Minister for Immigration and Citizenship v JSFD [2010] FCA 569 (4 June 2010)

Last Updated: 7 June 2010

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v JSFD [2010] FCA 569

Citation:		Minister for Immigration and Citizenship v JSFD [2010] FCA 569
Parties:		MINISTER FOR IMMIGRATION AND CITIZENSHIP v JSFD and ADMINISTRATIVE APPEALS TRIBUNAL
File number(s):		VID 791 of 2009
Judge:		MARSHALL J
Date of judgment:		4 June 2010
Catchwords:		ADMINISTRATIVE LAW – Special Category (Temporary) visa – cancellation of visa by Minister –conviction for serious offences – character test–application for constitutional writs directed to Tribunal in relation to Tribunal’s decision to direct Minister not to cancel first respondent’s visa under s 501(2) of Migration Act 1958 (Cth) –exercise of discretion by Tribunal found not to be in jurisdictional error.
Legislation:		Migration Act 1958 (Cth), ss 476A, 499, 500, 501 The Constitution s 75 (v)
Cases cited:		Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184  Craig v The State of South Australia (1996) 184 CLR 163 Minister for Immigration and Citizenship v Pemberton [2010] FCA 430 Kirk v Industrial Relations Commission [2010] HCA 1; (2010) 239 CLR 531 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Nafeh v Minister for Immigration and Citizenship [2004] FCAFC 232 Re Kamal and Minister for Immigration and Citizenship [2009] AATA 555 Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 The Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Date of hearing:	21 May 2010
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	70
Counsel for the Applicant:	Mr. R Knowles
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondents:	Mr. G Hughan with Ms. C Melis (pro-bono)

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 791 of 2009

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

JUDGE:	MARSHALL J
DATE OF ORDER:	4 JUNE 2010
WHERE MADE:	HOBART (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1. The application is dismissed.
2. The applicant pay the first respondent’s costs of the application.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 791 of 2009

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

JUDGE:	MARSHALL J
DATE:	4 JUNE 2010
PLACE:	HOBART (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

1. This proceeding is within the original jurisdiction of the Federal Court of Australia pursuant to s 476A (1) (b) of the Migration Act 1958 (Cth) (“the Act”). That provision gives this Court jurisdiction in relation to a migration decision, if the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal (“the Tribunal”) on review under s 500 of the Act. The jurisdiction invoked is the same as the jurisdiction of the High Court under paragraph 75 (v) of the Constitution; see s 476A (2) of the Act.
2. The applicant Minister applies for constitutional writs directed to the Tribunal, of certiorari quashing the Tribunal’s decision of 24 September 2009 and of mandamus to compel the Tribunal to hear and determine the review of the first respondent (“JSFD”) from a decision of a delegate of the applicant Minister according to law.

Background

3. On 12 June 2009, a delegate of the applicant Minister made a decision to cancel JSFD’s visa pursuant to s 501 (2) of the Act. Section 501 (2) allows the Minister to cancel a visa if the Minister reasonably suspects that the visa holder does not pass the character test and the visa holder does not satisfy the Minister that he or she passes the character test. Amongst other matters set out in s 501 (6), a person will not pass the character test if that person has a substantial criminal record, which is defined by s 501 (7) of the Act. There is no issue arising from the present proceeding that JSFD did not pass the character test.
4. At the time of the visa cancellation, JSFD held a Class TY subclass 444 Special Category (Temporary) visa. That visa allows a holder of it to remain in Australia indefinitely so long as the holder remains a New Zealand citizen. JSFD was born in New Zealand on 12 July 1990. He visited Australia briefly in 2003-2004. He returned to Australia on 31 December 2006 and has resided here continuously since then.
5. The Tribunal reviewed the decision of the delegate. It set aside the decision under review and substituted that decision by not cancelling JSFD’s visa.
6. Despite JSFD’s failure to pass the character test, there rested a discretion in the Minister not to cancel his visa. At the time of the Tribunal’s decision, there existed a Ministerial Direction made under s 499 (1) of the Act, which controlled the exercise of a discretion under s 501 (2). Direction [No 41] – Visa Refusal and Cancellation under s 501 (“the Direction”), operated on and from 15 June 2009. The Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non-citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.
7. Compliance with the Direction by the Tribunal was mandatory; see s499 (2A) of the Act.

The Tribunal

8. The only issue before the Tribunal was whether or not it should exercise its discretion to cancel JSFD’s visa. In so doing it focused on the Direction.
9. The Tribunal observed that the Direction required it to take into account four primary considerations. Those considerations are set out at [10] of the Direction and are:

10-The primary considerations
(1) In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

10. The Tribunal further observed that [11 (3) (a)] of the Direction provides for other non-primary considerations to be taken into account including:
    • family ties;
    • the person’s age and health;
    • any links to the country to which the person would be removed;
    • hardship to the person or the immediate family lawfully resident in Australia;
    • level of education;
    • any previous advice given to the person of deportation under the character provisions of the Act.
11. The Tribunal made a formal, uncontested finding that JSFD did not pass the character test on account of his substantial criminal record. Despite only being 19 years of age at the time of the Minister’s decision, JSFD had been convicted of offences including theft of a motor vehicle, burglary and reckless conduct endangering life.
12. The Tribunal considered the first primary consideration concerning the protection of the Australian community. It referred to [10.1] of the Direction which at (2) (a) and (b) provides factors relevant to assessing the level of risk of harm to the community as a result of the person’s continued stay. These factors include:
    • the seriousness and nature of the relevant conduct ; [10.1.(2) (a)]
    • the risk that the conduct may be repeated; [10.1.(2) (b)].
13. At [12] of its decision the Tribunal commenced to discuss the seriousness and nature of the conduct of JSFD. It observed that [10.1.1] of the Directions at (1), provides that crimes involving violence and threat of violence are of special concern to the welfare and safety of the Australian community. The Tribunal listed some of the types of offences set out in [10.1.1(2)] of the Direction as examples of offences viewed as serious.
14. The Tribunal then referred to [10.1.1 (3) to (5)] of the Direction which required a consideration of other factors including:
    • the sentence imposed for the offences;
    • the number and nature of the offences;
    • the period between the offences;
    • the time that has elapsed since the most recent offence;
    • relevant information about the person, such as judicial comments or professional psychological reports, and
    • any relevant mitigating factors.
15. At [14] of its reasons for decision, the Tribunal observed that JSFD had attacked and robbed several victims with weapons including a hammer and box-cutters and that some victims sustained serious injuries, which required surgery and subsequent plastic surgery. Those matters led to Children’s Court proceedings on 12 January 2009.
16. Other matters, the subject of proceedings on 20 June 2008, included armed robbery, attempted armed robbery, recklessly cause injury, recklessly cause serious injury, theft of a motor vehicle, theft, driving offences and possession of a controlled weapon.
17. The Tribunal also referred to theft and driving offences sustained on 18 February 2008, whilst JSFD was on probation for other theft and driving offences sustained on 12 November 2007. At [15] the Tribunal said:

JSFD’s criminal conduct can only be regarded as very serious. In all, he has been convicted of 40 offences, which include multiple episodes of violence and the use of weapons. He has been found guilty of a further 26 offences but not convicted. This may be due to his age rather than an indication that the charges were not considered to be serious.

18. At [16] of its decision, the Tribunal dealt with the issues of the period between offences and the time since the most recent offences. It noted that JSFD first appeared in the Children’s Court on 12 November 2007 on charges that occurred within months of his arrival in Australia. It observed that the offences became more serious with the most recent cases being committed in April 2008. It said that “(m)any of the offences have been opportunistic and predatory” and that JSFD was incarcerated in a Youth Justice Centre from April 2008 until his release on 9 June 2009. The Tribunal observed, at [17] of its reasons, that JSFD acknowledged the seriousness of his offences. He was found by the Tribunal to have met with co-offenders due to a dysfunctional extended family life and used drugs and drank to excess.
19. The next consideration discussed by the Tribunal was “the risk that the conduct may be repeated”. This is dealt with at [10.1(2)] and more particularly at [10.1.2] of the Direction which provides:

(1) The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.
(2) The following factors are to be considered as particularly relevant to this assessment:
(a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
(b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and
(c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.

20. At [18] the Tribunal observed that [10.1.2] of the Direction, “directs the Tribunal’s attention to the person’s previous general conduct and total criminal history, evidence of breach of judicial orders, and evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation”.
21. The Tribunal noted that JSFD was incarcerated from April 2008 to June 2009 and had no opportunity to re-offend in that period. The Tribunal referred to the courses JSFD undertook while detained and the counselling he had received. It also noted his now stable relationship with the daughter of a youth worker he met in the Youth Training Course and his current strong family support. It considered evidence from the youth worker that JSFD had responded well to drug and alcohol counselling and employment counselling. Evidence from his aunt and uncle indicated strong family support. A positive written report about JSFD was provided by the Youth Parole Board, Victoria.
22. At [30] and [31] of its decision the Tribunal, summarised its views about the primary consideration of protection of the Australian community. It found that JSFD had shown significant remorse, had family and community support and had attended all appointments since his release on parole. It observed that he acknowledged the offences, the impact of them on his victims and had taken steps to prevent a relapse. He had ceased associating with co-offenders.
23. At [31] the Tribunal found that the risk of re-offending was low. It relied on JSFD showing greater maturity and understanding of the consequences of his actions and his efforts to become a valued member of the community. It also referred to the “substantial period of parole, which is a further incentive for him to keep out of trouble”.
24. The Tribunal held that the first primary consideration weighed against the cancellation of the visa. In so doing the Tribunal gave:

...particular weight to the evidence from CD, an experienced youth worker who has developed a close personal relationship with JSFD and has been influential in supporting his efforts to develop his potential to become a valued member of the community...On balance, and with the continuing support of those close to him, the Tribunal finds that the risk that he will re-offend is low. This primary consideration weighs against cancellation of the visa.

25. The Tribunal by referring to CD as having developed a close personal relationship with JFSD acknowledged, in effect, that CD was not an independent source. Under [10.1.2 (2) (b)] of the Direction, the Tribunal was instructed “generally” to place greater weight on evidence from independent and authoritative sources.
26. The Tribunal then considered the second primary consideration raised by the Direction, that is, whether JFSD was a minor when he commenced to live in Australia. At [32] the Tribunal said:

Paragraph 10.2 of Direction 41 provides that favourable consideration should be given if the person was a minor when he or she first began living in Australia and if he or she spent formative years in Australia. Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.

27. At [33] the Tribunal found that:
    • JSFD was a minor when he began living in Australia;
    • JSFD did not spend most of his formative years in Australia, as he did not come here until he was 16 years old.
      
28. The Tribunal concluded that “this primary consideration weighs against the cancellation of the visa”. Further at [51] the Tribunal said:

...The second primary consideration weighs against cancellation because JSFD was a minor when he began living in Australia, although he did not spend his formative years in Australia.

29. Next the Tribunal considered the primary consideration concerning the length of time the person had been ordinarily resident in Australia. It held that this consideration weighed in favour of cancellation of the visa, because JSFD had lived in Australia for less than 3 years before his twelve month sentence.
30. The Tribunal considered that relevant international obligations had no practical application to its decision. It then considered whether any non-primary considerations were relevant. Amongst these matters the Tribunal considered whether JSFD had been formally advised by the Minister’s Department about conduct that brought him within the deportation or character provisions of the Act. At [50], the Tribunal said:

JSFD was not formally advised by the Department of Immigration and Citizenship, prior to the commission of his offences, about conduct that has resulted in the application of the character or deportation provisions of the Act. Therefore the lack of a warning weighs against cancellation of the visa.

31. At [51], the conclusions of the Tribunal on the primary considerations are set out. The first primary consideration, the protection of the Australian community, weighed against visa cancellation due to the low risk of re-offending. The second primary consideration concerning JSFD being a minor when he began living in Australia was in the same category. The third primary consideration about the time spent in Australia before the offences weighed in favour of cancellation. The fourth primary consideration about international obligations was not applicable. The Tribunal considered that the second primary consideration should be given greater weight than the third because “the fact that the applicant had arrived in Australia as a minor should be afforded greater weight than the length of time spent in Australia before the commencement of offending”; (see Re Kamal and Minister for Immigration and Citizenship [2009] AATA 555).
32. At [52], the Tribunal referred to the non-primary or secondary considerations, saying:

Of the other (secondary) considerations the efforts made by JSFD to complete several courses while incarcerated, together with the support by CD and KL and members of his extended family in Australia, weigh against the cancellation of the visa. Other factors (including his links to New Zealand) weigh against cancellation or are of little relevance.

33. There was no secondary consideration which weighed in favour of cancellation of the visa.

Approach to judicial review of the Tribunal’s decision

34. For the Minister to succeed in his application he must show that the Tribunal’s decision was affected by jurisdictional error. Although, the types of jurisdictional error are not exhaustive and may overlap, it is useful to bear in mind McHugh, Gummow and Hayne JJ’s observation in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [83] that:

In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it “exceeds its authority or powers”. If that is so, the person who purported to make the decision “did not have jurisdiction” to make the decision he or she made, and the decision “was not authorised” by the Act.

35. As said in Craig v The State of South Australia (1996) 184 CLR 163 at 179:

Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

36. The following guiding principles referred to by Besanko J recently in Minister for Immigration and Citizenship v Pemberton [2010] FCA 430 are instructive for current purposes and well sourced in High Court authority referred to in that judgment:
    • a failure to take into account a mandatory relevant consideration or the asking of a wrong question will result in jurisdictional error;
    • making a wrong finding of fact will not, of itself amount to jurisdictional error;
    • a decision maker is not obliged to refer to every piece of evidence before it;
    • the reasons of an administrative tribunal are not to be construed minutely and finely with an eye keenly attuned to the perception of error.
37. To the above may be added the observation made in The Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [163] per Hayne J that:

There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.

See also; Kirk v Industrial Relations Commission [2010] HCA 1; (2010) 239 CLR 531 at [65].

Ground 1

38. The Minister submits that the Tribunal fell into jurisdictional error by failing to consider evidence that JSFD had breached “judicial orders, including...bail...”. The Minister refers to [10.1.2] of the Direction concerning the assessment of the risk of re-offending and to breach of a bail order being a factor to be considered particularly relevant to that assessment. At the Melbourne Children’s Court on 18 February 2008, JSFD was charged with various matters including “failure to answer bail”. In her submissions to the Tribunal counsel for the Minister referred to JSFD’S failure to answer bail, his breach of a probation order and a youth supervision order as being relevant to the risk of his re-offending. Counsel for JSFD conceded that JSFD had breached a probation order and had failed to answer bail.
39. The Minister contends that the Tribunal was obliged, pursuant to [10.1.2] of the Direction to deal with evidence of the breach of bail in its assessment of the risk of JSFD re-offending. The Minister notes that the Tribunal considered the breach of the probation order and youth supervision order, but not to the failure to answer bail. The Minister submits that the Tribunal must be inferred as not having taken into account the failure to answer bail, being a relevant consideration, which it was bound to take into account when considering the risk of re-offending.
40. Counsel for JSFD point to the fact that there is no obligation for the Tribunal to refer to all the evidence before it. Counsel also submit that the reasons for decision are comprehensive and the issue of the breach of Court orders has been addressed. Accordingly, they say, it may be unnecessary to make a finding on a particular matter if it is subsumed in findings of greater generality. In that regard they rely on Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [47], where a Full Court said:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

41. The failure to specifically address the breach of bail issue did not affect the Tribunal’s exercise of the power. Failure to specifically mention it does not mean it was overlooked. It was not a consideration which would have been dispositive of the Tribunal’s consideration of the matter. It had already referred to other examples of breach of judicial orders going to probation and youth supervision. The obligation of the Tribunal in this regard was to focus on breaches of judicial orders. The Tribunal dealt with that obligation, and at [18] specifically referred to “evidence of breach of judicial orders” as a means to which its attention was directed. The breach of bail was another type of offence that came within the breach of judicial orders. As counsel for JSFD submitted in their written contentions:

It should be inferred that the Tribunal was well aware of the issues posed by paragraph 10.1.2 (c) and that the comparatively minor issue of the first respondent’s breach of bail was subsumed in the more general assessment and findings as to the risk of recidivism, including its acknowledgement that he had breached judicial orders.

42. The Tribunal did not commit a jurisdictional error in failing to specifically refer to the breach of bail. A reference, had it been made, would not have been such a significant matter so as to outweigh considerations pointing to a low risk of re-offending as to be dispositive of this aspect of the Tribunal’s decision.
43. Ground 1 is not made out.

Ground 2

44. Counsel for the Minister submits that the Tribunal, when considering the extent of rehabilitation actioned by JSFD and the prospect of his further rehabilitation, was obliged to consider whether CD was an independent and authoritative source and to take into account her independence or lack thereof in determining the weight to be given to her evidence.
45. To accept those submissions would be to misconstrue the provisions of [10.1.2 (2)(b)] of the Direction. That provision states:

10.1.2-The risk that the conduct may be repeated

(2) The following factors are to be considered as particularly relevant to this assessment:

....
(b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; ...

46. A fair reading of (b) above reveals that it is not acting in breach of that provision to give weight to evidence from a person about rehabilitation where that person is not an independent source. There is no obligation imposed by that part of the Direction for the Tribunal to identify a source as not being an independent or authoritative one. The Direction requires the Tribunal to generally give greater weight to evidence from independent and authoritative sources about rehabilitation than sources which do not answer those adjectival descriptions. Subject to that, the weight which the Tribunal gave to CD’s evidence was entirely a matter for the Tribunal’s consideration. No independent or authoritative source, in any event, contradicted evidence given by CD. As counsel for JSFD submit in their written contentions:

There was further evidence about the extent of the rehabilitation of the first respondent upon which the Tribunal was entitled to rely from “authoritative and independent sources”, including the Youth Parole Board, Youth Projects Inc. and Jesuit Social Services, which supported the views expressed by CD and the other witnesses called on behalf of the first respondent.

47. Ground 2 is not made out.

Ground 3

48. This ground raises the proper interpretation of [10.2] of the Direction. It deals with the second primary consideration of “whether the person was a minor when they began living in Australia”. The relevant parts of the Direction provide:

10.2-Whether the person was a minor when they began living in Australia

(1) If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.

(2) Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at the time.

Note: For example, if the person was between 17 and 18 years old on arrival.

49. Counsel for the Minister submits that the Tribunal misconstrued [10.2] and thereby committed a jurisdictional error. He contends that the Tribunal, having found at [33] that JSFD did not spend most of his formative years in Australia, was not able to consider that the second primary consideration was favourable to JSFD. In effect, Counsel says that [10.2] requires a person to have come to Australia as a minor and spent their formative years in Australia. Counsel for the Minister says JSFD came to Australia as a minor but spent most of his formative years in New Zealand.
50. Counsel for JSFD contend that [10.2] does not require a person to spend all their formative years in Australia to receive favourable consideration under sub-paragraph (1).
51. Counsel for the Minister also refers to [51] of the reasons for decision of the Tribunal where, in summarising its finding on primary considerations, reference is made to JSFD not spending his formative years in Australia. JSFD’s counsel say that is a slip and the actual finding being summarised referred to “most of” his formative years being spent outside Australia.
52. The better view of [10.2] is that a person receives favourable consideration in respect of the Direction when that person has the following characteristics:
    1. the person was a minor when they began living in Australia; and
    2. spent some of their formative years here.
53. The words “some of” should be read into the paragraph to make sense of it because not all persons being considered by reference to [10.2] would have spent their formative years in one country; see, Nafeh v Minister for Immigration and Citizenship [2004] FCAFC 232 at [4] to [6]. Paragraph (2) of [10.2], sheds light on the issue by saying that, less weight should be given to this consideration if the person began living in Australia as a minor but was close to adulthood at the time. This demonstrates that [10.2] contemplates that a person can spend some of their formative years in Australia even if (according to the Note) one is 17 when they commence living in Australia. Paragraph (2) would be irrelevant if one could not be considered to have spent one’s formative years in Australia, if one spent most of them elsewhere.
54. The Tribunal found at [33] of its reasons for decision, that JSFD spent some of his formative years in Australia but most of them in New Zealand. Its incorrect summary at [51] concerning JSFD not spending his formative years in Australia was a mis-description of its own finding and a slip.
55. As the construction placed on [10.2] of the Direction in paragraph (1) thereof by the Minister cannot be reconciled with paragraph (2) and the Note to [10.2], the Minister’s construction is rejected. The extent to which reliance can be placed on this primary consideration will depend on when the person, commenced to live in Australia, and the then age of that person on arrival in Australia. This consideration could be neutral especially if a person arrives in Australia shortly before obtaining 18 years. But that is not this case.
56. Ground 3 is not made out.

Ground 4

57. The Minister’s counsel contends that in considering the first primary consideration concerning the protection of the Australian community set out in the Direction, the Tribunal failed to conduct a balancing exercise between the two relevant aspects of that consideration, being:
    1. the seriousness and nature of the conduct; and
    2. the risk that the conduct may be repeated.
58. Counsel contends that the Tribunal did not weigh the seriousness and nature of JSFD’s conduct against the risk that the conduct might be repeated. He says the Tribunal considered the two matters separately under distinct headings and then reached a conclusion based on the risk of re-offending alone. Counsel for the Minister says the Tribunal should have examined whether despite a low risk of recidivism, whether any re-offending by JSFD would cause great harm.
59. Counsel for JSFD submit that the Tribunal did consider the seriousness and nature of their client’s conduct. They refer to the Tribunal’s acceptance of evidence that JSFD acknowledged the seriousness of the offences and that he accepted his culpability. Counsel further submit that the Tribunal properly balanced the two matters referred to in [10.1(2)] to draw its conclusions.
60. The Tribunal dealt extensively with the offences which led to the matter being before it, including their effect on JSFD’s victims and the opportunistic and predatory nature of many of the offences. Proper consideration of the risk that the conduct may be repeated can only be given in the context of a thorough understanding of what the conduct comprised. The Tribunal exhibited that understanding, it gave due consideration to the seriousness and nature of the conduct at [12] to [17] of its reasons. It then gave extensive consideration to whether that conduct might be repeated. In so doing, it was aware that circumstances might arise where a low risk of recidivism, if it does occur, may cause great harm. That is why the Tribunal referred to Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81, per Davies J.
61. A fair reading of the Tribunal’s reasons shows that it considered that the risk of recidivism was low, notwithstanding that if the conduct recurred great harm may be caused. A repetition of conduct which has caused great harm will again cause great harm. However, the Tribunal, when its decision is fairly read, considered the risk of recidivism to be so low as to discount the possibility that if it occurred great harm would result. Any other approach would render the risk of re-offending an otiose consideration, when it could be said that a risk of offending re-occurring would always cause great harm in circumstances where the original offending conduct caused great harm. In any event at [31] the Tribunal refers to “on the balance”, in coming to its conclusion on this consideration. The Tribunal thereby inferred a balancing of the considerations referred to in the application of [10.1 (2)] of the Direction.
62. Ground 4 is not made out.

Ground 5

63. The Minister submits that the Tribunal erroneously took into account a factor that had no application to which it had to determine. Among the “other considerations” in the Direction is one referred to at [11(3) (g)] which states:

(g) whether the person has been formally advised in the past by an officer of the Department of Immigration and Citizenship about conduct that brought the person within the deportation provisions of the Act...or the character ...provisions of the Act...

64. The Tribunal at [50] of its reasons for decision said that prior to the commission of the relevant offences, JSFD had had no such warning and that the lack of warning weighed against cancellation of his visa. The Minister contends that the absence of a warning is not relevant in the absence of prior conduct which might warrant a warning. Counsel for the Minister says that [11(3) (g)] did not have any application in the present case.
65. Counsel for JSFD submit that [11(3) (g)] can be construed to refer to a lack of a previous warning going in favour of an affected person, with the giving of a previous warning going against such a person.
66. Such an approach has much to commend it, especially given that a person who has engaged in conduct rendering him or her liable to such a warning but not in receipt of one, would be in a better position under [11(3) (g)] than someone in JSFD’s position.
67. It is unnecessary to focus on the proper construction of [11(3) (g)] as I accept the submission of counsel for JSFD that even if [11(3) (g)] was not relevant to what the Tribunal had to consider, it was just one of many matters labelled as “secondary considerations” which were given lesser weight than the four primary considerations. Reference to [11(3) (g)], if misplaced, did not involve an error in the sense described in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82], which affected the exercise of the Tribunal’s power.
68. Further as counsel for JSFD contend, the [11(3) (g)] factor was one of many secondary considerations taken into account by the Tribunal, most of which either favoured the refusal of cancellation of the visa and some of which were neutral factors. That is especially so when one considers that the Tribunal stated at [51] that, “overall” the primary considerations weighed against cancellation of the visa in view of the Tribunal’s conclusions.
69. Ground 5 is not made out.

Conclusion and comment

70. Having regard to the foregoing, as each ground of review is rejected, the application must be dismissed, with costs. The Court also takes the opportunity to thank counsel for their assistance and notes especially that counsel for JSFD appeared pro-bono pursuant to O80 of the rules of this Court. Such assistance offered by them is greatly appreciated by the Court.
    

I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated: 4 June 2010