Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73 (11 May 2017)

Last Updated: 12 May 2017

FEDERAL COURT OF AUSTRALIA

Murad v Assistant Minister for Immigration and Border Protection

[2017] FCAFC 73

ORDERS

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal, as agreed or assessed.

REASONS FOR JUDGMENT

GRIFFITHS AND PERRY JJ:

Introduction

1. The appellant is of Palestinian origin and arrived in Australia in December 2001 with his family when he was 15 years of age.
2. On 3 March 2016 the Assistant Minister for Immigration and Border Protection (the Minister) cancelled his Class AH Subclass 101 Child visa (the visa) on character grounds under s 501(2) of the Migration Act 1958 (Cth) (the Act) on the basis that the appellant had a substantial criminal record. The appellant does not hold the citizenship of any country. By reason of the appellant being stateless, the Minister found that, if the appellant’s visa was cancelled, he would face the prospect of indefinite immigration detention due to the operation of ss 189 and 196 of the Act.
3. The appellant’s application for judicial review of the Minister’s decision and for a writ of habeas corpus were dismissed by the primary judge. The primary issue on the appeal is whether the primary judge ought to have held that the Minister failed to consider the best interests of the appellant’s children as a primary consideration in determining whether to cancel his visa. The appellant also put a formal submission that the decision of the High Court in Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 (Al-Kateb) holding that ss 189, 196 and 198 of the Act permit his indefinite detention was wrong and should be overruled. As we later explain, leave to amend the notice of appeal to raise a factual point of distinction between this case and Al-Kateb was refused by a majority.
4. For the reasons which follow, the appeal should be dismissed, with costs.

Summary of primary judge’s reasons

5. The primary judge’s reasons for judgment are reported as Murad v Assistant Minister for Immigration and Border Protection [2016] FCA 876 (Murad below).
6. The primary judge set out extracts from the Minister’s statement of reasons for his decision to cancel the visa. In particular, his Honour extracted relevant paragraphs relating to the two primary issues raised by the originating application for judicial review. Those two issues concerned the Minister’s consideration of the offences which underpinned his finding that the appellant had a substantial criminal record, and the consideration the Minister gave to the best interests of the appellant’s two minor children.
7. Under a section of the statement of reasons headed “CHARACTER TEST”, the Minister noted that the appellant had been sentenced to a total of six years and two months imprisonment for the following offences:

(1) specially aggravated, attempt to enter a dwelling with the intent to commit a serious indictable offence, namely intimidation; and

(2) firing a firearm at a dwelling house with disregard for the safety of other persons.

8. The Minister also noted that the appellant was convicted for other offences and sentenced to a total term of imprisonment of 65 months for the offences of:

(1) possession of a self-loading rifle without the authority of a licence or permit; and

(2) possession of a pump-action shotgun without the authority of a licence or permit.

9. The next section of the statement of reasons is headed “DISCRETION”. This section contains the Minister’s reasons for considering whether to exercise his discretion under s 501(2) to cancel the appellant’s visa, having found that he did not pass the character test. In [10] the Minister recorded that he had taken into account “factors that I considered weighed against and in favour of cancelling [the appellant’s] visa”. Those factors are then set out under various headings which, relevantly, included the following:

Criminal conduct

11. In making my decision I considered the Government's commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens. I took into consideration that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are, and have been law abiding.
12. In considering the nature and seriousness of Mr MURAD's criminal offending I note that violent offences are viewed very seriously.
13. I had regard to the circumstances of Mr MURAD's recent offending, as set out above, noting that the court sentenced Mr MURAD to a term of fifty six months imprisonment.
14. I find that the sentence Mr MURAD received is a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as serious.
15. I considered the nature and seriousness of Mr MURAD's criminal offending or other conduct to date, factors including the frequency of the offending, whether there is a trend of increasing seriousness and the cumulative effect of repeat offending.
16. I note that Mr MURAD has a long criminal history in Australia, punctuated with episodes of violence and disregard for the law. I took into account Judge Sides statement of 11 February 2013, who was of the view that Mr MURAD does not have the benefit of prior good character.
17. Despite the Court's measures of deterrence, Mr MURAD has continued to reoffend, incurring a range of convictions. In particular, I find Mr MURAD's convictions associated with weapons are very serious offences.
18. I find that Mr MURAD has a long criminal history in Australia characterised mostly by dishonesty, drugs, driving, weapons and offences of violence, which have resulted in terms of imprisonment.
19. I have taken into account the offences that resulted in terms of detention or imprisonment, as a further indication of the seriousness of the offending. I have considered that the court viewed the offending as serious.
20. I have taken into consideration that, Mr MURAD's repeated offending has had a cumulative effect on the Australian community. Members of the community who were subjected to Mr MURAD's offences against the person are likely to have suffered emotional harm, in addition to the physical harm. Community resources have also been expended on Mr MURAD on multiple occasions, including in relation to policing, court and prison resources.

...

Best interests of minor children

26. I gave primary consideration to the best interests of any children who are less than 18 years of age and whose best interests are affected by cancellation of Mr MURAD's visa.
27. Mr MURAD states that he has two children ... whom he has a close relationship with. The children currently reside with their mother and Mr MURAD has care of the children on the weekend.
28. Given that MR MURAD continues to have an active role in the care and upbringing of the children, I find that it is in the best interests of [the children] not to cancel Mr MURAD's visa.
29. Taking this into consideration, I accept that Mr MURAD's children would be emotionally affected by a visa cancellation and that this would deprive the children from having the opportunity to have close and direct personal contact with him. Although, this would be limited to an extent as Mr MURAD does not have full time daily care or full time responsibility of the children.
10. Under the heading “Ties to Australia”, the Minister's reasons included the following statements:
    44. I have considered the effect of visa cancellation upon Mr MURAD's immediate family in Australia and accept that those persons would experience emotional hardship. I have taken this into account and also recognised the effect of visa cancellation for his two minor children and family members in Australia.”
11. In the final section of the statement of reasons, headed “CONCLUSION”, the Minister stated:
    49. I considered all relevant matters including (1) an assessment against the character test as defined by s 501(6) of the Migration Act, (2) Direction 65 and (3) all other evidence available to me, including evidence provided by, or on behalf of Mr MURAD.
    50. I find that the Australian community could be exposed to great harm should Mr MURAD re-offend in a similar fashion. I could not rule out the possibility of further offending by Mr MURAD. The Australian community should not tolerate any further risk of harm.
    51. I found the above consideration outweighed the countervailing considerations in Mr MURAD's case, including the best interests of his two children, his statelessness, the prospect of indefinite detention if his visa was cancelled and the impact on family members. I have also considered the length of time Mr MURAD has made a positive contribution to the Australian community and or the consequences of my decision for minor children and other family members.
    52. I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of risk of re-offending by Mr MURAD, than I otherwise would, because he has lived in Australia for most of his life.
    53. I found the above consideration outweighed the countervailing considerations in Mr MURAD's case, including the impact on family members. I have also considered the length of time Mr MURAD has made a positive contribution to the Australian community and the consequences of my decision for family members.
    54. In reaching my decision I concluded that Mr MURAD represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.
    55. Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr MURAD's Class AH Subclass 101 Child visa under s 501(2) of the Migration Act.
12. The primary judge rejected the appellant’s claim that he had been denied procedural fairness because the Minister had not given primary consideration to the best interests of his children, contrary to authorities such as Minister for Immigration and Ethnic Affairs v Ah Hin Teoh [1995] HCA 20; 183 CLR 273 (Teoh); Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; 107 FCR 133 (Wan); Nweke v Minister for Immigration and Citizenship [2012] FCA 266; 126 ALD 501 (Nweke) and Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897; 131 ALD 27 (Lesianawai). The primary judge acknowledged that these cases and, Wan, in particular, required the Minister to identify the best interests of any affected minor child and to then assess whether that factor was outweighed by any other relevant consideration, whether individually or in combination. His Honour noted that although the Minister identified the best interests of Mr Murad’s minor children as a “primary consideration” in [26], there was no further reference to that being a “primary” consideration when the Minister came to weigh up the competing considerations. Nevertheless, the primary judge held that Wan, Nweke and Lesianawai were distinguishable because, unlike those cases the Minister’s assessment of the children’s best interests was not “hypothetical or equivocal” (at [51]). The essence of his Honour’s reasoning is contained in [52]:
    52. Importantly, none of the authorities require that the best interests of children be the only primary consideration, or the predominant consideration. That could virtually entail such a consideration having to prevail, no matter what else was to be taken into account. The legitimate expectation which grounds the obligation, as identified in Teoh, was to ensure that a first or primary matter to be taken into account in all migration decisions affecting a child would be the best interests of that child. I consider that this requirement has been met, such that there could not have been a failure to give notice that the best interests of the children would not be a primary consideration.
13. It is unnecessary to summarise those parts of the primary judge’s reasons for rejecting other grounds raised by Mr Murad below, other than his reasoning in respect of Al-Kateb, which is also raised on the appeal. It is convenient to set out the entirety of that reasoning at [95] of Murad below:
    95. The final ground is raised formally to provide a possible vehicle for revisiting the High Court's decision in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562. The applicant contends that ss 189 and 196 of the Migration Act should be read so as not to permit indefinite detention as a matter of statutory construction and in the absence of express statutory authority to detain indefinitely. The applicant asserts that the dissenting conclusions of Gleeson CJ, and Gummow and Kirby JJ in Al-Kateb should be preferred, but necessarily accepts that I am bound by the majority decision to conclude that this ground must fail.

The application for leave to amend the notice of appeal

14. At the hearing, the appellant moved on an interlocutory application for leave to amend the notice of appeal. The Minister opposed only one amendment, namely, that ground 4 be amended to add the words underlined as follows:

The primary Judge erred in failing to find that the Respondent acted unlawfully in detaining or continuing to detain the Appellant, purportedly under ss. 189 and 196 of the Migration Act 1958, when the Appellant is stateless and he could not be removed or his removal was not reasonably practicable in the foreseeable future.

15. As explained by the appellant, the ground sought to rely upon the additional amendment as a fact relevant to his application for a writ of habeas corpus, that is providing a factual basis on which to distinguish Al-Kateb. In other words, while in Al-Kateb the Minister had put on evidence to demonstrate the steps which had been taken by him in seeking to find a third country to take the visa applicant, raising the possibility that at some time he might be removed, no such evidence had been led here and the Court should therefore find as a fact, for the purpose of considering whether the appellant was unlawfully detained, that he could not be removed.
16. Leave was refused at the hearing by majority (Mortimer J dissenting) with reasons to be given later. Our reasons are as follows.
17. First, the appellant submitted that the amendment did not raise a new ground, pointing to ground 5 of the originating application which stated that (emphasis added):

Sections 189 and/or 196 of the Migration Act 1958 do not permit the detention or continued detention of the applicant where he is stateless and will not be removed from Australia or it is not reasonably practicable to remove him for the foreseeable future.

18. However, the appellant properly conceded that he had not argued below that the Court should find that he could not be removed from Australia and that this provided a basis for distinguishing Al-Kateb. In particular, he had not argued that Al-Kateb was distinguishable because of the Minister’s failure in the appellant’s case to adduce any evidence of continuing, or indeed any, efforts to endeavour to find a third country which might accept the appellant.
19. The general principles guiding the decision whether or not to permit a ground to be raised on appeal which was not run below are well settled. They are reflected in the following observations of the Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]- [48] (and which were recently reaffirmed in substance by Flick and Rangiah JJ in Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; 243 FCR 220 at [89]- [90]):
    46. In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]- [24] and [38].
    47. In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”

48. The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court.
20. In Summers v Repatriation Commission [2015] FCAFC 36; 230 FCR 179, in discussing the relevant principles, the Full Court stated at [94] that, generally speaking, leave is more likely to be granted to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy. A Full Court constituted by five Justices approved that passage in Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [79].
21. We are not persuaded that it is in the interests of justice in the circumstances of this matter to permit the appellant to raise the new argument on appeal for the reasons which follow.
22. Secondly, in support of his contention that the ground was not new and that the Minister would not suffer prejudice, the appellant said that he sought only to rely upon the finding at [94] of the reasons, which accepted the Minister’s submission set out at [93] that “...at the time of the Minister’s decision, there was (and still is) no prospect of the applicant being able to be returned to any other country because he is stateless.”
23. However, the appellant’s submission takes that finding out of context. The finding was made below in response to the appellant’s ground 4, which alleged that the Minister’s finding that the appellant would face indefinite detention because he was stateless if his visa was cancelled was based on a misinterpretation of ss 189, 192 and 198 of the Act, namely, that it could not be said that he would never be removed because the obligation to remove under s 198(5) of the Act continues even if the circumstances for removal have not yet (and may never) arise. The primary judge dismissed the ground on the basis that it proceeded on a misconstruction of the Minister’s statement of reasons at [37] which did not involve a question of statutory construction, but was rather a statement of factual practicalities. As his Honour stated at [94], “I do not consider that [37] was doing more than recording the practical reality of the applicant’s present predicament. It follows that no misinterpretation was involved, and no jurisdictional error has taken place.”
24. This was not a finding by the Court below as to whether the appellant had no prospect of being able to be returned. Rather, it was an expression of the primary judge’s view as to how the Minister’s reasons should properly be read and understood.
25. In these circumstances, we consider that the Minister rightly submitted that the appellant’s proposed amendment raised a new factual ground.
26. Thirdly, and significantly, the Minister submitted that if the issue had been properly raised below, he would have led evidence as to the kinds of processes which would have been employed to endeavour to find a third country which would receive the appellant once his visa was cancelled. In this regard, the Minister pointed to the fact that those processes would not be engaged before the visa was cancelled because the appellant had a right to remain in Australia until his visa was cancelled. We accept that, if the amendment were allowed, the Minister would suffer prejudice. It is well established that a party should not be permitted to raise for the first time on appeal a ground which, if it had been raised below, would have been the subject of further evidence by the respondent (see, for example, Cubillo v Commonwealth [2001] FCA 1213; 112 FCR 455 at [369] per Sackville, Weinberg and Hely JJ).

The grounds of appeal

27. The amended notice of appeal contained four grounds which may be summarised as follows. The first ground was that the primary judge erred in rejecting the appellant’s complaint of procedural unfairness, which turned on the Minister’s failure to notify the appellant that he would not treat the best interests of the appellant’s children as a primary consideration and/or that he would treat risk to the Australian community as the paramount consideration. The second ground was that the primary judge erred in not finding that the Minister had fallen into jurisdictional error by failing to take into account the best interests of the appellant’s children as a primary consideration. The third ground of appeal was not pressed. The fourth ground related to the appellant’s status as a stateless person and involved a formal challenge to the correctness of Al-Kateb. The appellant sought various remedies, including an order in the nature of habeas corpus to release him from immigration detention.

Consideration and determination of the appeal

(a) Ground 1 – procedural unfairness

28. The relevant principles are not in doubt. Procedural fairness requires that, if the Minister proposes to make a decision which does not accord with the legal requirement that the best interests of affected minor children be a primary consideration, prior notice has to be given and an adequate opportunity afforded so as to present a case against the taking of such a course (see Teoh at 291-292 per Mason CJ and Deane J). The source of this procedural fairness requirement is Art 3.1 of the United Nations Convention on the Rights of the Child, which provides:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

29. In Teoh, at 289, Mason CJ and Deane J emphasised the significance of the wording of Art 3.1 and the reference to the best interests of the child being “a” primary consideration. Their Honours added (emphasis in original):

The article is careful to avoid putting the best interests of the child as the primary consideration; it does no more than give those interests first importance along with such other considerations as may, in the circumstances of a given case, require equal, but not paramount, weight.

Their Honours said at 292 that a “decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the children as a primary consideration, asking whether the force of any other consideration outweighed it”.

30. Other authorities illustrate how the obligation to treat the best interests of a child as a primary consideration in making decisions under s 501 of the Act can give rise to jurisdictional error. For example, in Wan, the Full Court (Branson, North and Stone JJ) stated at [32]:

An identification by the Tribunal of what the best interests of Mr Wan's children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.

31. Cases such as Nweke and Lesianawai illustrate how procedural unfairness can occur if, in conducting the balancing exercise under s 501, consideration of the best interests of a child is left at the level of mere hypothesis of possible harm, as opposed to the decision-maker first determining what in fact are those best interests, and only then assessing whether the strength of any other relevant considerations (whether primary or otherwise), such as risk of harm to the Australian community, outweighs the child’s best interests as a primary consideration. Thus, in both those cases, it was found that the Minister had fallen into error when the Minister’s statements of reasons indicated that the balancing exercise had been conducted on the basis of a finding or assumption that it may be in the children’s best interests if their father’s visa was not cancelled, without any decisive determination being first made on what the best interests of the children actually required.
32. Counsel for the appellant submitted that these and other authorities established the following three requirements:

(1) for the weighing task under s 501(2) properly to be conducted, the decision-maker must determine what in fact are in the best interests of a child;

(2) first importance must be given to the best interests of a child, along with such other considerations as, in the circumstances of a particular case, require equal but not paramount weight; and

(3) after properly considering the evidence and other material before the decision-maker, an assessment must be made of whether the strength of any other consideration, or the cumulative effect of other considerations, outweigh the consideration of the best interests of the child understood as a primary consideration.

33. Counsel for the appellant contended that, although the first requirement had been met by the Minister, the second and third requirements had not. That is because, so it was contended:

(1) The Minister treated risk of harm to the Australian community as a paramount consideration or as inherently more significant than any other consideration, including the best interests of Mr Murad’s children.

(2) This was said to be evident from the fact that, in identifying the competing considerations, the Minister stated in [21] of his statement of reasons that the risk of reoffending was “unacceptable”. Once the risk was identified as unacceptable, in effect that was an evaluative consideration which of its nature must trump any other consideration, including the best interests of the appellant’s children as a primary consideration.

(3) While in [26] he identified the best interests of the children as a “primary consideration”, when it came to the operative part of his reasons, i.e., the weighing up of the competing considerations, the Minister “lumped together” all of the countervailing considerations and did not treat the best interests of the child as different from any other consideration, none of which had been explicitly identified as a primary consideration.

34. These alleged errors were said to be reinforced by the “influence” of Direction 65 on the statement of reasons. Although the Direction was not binding on the Minister, it was submitted that it was considered by him (as was acknowledged in [49] of the statement of reasons). Under the Direction, the explicit list of “primary considerations” in Part A comprises protection of the Australian community from criminal or other serious conduct (cl 9.1); the best interests of minor children in Australia (cl 9.2); and expectations of the Australian community (cl 9.3). It was submitted that these primary considerations were listed in the statement of reasons in the same order as that in the Direction. The Direction specifies in cl 8(4) that greater weight should generally be given to primary considerations than the “other considerations” specified in cl 10. The appellant contended that the Minister did not adopt that approach because:

(1) in the section of the statement of reasons under the heading “CONCLUSION”, he failed to consider the expectations of the Australian community notwithstanding that it is a primary consideration under the Direction;

(2) he weighed all other factors against exposure of the Australian community to harm, rather than weighing only, or at first, the primary considerations; and

(3) he improperly bundled primary considerations with non-primary considerations, which indicated that he viewed all the countervailing considerations to be treated equally.

35. Counsel for the Minister submitted that, while the statement of reasons was “structured along the lines of [D]irection 65”, the primary judge was correct to conclude that the Minister had sufficiently and appropriately weighed the competing considerations for the reasons given by his Honour.
36. As is evident from the summary above of the appellant’s submissions on the appeal, much turns on the approach to be taken in reviewing the Minister’s statement of reasons. This immediately focuses attention on the need to observe the important observations by Brennan CJ, Toohey, McHugh and Gummow JJ on this topic in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 (Wu Shan Liang) at 272 (footnotes omitted):

... a court should not be “concerned with looseness in the language... nor with unhappy phrasing” of the reasons of an administrative decision-maker... “The reasons for the decision under review are not to be construed minutely and finally with an eye keenly attuned to the perception of error”. These propositions are well settled they recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision...

37. Because of the significance the appellant attached to the Direction on the appeal, it is desirable to say something more about that document. Mr Murad was informed by the Minister’s Department in a letter dated 16 March 2015 that, while Direction 65 was binding on a delegate, if the Minister made a decision personally, there was no requirement to give consideration to the Direction. The letter added, however, that the Direction “provides a broad indication of the types of issues that [the Minister] may take into account”. In other words, the Minister was not bound by law to consider the Direction (see s 499 of the Act).
38. As noted above, in fact the Minister plainly did consider Direction 65. So much is made plain in [49] of the statement of reasons. That is not to say, however, that the Minister stated that he intended to follow every aspect of the Direction.
39. It is evident that, while there is some overlap in the structure of the Minister’s statement of reasons and the structure of the Direction, there are some differences. For example, before turning his mind to what are described in the statement of reasons as “Other Considerations”, the Minister recorded that he had considered four matters, namely “criminal conduct”, “risk to the Australian community”; “best interests of minor children” and “expectations of the Australian community”. Each of those matters is then elaborated upon in [11] to [32] of the statement. The only one of these four matters which is explicitly identified as a matter to which the Minister gave “primary consideration” is that relating to the best interests of minor children.
40. In the section of the statement of reasons under the heading “Other Considerations” the Minister lists various considerations which are also identified in cl 10 of the Direction (namely international non-refoulement obligations and ties to Australia), but the statement also includes a section under the heading “Health” which is not explicitly identified in the cl 10 of the Direction. That is not to say that health was not a relevant consideration in the particular circumstances of this case. For completeness, it might also be noted that the Minister’s statement of reasons does not address various other matters which are listed as “other considerations” in cl 10 of the Direction, simply because they were not relevant (for example, impact on Australian business interests).
41. In effect, the appellant’s case in respect of ground 1 of the amended notice of appeal turns on the proposition that, having stated that he had considered the Direction (notwithstanding that he was under no legal obligation to do so), the Minister then came under a similar legal obligation as would apply to the Minister’s delegate to comply with all the relevant requirements of the Direction. No legal authority was cited to support that proposition and we do not accept it. Merely because the Minister has considered a document such as the Direction, where there is no legal obligation on him to do so, does not mean that there must be strict compliance with every aspect of the Direction. It is difficult to reconcile that proposition with the breadth of the Minister’s discretion under s 501(2), as has been emphasised in cases such as Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [63] ff per Griffiths J, with whom Allsop CJ and Wigney J agreed (which is not to say, however, that the discretion is entirely at large).
42. Moreover, even if the Direction is put to one side, we do not consider that ground 1 has been established. The appellant’s case on this ground is predicated on an approach which involves the Minister’s statement of reasons being read in a way which is inconsistent with Wu Shan Liang. In particular, it invites the Court to infer from the Minister’s use of the expression “unacceptable risk of reoffending” in [21] of the statement of reasons that the Minister was effectively saying that the risk to the Australian community of Mr Murad reoffending was an unacceptable risk, that this was a primary consideration and also constituted the paramount consideration which overwhelmed all other considerations, including the best interests of Mr Murad’s children.
43. It is notable that the Minister does not explicitly state in the statement of reasons that the consideration of risk to the Australian community was either a paramount or primary consideration.
44. Moreover, we consider that the appellant’s contention pays insufficient regard to the structure of the Minister’s statement of reasons. The point is illustrated by analogy with what Gleeson CJ said Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59. At [11] of that case, there was a passage in the reasons for decision of the Refugee Review Tribunal which said:

In light of the Tribunal’s findings above that the [applicant/appellant] thoroughly lacks credibility, and its findings that the [applicant/appellant] had misled the Tribunal in regard to his claims to fear harm by the Sri Lankan authorities, it cannot be satisfied with the corroborating evidence given by the... witness and gives no weight to this evidence.

45. It was contended that this passage revealed that the Tribunal had adopted a flawed approach to the evaluation of the evidence and had failed to assess the evidence of the applicant/appellant in the light of the corroborating evidence. The complaint was that the Tribunal failed to consider the evidence as a whole and, instead, first considered and disbelieved the evidence of the applicant/appellant, without taking account of the corroborating evidence, and then considered and rejected the corroboration because of the Tribunal’s earlier rejection of the applicant/appellant’s evidence. Although Gleeson CJ observed in [12] that the Tribunal could have expressed itself more clearly, he found that there was no substance in the applicant/appellant’s complaint that the Tribunal did not have regard to the whole of the evidence before deciding whether the applicant/appellant was to be believed, and did not properly assess the significance of the evidence of the corroborating witness. The following observations of Gleeson CJ at [14], while directed to the particular facts of that case, are also apposite to the appellant’s criticisms of the relevant parts of the Minister’s statement of reasons here:

Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.

46. Viewing the Minister’s statement of reasons in the light of what was said in Wu Shan Liang, it is inappropriate and wrong to view what is expressed in [21] of that statement as a finding to the effect that the Minister was saying that the paramount consideration was the “unacceptable risk of [Mr Murad] reoffending”. It is significant that that collocation occurs in the course of the Minister stating that he had had regard to the consideration of the protection of the Australian community and “noting in particular that Mr Murad poses an unacceptable risk of reoffending”. In our respectful view, the use of the word “noting”, in this context strongly indicates that the Minister was not actually making a finding to that effect in [21]. Rather, it indicates that the Minister was incorporating into his discussion in [21] of risk to the Australian community his subsequent finding in [50] of the statement of reasons. That finding (which, significantly, is explicitly expressed in terms of “I find” and not as a “noting”) was that, because the possibility of further offending by Mr Murad could not be ruled out, the Australian community should not tolerate any further risk of harm. This finding occurs in the section of the statement of reasons headed “CONCLUSION”, which comes after the Minister’s pronouncement in [26] of the statement of reasons that he gave primary consideration to the best interests of minor children.
47. It is true that if what is stated in [51] of the statement of reasons is read in isolation from the balance of the statement, it supports the appellant’s case. That is because, in its terms, it records that the Minister’s finding concerning the risk to the Australian community posed by the possibility of Mr Murad reoffending “outweighed the countervailing considerations... including the best interests of his two children”. This might suggest that the Minister viewed the best interests of the children as secondary and subservient to the consideration of risk. Applying Wu Shan Liang, however, it is inappropriate to approach the statement of reasons in this manner. Paragraph 51 cannot be divorced from what the Minister said in [26] and [28] concerning the best interests of the children as a primary consideration.
48. As the primary judge observed at [51] in Murad below, it may have been clearer and desirable to repeat in the section of the statement of reasons relating to the weighing up of the competing considerations that the interests of the children was a primary consideration, but this does not mean that, when viewed as a whole, the reasons reveal that the Minister elevated the consideration of risk to the Australian community such that it became the paramount consideration which outweighed all others, including the best interests of the children. Such a reading of the Minister’s statement of reasons is inconsistent with the unequivocal statement in [26] that the Minister gave primary consideration to the best interests of Mr Murad’s children. The clumsiness of expression in parts of the Minister’s statement of reasons does not warrant acceptance of the appellant’s submissions in support of ground 1.

(b) Ground 2 – jurisdictional error

49. The appellant’s contention that the primary judge erred in not finding that the Minister committed jurisdictional error by failing to take into account the best interests of Mr Murad’s children as a primary consideration in the cancellation decision must be rejected for similar reasons to those set out above in rejecting ground 1. The Minister expressly stated in [26] of the statement of the reasons that he had given “primary consideration” to the best interests of the minor children and he made an express finding in [28] that it was in the children’s best interests not to cancel their father’s visa. Despite the infelicities of expression in other parts of the Minister’s reasons, no sufficient basis has been shown for not accepting the statements in [26] and [28] at face value. The statements are inconsistent with the appellant’s contention.

(c) Ground 4 – Al-Kateb

50. Like the primary judge below, this Court is bound to follow Al-Kateb. The appellant’s attempt to distinguish that decision turned upon him obtaining leave to amend ground 4, which we declined to grant. Accordingly, ground 4 is rejected.

Conclusion

51. For these reasons, the appeal should be dismissed. The appellant must pay the Minister’s costs as agreed or assessed.
52. The Court expresses its gratitude to Mr Beckett and Mr Naylor, who acted for the appellant on a pro bono basis and provided very helpful assistance to the Court.

Associate:



Dated: 11 May 2017

REASONS FOR JUDGMENT

MORTIMER J:

53. I have had the advantage of reading the reasons for judgment of Griffiths and Perry JJ in draft. I agree with their Honours’ opinion concerning the disposition of the appeal, and I generally agree with their Honours’ reasoning, subject to the matters I set out below.

THE APPLICATION FOR LEAVE TO AMEND GROUND 4 OF THE NOTICE OF APPEAL

54. Unlike Griffiths and Perry JJ, I would have granted leave to the appellant to amend ground 4 of the notice of appeal to add the words “and he could not be removed”, as set out in [14] of the joint reasons.
55. The legal principles applicable to the grant of leave to amend to raise a new ground of appeal are well established, but that does not mean their application is not without difficulty. The difference of opinion I have with the joint reasons is encapsulated by two points. The first is that in my opinion in public law what is comprehended by the “interests of the administration of justice” may differ from what is comprehended by that phrase in private law litigation, especially so in judicial review where the underlying question is the lawfulness of an exercise of public power. Coulton v Holcombe [1986] HCA 33; 162 CLR 1 was a private law case, and although I accept it has been repeatedly relied on in public law circumstances, for my own part the distinction is an important one when considering what is the content of the interests of the administration of justice. In ALZ15 v Minister for Immigration and Border Protection [2017] FCA 279 at [30], I said:

Ultimately, this Court’s function on appeal from a decision involving the supervisory jurisdiction of this Court and of the Federal Circuit Court is to ensure that an administrative decision affecting the rights and interests of an individual (including her or his liberty) is made in accordance with Australian law and by a fair process.

56. ALZ15 concerned a self-represented litigant, but the passage I have extracted above reflects my general view. To take migration decisions as an example, the circumstances would be exceptional, and difficult to imagine, where an administrative decision should be immune from challenge by a new but clearly arguable ground of appeal that the decision did not meet the fundamental criteria of having been made in accordance with Australian law and by a fair process, but nevertheless, while it stood, provided the foundation for an individual’s detention and her or his involuntary removal from Australia. Such a state of affairs would be inimical to the rule of law. In public law, these are matters very much bound up with the interests of the administration of justice. The volume of litigation in this Court on the subject matter of migration decisions does not alter the approach that should be taken: each decision profoundly affects an individual, and often her or his family, including as I have noted, the liberty of that individual.
57. The strength of an argument on judicial review may not be apparent until it is fully developed, and carefully considered in its entire context, perhaps even after judgment is reserved. That is why, where the weight to be given to other considerations such as those I set out at [58] below is negligible, and where the issue is the lawfulness of the exercise of public power, if a ground of appeal is arguable, then in my respectful opinion it is more likely than not to be in the interests of the administration of justice to permit that ground to be developed and advanced on the appeal. By “arguable”, I mean a ground of appeal that is advanced coherently within applicable legal principles and authorities, on a factual basis apparent in the evidence before the appellate Court, and where the legal argument is not fanciful or obviously without merit. There is also an interest, in my opinion, in having all challenges to an administrative decision ventilated at the one time, so that finality about the lawfulness of the decision is achieved, given that the decision is to be acted on in a variety of ways.
58. I accept that the likelihood of prejudice to other parties, considerations of finality, and the effect of changes in the course of an appeal on the resources of this Court and its capacity to discharge its obligations under the Federal Court of Australia Act 1976 (Cth) (in particular, in the context of the overarching purpose set out in section 37M of that Act) are all matters which may be taken into account in exercising the discretion to grant leave to rely on new grounds of appeal. In some circumstances, those considerations may have real weight, and indeed be dispositive of the application. The paradigm example is the one given by Griffiths and Perry JJ at [26]: namely, on appeal a ground which, if it had been raised below, would have been the subject of further evidence by the respondent: see Cubillo v Commonwealth [2001] FCA 1213; 112 FCR 455 at [369] (Sackville, Weinberg and Hely JJ). Nevertheless, whether a new ground of appeal arguably renders an exercise of public power unlawful should, in my opinion, generally be the primary consideration because confidence in the lawfulness of an exercise of public power is in the interests of the administration of justice, especially public power affecting liberty.
59. The second point goes to the merits of the appellant’s application to amend, although it is connected to the first point. I considered the contention sought to be raised on behalf of the appellant was arguable: by which I mean arguable in the sense I have described above. It was also a confined point: I do not agree that allowing the amendment would have caused any prejudice to the Assistant Minister in the way his counsel submitted. It would not have resulted in the extension of the appeal beyond a day, and it would not have had any other negative effect on the interests of the administration of justice that would have justified the refusal of leave. Any time fairly required by the Assistant Minister to put responding submissions could have been easily accommodated by leave to file written submissions after the hearing. I turn to explain why I reached that conclusion.
60. Counsel for the appellant contended the addition of the words “and he could not be removed” did not raise a completely new ground of appeal, but rather sought to place a different emphasis on ground 4 as put to the primary judge, taking into account the characterisation by the primary judge of the Assistant Minister’s reasons. I accept that submission in general terms.
61. As the appellant submitted, ground 4 on judicial review before the primary judge involved an argument that the Assistant Minister had misconstrued ss 189 and 196 of the Migration Act in his finding at [37] of his reasons that the appellant “will not be removed from Australia... because he is stateless, [and therefore the appellant would] ... face the prospect of indefinite immigration detention”. The appellant contended, relying on the description by Hayne J in Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562 at [229] that where it is not currently reasonably practicable to remove an individual, then the time for performance of the duty of removal under s 198 has not yet come, the duty remains unperformed but that is “not to say it will never happen”. He contended the Assistant Minister’s reasons demonstrated a misunderstanding or misconstruction of the effect of s 198, because they posited a situation where the appellant “will not” be removed from Australia, contrary to the law as set out by Hayne J in Al-Kateb. As I understood the submission, it was contended this misconstruction caused the Assistant Minister’s reasoning to proceed, erroneously, on the hypothesis that the appellant would not, in fact, ever be removed from Australia, so that considerations related to what might happen to him outside Australia were implicitly discounted and considerations about preventing him being released into the Australian community were heightened.
62. In dismissing this ground the primary judge accepted the submission of the Assistant Minister that the passage at [37] in the Assistant Minister’s reasons was a “statement of factual practicalities”. His Honour also found (it would appear) that “there was (and still is) no prospect of the applicant being able to be returned to any other country because he is stateless” (emphasis added): see Murad v Assistant Minister for Immigration and Border Protection [2016] FCA 876 at [93]- [94].
63. Before the Full Court, the appellant’s counsel submitted that in terms of the evidence necessary to consider proposed amended ground 4, the Court need not go beyond the Assistant Minister’s reasons at [45], read with [37], and the reasons of the primary judge. To recap, [45] of the Assistant Minister’s reasons, under the heading “Health” stated:

Whilst being stateless and having no prospect of removal from Australia, I have taken into account that Mr MURAD has a history of [health conditions are then stated]

(Emphasis added.)

64. I have set out above what was stated by the Assistant Minister at [37]. These two statements reflected, almost verbatim, what was contained in the briefing note to the Assistant Minister at [98]:

You should take into account that while Mr MURAD will not be removed from Australia if his visa is cancelled because he is stateless, he would face the prospect of indefinite immigration detention due to the operation of s 189 and s 196 of the Migration Act.

65. These statements are unqualified. I do not accept the Assistant Minister’s contention that because they were all made before the appellant’s visa was cancelled (and, the Court was invited to infer, before inquiries had been made about possible removal), they should not be viewed as statements of the Assistant Minister’s understanding at the time of decision.
66. The most obvious reason for rejecting that submission is that there is no evidence before the Court to prove whether the Department of Immigration and Border Protection does or does not make inquiries, form views or take advice on the prospects of removing individuals whose visa cancellation decisions are before the Assistant Minister personally. The Assistant Minister’s submissions cannot be accepted without evidence. Further, it may also be the case that the Assistant Minister and his departmental advisers are well familiar with the situation facing Australian authorities attempting to remove involuntarily persons such as the appellant who are stateless Palestinians. Again, evidence would be required to determine whether this was the case one way or the other. The presently relevant point is that just because the statements were made prior to visa cancellation does not deprive them of their plain meaning.
67. I do not accept it is clear that the statements in the Assistant Minister’s reasons can be seen as only statements of “factual practicalities” (see the primary judge’s reasons at [93]) in a way which divorces the statements from a correct understanding of the construction and operation of s 198 of the Migration Act, as explained by Hayne J in Al-Kateb. These matters would have all needed to be developed in argument if leave had been granted, but it seems to me an orthodox contention that a statement of the kind made by the Assistant Minister at [37] and [45], while having a factual element could also reveal the Assistant Minister’s understanding (or misunderstanding) of the operation of the Migration Act.
68. As the appellant’s counsel submitted, the necessary evidence was already before the Court, and was confined. The appellant’s contention had nothing to do with the likelihood of removal as it stood at the time of trial before the primary judge. Any evidence sought to be adduced about those matters by the Assistant Minister would have been irrelevant. The contention was concerned with the Assistant Minister’s understanding of what was likely to happen to the appellant after the Assistant Minister made his decision, and necessarily included the Assistant Minister’s understanding of the scope and operation of s 198 of the Migration Act. I am not to be taken as expressing any opinion whether the contention would have succeeded. However, in my view leave should have been granted for the matter to be argued.
69. The appellant’s counsel did accept that he was also seeking to use the amended ground to support the appellant’s claim for relief by way of habeas corpus. However, a contention of this nature is not arguable to support relief by way of habeas corpus. Either there is a lawful basis for the appellant’s detention in the Migration Act, or there is not. For the purposes of Australian law, the answer to that question lies in the majority reasoning in Al-Kateb. Although at trial in Al-Kateb (see SHDB v Goodwin [2003] FCA 300), von Doussa J made findings about the prospects of Mr Al-Kateb’s removal in the foreseeable future (or lack thereof) on the basis of contested evidence, the finding in Al-Kateb was as favourable as it could be to an argument of the kind the appellant seeks to make, and was the factual foundation for the minority reasoning in Al-Kateb.

THE GROUNDS OF APPEAL AS ARGUED

70. Subject to the observations below, insofar as the grounds of appeal as argued are concerned, I agree generally with the reasons of Griffiths and Perry JJ.
71. On grounds 1 and 2 of the amended notice of appeal, I have given careful consideration to whether the structure of the Assistant Minister’s reasons demonstrated that he had indeed made an error of the kind identified by the Full Court in Wan v Minister for Immigration and Multicultural Affairs [2002] FCA 568; 107 FCR 133 at [32]- [33] (Wan):

An identification by the Tribunal of what the best interests of Mr Wan’s children required, and a recognition by the Tribunal of the need to treat such interests as a primary consideration, would not have led inexorably to a decision by the Tribunal to adopt a course in conformity with those interests. That is, even had the Tribunal concluded that the best interests of the children indicated that Mr Wan should be granted a visa, it was legally open to it to refuse to grant Mr Wan a visa. Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan’s children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan’s children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.

The written reasons of the Tribunal suggest that it regarded the expectations of the Australian community as a primary consideration (indeed, it might be thought, the primary consideration) in the exercise of the discretion to grant or to refuse to grant Mr Wan the visa for which he had applied. The Tribunal was entitled to regard the expectations of the Australian community as a primary consideration provided that it did not overlook that, on the procedure which it had adopted, procedural fairness demanded that it act on the basis that the best interests of Mr Wan’s children were a consideration of equal significance (that is, also a primary consideration). So, for example, the Tribunal might have concluded that the best interests of Mr Wan’s children required that Mr Wan be granted the visa, but that the damage to their interests that would flow from his being refused the visa would be of only slight or moderate significance. If the Tribunal had also concluded that the expectations of the Australian community were that a non-citizen who engaged in conduct of the kind engaged in by Mr Wan would not be granted a visa, and that a decision to grant such a visa would be a most serious affront to the expectations of the Australian community, it would have been entitled to conclude that, in the circumstances of the case, the best interests of the children were outweighed by the strength of community expectations.

72. Although the appellant accepts the Assistant Minister did not make the same error as was made in Wan, in the sense the Assistant Minister’s reasons do indicate he identified what the best interests of the children required, he submits that the Assistant Minister’s reasons disclose he set up the “unacceptable” risk to the Australian community posed by the appellant as the primary factor, and then measured other considerations (such as the best interests of the appellant’s children against this. That approach, he submits, is precluded by Wan. Although he submits a decision-maker can, legitimately set up the best interests of the child and ask if that factor is displaced by others, he submits the decision-maker cannot set up other considerations (e.g. risk to the Australian community) and ask if best interests of the child displace those other considerations. Another way to describe that, the appellant accepted, was to say that the Assistant Minister treated other considerations as “inherently more significant” (see Wan at [32]).
73. There is force in the appellant’s arguments because of the structure of the Assistant Minister’s reasons. Under the heading “Discretion” the Assistant Minister first considers the appellant’s criminal conduct, emphasising in several passage its seriousness. The Assistant Minister then turns to matters gathered under a heading “Risk to the Australian Community”. In the first paragraph under that heading the Assistant Minister notes that the appellant “poses an unacceptable risk of reoffending”. In the next four paragraphs, the Assistant Minister explains why he considers the risk is an unacceptable one. Then the Assistant Minister turns to the best interests of the appellant’s children. He expressly states he took them into account as a primary consideration (at [26]), however in the part of the reasons headed “Conclusion”, at [52], the Assistant Minister states:

I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of risk of re-offending by Mr MURAD, than I otherwise would, because he has lived in Australia for most of his life.

74. The appellant relied on the phrase “countervailing considerations” as suggesting the Assistant Minister has set up the risk of harm as the overwhelming consideration, and then asked himself whether any other matter displaced it, contrary to the approach required as explained by the Full Court in Wan.
75. It is not impossible to read the Assistant Minister’s reasons in this way. However, as Griffiths and Perry JJ have observed, the Court must read the Assistant Minister’s reasons fairly, taking into account they are the reasons of an administrative decision-maker, and not a court. I respectfully agree with their Honours’ reliance (at [45]) on the passages from Gleeson CJ’s reasons at [14] in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59. The sequence in which a decision-maker expresses her or his findings along the way to the ultimate conclusion may be significant, or it may not be. However, without more, the actual sequence of findings in a set of reasons is unlikely to reveal jurisdictional error.
76. Reading the Assistant Minister’s reasons as a whole, I am not sufficiently persuaded that he took the approach alleged by the appellant. However, the Assistant Minister could, in my respectful opinion, have been much clearer in the way he expressed his reasons for concluding that the risks he perceived the appellant posed to the Australian community were of such a magnitude as to outweigh the best interests of the appellant’s children as the Assistant Minister had identified those interests.
77. I respectfully agree with the orders proposed by Griffiths and Perry JJ.

Associate:



Dated: 11 May 2017