FEDERAL COURT OF AUSTRALIA Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 File number: VID 536 of 2016 Judge: NORTH ACJ Date of judgment: 28 September 2016 Catchwords: MIGRATION - automatic visa cancellation under s 501(3A) Migration Act – refusal to revoke cancellation decision under s 501CA(4) – statutory construction – whether or not s 501CA(4) confers residual discretion – meaning of 'may' where Act requires decision-maker to be satisfied of jurisdictional facts ADMINISTRATIVE LAW – judicial review – constructive failure to exercise jurisdiction – whether or not Minister undertook a genuine or substantive assessment of the risk of re-offending – whether or not there was an evident and intelligible basis for finding that applicant posed an unacceptable risk Legislation: Acts Interpretation Act 1901 (Cth) s 33(2A) Migration Act 1958 (Cth) ss 501(3A), 501CA(4) Cases cited: Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 Hogan v Australian Crime Commission [2010] HCA 21 Mitchell v R [1996] HCA 45; (1996) 184 CLR 333 Picard v Minister for Immigration and Border Protection [2015] FCA 1430 Samad v District Court (NSW) [2002] HCA 24; (2002) 209 CLR 140 Ward v Williams (1954-1955) 92 CLR 496 Date of hearing: 14 September 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 41 Counsel for the Applicant: Ms E Latif Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondent: Mr P R D Gray QC with Ms J Lucas Solicitor for the Respondent: DLA Piper Australia ORDERS VID 536 of 2016 BETWEEN: MIHOKO GASPAR Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent JUDGE: NORTH ACJ DATE OF ORDER: 28 SEPTEMBER 2016 THE COURT ORDERS THAT: 1. The application for review of the decision of the Minister for Immigration and Border Protection not to revoke the cancellation of the applicant's visa on 17 March 2016 is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT NORTH ACJ: 1 The applicant applies for judicial review of a decision of the Minister for Immigration and Border Protection made on 17 March 2016. The Minister decided not to revoke the cancellation of the applicant's Class BB Subclass 155 Resident Return (Permanent) visa. 2 The applicant is a citizen of Japan born in June 1970. She came to Australia in 1993 and has lived here for 23 years. 3 On 10 August 2011, the applicant was sentenced to nine years imprisonment for 15 offences involving fraud. 4 On 3 March 2015, the applicant's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) which relevantly requires the mandatory cancellation of a visa of a person serving a term of imprisonment with a substantial criminal record as defined in ss 501(3A) (7)(c), namely, that the person has been sentenced to a term of imprisonment of 12 months or more. 5 The applicant applied for revocation of the cancellation under s 501CA(4) which provides: (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 6 The Minister refused to revoke the cancellation and provided reasons for his decision. 7 The Minister considered the question raised by s 501CA(4)(b)(i) of the Act, namely, whether or not he was satisfied that the applicant passed the character test as defined by s 501 of the Act. The Minister noted that the applicant accepted that she did not pass the character test. The Minister concluded that he was satisfied, by reference to the applicant's convictions for fraud, that the applicant did not pass the character test. 8 The Minister then considered the question raised by s 501CA(4)(b)(ii) of the Act, namely, whether or not he was satisfied that there is another reason why the original decision should be revoked. The Minister considered the strength, nature and duration of the applicant's ties to Australia and the extent of the impediments which the applicant would face if returned to Japan. There is no challenge to the Minister's treatment of these issues. 9 Then, the Minister had regard to the protection of the Australian community. On this issue he first referred to the nature of the criminal conduct of the applicant and characterised it as serious. He said: 27. I note that Ms GASPAR's offending occurred over several years, during which she fraudulently obtained approximately $1.9 million from clients and friends from whom she borrowed money but did not repay it. I note and endorse the court's acceptance of the prosecution's submission that the victims were particularly vulnerable as they were people from Japan who were living in a foreign country. I also share the Court's concerns about the large number of victims, the amount of financial loss they suffered which cannot be repaid, and the lengthy period of Ms GASPAR's offending. I find that the nature of this offending is serious. 10 Next, under the heading "Risk to the Australian Community" he said: 30. I note that the Court heard professional medical evidence that Ms GASPAR's offending was linked to a gambling addiction and that she was "a pathological gambler". She was also diagnosed as suffering from mental health issues. 31. I took into account the court's view that Ms GASPAR appeared to have an insight into the enormity of her gambling addiction and had completed a program in relation to that addiction, although she had "a long way to go in relation to treating that". Her Honour also noted that Ms GASPAR was receiving counselling and medication and had shown signs of improvement with her mental health, motivation and focus for the future. Her Honour mentioned Ms GASPAR's very early plea of guilty and her significant cooperation with police, which I acknowledge as an indication of remorse by Ms GASPAR for her offending. 32. I note that Ms GASPAR has stated that she has "learnt from" her experience, and it is her intention to prove that she is "no longer a threat to Australian society". I note also the comments from two persons who know Ms GASPAR that she "has made the most of her time in prison" and has the ability and determination to make a successful and positive life for herself. I further note that both persons wish to assist Ms GASPAR with her re-integration into the community. 33. I note that Ms GASPAR has no record of adverse behaviour in prison or immigration detention. 34. I consider that, as Ms GASPAR has been in custody since February 2010, her rehabilitation and risk of recidivism remain untested in an unsupervised environment. While noting that if I revoke Ms GASPAR's visa cancellation decision, she would be subject to supervision and parole orders until the expiry of her sentence on 16 February 2019, I cannot be confident that she would be able to avoid further gambling, which previously led to her criminal offending, if living in the general community. 35. If Ms GASPAR was to engage in further criminal conduct of a similar nature, such offending could cause significant financial and psychological harm to a member or members of the Australian community. I find that although the risk that Ms GASPAR will re-offend is lower than it was at the time of her original offending, if that risk were to eventuate, great harm could flow to a member or members of the Australian community. 11 The Minister concluded: 39. In considering whether, in light of Ms GASPAR's representations, I was satisfied that there is another reason why the original cancellation decision should be revoked, I have considered the length of time Ms GASPAR has contributed to the Australian community by being engaged in productive employment. However I also note that it was during this time and partly through this employment that she committed the offences of which she was convicted. 40. In considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the serious and repeated nature of the crimes committed by Ms GASPAR and their impact on the victims. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia. 41. Further, I find that the Australian community could be exposed to great harm should Ms GASPAR re-offend in a similar fashion. I could not rule out the possibility of further offending by Ms GASPAR. 42. I am cognisant that where great harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the decision to cancel the visa, even applying a higher tolerance of criminal conduct by Ms GASPAR, than I otherwise would, because she has lived in Australia for several years. 43. In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Ms GASPAR represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any other considerations as described above, including her lengthy residence, employment, social ties to Australia and difficulties Ms GASPAR may face in returning to live in Japan after many years away. 12 The applicant relies on two broad challenges to the Minister's decision. One challenge is that the Minister constructively failed to exercise jurisdiction in the assessment of the risk to the Australian community, and the other challenge is based on a particular construction of s 501CA(4). CONSTRUCTIVE FAILURE TO EXERCISE JURISDICTION 13 The applicant argued that the Minister's finding that there would be great harm to the Australian community if the applicant were to re-offend was critical to his decision to refuse to revoke the cancellation. 14 Ms Latif, who appeared as counsel for the applicant, contended that there was material which was relevant to the assessment of the risk to the Australian community but that the Minister did not engage with this material. The material was that the applicant's offending occurred in the context of her employment, that she had insight into her gambling problems and had participated in a program to address the problems, that she was realistic about the risk of future offending, that she had supports in place to mitigate the risk of future offending, that she appreciated that her offending was serious, that she was determined not to engage in further offending and that if the cancellation decision were revoked, she would be subject to supervision and parole orders until the expiry of her sentence in 2019. Furthermore, it was argued that, contrary to the Minister's conclusion that there was a risk that the applicant would re-offend, there was no evidence that the applicant would have the opportunity to re-offend at the same or similar levels whilst on parole and under supervision. It was also argued that there was no evidence that any re-offending would cause psychological harm to members of the Australian community. 15 Ms Latif contended that the Minister did not undertake any proper assessment of the level of the risk of harm eventuating. Although the Minister referred to the material described in the previous paragraph of these reasons for judgment, he failed to employ that material in the assessment of the risk. It was not enough for the Minister to rely on the obvious factor that the risk of re-offending had not been tested in an unsupervised environment. This is a case, so it was submitted, of a ritualistic incantation of the risk amounting to an unacceptable risk. In these circumstances the Minister had constructively failed to exercise his jurisdiction by failing to undertake a genuine or substantive assessment of the risk of re-offending. 16 Alternatively, Ms Latif submitted that the decision was legally unreasonable in that there was no evident or intelligible basis for the conclusion that there was an unacceptable risk of the applicant re-offending. Ms Latif drew particular attention to the Minister's finding at [35] that if the applicant were to engage in criminal conduct of a similar nature, such offending could cause significant financial and psychological harm to members of the Australian community. There was no evident or intelligible basis, it was submitted, to support either the finding that the applicant would commit a similar level of offending, or that any re-offending would cause great harm. 17 The argument relied on by the applicant is difficult to sustain because it is acknowledged that the Minister referred to the material on which the applicant relies as necessary to inform the assessment of risk. The Minister recorded these factors in [30] – [33] of the decision. 18 In [34] of his decision the Minister arrived at the conclusion that there was some risk of re-offending. The conclusion followed a reference to the fact that the risk of re-offending had not been tested in an unsupervised environment. 19 Because of the structure of [34] of the Minister's reasons the applicant is able to contend that the Minister's conclusion about the risk of re-offending followed solely from the conclusion that the risk of recidivism was untested because the applicant had been in custody. Ms Latif rightly accepted that if the conclusion "I cannot be confident that she would be able to avoid further gambling, which previously led her to criminal offending, if living in the general community" had been preceded by words to the effect that the Minister had considered the matters referred to in [30] – [34] and had placed all these factors in the balance, the applicant would not have been able to say that the Minister had failed to make a genuine assessment of the risk. 20 However, on a fair reading of [30] – [34] of the Minister's reasons that is the exercise in which the Minister engaged. The form of the decision and, in particular, the explicit identification of the process of balancing could have been expressed more clearly, but that the Minister did make such an assessment of risk by weighing the relevant factors emerges sufficiently. 21 Then, Ms Latif submitted that there was no evident or intelligible basis to find that if the applicant were to re-offend, that such offending could be of a similar nature. It was contended that a large part of the applicant's offending occurred in the context of her employment, and that as a result of her changed circumstances, she no longer had the same opportunity to commit similar offences. However, that argument did not take into account that some of the applicant's offending occurred outside her employment, and involved defrauding friends rather than clients. 22 It was also submitted that at [35] the Minister reached the conclusion that any re-offending would be similar in nature without engaging in an evaluation of the material relating to the matter. But that argument did not take into account the Minister's assessment at [34] that he could not be confident that the applicant would be able to avoid gambling, which had led to her previous offending. That is an evident and intelligible basis for the conclusion that the applicant might engage in similar behaviour again. 23 The argument that there was no evidence that great harm could be caused if the applicant re-offended should not be accepted. 24 The decision recorded the nature of the offending in [27] which is reproduced at [9] of these reasons for judgment. The Minister referred to the remarks of the District Court judge on sentencing the applicant. The judge described the nature of the offending as follows: It occurred over a very lengthy period of time, some nine and a-half years during which you dishonestly obtained approximately $1.9 million. The way you went about doing this was befriending complainants or using complainants that were friends of yours. You borrowed money from them or advised them to invest in schemes with you. You did not repay money to them. You promised to assist them on occasions in businesses or to help them to obtain visas to access courses. All the victims were people from Japan who were trying to either make a life or to achieve studies in a strange place when they came to Australia, so I accept the prosecution's submission that they were particularly vulnerable at the time you took advantage of them. Other aspects of your behaviour included using their credit cards and forging documents to achieve your dishonest purposes. On one occasion you sold the home of one of the complainants who'd lived near you. You forged documents in order to do so and you kept the proceeds of the sale. You manipulated and lied to people who trusted you over this period of time. You tried to put them off by your lies and deceit or otherwise just cut off contact with them, no doubt hoping that they would go away. 25 It was open to the Minister to find that the same kind of harm which had been occasioned to victims in the past would be suffered if there were victims of the same or similar conduct in the future. That was an intelligible and justifiable basis for the conclusion that great harm could result to members of the Australian community if the applicant re-offended. THE CONSTRUCTION OF s 501CA(4) 26 The applicant argued that s 501CA(4)(b)(ii) involves a two stage process by which the Minister must first identify whether there are matters that he is satisfied are reasons why the original decision should be revoked, and second exercise a residual discretion on the question of whether or not to revoke the cancellation. 27 The Minister submitted that the section involves a single function by which the Minister must evaluate the material before him in order to reach, or not reach, a state of satisfaction that there is a reason or reasons why the original decision should be revoked, and if that state of satisfaction is reached, no residual discretion remains. The reasons for decision of the Minister demonstrate that he approached the matter consistently with the construction advanced by his counsel before the Court. The applicant contends that in so doing the Minister applied the wrong test and thereby fell into jurisdictional error. 28 The language of the section is unnecessarily ambiguous. The ambiguity lies in two places. First, the use of "may" in the expression "may revoke" suggests that the power conferred on the Minister is a discretionary power. Second, the expression in subs (4)(b)(ii) "that there is another reason why the original decision should be revoked" may refer to a single reason in favour of revocation, apart from satisfaction of the character test referred to in the previous subsection, or it may refer to a conclusion in favour of revocation after consideration of factors for and against revocation. 29 Ms Latif submitted that the section is an ameliorative provision: Picard v Minister for Immigration and Border Protection [2015] FCA 1430 per Tracey J at [40] (Picard). The section should therefore be read to have a broad operation. The residual discretion which is provided on the applicant's construction serves such a function. 30 Ms Latif argued that the starting point is that the use of the word "may" is presumed to provide for a discretion: s 33(2A) Acts Interpretation Act 1901 (Cth) and Ward v Williams (1954-1955) 92 CLR 496 at 505. The onus is on the Minister to show that, as a matter of construction of the Act as a whole, the word "may" was intended to mean must. Ms Latif contended that the Minister has not discharged that onus. It was contended that in Picard Tracey J recognised the residual discretion where he said at [40]: In this context s 501CA is an ameliorative provision: it requires the Minister to invite representations from the person whose visa has been cancelled about the revocation of the cancellation decision and confers on the Minister a discretion to revoke the cancellation. 31 Ms Latif said that s 501CA(4) was introduced as part of the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (the Amending Act) and the second reading speech explained that the purpose of the Bill was to strengthen "the character and general visa cancellation provisions in the Migration Act to ensure that non-citizens who commit crimes in Australia, pose a risk to the Australian community or represent an integrity concern are appropriately considered for visa refusal or cancellation". Ms Latif argued that the applicant's construction was consistent with this purpose because it would confer a residual discretion on the Executive allowing for greater flexibility in dealing with risks to the Australian community. 32 Next Ms Latif argued that the Amending Act operates for the benefit of the Australian community. Courts are typically reluctant to construe "may" as meaning must where the provision does not operate for the benefit of a particular applicant, or where the decision turns upon consideration of a number of public interest factors: Ward v Williams (1954-1955) 92 CLR 496 at 507-8 (Ward). 33 Then, Ms Latif drew attention to other provisions dealing with refusal or cancellation of visas, such as s 501(3) where the statute prescribes a two stage test including a residual discretion. 34 Furthermore, s 501CA(4) appears in a statutory context in which provisions dealing with revocation distinguish between mandatory powers where must or a similar term is used (s 131 and s 134C) and permissive powers where may is used (s 133F(4), s 137L(1), s 137N and s 501C(4)). If, despite using the word may, s 501CA(4)(b) is not construed as providing for a residual discretion it would not conform to the pattern of usage for similar provisions in the Act. 35 Despite the detailed, cogent and comprehensive arguments advanced by Ms Latif, there is an overriding difficulty with the applicant's construction which suggests that Parliament did not intend such a construction. If there is a residual discretion applicable in the case of s 501CA(4)(b)(ii), that same discretion would also apply to s 501CA(4)(b)(i). The result would be that, despite finding that a person does pass the character test, the Minister could nevertheless refuse to revoke the cancellation. This is an unlikely result. It is avoided if the approach explained in Hogan v Australian Crime Commission [2010] HCA 21 (Hogan) applies to the construction of s 501CA(4)(b). 36 Hogan concerned s 50 of the Federal Court of Australia Act 1976 (Cth), which provided that the Court may make a non-publication order as appears to the Court to be necessary in order to prevent prejudice to the administration of trust of justice or the security of the Commonwealth. French CJ, Gummow, Hayne, Heydon and Kiefel JJ said at [33]: It may tend to distract attention from the particular terms of s 50 to describe the Federal Court as embarking upon the exercise of a "discretion" when entertaining an application under s 50. Once the Court has reached the requisite stage of satisfaction, it would be a misreading of s 50 to treat it as empowering the Court nevertheless to refuse to make the order, or to leave in operation the now impugned order. It would, for example, be an odd construction of s 50 which supported the refusal of an order under s 50 notwithstanding that it appeared to the Court to be necessary to make an order to prevent prejudice to the security of the Commonwealth. [Footnotes omitted] 37 The proper approach was explained in the judgment of Gleeson CJ and McHugh J in Samad v District Court (NSW) [2002] HCA 24; (2002) 209 CLR 140 (Samad) at [32], as follows: When a statutory power is conferred by the use of words of permission, there may arise a question whether the effect is to impose an obligation, or, at least, an obligation that must be performed in certain circumstances. Even where it is plain that the intention of the legislature was permissive, questions may arise as to the nature of the considerations that the person in whom the power is confided may be entitled or bound to take into account in the exercise of the discretion conferred. Issues of this kind are to be resolved as a matter of statutory interpretation, having regard to the language of the statute, the context of the relevant provision, and the general scope and objects of the legislation. See also: Ward at 505; Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106; and Mitchell v R [1996] HCA 45; (1996) 184 CLR 333. 38 The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test. 39 Even if the respondent's construction is wrong, the applicant would not necessarily be entitled to relief. Ms Latif submitted that the applicant's construction, if accepted, would have the result that once the lower threshold of establishing any reason for revocation were satisfied, an applicant would be put on a positive footing for consideration at the discretionary stage. However, there can be no difference in the outcome from the application of either construction. On either construction, the Minister, having weighed up the factors for and against revocation, must be satisfied that the cancellation decision should be revoked. In other words, the Minister engages in an evaluative process to decide whether or not to revoke, regardless of whether he must first consider a lower threshold test, or if he proceeds directly to the final evaluation. Consequently, relief would be refused on the discretionary ground that if the Minister had applied the applicant's construction of the section there would have been no difference in the outcome. 40 It follows from these reasons for judgment that the application is dismissed. 41 In the circumstances, the Minister has not sought the costs of the application. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 28 September 2016