FEDERAL COURT OF AUSTRALIA

Brown v Minister for Immigration and Border Protection [2015] FCAFC 141 

Citation:	Brown v Minister for Immigration and Border Protection [2015] FCAFC 141	
		
Appeal from:	Brown v Minister for Immigration and Border Protection [2015] FCA 75	
		
Parties:	DAVID CHARLES BROWN v MINISTER FOR IMMIGRATION AND BORDER PROTECTION	
		
File number:	NSD 169 of 2015	
		
Judges:	RARES, FLICK AND PERRY JJ	
		
Date of judgment:	24 September 2015	
		
Catchwords:	MIGRATION – appeal from decision of Federal Court of Australia dismissing application for judicial review of Minister’s personal decision to cancel appellant’s visa under s 501(2) of the Migration Act 1958 (Cth) – where appellant had substantial criminal record as a result of conviction of shooting with intent to murder – where Minister found risk of reoffending was low, but great harm attached to that low risk should the appellant reoffend – whether Minister failed to give proper consideration to the best interests of the minor children as a primary consideration or to the risk to the Australian community posed by the appellant if visa not cancelled 	
		
Legislation:	Migration Act 1958 (Cth) ss 30, 34, 499, 501

Direction No. 41 – Visa Refusal and Cancellation under s 501 
Direction No. 55 – Visa Refusal and Cancellation under s 501 	
		
Cases cited:	Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164
Minister For Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Moana v Minister for Immigration and Border Protection [2015] FCAFC 54
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1
Perez v Minister for Immigration and Multicultural Affairs [2002] FCA 450; (2002) 119 FCR 454
Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424
Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133

Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)  	
		
Date of hearing:	17 August 2015	
		
Place:	Sydney	
		
Division:	GENERAL DIVISION	
		
Category:	Catchwords	
		
Number of paragraphs:	47	
		
Counsel for the Appellant:	Mr C Jackson	
		
Counsel for the Respondent:	Mr S Lloyd SC with Mr D Hume	
		
Solicitor for the Respondent:	Sparke Helmore Lawyers	

IN THE FEDERAL COURT OF AUSTRALIA		
NEW SOUTH WALES DISTRICT REGISTRY		
GENERAL DIVISION	NSD 169 of 2015	

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA	

BETWEEN:	DAVID CHARLES BROWN
Appellant
	
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent

JUDGES:	RARES, FLICK AND PERRY JJ	
DATE OF ORDER:	24 September 2015	
WHERE MADE:	SYDNEY	

THE COURT ORDERS THAT:

1.	The appeal be dismissed.
2.	The appellant pay the costs of the respondent. 

Note:	Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA		
NEW SOUTH WALES DISTRICT REGISTRY		
GENERAL DIVISION	NSD 169 of 2015	

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA	

BETWEEN:	DAVID CHARLES BROWN
Appellant
	
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent

JUDGES:	RARES, FLICK AND PERRY JJ	
DATE:	24 September 2015	
PLACE:	SYDNEY	

REASONS FOR JUDGMENT
THE COURT
1.	INTRODUCTION
1		On 30 May 2014, the respondent Minister cancelled the appellant’s visa under s 501(2) of the Migration Act 1958 (Cth) (the Act).  The primary judge refused the appellant’s application for judicial review of the Minister’s decision.  
2		While the Minister’s decision was challenged on five grounds before the primary judge, only one of those grounds is pursued on the appeal, together with a new ground of alleged jurisdictional error.  Specifically, pursuant to leave granted by consent to amend the notice of appeal and raise the new ground, the issues on appeal are:
(1)	whether her Honour erred in failing to hold that the Minister did not accord procedural fairness to the appellant because he failed to warn the appellant that he would not give genuine, proper and realistic consideration to the best interests of the appellant’s  minor children as a primary consideration; and
(2)	whether, as is now alleged, the Minister failed to take into account a mandatory relevant consideration, being the risk to the Australian community posed by the appellant in the event that his visa was not cancelled.
3		The Minister, however, submits that even assuming that he was subject to a duty to warn of the kind alleged by the appellant or required to take into account the risk to the Australian community posed by the appellant, the Minister gave proper consideration to both matters.  The appellant’s challenge is, in the Minister’s submission, in substance a challenge to the merits of the Minister’s decision which this Court has no capacity to review. 
4		For the reasons set out below, we agree that these matters were properly considered by the Minister and the appeal must be dismissed.  
2.	BACKGROUND
2.1	The appellant
5		The appellant is a citizen of the United Kingdom.  He arrived in Australia at the age of two with his parents and siblings as approved migrants on 12 March 1968.  
6		It was not in dispute that from 1 September 1994, the appellant held the visa deemed to be granted to him under the Migration Reform (Transitional Provisions) Regulations, being a Class BF Transitional (Permanent) visa (the visa) which gave him permission to remain in Australia indefinitely (s 30 of the Act).  In addition, he was recognised by the Department of Immigration and Citizenship (as the Department was then known) as having been the holder of an Absorbed Person visa (s 34 of the Act).  It was accepted below that, while considered to be a member of the Australian community, permission for the holder of an Absorbed Person visa to remain in Australia continues to be regulated by the Act (reasons below at [3]).  Nor was it in dispute that the appellant is married to an Australian citizen with whom he has a daughter and stepdaughter who were aged 10 and 13 respectively at the date of trial (the minor children).  Both children are Australian citizens and dependents of the appellant.  In addition, the Minister accepted that the appellant has two children from a previous relationship aged 25 and 23, and is the stepfather to two other children aged 20 and 22, all of whom are also Australian citizens.  
2.2	The procedural steps leading to the Minister’s decision
7		On 18 October 2006, the appellant was sentenced to 15 years imprisonment for the offence of shooting with intent to murder.  The sentencing judge found that the crime was “a cold-blooded assassination attempt pre-planned by the offenders who were each armed, and the victim was so seriously injured that he required five operations to save his life, and whilst he is recovering, he is still being treated for the effects of his having been shot.”  The sentencing judge also noted that the jury had found that the appellant had fired the shot which seriously wounded the victim.  However, while the sentencing judge was not prepared to say that the appellant was unlikely to reoffend, his Honour considered that the appellant had good prospects of rehabilitation. 
8		On 5 April 2012, the Department sent the appellant a notice of intention to consider the cancellation of his visa under s 501(2) of the Act on the ground that he appeared to have a “substantial criminal record” and advised that, before a decision was made, the appellant would have the opportunity to comment and to submit further information (reasons below at [12]).  The notice further stated that “it is in your interest to provide any information of relevance that we may not have”, giving examples of appropriate information including statements from family members, welfare officers and the like.  The notice enclosed a copy of Direction No. 41 – Visa Refusal and Cancellation under s 501 (Direction 41) made under s 499 of the Act and then in force (reasons below at [13]).  
9		The appellant responded to that notice and other opportunities to comment on further information provided by the Department over a lengthy period, including by providing various documents directly and through his wife (reasons below at [14]-[39]).  In addition, the appellant was interviewed on 7 January 2013 and 22 January 2014 (reasons below at [31] and [34]).  The Department also made contact with the appellant’s wife on 7 January 2014 with the appellant’s agreement (reasons below at [27]).  
10		While Direction 41 was revoked with effect from 1 September 2012 by Direction No. 55 – Visa Refusal and Cancellation under s 501 (Direction 55) (which took effect from that day), it was not until 7 January 2014 that the Department wrote to the appellant enclosing Direction 55.  The covering letter advised him to read Direction 55 carefully and to address each paragraph in Part A of the Direction which was relevant to him (reasons below at [29]).  Direction 55 relevantly provides that a decision-maker must take into account primary considerations including protection of the Australian community from criminal or other serious conduct and the best interests of minor children in Australia.  However, the letter also pointed out that only where the decision-maker was a delegate of the Minister must she or he follow Direction 55.  If the Minister made the decision personally, he was not required to give consideration to the Direction although, the letter explained, it provided a broad indication of the types of issues that the Minister may take into account.  The appellant responded to that letter on 23 January 2015.  In his response, the appellant submitted among other things that he did not believe that he represented any risk of harm to the community and that it would not be in the best interests of his children if he were to be deported (reasons below at [35]-[36]).  
2.3	The Minister’s decision
11		At the time of the Minister’s decision, s 501(2) of the Act provided that the Minister “may” cancel a visa granted to a person if:
(a)	the Minister reasonably suspects that the person does not pass the character test; and
(b)	the person does not satisfy the Minister that the person passes the character test.
12		Section 501(6)(a) provides that a person does not pass the character test where, among other things, “the person has a substantial criminal record (as defined by subsection (7))”.  A substantial criminal record includes where a person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
13		On 30 May 2014, the Minister made a decision personally under s 501(2) of the Act to cancel the Class BF Transitional (Permanent) visa held by the appellant.  The appellant’s Absorbed Person visa was automatically cancelled as a result, by operation of s 501F(3) of the Act.  The Minister’s statement of reasons was attached to his decision and bears the same date. 
14		The Minister’s decision is recorded at the end of a detailed Departmental submission on the question of whether the appellant’s visa should be cancelled under s 501(2) (the issues paper).  The issues paper attached all of the material sent for comment to, and received from, the appellant or submitted on his behalf, with some of that material being summarised in the submission itself including the sentencing remarks (reasons below at [40]).  It also attached a copy of Direction 55.  It can be inferred that the Minister considered the issues paper and its contents:  Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 at [49] per Flick, Griffiths and Perry JJ.  Furthermore, in his reasons at [35], the Minister stated that he had “considered all relevant matters including (1) an assessment against the character test as defined by s501(6) of the Migration Act 1958, and (2) all other evidence available to me, including evidence provided by, or on behalf of Mr BROWN.”  
15		The information before the Minister and set out in the issues paper addressed among other things the effect of cancelling the appellant’s visa on the interests of his minor children.  These included:
(1)	the appellant’s submission dated 29 January 2015 that he believed it would not be in the best interests of the children if he was deported because his daughters “would lose any possible chance of personal contact with their father who would be on the other side of the world”;  
(2)	letters from the appellant’s wife addressing her and the children’s concerns; and
(3)	letters from his minor children speaking of their close relationship with their father, things they do with him on weekend release, and how devastating it would be to them if their father was deported.
16		The Minister’s reasons for cancelling the visa can be summarised as follows.
17		The Minister found that the appellant had a substantial criminal record as a result of his conviction of the offence of shooting with intent to murder for which he was sentenced to 15 years imprisonment.  The Minister therefore found that he did not pass the character test by virtue of ss 501(6)(a) and 501(7)(c) of the Act and that he had not satisfied the Minister that he passed the character test (Minister’s reasons at [1]-[2]). 
18		Having made those findings and “assessed the information set out in the Issues Paper and attachments”, the Minister turned to consider whether to exercise his discretion to cancel the appellant’s visa (Minister’s reasons at [3]).  In the exercise of that discretion, the Minister stated that he was mindful of the Government’s commitment to using s 501 of the Act to protect the Australian community from harm that may result from criminal activity or other serious conduct by non-citizens (Minister’s reasons at [3]).  The Minister then considered various factors, which may be summarised as follows (adopting the Minister’s subheadings).
(1)	Criminal conduct:‑  the Minister considered the great harm caused by the appellant to his victim, and adopted the sentencing judge’s finding that his offending was objectively very serious (at [8]).  
(2)	Mitigating factors and risk of re-offending:‑ notwithstanding the appellant’s efforts at rehabilitation and the Minister’s finding that the risk of reoffending posed by the appellant was low, the Minister considered that great harm attached to that low risk, should he reoffend (at [13]).
(3)	Ties to Australia:‑  the appellant had long-standing and significant ties to Australia (at [17]).
(4)	Best interests of minor children:‑  The Minister gave primary consideration to the best interests of any minor children and found that the appellant has “a close, paternal relationship” with his two minor children fostered by frequent telephone and personal contact with them, and that the best interests of these children were served by non-cancellation (at [23]).  The Minister also found that, while it was in the best interests of his minor grandchildren and other minor children in his extended family that his visa was not cancelled, any negative effects on their interests were mitigated by their relationships with their own parents or carers (at [24]).
(5)	 Other considerations:‑ The Minister took into account, among other things, that the cancellation of the appellant’s visa would cause significant hardship for his wife and emotional hardship for his adult children and other adult members of his family, extended family and friends (at [26]-[30]). He also took into account (at [31]-[33]) that:
(a)	the appellant had been absent from the United Kingdom for about 46 years since the age of two; 
(b)	he had no living family members or familial support in Northern Ireland; 
(c)	all of his education and employment had been undertaken in Australia; and
(d)	he was likely to experience difficulty establishing himself in the United Kingdom after such a lengthy absence with no private means of support.
19		The Minister concluded that the seriousness of the appellant’s offending and harm which would be caused if it were repeated made even a low risk of further offending unacceptable and in the circumstances, the protection of the Australian community outweighed the other considerations in the appellant’s favour (at [35]-[39]).
2.4	The decision below
20		Her Honour dismissed the application for judicial review.  Relevantly, the primary judge rejected the appellant’s submission that the Minister was bound to apply Direction 55 and held that the Minister’s reasons demonstrate that he had complied with the obligation to give primary consideration to the best interests of the minor children in line with the decision in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.
3.	CONSIDERATION
3.1	Did the Minister consider the best interests of the children?
3.1.1	The basis on which appeal ground 1 was argued on the appeal – applicability of the decision in Teoh
21		With respect to the first ground of appeal, there was no challenge to the primary judge’s finding at [62] that Direction 55 did not bind the Minister where, as here, he made the decision personally:  NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at 4 [6] per Allsop CJ and Katzmann J.  Nor was it suggested that there was an implied statutory requirement that the Minister consider the best interests of the appellant’s minor children as a primary consideration or otherwise.  The case proceeded on the basis that Australia’s entry into the Convention on the Rights of the Child (the Convention) gave rise to a legitimate expectation that the Minister would take the best interests of the child into account as a primary consideration and a failure to warn of an intention to depart from that expectation would therefore constitute a breach of procedural fairness, as the High Court held in Teoh 183 CLR 273.  The Convention was ratified by Australia in 1990 and entered into force here on 16 January 1991:  Teoh 183 CLR at 285; 1577 UNTS 3; [1991] ATS 4.  Relevantly, Art 3.1 of the Convention provides that:
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.

22		In Teoh 183 CLR 273, the Court held that the Panel had taken another consideration into account as “the primary” and therefore the only primary consideration but had failed to warn the applicant in advance that it would adopt this approach: Teoh 183 CLR at 289 and 292 per Mason CJ and Deane J, 302-303 per Toohey J and 305 per Gaudron J.  The decision was therefore held invalid on the ground of a breach of procedural fairness: ibid.
23		The Minister did not accept that Teoh 183 CLR 273 continued to state the law correctly in light of later decisions of the High Court (citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at 20 [61]-[63] and 27-28 [81]-[83] per McHugh and Gummow JJ, 45-48 [140]-[148] per Callinan J;  Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; (2012) 246 CLR 636 at 658 [65] per Gummow, Hayne, Crennan and Bell JJ).  Nonetheless, the Minister did not seek to raise this issue here because of concessions made by him below as to the applicability of the decision in Teoh 183 CLR 273.  In any event, it is unnecessary to consider whether Teoh 183 CLR 273 remains binding on us in light of later authorities because the Minister plainly had regard to the interests of the children as a primary consideration in any event as her Honour held.   
3.1.2	Did the Minister in fact have regard to the best interests of the minor children as a primary consideration?
24		Counsel for the appellant submitted that in order to determine whether the Minister had regard to the best interests of the appellant’s minor children, it was necessary to look to the substance of his reasoning process.  It was not sufficient, in the appellant’s submission, for the Minister merely to reach a conclusion as to whether or not the best interests of the children were better served by not cancelling the visa.  Rather, he submitted that the Minister had to consider the consequences for the children of cancelling the visa.  
25		In this case, the appellant submitted, the Minister had failed to undertake that task.  The appellant accepted that the Minister had made findings about the nature and intensity of the current relationship between the appellant and his children, including that it was a paternal relationship.  However, he submitted that the Minister’s error lay in his failure to consider the impact of cancellation on the children looking forward.  In particular, while accepting that they were illustrative only, the appellant submitted that the Minister’s reasons did not suggest that the Minister had considered the types of considerations identified by Allsop J (as his Honour then was) in Perez v Minister for Immigration and Multicultural Affairs [2002] FCA 450; (2002) 119 FCR 454 at 486 [118], being “considerations in respect of their human development – their health, including their psychological health and happiness, their social and educational development as balanced, nurtured young citizens of this country.”  Those impacts were, the appellant submitted, the physical breakup of the family and significant emotional hardship which this would cause as was evident from the expressions of distress that the removal of the appellant would have on his minor children and on his wife who would be left to bring up the children on her own.  The appellant did not, however, point to any representations of any special or unusual consequences which the Minister had failed to take into account, such as might be the case where a child has special needs.  In so saying, we do not intend to undervalue the extent of hardship which the Minister’s decision may nonetheless cause to the children.
26		Counsel for the appellant illustrated the point further by contrasting the Minister’s findings in the case of the appellant’s other family relationships where the Minister had expressly considered the likely impact, looking forward, of cancelling the appellant’s visa on them, when finding that his removal is likely to cause them emotional hardship.  
27		Notwithstanding the appellant’s careful submissions, in our view they cannot be upheld.
28		First, it is important to stress that in Teoh 183 CLR 273 at 289, Mason CJ and Deane J held only that the legitimate expectation, in line with the terms of Art 3.1 of the Convention, was that the best interests of the child would be “a primary consideration”.  As their Honours continued, “[t]he 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” (emphasis in the original).  As such, in those cases where Art 3.1 falls to be considered, it does not itself dictate the outcome of the exercise of discretion:  see also Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133 at 141-143 [31]-[34] per Branson, North and Stone JJ.
29		Secondly, as earlier explained, the appellant was given Direction 55 and the opportunity to make submissions including on the primary and other considerations identified in that direction. 
30		Thirdly, it is apparent from the Minister’s reasons that he did in fact have regard to the consequences of cancelling the visa upon the children’s interests in considering where their best interests lay and gave primary consideration to their best interests.  The relevant passages in the Minister’s reasons were as follows:
18.	I gave primary consideration to the best interests of any children who are less than 18 years of age and whose best interests may be significantly affected by cancellation of Mr BROWN’s visa.

19.	Mr BROWN has two minor daughters in Australia, one of whom is his biological child.  Both are Australian citizens who live with Mr BROWN’s wife….  Mr BROWN’s biological daughter… is aged nine.  His step-daughter… is aged 12.

20.	Mr BROWN claimed to have daily contact with his daughters, by telephone, from prison, and provided evidence of his very frequent telephone calls to the home of his wife and minor children, and of the regular and frequent visits made by [his daughter and step-daughter] to prison.  Since mid-2013, Mr BROWN has accessed weekend leave to stay with his family, including his minor daughters.

21.	Each girl has written letters in support of the non-cancellation of Mr BROWN’s visa.  Mr BROWN and his wife both submit that cancellation of his visa will be detrimental to his minor children.  Mr BROWN submits that cancellation of his visa will result in his separation from his daughters, and Ms Brown appears to confirm this advice.

22.	Mr BROWN entered custody prior to [his daughter’s] birth and shortly before [his stepdaughter’s] third birthday.  Since this time, it appears the girls have been cared for by their mother and have not had a parental-type relationship with any adult other than Ms Brown and Mr BROWN.

23.	I accept that, despite his lengthy period of imprisonment, Mr BROWN has a close, paternal relationship with [his daughter and stepdaughter], which has been fostered through his frequent telephone and personal contact with each girl.  I found that the best interests of [his daughter and stepdaughter] are served by the non-cancellation of Mr BROWN’s visa.

31		On a plain reading of these passages, the Minister’s finding in favour of the appellant that it would not be in his minor children’s best interests to cancel his visa was underpinned by the fact that, upon his removal from Australia, he would be unable to maintain frequent personal contact with his minor daughters and this was likely to impact adversely on his relationship with them.  So much is apparent from the juxtaposition of the two sentences at [23] of the Minister’s reasons.  Nor, given the finding that the appellant’s relationship with his daughters is a close paternal relationship, could it reasonably be suggested that the Minister did not recognise the significant emotional impact upon them which would flow from their father’s removal.  In this regard, the Minister earlier accepted in his reasons that the minor children’s interests may be “significantly” affected (at [18]).   
32		This understanding of the Minister’s reasons is reinforced by the fact that the issues paper detailed the impacts on the minor children which, after setting out extracts from correspondence evidencing the minor children’s distress at the prospect of their father’s removal, concluded at [69] that:
Notwithstanding his lengthy period of imprisonment, it appears Mr BROWN has a close, paternal relationship with [his minor children] which has been fostered through his frequent telephone and personal contact with each girl. He submits that his removal will cause “extreme pain and suffering” to all people involved… It is open to you to find that the best interests of [his minor children] are served by the non-cancellation of Mr BROWN’s visa.
33		It will also be recalled that the Minister explained in his statement of reasons that he had regard to all of the evidence available to him.  This included the correspondence from the children and the appellant’s wife:  see above at [15]. 
34		It follows that the appellant’s reliance upon the decision in Perez 119 FCR 454 is, with respect, misplaced.  There, the applicant sought judicial review of a decision refusing to revoke a decision to detain him in immigration detention shortly before he completed his last prison sentence in circumstances where it was not known when he could be deported.  Allsop J upheld the challenge to that decision on the basis that the Minister’s delegate had failed to take into account the best interests of the applicant’s children as a primary consideration, applying the decision in Teoh 183 CLR 273.  However, in that case the delegate did not state that he had taken the children’s interests into account as a primary consideration (Perez 119 FCR at 486 [118]-[119]).  Nor was there anything in the reasons which displayed an appreciation by the delegate of the kinds of considerations relevant to minor children which form their best interests (Perez 119 FCR at 486 [118]-[119]; see also at 476 [82]).  It was for these reasons that Allsop J found that the delegate’s decision fell short of what Teoh 183 CLR 273 required (119 FCR at 486 [121]).  By contrast, in this case the Minister expressly found that the best interests of the children were served by non-cancellation, turned his mind to the relevant evidence, and stated that he took those interests into account as a primary consideration.  
35		This analysis reveals that, ultimately, as the primary judge held, the appellant seeks to take issue with the weight given to the best interests of the minor children over other considerations rather than the process by which the Minister arrived at his conclusions:  Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at 176 [33] and 177 [36] per French CJ, Gummow, Hayne, Kiefel, Heydon, Crennan and Bell JJ.  In this regard, the limited role of the courts on judicial review must again be stressed.  As Brennan J said in Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 36:
The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. 

36		The repository of the relevant power, being the power to cancel the appellant’s visa, is the Minister and the Minister alone.  This Court’s role is confined to determining whether the decision was made according to law.  It follows, as Mason J observed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 48, that a mere preference for a different result where reasonable minds may differ as to the exercise of a discretion is not sufficient to reveal error:  see also SZJSS 243 CLR at 174 [23] and 177 [35]. 
3.2	Did the Minister properly consider the question of the risk of reoffending
3.2.1	Was the Minister under an obligation to consider the risk of re-offending?
37		As the Full Court observed in Ayoub [2015] FCAFC 83 at [33], different views have been expressed by judges of this Court as to whether the risk of harm to the Australian community is a mandatory relevant consideration and explained the relevant authorities at [34]-[38].  There the Court (at [37]) expressed reservations about the concern raised by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at 450 [123] as to the appropriateness of incorporating the risk of harm to the Australian community as “an integral aspect of the exercise of the power in s 501(2)”, despite the majority of the Court in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 following this aspect of Tanielu:  see also Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132 at [22]-[23] per Allsop CJ, Flick and Griffiths JJ.  
38		The Minister did not contend that Moana [2015] FCAFC 54 was wrongly decided but formally reserved his position.  Given that this appeal could not succeed on this ground, even if the risk of harm was a relevant consideration to which the Minister had to have regard, it is unnecessary to resolve the tension in the authorities here. 
3.2.2	Did the Minister consider the risks of re-offending?
39		The appellant’s arguments on the second ground were similar to those on his first.  The appellant submitted that the Minister had failed to deal with the question of risk properly because he had not considered matters such as the kind of offence which the appellant might commit and or evaluated the extent of such a risk.  
40		This submission must be rejected.
41		First, even if the Minister had a duty to consider the risk of harm to the Australian community, he had no duty to evaluate that risk in any particular way or to ascribe any particular characterisation to the quality of the risk:  Moana [2015] FCAFC 56 at [71]; Ayoub [2015] FCAFC 83 at [44]. 
42		Secondly, the question of whether the Minister properly addressed the factor of risk and properly took that into account in the context of the other matters set out in his reasons turns on a consideration of the Minister’s reasons by reference to the facts of the particular case.  The Court must keep in mind that those reasons should not be construed with “an eye keenly attuned to the perception of error”:  Minister For Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ.  In this regard, the Court cautioned in Ayoub [2015] FCAFC 83 at [45]-[46] that:
In some cases a failure on the part of a Minister to do more than simply refer to there being a “risk” may evidence a failure properly to take that factor into account.  A mere reference in passing to the prospect of there being a “risk” may not be sufficient for a conclusion to be reached on an application for judicial review that that factor was properly taken into account, assuming that there was a legal duty to take the factor into account. 

Mere advertence to a matter required to be taken into consideration may not be sufficient to establish that it has been properly considered: cf. Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113 at [100], (2011) 179 LGERA 458 at 478 per Cowdroy J.  The serious consequences confronted by an individual who has had a visa cancelled pursuant to s 501 may well require, in an appropriate case, such a conclusion being reached.  Even a ritualistic incantation of a risk being, for example, an “unacceptable risk” or a “grave and serious risk”, may not be sufficient to clothe a statement of reasons with impunity.
 
43		Bearing these matters in mind, in our opinion the reasons of the Minister did not reveal that he failed to give proper consideration to the question of risk of harm to the Australian community.  The Minister considered the question of risk of re-offending and mitigating factors in the following passages:
9.	I had regard to information presented as factors relevant to Mr BROWN’s offending, including his childhood experiences, his drug use and Mr BROWN’s own reference to peer pressure and intimidation by fellow motorcycle club members.

10.	When he was sentenced in 2006, it was noted that, consistent with his plea of not guilty, there had been no expression of remorse by Mr BROWN.  Mr BROWN has since acknowledged his offending conduct and its effects, and has expressed remorse for his offending.  I accept that he is now genuinely remorseful for his conduct.

11.	Mr BROWN claims to be rehabilitated.  Objective evidence indicates that he has undertaken rehabilitation and varied vocational training in custody.  Since 2006, he has not returned a positive drug test nor been the subject of a prison incident.  He is described as compliant with centre routine.  Mr BROWN has a very good employment history and has received excellent work reports.  His security classifications were reduced in 2012 and 2013, in order for him to perform work outside the centre and to participate in weekend leave.  Mr BROWN has had the strong the [sic] support of his family members throughout his incarceration.

12.	When Mr BROWN was sentenced in 2006, His Honour regarded Mr BROWN as a good prospect for rehabilitation.  However, he was “not prepared to say that [Mr BROWN] was unlikely to offend again”.  The department received advice, in early 2012, that Mr BROWN had been assessed as posing a low to medium risk of re-offending.  I consider that Mr BROWN has continued his efforts at rehabilitation, since this assessment.

13.	However, if Mr BROWN were to re-offend by committing a serious, violent offence with the intent to murder, the consequences of his offending are likely to be grave.  While I found that the risk of re-offending posed by Mr BROWN is low, I found that great harm is attached to this low risk, should he re-offend.

44		The Minister then weighed these matters against the other matters on which he had earlier made findings, including the best interests of the children, under the heading “Conclusion” to reach his decision as follows:
36.	Mr BROWN’s offending is contrary to the expectation of the Australian community that visa holders respect and abide by Australian laws, values and standards.  A non-citizen who has committed a serious, violent offence should generally expect to forfeit the privilege of remaining in Australia.

37.	I formed the view that Mr BROWN poses an unacceptable risk of harm to the Australian community.  He caused serious harm to his victim, who required five, life-saving surgical operations.  If Mr BROWN were to re-offend by committing further, serious, violent offences, the effect upon his victim or victims could be grave.

38.	I found that Mr BROWN still poses some risk of re-offending.  While I accept that Mr BROWN has participated in rehabilitation and other activities to reduce his risk of re-offending, the seriousness of his offending, and the harm that would be caused if it were to be repeated, makes even a low risk of further offending unacceptable.

39.	I concluded that the protection of the Australian community outweighed Mr BROWN’s remorse and rehabilitation to date, the best interests of his minor daughters and other minor family members, his strong ties to the Australian community, and any hardship he and his adult family members in Australia would experience if his visa is cancelled.
 
45		In short, while the Minister accepted that the appellant had continued his efforts of rehabilitation and that the risk of re-offending was low, he considered that the gravity of the harm were he to re-offend outweighed these and other considerations in the appellant’s favour and that such a risk was unacceptable.  
46		In our opinion, that conclusion was open to the Minister on the material before him.  Indeed, when pressed as to precisely what more the Minister should have done, the appellant was unable to identify anything further.  
4.	CONCLUSION
47		The appeal must be dismissed and the appellant should be ordered to pay the Minister’s costs. 

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Rares, Flick and Perry.	

Associate:  
Dated:	24 September 2015