Minister made a formal submission that the decision in Moana was plainly wrong and should be overruled, acknowledging that, as a single judge, I am bound to apply the decision in Moana unless it is distinguishable: Berryman v Minister for Immigration and Border Protection [2015] FCA 616; 235 FCR 429 at 435 [20] (Flick J). The Minister’s primary submission therefore is that the decision in Moana is distinguishable. 5.2.2The decision in Moana Moana concerned a challenge to a decision by the Minister personally to cancel the appellant’s visa under s 501(2) of the Act. The Minister found that the appellant had a substantial criminal record and therefore failed the character test under s 501(6). The Minister decided to exercise his discretion to cancel the visa on the ground that the appellant represented an unacceptable risk of harm to the Australian community and the protection of the Australian community outweighed any countervailing considerations in the appellant’s favour.