FEDERAL COURT OF AUSTRALIA

Uriaere v Minister for Home Affairs [2019] FCAFC 235

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the appellant to amend the notice of appeal.

2.    Leave be granted to the appellant to raise new grounds on appeal.

3.    The appeal be allowed.

4.    Order 4 made by the primary judge on 21 December 2018 be set aside.

5.    The visa cancellation decision made by the respondent on 9 January 2018 be set aside.

6.    The appellant be released from immigration detention forthwith.

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

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

REASONS FOR JUDGMENT

THE COURT:

1    A delegate of the respondent, the Minister for Home Affairs, cancelled the visa of the appellant, Mr Wichman Ngaoa Uri Uriaere, on character grounds, as was mandated by s 501(3A) of the Migration Act 1958 (Cth). All statutory provisions referred to in the balance of these reasons are under the Migration Act.

2    Section 501CA provides that when mandatory visa cancellation takes place under s 501(3A), the Minister is required to notify the former visa holder and to invite representations to be made if revocation of the cancellation decision is sought. Mr Uriaere made such representations. A further delegate of the Minister refused to exercise the power in s 501CA(4) to revoke that visa cancellation in response to those representations. Mr Uriaere applied for merits review by the Administrative Appeals Tribunal. After a hearing, the Tribunal set aside the second delegate’s decision and revoked the visa cancellation.

3    The Minister exercised a personal power under s 501BA(2) to set aside the Tribunal’s favourable decision and instead cancel Mr Uriaere’s visa a second time. Section 501BA(3) provides that “[t]he rules of natural justice do not apply to a decision under subsection (2)”.

4    An application for judicial review heard by a judge of this Court failed on the application of the then established and applicable principles raised by the grounds of review before his Honour: Uriaere v Minister for Home Affairs [2018] FCA 2084. Mr Uriaere appealed from that decision upon various grounds that are no longer maintained. He no longer relies upon any asserted error on the part of the primary judge, but rather seeks to have his Honour’s order dismissing his application for judicial review set aside based upon a type of error subsequently identified in Ibrahim v Minister for Home Affairs [2019] FCAFC 89 and applied in Nguyen v Minister for Home Affairs [2019] FCAFC 128 and in Weti-Safwan v Minister for Home Affairs [2019] FCAFC 173.

5    In each of Ibrahim, Nguyen and Weti-Safwan, the Minister was found to have erroneously understood that s 501BA(3) did not just mean that he was not required to have regard to the rules of natural justice, but that he was precluded from having regard to those rules and therefore could not entertain further submissions from the visa holder as to why the visa should not be cancelled a second time. In each of those cases, the Full Court found that, on the available evidence, the error was material and therefore jurisdictional in nature, because there was a realistic possibility that the result could have been different if this mistake had not been made.

6    The Minister does not dispute that s 501BA(3) does not preclude the Minister from choosing to afford procedural fairness as part of the process in making a decision under s 501BA(2). The Minister accepts that him reading s 501BA(3) in that way is erroneous. However, the Minister contends that both Nguyen and this case are not like Ibrahim, such that the error made as to the effect of s 501BA(3) in both cases was not jurisdictional because it was not material. Alternatively, the Minister’s seeks to distinguish Nguyen and thereby to assert that the materiality of the error has not been established by Mr Uriaere so as to demonstrate that it is a jurisdictional error on the facts and circumstances of this case.

The salient facts

7    The primary judge summarised the facts succinctly as follows (at [4] to [6]):

Mr Uriaere was born in the Cook Islands and is a citizen of New Zealand. He left the Cook Islands and migrated to Australia with his family when he was four years old. He has not returned since that time. He has never lived in New Zealand. He is now 26 years old.

While he has lived in Australia almost all his life, Mr Uriaere never became an Australian citizen. He was permitted to live in Australia pursuant to a particular category of visa which allowed New Zealand citizens to reside and work in Australia while they remained New Zealand citizens: a Class TY Subclass 444 Special Category (Temporary) visa. Some of Mr Uriaere’s siblings appeared to have become Australian citizens, though that was mainly because they were born here. It may readily be assumed that Mr Uriaere now wishes that he too had become a citizen.

Mr Uriaere’s life in Australia has, to say the very least, not been trouble-free. He has an undeniably lengthy criminal record. His offending began in 2008, when he was only 16 years of age. He has been before various courts on many occasions since that time. Many, if not most, of the offences committed by him have been fairly minor. Some have been more serious and have led to sentences of imprisonment. He could fairly be described as having been a recidivist. The basal cause of his offending behaviour would appear to have been chronic substance abuse and the lifestyle which substance abuse of that sort almost invariably engenders. He has, albeit in fairly recent times, taken steps to try to beat his substance abuse. There have been some positive signs.

8    At all stages, a critical issue has been the assessment of the ongoing risk that Mr Uriaere poses to the community by reason of his lapses into reoffending, including by reason of recurrent substance abuse, and community expectations as to visa cancellation.

9    The Tribunal made the following findings as to community expectations (at [45] to [46]):

Community expectations would in my opinion take account of seven main things:

(a)    First, the important role which the applicant plays within his family, especially his younger siblings. The tragedy of the death of the father of the three younger children and its continuing effect on them would not fail to engage the sympathy of the Australian community, and the beneficial support role played by the applicant in the family, especially his younger siblings and his mother, who have itself done nothing to deserve the further misfortune of his removal to New Zealand.

(b)    Second, the fact that the applicant has lived here for twenty years, since he was five, and has the real possibility of contributing in positive ways to the community, despite his record.

(c)    Third, there is his record itself, which is substantial and such that removal to his country of origin (as he was warned might occur), would be regarded as something for which he has himself to blame.

(d)    Fourth, there is the quality of his offending, which, as the remarks on sentence made at the time of his most serious sentence indicate, was slightly above low range.

(e)    Fifth, there is the fact that he has undergone a course of rehabilitation which has involved him being drug-free for more than 20 months, as he has both the means and the strong motivation not to regress into a life of crime.

(f)    Sixth, the fact that he has no connection with New Zealand at all, despite his citizenship.

(g)    Finally, it seems to me that the community would appreciate that the applicant has served his time and now finds himself still deprived of his freedom because of immigration detention. Putting those things together suggests to me that especially because of the first factor I have mentioned, the Australian community would regard the revocation of the cancellation of the applicant's visa as the appropriate result. ·

The mandatory considerations which I am required to take into account include the various matters to which I have referred, and two of the primary considerations to which I have referred (the interests of minor children and the expectations of the community) favour revocation of the cancellation of the applicant's visa. The other considerations so far as relevant favour the same result. The past offending of the applicant produces the risk that he will reoffend. That risk is less in the case of this applicant than in others who face the same consequence. That is because the applicant is conscious that it is his family who will be the losers if he reoffends. It seems to me that the best interests of minor children is a factor that in appropriate cases, ought to be a primary factor and that this case is a good example of why that is so.

10    On the topic of the nature and exercise of the power in s 501BA(2), and the operation of s 501BA(3), the Minister stated (at [8] to [13]):

Section 501BA(4) of the Act provides that the power under s501BA(2) may only be exercised by me personally.

Under s501BA(3) of the Act, the rules of natural justice do not apply to a decision under s501BA(2). This means Mr URIAERE has not been advised that consideration was being given to his visa being cancelled and therefore he has not been given any opportunity to make representations regarding the possible cancellation of his visa, including the impact an adverse decision would have on him and third parties.

I am also cognisant that as a consequence of my decision to proceed under s501BA(2) without natural justice to Mr URIAERE, there is no revocation power to ameliorate the lack of natural justice in the decision and therefore Mr URIAERE will not at any stage be given an opportunity to make representations in relation to my decision.

I have also had regard to the fact that Mr URIAERE will not have access to merits review in relation to my decision.

I have carefully weighed these matters against proceeding under s501BA(2). However in this case, I have decided to proceed, even noting that the exercise of my s501BA(2) power will have real and practical consequences to Mr URIAERE and his family, they being third parties. In this instance Mr URIAERE's family includes: his mother, two adult sisters, two minor sisters and one minor brother, as well as members of Mr URIAERE's large extended family in Australia.

I also note that Mr URIAERE, in person, was able to present his case at the AAT in a thorough manner and on 4 October 2017 the AAT made a decision. Since that time approximately one month has elapsed and information before me may not reflect all of his current personal circumstances.

11    It should be noted that the reference in the last sentence of the Minister’s reasons reproduced above to the elapse of one month was incorrect. The period of time from the Tribunal’s assessment of the facts at a hearing on 25 and 29 September 2017 and the Minister’s decision on 9 January 2018 was closer to three and a half months, rather than one month. As will be seen, that longer period, and the evidence before the primary judge and this Court (but not before the Minister) as to what had transpired in that longer period of time, is of some importance.

12    In detailed reasons, the Minister weighed up the competing considerations favouring visa cancellation as against those against the exercise of the cancellation power. The consideration that prevailed was risk to the community from Mr Uriaere reoffending and continuing to take drugs. After summarising Mr Uriaere’s prior offences, the Minister made the following findings (at [149] to [152]):

I find that the Australian community could be exposed to significant harm should Mr URIAERE reoffend in a similar fashion or continue to breach the law and judicial orders. I could not rule out the possibility of further criminal conduct by Mr URIAERE. The Australian community should not tolerate the risk of further harm he poses.

I found the above consideration outweighed the countervailing considerations in Mr URIAERE's case, including the best interests of the affected children treated as a primary consideration, the impact on his family members, in particular his mother and siblings, and his progress towards rehabilitation. I have also considered the impediments he will face upon return to the Cook Islands or his relocation to New Zealand, noting the potential for this to adversely affect his ongoing rehabilitation.

I am cognisant that where significant harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of criminal conduct or other serious conduct by Mr URIAERE, than I otherwise would, because he has lived in Australia for most of his life, commencing from the age of four.

I consider that Mr URIAERE represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

13    Two undeniably important components of the Minister’s reasons for reaching that conclusion as to Mr Uriaere’s risk of reoffending were as follows:

(1)    at [61]:

Following his arrest in 2014, Mr URIAERE has been subject to remand, criminal and/or immigration detention until his return to the community following the Tribunal's decision on 4 October 2017. I consider that his rehabilitative progress and his ability to remain abstinent from drug use and other offending conduct in the community, in the long-term, is untested. I also consider that Mr URIAERE is likely to experience future stresses of the type which he associates with his most recent relapse into illicit drug use, and this may elevate his risk of re-offending.

(2)    at [82]:

The limited time of approximately one month since Mr URIAERE last returned to the community, and his relatively recent abstinence, mostly in a controlled environment, do not provide me with the confidence to accept his durability of, and ongoing progress towards, rehabilitation.

14    Thus, the Minister attached weight to there being insufficient evidence before him to suggest successful rehabilitation was likely due to the ongoing risk of drug use and reoffending, in the context of Mr Uriaere not being able to make further representations on those topics.

15    Before the primary judge was evidence from Mr Uriaere by way of an affidavit sworn 22 June 2018, directed to be filed by the primary judge in relation to the late filing of the application for judicial review. That affidavit collaterally made limited but important reference to the following matters which are relevant to the issue of successful rehabilitation identified by the Minister:

(1)    at [33]:

In 2017 I completed the Intensive Drug and Alcohol Treatment Program (IDATP) and have stayed clean since then.

(2)    at [41] to [42]:

Another reason why I seek review of the Minister's Decision is that when considering what is in the national interest he considered me as being at risk of re-offending.

When I was in prison I was seen by a psychiatrist who wrote a report about my efforts at rehabilitation. She was optimistic about my ability to get off drugs which I have succeeded in doing. The Judge acknowledged my ability to rehabilitate when he was handing down the sentence.

(3)    in part of [45]:

… I have recovered from the drug use which contributed to my bad behaviour in the past and believe that … the maturity I have now attained which will help me take care of my family and be a good and constructive member of the community.

Error in the application of s 501BA(3)

16    The first issue is whether the error identified in Ibrahim, Nguyen and Weti-Safwan has also been made in this case. That is not a difficult exercise. The Minister’s description of the nature and exercise of the power in s 501BA(2) and the operation of s 501BA(3), reproduced at [10] above:

(1)    is materially identical to that reproduced in Ibrahim at [29], but with some differences in his factual circumstances arising since the second delegate’s visa cancellation revocation decision (that is, it did not progress to the Tribunal);

(2)    is apparently substantially the same to that in Nguyen, because the Full Court at [39] in Nguyen said that the Minister’s reasons had that character when compared to Ibrahim at [29], with the only difference of note being the elapse of two and a half years since the visa cancellation revocation decision in Ibrahim, as opposed to the five months in Nguyen and the three and a half months in this case; and

(3)    is materially identical to that reproduced in Weti-Safwan at [14], but with an elapse of four months since the Tribunal’s visa cancellation revocation decision in that matter.

17    The nature of the error identified in each of those cases, is succinctly stated in Ibrahim (at [63]):

In our opinion, the Assistant Minister proceeding on the basis that he could not provide the appellant with an opportunity to be heard because s 501BA(2) precluded him from doing so was to misunderstand the nature of the power being exercised. He should have understood that it was open to him to invite submissions from the appellant if he chose. The matters to which we referred in [15] above indicate the materiality of the Assistant Minister’s misapprehension: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [31], [46], [66]-[72]. That has the consequence that the decision is affected by jurisdictional error. …

18    It is therefore clear that the Minister in this case made the same error as to the effect of s 501BA(3) as was made in Ibrahim, Nguyen and Weti-Safwan.

Materiality of the error as to the operation of s 501BA(3)

19    The parties largely differed in the view that should be taken of the material from Mr Uriaere, reproduced at [15] above, and also as to the correct test to be applied in the assessment of materiality.

20    In Ibrahim, there was affidavit evidence as to relevant material that would have been made available to the Minister had the error as to the operation of s 501BA(3) not been made, and a decision made to invite representations had instead been made. This evidence was adverted to in the passage from Ibrahim at [63] (in the reference to [15] of that judgment), reproduced above at [17]. That passage was referred to in Nguyen (at [48]), and, insofar as evidence was adduced by the appellant in that matter, it was found to go further than was necessary to demonstrate the materiality of the error. There was then some discussion in Nguyen (at [49] to [50]) as to what was required to establish materiality so as to show that an error was jurisdictional in accordance with Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1. In substance, the Full Court in Nguyen found (at [51]) that analysis of the kind that took place in Hossain was not necessary because there was already a clear causal link between the error and the Minister’s decision, and it could not be said that the failure to consider whether to give an opportunity to be heard was logically independent of, or could not have made any difference to the decision. The Full Court in Nguyen then reasoned (at [52] to [55]):

In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599, at [45], Bell, Gageler and Keane JJ said that materiality is in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision. (It was this reasoning with which Nettle and Gordon JJ disagreed in SZMTA at [90] and following, their Honours being of the view that materiality of error was not a criterion of jurisdictional error.)

We would conclude that although, as their Honours state at [46], the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof, those factual questions are likely to be more significant in a case concerning a breach of procedural fairness, which SZMTA was. That may be, at least in part, because obligations to afford procedural fairness, where “fairness” is to be regarded not in the abstract but as an “essentially practical” concept, reflect a concern to “avoid practical injustice”: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37].

However, it will not always be incumbent on a person who seeks to establish a jurisdictional error to demonstrate by evidence what would have, or may have, occurred had the relevant legal error not been made. First, a court may draw inferences as to whether the identified error could have affected the Minister’s decision. Second, much will turn on the facts of the case, the decision making process and the kind of error alleged. This is true even of breaches of procedural fairness: we do not see the statements in Hossain and in SZMTA as modifying what was said by Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [55]-[60]. Their Honours said:

[Quote omitted]

As we have said, the present appeal is not on analysis a procedural fairness case. It is, in our opinion, not a case where it is incumbent on the appellant to prove, by evidence, what may have occurred had the Minister correctly understood the nature of the power he was exercising.

21    The Minister does not take issue with the first of the paragraphs from Nguyen reproduced above ([52]), but submits that the preceding analysis, not reproduced, was erroneous to the extent that it suggested that the Minister bore any onus to show that no additional information could have made a difference. We do not consider that is how Nguyen should be read, but it ultimately does not matter. Moreover, if there is any conflict arising from Ibrahim and Nguyen as to what Mr Uriaere had to prove in order to establish materiality, which is doubtful, it is not necessary to resolve in this case because of the evidence that was available and, as it happened, was adduced by Mr Uriaere, albeit on a collateral point. If this Court is satisfied on the evidence before it that:

(1)    had the Minister not misdirected himself about the operation of s 501BA(3); and

(2)    if as a result he had sought further representations on the issues that were troubling him; and

(3)    such representations could realistically have produced a different result,

on any view, that will suffice. That level of satisfaction is readily able to be reached in the circumstances of this case.

22    The Minister was expressly concerned that there was insufficient material regarding Mr Uriaere’s time in the community free of drug-taking and reoffending to allay his concerns as to the assessment of Mr Uriaere’s risk to the community. The Minister’s reasons pointed to a month in the community being insufficient time. Necessarily, that meant a longer time was capable of providing more comfort and, perhaps, sufficient comfort. Given how important the Minister considered that issue to be, material that could have had a real bearing on allaying that concern held by the Minister is enough to render the error material by reason of creating the real possibility of a different decision.

Conclusion

23    The appeal must be allowed, the orders dismissing the judicial review application set aside; and in lieu thereof, the application be allowed and the Minister be ordered to release Mr Uriaere from immigration detention forthwith. The costs order made by the primary judge should stand, but the Minister should pay the costs of this appeal, notwithstanding the abandonment of prior grounds of appeal.

Associate:

Dated:    18 December 2019