FEDERAL COURT OF AUSTRALIA Minister for Immigration & Citizenship v Pareina [2013] FCA 586 Citation: Minister for Immigration & Citizenship v Pareina [2013] FCA 586 Appeal from: Whitter Tokorua Pareina v Minister for Immigration and Citizenship [2013] AATA 115 Parties: MINISTER FOR IMMIGRATION AND CITIZENSHIP v WHITTER TOKORUA PAREINA and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 596 of 2013 Judge: KATZMANN J Date of judgment: 12 June 2013 Catchwords: MIGRATION – visa cancellation – Direction No. 55 – character test – substantial criminal record – absence of prior warning concerning effect of reoffending on migration status – jurisdictional error - whether Administrative Appeals impermissibly took into account absence of prior warning in visa holder's favour – whether irrelevant consideration – whether failure to comply with the terms of the Direction Legislation: Migration Act 1958 (Cth), s 501 Direction No. 55 – Visa refusal and cancellation under s 501 Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 289 Date of hearing: 12 June 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 18 Counsel for the Applicant: Mr J D Smith Solicitor for the Applicant: DLA Piper Australia Counsel for the First Respondent: Mr N Poynder Solicitor for the First Respondent: Legal Aid NSW Solicitor for the Second Respondent: The Second Respondent filed a submitting notice. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 596 of 2013 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP Applicant AND: WHITTER TOKORUA PAREINA First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: KATZMANN J DATE OF ORDER: 13 June 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 596 of 2013 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP Applicant AND: WHITTER TOKORUA PAREINA First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: KATZMANN J DATE: 13 JULY 2013 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Whitter Tokorua Pareina is a Cook Islander and a citizen of New Zealand. He arrived in Australia in 1995 at the age of 21 and, for the most part, has lived here ever since on a Class TY Subclass 444 Special Category (Temporary) visa. In that time he fathered three Australian children, all of whom are under 18, the youngest four and seven. He also fell foul of the law and, after he was convicted and sentenced for a series of offences (mostly involving violence), a delegate of the Minister for Immigration and Citizenship decided to cancel his visa on character grounds. 2 Mr Pareina applied to the Administrative Appeals Tribunal for a review of the delegate's decision. The Tribunal upheld his application and set the decision aside. The Minister contends that in doing so the Tribunal fell into jurisdictional error. He applies for writs of certiorari and mandamus to quash the Tribunal's decision and have it determine the application afresh. For the following reasons the Minister's contention must be rejected and the orders he seeks refused. 3 The Tribunal was exercising the power conferred by s 501 of the Migration Act 1958 (Cth) ("the Act"). That is a power to cancel a person's visa where the Minister "reasonably suspects that the person does not pass the character test" and that person does not satisfy the Minister that he (or she) does. The Minister may delegate this power (see s 496), as he did in this case, and on a review the Tribunal may exercise all the powers and discretions conferred on the original decision-maker (AAT Act, s 43(1)). 4 The circumstances in which a person will not pass the character test are set out in s 501(6). Relevantly, they include (in paragraph (a)) where the person has a substantial criminal record. A substantial criminal record is defined for the purpose of the character test in subs (7). Relevantly, it includes (in paragraph (c)) being sentenced to a term of imprisonment of 12 months or more. On 24 May 2012 Mr Pareina was sentenced to a term of 20 months imprisonment. So it was unarguable that he did not pass the character test. The delegate therefore had the power (though not the duty) to cancel his visa, a power he decided to invoke. The Tribunal, on the other hand, took the opposite course. 5 As there was no dispute that Mr Pareina did not pass the character test, the case turned on how the discretion should be exercised. Like the delegate before it, the Tribunal was obliged to exercise the discretion in accordance with Direction No. 55 – Visa refusal and cancellation under s 501 ("Direction 55"). This is a direction that was issued by the Minister under s 499(1) of the Act. Section 499(2A) provides that a person or body must comply with such a direction. 6 The Minister's contention on this application is that the Tribunal fell into jurisdictional error by taking into account an irrelevant consideration or, alternatively, failing to comply with Direction 55. The gravamen of his complaint is that the Tribunal took into account in Mr Pareina's favour the fact that he had not previously been warned that his visa might be cancelled if he were to reoffend, contrary to an express prohibition in the Direction. 7 It may be accepted that, if the Minister's contention is a good one, the Tribunal exceeded its jurisdiction. But the contention is misconceived. It lacks both a legal and a factual foundation. 8 The Tribunal's reasons contain only two references to the absence of a prior warning. The first appears in [24], where the Tribunal merely noted that Mr Pareina had "not received a formal warning about the consequences of further offending for his visa status". As the Tribunal was bound to consider whether he had re-offended since being warned, there is no error in observing that there had been no warning and the Minister does not suggest there is. The second reference appears in the penultimate paragraph of the reasons ([61]). This was the passage in which the Minister submitted the Tribunal fell into error. There, after referring to the nature and seriousness of his conduct to date, the Tribunal made some remarks about the risk of Mr Pareina re-offending. This is what it said: Mr Tokorua Pareina's motivation will, hopefully, ensure that he undertakes the appropriate rehabilitation programs to address his offending behaviour. This should reduce the risk of his reoffending. Mr Tokorua Pareina will, moreover, be on notice that he must address his offending behaviour and that any further misconduct is likely to lead to the cancellation of his visa and his being returned to New Zealand. He has not been warned of this possibility in the past. 9 The legal premise for the Minister's contention is that the Direction imposes a blanket prohibition on a decision-maker giving favourable consideration to the absence of a prior warning. It does not. 10 Direction 55 sets out various considerations to which the decision-maker must have regard when considering whether to exercise the discretion to cancel (or refuse) a visa. The primary considerations, contained in paragraph 9(1), relevantly include the protection of the Australian community from criminal or other serious conduct. 11 Paragraph 9.1(2) provides that when considering the protection of the Australian community, decision-makers should give consideration to two matters: (a) the nature and seriousness of the person's conduct to date; and (b) the risk to the Australian community should the person commit further offences or engage in other serious conduct. 12 The factors which decision-makers must take into account in considering the nature and seriousness of the person's conduct to date are listed in paragraph 9.1.1(1), which relevantly reads: In considering the nature and seriousness of the person's criminal offending or other conduct to date, decision-makers must have regard to factors including: … (i) Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person's migration status (noting that the absence of a warning should not be considered to be in the person's favour); … 13 The factors to which the Minister must have regard when considering the risk to the Australian community should the person commit further offences or engage in other serious conduct are listed in paragraph 9.2.3(1). 14 As I have already indicated, the premise upon which the Minister's application rests is that the absence of a warning cannot under any circumstances be taken into account in the person's favour. But that overlooks the chapeau to paragraph 9.1.1(1). Reading paragraph 9.1.1(1) in its context, and, in particular, in conjunction with paragraph 9.1.2(1), the absence of a prior warning is only to be ignored in considering the nature and seriousness of the person's conduct to date. There is no equivalent stipulation in paragraph 9.1.2(1). The Minister attempted to avoid the natural reading of the Direction, by arguing that the nature and seriousness of past offending feeds into the consideration of future risk. Whilst that proposition is true enough as far as it goes, the Direction does not go so far as to preclude the decision-maker from having regard to the absence of a prior warning for all purposes. 15 The evident object of the twin command in paragraph 9.1.1(1)(i) is to ensure that decision-makers treat re-offending after a warning as a factor that aggravates the seriousness of the conduct but that they not treat the absence of a warning as a mitigating factor. The Direction does not preclude decision-makers from taking the absence of a warning into account in considering other matters. Here, the Tribunal did not treat the absence of a prior warning as a factor in mitigation of the seriousness of Mr Pareina's conduct. It mentioned the matter in the context of a discussion about Mr Pareina's motivation to reoffend. There is no prohibition against considering the absence of a prior warning as a matter that might in some way bear on the question of future offending. Thus, if Tribunal did take into account in Mr Pareina's favour that he had not previously been warned, it did not do so for an impermissible purpose. 16 But I am not satisfied that the Tribunal actually took into account in Mr Pareina's favour the absence of a prior warning. What the Tribunal took into account was Mr Pareina's current knowledge, not his former ignorance. It relied upon that knowledge as providing a disincentive to him re-offending. It adverted to the absence of a prior warning merely by way of contrast. That contrasting reference added nothing to the point the Tribunal was making and could have been omitted without affecting its meaning. The Minister did not submit - nor could he - that it was irrelevant for the Tribunal to take into account that Mr Pareina was now aware that further misconduct was likely to result in the cancellation of his visa. Had the Tribunal expressed itself in this way, it is highly unlikely the application would have been brought. Yet, that is all the Tribunal was saying. The Minister's submission smacks of the kind of over-zealous scrutiny the High Court warned against in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 289 at [31]. 17 It follows that the Tribunal did not fall into jurisdictional error. 18 The Minister's application should therefore be dismissed with costs. There will be orders accordingly. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate: Dated: 13 June 2013