FEDERAL COURT OF AUSTRALIA

Narayan v Minister for Home Affairs [2019] FCAFC 143

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from orders made by a judge of this Court on 25 February 2019 whereby an application for judicial review was dismissed with costs. The appellant had failed in an application to have the cancellation of his visa under s 501(3A) of the Migration Act 1958 (Cth) revoked under s 501CA(4) of that Act. The Assistant Minister for Immigration and Border Protection was not satisfied that the appellant passed the character test in s 501 of the Migration Act, and was not satisfied that there was another reason why the original cancellation decision should be revoked. The Respondent to this appeal is the Minister for Home Affairs.

2    The sole ground of judicial review under s 476A of the Migration Act advanced before the primary judge was that the reasons given by the Assistant Minister for the decision not to revoke the cancellation decision were legally unreasonable. That contention was based upon an argument that the factors favouring revocation were so overwhelming that it was legally unreasonable for them not to prevail over the factors favouring non-revocation. In a concise judgement, his Honour considered the Assistant Minister’s reasons and the arguments advanced as to why those reasons were said to be legally unreasonable. His Honour:

(1)    paid careful heed to the leading High Court and Full Court authority on the topic of legal unreasonableness and summarised that authority as follows (at [5]-[6]):

The relevant authorities need not be detailed. They are well-known and are not in dispute between the parties. Very recently in Singh v Minister for Home Affairs [2019] FCAFC 3, the Full Court (Reeves, O’Callaghan and Thawley JJ) explained at [61] that:

The question of whether a decision is legally unreasonable is answered by reference to whether or not the decision is within the scope of the statutory authority conferred on the decision-maker; it involves an assessment of whether the decision was lawful or authorised having regard to the scope, purpose and objects of the statutory source of power.

This is the guiding principle to be drawn from cases such as Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408. As Mr Burwood submitted, such a conclusion of legal unreasonableness might be drawn in a number of different circumstances. It could be, to adopt the categorisation in Singh at [61], if the decision:

(1)    is “illogical”, though an inference of unreasonableness will not be supported merely because a decision appears to be irrational: SZVFW at [10] (Kiefel CJ); [82] (Nettle and Gordon JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [68] (Hayne, Kiefel and Bell JJ);

(2)    “lacks an evident and intelligible justification”: Li at [76] (Hayne, Kiefel and Bell JJ); SZVFW at [10] (Kiefel CJ), [82] (Nettle and Gordon JJ);

(3)    is plainly unjust, arbitrary, capricious or lacking in common-sense: Stretton at [11] per (Allsop CJ, with whom Griffiths and Wigney JJ relevantly agreed at [87], [90]); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81 at [35] (Flick, Perry and Charlesworth JJ).

There is no criticism of that summary.

(2)    reasoned as follows (at [7]-[12]):

In the present case, counsel put particular emphasis on legal unreasonableness being evident in circumstances where the decision itself, and in particular, the impact of the decision was “plainly unjust”.

In pointing to the particular unjustness in relation to the current decision, the applicant relied on an argument which had two aspects. The first is that there were a series of findings made by the [Assistant] Minister which did not involve any credibility issues and which pointed strongly in favour of revocation. The second aspect is the detriment visited upon the applicant’s wife and stepchild (and also on the applicant himself). These adverse consequences are said to be so plain and unattended by doubt that they overwhelm any arguments pointing in the contrary direction. Moreover, to the extent that arguments against revocation exist, they are based on the [Assistant] Minister’s prognostications, not on findings as to past events.

Counsel expanded upon these arguments in oral submissions by taking me through the [Assistant] Minister’s decision at some length to explain the very significant impact of the decision on the applicant’s stepdaughter and wife (both of whom are Australian citizens), and also on the applicant himself.

As to the stepdaughter, a minor at the time of the decision, the [Assistant] Minister found that it was in her best interests for the mandatory visa cancellation to be revoked: see [23]. In relation to the applicant’s wife, a finding was made at [32] that a non-revocation decision would result in emotional, physical and financial hardship for both the applicant’s wife and also her two daughters (including the stepdaughter). Detailed findings were also made as to the strength, nature and duration of ties of the applicant to Australia.

After taking me through the decision, the ultimate submission of Mr Burwood was that it demonstrated that “there were many pluses for revoking the cancellation, [but] … protection of the Australian community was a counterweight in the balance which was a heavier … weight than the pluses”: at T12.10-12. It was submitted that when viewed as a whole, the sheer strength of the findings relating to the applicant’s ties to his family and to Australia generally, means that one is left with a sense that the [Assistant] Minister’s ultimate decision is plainly unjust. There is a need, as counsel submitted, to look at the decision overall.

Given the way in which the argument of the applicant was developed, there was, obviously enough, no attack on the way in which the [Assistant] Minister made findings which were said to favour a revocation decision. As to the factors pointing in the other direction, in considering whether the applicant posed a risk to the Australian community, it is clear from the reasons, that this analysis involved consideration of the evidence in some detail: see [58]-[68]. The [Assistant] Minister had regard to the applicant’s “multiple offending that involved domestic violence” and noted that some of that offending occurred “while he was subject to good behaviour bonds” demonstrating a “lack of regard for judicial orders designed to assist him rehabilitate in the community whilst avoiding imprisonment”: see [65]. After recognising that the evidence indicated that the applicant had made “some progress” towards rehabilitation: see [67], the [Assistant] Minister ultimately found at [68], that for the reasons he had canvassed, there was an “ongoing likelihood” of the applicant reoffending, and the [Assistant] Minister found that should that occur, there is a risk that he could cause “physical and/or psychological harm to his wife … or to other members of the Australian community”. Counsel for the applicant sought to raise an argument in reply, that the findings against revocation were theoretical hypotheses, based upon findings of past events and behaviours. They were therefore not as strong as those findings in favour of revocation, which were based on material which was accepted as evidence with good credibility. However counsel did acknowledge, correctly, the risk of falling into merits review with such an argument.

(3)    concluded as follows (at [13]-[14]):

The Full Court’s decision in Stretton makes it clear that the correct approach for me to take, is to assess whether the [Assistant] Minister’s decision “should be characterised as one which was not a reasonable and rational exercise of the power made in furtherance of the protection of the Australian community”: see 8-9 [21]-[22] per Allsop CJ.

There is always a danger in these cases of slipping into merits review. Notwithstanding the efforts of counsel for the applicant to suggest that the decision is a plainly unjust (and hence legally unreasonable) one, there is no basis upon which I could form the view that the decision was not within the scope of the statutory authority conferred on the [Assistant] Minister. The [Assistant] Minister took into account all relevant claims raised, and on balance, decided that the danger to the community and potentially the applicant’s wife, “outweighed the best interests of his minor stepdaughter as a primary consideration, and any other considerations as described”: at [76]. On no view of it could it be said that the decision was one which no rational or logical decision-maker could have arrived at on the evidence. Although a different mind may have reached a different conclusion, as the authorities make plain, this is not enough and the application must be dismissed with costs.

3    The notice of appeal is generic in that it does not identify any part of either the Assistant Minister’s reasons or the primary judge’s reasons that are said to contain an error. With corrections and reorganisation of the text to render the grounds intelligible, they are as follows:

1.    The learned primary judge erred in [not] finding that the Assistant Minister for Immigration and Border Protection (Assistant Minister) failed to give proper consideration to certain matters identified in the statement of reasons as steps in the decision making process.

Particulars

(a)    The learned primary judge did not conclude that the Assistant Minister was “required” to make “an assessment as to whether what was put forward had factual merit” after the [application] was unsuccessful.

(b)    The learned primary judge did not identify a range of claims (Claims) that the Assistant Minister was required to take into account after the amended application was filed on 27/11/2018.

(c)    The learned primary judge should have found that, on evidence, it could be established that the Assistant Minister had failed to give proper consideration to the Claims. Indeed, the learned primary judge should have found that the Assistant Minister had not sufficiently addressed those Claims.

2.    The learned primary judge erred in [not] concluding that the assistant Minister's reasoning process was fundamentally flawed by reason of jurisdictional error

Particulars

(a)    The grounds of the amended application

(b)    Further, the learned primary judge erred in [not] finding that the Assistant [Minister]’s assessment as to the potential for any further offending by the appellant to cause physical harm to members of the Australia community was an assessment without any rational foundation.

4    As the Minister points out, ground 1 is in fact only a proposed ground of appeal, because it was not raised before the primary judge. Leave of this Court to rely upon that ground is therefore required.

5    The appellant was not legally represented. He did not furnish written submissions prior to or at the appeal hearing. He made oral submissions to the following effect:

(1)    It was unjust for him to be held in a detention centre.

(2)    He has done the wrong thing, and has been to prison, but the harm he caused was towards his family, not anyone else, and the most important thing was that his family forgave him for his actions, being violence towards his wife.

(3)    When asked by the presiding judge what he said was wrong with the Assistant Minister’s reasons for deciding not to revoke the cancellation of the appellant’s visa, directing his attention to those reasons in the appeal book, he realised that there was an important document that was not referred to, which he had given to his case officer. He outlined what was in the document and said that it was a letter he had written in about August 2016. He said it was a different document to other letters he had written that were included in the appeal book, and concerned what he had said would happen to him if he went back to Fiji, because his father (who died in 2013) witnessed something by the military personnel of the Commonwealth of Fiji, and that was why he and his family were in danger. He said his father had been kidnapped after that incident.

(4)    The appellant told the Court that he did not have a copy of the letter in Court and did not have a copy of the letter when he appeared before the primary judge. The Court directed the Minister to conduct a search for the document and gave leave for the appellant and the Minister to make submissions about any such document, if located. After the Court had adjourned, the appellant sent a copy by facsimile of a handwritten document that he said he was referring to, dated 6 August 2016, which is further discussed below.

(5)    What the [Assistant] Minister said is “right” and that he has made a lot of mistakes in his life. If he had received the treatment 10 or 12 years ago that he is receiving now, he would have been a better person, because he had been suffering from PTSD that he had been told was due to what he had been through when he was young. If he could get his visa back, he would go out and prove to the community and to the [Assistant] Minister that he can change and become a better person. He talks to his wife and children every single day and, as can be seen from the letters from his wife and his daughter, they have forgiven him for what he had done and his wife does see changes in him. It was pointed out to the appellant that these were all matters for the [Assistant] Minister to decide.

(6)    The [Assistant] Minister “got it right for what he has put down on his submission” as to what he had done, but was wrong for not giving him another chance. He has done courses and rehabilitated himself. There are worse people than him who have gone out and done the same thing, but that is why, when offenders get out of prison, they get parole.

(7)    When he first got to the detention centre he was in a maximum security compound, but he is now in minimum security, which shows that he did change and that he has taken steps towards controlling his anger and fixing his problems.

6    The Minister furnished and relied upon written submissions to the following effect:

(1)    Leave of this Court to rely upon proposed ground 1 should not granted because there is no apparent merit, because no substance to the proposed ground can be discerned, and no reason has been given for failing to raise this ground before the primary judge, noting that the appellant was legally represented before the primary judge, and citing as authority for these factors justifying the refusal of leave VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46]-[48].

(2)    Ground 2, generously interpreted as asserting error on the part of the primary judge in rejecting the contention that the Assistant Minister’s reasons were affected by legal unreasonableness, does not identify any error on the part of the primary judge, and none is apparent. The Minister therefore submits that this ground of appeal should be rejected and the appeal dismissed.

Letter furnished after the appeal hearing

7    At about 3.36 pm on the afternoon after the appeal hearing, the appellant sent a document by facsimile to the Court and to the Minister, said to be the letter that he was referring to as not being in the appeal book: see [5(3)-(4)] above. The Minister advised the Court by an email from his solicitors that there are no documents, or record of such documents, which match the description given by the appellant, nor any other correspondence around that time referring to the abovementioned incident regarding the appellant’s father in the possession of the Minister’s Department. The email from the Minister’s solicitors further advised that the Minister’s Department has no record of receiving the letter dated 6 August 2016 provided by the appellant.

8    The appellant purported to provide further submissions in accordance with the leave that was granted at the appeal hearing: see [5(4)] above. However, the submissions that were furnished did not address any aspect of the letter that was provided by facsimile by the appellant after the appeal hearing. Leave to file those submissions was therefore refused, and no further submissions were sought from the Minister as a result.

9    It is not necessary to decide whether the letter now furnished to the Court by the appellant is genuine, nor why it was not raised by the appellant when he made his request for revocation and gave reasonably detailed reasons as to why that should take place. Nor is it necessary to consider why this letter was not annexed to the affidavit that the appellant swore on 4 June 2017 in the proceedings before the primary judge, being an affidavit that was accompanied by another letter or submission by the appellant; nor why this document was not provided nor even referred to before the primary judge, noting that the document now provided was not in the application book before his Honour (which forms part of the appeal book before this Court), nor was it provided at any time prior to the appeal hearing. The simple fact is that the letter was not before the Assistant Minister and no fault for that has been shown to lie at the Minister’s feet. In those circumstances, the absence of this letter is incapable of establishing any error on the part of the primary judge, nor any antecedent error on the part of the Assistant Minister in declining to revoke the cancellation of the appellant’s visa.

10    Further, and in any event and for completeness, the claims made in the letter now provided to the Court refer to an alleged incident in 2002, when the appellant’s father is said to have witnessed a murder. The letter asserts that the murder was committed by a member of the Fiji military. The letter asserts that his father filed a report with the police, but at that time Fiji was being run by an interim military government due to a coup, which had put the police under the Fijian military. As a result, the letter states, the appellant’s father’s report was stonewalled and no investigation was carried out. The letter then states that his father thought it was best for him, the appellant, to go to Australia in order to protect him. The letter claims the appellant’s father was kidnapped before the appellant came to Australia and told by his kidnappers that if he opens his mouth, the whole family would face injustice. That was why his father deemed it extremely necessary that the appellant get out of Fiji. The letter says his father died in 2013, after years of living in fear and anxiety. The letter says that his father made him promise not to return to Fiji.

11    The harm that the appellant claims to fear as identified in this letter arose out of threats made if his father spoke out. There is no suggestion in the letter that the threats arose out of anything that the appellant himself had done or could do. The alleged threats were made to the appellant as a means of securing silence by his father. Now that his father has died, the foundation for the only basis for the threats referred to no longer exists. In those circumstances, the omission of the letter cannot be seen to have been capable of making any difference to the Assistant Minister’s decision.

Consideration

Proposed ground 1

12    As to proposed ground 1, it should be noted that the Assistant Minister’s decision was made on 24 May 2017. The appellant must have received the reasons a relatively short time later, as he commented upon them in some detail in an affidavit dated 4 June 2017. The initial hearing before the primary judge took place just over nine months later, on 27 March 2018. The judicial review application was then adjourned to allow for a Full Court decision to be delivered in Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; 362 ALR 9, which had a bearing on a ground of review initially relied upon, turning upon the Assistant Minister’s treatment of Australia’s non-refoulement obligations. The decision in BHA17, delivered on 4 May 2018, resulted in the prospective ground being abandoned and the filing on 26 November 2018 of an amended originating application signed by the appellant’s legal representative, advancing the ground of legal unreasonableness before the primary judge.

13    The ground of legal unreasonableness was pressed at the second judicial review hearing on 25 February 2019. The primary judge (at [3]) thanked pro bono counsel for appearing and praised the “careful way in which he has sought to advance every argument that could be legitimately maintained on behalf of the [appellant]”. The appellant has therefore been afforded ample time and opportunity in which to bring all and any grounds of review that were available to him. Leave to rely upon this new ground of review should therefore be refused for the reasons advanced by the Minister. That is, there has been nothing provided to indicate that the proposed ground has any merit, and no sufficient reason has been advanced for this proposed ground not being advanced before the primary judge.

Ground 2

14    As to ground 2, again the Minister's submission should be accepted. No error has been identified on the part of the primary judge. No legal unreasonableness in the Assistant Minister’s reasons is apparent for the reasons that his Honour explained. No error on the part of the primary judge has been established. This ground of appeal must therefore fail.

Conclusion

15    The appeal must be dismissed with costs.

Associate:

Dated:    23 August 2019