The Minister’s personal decisions including those in the national interest

 
 

A jurisprudence has developed around the exercise of the Minister’s personal power. It is evolving and is quite complex. This paper can only dip into the issues and does not purport to be a comprehensive analysis of the legal issues involved. Some of the jurisprudence is influenced by Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) where concepts like proportionality were developed.

In certain circumstances the Minister acting personally can overturn a decision of the AAT and a delegate ‘in the national interest’.

In Stretton v Minister for Immigration and Border Protection (No 2) [2015] FCA 559, 5 June 2015, (which was not a ‘national interest’ case), Logan J concluded :

58…Had the Minister chosen to act on his evaluation of the risk presented by Mr Stretton as “low”, tempered by an understanding of the objective seriousness of the offences concerned, he would then have had to confront and balance the countervailing factors (termed “discretionary considerations” by Kirby J in Re Patterson) which he noted. By the time when Mr Stretton came to commit these offences, he had been resident in Australia for nearly half a century, more than that by the time when the Minister made his decision. He came here as an infant.  He had no ties with the United Kingdom, other than the circumstance of his birth. He had not even returned there to visit, much less did he have any adult experience whatsoever of living and working there.

Logan J considered the decision was a disproportionate exercise of power.

There is some earlier authority suggesting that the Minister does not have to take the personal circumstances of the person affected into account as part of a consideration of the ‘national interest’.

This comes from the Full Federal court decision of Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505, [2004] FCAFC 256 where Kiefel and Bennett JJ at 525/526 at paragraph 74  concluded :

If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed. By way of illustration, the Minister may consider that the national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment for the requisite term. To construe the section as requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion. It follows in our view that the obligation of which his Honour the primary judge spoke cannot be read into s 501.

However this has been tempered somewhat in the Full Federal court decision of Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 where Rangiah J concluded that the risk of further offending had to be taken into account.

Re  Patterson  [2001] HCA 51; 207 CLR 391; 182 ALR 657; 75 ALJR 1439 (6 September 2001), here is the context of Gaudron J’s remarks which identified a two stage process in determining what was in the national interest :

81.The statements of the Full Court in Gunner by no means constitute an endorsement of the proposition that convictions which result in a person failing the character test by reason of s 501(7)(c) – a sentence of imprisonment of 12 months or more – are, themselves, sufficient to entitle the Minister to determine that it is in the national interest that his or her passport be cancelled. That, however, was the purport of the departmental submission.

82.The terms of s 501(3) make it clear that national interest considerations are separate and distinct from the question whether or not a person passes the character test. That is not to say that the matters which result in a person failing the character test may not also provide the foundation for the Minister’s satisfaction that it is in the national interest that that person’s visa be cancelled. It may be that the conduct which has led to a person failing the character test is such as to threaten the national interest as, for example, if a person fails the character test because his or her conduct is more likely than not to cause discord in the Australian community.

83.Moreover, the crimes or some of the crimes of which a person has been convicted may be of such a nature as to found a satisfaction that it is in the national interest to cancel his or her visa. Crimes which involve circumventing passport and immigration laws may well be crimes of that kind. Further, crimes of which a person has been convicted may be of such seriousness or the circumstances in which they were committed may be of such a nature as to found the satisfaction that it is in the national interest that his or her visa be cancelled.

84.To say that the conduct which leads a person to fail the character test may also provide the foundation for the Minister’s satisfaction that it is in the national interest to cancel his or her visa is not to say that it will always do so. Both issues must be considered separately. And where the same conduct is relied upon for both purposes, there must be something in the nature, or the seriousness of that conduct, or in the circumstances surrounding it to found a satisfaction that it is in the national interest to cancel the visa of the person concerned.

The writer’s view is that the comments of Kiefel and Bennett JJ in Huynh have been overtaken by later developments in the law in Stretton, Moana and indeed the High court decision of Li. However it may take a Full Federal Court bench to determine that Huynh no longer represents the law to be applied in 2015 or 2016. The writer would be prepared to consider taking on such an appeal on a no win no fee basis in an appropriate matter.

Barbara DavidsonThe Minister’s personal decisions including those in the national interest