FEDERAL COURT OF AUSTRALIA

BHFC v Minister for Immigration and Border Protection [2014] FCAFC 25

THE COURT ORDERS THAT:

1.    The title of the proceeding is amended so that the name of the first respondent is varied to read Minister for Immigration and Border Protection.

2.    The appeal is dismissed.

3.    The appellant pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

MARSHALL AND PERRY JJ:

1    The appellant appeals from a judgment of the primary judge dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”). The Tribunal had affirmed a decision of a delegate of the respondent Minister to refuse to grant the appellant a Transitional (Permanent) (Class BF) visa (“Class BF visa”). The delegate refused to grant the appellant a Class BF visa because the appellant did not pass the character test contained in s 501 of the Migration Act 1958 (Cth) (“the Act”).

2    The appellant was born in Iran in 1969. His father was apparently a member of the SAVAK (the former Iranian Organisation of National Security and Information) and his mother a prominent Bahai. Both of these groups were subject to persecution following the Iranian Revolution in 1979. The appellant was granted refugee status by the United States of America in 1980. He first entered Australia in October 1991 as the holder of a Tourist visa. He also held a permit to re-enter the United States of America; that permit expired on 17 July 1992. The appellant lodged an application for an Australian Domestic Protection Temporary Entry permit in June 1993. In August 1993, a delegate of the Minister found that the appellant was a person to whom Australia owed protection obligations.

3    On 30 May 1994, the appellant applied for a Protection (Permanent) Entry Permit (817) visa. At that time, he was granted a Bridging visa. As a result of amendments to the legislative scheme, the application lodged in May 1994 was converted on 1 September 1994 to an application for a Class BF visa as described at [1] above.

4    On 21 August 2009, a delegate of the respondent Minister made an adverse decision regarding the appellant’s application for a Class BF visa. This decision was later set aside by the Refugee Review Tribunal. Ultimately, on 7 January 2013, a delegate of the Minister refused to grant the appellant a Class BF visa based on considerations relevant to the character test contained at s 501 of the Act. Pursuant to s 501(1), a Minister may refuse to grant a visa if the applicant for the visa does not pass the character test as defined by s 501(6) of the Act. A person will not pass the character test if he or she has a “substantial criminal record”. Amongst other things, a person will have a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more: see s 501(7)(c). The appellant’s criminal conduct fitted within the description of a substantial criminal record.

5    Even if a person has a substantial criminal record as defined in the Act, the Minister has discretion to grant that person a visa. Under s 499 of the Act, the Minister may issue a written direction dealing with matters relevant to the exercise of that discretion. At the time of the delegate’s decision, the operative direction was “Ministerial Direction No. 55 – Visa refusal and cancellation under s 501” (Direction No. 55), which commenced on 1 September 2012.

6    The appellant sought a review of the delegate’s January 2013 decision before the Tribunal. The Tribunal found that the appellant did not pass the character test. It then considered whether it should exercise its discretion to grant the visa, having regard to the considerations contained in Direction No. 55. It first referred to a primary consideration relevant to the exercise of its discretion, namely, the protection of the Australian community “from criminal or other serious conduct”. The Tribunal had regard to the nature and extent of the appellant’s criminal conduct, including his numerous convictions over several years, and formed the view that this consideration weighed heavily against the granting of the Class BF visa.

7    The Tribunal found that another primary consideration, being Australia’s international non-refoulement obligations to the appellant, favoured granting of the Class BF visa. However, it considered that such obligations were outweighed by the need to protect the Australian community from the appellant. There were no other considerations from Direction No. 55 that weighed in the appellant’s favour.

8    The appellant’s criminal history in Australia spans from January 1996 to September 2010. Before the Tribunal, he submitted that had his 30 May 1994 application for a visa been dealt with expeditiously in 1994, his extensive criminal conduct would not have been relevant, as he would have become an Australian citizen. In response, the Tribunal held that it was bound by Direction No. 55 (specifically, the primary consideration of the protection of the Australian public) to consider the appellant’s substantial criminal record at the time the Tribunal made its decision.

9    The Tribunal found that a refusal of the appellant’s visa application would not have an impact on members of his family who resided in Australia. It observed that he had been incarcerated for much of the time he had been in Australia due to persistent criminal offending. He had few friends and had formed no significant personal relationships. Although submissions made on behalf of the appellant before the Tribunal referred to his ties with his Australian relatives, the Tribunal did not consider his evidence on the topic of sufficient weight to support a grant of the visa.

10    The appellant sought judicial review of the Tribunal’s decision before the primary judge. His Honour rejected that application. He dismissed the appellant’s contention that his offending was not serious. He did so by reference, amongst other matters, to s 501(6)(c) of the Act, given the custodial sentences served by the appellant and their length. His Honour agreed with the Tribunal that it was entitled to have regard to the criminal conduct which occurred up to the date of its decision, despite the delay by the Minister’s department in dealing with the appellant’s application for the Class BF visa.

11    His Honour at [40]-[44] of his reasons also rejected the appellant’s complaints about what the primary judge described as “particular matters”. Those issues concerned, among others, the appellant’s ties with his family members in Australia. His Honour considered that in respect of such matters, no jurisdictional error was disclosed in the reasons of the Tribunal.

12    In his Notice of Appeal from the judgment of the primary judge, the appellant refers to “Migration Act 1958, section 501 visa cancellation” and “Ruling in the High Court of Australia on an Immigration matter in relation to Indefinite Detention”.

13    Counsel for the Minister submitted that the first ground of the appeal should be understood as a contention that the primary judge erred in failing to find jurisdictional error in the Tribunal’s decision. Given that the appellant was not represented by counsel, it was appropriate and proper for counsel for the Minister to so submit. The second ground raises an issue about the effect of ss 189, 196 and 198 of the Act and whether they authorise the continued detention of an unlawful non-citizen as considered by the High Court in Al-Kateb v Godwin (2004) 219 CLR 562 (Al-Kateb).

14    The primary judge was correct in deciding that no jurisdictional error was made by the Tribunal. His Honour’s reasons for so deciding may be succinctly stated given the lack of complicating matters in this appeal. First, the prior convictions of the appellant fit the definition of “substantial criminal record” at s 501(7) of the Act. They include multiple offences for “Serious Criminal Trespass” from 2001 to 2010, in respect of which multiple sentences of in excess of 12 months’ imprisonment occurred. Second, his Honour was correct in affirming the Tribunal’s consideration of criminal conduct which had occurred after the appellant’s 1994 application for the BF visa. To hold otherwise would have meant the Tribunal would have been required to ignore a primary consideration in Direction No. 55, being the protection of the Australian public. The only other basis put on appeal as to the possibility of the Tribunal committing jurisdictional error concerned its rejection of the appellant’s evidence about the sufficiency of his links to Australian family members. As the primary judge noted at [28] of his judgment, the Tribunal found that the refusal of the visa application would have “virtually no impact on the members of [the appellant’s] Australian family”. That issue was a matter of fact for the Tribunal to determine and is not capable of review by this Court. It was also not a primary consideration for the Tribunal to determine under Direction No. 55.

15    The appellant did not raise the issue of his potential indefinite detention in the proceeding below. He is currently being held in Mt Gambier Prison as a consequence of his criminal conduct. He is due to be released on 1 July 2014. He currently holds a Bridging visa which is due to expire on 30 June 2014. Upon the appellant’s release, unless his Bridging visa is extended, he will be an unlawful non-citizen who is liable to be held in detention pending his removal from Australia. That is the effect of Al-Kateb. Nothing in the application before the Tribunal required it to consider the appellant’s indefinite detention as an element of a valid decision (although we do not suggest that it was an error for the Tribunal to do so). The position the appellant finds himself in is a consequence of the fact of the Tribunal’s decision, rather than from any issue decided by the Tribunal. The critical issue before the primary judge was whether jurisdictional error infected the Tribunal’s consideration of the appellant’s application for a review of the delegate’s decision. The possible indefinite detention of the appellant, arising from the result of the Tribunal’s deliberations, was not a matter about which Direction No. 55 required any consideration.

16    The appellant finds himself in an extremely unfortunate situation. Although not technically stateless as was the case for the appellant in Al-Kateb and the respondent in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54, he faces the same consequence of potential indefinite detention as an unlawful non-citizen, pending any “change in international circumstances” (Al-Kateb at 576 [18] per Gleeson CJ). Had he committed his crimes as an Australian citizen, he would have been released from prison after completing his sentence. It would not be inappropriate for the respondent Minister to give active consideration to the appropriateness of the grant of a Bridging visa to the appellant upon his release from prison, with the proviso that he demonstrates a bona fide commitment to his ongoing rehabilitation pending such release.

17     For the foregoing reasons, the appeal must be dismissed with costs.

Associate:

Dated:    24 March 2014

REASONS FOR JUDGMENT

BUCHANAN J:

18    This is an appeal against a judgment and orders of a judge of the Court which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (“the AAT”). The AAT had affirmed a decision made by a delegate of the first respondent to refuse to grant the appellant a Transitional (Permanent) (Class BF) visa. The delegate refused to grant the visa on the grounds that the appellant did not pass the character test referred to in s 501 of the Migration Act 1958 (Cth) (“the Act”).

Factual and procedural background

19    The appellant was born in Iran and, at the time of the judgment under appeal, was 44 years old. In about 1980, when the appellant was about 9 years old he and his parents were granted refugee status in the United States of America. The appellant arrived in Australia on 3 October 1991 on a tourist visa. He applied for a visa to remain in Australia to care for a relative but it was refused. He was, however, granted a temporary entry visa in June 1993 having been recognised as a refugee. He applied for a permanent visa in May 1994. According to a history which was set out by the primary judge, consideration of whether the appellant should be granted a visa took some considerable time.

20    Meanwhile, since arriving in Australia, the appellant received almost 200 convictions. In the period of about 22 years that he has lived in Australia he has been sentenced to approximately 15 years in prison. After various delays which appear to be essentially procedural in nature, on 7 January 2013 a delegate of the first respondent decided that the appellant should not be granted a permanent visa and the bridging visa which had sustained his presence in Australia to that point from 1994 was cancelled by operation of law.

21    The appellant then applied to the AAT for review of the delegate’s decision. In a decision handed down on 25 March 2013 the AAT affirmed the decision of the delegate.

22    The appellant is at present serving a term of imprisonment which will expire on 1 July 2014. He has been granted a bridging visa to coincide with the remainder of his sentence. The bridging visa expires on 30 June 2014. At the expiry of his sentence, therefore, the appellant will be an unlawful non-citizen who has been refused a visa. He will be liable to be taken into immigration detention (s 189 of the Act) and will be subject to a direction that he be removed from Australia as soon as reasonably practicable (s 198 of the Act).

23    The primary judge recorded that it was necessary for the appellant to show jurisdictional error on the part of the AAT in order to succeed. That is because s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (which permits an appeal to this Court on a question of law from the AAT) does not apply to the decision made with respect to the appellant’s visa. That decision is a privative clause decision or a purported privative clause decision (see s 5 and 5E of the Act) and is open to judicial review for jurisdictional error, but not otherwise.

24    The primary judge recorded the appellant’s broad contentions as follows:

32        First, the applicant submitted that his offending was not serious, or did not involve violence to the person, or was at the lower end of the scale. He submitted that the Tribunal overlooked this fact, or did not accord it sufficient weight. Secondly, the applicant submitted that there was inordinate delay by the first respondent in processing his application. He submitted that had there not been such delay, he would not have had a criminal record to be taken into account by the Minister or his delegate, or in the alternative, he would not have been in the position he was because he would have been an Australian citizen by 1997. Finally, the applicant submitted that the Tribunal made various errors of fact and he went through paragraphs of the Tribunal’s reasons seriatim and various documents in the book of documents and made submissions about them.

25    Each of these arguments was rejected by the primary judge for reasons which were set out at [33]-[43] of the judgment (BHFC v Minister for Immigration and Citizenship [2013] FCA 1049).

The present appeal

26    On the appeal, as he had before the primary judge, the appellant represented himself. He was not able to identify any error in the assessment made by the primary judge of his arguments in the proceedings below. The grounds of appeal and the orders sought set out in a handwritten notice of appeal were as follows:

Grounds of Appeal

1.    Migration Act 1958 section 501 Visa Cancellation.

2.    Ruling in the High Court of Australia on an Immigration matter, in relation to Indefinite Detention.

Orders Sought

1.    For the Visa Cancellation to be set aside.

2.    For the Department for Immigration and Citizenship to process and grant me Australian Citizenship.

27    Other than expressing the fact that the appellant desires to be granted permission to remain in Australia and to be at liberty, it is clear that the notice of appeal does not point to any jurisdictional error on the part of the AAT and has not identified any error made by the primary judge.

28    Written submissions filed by the appellant on 3 December 2013 and 29 January 2014 recounted some of the procedural history and repeated the assertions that the appellant’s offences were not serious or violent, that were it not for procedural delays he would have been an Australian citizen by 1997 and that he had been given insufficient credit for his desire to rehabilitate. There was no error made by the primary judge in his assessment of those issues which relate to the merits of the appellant’s application for a visa rather than identifying any jurisdictional error.

The question of indefinite detention

29    One further matter which deserves particular attention is that the appellant has been accepted by the Minister to be a refugee and a person to whom Australia’s non-refoulement obligations under Article 33 of the Refugees Convention apply. The prospect for him, therefore, of a decision to refuse him a visa is that it will not be possible to identify a country to which he might be sent and he will be liable to indefinite detention, without removal.

30    In my respectful view, it is not relevant to speculate that the Minister may grant some other visa to alleviate the appellant’s situation (c.f. MZYYO v Minister for Immigration and Citizenship (2013) 214 FCR 68). Nor is it relevant that a decision to refuse a visa is not, in terms, a decision to remove a person from Australia. The obligation to remove an unlawful non-citizen who has been refused a visa arises from the operation of the Act.

31    Accordingly, despite having lived in this country for over 20 years and been treated in most respects as a lawful resident during that time subject to the laws of Australia, the appellant faces a situation not faced by any Australian citizen when he completes his sentence. He is liable, by reason of the criminal conduct for which he has already been punished, to indefinite deprivation of his liberty.

32    However, this Court is bound to conclude that the prospect of indefinite detention is not foreign to the operation of the Act (see Al-Kateb v Godwin (2004) 219 CLR 562).

33    Moreover, no argument is reasonably available in the present case that the AAT failed to have regard to the very serious consequences for the appellant of refusing a visa. On the contrary, the AAT expressly took into account the fact that the appellant might be exposed to indefinite detention and concluded, nevertheless, at [46], that:

it does not outweigh the seriousness of the long pattern of criminal offending involved in the present matter.

34    In those circumstances, there was no jurisdictional error involved in the assessment of that aspect of the appellant’s circumstances.

35    In my view, the present appeal should be dismissed with costs.

Associate:

Dated:    24 March 2014