FEDERAL COURT OF AUSTRALIA
Minister for Home Affairs v HSKJ [2018] FCAFC 217
ORDERS
Appellant | ||
AND: | First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: | 4 December 2018 |
THE COURT ORDERS THAT:
2. The Notice of Contention is upheld.
3. The orders of the primary judge not be disturbed, save as to costs.
4. The First Respondent pay the Appellant’s costs of the hearing before the primary judge and the costs of the appeal up until 30 October 2018, being the filing date of the Notice of Contention, to be assessed if not agreed.
5. The Appellant pay three quarters of the First Respondent’s costs of the Notice of Contention, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
1. INTRODUCTION
1 The respondent is a citizen of Iraq who came to Australia in 2010 and was granted a Class XB Subclass 200 (Refugee) visa. Over the 5 years from June 2011 he was convicted in the District Court of Western Australia of a number of criminal offences including burglary, reckless and dangerous driving, impersonating a public officer, assault, and possession of prohibited drugs with the intent to sell or supply. He was sentenced to imprisonment in excess of 12 months. On 9 February 2017 the respondent’s visa was cancelled by a delegate of the Minister for Immigration and Border Protection pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Act) because it was found that he did not pass the character test by reason of his substantial criminal record, and because he was serving a term of imprisonment against a crime of the Commonwealth or a State. It was a mandatory cancellation.
2 The respondent made representations to the Minister as invited under s 501CA(3)(b), seeking revocation of the mandatory visa cancellation decision, and in July 2017 a delegate of the Minister decided not to revoke the visa cancellation decision under s 501CA(4). In August 2017, the respondent lodged an application with the Administrative Appeals Tribunal for review of the delegate’s decision. The Tribunal conducted a hearing and delivered its reasons in October 2017, affirming the s 501 decision under review; HSKJ and Minister for Immigration and Border Protection [2017] AATA 1802.
3 The respondent then applied pursuant to s 476A(1)(b) of the Act for judicial review of the decision of the Tribunal. In a decision handed down on 6 July 2018 the learned primary judge ordered that the decision of the Tribunal be set aside and the matter remitted to the Tribunal for reconsideration according to law; HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013. In summary, the primary judge found error in the application by the Tribunal of Ministerial Direction 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65), which divides the exercise of the discretion under s 501CA into two categories; “primary” considerations and “other” considerations. In making its decision, the Tribunal referred to “other” considerations as “secondary” considerations. The primary judge considered at [41] that, in context, this reflected error because the Tribunal proceeded on the basis that “other” considerations must always be approached from the starting point that they were secondary considerations, and therefore to be afforded lesser weight than the “primary” considerations.
4 In reaching her conclusion, the primary judge considered that the reasons of Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, which addressed the same point, were not clearly wrong and adopted them.
5 The Minister appeals from the decision of the primary judge on the following 4 grounds:
(1) That the Court erred in finding (at [38] and [44]) that the Tribunal had treated the “secondary” considerations as considerations which could not be afforded equal or greater weight than the “primary” considerations.
(2) That the Court erred in finding (at [38] and [41]) that the Tribunal approached its task on the basis that Direction 65 required it to treat the considerations identified in Direction 65 as “other considerations” as being invariably given less weight than considerations identified as “primary considerations” in Direction 65.
(3) That the Court erred to the extent that it found (at [38] and [41]) that the Tribunal could not validly proceed from the “starting point” that “other considerations” were generally to be given less weight than “primary considerations”.
(4) That the Court erred to the extent that it held (at [42]) that Direction 65 cannot validly create or does not create a “hierarchy” of considerations to be regarded in the manner described by Direction 65.
6 The Minister was represented by Mr Lloyd SC and Mr Hume of Counsel, who filed written submissions in advance of the hearing. The respondent was not legally represented before the primary judge or the Tribunal. However, the Court issued a referral certificate on 28 September 2018 and shortly before the hearing of the appeal Mr Crowley of Counsel and his instructing solicitors agreed to represent him pro bono, for which the Court is grateful.
7 The respondent filed written submissions in advance of the hearing and also a Notice of Contention, which in its final form contended that the Tribunal’s decision was vitiated by jurisdictional error in its construction or application of paragraph 14.2(1)(b) of Direction 65 in that first, the Tribunal did not consider the impact on the Respondent’s Australian resident sister, or did not give proper, genuine or realistic consideration to the impact of non-revocation on that sister. Secondly, that the Tribunal proceeded from a false premise that both of the respondent’s sisters were in Australia, for which there was no foundation in the evidence, or did not give proper, genuine or realistic consideration to whether both sisters were resident in Australia or the United States.
8 For the reasons set out more fully below, we consider that both the appeal and the notice of contention should be upheld, with the consequence that the orders made by the learned primary judge should not be disturbed.
2. DIRECTION 65
9 Direction 65 is a binding direction given under s 499(1) of the Act. Its substantive provisions commence with a “Preamble” that first indicates that the objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens, and then explains aspects of s 501 of the Act. In paragraph 6.1(4) it explains that the purpose of the Direction is, amongst other things, to guide decision-makers performing functions or exercising powers under s 501 to revoke a mandatory cancellation under s 501CA of the Act. It explains in paragraph 6.2 that the principles set out in the Direction are “of critical importance” to furthering the objective of protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles are then identified in paragraph 6.3:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
...
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
10 Direction 65 states in paragraph 7 that, informed by the principles in paragraph 6.3, a decision-maker must take into account the considerations identified in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
11 Paragraph 8 then relevantly states:
8. Taking the relevant considerations in account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. ...
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of the visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
12 Part C is entitled “Primary considerations – revocation requests” and provides in paragraph 13 (2) that in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
13 Direction 65 provides guidance in the remainder of paragraph 13 as to the relevant factors to take into account in relation to each of these primary considerations. The direction then identifies “other considerations” as follows:
14. Other considerations - revocation requests
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties;
(c) Impact on Australian business interests;
(d) Impact on victims;
(e) Extent of impediments if removed.
14 The Direction then expands on relevant factors for consideration in relation to each of these matters.
3. THE TRIBUNAL’S DECISION
15 The Tribunal first determined that the respondent did not pass the character test and was liable for mandatory cancellation of his visa. It then turned to consider whether, within s 501CA(4), it was satisfied that there was “another reason” why the original decision should be revoked. In that respect the Tribunal observed at [28] that it was bound to comply with Direction 65, and went on to refer to its contents.
16 The Tribunal next addressed the three primary considerations and the other considerations that it took into account. We gratefully adopt the learned primary judge’s succinct summary of the Tribunal’s reasons as follows:
15 As to protection of the Australian community, the Tribunal considered the applicant's claims in detail and concluded:
(a) taking into account the nature of his offences, the sentences imposed, the comments of the sentencing judges and the specific guidance and principles of Direction 65, the nature and seriousness of the applicant's conduct is a significant consideration that weighs heavily against revocation of the decision to cancel the visa;
(b) the cumulative effect of his offending over a lengthy period of time and the seriousness of his offending weighs heavily against revocation of the decision and evidences a degree of recklessness towards the well-being of the Australian community;
(c) previously the applicant had expressed remorse for his actions but during the hearing he was quick to blame others, including the WA Police, and the Tribunal has serious concerns about his credibility in this regard;
(d) given the applicant comes from a war-torn country it is quite conceivable that the applicant suffered from and continues to suffer from post-traumatic stress disorder and developed a drug addiction in order to manage mental anguish;
(e) the applicant had undertaken various rehabilitation courses in prison and claimed that he had learnt from his mistakes and promised his mother that he would get his life together and stay away from drugs;
(f) there was a letter before the Tribunal offering the applicant employment upon his release;
(g) the applicant continued to offend post those courses and failed to demonstrate rehabilitation in the community whilst on bail;
(h) although his mother has offered to provide a loving and supporting environment to her son, there is no evidence that he will continue to receive counselling or intervention for his mental health issues if released into the community and this is of concern in light of the link between his mental health and illicit drug use;
(i) after receiving a formal warning that future offending would expose him to removal from Australia the applicant received some further 20 convictions;
(j) the risk of recidivism is high; and
(k) the present risk to the Australian community if the applicant engages in further criminal conduct is high and the protection of the Australian community weighs heavily in favour of refusing to revoke the cancellation of the visa.
16 There was no issue raised as to the best interests of a minor child in this case.
17 As to expectations of the Australian community, the Tribunal concluded, amongst other things, that:
(a) the Australian community would have considerable sympathy for a young Iraqi male who has endured what the applicant has endured but there are limits to just how far that generosity and sympathy will extend;
(b) the expectations of the Australian community are that a non-citizen with an extensive criminal record should expect to lose his visa and forfeit the privilege of remaining in Australia;
(c) the applicant has almost 30 convictions and the community would expect the applicant to be deported accordingly; and
(d) the community's expectations in this regard weigh heavily against the revocation of the decision to cancel the applicant's visa.
18 The Tribunal then turned to paragraph 14 of Direction 65 that provides that when deciding whether to revoke a mandatory cancellation of a visa certain other considerations may be taken into account. The Tribunal identified that in this case, other considerations that may be relevant are:
(a) Australia's international non-refoulement obligations as they relate to the applicant;
(b) the strength, nature and duration of the applicant's ties with Australia; and
(c) the extent of impediments for the applicant if he returned to Iraq.
17 In the context of the appeal, it is relevant to set out the Tribunal’s conclusions in relation to the non-refoulement obligations as they relate to the respondent. It said at [95] – [98]:
95 Based on the limited evidence before it, the Tribunal is willing to accept that HSKJ:
(a) assisted US military forces in Iraq in some capacity;
(b) faces some risk of harm if returned to Iraq because of this alleged association.
96 On the limited evidence before it, this finding weighs to some degree in favour of revoking the decision to cancel HSKJ’s visa. The question the Tribunal needs to ask, however, is whether this finding in relation to what is an “other” or “secondary” consideration outweighs the Tribunal’s findings in relation to the primary considerations detailed above.
97 The Tribunal finds that it does not do so. The Tribunal has considerable sympathy for HSKJ and, on the limited evidence, finds that he might have safety concerns in Iraq. The evidence in support of this finding is, however, scant. Overall, the Tribunal needs to weigh these safety concerns with the very strong concerns outlined above in relation to the seriousness of HSKJ’s crimes, the risk of further offending and what this would mean for the Australian community – findings that were based on very clear and strong evidence.
98 The Tribunal recognises that any concerns it has in relation to HSKJ’s safety are somewhat addressed by the fact that HSKJ can apply (and has now indicated that he will apply) for a Protection visa. Further, noting that the primary considerations in Direction No. 65 (based here on unequivocal evidence) are normally given greater weight than the other considerations (here, based on less than ideal evidence), the Tribunal finds that the primary considerations here clearly outweigh this secondary consideration. This should not be seen, however, as a comment by the Tribunal as to the prospects of any future protection visa application.
18 The Tribunal then considered the strength, nature and duration of ties of the respondent to the Australian community. It quoted a number of paragraphs from the Minister’s statement of facts, issues and contentions and also from the reasons of the delegate. Of particular relevance to the Notice of Contention is the following paragraph quoted from the delegate’s reasons:
65 HSKJ has two adult sisters who reside with their husbands in Australia. I note that HSKJ’s sisters have not submitted information and HSKJ has not supplied detailed information about his relationship with his sisters. Nonetheless, I find that in the event of his removal from Australia, HSKJ’s sisters may experience some emotional hardship.
19 The Tribunal then states that at the hearing, the respondent submitted that his mother would be lost without him. It noted that she had given evidence and that she struck the Tribunal as a remarkably courageous woman who has sacrificed everything for her three children. It found that the respondent has lived in Australia since 2010 and that he has had some employment and so has made some contribution to the community. It also found that when he was not in prison or detention, he was the primary carer for his mother (who had been diagnosed with breast cancer) and that she will struggle without her son. The Tribunal concludes in relation to this factor:
104 Overall, the Tribunal finds that HSKJ does have ties to the Australian community. This is in his favor. The Tribunal has considerable sympathy for HSKJ’s mother but notes that she does have family here other than her son. The Tribunal notes that HSKJ began offending shortly after arriving in Australia. On the evidence, the Tribunal is not convinced on the balance that the nature and strength of HSKJ’s ties with Australia outweigh the primary considerations analysed above.
20 The Tribunal then considers the extent of impediments that the respondent would face if he were deported to Iraq, before setting out its conclusions. Most germane to the appeal are the following paragraphs:
119 Overall, the Tribunal finds that the protection of the Australian community is a consideration that weighs in favour of refusing to revoke the mandatory cancellation of HSKJ’s visa.
120 Given the quite serious nature of the crimes committed by HSKJ and the very real prospect of future serious criminal offending, the Tribunal is also of the view that the Australian community would expect that HSKJ’s visa would remain cancelled. While it is undoubtedly the case that the Australian community would feel much sympathy for HSKJ in relation to his experiences in Iraq and subsequent PTSD, any such sympathy would be outweighed by the quite legitimate disapproval of his criminal conduct.
121 There are considerations that weigh in favour of revocation of the decision to cancel HSKJ’s visa. These include concerns in relation to Australia’s non-refoulement obligations. The Tribunal finds that that HSKJ may face harm if returned to Iraq because, on his limited evidence, he assisted the US Military in Iraq.
122 The Tribunal also finds that HSKJ has ties to the Australian community and that his mental health may suffer if he is returned to Iraq.
123 These findings weigh in favour of revoking the decision to cancel HSKJ’s visa. The Tribunal finds, however, that these countervailing considerations do not, on balance, outweigh the other primary considerations referred to above – considerations which are generally afforded greater weight. On the evidence, there is no reason for the Tribunal to reject that approach here.
124 Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No. 65 the correct and preferable decision is to refuse to revoke the cancellation of HSKJ’s visa.
4. REASONS OF THE PRIMARY JUDGE
21 The hearing before the primary judge turned on the correctness of the Tribunal’s reference to “primary” and “secondary” considerations in its application of Direction 65. In this regard the primary judge considered that the Tribunal’s reasons were not relevantly distinguishable from the reasons of the Tribunal that came under scrutiny in Suleiman and which Colvin J found should be set aside. Her Honour said (emphasis added):
32 In Suleiman, after considering the Tribunal's assessment of harm Colvin J stated (at [22]):
As to its finding that Mr Suleiman risked facing harm if returned to his country of nationality because of his mental condition, the Tribunal posed the question 'whether this finding in relation to what is an 'other' or secondary consideration outweighs the Tribunal's findings in relation to the primary considerations': at [105]. It concluded by noting that the primary considerations in Direction 65 'are normally given greater weight than the other considerations and in light of the evidence before it, the Tribunal finds that the primary considerations here clearly outweigh this secondary consideration': at [106].
33 Direction 65 refers to 'primary' and 'other considerations'. It does not describe any considerations as 'secondary'. Colvin J found that the use of the word secondary by the Tribunal indicates that the 'other considerations' are always of lesser importance (at [23]). His Honour continued (at [23]–[24]):
However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
22 The primary judge considered that in [95] – [98] of the Tribunal’s reasons (quoted above) the Tribunal had asked itself the same question as in Suleiman, which was “whether this finding in relation to what is an ‘other’ or secondary consideration outweighs the Tribunal’s findings in relation to the primary considerations” and used the same language as in Suleiman of the primary considerations outweighing the secondary considerations. Whilst her Honour accepted that the word “secondary” may sometimes be used in contradistinction to ‘primary’, it was important to bear in mind that Direction 65 expressly uses the term ‘other’ considerations in the context of the exercise of discretion. Against this backdrop, she did not consider that the decision in Suleiman was clearly wrong in its assessment that the Tribunal’s use of the word ‘secondary’ conveys that a consideration described as secondary “is less important than one described as primary”.
23 Her Honour rejected a submission advanced by the Minister that the Tribunal had not found that the considerations it described as secondary will always be outweighed by primary considerations by reference (at [37] of her reasons) to the following passage in Suleiman at [26] (emphasis added):
It is true that the Tribunal did not in terms state that secondary considerations could not be treated as having equal or greater importance in any particular case. However, equally it did not say that despite the description 'secondary considerations', they may be afforded equal or greater weight than primary considerations in an appropriate case. In my view, the use of the term 'secondary' conveys an interpretation of Direction 65 that establishes a hierarchy of considerations to be applied in all instances. It is a term that the Tribunal used in the heading before considering the other considerations: at [89]. It is also a term that it used when weighing the primary considerations and the other consideration of risk of harm if Mr Suleiman was returned to his country of nationality.
24 The primary judge accepted that the Tribunal considered the different considerations relevant to Direction 65 and conducted a balancing exercise, but found that the Tribunal erred by starting from a stated position that the relevant “other” considerations were “secondary”. The Tribunal having found in its reasons that the respondent faced some risk of harm if deported, her Honour considered that this was a consideration to be weighed not from the starting point for being of secondary importance, but from a position that allowed the potential for such a consideration to be afforded equal or greater weight than a primary consideration. Having approached the review on the basis that “other” considerations were secondary, the Tribunal fell into error.
25 Prior to reaching this conclusion, the primary judge had identified 6 grounds of appeal advanced by the respondent. Of those, her Honour considered that on the basis of the submissions made before her, 5 could be rejected in short order. The final ground was ultimately upheld, for the reasons set out above.
5. THE APPEAL
5.1 The arguments
26 In relation to grounds 1 and 2, the Minister contends that the premise of the primary judge’s reasoning was that the Tribunal must have been of the view that the “other” considerations in Direction 65 should always be given lesser weight. It submits that the primary judge formed that view because the Tribunal described the “other” considerations as “secondary” considerations. The Minister submits that the premise was not supported by a contextual understanding of the Tribunal’s decision.
27 The respondent submits in relation to grounds 1 and 2 that the Minister mischaracterises the premise of the primary judge’s reasoning. He submits that the premise, which also underlies Suleiman, is that the use of the term “secondary” indicates an unconscious treatment of “other” considerations within Direction 65 as inherently less important than “primary” considerations. The respondent submits that the reasoning of the Tribunal was formulaic and did not reflect a weighing process, despite language at the conclusion of the Tribunal’s reasons suggesting otherwise. The respondent further submits that the definitions of “secondary” may be ambiguous on the basis of the premise as framed by the Minister, but that if it is understood to go to “importance” rather than “weight” there is no relevant ambiguity. The word was not used by the Tribunal as a synonym for “other”.
28 In relation to grounds 3 and 4, the Minister submits that a Ministerial Direction issued under s 499 may validly require a decision-maker generally to give more weight to some considerations than others, and to the extent that the primary judge’s reasons suggest otherwise, that was an error.
29 The respondent submits that the decision-maker is entitled to consider ‘another reason’ for revoking a mandatory visa cancellation without statutory limitation. Subsection 501CA(4)(a) does not permit the Minister to limit the scope of matters which may be the subject of representations, but simply regulates the ‘manner and form’ in which they are to be given. As subsection 501CA(4) does not mandate that particular considerations are to be treated as being more important than others, it would be unlikely that the Parliament would authorise the executive to direct in advance which adverse considerations will be prevailing. As a consequence, (we infer from the respondent’s submissions) to the extent that the primary judge’s reasons suggest that Direction 65 wrongly requires a decision maker may not in a general sense give more weight to some considerations over others, then she was correct to do so.
5.2 Consideration of the appeal
30 In our view the Tribunal’s reasons, read as a whole, do not reflect an understanding that “other” considerations must always be given lesser weight than primary considerations, or that this view prevailed when considering the international non-refoulement obligations owed to the respondent. This may be seen from the following matters.
31 First, at [96] the Tribunal considers its findings (at [95]) that the respondent assisted US military forces in Iraq in some capacity and faces some risk of harm if returned to Iran because of this association weighs to some degree in favour of revocation. It poses the question as:
[W]hether this finding in relation to what is an “other” or “secondary” consideration outweighs the Tribunal’s findings in relation to the primary considerations detailed above.
32 The reference to “secondary” in this context is ambiguous, because it may be synonymous with “other” or refer to an inferior consideration, but at [97], the Tribunal proceeds to observe that it “needs to weigh” these safety concerns with the “very strong” earlier identified (primary) concerns in relation to the seriousness of the respondent’s crimes, the risk of further offending and what this would mean for the Australian community. At [98] it goes on to note that the primary considerations in Direction 65 are normally given greater weight than “other” considerations and that the Tribunal finds “that the primary considerations here clearly outweigh this secondary consideration” (emphasis added). The reference to “normally” indicates that the standard that the Tribunal is applying is not one that inevitably gives lesser weight to the “other” or “secondary” consideration, but that normally one does so. That is not an inaccurate characterisation of Direction 65, which in section 8(4) provides that “primary considerations should generally be given more weight than other considerations”. The word “normally” indicates that the other consideration may sometimes not warrant lesser weight. Further, the finding that the primary considerations here outweigh the secondary consideration indicates a balancing exercise on the part of the Tribunal that would be redundant if it had considered that a primary consideration would always prevail over a secondary consideration.
33 This understanding of the Tribunal’s reasons is in our view supported by the language used at [104], where the Tribunal concludes in its consideration of the “strength, nature and duration of ties” that it is not convinced that “on balance” they outweigh the primary considerations identified earlier.
34 Further, in its conclusions at [119] – [124] (set out in full above) the Tribunal engages in a process that proceeds to weigh the “other” considerations, which it finds are in favour of revocation, against the countervailing considerations and concludes that on balance they do not “outweigh the other primary considerations” which are “generally afforded greater weight” (emphasis added). This language indicates that the Tribunal did not take the view that “other” considerations were always subservient to primary considerations.
35 Taken together, we consider that the ambiguity apparent from the twice used word “secondary” does not reflect the error that the learned primary judge considered had arisen. At this point we should note that we have not here been asked to consider in this context the correctness of Suleiman. Certainly if the Tribunal did regard a secondary consideration as incapable of outweighing a primary consideration then it would not, in that respect, be correct and her Honour’s agreement with that decision would equally have been correct. However, the contextual matters to which we have referred indicate that the Tribunal did not do so in the present case, as a result of which the appeal based on grounds 1 and 2 succeeds.
36 Grounds 3 and 4 concern [38], [41], and [42] of the primary judge’s reasons. The Minister submits that if the primary judge there found that a Ministerial Direction issued under s 499 of the Act may not validly require a decision maker generally to give more weight to some considerations than to others, then she fell into error.
37 Given the view that we have expressed above, it is not necessary for us to address this point in detail. In our view her Honour’s reasons should not be construed in this way. In [41] it is apparent that her Honour considered that the Tribunal had incorrectly found that Direction 65 required the “other” considerations to be addressed from a starting point that they were secondary, and on that basis found that there was jurisdictional error. That conclusion indicates that her Honour did not find that Direction 65 could not specify in general terms the weight to be placed by a decision maker on various considerations, but, to the contrary, that the Tribunal had erroneously thought that it was required to give certain considerations less weight. We would not read the other paragraphs identified by the Minister in a different way.
6. THE NOTICE OF CONTENTION
6.1 The arguments
38 In relation to ground 1 of the Notice of Contention, the respondent submits that the Tribunal was required by paragraph 14.2(1)(b) of Direction 65 to consider the respondent’s ties with lawful Australian indefinite residents. He came to Australia with his mother and one of his two sisters. The Tribunal properly considered his relationship with his mother, and the effect of his deportation on her, but having received evidence of his two sisters, it failed to consider or make any material findings in relation to them. At [100] the Tribunal recited the Minister’s submissions of 4 October 2017 that the respondent’s mother and siblings reside in Australia and implicitly adopted those findings. It then extracted a passage from the delegate’s reasons in which two Australian resident sisters are identified, notes that neither had supplied any information in support of his request for revocation, and then makes a positive finding that non-revocation would create “some emotional hardship”. However, the Tribunal’s conclusions do not address the position of the respondent’s sisters. The respondent submits that it is to be inferred that the references to “family” include the respondent’s sister or sisters, but that the Tribunal was required to make a finding on the effect of non-revocation on his immediate family. It did not do so, notwithstanding a number of references in the evidence that support a conclusion that his sister would have been adversely affected by non-revocation. The Tribunal was required to identify its findings on any material questions of fact and the evidence of any other material upon which they were based; s 430(1)(c) and (d) of the Act. That omission invites an inference that no such finding was made and that the Tribunal constructively failed to exercise jurisdiction by misapplying s 14.2(1)(b) (citing Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112 (Mortimer J) at [25]). He submits that the primary judge fell into error by failing to find such omission.
39 The Minister does not object to the reliance by the respondent on the Notice of Contention, subject to the question of costs, but submits that there was no failure to consider the impact of non-revocation on one of the respondent’s resident sisters. This is because such duty as arose under paragraph 14.2(1)(b) was limited to the obligation to consider the impact on family members, not to make a finding as to precisely what that impact would be. In the circumstances of the present case, the obligation was to consider “where relevant” the effect of non-revocation on the family. What is “relevant” is a matter for the opinion of the Tribunal. It follows, the Minister submits, that if the Tribunal had not addressed the impact on one or more of the respondent’s sisters, all that would follow is that the Tribunal did not consider that impact to be “relevant” to its non-revocation decision, citing Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69].
40 The Minister further submits that the Tribunal did consider the impact of non-revocation on the respondent’s sisters at [99] and noted what the delegate had found at [101]. Read fairly, the Minister submits that the Tribunal had regard to and accepted the delegate’s finding that in the event that the respondent was removed from Australia his sisters “may experience some emotional hardship”. Further, the Minister submits that the succinctness with which the Tribunal expressed its reasons on this point is understandable because of a lack of reliance by the respondent on the impact on his sisters in either his submissions, the evidence or the written materials.
6.2 Consideration of the Notice of Contention
41 There is no dispute that the Tribunal had a duty to consider the impact on non-revocation on family members of the respondent. This arises from paragraph 14.2(1)(b) of Direction 65 and s 499(2A) of the Act, which renders Direction 65 binding on the Tribunal. The Tribunal was aware of that requirement and quoted the paragraph from Direction 65, which relevantly provides:
(b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are … people who have a right to remain in Australia indefinitely).
42 The Tribunal was bound by s 430(1) to provide a written statement of its reasons. Relevantly it provides as follows:
430 Tribunal’s decision and written statement
Written statement of decision
(1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based …
43 The reasoning of Gleeson CJ in Yusuf includes the following:
[5] When the Tribunal prepares a written statement of its reasons for decision in a given case, that statement will have been prepared by the Tribunal, and will be understood by a reader, including a judge reviewing the Tribunal’s decision, in the light of the statutory requirements contained in s 430. The Tribunal is required, in setting out its reasons for decision, to set out “the findings on any material questions of fact”. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter, and that in turn, may indicate that the Tribunal did not consider the matter to be material.
…
[9] The major difficulty for the respondents, however, lies in the language of s 430. There is nothing in that language which imposes a requirement to make a finding on every question of fact which is regarded by the Federal Court, on judicial review of the Tribunal’s decision, as being material. A good deal of materiality jurisprudence has developed from the attempt to relate ss 476(1)(a) and s 430. Questions of fact which appear to have been regarded by the Tribunal as material are sometimes described as “subjectively material”, to distinguish them from questions of fact which are regarded as material by a court reviewing the Tribunal’s decision. …
[10] The requirement imposed by s 430 is to prepare a written statement that, in the context of setting out the Tribunal's reasons for decision, "sets out the findings" on any material questions of fact. It is impossible to read the expression "the findings" as meaning anything other than the findings which the Tribunal has made. By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error of a kind falling within a ground in s 476(1) other than s 476(1)(a), or may provide some other ground for judicial review. …
44 The effect of s 430(1) is that the Court is entitled to infer that a matter not mentioned in the Tribunal’s reasons was not considered by it to be material: Yusuf at 346 [69] (McHugh, Gummow and Hayne JJ). Equally, it is permissible for this Court to conclude from the absence of any direct consideration of the impact on the sisters, that the Tribunal did not consider them material to its decision; paragraph 8(1) of Direction 65 requires the Tribunal only to take into account the primary and other considerations relevant to the individual case before it. In this regard, as the reasons of Gleeson CJ in Yusuf at [9] indicate, there is no occasion to consider whether this Court is of the opinion that there were relevant parts of the guidelines or country information that should have been considered. It is the Tribunal’s views on relevance which matter, not those of this Court. We agree, with respect, with the observations of Perram J in SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34 at [19], [20]:
19 The inference in Yusuf is not mandatory. The manner in which a statement of reasons is drawn, or even its surrounding context, may provide material which detracts from, or even displaces, the inference. For example, there may be country information which was available to the Tribunal which is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it. There is nothing, however, like that in this case. The applicant’s argument did not move beyond the generality of the claim that the material was not considered to any detailed analysis of what that might signify. In those circumstances, there is no good reason not to draw the Yusuf inference. Once that occurs it seems to me that I cannot avoid the conclusion that the Tribunal did address itself to the issue of the relevance of the material and decided that it was irrelevant.
20 Although the applicant did not directly raise the issue, I would indicate that I accept Mr Hume’s submission that it was for the Tribunal to form an opinion as to what was relevant under cll 2 and 3 and what was not. The usual way of reading provisions such as these clauses is that they are construed as requiring the formation by the decision-maker of an opinion on the standard (here, relevance) imposed; that is to say, they are not generally construed as requiring the existence of a jurisdictional fact: see, for example, Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 466-468 (FC). Consequently, there is no occasion to consider whether this Court is of the opinion that there were relevant parts of the guidelines or country information. It is the Tribunal’s views on relevance which matter, not those of this Court. In any event, even if that was not so, the applicant made no attempt to point to any aspect of the guidelines or country information which he said were relevant and should, therefore, have been taken into account.
45 In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 (Kenny, Griffiths and Mortimer JJ), the absence of certain matters from the Tribunal’s reasons allowed the Court to conclude that there had been error by the Tribunal:
62 As we have set out above, the visa applicant’s claim to be, or to be perceived to be, a member or supporter of the MDC if he were to have to return to Zimbabwe required the Tribunal to form a state of satisfaction about what might happen to him, and why, given the prevailing circumstances in Zimbabwe on his return. As we have also set out above, the Tribunal’s reasons do not disclose any consciousness, nor any consideration, of those prevailing circumstances in any part of 2011, nor of the effect of the election cycle in Zimbabwe. They disclose no consciousness, nor any consideration, of what were submitted to be increasing incidents of political violence directed not at high-profile people but at “ordinary” MDC supporters or members. The absence of these matters from the reasons, combined with the centrality of them to the visa applicant’s claimed fear of persecution as clearly articulated to the Tribunal before, during and after the hearing, allow us comfortably to infer that the Tribunal did not consider these matters, or consider these matters material to the task of asking whether or not the visa applicant had a well-founded fear of persecution. For the Tribunal to form the latter view reveals a misunderstanding of its statutory task on review at the most fundamental level. A failure to consider the claim advanced by a visa applicant is plainly and uncontroversially a failure to perform the statutory task imposed on the Tribunal. The absence of these matters from the reasons allows, as Yusuf recognises could be the case, a conclusion of error on judicial review.
46 In Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 (Katzmann, Griffiths and Wigney JJ), the Tribunal’s failure to address a particular letter provided by the applicant was held to give rise to jurisdictional error. The Court at [34] made observations as to the nature of the exercise in determining whether a matter is considered by the Tribunal or not (emphasis added):
34 The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].
47 The Court in SZSRS found that by failing to consider the letter, the Tribunal had committed a jurisdictional error (at [64]).
48 In the present case, we would not infer from the reasons given that the Tribunal considered that the impact of family insofar as it concerned the respondent’s sisters was not material. The manner in which it was drawn and the surrounding context indicate that it was material, but that the Tribunal failed to address it and thereby failed to exercise jurisdiction.
49 The Tribunal records in its reasons the Minister’s submission that the respondent’s “mother and siblings reside in Australia” and then quotes the delegate’s reasons, which refer to the respondent’s submission that he is the primary carer for his mother who has been diagnosed with breast cancer and who relies heavily upon him for practical assistance. The Tribunal also sets out the delegate’s findings, which we have quoted above at [18], to the effect that he has two sisters who reside in Australia with their husbands, noting that they have not submitted information and that the respondent has not supplied detailed information about his relationship with them. The delegate finds that in the event of the respondent’s removal from Australia, his sisters may experience emotional hardship. But then the Tribunal goes on at [102] – [104] to make its own findings in relation to paragraph 14.2(1)(b). Those findings make no reference at all to the siblings. The closest the Tribunal comes is to conclude that “[o]verall” the respondent “does have ties to the Australian community”.
50 However, having referred to two sisters, the Tribunal does not proceed independently to consider the impact of the respondent’s deportation upon them. The overall conclusion reached makes no reference to them. We reject the Minister’s submission that by noting and quoting the delegate’s findings, the Tribunal adopted them as its own. That construction does not appear from a reading of the Tribunal’s reasons as a whole, where material findings of fact and conclusions are expressly set out following the quotation and reflect the evidence and additional materials that the Tribunal had before it, including the oral evidence of the respondent.
51 Nor is that conclusion appropriate having regard to the evidence before the Tribunal concerning the sisters, which appears to exceed the materials available for consideration by the Delegate. Those matters may be summarised as follows:
(1) In his personal circumstances form completed in February 2017 in response to the notice of intention to consider visa cancellation provided to the respondent, the respondent identified his two sisters by name and listed one as resident in Australia and the other as resident in the United States. In so doing he alerted the Tribunal to their relevance as members of his immediate family.
(2) In his own letter requesting revocation, which is undated, the respondent said when he came to Australia he joined his mother and two sisters who he says live in Perth, and refers to the adverse impact that his criminal conduct has had on his sisters.
(3) During the course of his evidence given to the Tribunal the respondent refers to his sisters, one living in Perth and the other, an American citizen and also with a permanent resident visa in Australia, who is married to a citizen of Saudi Arabia. The evidence is ambiguous as to whether this second sister lived in Australia at the time of the hearing.
(4) In this context, the transcript of the hearing indicates that the Tribunal had an appreciation that one issue for it to determine was the impact on this family of his deportation. However, it appears that the Tribunal’s focus was on the impact that his deportation would have on the ability of the respondent’s mother to receive care in that event. The Tribunal notes:
[O]ne of the things that I need to look at is what negative consequences arise to your family should you leave. One of the questions I have is who will take care of your mother if you were deported?
In response the respondent said that his mother does not have anyone and he also does not have anyone if he gets deported.
In submissions before us, the Minister seeks to characterise these questions and the response as indicating that the respondent did not at the hearing wish to raise any question of the impact of his departure on his sisters. However, to an unrepresented litigant it was quite appropriate for the respondent to address the second of the two identified questions as the one he was asked to consider. That question did not draw attention to impact on family, or the previously identified sisters, but rather the impact on his mother should he be deported. Nevertheless, the first of the questions asked showed that the Tribunal was aware that the issue of the impact on the family as a whole was alive. Given that immediately prior to these questions the respondent identified that both of his sisters were entitled to residence in Australia, and that at least one of them was resident, the question of the impact of the respondent’s deportation on them was squarely raised.
(5) The presence of at least one sister in Perth is amplified by the evidence of the respondent’s mother at the hearing, who resides in Perth and identified that one of her daughters (the respondent’s sister) had assisted her while she was sick..
(6) In a document dated 14 December 2016 prepared by the Western Australian Department of Corrective Services entitled “Individual Management Plan” reference is made to the respondent receiving regular social visits from his mother and occasional visits from his sister, who resides in North Perth. In a later document the department says:
… [the respondent] has reported that he has a strong family support network which includes his mother, brothers, sisters, uncles and aunties. [The respondent] has reported that being connected with his family and their approval of his behaviour is important to him and provide [sic] additional motivation not to reoffend, therefore, [his] family may be considered a protective factor.
(7) The reference to visits from his sister is supported by a copy of the register of permitted visitors to the respondent whilst he was in prison.
52 The Minister is, with respect, correct to submit that the inclusion of the words “where relevant” in paragraph 14(1) of Direction 65 indicate that the duty to consider the matters raised in it is not an invariable one, and that what is “relevant” is a matter of opinion for the individual decision-maker. However, it does not follow that if the Tribunal has not addressed the impact of deportation on one or more of the respondent’s sisters, then it is to be inferred that the Tribunal did not consider that impact to be relevant to its non-revocation decision.
53 The Tribunal made no material finding of fact in relation to the two sisters. It did not resolve the question of whether one or two of them were resident in Australia (the evidence on this is ambiguous). Nor does it refer in its findings to the one sister in the context of her visits to the respondent whilst he was in prison or otherwise. Having regard to the reasons of the Tribunal at [102] – [104], we consider that the omission of any reference to the sisters was not because it considered that they were irrelevant, or because it considered that by noting the findings of the delegate it had adopted those findings, but because it failed to consider the impact on the sisters of the deportation of the respondent at all. This may perhaps be explained by the Tribunal’s particular focus on the effect of his departure on the respondent’s mother (who was suffering from cancer) and the question of whether that impact may be diminished by the presence in Perth of one of the sisters, which it did address.
54 In submissions the Minister correctly observes that the Tribunal is not obliged to consider afresh, in every case, all possible issues presented by an applicant’s claim. But in our view the contention that the respondent did not place the issue concerning the impact on the sister(s) before the Tribunal to dispute its findings in relation to them is misplaced. Bearing in mind the fact that the respondent was not represented, is not literate in written English and was suffering disadvantages such as limited access to computers and the like that are familiar to those in mandatory detention, we consider that by reason of the matters that we have itemised in [51] above, the issue of the impact of his deportation on his sister or sisters was sufficiently raised for it to be a material consideration warranting the attention of the Tribunal.
55 In our view the respondent has established that the Tribunal failed to exercise jurisdiction in relation to the question of his sisters.
7. DISPOSITION
56 The appeal should be allowed. The Notice of Contention also succeeds. The consequence is that the orders of the learned primary judge will remain undisturbed.
57 In relation to costs, the Minister submits that if the respondent is successful only by reason of the Notice of Contention, the Minister should have his costs up until the grant of leave to file the Notice, because the point raised was not taken below and was taken out of time. The respondent submits that if the Notice of Contention is upheld, then the Minister should pay the respondent’s costs of the appeal.
58 In our view it is appropriate that the Minister have the costs of the initial hearing. The point raised in the Notice of Contention was not taken before the learned primary judge and accordingly it was not the subject of consideration. The Minister should also have the costs of the appeal. The respondent should have the costs relating to the Notice of Contention, but some discount should be applied for lateness and the fact that the point was not taken below. In the result, we consider that the appropriate allocation is that the respondent should pay the appellant’s costs of the initial hearing and the costs of the appeal up until the filing of the Notice of Contention. The Minister should pay three-quarters of the respondent’s costs of the Notice of Contention.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Greenwood, McKerracher and Burley. |
Associate:
Dated: 4 December 2018
