FEDERAL COURT OF AUSTRALIA Tanioria v Minister for Immigration and Border Protection [2016] FCAFC 43 Appeal from: Tanioria v Minister for Immigration and Border Protection [2015] FCA 965 File number(s): NSD 1125 of 2015 Judge(s): BUCHANAN, REEVES AND BROMBERG JJ Date of judgment: 21 March 2016 Catchwords: MIGRATION – appellant lived in Australia since childhood – appellant convicted of criminal offence involving violence – respondent personally cancelled appellant's visa – whether the respondent's decision was void for jurisdictional error Legislation: Migration Act 1958 (Cth), s 501 Direction No. 55 – Visa Refusal and Cancellation under s 501 Migration Act 1958, 1 September 2012 Cases cited: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 Jione v Minister for Immigration and Border Protection (2015) 232 FCR 120 M238 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260 NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 Date of hearing: 9 February 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 39 Counsel for the Appellant: Mr M Seymour Counsel for the Respondent: Ms R Francois Solicitor for the Respondent: Clayton Utz, Lawyers ORDERS NSD 1125 of 2015 BETWEEN: AMINIO ATANINANO TANIORIA Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent JUDGES: BUCHANAN, REEVES AND BROMBERG JJ DATE OF ORDER: 21 March 2016 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs, as taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT The Court: 1 This is an appeal against the judgment of a single judge of the Court who dismissed an application for judicial review of a decision by the respondent ("the Minister") personally to cancel the visa of the appellant. As the proceedings invoke the appellate powers and jurisdiction of the Court, the appellant faces the task of demonstrating some appellable error although it remains open to approach that task by reliance on any and all of the material which was before the primary judge. 2 We have come to the view that no appellable error has been demonstrated. None appears to us from our study of the material. The appeal should therefore be dismissed with costs. 3 The appellant is a citizen of Fiji. He came to Australia in 1982 when he was 18 months old with his family (his mother, father and older brother). He has lived in Australia since that time. He has a history of criminal conduct involving violence. He received warnings from the Minister's department over a period of some years about his criminal conduct and the possibility that further such conduct may lead to cancellation of his visa and removal from Australia. Those warnings were dated 9 June 2000, 29 November 2006, 28 August 2009 and 20 November 2012. 4 The last of those warnings before the offence referred to below, which was committed on 14 September 2012, included the following statement: Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered. Note well: The delegate was well aware of the fact that you had been warned previously, and indicated that you cannot expect to receive any further warnings if you come to our attention in the future. (Bold in original.) 5 On 9 August 2013, the appellant was again convicted of a criminal offence involving violence (recklessly inflicting grievous bodily harm) for which he was sentenced to 35 months imprisonment. In his decision to cancel the appellant's visa, the Minister referred to and described the circumstances of that offence upon the appellant's victim, namely, that the appellant: 8. … repeatedly punched him, and kicked him to the face. The victim suffered three fractures to his jaw, a shattered left eye socket, a dislocated nose and a cut above his left eyebrow. At the time of sentencing, almost one year after the attack, the victim required further surgery to address the long term impact of these injuries. 6 Section 501 of the Migration Act permits cancellation of a visa when the visa holder does not pass the "character test". The appellant's history of violent offending had the consequence that he did not pass the character test. 7 On 6 January 2014, the Minister's department wrote to the appellant and gave him notice of an intention to consider cancellation of his visa. The letter to the appellant enclosed a copy of Direction No. 55 – Visa Refusal and Cancellation under s 501 Migration Act 1958, 1 September 2012 ("Direction no. 55"), copies of the earlier warnings and other material. It cannot be doubted that the appellant's earlier offending was likely to be a matter to be considered and that there was a real prospect that his visa might be cancelled as a result. 8 Direction no. 55 sets out principles and guidelines binding decision-makers (including delegates of the Minister) when they are considering visa refusal and cancellation under s 501 of the Migration Act 1958 (Cth). 9 Direction no. 55 identifies a range of matters which decision-makers are to take into account including the protection of the Australian community from criminal or other serious conduct, the strength, duration and nature of a person's ties to Australia, and the best interests of minor children in Australia. Further, more extended, elaboration of those concepts makes it apparent that violent crimes are viewed very seriously, that frequency of offending and whether there is any trend of increasing seriousness is relevant, that a cumulative effect of repeated offending is relevant and that whether a person has re-offended since being formally warned is relevant. The risk to the Australian community of further offences is to be taken into account. 10 The principles do not directly bind the Minister but it is clear that they were applied in the present case. 11 The primary judge described the matters taken into account by the Minister as follows: 16 The Minister's reasons disclose that in deciding whether to exercise his discretion to cancel the applicant's visa, he took into account the following matters: • the seriousness of the assault which was the subject of the applicant's 9 August 2013 conviction; • other violent offences for which the applicant was previously convicted including physical assaults on his former partner which the sentencing court described as involving "shocking violence" resulting in "appalling injuries" for which he was sentenced to 20 months imprisonment. • alcohol abuse by the applicant together with related anger management issues, and steps taken by the applicant in prison and after release on parole to address these problems; • the risk that the applicant would re-offend; • the applicant's family connections in Australia including to his daughter, his stepson, their mother, his parents, siblings, and nieces and nephews; • the applicant's contribution to the community through employment and sporting activities; • the best interests of the applicant's daughter and his stepson; • the emotional, practical and financial effects upon the applicant's former partner if his visa was cancelled; • the effects upon the applicant's parents and nieces and nephews if his visa was cancelled; and • the applicant's ties to Fiji including his knowledge of the culture and language. 17 The Minister stated in his reasons that he gave considerable weight to the very serious nature of the applicant's offending which involved multiple violent offences. He described the risk of the applicant re-offending as "unacceptable". 18 With regard to the interest of the applicant's daughter and stepson, the Minister found that it would be in their best interests if the applicant was permitted to remain in Australia. 12 The Minister's final conclusions were expressed in his reasons for his decision in the following way: 38. I have given substantial weight to the very serious nature of Mr TANIORIA's offending which involved multiple violence offences. I consider that he remains at risk of re-offending, and that this risk is unacceptable. 39. I have also considered the principle that a non-citizen who commits a serious crime should generally forfeit the privilege of staying in Australia and I find that this principle applies in this case. 40. Mr TANIORIA has a minor daughter and stepson in Australia who are Australian citizens. I find that it is in the best interests of his daughter and stepson that he remain in Australia. I have also taken into account his ties to Australia, including the presence of his partner and his immediate family in Australia, his lengthy residence in Australia from a young age, and his contribution to the community. I have taken into account the difficulties that Mr TANIORIA may face in Fiji, particularly given the absence of family support in that country and his long residence in Australia. While I also consider that it is in the best interests of any minor relatives that Mr TANIORIA remain in Australia, I gave this factor little weight. 41. I also found that the Australian community could be exposed to great harm should Mr TANIORIA reoffend with further violent crimes. I could not rule out the possibility of further offending by Mr TANIORIA. The Australian community should not tolerate any further risk of harm. I found these factors outweighed the countervailing considerations in Mr TANIORIA's case. 42. Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr TANIORIA's Class BF Transitional (Permanent) visa under s501(2). (Capitals in original.) 13 Before the primary judge, the appellant relied upon the following four grounds: 1. The decision is void for the Minister failing to take into account relevant considerations being the nature and degree to which a decision to cancel the Applicant's visa would not be in best interests of the Applicant's children. Particulars 1) Paragraph 9.3(3) of Direction 55 required the Respondent to assess the bests interests of each of the Applicant's children for individual consideration of how their interests may differ 2) Paragraph 8(4) of Direction 55 provides that a primary consideration, including the best interests of minor children, should be given greater weight than other considerations 3) The Respondent did not carry out an individual assessment of the best interests of the Applicant's children and how their interests would differ given, in particular, the emotional needs of the Applicant's son as suffering from severe to moderate autism 4) The Respondent gave a finding that cancellation of the visa would not be in the best interests of the Applicant's children little weight 5) In the circumstances, the Respondent failed to take into account Direction 55 and/or the primary consideration that the bests interests of the children should be given greater weight than other considerations. 2. The decision is void for procedural unfairness in that: b. The Applicant was not warned that previous warnings from the Minister/Department, upon which no previous action was taken, could be used in making the decision and invited to comment upon the use that the Minister could make of those previous warnings; c. The Applicant was not provided with a copy of the Submission to the Minister dated 10 October 2014 and provided an opportunity to comment or respond to it; d. Further, or in the alternative to c, the Applicant was not provided with an opportunity to address concerns or potential findings by the Minister regarding: i. A risk of re-offending; ii. The risk that current rehabilitative efforts could fail; iii. The chance that the Applicant could successfully resettle in Fiji due to visiting briefly at the age of 16. 3. The decision is void for taking into account an irrelevant consideration, namely Principle (2) at Para [6.3] of Direction 55 dated 28 July 2012, because that Principle is inconsistent with the Migration Act 1958 (Cth) and ultra vires. 4. The decision is void for failing to take into account a relevant consideration, being: a. A proper appraisal of the real risk of future offending by the Applicant; b. A proper appraisal of the finding of Judge Conlon of special circumstances warranting a longer period of supervision to enhance the Applicant's prospects of rehabilitation; c. That the Applicant was not legally aided or assisted in the preparation of his submission to the Minister. 14 Each of those grounds was rejected by the primary judge. 15 The grounds of the present appeal (including an amendment to c. below, allowed at the hearing of the appeal) are expressed somewhat differently: 1. The Court below erred in failing to find that the decision of the Respondent made on 17 November 2014 was void for jurisdictional error in that: a. The Respondent took into account an irrelevant consideration that there should be a consequential, and hence punitive, forfeiture of privileges for a person who commits a serious crime; b. To the extent that the principle in (a) above was expressed to take into account Principle (2) at Paragraph [6.3] of Direction 55 dated 28 July 2012, that Principle is ultra vires the Migration Act 1952 (Cth), and hence taking that into account was forbidden by that Act; c. The Respondent failed to take into account a relevant consideration, being how the different interests of the Applicant's may differ given, in particular, the emotional needs of the Applicant's son as suffering from severe to moderate autism and the needs of other minor relatives; d. Procedural fairness was denied to the Applicant by not being provided with a copy of the Submission to the Minister dated 10 October 2014 and provided with any opportunity to comment upon or provide material to contradict adverse information included with that Submission. 16 None of those grounds have any substance. 17 The first two grounds (a. and b.) fasten upon a particular provision of Direction no. 55 and were supplemented in written submissions with a complaint that other, qualifying, statements in Direction no. 55 were not referred to, namely, what is said in 6.3(4). 18 To put those grounds into perspective it is necessary to set out also some surrounding aspects of Direction no. 55: 6.2 General Guidance (1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable. … 6.3 Principles (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. (2) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. (3) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa. (4) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age. … 19 When the context is taken into account, it is apparent that the matter of central concern in the principles there stated is the question of the protection of the Australian community (especially 6.2(1)). One way in which that question is addressed by Direction no. 55 is by a statement of general policy that failure to respect Australia's law enforcement framework and refrain from harming others may result in withdrawal of the privilege of residency in Australia (especially 6.3(1) and (2)). Generally, perpetrators of serious crimes (particularly against the vulnerable) should expect that outcome (especially 6.3(2)) but there may be some room for exceptions (especially 6.3(4)). Some criminal conduct may be so serious that any risk of repetition is unacceptable (especially 6.3(3)). 20 The findings and conclusions of the Minister which we set out earlier conform comfortably in the present case with those statements of principles. We reject the arguments of the appellant that either those findings or the above provisions of Direction no. 55 proceed upon the basis of a purpose to impose punishment, rather than to address the question of the protection of the Australian community. 21 We see no substance at all in the suggestion that 6.3(2) is, as the grounds of appeal suggest, "ultra vires" the Migration Act. 22 The first two grounds of appeal cannot succeed. 23 There was very little development of the third ground of appeal (as originally expressed) in the written submissions. The conclusions of the primary judge about this issue as argued in the proceeding below were stated as follows: 32 In relation to the applicant's stepson, the Minister's reasons note that he has moderate to severe autism and that the mother and daughter would not be relocating to Fiji in the event the applicant's visa was cancelled due to the inadequacy of services in that country to address the stepson's condition. I am not satisfied that the circumstances of the applicant's stepson were not considered by the Minister or that the applicant was denied procedural fairness in the sense that he was deprived of the opportunity to make submissions to the Minister in relation to that matter. 24 No error has been shown in that assessment by the primary judge. 25 The original third ground of appeal was supplemented by leave during the hearing of the appeal by a suggestion that the Minister had failed to differentiate between the interests of the appellant's children, on the one hand, and his nephews and nieces on the other. 26 This aspect of the amended ground should not be accepted. 27 In his decision, the Minister said: 25. I gave primary consideration to the best interests of any children who are less than 18 years of age and whose best interests may be significantly affected by cancellation of Mr TANIORIA's visa. 26. Mr TANIORIA has a parental relationship with two minor Australian citizen children in Australia, his daughter Armani, aged six, and his stepson Zhayne, aged 13. It is claimed that Mr TANIORIA has been a figure in Zhayne's life since 2005 when Zhayne, who has moderate to severe autism, was then five years of age and would accompany his mother to visit Mr TANIORIA in prison. 27. Both children had frequent contact with Mr TANIORIA during his recent incarceration by telephone and correspondence and also visited him in prison. The available evidence indicates that Mr TANIORIA has actively participated in researching therapies for Zhayne's benefit and contributed to the children's upkeep. Mr TANIORIA resided with the children for approximately three months following his release on parole on 26 March 2014. During this time he participated in their daily care and contributed to their upkeep. He currently has contact with them two times per week and actively participates in their lives. He also continues to provide them with financial support. The children will not be relocating to Fiji in the event of visa cancellation due to inadequate services in that country to address Zhayne's autism. 28. It has been submitted that should Mr TANIORIA's visa be cancelled, his contact with the children will be very limited as he is not computer literate and will be unable to communicate with them electronically. 29. I have noted that a young child was present during Mr TANIORIA's assault on Ms Gurtala, however there is no evidence that Mr TANIORIA has been violent towards either child. Ms Gurtala has advised that the Department of Family and Community Services gave their approval for Mr TANIORIA to live with the children. 30. Given the factors above, and the children's positive relationship with him, I find that it is in the best interests of Zhayne and Armani for Mr TANIORIA to remain in Australia. 31. Mr TANIORIA also has nieces and nephews in Australia, some of whom may be minors. There is no reason to believe that any minor relatives do not receive parental care from their parents. While I find that it is in the best interests of any minor relatives that Mr TANIORIA remain in Australia where he can continue to have a personal relationship with them, I find that any adverse effect on them as a result of visa cancellation would be minimal. (Capitals in original.) 28 The distinction clearly made between the interests of the appellant's children, and those of his nephews and nieces, is reflected in the Minister's conclusions at [40] (set out earlier). 29 However it has been expressed, the third ground of appeal should be dismissed. 30 The substance of the final ground of appeal was addressed by the primary judge in the following way: 40 The second point raised by the applicant under ground 2 concerned the Minister's failure to provide the applicant with a copy of the Departmental Submission. Again, this was said to give rise to a denial of procedural fairness on the basis that it included material upon which the applicant should have been given an opportunity to comment including, in particular, in relation to the applicant's previous criminal convictions. 41 I am satisfied that this argument must be rejected for reasons already given. It was obvious that the applicant's previous convictions were relevant to the exercise of the Minister's discretion. The decision of the Full Court in M238 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260 is directly on point. In that case the Full Court (Gyles, Conti and Allsop JJ) said at [54]: Procedural fairness in these circumstances did not require the Departmental submission to be provided to the appellant. Natural justice or procedural fairness is to be equated with fairness in all the circumstances: Kioa v West (1985) 159 CLR 550, 583. What are required are fair and flexible procedures, bearing in mind the circumstances of the case, the issues involved, and the nature of the enquiry and the decision: Kioa v West at 583-85. There is no rule that the person the subject of decision must be given any departmental submission given to the decision maker: cf Local Government Board v Arlidge [1915] AC 120. The submission was a balanced and measured collection and distillation of voluminous material. It contained no adverse matter to which the appellant had not otherwise been alerted by Direction No 21, the apparent nature of the power and common sense. The appellant had had made known to him the questions relevant for him to address and he had an adequate opportunity to do so. 42 The Full Court's observations with respect to the submission in that case apply to the Departmental Submission in this case. I consider it a balanced and measured document. It did not include any adverse material which the applicant was denied the opportunity to address because the relevance of the matters referred to in the Departmental Submission would have been apparent to the applicant from the Department's letter of 6 January 2014 and the enclosed copy of Direction 55. I include for this purpose the matters referred to in ground 2(d) of the application for review. In particular, it would have been obvious to the applicant that the risk that his efforts at rehabilitation might fail and that he might re-offend was a matter that was not only relevant to the exercise of the Minister's discretion, but was a matter that was likely to be of considerable importance. Direction 55 makes clear that the risk to the Australian community should the visa holder re-offend is a primary consideration relevant to the exercise of the statutory discretion. There was nothing said or done by the Minister or his department to suggest that this would not also be a primary consideration when the Minister was giving personal consideration to the applicant's case. 31 The appellant's written submissions argued that the statements by the Full Court in M238 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 260 ("M238") could not be applied because that case involved a visa holder who was legally represented throughout a departmental investigation process. That attempted distinction does not provide a reason to conclude that the observations of the Full Court in M238 were not ones which might guide the primary judge. They are not ones from which we think it necessary or appropriate to depart in the present case. The fourth ground of appeal should also be dismissed. 32 We make two final observations. 33 Repeated reference was made in the appellant's written submissions to the judgment of Buchanan J in Jione v Minister for Immigration and Border Protection (2015) 232 FCR 120. That case provides no relevant principle for application on the present appeal. Mr Jione was not forewarned that the possibility of future offending (which had been assessed by the Minister as low) was a matter the Minister might take into account as engaging a national interest in avoiding consequential costs and the use of community resources. Buchanan J concluded that Mr Jione should not have reasonably anticipated this approach and should have been given an opportunity to deal with it (at [44]). That is not the present case. 34 Finally, it should be noted that considerable weight was placed by the appellant upon the proposition that an intention to inflict punishment (whether in a decision or in a policy) by cancellation or "forfeiture" of a visa would be an impermissible purpose which would render invalid the decision or policy. 35 Concern has been expressed in decisions of this Court from time to time about matters of that kind. In Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292, a Full Court distilled principles from cases decided to that point which included the following (at [66]): 66 The following propositions can be derived from the authorities: … 3. Whether legislation conferring power to cancel the visa or order the deportation of a non-citizen is punitive in character is to be determined by construction of the legislation, not by a consideration of the consequences of detention or removal of the individual. 4. Accordingly, the power to cancel a visa or order the deportation of a non-citizen is not to be regarded as punitive in character merely because exercise of the power involves interference with the liberty of the individual or imposes what the individual may see as sanctions consequential on his criminal connections. Neither can detention incidental to deportation of a non-citizen be characterised as punitive merely because it involves deprivation of liberty. 5. Legislation conferring a discretion on the Executive to cancel the visa of a non-citizen or to deport a non-citizen is not characterised as punitive if it can fairly be said to protect the Australian community. This is so even where the pre-condition that must be satisfied for the exercise of the power is the conviction of the non-citizen for a criminal offence or the imposition of a minimum period of imprisonment. 6. Nonetheless, if in a particular case the decision-maker purports to exercise a statutory power to cancel the visa of a non-citizen or to deport the non-citizen or order to punish the non-citizen and not for protection of the Australian community or some other legitimate objective, the exercise of the power may be ultra vires the statute. 36 The Full Court went on, however, to say: 72 It follows from what we have said that s 501(2) of the Migration Act, on its proper construction, permits the Minister to take into account, in the exercise of his or her discretion, the effect cancellation of the non-citizen's visa will have in protecting the Australian community. Similarly, s 501(2) is sufficiently broad to allow the Minister to take into account his or her assessment of the expectations of the Australian community as to whether or not a non-citizen who commits serious criminal offences should be permitted to remain in the country. … 75 … the very point of taking account of general deterrence as a factor in making a cancellation decision is to enhance the safety and well-being of the Australian community by discouraging non-citizens from engaging in criminal conduct. It is treated in exactly this way in the Ministerial Direction. … 37 In NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1, Allsop CJ and Katzmann J also accepted that objectives of deterrence or disincentive may relate to protection of others and be a "legitimate consideration". However, "care needs to be taken" their Honours said, that deterrence (e.g. where pursued as the sole or a substantial purpose) does not (impermissibly) operate simply as punishment (see at [28]-[31]). 38 Those considerations and concerns need not be pursued further in the present case because there is no serious basis to think that the Minister's decision in the present case infringed those limits, wherever they may be found. 39 Each of the appellant's arguments must be rejected and his appeal must be dismissed with costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Buchanan, Reeves and Bromberg. Associate: Dated: 21 March 2016