Salahuddin v Minister for Immigration and Citizenship

Salahuddin v Minister for Immigration and Citizenship involved the respondent’s appeal against the decision of the Administrative Appeals Tribunal (AAT) to affirm the Minister’s decision to cancel the applicant’s visa on the ground that he failed the character test under section 501 of the Migration Act 1958. The primary issue before the court was whether the AAT fell into jurisdictional error by failing to consider the Ministerial Direction Number 55, which sets out the considerations to be taken into account when determining whether a visa holder represents an unacceptable risk of harm to the Australian community.

The court held that although the AAT did not expressly mention the two matters referred to in clauses 9.1.2(1)(a) and (b) of the Direction, it implicitly took them into account in its decision. The court reasoned that the Tribunal's consideration of the nature of the harm to the community should the applicant re-offend and the likelihood of the applicant re-offending, demonstrated that it had made the required assessment. The court found that the AAT’s conclusion that the applicant was unlikely to break his drug addiction and that it was almost inevitable that he would re-offend by committing the same sort of offences as were demonstrated in his existing criminal history, indicated that the Tribunal had considered both matters.

The court further noted that the assessment required by the Direction was directed to the future, and the decision-maker was required to consider whether the person represented an unacceptable risk of harm. In making this assessment, the decision-maker must have regard to both the nature of the harm should the person re-offend and the likelihood of the person re-offending. The court held that the Tribunal had made this assessment by reference to the nature of the offences committed by the applicant in the past and the link to his drug addiction. The court found no tension between this remark and the Tribunal's finding at [41].

ORDERS:
1. The application be dismissed with costs.