FEDERAL COURT OF AUSTRALIA Minister for Immigration and Citizenship v Paeu [2012] FCA 550 Citation: Minister for Immigration and Citizenship v Paeu [2012] FCA 550 Appeal from: Paeu v Minister for Immigration and Citizenship [2011] AATA 792 Parties: MINISTER FOR IMMIGRATION AND CITIZENSHIP v LASALO PAEU and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 2284 of 2011 Judges: BUCHANAN J Date of judgment: 29 May 2012 Catchwords: MIGRATION – discretion to cancel visa – discretion to be exercised according to Ministerial Direction – Direction [41] – whether the presence of prior criminal activity prohibits reliance on length of residence in Australia ADMINISTRATIVE LAW – jurisdictional error – reasons for decision on review should not be construed minutely – no jurisdictional error – application dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) Federal Court Rules 2011 Migration Act 1958 (Cth) Direction [no. 41] – Visa refusal and cancellation under s501 Cases cited: Collector of Customs v Pozzolanic Enterprises Pty Ltd; Collector of Customs v Pressure Tankers Pty Ltd (1993) 43 FCR 280 Craig v The State of South Australia (1995) 184 CLR 163 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Date of hearing: 17 May 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: Ms N L Sharp Solicitor for the Applicant: Sparke Helmore Lawyers Counsel for the First Respondent: Mr D J Hand Counsel for the Second Respondent: The second respondent submitted save as to costs. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2284 of 2011 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP Applicant AND: LASALO PAEU First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BUCHANAN J DATE OF ORDER: 17 MAY 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed with 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 2284 of 2011 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP Applicant AND: LASALO PAEU First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: BUCHANAN J DATE: 29 MAY 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 At the conclusion of the hearing of this application I ordered that the application be dismissed with costs. The following are my reasons for making that order. 2 The applicant sought judicial review of a decision of the Administrative Appeals Tribunal ("the AAT") constituted under the Administrative Appeals Tribunal Act 1975 (Cth). The AAT had set aside a decision made by a delegate of the applicant ("the Minister") to cancel Mr Paeu's visa pursuant to s 501(2) of the Migration Act 1958 (Cth) ("the Act"). As was accepted in written submissions filed for the Minister, the application could only succeed if it was established that the decision of the AAT was affected by jurisdictional error. 3 If an administrative tribunal, such as the AAT, makes an error of law which: …causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion… and: …the tribunal's exercise or purported exercise of power is thereby affected… the tribunal will have exceeded its authority or powers and have committed a jurisdictional error (Craig v The State of South Australia (1995) 184 CLR 163 at 179 ("Craig")). 4 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ("Yusuf"), McHugh, Gummow and Hayne JJ, after setting out the passages I have extracted above from Craig, said at [82]: 82. …What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. … (Emphasis added) The emphasis on a relevant error which affects the exercise of power, in both Craig and Yusuf should be noted. This is the threshold which the present application needs to pass. 5 At the time of the decision of the AAT Mr Paeu's circumstances were as recorded in the opening paragraphs of the AAT decision: 1. Mr Paeu is a 36 year old New Zealand national. He has lived in Australia with his wife and children since June 2000. In November 2009 Mr Paeu was arrested at Sydney airport, after being found to have 261grams of methamphetamine concealed in his clothing. He was taking it to Perth, as a courier for a drug dealing syndicate that operated between Sydney, Perth and Kalgoorlie. Methamphetamine is a prohibited drug, for the purposes of the Drug Misuse and Trafficking Act 1985 (NSW). 2. Mr Paeu's arrest led to: (a) his 22 November 2010 conviction for knowingly taking part in the supply of a commercial quantity of a prohibited drug, contrary to s 25 of the Drug Misuse and Trafficking Act 1985; (b) a sentence to three years imprisonment, with a two year non-parole period; (c) the Minister's 26 August 2011 decision, under s 501(2) of the Migration Act 1958, to cancel the temporary visa under which Mr Paeu resided in Australia; and (d) the present proceedings, in which Mr Paeu applies for the review of the visa cancellation decision. 6 On 15 August 2011, a delegate of the Minister cancelled Mr Paeu's visa. Mr Paeu then applied to the AAT for review of the delegate's decision. The AAT was obliged to come to its own view as to the correct and preferable decision to be made with respect to the retention or cancellation of Mr Paeu's visa. Mr Paeu had, for the purposes of s 501(7) of the Act, a "substantial criminal record" as he had been sentenced to three years imprisonment for the drug-related offences. For that reason, he did not pass the character test set out in s 501(6) of the Act. In those circumstances the Minister had a power to cancel Mr Paeu's visa. The power to cancel a visa was to be exercised only upon consideration of factors set out in a Ministerial Direction authorised by s 499 of the Act entitled "Direction [no. 41] – Visa refusal and cancellation under s501", generally known as Direction [41]. 7 In a detailed decision, the AAT provided a perceptive discussion of the operation of Direction [41] and the interaction and legal significance of its various components. The AAT identified and discussed, first at a level of general principle, the four "primary considerations" set out in Direction [41]. I do not understand there to have been, on the present application, any challenge to this analysis. 8 Then the AAT turned to a discussion (to the extent they were relevant) of each of the four primary considerations. The primary considerations were distilled, without criticism on the present application, in the following terms (at [6]): (a) protection of the Australian community from "serious criminal or other harmful conduct, particularly crimes of violence"; (b) whether the person was a minor when they began living in Australia; (c) the length of time the person had been ordinarily resident in Australia before engaging in criminal activity, or other relevant conduct; and (d) relevant international obligations, including those arising under the Convention on the Rights of the Child and others arising under various international refugee and non-refoulement obligations. 9 Direction [41] instructs decision-makers to only take into account directly relevant matters. In the circumstances of the present case, the primary considerations referred to in (a), (c) and (d) are the only ones that are potentially relevant. Primary consideration (d) included consideration of the "best interests" of the four children of Mr and Mrs Paeu. No criticism was made of the AAT's analysis of the first or fourth primary considerations. 10 In Direction [41] clause 10.3 gives the following instruction about the third primary consideration, accompanied by the note also set out: 10.3(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. 11 The Minister's written contention regarding the significance of the third primary consideration before the AAT was as follows: 55. The Applicant first arrived in Australia to live in June 2000. His first recorded offence occurred in March 2006, less than 6 years after his arrival. 56. While in Australia the Applicant has associated with persons with little regard for the law. The Minister contends that this is a factor that reflects poorly on the Applicant's character and must be taken into account for the purposes of assessing the nature of the Applicant's links to the Australian community (Shi v Minister for Immigration and Citizenship [2011] FCA 935, at [14]-[15]). 57. The Minister contends that the Tribunal should also take into account the unusual nature of the Applicant's residence in Australia, which involved extensive overseas travel. The Minister contends that the Applicant's periods of absence from Australia should be taken into account in assessing the length of the Applicant's residence in Australia, and furthermore, that these periods of absence will have affected the extent to which the Applicant will have developed ties to the Australian community. 12 This approach was substantially modified, and in my view effectively abandoned, for the purposes of the present application. During the hearing before the AAT Mr Paeu admitted taking drugs while in Australia. This appears to have caused a refocussing of the Minister's position. On the present application, the Minister's submission amounted to the suggestion that the presence of prior "criminal activity" (including driving offences no matter how trivial) and Mr Paeu's drug-taking (no matter how it was evaluated by the AAT) prohibited any reliance by the AAT on the length of Mr Paeu's residence in Australia as a factor going against the cancellation of his visa. The AAT was accused of misunderstanding and misapplying the third primary consideration. 13 I reject these criticisms. In my view they are without appropriate balance and are incorrect. 14 The present application seems to me to be one which prompted the criticism of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd; Collector of Customs v Pressure Tankers Pty Ltd (1993) 43 FCR 280 at 287: The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. and of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272: … the reasons of an administrative decision-maker are meant to inform and 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. 15 The AAT gave very conscientious attention to all the matters which were necessary for a proper evaluation of the third primary consideration. That evaluation apparently caused the AAT to take the view that those matters were not particularly serious in their own right. However, it is equally apparent that Mr Paeu's case received no particular support from the length of his residence in Australia. In the end, the third primary consideration seemed quite neutral in the overall assessment made by the AAT about whether Mr Paeu's visa should be cancelled. 16 As I understood it, the submission of the Minister was that the AAT should have positively discounted any reliance on Mr Paeu's length of residence in Australia. I do not see how that could have made any difference to the final outcome. That position appears to me to appear sufficiently clearly from the matters referred to below. 17 Mr Paeu's brushes with the criminal law in Australia before his major conviction were addressed directly by the AAT. He had committed some minor driving offences and had been convicted for maliciously damaging a car bonnet. The first driving offence resulted in a fine. Mr Paeu was placed on good behaviour bonds for his second driving offence and his malicious damage conviction. The AAT took the view (at [62]) that: They are not offences of the kind to which Direction [41] clause 10 applies, and they have no real bearing on the relevant characterisation of his behaviour for the purposes of this [the third] primary consideration. 18 The other matter relevant to the third primary consideration was that Mr Paeu had admitted a history of "periodic, recreational use of illicit drugs, up until about 2007". The AAT said (at [62]): 62. … The recreational drug use necessarily involved possession of prohibited substances, and thus repeated criminal offences. That must be taken into account as a consideration that favours exercise of the visa cancellation power. However its significance is minimal because: (i) personal illicit drug use is specifically not included in, and is not intended to be included in, the illustrative examples of serious offences and conduct that are set out in Direction [41] clause 10.1.1(2); and (ii) on the findings I have made, his personal drug use had no direct bearing on the trafficking offence he committed. 19 It is clear, in my view, that ultimately these matters did not bear one way or the other on the assessment of whether Mr Paeu's visa should be cancelled. It is equally clear that there was a more than adequate discussion of the possible significance of the third primary consideration. Nothing put on the present application identified any jurisdictional error with respect to this issue. 20 The AAT's conclusions were expressed, ultimately, in the following paragraphs: 88. I have found that Mr Paeu's continued residence in Australia does pose a "real" risk, and that the risk relates to drug trafficking. But I have also concluded that the risk has a minimal probability of occurrence. I have also found that the best interests of the four children strongly favour their continued residence in Australia. These two findings clearly compete to be determinative of the visa cancellation decision. Aiding that competition, and favouring cancellation, is the fact that Mr Paeu came to Australia as an adult. Conversely, the fact that Mr Paeu did not engage in any materially relevant criminality until more than nine years after he came to Australia, tends to reinforce my view that the risk of his relevant re-offending is minimal. 89. I consider that Mr Paeu's continued residence in Australia is an acceptable risk, given the primary considerations in Direction [41]. The risk is minimal. It can only be totally avoided by his removal from Australia. But that removal would defeat the best interests of his four minor children, to the extent of either ending their, essentially lifetime, residence in Australia, or depriving of them of their father's real, supportive and desired presence. Those alternative consequences for the children, in the light of the minimal risk of re-offending, lead me to the conclusion that the preferable decision is to set aside the cancellation decision. 21 Specific attention was drawn, in the Minister's submissions, to the last sentence in paragraph 88. It was submitted that it illustrated an impermissible reliance on Mr Paeu's length of residence in Australia, contrary to some explicit or implicit instruction in, or in connection with, the third primary consideration. I do not agree. The AAT was permitted, whatever its specific conclusions about the third primary consideration, to give some attention to the fact that Mr Paeu did not, for more than nine years, engage in "materially relevant criminality" in Australia when it was evaluating whether his continued presence in Australia represented an unacceptable risk of harm. 22 In my view there is no substance in any suggestion that the conclusions reached by the AAT were affected or, potentially affected, by any error of understanding or application of Ministerial Direction [41] in general or of the primary consideration stated in clause 10(1)(c) in particular. I regard the challenge to the AAT's decision in this case as having no legal or other substance. For those reasons the application was dismissed with costs. 23 In the present case, I referred Mr Paeu for legal assistance under a scheme maintained for that purpose (Division 4.2 of the Federal Court Rules 2011). The submissions made on Mr Paeu's behalf as a result were of considerable assistance. As always, the Court is grateful for the co-operation and assistance of the Bar in cases referred under the scheme. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 29 May 2012