FEDERAL COURT OF AUSTRALIA

Andrwas v Minister for Home Affairs [2019] FCAFC 78

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be 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    This is an appeal from a decision of a single judge of this court dismissing the appellant’s application for judicial review of a decision of the second respondent (the Tribunal). The Tribunal’s decision affirmed a decision of a delegate of the first respondent (the Minister) not to revoke the cancellation of the appellant’s visa.

2    The Tribunal made its decision pursuant to s 500(1)(ba) of the Migration Act 1958 (Cth) (the Act) (read with s 501CA(4) of the Act and s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth)). The Tribunal found that the appellant did not pass the character test as defined in s 501(6) of the Act, with the appellant’s circumstances falling within s 501(7)(c). The Tribunal was also not satisfied that there was any other reason why the cancellation decision should be revoked so as to enliven s 501CA(4)(b)(ii).

Background

3    The appellant is a citizen of Jordan. He was the holder of a Subclass 155 (Five Year Resident Return) visa (the visa).

4    The appellant has an extensive criminal history in Australia, involving a number of offences for fraud and deception committed between 2002 and 2016.

5    Of the 21 years he has spent in Australia, he has spent more than seven years in prison, for offences which commenced five years after he arrived here.

6    In January 2010, and again in February 2015, the appellant was issued with formal warnings by the Department of Immigration and Border Protection and the Department of Immigration and Citizenship, as the Department of Home Affairs was known at the relevant times, as to the possibility of visa cancellation in the event of further criminal offending.

7    On 15 December 2016, the appellant was convicted of six counts of dishonestly obtaining property by deception, and other related offences, as well as escaping from lawful custody, and was sentenced to three years and three months’ imprisonment, with a 22 month non-parole period.

8    Section 501(3A) of the Act provides that the Minister must cancel a visa if satisfied that the holder does not pass the character test because they have a substantial criminal record within the meaning of, relevantly, s 501(7)(c) (namely, if they have been sentenced to a term of imprisonment of 12 months or more), and the holder is serving a full-time sentence of imprisonment in a custodial institution for an offence against Australian law.

9    On 9 January 2017, the appellant’s visa was cancelled by a delegate of the Minister under s 501(3A).

10    On 10 February 2017, the appellant made representations to the Minister to have the cancellation revoked under s 501CA(4) of the Act.

11    On 9 April 2018, a delegate of the Minister exercised the discretion not to revoke the cancellation decision.

12    On 13 April 2018, the appellant applied to the Tribunal for review of the delegate’s decision pursuant to s 500(1)(ba) of the Act.

Decision of the Tribunal

13    The appellant’s application for review of the delegate’s decision was heard over three days. The appellant was represented by a solicitor.

14    There was no dispute that the appellant failed the character test because he had a substantial criminal record within the meaning of s 501(7)(c) of the Act.

15    It was then necessary for the Tribunal to ask whether there was another reason why the delegate’s decision should be revoked, in accordance with s 501CA(4)(b)(ii) of the Act.

16    The Tribunal correctly recognised that it was required to comply with a relevant direction of the Minister, Direction No. 65 - Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (Minister for Immigration and Border Protection, 22 December 2014) (Direction 65).

17    The Tribunal noted, correctly, that Direction 65 required it to take into account the three “primary considerations” set out at cl 13(2) and “other considerations relevant to the individual case”.

18    The primary considerations are: (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. The “other considerations”, which must be taken into account where relevant, include: (a) international non-refoulement obligations, (b) strength, nature and duration of ties, (c) impact on Australian business interests, (d) impact on victims and (e) extent of impediments if removed (Direction 65, cl 14).

19    The Tribunal concluded that the appellant’s criminal conduct was to be viewed very seriously, having regard to its significant extent and to the fact that offences were frequently committed while the appellant was on bail for similar offences. The Tribunal found that there was a significant risk that the appellant would engage in further criminal or other serious conduct, posing a significant risk of substantial harm to the Australian community, and concluded that “the risk to the Australian community weighs heavily in favour of a decision that the applicant’s visa be cancelled”.

20    The Tribunal also considered the interests of the appellant’s daughter, who was 16 at the time. The Tribunal concluded that the interest of the daughter in any revocation was of limited weight, because of the limited nature of her relationship with the appellant and because the daughter would soon be turning 18. The Tribunal concluded that “[o]n balance, I consider that this primary consideration is … outweighed by the other primary considerations such as the expectations and protection of the Australian community”.

21    The Tribunal concluded that consideration of the expectations of the Australian community weighed heavily in favour of not revoking the visa cancellation, having regard to the appellant’s prolonged disregard for Australian laws and the impact of his conduct on the Australian community, reasoning as follows (at [74] – [77]):

Clearly the applicant has not met the expectation that as a non-citizen he will obey the laws of this country. Of the 21 years he has spent in Australia, he has spent more than seven years in prison and additional time in immigration detention. His offending behaviour commenced only five years after arriving in Australia

In making the Direction, the Minister has made it clear that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens … The principles to be applied … that the right of a non-citizen to be able to come to or remain in Australia is a privilege conferred in the expectation that he or she is and will be law-abiding.

The serious nature and extent of the applicant’s criminal history demonstrates a prolonged disregard for Australian laws and for the impact his conduct has on the Australian community. Having twice received further opportunities to remain in the Australian community despite his offending, and having now offended again, the community would now expect that the applicant would be denied the opportunity to remain in Australia. He would no doubt have exhausted the trust and patience of the Australian community who would now expect that it is no longer appropriate for it to bear the cost of the resources expended in criminal justice and corrections involved in responding to the applicant’s offending.

This primary consideration weighs strongly in favour of not revoking the applicant visa cancellation.

22    The Tribunal accepted that the applicant has strong family ties to Australia, and also has friends and community members who support him. The Tribunal placed little weight on his length of residence in Australia and found that there was very limited evidence of the appellant’s positive contributions to the Australian community. Accordingly, the Tribunal found that the fact of the applicant’s strong ties to Australia “favours the applicant however it is significantly outweighed by the relevant primary considerations”.

23    The Tribunal had regard to concerns advanced by the appellant about returning to Jordan if he were removed, including:

(1)    the difficulties the appellant would face as a Christian in a predominantly Muslim country;

(2)    the fact of the appellant not having served in the military;

(3)    the appellant’s current lack of employment prospects or accommodation in Jordan;

(4)    the appellant’s limited family in Jordan who could offer him support;

(5)    the appellant’s need for medical and mental health treatment;

(6)    danger to the appellant arising from a “blood feud”; and

(7)    political unrest in Jordan.

24    The Tribunal found, however, having regard to numerous news clippings and the country information provided, the nature and extent of those impediments was not established on the evidence to be significant. In the case of the “blood feud”, the Tribunal found that there was no evidence of any such feud.

25    The Tribunal also accepted that the appellant suffered from a mental health condition requiring treatment, but found that such treatment would be available in Jordan, albeit that the appellant would need to re-establish a relationship with a medical provider and mental health specialist, and that the level of care available in Jordan might not be equal to that offered in Australia.

26    The Tribunal accordingly concluded that it “accept[s] that the applicant will face a period of adjustment in Jordan and face certain impediments. This factor favours the revocation of the cancellation of the applicant’s visa, however it is significantly outweighed by the primary considerations of the risk to the Australian community and the community’s expectations”.

27    For all of those reasons, the Tribunal was satisfied that the decision not to revoke cancellation of the applicant’s visa was the correct decision and it affirmed the decision under review.

Application for judicial review

28    The appellant then sought to review the decision of the Tribunal under s 476A of the Act before the primary judge.

29    The appellant argued five grounds said to constitute “jurisdictional error” by the Tribunal.

30    It is not necessary to recite each of those grounds in these reasons, or to go to the primary judge’s reasons in respect of them, because only one of them, the so-called “weighing issue”, is raised in this appeal.

31    The primary judge summarised the “weighing issue” as follows (at [3] of his reasons):

… [The Tribunal] failed to give appropriate weight to the statement in its reasons that the other two primary considerations in Direction 65 did not outweigh the primary consideration that the revocation of the cancellation was in the best interest of the applicant’s 16-year-old daughter and or (sic) it did not weigh all of the considerations in favour of revocation against those to the contrary.

32    His Honour rejected that ground, reasoning as follows (at [54]-[57] of his reasons):

There is some force in the applicant’s criticisms about how the Tribunal expressed its reasons. On the other hand, read fairly, when the Tribunal evaluated the best interests of the child in [71] and [72], it was considering matters as a whole, at least so far as the three primary considerations were concerned. And its consideration of the protection and expectations considerations, for the reasons it cogently explained, demonstrated that it saw those as weighing “heavily” and “strongly” in favour of not revoking the cancellation. Indeed, during its discussions of those two considerations, at [61] and [76], the Tribunal used even stronger adjectives to describe the very significant weight that it placed on the risk to the Australian community of the applicant in the future engaging again in criminal conduct, the need to protect the community from that risk, and the expectations of the community that a person who had his serious history of criminal offending, coupled with his two previous chances following the delegates’ two decisions to revoke the cancellation of his visa because of his prior offending, as factors that, in its view, turned the scales decisively against him. Similarly, the Tribunal concluded in [86] and [93], that the protection and expectations primary considerations “significantly outweighed” what might be said in the applicant’s favour from the strength, nature and duration of his ties to Australia and the extent of the impediments to him, were he removed.

Reading the Tribunal’s reasons fairly and as a whole, I am of opinion that, although the Tribunal could have expressed those reasons better, especially in [71] and [72], what it did was to explain its overall (final) conclusion that the decision to cancel the visa should be affirmed by reference to its consideration of all of the factors that it addressed. It explained the weight that it had ascribed to each positive and negative consideration as it went through each of them, but, in the context, that ultimate decision was one that it had arrived at and was now explaining after it had considered separately and cumulatively all of the matters that it was required to consider …

It would have been preferable had the Tribunal, in fact, said that it had looked at each of the considerations not only individually but also cumulatively. But reading the decision fairly and as a whole, I am of opinion that the Tribunal had weighed all of the considerations both individually and together but found decisive that the protection and expectations considerations together outweighed all the considerations favouring revocation of the decision to cancel the applicant’s visa. That is because its findings of the weight that it gave to the protection and expectations considerations were based on what the Tribunal characterised as a very serious, persistent history of offending over 16 years, the risk of further offending and what it found in [76], namely, that the community would expect that the visa remain cancelled.

For these reasons I reject the grounds raising each of the positive decision and weighing issues.

this appeal

33    The appellant, for whom Ms G A Costello of counsel appeared, relied on a single ground of appeal, having, if we may say so with respect, properly abandoned reliance on another proposed ground of appeal which was the subject of the appellant’s written submissions and not contended for below.

34    The ground of appeal is, in substance, that the primary judge erred in rejecting the weighing issue.

35    Ms Costello relied on four propositions, which she put in her oral submissions this way:

(1)    if the cumulative weighing had occurred, the Tribunal would have said so and it did not;

(2)    the fact that the Tribunal said that it had weighed singular factors against cumulative ones leads to an inference that there was no cumulative consideration of the positive considerations;

(3)    the cumulative weight to be given to the positive singular factors was material in this case, both by reason of the matters that are made necessary to consider under Direction 65, and because of the subject matter of those considerations (viz, the best interests of the child, ties to the Australian community and impediments to return); and

(4)    this is not a case where the component parts of the positive considerations were rejected, so that there was something in there that needed to be weighed up cumulatively.

36    Ms Costello put proposition (1) as meaning that “somewhere in the decision, if the appropriate weighing exercise had been undertaken, the [T]ribunal member would have said, ‘I weigh the cumulative positive factors against the negative ones’”. She went on to submit that “[i]t’s indicative of error when taken with the other four things I’ve taken you to, because the image of scales, the analogy of weighing, is, logically, something where there’s something on the other side of the ledger…But it’s unusual that you see this approach from the [T]ribunal where each positive factor is taken in the singular, and weighed against the cumulative negative ones, and then there’s nothing at the end that shows an overall consideration of the cumulative good things …”.

37    The “short point” is revealed in the following exchanges between counsel and the court:

WIGNEY J: So your argument is that if you look at [paragraphs] 72 and 86 [of the Tribunal’s reasons], which are … each of the considerations favourable to your client, on both occasions the [T]ribunal says they’re outweighed by the other primary considerations, but it doesn’t consider the two considerations positive to your client together?

MS COSTELLO: Yes, your Honour.

WIGNEY J: That’s the short point?

MS COSTELLO: Yes, your Honour.

….

WIGNEY J: So in each of those paragraphs, 72, 86 and 93, the factors positive to your client were said to have been outweighed by the primary considerations, plural, that the tribunal never said that those three considerations that were favourable to your client cumulatively were outweighed by the other considerations [in favour of revocation]?

MS COSTELLO: Yes, your Honour.

consideration

38    In our view, no appealable error is made out. The primary judge was correct in his view that the Tribunal weighed all of the considerations, both individually and together, but found decisive that the protection and expectations considerations together outweighed all the considerations favouring revocation of the decision to cancel the applicant’s visa.

39    Reading the reasons of the Tribunal as a whole, as one must, it seems to us clear, as the primary judge found, that the weight that the Tribunal gave to the protection and expectations considerations was based on a very serious and persistent history of offending over 16 years, the risk of further offending and the fact that the community would expect that the visa remain cancelled – and that those factors, taken in combination, outweighed the interests of the 17 year old child, the appellant’s ties to the Australian community and the impediments that he would face upon return to Jordan.

40    It is not necessary for a Tribunal in a matter such as this, where matters are to be weighed in the balance, to invoke some ritual incantation that “having considered all the matters cumulatively and individually” it reaches the relevant conclusion, if, by the course of its reasons, read as a whole, it is tolerably clear that that is what it has done.

41    For those reasons, the appeal will be dismissed with costs.

Associate:

Dated:    24 May 2019