Federal Court of Australia

NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the respondent’s costs of the application.

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 was an application for review of a decision of the Administrative Appeals Tribunal (AAT) affirming a decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), not to revoke the cancellation of the applicant’s Partner (Residence) (Class BS) visa (visa). The applicant’s application was not prepared by a lawyer. The relief he sought, although not framed in precisely these terms, was:

(1)    The AAT’s decision be quashed;

(2)    The delegate of the Minister’s decision to cancel his visa be reviewed and revoked; and

(3)    The decision to refuse his bridging visa application be reviewed.

2    In the circumstances, this Court only has jurisdiction to consider the first matter.

Background

3    The applicant is a citizen of Vietnam who entered Australia with his wife and daughter on 1 July 2009 pursuant to the permission granted to him by a partner visa. He was granted permanent residency in 2015.

4    On 11 November 2017, an apprehended domestic violence order (DVO) was taken out against him for the protection of his wife and daughter consequent upon an incident which occurred in the family home. The applicant was alleged to have poured boiling soup down his wife’s back, causing her serious burns. He was arrested and charged over the incident.

5    On 26 November 2018, he was convicted of assault occasioning actual bodily harm and sentenced to 20 months’ imprisonment. The sentencing judge found that the victim’s injuries were very significant and entirely consistent with a person pouring boiling liquid over her back, and that there was no other way the injury could have occurred. Throughout the proceedings the applicant maintained his innocence and repeatedly alleged that his conviction was procured as a result of unlawful acts, including the modification of the record of his interview with the police upon arrest. The sentencing judge noted that he demonstrated no remorse or contrition and that he had declined legal representation.

6    The applicant unsuccessfully appealed that decision to the District Court of New South Wales, who dismissed the appeal on 26 April 2019. He also attempted to commence appeals in the New South Wales Court of Appeal and the High Court of Australia, and made various complaints to the NSW Judicial Commission concerning the conduct of the magistrate and District Court Judge, as well as various other judicial officers.

7    On 13 February 2019, a delegate of the Minister cancelled the applicant’s visa as mandated by s 501(3A) of the Migration Act 1958 (Cth) (the Act) (the cancellation decision). This was on the basis that he did not pass the character test because he had a substantial criminal record, having been sentenced to a term of imprisonment of more than 12 months: ss 501(6)(a) and 501(7)(c) of the Act. On 19 February 2019, he made representations seeking revocation of that cancellation decision. In summary, they were:

(1)    That he maintained he was innocent of the offence for which he had been convicted and sentenced, and indicated he had appealed his conviction to the District Court of NSW;

(2)    That he would face harm if returned to Vietnam because he was a human rights activist who criticised the Vietnamese government for their violation of human rights;

(3)    That he was a “good person” who followed the law and embraced Australian values (as evidenced by his charitable contributions);

(4)    That he had a strong Christian faith and a close relationship with his church; and

(5)    That he had a daughter who was an Australian citizen, with whom he maintained a meaningful relationship.

8    On 14 June 2019, the Department of Home Affairs informed him that it had received further information, namely the sentencing remarks of the sentencing judge, which might be taken into account when making the decision to revoke the cancellation decision. He was invited to comment on the further information.

9    On 1 July 2019, he replied to the Department. In his reply, he again strenuously maintained his innocence and claimed that the sentencing remarks were “counterfeit”, and “editted [sic.] to convict me”. The Department received further correspondence from him on 26 July 2019, in which he claimed the sentencing remarks were “badly modified” and a “fraud document”, and on 19 August 2019, in which he continued to maintain his innocence.

10    On 3 September 2019, the applicant filed an application in the AAT requesting a review of the cancellation decision. On 17 September 2019, the AAT informed him that it did not have the power to review the decision under s 500(4A)(c) of the Act, which provides that a decision of a delegate of the Minister under s 501(3A) to cancel a visa is not reviewable by the AAT.

11    On 9 December 2019, the applicant applied for a bridging visa. It appears that that application was refused.

12    On 20 February 2020, he filed an application in this Court for an extension of time to seek judicial review of the AAT’s decision of 17 September 2019. That application was dismissed on 12 March 2020.

13    On 12 March 2020, a delegate of the Minister decided not to revoke the cancellation decision (the revocation decision). It is unnecessary to discuss the reasons provided in any detail.

14    On 24 March 2020, the applicant applied for a protection visa. That application was denied on 11 May 2020.

15    It is not clear from the material when the applicant applied to the AAT for a review of the revocation decision, however he attended a hearing before the AAT on 18 May 2020. On 4 June 2020, the AAT affirmed the decision of the delegate not to revoke the original cancellation decision. The reasons of the AAT are discussed in detail below.

The decision of the AAT

16    The decision of the delegate was affirmed by Deputy President Pascoe. The Deputy President identified that as the applicant did not meet the character test set out in s 501(3A) of the Act, having been sentenced to a term of imprisonment of more than 12 months, the substantive issue before him was whether there was “another reason” why the original cancellation decision should be revoked under s 501CA(4)(b)(ii) of the Act.

17    The Deputy President began by comprehensively setting out the evidence before the AAT, noting that the applicant spent a “great deal” of the hearing discussing the circumstances leading to his conviction and continuing to maintain his innocence. The Deputy President then considered the relevant “primary considerations”, under Direction No. 79, namely the nature and seriousness of the applicant’s conduct and the risk to the Australian community which he posed.

Nature and seriousness of the applicant’s conduct

18    The Deputy President noted that the material before the AAT indicated that the applicant has had a history of domestic violence incidents involving the police, instigated variously by him or his ex-wife. On several occasions his former wife had indicated to police that he suffered from mental health episodes. The Deputy President concluded that, taken as a whole, that material indicated that the applicant was demonstrating “increasingly erratic behaviour” prior to his offending on 11 November 2017, and that he has potential underlying mental health issues that remain unaddressed and unacknowledged by him.

19    The Deputy President found that the offence for which the applicant was convicted was “clearly very serious”, and that the injuries sustained by his ex-wife as a result of his offending were extensive. The Deputy President observed that he continued to maintain his innocence in relation to the offence for which he was convicted, despite the sentencing judge noting that there was no other way in which the injury could have been sustained. The Deputy President concluded that his failure to accept blame and his desire to apportion blame to his ex-wife added further weight to the seriousness of the offence.

Risk to the Australian community

20    The Deputy President noted that although the applicant had only been found guilty of one offence, it was a very serious domestic violence offence, involving substantial injury to the applicant’s ex-wife. Although the Deputy President indicated that it appeared the applicant has an underlying mental health issue which might have been exculpatory, the applicant denied this.

21    The Deputy President observed that a lot of time at the hearing was expended by the applicant protesting his innocence in relation to the offence with which he was convicted, despite him being reminded that it was not open to the AAT to “go behind his conviction” and determine that question. The Deputy President relied upon HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121 (HZCP) as authority for this proposition. From this, the Deputy President concluded that the applicant had little or no insight into the nature of his offence and did not accept any responsibility at all. Accordingly, the Deputy President found that there was a serious risk of him re-offending, a consideration which weighed significantly in favour of non-revocation of the original cancellation decision.

Expectations of the Australian community

22    The Deputy President noted that the AAT is guided by the Government’s views as to the expectations of the Australian community, citing FYBR v Minister for Home Affairs (2019) 272 FCR 454 and YNQY v Minister for Immigration and Border Protection [2017] FCA 1466. He observed that the Australian community has no tolerance for domestic violence and expects non-citizens to obey Australian law. This was, therefore, a consideration which weighed heavily against the revocation of the decision of the delegate.

Other considerations

23    In considering the applicant’s ties to the Australian community, the Deputy President observed that the applicant arrived in Australia when he was approximately 34 years old, and that he had spent most of his life in Vietnam. The Deputy President also noted that although the applicant said that he wished to pursue a relationship with his daughter, there was no evidence before the AAT that this desire was mutual. Indeed, the Deputy President noted that the applicant had had very little contact with his daughter over the preceding two years, and that there was a DVO in place which prevented him from contacting her or seeing her. Other than his daughter, the applicant’s immediate family members all live in Vietnam. While the applicant produced many statements of support, the Deputy President concluded that little weight could be placed on them given none of the authors appeared or were subject to cross-examination. The Deputy President therefore concluded that the applicant’s ties to Australia were limited.

24    In considering the extent of the impediments to the applicant if returned to Vietnam, the Deputy President noted that he spoke Vietnamese fluently, was clearly familiar with Vietnam and had family connections there. The Deputy President found that it was unlikely he would face any significant language or cultural barriers in Vietnam. Although the applicant did not raise any medical issues that could be adversely affected if he had to return to Vietnam, the Deputy President found it likely that he had underlying mental health issues that might pose issues for him in terms of accessing health care in Vietnam. The Deputy President also observed that the applicant had made claims that he would be put in danger if he were to be returned to Vietnam, either as a result of his religion or his activism. The Deputy President concluded that at best, those claims were vague and lacked specificity. Overall, the Deputy President accepted that there may be some impediments to the applicant’s removal which weighed moderately in favour of revocation.

25    In considering Australia’s international non-refoulement obligations, the Deputy President noted that the applicant had claimed in his protection visa application and at the hearing that he would face persecution in Vietnam because of his religion and his human rights activism, however provided no evidence to support these claims. The Deputy President therefore distinguished the applicant’s circumstances from those under consideration in Omar v Minister for Home Affairs [2019] FCA 279, as the applicant had not presented a “serious and substantive basis in fact and law” for the vague and generalised representations he made, and did not present any detailed submissions to the AAT. The Deputy President also noted that while the Department’s refusal of the applicant’s protection visa application was not conclusive as to whether non-refoulement obligations are owed to him, it did give weight to the conclusion that his fear of harm was not well founded. The Deputy President concluded that it was impossible to conclude that Australia’s obligations under international law were engaged.

26    The Deputy President ultimately decided that on the evidence presented, the correct and preferable decision was to affirm the delegate’s decision not to revoke the cancellation of the applicant’s visa.

The grounds of review

27    On 7 July 2020, the applicant filed an originating application for review of the AAT’s decision which set out three grounds of review. Broadly speaking, they were:

(1)    that the AAT’s decision was infected by error;

(2)    that the AAT relied on fraudulent or false documents in the course of making its decision; and

(3)    that the applicant was placed at an unfair disadvantage and was unable to properly defend himself because he was in detention and self-represented at the hearing.

28    No particulars were given of any of these grounds of review, and no submissions were filed by or on behalf of the applicant.

Consideration

Course of the hearing

29    The hearing was conducted online via Microsoft Teams. The applicant was in immigration detention and was assisted by an interpreter.

30    During the course of the hearing the applicant was invited by the presiding judge on numerous occasions to identify what he said were the errors or mistakes in the decision of the AAT. He steadfastly refused to take up that invitation despite constant encouragement to do so. The consequence was that the court was left without any coherent articulation of why the AAT’s decision was affected by any error.

Failure to join the AAT as a party

31    The applicant failed to join the AAT as a party to the present application. This was despite an order being made on 18 August 2020 at a case management hearing for him to do so by 1 September 2020. This was again raised with the applicant during the hearing of the application. He was unable to provide any explanation as to why he chose not to join the AAT as a respondent to his application.

32    This omission is fatal to his application. It is the AAT that made the impugned decision, even though it was exercising all the powers of the Minister in doing so. It is the party whose decision is sought to be quashed by the relief sought in paragraph 1 of the application. That is, in effect, a request for the issuing of a writ of certiorari against the AAT. If that relief were granted, a necessary consequence would be the issuing of a constitutional writ of mandamus requiring the AAT to make a decision according to law. In order for the Court to make either of these orders the AAT must be a party to these proceedings. Indeed, in order for the decision to be set aside the applicant must establish a jurisdictional error in the AAT’s decision and not the antecedent decision of the Minister or his delegate.

33    The result is that the application is not properly constituted and must fail for that reason alone. That is so regardless of the fact that the AAT will ordinarily file a submitting appearance and abide by the order of the Court: R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35 – 36. It might also be added that the failure to join the AAT to the proceedings may well deny it the character of a Ch III “matter”: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, 324 – 325 [91]; Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168, 231.

34    In any event, even had the AAT been joined, for the reasons which follow the application cannot succeed.

New ground asserted during the hearing of the application

35    In the course of the hearing of the application, the applicant submitted that the transcript of the hearing before the AAT was inaccurate. He asked that an audio recording or an audio-visual recording of the hearing be provided to him so that he could compare it to the transcript which was produced. He did not identify to the Court any error, mistake or mis-transcription in the transcript and he did not identify how any such defect might have any impact on the outcome of these proceedings. There was no basis for any criticism raised in relation to the transcript which was included in the material before the Court.

36    In any event, the transcript was not relied upon by either party for any purpose connected with any issue relating to the application.

Ground 1 of the application for review – un-particularised error

37    This ground was an unparticularised assertion of error in the decision of the AAT. Due to the vagueness of the application for review and the applicant’s failure to file submissions, the Court is unable to ascertain what error was alleged to have been made by the AAT. The applicant was unable to articulate this ground any further during the course of the hearing. The failure to particularise a ground of review is itself a sufficient basis to dismiss it: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 [35]; SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 [21]. Moreover, the reasons of the AAT have been set out in detail above and there is nothing which suggests the existence of a jurisdictional error in the cogent reasons of the Deputy President. The Deputy President considered each of the applicant’s claims, his findings were open on the evidence, and those findings demonstrated an evident, transparent and intelligible justification for the decision to affirm the delegate’s decision: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 350 – 351 [26] – [28]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, 445 – 446 [44].

38    This ground must be dismissed.

Ground 2 of the application for review – fraudulent or false documents

39    In respect of this ground, the applicant alleged that “G Document” (as he referred to it), had been relied upon by the AAT and the department, but was “fraudulent and false”. This appears to be a reference to the bundle of documents in the application book given the description on their cover page of “G Documents”. Collectively this bundle constitutes the material which was before the AAT and includes what would ordinarily be referred to as “T documents” filed with the AAT pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth). Counsel for the Minister explained that the documents are referred to as “G Documents” purportedly because they were provided pursuant to s 501G of the Act, which relevantly provides that where a decision is made by the Minister’s delegate not to revoke a decision to cancel a visa, the Minister must give the person affected a written notice which must be accompanied by two copies of every document, or part of a document, that is in the delegate’s possession or under the delegate’s control, that was relevant to the making of the decision, and does not contain non-disclosable information.

40    From the application for review, it was not clear which documents in this bundle were alleged to be fraudulent or false or, indeed, why they might fit either of those descriptions. In the course of the hearing, the applicant continued to assert that several documents included in this bundle were “fake” or “falsified”, including the transcript of the police’s interview with his daughter, his criminal history, and the transcript of the sentencing judge’s remarks. He failed to identify the manner in which such documents were deficient or defective. Ultimately, he did not establish that any of the documents before the AAT lacked any veracity.

41    The applicant’s primary complaint centred on several pages which he claimed were missing from the transcript of the police’s interview with his daughter. Before the AAT the applicant’s McKenzie friend asked the Deputy President whether he would like to hear the audio of the original interview, which he claimed would prove that the transcript did not accurately reflect the recording. The Deputy President declined to listen to the audio file, but took from the applicant’s submissions that he had a strong relationship with his daughter, and that she believes in his innocence. This was apparently the import of the applicant’s contentions in this regard. His complaint in respect of the other two documents, being his criminal history and the transcript of the sentencing judge’s remarks, related to the fact that he believed he had been wrongfully convicted.

42    In his reasons for decision, the Deputy President stated at [42]:

A lot of time at the hearing was taken up by the applicant protesting his innocence and claiming that the police had framed him in relation to the incident for which he was convicted. This was despite the applicant being continually reminded that it was not open to the Tribunal to go behind his conviction to determine the applicant’s guilt or innocence, and that this was established by the Federal Court in the case of HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.

43    During the course of the hearing before this Court the applicant repeated his claims that he was innocent of the charges of which he had been convicted, although his assertions in that regard were lacking in detail or concerned diverse matters the relevance of which to the issues before the Court was tangential at best.

44    It can be taken that the essential point which the applicant wishes to make before this Court is that he was innocent of the charge for which he was convicted on 26 November 2018. That charge related to the offence of assault occasioning actual bodily harm which he committed in 2017. It would appear that he wishes to assert that his alleged innocence undermines and or negates the conclusion that he did not satisfy the character test in s 501(6) of the Act. The difficulty with this is that in HZCP at 135 – 136 [63] – [68], the Full Court of this Court (McKerracher J with whom Colvin J agreed) held in relation to s 501CA(4)(b) that it was impermissible for the decision maker to consider material which was inconsistent with or sought to impugn the conviction and sentence which established that the applicant failed the character test which, subsequently, enlivened the power to revoke the cancellation decision. McKerracher J held that it could not have been the intention of the Parliament to permit evidence contrary to the essential facts which underlay the conviction and sentence on which the power rested and that was so regardless of whether it was sought to establish that the character test had been passed or that there was “another reason” as to why the cancellation decision should be revoked. In relation to the latter occasion his Honour said (at 139 [77])

As a matter of policy, it would be highly undesirable if the Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of “another reason” on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome.

45    Colvin J generally agreed with the reasons of McKerracher J and added (at 164 [181]):

In an administrative law context, some decision-making powers conferred by legislation depend upon the fact of a particular criminal conviction or sentence. They require its existence and confer no power to go behind it in the course of the exercise of the power. In such cases, the conviction or sentence becomes a foundation upon which the decision-maker must proceed (there may be others). The statutory authority reposed in the decision-maker does not extend to questioning the very matter the existence of which enlivens the power conferred by the statute. Other statutory powers may require the fact of the conviction or sentence to be accepted and given effect in the course of the decision-making process.

46    As neither the correctness of HZCP nor the import of the nuances in the separate reasons of McKerracher J and Colvin J were the subject of any submission before this Court, the correctness of the majority’s reasoning can be assumed for present purposes. That being so, in this proceeding where the only purpose for asserting the lack of veracity in certain documents was to impugn the applicant’s conviction and sentence, the AAT was correct to hold that it was not entitled to consider such matters. It follows that the applicant’s reliance on the alleged fraudulent nature of certain of the documents in the material before the Court is misplaced.

47    It should also be added that, even if this were a case where the evidence raised was for a purpose other than undermining the enlivening of the decision-maker’s power, the applicant’s assertions come nowhere near the threshold required to vitiate the conviction. As Colvin J said in HZCP (at 165 [189]):

The defence of criminal proceedings is a matter in which the accused person may be expected to have taken considerable interest. The prosecution must discharge a high burden of proof according to formal rules of evidence and by means of a procedure that is keenly attuned to ensuring a fair process for the accused. For those reasons, where before an administrative decision-maker reliance is placed upon the fact of a conviction or a sentence, great weight is to be afforded the factual findings that necessarily underpin the conviction or sentence especially where it is the criminal defendant who is inviting an administrative tribunal to reach a different view as to the facts.

48    Before the AAT the applicant did not attempt to establish the circumstances of his conviction or the nature of the evidence which supported it. That being so, it was impossible to make any assessment of whether or how his assertions as to the veracity of documents before the Court could have possibly displaced the compelling weight of his convictions. Indeed, at best that evidence indicated, as the Deputy President in fact accepted, that the applicant’s daughter believed him to be innocent. On the state of the material this does nothing to undermine the sentencing judge’s observation that the injuries sustained by the applicant’s wife could only have occurred by his hand.

49    In the result there is no substance in ground 2 of the application for review.

Ground 3 of the application for review – disadvantage due to lack of legal representation

50    Again, this ground was vague and unparticularised. At its highest, this ground appears to be an assertion that the applicant was denied procedural fairness by reason of being self-represented and being in immigration detention during the hearing.

51    Ordinarily a self-represented litigant must be given a reasonable opportunity to present evidence and make submissions in support of his or her case: Chetcuti v Minister for Immigration and Border Protection (2019) 270 FCR 335, 356 [106]. As observed by Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 86 [99], “[t]he basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her”. See also Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138 [51] – [57].

52    However, in a review hearing before the AAT, Division 4 of Part 7 of the Act provides an exhaustive statement of the requirements of natural justice: s 422B of the Act. In this respect, it should be noted that the applicant attended a hearing before the AAT on 18 May 2020 where he was assisted by a McKenzie friend and an interpreter. The applicant was not able to identify for the Court any matter or event which rendered the hearing unfair to him in any way. The absence of any particulars of this ground or any substantive submissions meant that it ought to be dismissed for this reason alone. Ultimately it cannot be concluded that the applicant was denied procedural fairness in the hearing before the AAT.

53    However, it should be noted that the applicant’s complaint appeared to extend beyond the conduct of the hearing before the AAT. He further alleged he had been denied the opportunity to properly defend himself because his continued detention prevented him from sourcing adequate legal assistance. The bare fact that the applicant was in immigration detention is not a basis for establishing jurisdictional error on the part of the AAT. This is an issue faced by all those held in immigration detention, and indeed by all prisoners incarcerated on remand: Katelaris v Director of Public Prosecutions (NSW) [2018] NSWCCA 193 [16]. Significantly, the applicant was not denied the opportunity to attend and participate in the hearing before the AAT: cf Minister for Immigration and Citizenship v MZYLE (2011) 123 ALD 548.

54    For these reasons, this ground also fails.

Other relief sought

55    The applicant also requested the Court to review the cancellation decision and the refusal of his bridging visa application.

56    In respect of the cancellation decision, the scheme of the Act required the Minister to give the applicant an opportunity to make representations about the revocation of the cancellation decision (s 501CA of the Act). In the event the delegate of the Minister refuses to revoke the cancellation decision, the applicant may apply to the AAT for a review of that refusal (s 500(1)(ba) of the Act) and this Court is entitled to consider an application to review the AAT’s decision (s 476A(1)(b) of the Act). However, the antecedent decision to cancel the applicant’s visa cannot be reviewed by the AAT (s 500(4A)(c) of the Act), and is not open to challenge in any event, as it is mandated by the Act itself. In respect of the applicant, s 501(3A) of the Act obliged the Minister to cancel his visa because he did not pass the character test, having been sentenced to a term of imprisonment of more than 12 months: ss 501(6)(a) and 501(7)(c). Consequently, there was no error in the Minister cancelling the applicant’s visa as he did and there is no basis on which the applicant could challenge that decision.

57    In respect of the decision to refuse the applicant’s bridging visa application, this decision was not the subject of the AAT’s review. While the applicant’s application for a bridging visa was included in the application book, the notification of the rejection of the application was not before the Court. As a consequence it is not known who made the decision rejecting the application and when and on what grounds it was refused. It follows that even if this Court had jurisdiction to review the refusal to grant the bridging visa, no basis has been demonstrated to suggest the existence of any error in the refusal decision. This relief must also be refused.

Conclusion

58    The necessary conclusion from the foregoing is that the application must be dismissed. There is no detectable jurisdictional error in the AAT’s decision.

59    In the circumstances the applicant must pay the Minister’s costs of the application.

Associate:

Dated:    16 October 2020