FEDERAL COURT OF AUSTRALIA Shi v Minister for Immigration and Citizenship [2012] FCAFC 116 Citation: Shi v Minister for Immigration and Citizenship [2012] FCAFC 116 Appeal from: Shi v Minister for Immigration and Citizenship [2012] FCA 533 Parties: ZIPEI SHI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 836 of 2012 Judges: BENNETT, EDMONDS AND BUCHANAN JJ Date of judgment: 23 August 2012 Catchwords: MIGRATION – Direction 41 made by Minister under s 499 of the Migration Act 1958 (Cth) – other considerations – level of education – when a consideration is 'relevant' within the meaning of clause 11(3)(f)(ii) of Direction 41 Legislation: Migration Act 1958 (Cth) ss 499, 501 Date of hearing: 20 August 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 23 Counsel for the Appellant: Mr C Jackson with Mr T Holmes Solicitor for the Appellant: KTG Lawyers Counsel for the First Respondent: Ms R Francois Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 836 of 2012 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: ZIPEI SHI Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGES: BENNETT, EDMONDS AND BUCHANAN JJ DATE OF ORDER: 23 August 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 836 of 2012 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: ZIPEI SHI Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGES: BENNETT, EDMONDS AND BUCHANAN JJ DATE: 23 August 2012 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: 1 On 28 May 2012 the primary judge refused the appellant leave to file and rely upon a proposed amended originating application and dismissed the application which was before the Court. The application (and proposed amended application) related to an "appeal" from a decision of the Administrative Appeals Tribunal (the AAT) given on 17 January 2012. In its decision the AAT affirmed a decision made by a delegate of the Minister for Immigration and Citizenship that the appellant's permanent residence visa should be cancelled because he did not pass the character test in s 501 of the Migration Act 1958 (Cth) (the Act). 2 The appellant did not pass the character test because he had a substantial criminal record. He had, on three occasions, been sentenced to terms of imprisonment in excess of 12 months. The appellant is a citizen of the People's Republic of China. He came to Australia when 14 years old. His offending commenced at the age of 17 and he is now 27 years old. The offences were for malicious wounding, supplying a commercial quantity of a drug and detaining a person for the purpose of extortion. 3 The AAT found that there was a real risk of harm to the Australian community if the appellant remained in Australia. 4 The deliberations of the AAT were subject to instructions contained in a direction issued by the Minister under s 499 of the Act which was binding upon the AAT – Direction [no. 41] – Visa refusal and cancellation under s 501 (Direction 41). Direction 41 states a number of "primary considerations" and also a number of "other considerations" that must, where relevant, be taken into account by the AAT in the exercise of its discretion when making a decision under s 501 of the Act. 5 When the decision of the AAT was challenged in this Court at first instance three matters were raised on behalf of the appellant. The first (ground 1) was that the AAT fell into jurisdictional error by failing to assess whether Mr Shi posed an unacceptable risk of harm to the Australian community. This was a reference to the way in which the AAT dealt with one of the primary considerations. The second challenge was that the AAT had misapplied a further primary consideration which referred to the length of time the appellant had been in Australia before his criminal offending commenced (ground 2). A third challenge was proposed. It was that the AAT had failed to take into account one of the "other considerations" referred to in Direction 41 which was relevant in the appellant's case (proposed ground 3). It was that the appellant's efforts to improve his education were relevant and should have been taken into account in his favour. 6 Each of ground 1 and ground 2 was rejected by the primary judge. No further challenge is made on the present appeal with respect to those matters. The primary judge refused leave to rely on proposed ground 3. He did so because he concluded that it did not identify any error on the part of the AAT. 7 The present appeal challenges the conclusion that the AAT made no error with respect to this issue. 8 Relevantly to the present matter Direction 41 contains the following: 9. Taking the relevant considerations in account (1) Consistent with Part 2, paragraph 2 (Part B) of this Direction, decision-makers must take into account the primary considerations in every case. The other considerations (defined in paragraph 11) should be taken into account where relevant. (2) Decision-makers should only take into account directly relevant considerations. … 11. Other considerations (1) In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered. (2) It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations. (3) These other considerations include: … (f) level of education, for example the following would be considered in the person's favour: … (ii) any efforts made by the person to improve their education and, therefore, increase their capacity to positively contribute to the Australian community through employment or other activities. 9 On 10 November 2009 the appellant was advised that consideration would be given to the cancellation of his visa. Amongst the material provided to him at that time was a copy of an "Immigration Report" that recorded: Inquires [sic] indicate that Mr Shi has not undertaken any education or rehabilitation courses or programs in custody during his incarceration. 10 When the matter came before the AAT the appellant's legal representatives forwarded copies of documents upon which he wished to rely to rebut the suggestion that he "had not undertaken any education or rehabilitation courses or programs during his most recent incarceration". The documents provided consisted of two certificates of completion of "lifestyle courses" and three "statements of attainment". Two related to individual units in a Certificate I course and the other to a TAFE course in small business management. 11 Before the AAT the appellant relied upon the following "facts and contentions" relevant to the present issue: Level of education and efforts to improve education and the applicant's capacity to positively contribute to the Australian community through employment or other activities. 28. While in prison the applicant made considerable efforts to undertake courses to overcome his problems and to improve his prospects on release. 29. Of particular note is the statement by Sister Patricia RYAN who says inter alia: He also interprets … from the English to Mandarin. He does this in a most efficient and professional manner. There have been many different interpreters during my six years, and I would say that Mr. Shi is the most competent. He listens well and if a word or meaning is unfamiliar he will query the meaning. 30. The applicant reiterates that this work and the contribution that the applicant has already made is a good indication of the positive and important contribution he can and will make to the Australian community if he is allowed to stay. 12 The response made by the Minister was: Level of education 10.17 Mr Shi left school half way through year 10, though he has apparently undertaken educational courses such as bookkeeping and computer skills in prison. He is represented in his application. 10.18 The Minister contends that this consideration does not weigh against cancellation of Mr Shi's visa. 13 The AAT decision referred to both the matters identified in the above extract from the appellant's statement of facts and contentions. As to the courses completed by the appellant, the AAT said: 33. Mr Shi has done a number of courses while in detention. In December 2008, he was awarded a Statement of Attainment in Small Business Management through TAFE. In February 2009, he obtained a certificate in word processing as part of a certificate in information technology. In December 2009, he completed a Getting Smart program which apparently aims to help offenders with alcohol and drug problems and, in April 2010, he completed a program for problem gamblers. 34. However, Mr Shi's plans, in the event that he is released into the community, are vague at best. He says he would like to do a course in small business management at TAFE but it was apparent to me from his oral evidence that he has little, if any, idea what that course might be. He also talks about returning to his previous employment as a mobile phone salesman and, if neither that nor study is available, he would try to get labouring work, but his plans seem quite unformed. Mr Shi's mother, Mu Yunhua, gave evidence that he has also talked to her about the possibility of being a real estate agent or being a driver for different companies. 35. I accept that it is very difficult for someone in detention to explore all the options for study; it might only be on release that plans can be properly formed. Similarly, securing employment while in detention might be difficult, if not impossible. However, it is relevant that there is evidence that, without employment, Mr Shi's prospects of re-offending are increased. This is considered further below. 14 The AAT noted that there was no evidence that his possible return to his previous employment as a mobile phone salesman would be more than a casual engagement. It also noted that there was little evidence about his plans for the future (at [45]) and concluded (at [52]) that, taking into account all of the evidence, Mr Shi's plans for his release were unclear. 15 These observations were made in the course of the discussion by the AAT of the risk that the appellant's criminal conduct might be repeated, but they give a clear indication that the AAT did not regard those matters as relevant to take into account in the appellant's favour. 16 At other places in its decision the AAT referred more particularly to "other considerations". It identified the ones which it found relevant. It said: 14. Other considerations may be relevant and, if so, must be considered. They include the matters set out in cl 11(3). Generally, however, they should be given less weight than that given to primary considerations: cl 11(1) and (2). The other considerations relevant in this case are: (a) family ties, the nature and extent of any relationships; (b) any links to the country to which the person would be removed; (c) hardship likely to be experienced by the person or their immediate family members lawfully resident in Australia; (d) whether the person has been formally advised in the past by an officer of the Department of Immigration and Citizenship about conduct that brought the person within the deportation provisions of the Act or the character provisions of the Act. 17 In its conclusions, the AAT said: 74. … There are other considerations that weigh in his favour, principally the hardship that he will face if returned to China and the hardship his parents will face if separated from him. However, in my view those considerations are outweighed by the need for protection of the Australian community from the risk of serious harm that he would present if he remains in Australia. 18 It is sufficiently clear from the AAT decision that the courses undertaken by the appellant in detention were not regarded as relevant under clause 11(3)(f)(ii), set out earlier. We also note that there was no demonstrated link between the courses that Mr Shi completed and any employment opportunities or other activities that would amount to a positive contribution to the Australian community. 19 It is clear that the Tribunal did consider the efforts made by Mr Shi to improve his level of education but, on the facts, it did not amount to a factor that was relevant to employment or should be considered in his favour and was therefore not relevant. 20 As we understand the argument which was advanced to the primary judge, and which is relied upon in the present appeal, it is that the fact that the appellant undertook the courses whilst incarcerated necessarily raised a relevant matter for consideration within the meaning of clause 11(3)(f)(ii) of Direction 41. Thus, so the argument goes, it is apparent that the AAT failed to take into account a mandatory consideration and equally apparent that the primary judge fell into error in not so declaring. 21 The flaw in this analysis, which was identified by the primary judge, is that it was for the AAT to decide what was relevant in all the circumstances of the case. "Other considerations" are only required to be taken into account so far as they are relevant to the case at hand. The primary judge captured the position at [63]-[64] as follows: 63 In my opinion, it was open to the Tribunal to treat this consideration as irrelevant. The terms of cl 11 of Direction 41 make it clear that it is for the Tribunal to determine whether any of the considerations in cl 11(3) are relevant. There can be no error on the Tribunal's part in the circumstances of this case, if it came to the view that the matters now relied upon by Mr Shi were not relevant. 64 The considerations stated in cl 11(3)(f)(ii) were not made mandatory by Direction 41; see Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-40. It was for the Tribunal to determine whether the factor was relevant. No error of principle is revealed in its failure to take this factor into account amongst the other considerations to which it referred. 22 In our view it is sufficiently clear from the AAT decision that the AAT regarded the courses done by the appellant in detention as not relevant. Although the specific discussion of the relevance of those courses appears in connection with the risk that conduct may be repeated, it is apparent that the AAT did not accept that undertaking those courses revealed an effort by the appellant to increase his "capacity to positively contribute to the Australian community through employment or other activities", which are the matters to which this particular potential "other consideration" is directed. 23 We see no error in the analysis of this matter by the primary judge. It follows that there is no basis upon which to interfere with the discretion of the primary judge not to grant leave to file and rely on the proposed amended originating application. We dismiss the appeal with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Bennett, Edmonds and Buchanan. Associate: Dated: 23 August 2012