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Was the Minister prevented from exercising discretion to refuse visa under S 501 of the Migration Act, 1058 (Cth) ("the Act") only because AAT concluded applicant wasn't a “danger to the Australian community” pursuant to S 36(1C)(b) of the Act?

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EBD20 [2021] FCAFC 179 (13 October 2021)

Intro:-

The Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs appeals from orders made by the primary judge in this Court’s original jurisdiction, quashing a decision of the Minister to refuse to grant the respondent a Protection (Class XA) visa on character grounds under s 501(1) of the Migration Act 1958 (Cth).

Facts:-

EBD20 is a male citizen of Iraq who arrived in Australia in 1997 at the age of 7 as the holder of a Refugee and Humanitarian (Class XB) visa. He has been convicted of a number of crimes, the first in 2004, for robbery in company. On 5 October 2012, EBD20 was sentenced in relation to four offences to which he had pleaded guilty, described next. On 8 May 2012, EBD20 pleaded guilty to two offences of wounding in company on 30 November 2010. He was, at the time, a member of the Notorious motorcycle gang. He was one of twelve men who arrived in five cars at a café in Mount Druitt where the treasurer of the Comanchero motorcycle gang was attacked, including by EBD20 with a baseball bat. On 15 May 2012, EBD20 pleaded guilty to two counts arising from events which occurred on 21 February 2011. EBD20 pleaded guilty to attempted specially aggravated break and enter with intent to intimidate. The circumstances of special aggravation, giving rise to count 2, were being armed with a dangerous weapon. One of the co-offenders had a Bentley twelve gauge pump action shotgun; another had .357 revolver and EBD20 was armed with a knife. The total sentence imposed was 5 years, with an overall non-parole period of 34 months.

EBD20’s Refugee and Humanitarian (Class XB) visa was cancelled on 6 July 2015 under s 501(3A) of the Act. That section provides for mandatory cancellation if the Minister is satisfied that a person does not pass the “character test”. EBD20’s application under s 501CA to revoke the cancellation decision was unsuccessful.

EBD20 applied for a Protection (Class XA) visa on 15 June 2017. That is the visa application the subject of this appeal. On 19 October 2017, a delegate of the Minister refused to grant the visa because of the application of s 36(1C)(b) of the Act. Section 36 includes:

36 Protection visas—criteria provided for by this Act

(1A) An applicant for a protection visa must satisfy:

(a) both of the criteria in subsections (1B) and (1C); and

(b) at least one of the criteria in subsection (2).

(1B) ...

(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a) is a danger to Australia’s security; or

(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

The Tribunal’s s 36(1C) decision

EBD20 successfully sought review in the Administrative Appeals Tribunal. The Tribunal made its decision and published its reasons on 3 October 2018 (hereafter “T”). The Tribunal concluded that there were not reasonable grounds for considering that EBD20 was “a danger to the Australian community”, stating at T[22] and T[48]:

... I have had the advantage of seeing and hearing the applicant in the witness box and of hearing the evidence of those who gave evidence on his behalf. For reasons which follow, I have decided that the applicant does not constitute a danger to the Australian community ...

Putting the various findings I have made together as to the position of the applicant since his last offending in 2011, and having attempted to estimate him in the witness box, and having heard what was said about him by his intended wife and family members, I do not think that there are reasonable grounds for considering him to be a danger to the Australian community. I think it is likely that the community will be safe from him. The reviewable decision will therefore be set aside and remitted to the respondent for reconsideration with the direction that the applicant is not a danger to Australia.

The Tribunal made the following decision under s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act):

The reviewable decision is set aside and remitted to the respondent for reconsideration with the direction that the applicant is not a danger to Australia.

The Minister’s decision to refuse the grant of a Protection visa

In accordance with the Tribunal’s decision, the matter was remitted for reconsideration. Consistently with the Tribunal’s direction, the Minister – by his delegate or otherwise – did not decide that the criterion in s 36(1C)(b) was not satisfied. Rather, on 8 October 2020, the Minister personally refused to grant the Protection visa, because the Minister was not satisfied that the respondent passed the “character test” in s 501(6) of the Act and, on that basis, decided to exercise his discretion under s 501(1) to refuse to grant the visa

The Minister’s decision was accompanied by a statement of reasons (hereafter “D”), which included:

CHARACTER TEST

...

[7] I take into account the submissions by made by [EBD20]’s representative, who makes reference to the s 36(1C) finding by the Administrative Appeals Tribunal (AAT) on 3 October 2018. His representative submits that the general power to refuse [EBD20]’s visa on the basis that he does not pass the character test is not applicable where there is a specific duty under section 36(1C), which provides that [EBD20] is eligible for the visa provided he is not a danger to Australia’s security or a danger to the Australian community.

[8] However, I do not consider those submissions to throw any doubt on the accuracy or currency of information contained in [EBD20]’s criminal history certificates or the sentencing remarks of the District Court of New South Wales dated 5 October 2012. Furthermore, I note that [EBD20] has stated that he accepts the findings of the court and the sentence imposed for his criminal offending.

[9] As a result of the sentence of imprisonment, [EBD20] has a substantial criminal record. I find that he does not pass the character test by virtue of s 501(6)(a) of the Act with reference to s501(7)(c) of the Act and that he has not satisfied me that he passes the character test.

Issues:-

a) The Minister contended that the Tribunal’s s 36(1C) decision was not a mandatory relevant consideration in relation to his exercise of the discretion under s 501(1) and that the consideration given by the Minister to the Tribunal’s decision was not such (or so inadequate) as to demonstrate or give rise to jurisdictional error.

b) Was the Minister’s decision legally unreasonable?.

c) Did the Minister err by failing to give “proper, genuine or realistic consideration” to the Tribunal’s reasons?

Consideration:-

Granting or refusing a visa under s 65

The grant or refusal of a visa occurs under s 65 of the Act. The Minister is to grant a visa “if satisfied” that various criteria have been met and that the grant of the visa is not prevented by various provisions including s 501. Section 65 provides:

65 Decision to grant or refuse to grant visa

(1) Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:

(a) if satisfied that:

(i) the health criteria for it (if any) have been satisfied; and

(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv) any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b) if not so satisfied, is to refuse to grant the visa.

One of the criteria which the Minister must be satisfied has been met is that provided by s 36(1C)(b): s 65(1)(a)(ii). One of the matters which the Minister must be satisfied does not prevent the grant of the visa is s 501(1): s 65(1)(a)(iii).

Section 36(1C) enacts into domestic law Australia’s interpretation of Article 33(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967. Article 33(1) prohibits the expulsion (or refoulement) of a refugee to places where his or her life or freedom would be threatened on account of a convention reason. Article 33(2) provides:

"The benefit of [Article 33(1)] may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."

Whilst the issues raised by s 36(1C)(b) and 501(1) might overlap, the statutory questions posed by the provisions are different in many respects. Section 36(1C) does not provide a discretionary power. Rather, it provides, through the mechanism of a criterion of eligibility for a protection visa, a limited exception to Australia’s non-refoulement obligation. Reflecting the language of Art 33(2), s 36(1C)(b) contains a requirement that the view taken by the Minister must be taken “on reasonable grounds”.

Section 501(1) confers a discretionary power to refuse the grant of any visa “if the person does not satisfy the Minister that the person passes the character test”. Section 501(1) does not expressly require any consideration to be given to whether a person is a “danger”. Unlike s 36(1C), s 501(1) applies to all visas. The discretion in s 501(1) is intentionally broad. One of the matters the Minister typically, if not invariably, takes into account in considering the discretion is risk to the Australian community.

The criterion for eligibility for a visa in s 36(1C)(b) and the discretion not to grant the visa under s 501(1) serve different purposes, albeit facts relevant to one might also be relevant to the other. In KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1; [2020] FCAFC 108 at [284], O’Callaghan and Steward JJ observed:

... If an applicant fails to satisfy s 36(1C) they will not be eligible for a visa. In such a case, there will be no role for s 501 to play as there will simply be nothing to refuse. If an applicant satisfies s 36(1C), he or she may, like all other visa applicants in Australia, be subject to the Minister’s discretionary powers in s 501. In this way, and in our view, ss 36(1C) and 501(1) are cumulative requirements.

The delegate’s decision the subject of the Tribunal’s review was not one which concerned s 501(1). Before the matter was remitted by the Tribunal, there was no necessary occasion for the Minister to consider the operation of the discretion in s 501(1) given that the delegate took the view that there were reasonable grounds for considering EBD20 was “a danger to the Australian community”.

The Tribunal appears to have accepted the evidence of the clinical psychologist that EBD20 had a low to moderate risk of re-offending. The Tribunal must, however, have considered that the risk of recidivism was not sufficiently high as to warrant a conclusion that there were reasonable grounds for considering EBD20 “a danger to the Australian community”.

Unsurprisingly in light of the material before the Tribunal, including the expert evidence it apparently accepted, the Tribunal did not conclude that EBD20 posed no risk.

The Tribunal’s reasons must be read in the context that the level of risk was being assessed in order to answer the specific question posed by s 36(1C)(b), namely whether there were reasonable grounds for concluding that EBD20 was “a danger to the Australian community” and in the context of its findings, including its apparent acceptance of evidence consistent with an ongoing low level risk. At T[48], the learned Deputy President stated:

... I do not think that there are reasonable grounds for considering him to be a danger to the Australian community. I think it is likely that the community will be safe from him.

This statement does not involve a conclusion that EBD20 posed no risk. It is a conclusion that the community was likely to be safe. It was a very favourable conclusion in favour of EBD20, but it was not one which went so far as to say he posed no risk. The Tribunal’s view was that the level of risk posed by EBD20 was not sufficient for it to be said that there were reasonable grounds for considering EBD20 to be “a danger to the Australian community”.

It might be observed that one does not know what decision the Tribunal would have reached if the Tribunal had been asking itself whether there was “a risk to the Australian community” at a level sufficient to warrant exercise of the broad discretion under s 501(1) to refuse the visa. Indeed, one does not know what test the Tribunal would have adopted if it had embarked on that exercise, or what level of risk it would have regarded as tolerable, for the simple reason that it was not reviewing any decision involving such a question.

It might be further observed that, if the review was one concerning the exercise of a discretion under s 501(1), the task would have involved the Tribunal complying with lawful directions made under s 499 of the Act which would necessarily have affected the Tribunal’s analysis in a way not shared with the task in which it was in fact engaged.

Mandatory relevant considerations

As to the first matter, mandatory relevant considerations in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 can be express or implied. The Tribunal’s decision and reasons were not, according to the terms of s 501(1), express mandatory considerations. Given that s 36(1C) and s 501 are different statutory powers directed to different purposes, it should not be implied into s 501(1) that a Tribunal’s earlier decision as to the application of s 36(1C)(b) is a mandatory relevant consideration on a subsequent consideration of the application of s 501(1).

In any event, there is no question that the Minister did consider the Tribunal’s decision and reasons. As will be explained below, the consideration given was also adequate.

Legal unreasonableness and inconsistency

As to the second matter, the grant of the discretionary power in s 501(1) is presumed to have been made on the implied condition that it be exercised reasonably – see generally: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18.

EBD20 submitted that the Tribunal’s decision and reasons were inconsistent with the Minister’s decision and that the Minister’s reasons disclosed no intelligible justification for rejecting the Tribunal’s reasons. This submission largely hinges upon a contention that the Tribunal concluded that EBD20 posed no risk to the Australian community. For the reasons given earlier, this contention is not correct.

Properly analysed, there is no real inconsistency between the Tribunal’s decision about s 36(1C)(b) and the Minister’s decision in relation to s 501(1). The Minister was considering the exercise of the discretion in s 501(1) in respect of a person who had been found not to be “a danger to the Australian community” within the meaning of s 36(1C)(b).

As a matter of principle, it is not irrational or inconsistent to decide under s 36(1C)(b) that there are not reasonable grounds for concluding that a person is “a danger to the Australian community”, but nevertheless to reach the conclusion that the person presents a sufficient level of risk to warrant exercising the discretion under s 501(1) not to grant a visa.

The Minister approached the matter, first, on the basis that “Australia has a low tolerance of any criminal conduct by visa applicants, reflecting that there should be no expectation that such people should be allowed to remain permanently in Australia”: D[22]. Secondly, he considered whether EBD20 posed a risk through reoffending: D[23] and following. The ultimate conclusions in respect of these two matters were:

[86] [EBD20] has committed multiple serious crimes, including offences of a violent nature and as a member of a criminal gang. [EBD20] and non-citizens who commit such offending should not generally expect to be permitted to remain in Australia.

[87] I find that the Australian community could be exposed to significant harm should [EBD20] reoffend in a similar fashion. I could not rule out the possibility of further offending by [EBD20]. The Australian community should not tolerate any further risk of harm.

The “test” the Minister applied with respect to level of risk was, in substance, that no risk of harm was tolerable: at D[87]. This was not the test which the Tribunal applied to the question before it. Whatever threshold the Tribunal applied (see T[28]), the Minister’s risk tolerance threshold for s 501(1) purposes was lower.

The Minister and the Tribunal were each looking at the level of risk to answer different questions. The different inquiries contained a common element, namely an assessment of the level of risk which EBD20 posed. The Tribunal concluded that the level of risk was not sufficient for s 36(1C)(b); but it did not conclude there was no risk. The Minister concluded that the level of risk was sufficient to warrant the exercise of the discretion in s 501(1). A conclusion that the level of risk was not such that the person was a “danger” for the purposes of s 36(1C)(b) does not mean that the level of risk was insufficient to warrant an exercise of the discretion in s 501(1). The Minister might lawfully take the view, as he evidently did, that a low risk is sufficient for exercise of the discretion under s 501(1) and that it is not necessary for s 501(1) purposes that the risk be at a level such that the criterion in s 36(1C)(b) was not satisfied.

The Minister recorded in his reasons that he had considered the Tribunal’s conclusion that EBD20 was not “a danger to the Australian community” and explained why he considered that EBD20 posed a risk at a level sufficient to exercise the discretion in s 501(1). This was appropriate. The consideration which the Tribunal had given to the question of whether EBD20 was “a danger to the Australian community” was relevant to the Minister’s task under s 501(1), in particular because, in answering the question before the Tribunal, the Tribunal had looked at matters relevant to the level of risk posed by EBD20, including the possibility he might reoffend. To the extent there is tension between the ultimate conclusions of the Tribunal and the Minister, that is explained by the fact that the level of risk was being assessed in relation to different questions and that the Minister’s test as to the level of risk for the purposes of s 501(1) was not the same as the Tribunal’s test as to the level of risk for the purposes of s 36(1C)(b).

The fact that the Tribunal considered the level of risk insufficient for the question it had to answer did not prevent the Minister assessing whether the level of risk was, notwithstanding, sufficient for the different question he had to answer. The Minister was not bound to determine that the level of risk was insufficient for s 501(1) purposes merely because the Tribunal had concluded that the level of risk was insufficient to reach a conclusion of “danger” under s 36(1C)(b).

There was a direction from the Tribunal to the effect that the criterion in s 36(1C)(b) was satisfied. The Minister acted in accordance with the direction. The direction was not one which had the effect that the Minister could no longer consider the level of risk EBD20 posed when considering the other conditions for the grant of the visa including whether it could not be granted because of an exercise of discretion under s 501(1): s 65(1)(a)(iii).

The present case is different to Makasa. In Makasa, a delegate suspected Mr Makasa failed the character test by reason of sentences imposed in 2009 and cancelled Mr Makasa’s visa under s 501(2). In 2013, the Tribunal made a decision under s 43(1)(c)(i), setting aside the delegate’s decision and substituting a decision that the visa not be cancelled. In 2017, being satisfied that Mr Makasa failed the character test solely by reason of the 2009 convictions, the Minister again exercised the discretion conferred by s 501(2), taking later convictions into account in the exercise of the discretion. The High Court held that, once exercised in respect of facts constituting a failure to pass the character test to decide not to cancel a visa, the power conferred by s 501(2) of the Act cannot be re-exercised in respect of the same failure to pass the character test to decide to cancel the visa: at [23], [27], [56].

The present case concerns a single refusal to grant a visa, not successive exercises of the one power to cancel a visa. The visa application has only been refused once on the basis of s 501(1) and had never been refused on that basis at the time of the Tribunal’s decision.

The Minister’s decision is not relevantly inconsistent with the Tribunal’s decision. It was not legally unreasonable for that or any other demonstrated reason.

Engagement with the Tribunal’s reasons

As to the third matter, EBD20 contended that the Minister did not properly exercise the jurisdiction entrusted to him by failing to engage sufficiently with the Tribunal’s decision.

The Minister’s reasons show a consideration of the Tribunal’s reasons of a kind consistent with the lawful exercise of the discretion in s 501(1), including through the explanation given as to why the risk posed by EBD20 was sufficient to warrant the exercise of the s 501(1) discretion. EBD20 has not established jurisdictional error on this basis.

Conclusion:-

The Minister did not fail to take into account a mandatory consideration or fail sufficiently to engage with the Tribunal’s reasons. The Minister’s decision was not legally unreasonable. The Tribunal’s direction was given effect. The Minister’s view that EBD20 posed a risk to the Australian community was not relevantly inconsistent with the Tribunal’s conclusion that the criterion in s 36(1C)(b) was satisfied. The effect of what has occurred, as a matter of substance, is that the Minister has concluded that EBD20 was not a danger to the Australian community but nevertheless poses a risk at a level such that the discretion in s 501(1) should be exercised not to grant the visa.

The Minister’s decision has not been shown to be the subject of jurisdictional error in any of the ways raised in the appeal. The primary judge erred in concluding that the consideration given by the Minister to the Tribunal’s decision and reasons was such as to demonstrate jurisdictional error.

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