Does Section 501(6)(h) Migration Act, 1958 (Cth) require the Minister to be satisfied that the risk will materialise or that a person the subject of an Interpol notice presenting a risk to the Australian community is more probable than not?

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133 (30 July 2021)

Intro:-

This is an appeal from orders made by a judge of this Court quashing a decision made by the appellant, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister), under s 501(1) of the Migration Act 1958 (Cth) (Act) to refuse to grant the respondent a Protection (Class XA) visa (protection visa): ERY19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 569; (2020) 170 ALD 83 (primary judgment or J).

The primary judge upheld the respondent’s challenge to the Minister’s decision on the basis that the Minister misconstrued s 501(6)(h) of the Act, misapplied that provision to the facts of this case and, as a consequence, exercised his power under s 501(1) in a legally unreasonable manner.

Facts:-

The respondent is a citizen of the People’s Republic of China (PRC) who arrived in Australia in October 2012 as a holder of a tourist visa. Shortly before that visa expired, the respondent made an application for a protection visa, claiming to fear persecution on account of his religious beliefs.

On 12 March 2013, Interpol issued a red notice (IRN) at the request of the PRC authorities. The IRN stated that the respondent had been charged with “[d]efrauding the banks or other monetary institutions of loans” contrary to Article 193 of the Criminal Law of the PRC and that an arrest warrant had been issued in respect of the respondent by the Jintan Public Security Bureau in November 2012.

In a fax sent on 15 March 2013, responding to the Department’s letter, the respondent denied the embezzlement. He claimed that he was unable to pay a commission to a local government mayor for arranging a loan because a bank had reneged on a promise to give him a business loan, that the mayor now wanted revenge and that this was the source of the criminal charges.

In May 2019, the Department issued a letter to the respondent, enclosing a copy of the IRN and identifying s 501(6)(h) as the revised ground on which the Minister suspected he might not pass the character test.

Also in May 2019, the respondent responded to the letter, stating that the allegations in the IRN were “based on trumped up charges”. The respondent stated that his venture had failed and referred to an unpaid loan, adding again that the failure to repay loan monies was “not a crime”. He maintained his innocence, expressed regret in his past conduct and stressed that his “past mistakes [are] not likely to be repeated”. He further said that the charges were “aided and abetted by officials who expect [him] to continue paying bribes” upon his return to the PRC.

In October 2019, the Minister personally made a decision to refuse the grant of a protection visa to the respondent under s 501(1) of the Act. The Minister found (at [8]–[9]) that it was “a matter of objective fact” that an Interpol notice was in force in relation to the respondent and, in considering whether it was reasonable to infer from the IRN that the respondent posed a risk to the Australian community, had regard to “the seriousness of the alleged conduct” and “representations made on behalf of [the respondent] regarding the nature and validity of the IRN

The Minister then had regard to a number of discretionary considerations in determining whether to refuse the respondent’s application for a protection visa. The Minister acknowledged (at [32]) that the respondent had not been convicted of the alleged offence and denied having committed it, but recognised “the possibility that he is guilty of large-scale fraudulent activities”. Given this possibility, the Minister could not “rule out entirely the likelihood of [the respondent] having access to misappropriated funds or of repeating such conduct in Australia”. Accordingly, the Minister found “that there is a likelihood of [the respondent] offending in Australia” and gave “weight to the fact that if he did so, it could result in major financial losses to the members of the Australian community”. The Minister also observed (at [34]) that “[w]hile it has not yet been conclusively established that [the respondent] has actually committed a crime, I consider that the Australian community would expect that a person facing serious charges should resolve those matters before their visa application is approved.”

It will be necessary to engage at some length with the reasoning of the primary judge below, but at present it sufficies to note that in respect of these issues, his Honour found that: (1) the terms of s 501(6)(h) require that it must be reasonable to infer from the notice that the person would present, not might present, a risk to the Australian community or a segment of it; (2) in the circumstances, the Minister could not reasonably have inferred from the IRN that the respondent would present a risk to the Australian community or a segment of it.

Issues:-

(1) did the the primary judge err in holding that the Minister misconstrued and misapplied the statutory test for the drawing of a reasonable inference under s 501(6)(h) of the Act (Construction Ground); and

(2) did the primary judge err in holding that the Minister’s decision was legally unreasonable (Unreasonableness Ground).

Analysis:-

Examining the differing constructions

Regrettably, the Construction Ground arises in circumstances where the primary judge’s attention was not drawn to Thawley J’s decision in FUD18 v Minister for Home Affairs [2020] FCA 48; (2020) 168 ALD 474, delivered one month earlier, which also considered the proper construction of s 501(6)(h). This is significant for two reasons: first, the primary judge, unsurprisingly, proceeded on the basis that (at J [28]) “[t]o date, there is no authority in this Court or the High Court that has considered the proper construction of s 501(6)(h)”; and secondly, the conclusions reached by the two judges are inconsistent. This less than satisfactory state of affairs was said to be attributed partly to different legal teams on the matters and attempts by the Minister to prevent publication of the judgment in FUD18 (which ended up being entirely unsuccessful).

In FUD18, Thawley J made the following points concerning s 501(6)(h) of the Act (at [43]-[48]). First, read with s 501(1), s 501(6)(h) “directs attention to whether it is reasonable to infer from an Interpol Notice that, if the visa were not refused the person would present a risk”. Second, “the question whether a person would present a risk necessarily allows consideration of possibilities because it involves a consideration of what might or might not occur in the future”. Third, “the provision is not framed in terms of an inquiry into the probabilities of a person doing some specific act” and “[a]ll other things being equal, it is more difficult to reach a conclusion that a particular risk will eventuate than that a risk is present”. Fourth, in contrast to s 501(6)(d) and (g), “the provision does not identify any specific area or topic of risk” and “the area of risk ... is unconfined by the express words of the provision”.

The primary judge’s construction of s 501(6)(h) of the Act differed from Thawley J’s construction in two potentially important respects. First, his Honour noted that, unlike a number of other sections in the Act, s 501(6)(h) employed the word “would”, as opposed to “might”. The word “would” required a “higher probability” than the word “might” and conveyed that “it is expected that the risk will materialise” (emphasis in original): Judgment at [48]. Second, the primary judge considered that the word “risk” is used in s 501(6)(h) “as a noun meaning ‘a thing regarded as a threat or source of danger’” and was “not an expression of possibility, as in ‘to present a risk of danger.’

In determining which construction of s 501(6)(h) is to be preferred, it is necessary to consider the text, context and purpose of the provision.

The text, context and purpose of s 501(6)(h)

The text is the natural starting and ending place in any construction inquiry: Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 (at 519 [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ).

Immediately, one must appreciate that the term “would” in s 501(6)(h) is used in a prospective sense. It is enough to satisfy the subsection for it to be reasonable to infer from the Interpol notice that the person “would” present, if granted a visa, or if his or her visa is not cancelled, a “risk” to the Australian community or a segment of it. The prospective use of the word “would” in the phrase “would present a risk” leaves the word “risk” to require no more than a possibility of harm. Alternatively stated, the words “would present” only acknowledge that the risk (to the Australian community or a segment of it) is contingent upon the non-citizen being in Australia, and that the risk is the likelihood of a future event occurring.

In the end, and giving weight to the High Court’s remarks in Commissioner of Taxation v Consolidated Media Holdings (at 519 [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ) that the task of statutory construction must always return to the statutory text, the preferable view is that the construction adopted by Thawley J in FUD18 on this point is correct.

An objective test or a process of evaluation?

A final point of dispute that arises on the proper construction of s 501(6)(h) (set out at [64] above) focusses on the significance to be given to the word “reasonable”. The two competing positions can be summarised as follows:

(1) The submission of the appellant in FUD18 (endorsed by the respondent to the current appeal in oral submissions) was that s 501(6)(h) poses an objective question, namely: is it is reasonable to infer from the Interpol notice that the person would present a risk to the Australian community or a segment it? The consequence being that any inference drawn by the Minister must be based on the existence of facts which are sufficient to induce that state of mind in a reasonable person (objective reasonableness).

(2) The submission of the Minister was that s 501(6)(h), read with s 501(1), calls for the Minister to engage in an evaluative exercise as to whether the Minister is subjectively satisfied of the existence of a certain state of affairs, that is, he must ask himself: am I satisfied that it is reasonable to infer from the notice that the person would present a risk to the Australian community or a segment of it? The consequence being that for there to be jurisdictional error, the evaluation of the Minister must be one that is beyond the boundaries of a lawful decision because it is lacking rationality or an intelligible justification, such that it can be characterised as being legally unreasonable (legal unreasonableness).

The distinction is subtle but may be one of significance in an individual case. This, however, is not such a case. That is because we have concluded that the Minister’s reasons fail the test of objective reasonableness and are legally unreasonable, meaning it is unnecessary to form a concluded view on this issue. But a few observations may be made.

While initially it might be thought surprising that the Act imports notions of objective reasonableness, the weight of considerations appear to support such a conclusion

Therefore, while it is unnecessary in the present case to come to a concluded view on this element of the construction of s 501(6)(h), there is much to be said for the view that s 501(6)(h) poses a test of objective reasonableness.

The Unreasonableness Ground

With the proper construction of s 501(6)(h) now in mind, it is convenient to turn to the substance of the Unreasonableness Ground. As noted above, we have formed the view that the Minister’s reasons are unreasonable regardless of which construction is adopted; or, as the respondent colourfully but accurately put it, are “so irrational that it doesn’t matter what test is deployed”:

The Minister submitted that the primary judge’s erroneous construction of s 501(6)(h) affected his Honour’s findings as to whether the Minister could reasonably have inferred from the IRN that the respondent would present a risk to the Australian community or a segment of it.

The starting point in any inquiry as to whether s 501(6)(h) is enlivened must always be the Interpol notice. All things being equal, the Minister may reasonably infer that a person would present a risk to the Australian community or a segment of it from the Interpol notice itself. The difficulty with the reasoning of the primary judge is that, while his Honour saw the notice as the starting point of the inquiry, his immediate conclusion was that (at [54]–[55]):

"From what is stated in the IRN, it cannot reasonably be inferred that the applicant would present a risk to the Australian community, or a segment of that community. The IRN records no more than unproved allegations against the applicant and that he is wanted in the PRC for trial. There is nothing in the notice from which it can be inferred that there is a reasonable case to be made against the applicant, or even any evidence at all in support of the charges recorded in the notice.

Moreover, it is illogical and unreasonable to conclude on the basis of unsubstantiated allegations against someone that there is a risk of the person reoffending; until there is a reasonable basis to infer that the person offended in the first instance, there cannot be any reasonable basis to infer that they might reoffend."

With great respect to the primary judge who was given limited assistance on this point, these conclusions are inconsistent with the text of s 501(6)(h). Nothing in s 501(6)(h) calls for the Minister to be satisfied that the non-citizen in relation to whom an Interpol notice is in force actually offended in the manner described in the notice, that there is “a reasonable case to be made” against him or her, or that there is “evidence ... in support of the charges”. As Thawley J observed in FUD18 (at [61]), inferences can be made about whether a person might engage in some form of conduct in Australia considered to present a risk from what is accepted as having occurred, or possibly having occurred, in the past.

However, this does not automatically render the inference drawn by the Minister reasonable. Weight needs to be given to information, where it exists, which goes to confirming or denying, or bearing upon the credibility or reliability of, the information contained in the notice. To use an extreme example, if there was country information about Ruritania which said that all IRNs that it issues are bogus, then, as one would expect, it is unlikely that it is reasonable for the Minister to infer from the face of the notice alone that a person in respect of whom Ruritania had issued an IRN would present a risk to the Australian community or a segment of it.

Here, the primary judge’s findings of legal unreasonableness were said to be fortified by two pieces of information and how they were (or were not) dealt with by the Minister in his reasons: (a) the country information about the PRC’s criminal justice system; and (b) the purported link between the failure of the respondent to repay loans and the alleged embezzlement.

Country Information

The primary judge considered the country information set out and accepted in the Report, which found that the respondent is a person in respect of whom Australia owes non-refoulement obligations. Although not directly before the Minister, the primary judge (at [64]) found that the Minister was constructively aware of the contents of the Report. This country information included findings such as: (a) there is no presumption of innocence in the PRC and the criminal justice system is biased towards a presumption of guilt; (b) according to the Supreme People’s Court, in 2011 the combined conviction rate for first and second instance criminal trials was 99.9%; (c) most defendants in the PRC face significant bias in the criminal justice system and do not have adequate legal assistance; (d) one recent study found that approximately 95% of the criminal cases surveyed relied on defendant confessions and that the vast majority of defence efforts failed to challenge confessions; and (e) torture remains widespread in the PRC.

His Honour observed (at [64]) that while it was accepted by the Minister that he could rely on the allegations in the IRN from the PRC as having some substance, the information in the possession of the Department in relation to the same matter showed that advice to be doubtful. His Honour went on to conclude (at [64]) that:

Given the information in the knowledge of the Department in the context of the same matter under consideration by the Minister, and thus constructively within the knowledge of the Minister, allegations as to criminal conduct emanating from the PRC police authorities could not reasonably be taken at face value. No reasonable inference could accordingly be drawn by the Minister as to the risk presented by the applicant simply from the IRN itself.

There is no error in this conclusion being drawn, even if we have come to a different conclusion as to the construction of s 501(6)(h). There was no attack on the primary judge’s summary of the authorities (at J [59]–[64]) supporting the proposition that the contents of the Report were constructively before the Minister. Appreciating as much, regardless of the test one applies, anyone considering the present notice would need to exercise real caution in drawing an inference that someone alleged to have committed an offence in fact committed that offence, and thereby presents a risk to the Australian community or a segment of it. Indeed, despite an arrest warrant purportedly being issued by the Chinese authorities, the Minister’s conclusion (at [22]) that there is “a possibility of reoffending” in Australia cannot, without explanation, stand against the findings made in relation to the Chinese criminal justice system, particularly in circumstances where the allegations in the IRN have undergone no independent scrutiny, other than as to matters of form in accordance with Interpol’s Rules: see above (at [70(4)–(5)]).

Further, we should note it is of concern more generally that, while it is true inferences can be drawn from what is accepted as having occurred, or possibly having occurred, in the past, in parts of his reasons the Minister appears to proceed on the basis that the respondent has been proven to have offended in the manner alleged. For example, reference is made to the “seriousness of the [respondent’s] criminal offending” (at [39]); that a “perpetrator of this type ... has the capacity and may continue to have the motivation to repeat the conduct such that it cannot be said there is no risk of reoffending” (at [20]); that there is a potential for “further offending” and that the “Australian community could be exposed to (significant) harm should the [respondent] reoffend in a similar fashion” (at [36], erroneously numbered).

While respectfully disagreeing with some of the primary judge’s observations, we are satisfied that his Honour did not err in concluding that it cannot reasonably be inferred from the IRN that the respondent would present a risk to the Australian community or a segment of it and finding that the Minister’s exercise of discretion to refuse the respondent’s visa was infected by jurisdictional error.

Conclusion:-

One further point should be noted. It appears that while an order seeking a writ of mandamus was sought below directing the Minister (whether personally or by his delegate) to consider and determine the respondent’s application for a protection visa according to law, no such order was made by the primary judge, despite his Honour quashing the decision of the Minister. In all the circumstances, the appropriate course is for this Court to make an order to such effect.

For the reasons we have explained, the appeal should be dismissed. Costs should follow the event.