Interpreting s 36(1C)(b)

Federal Court: Are the mandatory considerations arising out s 501 of the Act mandatory considerations in the context of determining whether a person is a "danger to the Australian community" pursuant to s 36(1C)(b)? Was "the possibility that the wish of the applicant ... to have a close relationship with his son would reduce the risk that he would reoffend ... relevant to the assessment that the Tribunal was required to make here"? Is the materiality test backward, or forward looking? Should "the danger referred to in s 36(1C) ... be construed to mean a very serious danger"?

The Minister refused to grant the Applicant a protection visa as it was found that the Applicant did not meet the criterion in s 36(1C)(b) of the Migration Act 1958 (Cth), which read as follows (emphasis added):

A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a)    is a danger to Australia's security; or

(b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

The Applicant applied under s 500 to the AAT for merits review of the Minister's decision, the question to which was whether the Applicant was "a danger to the Australian community".

In assessing that criterion, the Tribunal took into account the Applicant's offending history, but failed to take into account a submission made by the Applicant that his wish "to have a close relationship with his son would reduce the risk that he would reoffend".

The Appellant applied to the Federal Circuit Court (FCCA) for judicial review of the Tribunal's decision but, according to s 476(2)(b), "the [FCCA] had no jurisdiction to review the Tribunal's decision. Accordingly, the [FCCA] made an order transferring the application for review to [the Federal Court (FCA)]".

The questions to the FCA were as follows:

Question 1: Do the "long list of mandatory considerations familiar from ministerial directions and cases arising out of s 501" apply in the context of s 36(1C)(b) of the Act?

Question 2: Was "the possibility that the wish of the applicant ... to have a close relationship with his son would reduce the risk that he would reoffend ... relevant to the assessment that the Tribunal was required to make here"?

Question 3: Is the materiality test backward, or forward looking? In other words, in determining whether a failure to comply with a condition to the valid exercise of power was material, should a court consider whether the decision-maker who made the impugned decision could have made a different decision had the failure not occurred or should it consider whether any future decision-maker who would make a fresh decision could made a different decision if that failure does not occur?

Question 4:

Background:

55  ... the applicant's then solicitor also developed an argument along the following lines:

(1)    When s 36(1C) was inserted into the Act, s 501(6)(a) already permitted the Minister to refuse to grant a visa to a person if the person did not satisfy the Minister that the person passed the character test. A person did not pass the character test if (among other reasons) there was a risk that the person would represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way: s 501(6)(d)(v).

(2)    Therefore Parliament could not have intended for s 36(1C) to simply replicate s 501.

Question: Should "the danger referred to in s 36(1C) [be] construed to mean a very serious danger"?

The FCA answered those questions as follows:

The remainder of this article is only available to Case Law and Platinum subscribers.

Read our Terms & Conditions and upgrade below:

Monthly Subscriptions

Premium
Basic Content
Premium Content
-
-
$ 29 /month
Subscribe
Case Law
Basic Content
-
Case Law Content
-
$ 49 / month
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 9 / month
$ 69 / month
Subscribe

Annual Subscriptions

Premium
Basic Content
Premium Content
-
Save $ 49 / year
$ 299 / year
Subscribe
Case Law
Basic Content
-
Case Law Content
Save $ 89 / year
$ 499 / year
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 237 / year
$ 699 / year
Subscribe

 

Where GST applies, the above amounts are inclusive of GST.

Content Types

Basic Content includes basic news, some media articles and selected announcements.

Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.

Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.

Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.

If you already have a Case Law or Platinum subscription, click on 'Login' below.