Green v Minister for Immigration and Citizenship [2008] FCA 125 (20 February 2008)

ADMINISTRATIVE LAW – applicant’s visa cancelled pursuant to s 501(2) of the Migration Act 1958 (Cth) – whether discretion to cancel exercised in compliance with Minister’s direction issued under s 499(1) – failure to consider relevant considerations – mitigating circumstances not properly considered.

ADMINISTRATIVE LAW – procedural fairness – whether Tribunal obliged to inform applicant of adverse credibility finding – whether Tribunal obliged to call witnesses.

MIGRATION LAW – Minister issued direction pursuant to s 499(1) of the Migration Act 1958 (Cth) – discretion to cancel visa pursuant to s 501(2) must be exercised in compliance with Minister’s direction – interpretation of Minister’s direction – "discretion" referred to in Minister’s direction is the discretion to cancel visa – "mitigating factors" relates to applicant’s conduct considered in totality.

WORDS AND PHRASES – "discretion" – "mitigating factors".

Migration Act 1958 (Cth) ss 476A, 499, 501
Migration Reform Act 1994 (Cth)

Green v Minister for Immigration and Citizenship [2007] AATA 1410 set aside
Australian Capital Territory v Alphaone Pty Ltd (1994) 49 FCR 576 cited
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 considered
Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; (1999) 90 FCR 583 cited

RUSSELL GREEN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ADMINISTRATIVE APPEALS TRIBUNAL
NSD 1395 OF 2007

TAMBERLIN J
20 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1395 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT WALKER

BETWEEN:	RUSSELL GREEN Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	20 FEBRUARY 2008
WHERE MADE:	SYDNEY

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1395 OF 2007

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT WALKER

BETWEEN:	RUSSELL GREEN Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	TAMBERLIN J
DATE:	20 FEBRUARY 2008
PLACE:	SYDNEY

1 This is an application under s 476A of the Migration Act 1958 (Cth) ("the Act") seeking an order setting aside a decision of the second respondent ("the Tribunal") which affirmed a decision of a delegate of the first respondent ("the Minister") to cancel Mr Green’s transitional (permanent) visa pursuant to s 501 of the Act: see Green v Minister for Immigration and Citizenship [2007] AATA 1410. In response to the application, the second respondent filed a submitting appearance on 27 July 2007.

2 Mr Green arrived in Australia from the United Kingdom on 4 January 1974 and, as a result of changes brought about by the Migration Reform Act 1994 (Cth), has held a transitional (permanent) visa since 1 September 1994.

3 Mr Green has been convicted of numerous offences since his arrival in Australia. As a young man, he appeared before the Children’s Court on four occasions and was convicted of offences including break and enter, escaping lawful custody, illegal use of a conveyance, gross insubordination, malicious injury and malicious damage. At 19 years of age, Mr Green was convicted of stealing a motor vehicle and sentenced to 12 months’ imprisonment, with a non parole period of 6 months. This was the first occasion on which he was imprisoned.

4 Over subsequent years, Mr Green was convicted of various offences and sentenced on several occasions. These offences ranged from stealing a toy from a supermarket to armed robbery and possession of a shortened firearm.

5 It is not disputed that Mr Green has had a troubled life. Apart from recidivism, Mr Green was subjected to domestic physical abuse as a teenager, ceased school after year nine, has lived with and sought to overcome a drug addiction, and for long periods of time has been unable to care for his child due to his repeated imprisonment. Counsel for Mr Green emphasised that Mr Green is contrite about his misdemeanours, and is attempting to overcome the problems he has faced.

6 On 12 August 2005, the delegate of the Minister determined to cancel Mr Green’s visa pursuant to s 501(2) of the Act. The reasons given by the delegate were as follows:

7 Mr Green filed an application for review of this decision in the Tribunal. The issue before the Tribunal was not whether Mr Green failed to pass the character test in s 501, which Mr Green concedes he does not, but rather whether the discretion in s 501(2) of the Act should be exercised so as not to cancel his visa. On 19 October 2005, the Tribunal dismissed the application, finding at [111] that "the primary considerations of community protection and expectations outweigh the other considerations in this case".

8 Section 501(2) of the Act provides that the Minister may cancel a visa if the visa-holder does not satisfy the Minister that he or she passes the character test contained in s 501(6) of the Act. Subsections 501(6)(a) and (c) provide that a visa-holder does not pass the character test if he or she has a "substantial criminal record" or, having regard to his or her past and present criminal and general conduct, is not of good character. Subsections 501(7)(c) and (d) provide that a person has a substantial criminal record if he or she has been sentenced to either a term of imprisonment of 12 months or more, or two or more terms of imprisonment totalling two years or more.

9 Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) mandates that the relevant person or body (which includes the Tribunal: see Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; (1999) 90 FCR 583 at 591 (per Katz J)) must comply with such a direction. The power of the Minister under s 499(1) is limited by s 499(2), which provides that a direction must be consistent with the Act and regulations promulgated pursuant to it.

10 On 23 August 2001, pursuant to s 499(1), the Minister issued Direction No 21 entitled Visa Refusal and Cancellation under section 501 ("the Direction"). Part 2 of the Direction concerns the exercise of the discretion under s 501(2) once a decision has been made that the character test is not satisfied, a matter which is conceded by Mr Green in this case. Part 2 provides that, when exercising the discretion, "decision-makers must have regard to" three primary considerations, namely, the protection of the Australian community, the expectations of the Australian community and, if relevant, the best interests of any children involved. Other considerations, which are not "primary considerations" and are not mandatory, include the effects on the visa-holder’s family, evidence of rehabilitation, the likelihood of breaching or evading obligations under a legal or other ongoing matter, the duration of the proposed stay in Australia and whether the visa is permanent or temporary.

11 Paragraph 2.5 of the Direction identifies three factors which are relevant to the protection of the Australian community. They are the seriousness and nature of the conduct, the likelihood of recidivism and whether visa cancellation would provide general deterrence.

12 Of importance to this case is the process laid down by the Direction for considering "the seriousness and the nature of the conduct of a non-citizen". Paragraph 2.6 outlines what the Minister views as serious offences, and paragraph 2.7 states that the sentence imposed for a crime is an appropriate indicator of the seriousness of the offender’s conduct against the community. Paragraph 2.8 then provides that decision-makers must take into account certain mitigating considerations:

13 The Tribunal’s reasons comprehensively set out at [10]-[76] the chronology of facts and the evidence relevant to this matter. The Tribunal summarised Mr Green’s personal history, detailed his criminal record in Australia since 1978, and described the events leading up to the cancellation of his visa by the Minister and his detention on 16 August 2005.

14 The Tribunal’s reasons summarised the evidence led by Mr Green, most of which pertained to Mr Green’s explanation of his personal history, how and why he came to possess a criminal record, and also some mitigating circumstances. His reasons, in short, were that he had led a life of few opportunities, and that he had unfortunately been surrounded by "bad kids, then bad adults". The Tribunal described Mr Green’s time in prison, and noted his evidence which stated that he was not a "vicious outlaw type of criminal", but rather more of the "Robin Hood" type. The Tribunal also discussed Mr Green’s developing drug addiction, and the crimes he committed to support that addiction, as well as the rehabilitation which Mr Green had sought in art and family.

15 The Tribunal found Mr Green’s evidence unsatisfactory in certain respects. It concluded at [53] that although Mr Green’s evidence should not "be entirely discarded, his tendency towards exaggeration and opportunistic fabrication dictates a certain caution in evaluating it." An observation as to the need for caution in this context does not mean that Mr Green’s evidence was rejected out of hand.

16 After making this finding, the Tribunal addressed the psychological and other evidence before it. Several psychological assessments of Mr Green were before the Tribunal and, although they appeared to "differ in material respects", the Tribunal found at [64]:

17 The Tribunal then summarised other evidence provided by friends and family of Mr Green, which detailed various matters of personal concern, including the likelihood of Mr Green obtaining employment after his release from prison, continuing an intimate relationship with a female friend, and succeeding in an artistic career.

18 Having reviewed the evidence before it, the Tribunal noted at [81]-[82] that Mr Green conceded that he did not pass the character test within s 501(6) of the Act due to his "substantial criminal record" (as defined in s 501(7)), and that the issue for decision was whether to exercise discretion under s 501(2) not to cancel his visa.

19 The Tribunal decided at [111] that "community protection and expectations outweigh the other considerations in this case" and consequently that the decision to cancel Mr Green’s visa must be affirmed. This ultimate decision was based on the following findings, which, pursuant to the Direction, concerned whether cancellation of the visa would protect the Australian community, accord with the expectations of the Australian community, and satisfy other considerations:

• Mr Green’s "criminal conduct can only be categorised as very serious" at [86];

• Mr Green’s rehabilitation "still has a long way to go" and "[i]n the circumstances there must be a significant risk of recidivism" at [94];

• setting aside the decision under review would not promote general deterrence of serious offences at [98];

• "the community would expect that the offender should be removed from Australia" at [103]; and

• Mr Green’s attempts at rehabilitation do not "strongly weigh against affirming the decision under review" at [110].

20 In the present appeal, two issues arise. The first is whether the Tribunal fell into error when exercising its discretion under s 501(2) of the Act by misconstruing and incorrectly applying the Direction. The second issue is whether the Tribunal denied Mr Green procedural fairness.

21 The reasoning of the Tribunal on the issue of the seriousness of Mr Green’s conduct is set out in [86] as follows:

22 Mr Green submits that the Tribunal wrongly focused exclusively on these more serious offences, which had an element of violence, and consequently failed to consider the whole of his conduct in the relevant period, namely from 1981 to 2004. In so doing, the Tribunal, it is said, failed to properly consider "the conduct" as required by paragraph 2.5(a) of the Direction, and considered only some of the relevant conduct, namely those offences mentioned in its reasons. Mr Green submitted that the Tribunal did not give weight to the fact that, since these convictions were recorded, violence has not been a significant factor in his later conduct.

23 In addition, it is submitted that the Tribunal failed to comply with paragraph 2.8(a) of the Direction, which provides that:

24 Mr Green submits that the line of reasoning reflected in [86] of the Tribunal’s reasons failed to properly consider the mitigating factors advanced by him in weighing the seriousness of his conduct, as required by paragraph 2.8(a) of the Direction, because it focused only on part of the conduct. For this reason, it is said that the Tribunal failed to take relevant matters into account and therefore its decision must be set aside.

25 At the outset there is a question as to the meaning and operation of paragraph 2.8, which is found in that part of the Direction dealing with the seriousness and nature of the conduct for the purposes of the protection of the Australian community. Since the conduct in question includes a series of offences over a lengthy period of time, it is necessary to consider the mitigating circumstances in relation to the cumulative weight of those offences considered as a whole. In my view, the "discretion" referred to in the chapeau of paragraph 2.8 is the overall discretion whether to cancel the visa under s 501 of the Act, and consequently the mitigating factors which must be considered are those which relate to the nature and seriousness of the non-citizen’s entire course of conduct. Paragraph 2.8 of the Direction limits the scope of the decision-maker’s investigation by only requiring it to take into account those mitigating factors provided by the non-citizen.

26 The substance of this requirement is that, when characterising the conduct as a whole and appraising the seriousness of that conduct in its totality, all mitigating circumstances advanced by the non-citizen which are relevant to the conduct must be considered. They need not relate specifically to the seriousness of each of the individual offences; rather, it is appropriate to take into account general mitigating factors, such as attempts at rehabilitation, because such efforts may weigh against the overall seriousness of the conduct as a factor in the exercise of the discretion to cancel the visa.

27 In this case, the Tribunal’s exclusive focus on specifically selected violent offences has, in my view, led to an omission by the Tribunal, namely, the failure to consider Mr Green’s overall conduct in the light of all the relevant mitigating factors advanced by him.

28 While it is true that the Tribunal’s decision sets out details of Mr Green’s crimes in a lengthy list of offences and also sets out in detail his evidence, I am not satisfied that the Direction was complied with in relation to mitigation, because there is no discussion which demonstrates that the mitigating circumstances advanced by Mr Green were weighed against the nature and seriousness of the conduct. Selective attention was given only to some of Mr Green’s conduct, and there is simply no reference, in evaluating the seriousness of that conduct, to mitigating considerations. In my view, this is not a case where an inference can be drawn that these matters were taken into account by the Tribunal when considering the seriousness of the offence.

29 Accordingly, for the above reasons, I find that there has been a failure by the Tribunal to perform its obligation to take mitigating factors into account when considering the seriousness and nature of Mr Green’s conduct, and the decision should therefore be set aside.

30 The Tribunal at [100] refers briefly to international law and the general right of sovereign nations to control migration in a legal manner. It is said by Mr Green that these principles of international law are irrelevant to the present case, but nevertheless were taken into account. I do not agree. The reference to international law is simply introductory and does no more than furnish a background or framework of international law and relations in order to assist an understanding of the concept of community protection in relation to the movement of citizens between States.

31 In my view, the issue of community expectations is properly addressed at [103] of the Tribunal’s reasons. Counsel for Mr Green sought to identify an error arising from the use of the term "unalloyed burden" at [103]. However, in my view, this does not reflect any error of law, particularly when it is linked with references to the limited progress made by Mr Green towards rehabilitation and his lengthy series of offences.

32 Paragraph 2.11 of the Direction requires that the decision-maker take into account the general deterrence which may accrue as a result of the cancellation of a particular visa. This requires an appraisal of the likelihood that cancellation would discourage similar offences by other persons.

34 Counsel for Mr Green submits that the Tribunal’s paraphrasing of the language of paragraph 2.11 (as emphasised in the above passage) reflects an error because it is inaccurate and misleading.

35 There are two difficulties with this submission. The first is that the Tribunal at [98] makes it clear that deterrence was not a decisive consideration. The second and more significant difficulty is that, on a fair reading of the Tribunal’s reasons, it is clear that the Tribunal understood that failure to cancel a visa could, in an appropriate case, send "an undesirable message" which would diminish any deterrent effect.

36 On the basis of these two considerations, I do not accept the submissions of Mr Green on this point.

37 Mr Green’s submission that there was a failure by the Tribunal to provide him procedural fairness is put in several ways. The first is that he was not told that the Tribunal did not take a favourable view of his credibility and that a conclusion had been formed that he had a tendency to exaggeration and opportunistic fabrication. As a result, it is said, Mr Green did not have an opportunity to challenge these conclusions.

38 In my view, there was no obligation on the part of Tribunal to inform Mr Green of its views regarding his credibility and the weight which it was prepared to give his evidence. The Tribunal’s conclusion as to his credibility was part of its reasoning and thought processes in relation to the determination of the whole matter, and thus was not required to be put to Mr Green: see Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592. Although it was for the Tribunal to weigh Mr Green’s evidence and in so doing form a view as to his credibility, the reasoning involved in this task did not need to be signalled.

39 Secondly, it is said that the Tribunal ought to have sought further evidence from persons who made statements but were not called to give oral evidence. The Tribunal observed in its reasons at [66] that:

40 There was no requirement, in my view, that the Tribunal seek further evidence from these persons. If Mr Green wished to adduce evidence from these persons, he had a full opportunity to do so. Given that Mr Green chose not to call them, it is not appropriate to expect the Tribunal to seek any further evidence on the basis that they may be able to provide some useful information.

41 Although the observation of the Tribunal at [66] concerning Mr Green’s failure to call certain witnesses could be construed adversely to Mr Green’s case, there is no indication that those persons could have provided material to assist his case. On the other hand, however, having regard to the fact that the Tribunal’s proceedings are inquisitorial in nature and the observations in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 308 are not applicable, there is no indication in this case that any particular adverse inference was drawn or suggested on the basis of the fact that the witnesses did not give evidence orally and that the omission to ask them to do so rested with Mr Green (and not on the Tribunal).

42 Finally, it is said that there were three findings of fact made by the Tribunal for which there was no evidentiary basis. This submission relies on an interpretation of the Tribunal’s reasons at [109]:

43 When closely examined, it is apparent that each of the views expressed by the Tribunal at [109] is in tentative and speculative terms and that they are not expressed as findings of fact. The general effect of the observations is that there is simply no evidence to support findings to the contrary. So far as the observation in relation to Mr Green’s aunt is concerned, this is a general statement which does not appear to have been given any particular weight. The statements in this paragraph really amount on their face to an expression of views which were open to the Tribunal in the circumstances of this case.

44 I therefore do not consider that there was any failure by the Tribunal to provide procedural fairness in this case.
CONCLUSION

45 For the reasons which I have given above in relation to the need to consider mitigating factors pursuant to paragraph 2.8 of the Direction, this application is granted and the matter is remitted to the Tribunal for determination in accordance with these reasons. As the second respondent filed a submitting appearance, it is appropriate that the costs of the application are borne by the first respondent.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Counsel for the Applicant:	Ms S. Higgins

Solicitor for the Applicant:	Ebsworth & Ebsworth Lawyers

Counsel for the Respondent:	Ms B. Nolan

Solicitor for the Respondent:	DLA Phillips Fox

Date of Hearing:	25 January 2008

Date of Judgment:	20 February 2008

Federal Court of Australia

Green v Minister for Immigration and Citizenship [2008] FCA 125 (20 February 2008)