FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Buadromo [2012] FCAFC 101

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

THE COURT:

1    The first respondent, Opetaia Buadromo, is a citizen of Fiji. He arrived in Australia on 21 December 1988 at the age of eight and was subsequently granted a permanent resident visa. It was common ground that, as a result of his criminal history, Mr Buadromo failed the character test in s 501(6) of the Migration Act 1958 (Cth) (“the Act”). Mr Buadromo’s criminal history, dating from the age of 13, was substantial and involved sentences to various periods of imprisonment. On 30 September 2011 a delegate of the applicant (“the Minister”) cancelled Mr Buadromo’s visa pursuant to s 501(2) of the Act. On 16 December 2011 the Administrative Appeals Tribunal (“the AAT”) constituted by Deputy President Tamberlin QC set aside the delegate’s decision.

2    The Minister has given a direction, “Direction [No. 41] – Visa refusal and cancellation under s 501” (“Direction 41”), to guide decision makers assessing visa refusal and cancellation under s 501 of the Act. Section 499 of the Act requires the AAT to comply with Ministerial directions of this kind. Direction 41 states that a primary consideration (amongst others) is the length of time a person has been ordinarily resident in Australia prior to engaging in criminal activity.

The issues on the appeal

3    The Minister has challenged the decision of the AAT on the ground that it failed to take into account the length of time Mr Buadromo was resident in Australia prior to engaging in criminal activity. This was a period of five years when Mr Buadromo was between eight and 13 years of age. The error of the AAT is said to be demonstrated by the fact that it failed to address this issue.

The Tribunal’s decision

4    The AAT recorded twice in the earlier part of its reasons for decision, at [2]-[3] and [10], that Mr Buadromo first arrived in Australia at the age of eight years and began engaging in criminal activity from the age of 13 years. In [3] of its reasons, the AAT noted Mr  Buadromo’s criminal record dated from the age of 13 years and then set out his criminal history of offences committed while an adult. Later, in [10] of its reasons, the AAT recorded:

10.    The applicant [Mr Buadromo] was born January 1980 and has lived in Australia since 1988 when he arrived aged eight. Five years after his arrival in Australia at age 13 he first engaged in criminal activity. Some of his offences were committed whilst on parole or bail.

5    The AAT set out early in its reasons the four primary considerations that it was required to take into account under cl 10(1) of Direction 41. These included:

(b)    whether the applicant was a minor when he began living in Australia;

(c)    the length of time that the applicant was ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct.

6    Mr Buadromo represented himself before the AAT. The solicitor for the Minister accepted before the AAT, in relation to primary consideration (b), that the fact that Mr Buadromo had been in Australia for over 20 years “also weighs in his favour, however a discount should be applied for the nine years of that time that he spent in prison and the early time of offending being 13 years”. That was the only relevant oral submission made to the AAT about cll 10(1)(b) and (c). The Minister’s written submissions to the AAT stated that the primary consideration in cl 10(1)(c)“is so significantly discounted, that it should be given negligible weight”. The Minister then submitted that this primary consideration “does not weigh in the Applicant’s [Mr Buadromo’s] favour”. Thus the effect of the Minister’s submission before the AAT was that the primary consideration in cl 10(1)(c) did not assist Mr Buadromo.

7    In its decision and reasons, the AAT extensively considered the issue raised by the first primary consideration referred to in cl 10(1)(a) of Direction 41, namely the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence. Mr Buadromo’s criminal record, the period he spent in incarceration and the reasons for his criminal activity were all matters discussed by the AAT in this context. The AAT concluded that Mr Buadromo did not present any significant risk to the Australian community in the nature of violence saying at [29]:

His conduct appears to have arisen largely because of problems with alcohol and drugs and the peer group with whom he was associated with many years ago.

8    The AAT expressly turned to the other primary considerations in [31] and [32] of its reasons. First, it said that it was clear that Mr Buadromo had been a minor when he began living in Australia and had not been close to attaining adulthood at that time. It referred to the fact that he had spent his formative years here and had substantial ties to Australian culture and community. The AAT found those matters to be in his favour. That was permissible having regard to the second primary consideration identified in cl 10(1)(b) of Direction 41. Secondly, it also observed that Mr Buadromo had been ordinarily resident in Australia for 22 years and had no significant ties to Fiji. It considered these as matters in his favour, but the AAT immediately indicated that it bore in mind that Mr Buadromo had spent a considerable part of that period in incarceration.

The Minister’s argument

9    The Minister accepted before the Full Court that the AAT had taken the primary consideration in cl 10(1)(b) into account because it had acknowledged that Mr Buadromo was a minor when he began living in Australia. However, the Minister contended the AAT did not mention at this point in its reasons that Mr Buadromo had been ordinarily resident in Australia for only 5 years before he first started engaging in criminal activity. The Minister asserted that it followed that the AAT did not have regard to the primary consideration in cl 10(1)(c).

Consideration

10    The Minister’s argument must be rejected. First, after its discussion of the primary consideration in cl 10(1)(a), the AAT stated that it was turning to consider the other primary considerations. That could only have been a reference to cll 10(1)(b) and (c), since the AAT said that cl 10(1)(d) was not relevant in the present case as Mr Buadromo had no children and was not a refugee. Secondly, the AAT had twice stated in the earlier part of its reasons that Mr Buadromo arrived here at the age of eight and began his criminal activity at the age of 13. It is difficult to think that the AAT needed to say this a third time when evaluating the relationship between Mr Buadromo’s time in this country and the commencement of his offending. Thirdly, the AAT expressly recorded that it was required to take into account the primary consideration in cl 10(1)(c).

11    We can see little support in the decision of the AAT for any suggestion that this primary consideration was taken into account in Mr Buadromo’s favour. While the AAT did take into account the overall length of time Mr Buadromo had spent in Australia, it immediately noted that Mr Buadromo had spent a considerable part of that time in incarceration. Indeed, if the primary consideration had been taken into account in favour of Mr Buadromo, then that assessment of the merits would be beyond review, as the Minister accepted. Rather the complaint of the Minister now is that the primary consideration was not taken into account at all. However, it is far from clear what significance, beyond bare jurisdictional error, would follow if this submission were correct.

12    There is no reason, in our view, to think that the AAT gave this primary consideration any weight in favour of Mr Buadromo. Further, we are not satisfied that the AAT failed to take the primary consideration in cl 10(1)(c) into account at all or did not consider it. Indeed, it appears to us from a fair reading of the whole of the decision that the contrary is the case.

13    In our opinion, given that the AAT had twice set out earlier in its reasons that Mr Buadromo had commenced engaging in criminal activity at the age of 13, there is no reason to think that it was unmindful of this factor or that it concluded that the period of five years before criminal activity commenced independently counted in Mr Buadromo’s favour. Clearly, on the whole of the AAT’s decision and reasons, it did not.

14    Furthermore, it is important to appreciate the purpose which lies behind the primary consideration in cl 10(1)(c). It is not concerned with a mechanical comparison of periods of time or any simplistic calculation based on such a comparison. Clause 10.3(1) amplifies how cl 10(1)(c) could be assessed in particular situations as follows:

10.3    The length of time that a person has been ordinarily resident

(1)    Reflecting the fact that the longer a period of residence in Australia the greater likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.

Note:    For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.”

15    Here the AAT specifically addressed Mr Buadromo’s ties to both Australia and Fiji. It noted that he had spent his formative years here. Mr Buadromo could be given more favourable consideration for the purposes of cll 10(1)(c) and 10.3(1) the longer he had been in Australia before committing his first crime. Although it appears that he was given no such credit in the present case, the AAT could weigh in his favour the fact that he had spent his formative years here and had established ties here under either cl 10(1)(b) or generally. We see no indication that the AAT gave Mr Buadromo any credit by reference to the primary consideration in cl 10(1)(c). Nor do we see any indication in the AAT’s reasons that this primary consideration was overlooked.

16    The AAT was entitled to give such weight as it saw fit to matters that it was bound to take into account as primary considerations. The Court cannot review the merits of the reasoning process engaged in by an administrative decision maker. In proceedings for judicial review such as this, the Court must consider whether the tribunal has arrived at its decision in accordance with the applicable law and any procedural requirements: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33]-[36] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. Here, the AAT was aware of the five year period of Mr Buadromo’s youthful residence before he engaged in criminal activity and it said that it considered the primary consideration in cl 10(1)(c) in respect of him.

17    The question here is whether, on judicial review, the Tribunal has been shown not to have taken into account the primary consideration in cl 10(1)(c). The Court should not too readily draw an inference that, where the reasons are otherwise comprehensive and an issue has at least been identified at some point, it has nonetheless not been addressed: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641 [47] per French, Sackville and Hely JJ. Their Honours said that, in such a case, it may be unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which the contention rests that has been rejected. Similarly, as Fox, McGregor and Morling JJ said in Steed v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 126 at 127:

It is a mistake to conclude simply from the fact that a judge or Tribunal does not refer, or does not refer in detail, to some particular aspect of the case that it has escaped his attention.

18    In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 Brennan CJ, Toohey, McHugh and Gummow JJ observed:

… 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.

19    The AAT appears to have evaluated the primary consideration in cl 10(1)(c) as not counting one way or the other in the scales. Such an evaluation would reflect, as the AAT’s reasons suggest it did reflect, an assessment of the merits of the application by taking the primary consideration into account but treating it as of no weight in the circumstances. There would be no error affecting the AAT’s exercise of its power by doing so, since the consideration would not have counted one way or the other in its evaluation.

20    In our view it has not been demonstrated that the AAT failed to take into account a relevant consideration, or that any more detailed discussion of the issue under cl 10(1)(c) might possibly have changed the conclusion which the AAT reached. A direction that something be regarded as a primary consideration does not convey the necessity that it be significant in the particular circumstances of an individual case. The AAT had clearly in mind the primary consideration in cl 10(1)(c) created by Direction 41. It is equally clear that this particular issue was not a matter which required any greater specific discussion than the AAT gave it, in the circumstances of the present case.

Conclusion

21    For these reasons, the appeal fails and should be dismissed with costs.

Associate:

Dated:    13 July 2012