FEDERAL COURT OF AUSTRALIA Shi v Minister for Immigration and Citizenship [2012] FCA 533 Citation: Shi v Minister for Immigration and Citizenship [2012] FCA 533 Appeal from: Shi v Minister for Immigration and Citizenship [2012] AATA 21 Parties: ZIPEI SHI v MINISTER FOR IMMIGRATION & CITIZENSHIP AND ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 197 of 2012 Judge: JACOBSON J Date of judgment: 28 MAY 2012 Corrigendum: 22 June 2012 Catchwords: MIGRATION – Direction No 41 made by Minister under s 499 of the Migration Act 1958 (Cth) – construction and application – unacceptable risk of serious harm – length of stay prior to engaging in criminal conduct – level of education Legislation: Migration Act 1958 (Cth), ss 499, 501 Cases cited: Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390 Date of hearing: 10 May 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 65 Counsel for the Applicant: R Francois Solicitor for the Applicant: Clayton Utz Solicitor for the Respondent: Mr Killalae of KTG Lawyers FEDERAL COURT OF AUSTRALIA Shi v Minister for Immigration and Citizenship [2012] FCA 533 CORRIGENDUM TO HEADING PAGES 1 The Second Respondent identified in the heading pages was incorrectly identified as the Refugee Review Tribunal. This has been changed to Administrative Appeals Tribunal. I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the heading pages for the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 22 June 2012 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 197 of 2012 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: ZIPEI SHI Applicant AND: MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: JACOBSON J DATE OF ORDER: 28 MAY 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Leave to file and rely on the proposed amended originating application be refused. 2. The application be dismissed. 3. The applicant pay the 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 197 of 2012 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: ZIPEI SHI Applicant AND: MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: JACOBSON J DATE: 28 MAY 2012 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction: 2 This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) handed down by Senior Member Toohey on 17 January 2012. The Tribunal affirmed the decision of a delegate of the Minister to cancel the Applicant's Class BL visa under s 501(2) of the Migration Act 1958 (Cth) (the Act). 3 The originating application filed by the Applicant (Mr Shi) raises two grounds of review which turn upon the proper construction and application of Direction [no.41] – Visa refusal and cancellation under s 501 ("Direction 41") issued by the then Minister on 3 June 2009. 4 Mr Shi seeks leave to file an amended originating application adding a third ground of review which also turns largely upon the effect of Direction 41. This ground was argued before me but I reserved the question of leave to amend which was opposed by the Minister. Background Facts 5 Mr Shi is now 27 years old. He is a citizen of China who entered Australia in 1999 accompanied by his father. Mr Shi was then 14 years old. Three years after he entered Australia, Mr Shi committed the first of three serious offences for which he was sentenced, in each instance, to a term of imprisonment well in excess of 12 months. 6 The details of Mr Shi's offences and the sentences imposed upon him are set out in the Tribunal's decision, commencing at [16]. It is unnecessary to repeat the details save to say that the first was an offence of malicious wounding, the second of supplying a commercial quantity of a drug and the third was an offence of detaining a friend, in company with other persons, for the purpose of extortion. 7 It was common ground in the Tribunal that by reason of the prison sentences imposed on Mr Shi, he did not pass the character test stated in s 501 of the Act and, accordingly, the discretion to cancel his visa was thereby enlivened. Direction 41 8 Direction 41 was given under s 499 of the Act. It replaced the previous direction, Direction No 21, signed 23 August 2001, which was revoked by cl 3 of Direction 41. 9 Section 499 empowers the Minister to give written directions to a body having functions or powers under the Act about the performance of the functions or the exercise of the powers. The direction must not be inconsistent with the Act and the person or body to whom the direction is given "must comply" with it. 10 Direction 41 is divided into two parts. The first is headed "preliminary". The second is headed "Directions". 11 Part 1 of Direction 41 includes, in cl 5, a preamble which states, in cl 5.1, the objectives. Clause 5.1(1) states that the objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. 12 Clause 5.1(2) is of importance to this application and I will set it out in full as follows: (2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens. 13 Clause 5.2 is headed "General Guidance". It states in cl 5.2(1) that to facilitate the objectives, Direction 41 provides direction to decision-makers with respect to performing functions and exercising powers under s 501 of the Act. 14 Clause 5.2(2) states that in reaching a decision on whether to cancel a visa, a decision maker needs to consider: the nature of any harm that the person may cause to the Australian community; and the risk of that harm occurring. 15 Clause 5.2(5) states that, amongst other matters, therefore, Direction 41 provides direction on the relevant factors that must be considered in making a decision under s 501. 16 Part 2 of Direction 41 commences by explaining that this part is divided into two further parts. Part A provides directions on the application of the character test. It is not relevant to the present matter. 17 Part B provides directions on the primary and other considerations that are relevant to determining whether it is appropriate, in the circumstances of the case, to exercise the discretion to cancel a visa. The explanation continues: Decision-makers should note that a number of primary and other considerations may not be relevant to a decision under certain circumstances. 18 Part B is headed "Exercising the Discretion". Relevantly, cl 9(1) provides that decision-makers must take into account "the primary considerations" in every case. The "other considerations" should be taken into account where relevant. 19 There are four primary considerations which are set out in cl 10. They are: the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence (cl 10(1)(a)); whether the person was a minor when the person began living in Australia (cl 10(1)(b)); the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity (cl 10(1)(c)); and relevant international obligations (cl 10(1)(d)). 20 Clause 10.1 is headed "Protection of the Australian Community". It provides as follows: (1) Due consideration is to be given to the Government's objectives set out in Part 1, paragraph 5 of this Direction. (2) The factors relevant to assessing the level of risk of harm to the community of the person's entry or continued stay include: (a) the seriousness and nature of the relevant conduct; and (b) the risk that the conduct may be repeated. 21 Clause 10.1.1 is headed "The seriousness and nature of the conduct". Relevantly, cl 10.1.1(1) states that crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community and are especially abhorrent to the whole community. 22 Clauses 10.1.2 and 10.2, which deal respectively with the risk that conduct may be repeated and whether the person was a minor when he or she began living in Australia, need not be set out as no issue arises in relation to those clauses. 23 Clause 10.3 deals with the length of time that a person has been ordinarily resident. It provides: (1) Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character. Note: For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person's character would be an important consideration. 24 Clause 11 deals with "other considerations". Clause 11(1) states that in reaching a decision, other considerations, although not primary, may be relevant and, if so, must be considered. 25 Clause 11(2) states that 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. 26 Clause 11(3) lists the other considerations. The list includes family ties and the nature and extent of any relationships: see cl 11(3)(a). 27 The other considerations also include in cl 11(3)(f)(ii), the following: (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. The Tribunal's Decision 28 The Tribunal referred in [1] of its reasons to the review sought by Mr Shi of the Minister's decision. It noted the Minister's contention that Mr Shi's continued stay in Australia presents an unacceptable risk of serious harm to the Australian community. 29 The Tribunal then set out the factual background and relevant parts of the legislation, including Direction 41. It said at [11] that Direction 41 requires due consideration to the objectives of the Act to regulate the presence in Australia of non-citizens, and in this regard: to protect the Australian community from unacceptable risks of harm as a result of criminal activity. 30 The Tribunal recognised that other considerations set out in cl 11(3) of Direction 41 may be relevant. It listed, at [14], the other considerations relevant to this case. The list did not include the consideration stated in cl 11(3)(f)(ii). 31 Next, the Tribunal addressed the seriousness of Mr Shi's offences. It said at [19] that the sentences imposed on each occasion, and the remarks of the sentencing judges, and of the Court of Criminal Appeal, to which it referred, indicated the seriousness of each of Mr Shi's offences. 32 The Tribunal said at [27] that there is no question that Mr Shi's offences are very serious and the question now is, what is the risk of that conduct being repeated. 33 The Tribunal then turned to a consideration of various matters bearing upon the risk of Mr Shi re-offending. The matters to which the Tribunal referred included, at [33], a number of courses undertaken by Mr Shi while in detention. Other matters to which the Tribunal referred included the report of a consulting psychologist, Dr Jacmon. 34 The conclusion reached by the Tribunal on the likelihood of Mr Shi re-offending was set out at [52] as follows: Taking into account all of the evidence, in particular Mr Shi's quite unclear plans for his release and the evidence of Dr Jacmon about the importance of a structured treatment plan, I find that the risk that Mr Shi will again commit serious offences is real and weighs very heavily against him. 35 The Tribunal then addressed the remaining primary considerations and the other considerations it found to be relevant. It came to the view that some of the considerations weighed in Mr Shi's favour while others weighed against him. 36 Relevantly it found, in relation to the primary considerations in cl 10(1)(c) as to the length of time that Mr Shi had been ordinarily resident in Australia prior to engaging in criminal activity, at [55] that: Mr Shi had been in Australia for just over three years when he committed his first offence. It was a serious, violent offence. Nothing about his consideration can be said to weigh in his favour. 37 The Tribunal's ultimate conclusion was recorded at [74] as follows: As I have found above, the risk that Mr Shi will commit further serious offences if he remains in Australia is real and weighs heavily in favour of cancellation of his visa. 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. Ground 1 38 The first ground of review raised by Mr Shi is that the AAT fell into jurisdictional error by failing to assess whether Mr Shi posed an unacceptable risk of harm to the Australian community. 39 Mr Killalea, who appeared for Mr Shi, argued that the effect of the objectives stated in cl 5.1(2) of Direction 41 is that the decision-maker, in exercising the discretion under s 501(2) is bound to consider the question of whether the person poses an "unacceptable risk", rather than whether the person poses a real risk or a risk of serious harm. 40 He submitted that the finding made by the Tribunal at [74] did not address the question which the Tribunal was required to answer because it expressed its findings as a "real risk" and "the risk of serious harm" if Mr Shi remains in Australia. 41 Mr Killalea's submission relies heavily upon the terms of cl 10.1(1) of Direction 41 which states that due consideration is to be given to the Government's objectives in cl 5. Those objectives include protection of the Australian community from unacceptable risks of harm. 42 The proper construction and application of cl 10 was considered by Rares J in Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390 at [18]. His Honour said that the primary considerations the decision-maker is required to take into account in every case are the four considerations specified in cl 10(1)(a) to (d). 43 His Honour went on to say at [18], that in addition, the decision-maker must consider relevant factors identified in cl 10.1 to 10.4 but those factors are not primary considerations although, where relevant, they will need to be taken into account in deliberating on the primary considerations. 44 I respectfully adopt the approach stated by his Honour in Rosson. However, I do not consider that the application of that approach to Direction 41 reveals any error on the part of the Tribunal. 45 What the Tribunal was required to take into account, as a primary consideration, was the protection of the Australian community from serious criminal conduct, particularly crimes of violence. 46 The Tribunal undertook that task by finding that the risk that Mr Shi would re-offend was real and by weighing that finding against its finding on other considerations. Its conclusion expressed at [74] that other considerations were outweighed by the need for protection of the community from the risk of serious harm was one which was made in accordance with the directions given to the Tribunal in Direction 41. 47 It is to be noted that the factors stated in cl 10.1(2) relevant to assessing the level of risk to the community include the seriousness and nature of the relevant conduct as well as the risk that the conduct may be repeated. That was precisely what the Tribunal took into account in assessing the risk of harm to the community which is a primary consideration stated in cl 10(1)(a). 48 There can be no suggestion in my view that the Tribunal failed to give due consideration to whether Mr Shi presented an unacceptable risk. That was the question it posed for itself in [1] of its reasons and it referred to that objective in [13]. 49 The Tribunal's conclusion at [74] must be read, in my view, as having taken that objective into account. 50 Indeed, in my opinion, the Tribunal's conclusion, on a fair reading, was that Mr Shi presented an unacceptable risk. I do not consider that the observations of a Full Court in Lafu v Minister for Immigration and Citizenship (2009) 112 ALD 1 at [52] require a contrary result. Ground 2 51 The second ground of review is that in considering the primary consideration stated in cl 10(1)(c) of the length of stay prior to engaging in the criminal conduct, the Tribunal failed to take into account relevant considerations. Alternatively, it was said the Tribunal took into account irrelevant considerations. 52 The relevant considerations the Tribunal was said to have failed to address were those referred to in cl 10.3, namely "the longer a period of residence the greater likelihood of significant ties to the Australian community". In particular, the Tribunal was said to have failed to consider the likelihood of such ties. 53 The irrelevant consideration was said to be the reference to engaging in criminal conduct. 54 I accept the submission that cl 10(1)(c) requires the decision-maker to take into account as a discrete, and primary, consideration the length of time the person has been ordinarily resident prior to engaging in criminal activity. However, I do not consider that the Tribunal's consideration of that question at [55] of its reasons is affected by judicial error. 55 Properly read, the Tribunal's finding was that Mr Shi had been in Australia for a relatively short period of three years before he engaged in criminal conduct and that the seriousness of the conduct outweighed the period of time he had spent here. 56 It is true that the Tribunal did not refer to the likelihood or unlikelihood of significant ties but this does not reveal error. Clause 10.3 merely points out that the longer the period of residence the greater likelihood of ties. It is an explanation of the primary consideration stated in cl 10(1)(c). What is required is a consideration of the period of residence. The Tribunal did that in a way which does not demonstrate error. 57 It is not to the point, as Mr Killalea sought to do to look for evidence of ties established by Mr Shi in his first three years of residence. That is part of the other considerations referred to in cl 11(3)(a). The Tribunal took those ties into account at [65] as weighing in Mr Shi's favour. Proposed Ground 3 58 The proposed ground 3, which Mr Shi sought to introduce in an amended originating application, was that the Tribunal failed to take into account Mr Shi's level of education and efforts made by him to improve his education as stated in cl 11(3)(f)(ii). 59 Mr Killalea took me to the evidence which the Tribunal summarised at [33] of its reasons. He submitted that this evidence went to the considerations stated in cl 11(3)(ii) and that the Tribunal referred to them in its reasons but failed to take them into account. 60 The substance of Mr Killalea's submission was that this was plainly a relevant consideration and that the Tribunal fell into jurisdictional error by not considering it. 61 Mr Shi's Statement of Facts and Contentions filed with the Tribunal referred at paragraphs 28 to 30 to his level of education and efforts to improve his education while in prison. These paragraphs appear to address the consideration stated in cl 11(3)(f)(ii) of the direction. 62 In his Response at paragraphs 10.17 to 10.18, the Minister contended in effect that this consideration was of little relevance and that, in any event, it did not weigh against cancellation. 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. Conclusion and Orders 65 I will make an order refusing leave to file or rely upon the proposed amended originating application. 66 I will also order that the application be dismissed with costs. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 28 May 2012