FEDERAL COURT OF AUSTRALIA Lafu v Minister for Immigration and Citizenship [2009] FCA 733 MIGRATION – cancellation of visa – character test – application of Ministerial direction – mandatory considerations – general deterrence – whether Tribunal failed to consider general deterrence with respect to the specific circumstances of the case – whether jurisdictional error Held: application dismissed Migration Act 1958 (Cth) Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Lafu v Minister for Immigration and Citizenship (2009) 107 ALD 678; [2009] AATA 218 Craig v State of South Australia (1995) 184 CLR 163 Filipo v Minister for Immigration and Citizenship [2008] AATA 1144 Tickner v Chapman (1995) 57 FCR 451 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 TAUMAFAI AIMAHALA LAFU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL NSD 332 of 2009 JAGOT J 9 JULY 2009 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY General Division NSD 332 of 2009 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY PROFESSOR G D WALKER, DEPUTY PRESIDENT BETWEEN: TAUMAFAI AIMAHALA LAFU Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: JAGOT J DATE OF ORDER: 9 JULY 2009 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the first respondent's costs of the application as agreed or taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY General Division NSD 332 of 2009 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY PROFESSOR G D WALKER, DEPUTY PRESIDENT BETWEEN: TAUMAFAI AIMAHALA LAFU Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: JAGOT J DATE: 9 JULY 2009 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application to set aside a decision of the Administrative Appeals Tribunal (the Tribunal) affirming a decision of a delegate of the first respondent (the Minister) to cancel the applicant's visa (Lafu v Minister for Immigration and Citizenship (2009) 107 ALD 678; [2009] AATA 218). 2 The applicant is a citizen of New Zealand. The applicant held a visa permitting his entry to and presence in Australia from 19 May 2007 at which time the applicant was aged 37. The applicant had a criminal record in New Zealand which had not resulted in any custodial sentence and which he did not declare on his visa application. In October 2008 the applicant was convicted of an assault occasioning grievous bodily harm relating to an incident in Queensland in August 2007. The applicant was sentenced to four years' imprisonment in Queensland. 3 Section 501(2)(b) of the Migration Act 1958 (Cth) enables the Minister to cancel a visa if a visa holder does not pass the "character test". The "character test" is explained in s 501(6). A visa holder's criminal record is a central consideration with respect to the character test as set out in s 501(6). By reason of his conviction and sentence in Queensland, the applicant did not pass the character test. The Minister's power to cancel his visa was thereby enlivened. The Minister cancelled the applicant's visa on 24 December 2008. 4 The applicant appealed to the Tribunal against the cancellation, but the Tribunal affirmed the Minister's decision on 2 April 2009. 5 The effect of certain statutory provisions is that the applicant may obtain an order setting aside the Tribunal's decision only if the applicant establishes that the decision is vitiated by reason of jurisdictional error (ss 476A(1)(b) and (2) and 483 of the Migration Act, as explained in Cockrell v Minister for Immigration and Citizenship (2008) 171 FCR 345; [2008] FCAFC 160 at [4]). 6 The applicant alleged that the Tribunal "constructively failed to exercise its jurisdiction by applying the wrong test and/or failing to consider a mandatory relevant consideration". 7 The "mandatory relevant consideration" on which the applicant relied is "general deterrence". A Ministerial direction, Direction No 21 – Visa Refusal and Cancellation under Section 501 (Direction 21), requires that issue to be considered when deciding whether to cancel a visa. The applicant contended that the Tribunal's consideration of general deterrence miscarried; although the Tribunal considered relevant principles, it disregarded or failed to apply those principles to the particular facts of the applicant's case. The applicant claimed that this constituted a failure to consider the mandatory matter in accordance with law. A failure to consider a relevant matter, if established, is a jurisdictional error (Craig v State of South Australia (1995) 184 CLR 163 at 171). 8 The Minister contended that the Tribunal's decision disclosed that it discharged its statutory function in accordance with the terms of Direction 21. 9 In order to understand and resolve the competing submissions it is necessary to identify the terms of Direction 21 and the Tribunal's decision. 10 Direction 21 is a written direction issued by the Minister under s 499(1) of the Migration Act. That section enables the Minister to give a direction to a person or body having functions or powers under the Migration Act about the performance of those functions or the exercise of those powers. Section 499(2A) provides that a person or body having such functions or powers must comply with a direction given under s 499(1). In deciding whether to affirm, vary or set aside a decision to cancel a visa, the Tribunal is a body having such powers and functions. Direction 21 is therefore binding on the Tribunal. 11 Direction 21 is in two parts. Part 1 concerns the application of the character test and thus is not material to the present case. Part 2 concerns the exercise of the discretion if a visa holder does not pass the character test and thus is material to the present case. The relevant provisions in Pt 2 are as follows: PART 2 – EXERCISING THE DISCRETION 2.1 If a non-citizen does not pass the Character Test, decision-makers must have regard to the following considerations when exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia. Weight of considerations 2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3-2.16 and other considerations are set out at paragraphs 2.17-2.24. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations. PRIMARY CONSIDERATIONS 2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations: (a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children. 2.4 The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence. 2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include: (a) the seriousness and nature of the conduct; (b) the likelihood that the conduct may be repeated (including any risk of recidivism); and (c) whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence). a. The seriousness and nature of the conduct 2.6 It is the Government's view that the following are examples of offences which are considered by the Government to be very serious: … … (f) murder, manslaughter, assault or any other form of violence against persons; … … c. general deterrence – the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons 2.11 General deterrence aims to deter other people from committing the same or a similar offence. While not a conclusive factor in itself, general deterrence is an important factor in determining whether to refuse or cancel a visa. The general deterrence factor may be relevant in a number of ways: (a) the nature of the offence may be such that visa refusal or cancellation may deter others from committing similar offences; and (b) the visa refusal or cancellation in respect of a non-citizen who has been involved in a criminal scheme or schemes may discourage or prevent another person or persons from engaging in similar schemes. 12 The applicant and the Minister agreed that, by reason of s 499 of the Migration Act and the terms of Direction 21, the Tribunal was required to consider "the protection of the Australian community, and members of the community" (paragraph 2.3(a) of Direction 21). In so doing the Tribunal, amongst other things, was required to assess "the level of risk to the community of the …continued stay of [the applicant]…" including by reference to the factor "whether visa …cancellation may prevent or discourage similar conduct (general deterrence)" (paragraph 2.5(c) of Direction 21). The applicant and the Minister also agreed that paragraph 2.11 of Direction 21 explained the concept of general deterrence as it was required to be considered by the Tribunal. 13 The applicant did not challenge the way in which the Tribunal framed the relevant issues for determination in [9] of its reasons as follows: (i) whether the applicant passes the character test in s 501(6)(a) of the Act, given his substantial criminal record as defined in s 501(7) of the Act; and if not, (ii) whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of [the Minister] to cancel the applicant's visa, applying [Direction 21]. 14 Nor did the applicant challenge the Tribunal's finding that the applicant did not pass the character test (at [99]) with the consequence that the Tribunal was required, as it stated, to consider whether to cancel the applicant's visa and, in so doing, to have regard to Pt 2 of Direction 21 (at [100]). 15 The applicant also accepted that the Tribunal correctly identified for itself the primary relevant considerations specified in paragraph 2.3 of Direction 21 and that the Tribunal was required to consider, amongst other things, general deterrence by reference to paragraph 2.11 of that Direction (at [101]-[103]). 16 The applicant's challenge was founded on four paragraphs of the Tribunal's decision dealing with general deterrence as follows: [124] In relation to the protection of the Australian community, [the Tribunal] is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 para 2.11. The deterrent effect of a particular decision is impossible to prove in advance. The concept can perhaps also be expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community. [125] Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does. [126] As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, "Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort". [127] While general deterrence cannot be a decisive, or even a substantial, factor in the exercise of the discretion, it is a factor that must be taken into account. 17 The applicant submitted that these paragraphs disclosed that the Tribunal had done no more than recite the abstract formula from the relevant paragraphs of Direction 21 about general deterrence. The paragraphs, however, gave no indication that the Tribunal had applied its mind to the facts of the individual case. Direction 21, as evident from its terms, is to be applied to the circumstances of the particular applicant and visa decision in question. Yet the Tribunal in this case, submitted the applicant, had simply "cut and paste" the statements of principle from Direction 21 without applying them to the applicant's individual circumstances. 18 According to the applicant, neither the applicant nor anyone else could possibly know what, if anything, the Tribunal had made of the issue of general deterrence. General deterrence was a mandatory relevant consideration but the Tribunal's reasons gave no clue as to what weight it had been given or what part it played in the decision-making process. The Minister and the applicant had made a real issue about the general deterrence factor. In written submissions to the Tribunal the Minister had contended that general deterrence was a factor entitled to "significant weight". The applicant had submitted that visa cancellation would have no general deterrence value given the lack of both publicity about the matter and any gang involvement (at [92]). The applicant thus submitted that the Tribunal's "abstract recitation of principle" in [124]-[127] of its reasons was insufficient to constitute consideration as required by law. 19 The applicant also noted that this insufficient treatment could be contrasted with the reasons for decision of the Tribunal constituted by the same member in another decision (Filipo v Minister for Immigration and Citizenship [2008] AATA 1144). In that case, at [83]-[86], the Tribunal had used precisely the same formula of words but with the addition of a factor relevant to the individual applicant (at [86]) in the observation that the case (unlike the present) involved serious gang violence and thus the deterrent factor was particularly important. No equivalent observation, specific to the individual applicant, was apparent from the Tribunal's reasons in the present case. 20 For these reasons the applicant submitted that the Tribunal, by failing to consider the mandatory relevant matter of general deterrence as required by Direction 21, had constructively failed to exercise its jurisdiction. It had not engaged in an "active intellectual process" (Tickner v Chapman (1995) 57 FCR 451 at 462) with respect to the nominated subject-matter as it had not applied its mind to the facts of the individual case. 21 The Minister acknowledged that the Tribunal was required to consider the factor of general deterrence in the context of the applicant's individual case. According to the Minister, a fair reading of the Tribunal's reasons as a whole supported the inference that the Tribunal had done so. 22 It may be accepted that the observations in [124]-[127] of the Tribunal's reasons, read in isolation, are capable of giving rise to a suspicion of "abstract recitation of principle" irrespective of the facts of the individual case. But those paragraphs of the Tribunal's reasons cannot be read in isolation. Nor can a court exercising powers of judicial review act on mere suspicion as opposed to rational inference from the whole of the evidence. The High Court has identified that "reasons of an administrative decision-maker are meant to inform and [are] not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed" (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272). 23 Once the Tribunal's reasons are read fairly as a whole, I am satisfied that the applicant's case does not rise above a mere suspicion of error by the Tribunal. As the Minister observed, before the impugned paragraphs appear in its reasons, the Tribunal correctly identified the questions it had to answer (at [9]). It correctly identified the operation of Direction 21 (at [12]-[13]). It correctly identified the considerations made relevant by Direction 21, including general deterrence (at [98]-[103]). It also accurately recorded the applicant's evidence and submissions about general deterrence (at [19] and [92]). In other words, the issue of general deterrence was evidently in the Tribunal's mind throughout its assessment. 24 It must also be recognised that matters relevant to other factors identified in Direction 21 are also potentially relevant to general deterrence. For example, general deterrence involves consideration of the consequences for "similar conduct". Accordingly, the nature of the conduct in question is relevant to general deterrence but is also relevant to other nominated factors including the "seriousness and nature of the conduct" (paragraph 2.5(a)) and the expectations of the Australian community (paragraphs 2.3(b) and 2.12). The Tribunal made findings about the nature of the applicant's conduct, describing it as "gratuitous violence" (at [43]), which had elements of "collective action" despite not being part of a gang crime (at [108]), warranting the conclusion that the applicant had a "very serious" criminal record in Australia and as a consequence of which one Australian had already been caused to suffer "permanent disability" (at [123]). 25 The Tribunal's observations on general deterrence must be read in light of these preceding findings of fact. In that context the Tribunal assessed general deterrence to be neither a decisive nor even a substantial factor, but a relevant factor. A fair reading of the Tribunal's reasons indicates that this assessment must be understood as the Tribunal's conclusion on the facts of the individual case and not in the mere abstract. 26 This inference is also supported by the Tribunal's subsequent assessment of the expectations of the Australian community about a "person with a serious criminal record, who is assessed at being some risk of re-offending and who shows little evidence of stable and lasting rehabilitation" (at [133]) and the neutrality of the factor of the best interests of any children (at [139]). When recording its overall conclusion at [146], the Tribunal said: In my view the best interests of the child are a neutral factor in this case. The primary considerations of community protection and expectations outweigh the other considerations. The decision under review is affirmed. 27 Accordingly, when read as a whole the Tribunal's reasons indicate that the Tribunal concluded that the seriousness and nature of the applicant's conduct, combined with his risk of re-offending, meant that the two primary considerations in paragraphs 2.3(a) and (b) of Direction 21 (protection of the Australian community and the expectation of the Australian community) warranted the cancellation of the applicant's visa. The Tribunal, in so concluding, accepted that general deterrence (paragraph 2.5(c)) was relevant to the first of these primary factors (protection of the Australian community) but concluded that it was not a decisive or even a substantial factor. Rather, the decisive or substantial factors in respect of this primary consideration were those specified in paragraphs 2.5(a) and (b) (respectively, the seriousness and nature of the conduct and the likelihood of the applicant re-offending). No error is disclosed by this approach. 28 An observation of the Full Court of the Federal Court is also apt in the present case. In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47] French, Sackville and Hely JJ said: The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 29 In the present case the Tribunal identified the issue of general deterrence as relevant. It identified the submissions made for the applicant to the effect that the issue should be given little weight. Having considered both the nature and seriousness of the applicant's offence and the difficulty of being sure of the deterrent effect of any particular decision, the Tribunal made findings about the relevance of that issue (that is, the issue was relevant, but not decisive nor even entitled to substantial weight). The issue, if resolved one way, could not be dispositive; as the Tribunal said, Direction 21 recognised that the issue of general deterrence was "not a conclusive factor in itself". 30 In all of these circumstances the fact that the Tribunal did not expressly refer again to the applicant's circumstances in [124]-[127] of its reasons is insufficient to found the necessary inference of a failure of consideration. 31 Given this conclusion it is unnecessary for me to consider the Minister's alternative submission of lack of utility other than to observe that, in discussion, the Minister's counsel (correctly, in my view) acknowledged the difficulty of making good this alternative submission. 32 The applicant has not established any jurisdictional error by the Tribunal and the application therefore must be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 9 July 2009 Counsel for the Applicant: Ms L A Clegg Counsel for the First Respondent: Mr M P Cleary Solicitor for the First Respondent: Clayton Utz Date of Hearing: 3 July 2009 Date of Judgment: 9 July 2009