FEDERAL COURT OF AUSTRALIA

Candemir v Minister for Home Affairs [2019] FCAFC 33

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the respondent’s costs of the appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    We adopt the following summary from the reasons of the primary judge.

2    The appellant was born in Turkey in January 1968. He came to Australia with his family in 1969. He has lived in Australia since 1969, except for periods when he travelled to Turkey in 1988, 1991 and 1998. The appellant’s family in Australia includes his wife and adult children, his parents, two brothers, two sisters and 14 nieces and nephews. The appellant has two minor grandchildren.

3    The appellant’s son, who is in his early twenties, suffers from Joubert Syndrome, a genetic disorder which causes physical and moderate to severe intellectual impairment.

4    The appellant has an extensive criminal history, recorded between 1985 and 2015. His most recent convictions were recorded on 6 November 2015. The sentences imposed by the District Court of New South Wales for those convictions were as follows:

•    supply prohibited drug (three counts) – on each count one year and six months imprisonment

•    supply prohibited drug > indictable quantity (two counts) – on each count two years imprisonment

•    supply prohibited drugs on an ongoing basis – four years and six months imprisonment, six months accumulated

•    knowingly dealing with proceeds of crime (two counts) – on each count two years imprisonment

•    possess prohibited drug (three counts) – convicted with no further penalty.

5    The primary judge said that the effective sentence for the offences dealt with on that occasion was a total period of imprisonment of five years and a non-parole period of three years and eight months.

6    On 8 March 2016, the appellant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth). The appellant sought to have that decision revoked pursuant to s 501CA, but on 11 August 2016 a delegate of the Minister decided not to revoke the cancellation of the visa.

7    On 22 August 2016, the appellant sought to have the decision not to revoke the cancellation of the visa reviewed by the Administrative Appeals Tribunal (the Tribunal).

8    On 21 April 2017, the Tribunal set aside the delegate’s decision and revoked the cancellation of the appellant’s visa. As a consequence of this decision, the appellant’s visa was reinstated.

9    The Minister then considered whether he should exercise his personal discretion under s 501BA of the Migration Act to set aside the decision of the Tribunal and cancel the appellant’s visa, being a Class BB Subclass 155, Five Year Resident Return visa. On 8 November 2017, the Minister exercised his discretion to cancel the appellant’s visa. The Minister was satisfied that the appellant did not pass the character test because of the operation of s 501(6)(a), on the basis of s 501(7)(c) (that is, because the appellant has a “substantial criminal record” as defined by s 501(7)(c)). The Minister was also satisfied that cancellation of the appellant’s visa was in the national interest.

10    The appellant appeals from orders of the primary judge dismissing, with costs, the appellant’s application for judicial review of that decision made by the Minister on 8 November 2017.

11    Relief in respect of a decision under s 501BA may only be granted in this Court, at first instance, where jurisdictional error has been established. The Court’s jurisdiction is supervisory and the issue is whether the Minister’s exercise of power was lawful, that is, a decision he was authorised to make. It is not an appeal from the Minister’s decision so as to permit a general review of that decision or a substitution by the Court of a decision which a judge considers is correct or preferable: see Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173 at [23].

12    On this appeal, the issue is whether the primary judge erred, as contended by the appellant, by failing to find that there had been jurisdictional error on the part of the Minister.

The statutory power

13    The relevant section of the Migration Act is in the following terms:

501BA    Cancellation of visa—setting aside and substitution of non‑adverse decision under section 501CA

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister—natural justice does not apply

(2)    The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

    (ii)    paragraph 501(6)(e); and

  (b)    the Minister is satisfied that the cancellation is in the national interest.

 (3)    The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

(4)    The power under subsection (2) may only be exercised by the Minister personally.

 Decision not reviewable under Part 5 or 7

 (5)    A decision under subsection (2) is not reviewable under Part 5 or 7.

The appeal

14    The appellant does not challenge the statement by the Minister that he was not satisfied that the appellant did not pass the character test, or, subject to one qualification, the statement by the Minister that he was satisfied that the cancellation of the appellant’s visa was in the national interest. The qualification is that under Ground 3 the appellant puts that the national interest must be determined on the basis of different issues to those considered by the Tribunal or a change from the factual position as it was at the time of the Tribunal’s decision. Otherwise, the focus of the appellant’s submissions was the Minister’s discretion to set aside the decision of the Tribunal and cancel the appellant’s visa. The appellant raised the following arguments.

Ground 1

15    As articulated in the appellant’s outline of submissions, he submitted first that the primary judge erred in finding that the Minister did not fail to take account of relevant issues.

16    The appellant’s argument in this respect is that the Minister failed to consider: first, “the life lived by the Appellant during the period between the Tribunal’s decision on 21 April 2017 and the Minister’s decision on 8 November 2017”; second, the appellant’s re-establishment with his family; and third, the appellant’s contribution to the workforce. The fourth point raised by the appellant was that the Minister “failed to consider [the appellant’s] status as an absorbed person pursuant to s 34” of the Migration Act. In this respect it was submitted that: “In circumstances where the Respondent relies upon s. 501BA of the Act which denies an individual natural justice, the Respondent has a higher obligation to make relevant enquiries and obtain relevant information.”

17    It was also submitted that the Minister had failed to give proper consideration to the appellant’s current circumstances, particularly his family ties in Australia and the length of time he had spent in Australia, which the Tribunal found were primary considerations for the revocation of the visa cancellation. The submission continued: “Therefore, the Respondent has failed to take into account the relevant issues put forward by the Appellant and consider whether the issues raised have any merit.”

18    Implicit in these submissions is that the Minister made a jurisdictional error by failing to consider these matters. There was no evidence that there were in fact any material alterations to the appellant’s circumstances in the period between the date of the Tribunal’s decision and the date of the Minister’s decision. The appellant pointed to the fact that he was at liberty in that period and living with his wife and family and caring for his child. It was not put that the Minister was not aware of this. For that reason these contentions rest largely in the abstract and may amount to a submission that the Minister was under a duty to make inquiries as to any change in the appellant’s circumstances during that period.

19    The primary judge said, at [21], that the Minister had noted in his reasons that five months had elapsed since the decision of the Tribunal and that the information before the Minister may not reflect all of the appellant’s current personal circumstances. The Minister also stated that there was no information before him to suggest that the appellant had not complied with his parole conditions since being released from immigration detention on 21 April 2017.

20    The primary judge set out at [23] what Burley J had said in Anaki v Minister for Immigration and Border Protection [2018] FCA 77 at [12], as follows:

The broad scope of the power conferred on the Minister by the relevantly similar power under s 501A(2) has been remarked on in many cases. In Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; (2012) 202 FCR 417 Bromberg J helpfully summarised the effect of the authorities as follows:

43.    The authorities which have considered s 501A(2) (and in a similar context the reference to the national interest in s 501(3)), make it clear that the matters that the Minister may take into account in determining the national interest are largely matters for the Minister: Mandafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220 at [89] (French, O’Loughlin and Whitlam JJ); [Minister for Immigration and Multicultural and Indigenous Affairs v Huynh [2004] FCAFC 256; 139 FCR 505] at [74] (Kiefel and Bennett JJ); Tewao v Minister for Immigration and Citizenship [2011] FCA 1515 at [12] and [32] (Katzman J); Maurangi v The Honourable Chris Bowen MP, Minister for Immigration and Citizenship [2012] FCA 15 at [70] (Lander J); and see also Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [61] (Gleeson CJ and Gumow J); Re Paterson; Ex parte Taylor (2001) 207 CLR 391 at 418-419 (Gaudron J), 502-503 (Kirby J).

44.    The exercise calls for a broad evaluative judgment. It calls for the Minister’s satisfaction in relation to a power that may only be exercised personally by the Minister: s 501A(5). Political responsibility and accountability is reposed in the Minister in relation to a subject matter of wide scope. All of that, strongly suggests that the Minister is left largely unrestrained to determine for him or herself what factors are to be regarded as relevant when determining whether the cancellation or refusal of a visa is in the national interest and thereafter whether to exercise the discretion conferred by s 501A(2).

21    We note that the Full Court has since dismissed an appeal from Burley J’s decision: see Anaki v Minister for Immigration and Border Protection [2018] FCAFC 195.

22    The primary judge concluded, at [24]:

Accordingly, I accept the Minister’s submission that this ground cannot succeed. There is no basis to conclude that the Minister was required to take into account either of the issues identified by the applicant. Further, as the Minister noted, there was no requirement to afford the applicant the opportunity to make representations or provide any further information: see s 501BA(3), which provides that the rules of natural justice do not apply.

The issues referred to were those identified at [18] of the reasons of the primary judge, being (1) the life lived by the appellant during the period between the Tribunal’s decision on 21 April 2017 and the Minister’s decision on 8 November 2017; and (2) the appellant’s status as the holder of an “absorbed person visa” pursuant to s 34 of the Migration Act.

23    As to the submission concerning the appellant’s “absorbed person visa”, the primary judge set out, and accepted, the Minister’s submission that there was no evidence before the Court as to the existence of this visa but that, in any event, such a visa was not a (mandatory) relevant matter for the purposes of the Minister’s decision. The submission on behalf of the appellant to the Full Court was, by reference to s 34, that the appellant was in Australia on 2 April 1984 and had lived in Australia since 1969 and the Minister was aware of these facts. The Minister noted that in Minister for Immigration Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; 228 CLR 566 at [129], in relation to the exercise of an analogous cancellation power, Heydon and Crennan JJ said that there was no obligation on the Minister to take into account the nature of the visa held by an applicant (also in that case an absorbed person visa), because there was no consideration relevant to the absorbed person visa that was not relevant to and considered when the Minister cancelled Mr Nystrom’s other visa.

24    In our opinion, there was no obligation on the part of the Minister in the exercise of his discretion to take these matters into account as mandatory relevant considerations. No error on the part of the primary judge has been established in this respect.

25    We also reject the submission that there was any duty on the Minister to make further enquiries: see, albeit in the context of s 501CA(4), Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [48].

26    We note the recent consideration of this issue by Steward J in Ozer v Minister for Home Affairs [2019] FCA 104 at [43]-[46], as follows:

…

Generally speaking, there is no duty on an administrative decision-maker to inquire or conduct investigations, save in the limited circumstances described by the High Court in SZIAI [[2009] HCA 39; 259 ALR 429]; Westlake v Attorney-General [2017] FCA 1058 at [27] per Bromwich J; Gondarra at [128] per Kenny J; Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [48] per Rares and Robertson JJ. Prescriptions or formulae that make distinctions between what “could have” or “would have” occurred are not apt to define the evaluative analysis a court must undertake with respect to the particular facts before it in determining whether the Minister’s state of satisfaction for the purposes of s 501BA was reached in a legally unreasonable way. Having said that, I accept that the obligation to exercise the power in s 501BA in a legally reasonable way could, in an extreme case, require a decision-maker to make an inquiry. The content and nature of that inquiry would turn upon the particular applicable facts.

…

Secondly, [counsel for the applicant] submitted that it was unreasonable for the Minister to have failed to obtain an update about the applicant’s compliance with the CCO [Community Correction Order]. I respectfully agree … that the Minister should have obtained an update directed to the applicant’s compliance with the CCO before making his decision in January 2018. However, that criticism does not sound in jurisdictional error. It went, in my view, to the manner in which the Minister exercised the power in s 501BA and fell within the broader boundaries of decisional freedom conferred upon him by that provision. The Minister’s failure to obtain an update, notwithstanding a delay of six months, was not an abuse of his power and did not take what he did beyond power. It was imprudent but was not, I find, legally unreasonable. That is not to say that there may not be cases where extreme delay in the exercise of a power will require a decision-maker to seek an update of the evidence before her or him if the power is to be exercised reasonably. Each case, however, will turn on its facts and will require the Court to “evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful”: Stretton at [12] per Allsop CJ.

The applicant’s reliance upon Prasad, Luu, Le and SZIAI, does not justify any contrary conclusion. That is because, in the particular circumstances of this case, the need to make a further inquiry was not so “obvious” as to render the decision one made beyond the boundaries of decisional freedom.

We agree.

27    In the context of Pt 7AA, in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 a Full Court said, at [75]-[76], there was no requirement, equivalent to s 425, that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review, and that it was open to the Immigration Assessment Authority, under those provisions, to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond. In the present case, we see no reason why the Minister may not evaluate for himself or herself the material considered by the Tribunal. On the present appeal, by s 501BA(2) the Minister is not in terms required to “review” the decision of a delegate or of the Tribunal. Nor is the Minister, by s 501BA, required to carry out the same task as the Tribunal. In our view, Ground 1 therefore fails.

Ground 2

28    Under this ground the appellant submits that the primary judge erred in finding that the Minister did treat the best interests of the children as a primary consideration.

29    The appellant’s submission on appeal related only to the appellant’s son and was made by reference to reg 1.03 of the Migration Regulations 1994 (Cth) which defines “dependent child” to mean, amongst others, a child who has turned 18 and “is dependent on that person”.

30    The appellant submitted that such a “dependent child” is a child whose interests should be a primary consideration. The submission continued:

The Appellant’s son is a dependent child and, therefore, a child, whose future will be directly impacted if the Appellant is removed from Australia. The Appellant’s son is particularly vulnerable due to his lifelong disability and the break-up of the family unit through the removal of the Appellant will not be in the best interests of the Appellant’s son. The Appellant’s son will be directly affected if the Appellant leaves the country and is a child who is in need of protection. The term “child” which includes a “dependent child” should be given a consistent meaning throughout the Migration Act 1958 and the Migration Regulations 1994. Therefore, the Respondent has failed to consider the best interests of the Appellant’s dependent child as a primary consideration.

31    Having set out reg 1.03 of the Migration Regulations, the primary judge said, at [32]-[34]:

The applicant submitted that his son was, therefore, a child whose best interests should have been treated as a primary consideration and was not so treated.

However, the applicant did not refer to any authority for any such proposition, and neither did he identify any statutory basis for treating a “dependent child” as a “primary consideration” for the purposes of the Minister’s decision.

Accordingly, none of the matters raised by the applicant reveal a failure by the Minister to treat the best interests of children as a primary criteria.

32    In our opinion, there was no error in this respect by the primary judge. The definition, for the purposes of the Migration Regulations, did not have the consequence that the interests of the dependent child were required to be a primary consideration. In this respect we note that the rules of natural justice are excluded by s 501BA(3): compare Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273.

33    We also note that the Tribunal, at [69], had particular regard to the appellant’s son and, at [72], noted the evidence of the appellant’s daughter that her belief was that if the appellant had to go to Turkey “Mum will go with him, and they will take [my brother] too.” The Minister referred, at [112]-[114], to the Tribunal’s consideration and findings in respect of the appellant’s son. The Minister set out, at [123], the relevant parts of a letter received in March 2016 from the appellant’s wife referring to the medical decisions and future decisions that needed to be made for their son. The Minister set out the statements of the appellant’s daughter at [124] of his reasons. The Minister also considered this issue at [105] and accepted the evidence to suggest that the appellant’s wife and his son would relocate to Turkey with the appellant. At [125], the Minister found that the appellant and his wife would also be required to arrange medical care for their son in Turkey. At [134]-[138], the Minister said:

I also took into consideration the effect of visa cancellation upon Mr CANDEMIR’s son Gokturk, also known as Gary, who suffers from the genetic condition Joubert’s Syndrome. In addition to the representations of Mr CANDEMIR and his family to the Department, I had regard to information presented more recently to the AAT.

The AAT noted that, although Gary was 19 years old, the effect of his condition meant his adaptive behaviours are characteristic of a much younger child. In a report dated 15 July 2013 from the Child Development Unit at the Children’s Hospital at Westmead, Gary was described as having:

‘moderate to severe intellectual impairment and mild bilateral conductive hearing loss. His level of ataxia and associated difficulties with balance and co-ordination make physical acts including walking down stairs and balancing himself to toilet effectively challenging… His Speech and Language Impairment and feeding difficulties require ongoing support and intervention’.

The AAT heard the family’s evidence about Gary and his care requirements. The AAT noted that, following the imprisonment of Mr CANDEMIR and his wife in 2012, Gary was in foster care until Ms Candemir was appointed as her brother’s carer by the Family Court. As Ms Candemir cared for her teenaged brother from 2013, the AAT found she was in a knowledgeable position to both identify his physical and emotional needs and to comment on his relationship with his father. Ms Candemir told the AAT that, despite his absences, her father is the person to calm her brother down when he gets upset. Ms Candemir opined that neither of her parents or her brother ‘will cope’ if her father is removed to Turkey. Further, she would not cope if she were to become permanent carer to her brother.

In a statement to the AAT, Ms Candemir indicated that her parents have done the vast majority of caring for Gary and ‘they would not leave him behind, even though we are all extremely concerned about how [he] will cope if he has to move to Turkey, and whether he will be able to access any medical or disability services that he needs’. The AAT noted that Gary had a plan for assistance approved under the National Disability Insurance Scheme (NDIS) on 31 October 2016, which included ‘support for assistive technology, improved daily living, finding and keeping a job, improved relationships, increased social and community participation, transport and core supports’. The AAT also noted that the NDIS is consistent with the Australian Government’s ratification of the Convention on the Rights of Persons with Disabilities, and found it was ‘arguable whether [Gary] would be able to access this level of support and assistance’ in Turkey.

I accept that, if his father’s visa is cancelled, Gary is likely to relocate to Turkey with his parents. I consider that this will prevent him from regular direct contact with his sister, who has been his primary carer, and with his grandparents in Australia and I find this is likely to cause significant emotional hardship to Gary. Similarly, he will be deprived of direct contact with his erstwhile foster mother, aunts and uncles and nieces and nephews, which I accept may also cause his (sic) emotional hardship. I find that, at least in the early stages, Gary is unlikely to receive the level of care and assistance approved for him in Australia under the NDIS and this is likely to negatively affect his future health and wellbeing.

34    At [12], the Minister noted that the exercise of his power unfavourably to the appellant would have real and practical consequences to the appellant and his family, including the appellant’s son.

35    At [167], the Minister said that the risk of further harm to the Australian community outweighed the countervailing considerations in the appellant’s case, including the best interests of affected children treated as a primary consideration, the impact on his wife and son, other family members and his friends. He also considered the hardship and disadvantage to be endured by the appellant’s family members, in particular his disabled son and other family members.

36    Although it is correct to say that the Minister did not say that he had taken into account, as tending against the cancellation of the appellant’s visa, the interests of the appellant’s dependent son “treated as a primary consideration”, we do not consider that the Minister was under a legal obligation to do more than he did. The appellant submitted that if the Minister was going to treat children as a primary consideration, the Minister had first to determine correctly who the children were and that he, the Minister, was imposing on himself an obligation to do it correctly. The appellant suggested no source of such an obligation where the Minister was acting personally. In our opinion, Ground 2 fails.

Ground 3

37    The appellant submits that the primary judge erred in finding that the Minister’s decision “was not used for an improper purpose.”

38    The appellant’s argument here is that although it was not disputed that the Minister had a power to make the decision, the power to set aside a decision of the Tribunal was a judicial power and could not therefore “be exercised by the legislature as administrative.” It was also put that the power in s 501BA should be exercised on information or events which were not before the Tribunal.

39    The appellant’s argument continues as follows: the Minister had used the power for an improper purpose by setting aside the decision of the Tribunal in the absence of any new evidence. The Tribunal found that the strength, duration and nature of the appellant’s ties to Australia, and the extent of impediments if he was to return to Turkey, were primary considerations which favoured the revocation of the appellant’s visa cancellation. The Minister noted in the cancellation decision that since the Tribunal decision, five months had elapsed and information before the Minister may not reflect all of the appellant’s current personal circumstances. As the power to set aside the decision of the Tribunal was a judicial power, the Minister should be cautious in exercising the power under s 501BA on information or events that were already dealt with before the Tribunal.

40    The primary judge dealt with a more limited version of this ground at [36], as follows:

This argument must fail because s 501BA is expressed to apply, relevantly, if the Tribunal makes a decision under s 501CA to revoke a decision under 501(3A) to cancel a visa that has been granted to a person. Thus, s 501BA expressly provides for the Minister to set aside a decision of the Tribunal in certain circumstances. The Minister used his power conferred by s 501BA for the purpose for which it was intended to be used.

41    We agree. We would add that plainly the power to set aside a decision of the Tribunal is not limited to a judicial power: the Tribunal is part of the executive government, as is the Minister, and there is no principle that, as a matter of general power, an executive decision may not be overridden by another executive decision. We see so little in the point that we do not consider that s 78B of the Judiciary Act 1903 (Cth) is engaged: Deputy Commissioner of Taxation v Warrick (No 2) [2004] FCA 918; 56 ATR 371; Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; 95 FCR 292 at 297 [14] and the cases there cited. The consequential point, that the Minister should be cautious in exercising the power under s 501BA on information or events that were already dealt with before the Tribunal, falls with the first, although we should not be taken to accept that the Minister was not cautious in exercising the power.

42    Equally untenable is the proposition that the power in s 501BA may only be exercised on information or events which were not before the Tribunal. The appellant put that the Minister’s satisfaction of the national interest criterion must be founded on material that was not before the Tribunal even though, as we understood it, s 501CA(4) does not, in terms, require the Tribunal to address the national interest. Otherwise, it was put, the Minister should have appealed the Tribunal’s decision to the Court.

43    In our opinion, there is nothing in the section that provides a foundation for the proposition that the power may only be exercised on the basis of material which was not before the Tribunal. Further, we draw no negative implication from the existence of other provisions of Part 9 of the Migration Act and we reject the submission that the absence of new material fetters the Minister’s power in s 501BA(2). This ground fails.

Conclusion and orders

44    For these reasons, the appeal should be dismissed, with costs.

Associate:

Dated:    26 February 2019