Federal Court of Australia

TGWR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 200

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 28 October 2021 for leave to file and rely on the amended notice of appeal lodged on 12 October 2021 be dismissed.

2.    The interlocutory application filed on 28 October 2021 for the Court to receive further evidence on the appeal pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) and r 36.57 of the Federal Court Rules 2011 (Cth) be dismissed.

3.    The appeal be dismissed.

4.    The appellant pay the First Respondent’s costs of the appeal as agreed or, if not agreed, to be determined by a Registrar.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The appellant is a New Zealand citizen who was born in Australia to parents who were both citizens of New Zealand. The appellant has never acquired Australian citizenship and is not a citizen by virtue of s 12(1)(b) of the Citizenship Act 2007 (Cth) because he was not ordinarily resident in Australia throughout the 10 years commencing on the day he was born.

2    The appellant has a substantial criminal record and, on 16 December 2020, the Administrative Appeals Tribunal affirmed a decision of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of the appellant’s Subclass 444 Special Category (Temporary) visa pursuant to s 501(3A) of the Migration Act 1958 (Cth).

3    In Reasons delivered on 7 July 2021, the primary judge dismissed an application for judicial review of the Tribunal’s decision. This appeal is brought against that decision on the ground that the primary judge erred by failing to find that the Tribunal made a finding on the basis of no evidence, namely, that the ‘language and cultural barriers to the Applicant’s potential assimilation into Maori society in New Zealand …, would likely resolve with time.’

4    By interlocutory application filed on 28 October 2021, supported by an affidavit of the appellant affirmed the same day (which was read without objection), the appellant sought leave to rely on two further grounds that were not agitated before the primary judge and also sought leave to adduce further evidence on appeal.

5    For the reasons that follow, the application for leave to rely on the new grounds and to adduce further evidence on appeal should be dismissed, as should the remaining ground of appeal.

Background

6    With the exception of the nearly two and a half years he spent in New Zealand before he attained the age of ten, the appellant has spent his entire life in Australia, having been born in Australia in 1993. All of his immediate family reside in Australia and he attended school in Australia.

7    The appellant’s history of offending commenced in 2008 when he was still a child and escalated over the ensuing years. On 15 March 2019, he was sentenced to a term of imprisonment of five years and nine months for several offences committed in July of 2016, namely: two counts of robbery armed with offensive weapon; destroy or damage property by fire (<$2,000); aggravated break and enter and commit serious indictable offence (in company); take/detain in company with intention to get advantage; take/detain in company with intention to get advantage and occasion actual bodily harm; and several counts of dishonestly obtain financial advantage by deception.

Legislative provisions

8    Section 501(3A) of the Migration Act provides that the Minister must cancel a visa that has been granted to a person if:

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

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

. . .; and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

9    Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. It is not in dispute that the appellant did not pass the character test in s 501(1) of the Migration Act, because of the operation of subs (6)(a), on the basis of subs (7)(c).

10    Section 501CA of the Migration Act relevantly provides that:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

…

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

11    In reviewing the Minister’s decision on its merits, the Tribunal stands in the shoes of the Minister. In carrying out its statutory task, the Tribunal is required to give ‘meaningful consideration’ (by engaging in an ‘active intellectual process’) to any significant and clearly expressed relevant representations made by the applicant: Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [34], [36]-[37]; Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [46].

12    Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the performance of those functions or the exercise of those functions or powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 20 December 2018, the then Minister made Direction 79, which came into force on 28 February 2019, and which applied to the decision in respect of the appellant’s visa cancellation.

13    Paragraph 6.3 of Direction 79 provides as follows:

6.3    Principles

(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4)    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5)    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently, in Australia.

(7)    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

14    Paragraph 7(1)(b) of Direction 79 stipulates that, informed by the principles in paragraph 6.3 above, a decision-maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

15    Paragraph 8(1) stipulates that decision-makers must take into account the primary and other considerations relevant to the individual case (which, in the case of a decision whether to revoke the mandatory cancellation of a visa, are in Part C). Paragraph 8(3) of Direction 79 provides that both primary and other considerations may weigh in favour of, or against, whether or not to revoke a mandatory cancellation of a visa. Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations.

16    Paragraph 13(2) of Direction 79 provides that the following considerations are “primary considerations”:

(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.

17    Paragraph 14 of Direction 79 provides a non-exhaustive list of “other considerations” which must be taken into account by a decision-maker where relevant. These considerations include (but are not limited to): international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed. Only the second consideration, that of the strength, nature and duration of ties, and the fifth consideration, that of the extent of impediments if removed, are presently relevant.

18    Paragraph 14.2 of Direction 79 provides:

14.2    Strength, nature and duration of ties

(1)    The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

(a)    How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i.    less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii.    more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

(b)    The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

19    Paragraph 14.5 of Direction 79 provides:

14.5    Extent of impediments if removed

(1)    The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standard (in the context of what is generally available to other citizens of that country), taking into account:

(a)    The non-citizen’s age and health;

(b)    Whether there are substantial language or cultural barriers; and

(c)    Any social, medical and/or economic support available to them in that country.

20    The force and effect of Direction 79 made under s 499(1) of the Migration Act, albeit concerning its predecessor, Direction 65, was explained by the Full Court in Matthews v Minister for Home Affairs [2020] FCAFC 146. The Court said, at [45]:

…it is important to emphasise that the express purpose of Direction 65 is “to guide decision-makers performing functions or exercising powers under section 501 of the Act” (para 6.1(4), Direction 65; emphasis added). It remains the task of the Tribunal to determine what is and is not relevant in the circumstances of the individual case. Thus, as Perram J held by analogy in SZTMD [v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34] (in a passage also approved in [Minister for Home Affairs v] HSKJ [[2018] FCAFC 217; (2018) 266 FCR 591] at [44]):

20.    Although the applicant did not directly raise the issue, I would indicate that I accept Mr Hume’s submission that it was for the Tribunal to form an opinion as to what was relevant under cll 2 and 3 [of Ministerial Direction 56 made under s 499 of the Act] and what was not. The usual way of reading provisions such as these clauses is that they are construed as requiring the formation by the decision-maker of an opinion on the standard (here, relevance) imposed; that is to say, they are not generally construed as requiring the existence of a jurisdictional fact: see, for example, Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 466-468 (FC). Consequently, there is no occasion to consider whether this Court is of the opinion that there were relevant parts of the guidelines or country information. It is the Tribunal’s views on relevance which matter, not those of this Court.

The application for leave to amend and adduce fresh evidence

21    The principles applicable to determining whether leave ought to be granted to an appellant to raise a new ground of appeal were restated by the Full Court in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [13].

22    In the present circumstances, the appellant was represented by counsel before the primary judge and no evidence has been adduced explaining why neither of the proposed amended grounds of appeal were relied upon below. The Minister conceded that the proposed new grounds are not unmeritorious at an impressionistic level and that the only relevant prejudice to the Minister if leave is granted is that it will remove a right of appeal on the point with the remaining avenue for redress being the limited prospects of obtaining special leave to the High Court. The nature of such prejudice was considered by the Full Court in BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 161 ALD 441 at [28]-[29]:

… as Perram J emphasised in AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 (AAM15) [at [14]]:

… Pt 8 of the [Migration Act], which regulates judicial review of refugee determinations, ensures that there is one substantive trial in the Federal Circuit Court followed by one substantive appeal to this Court followed by a more cursory review by the High Court. If this Court, in substance, determines a case at first instance … this structure is thwarted because no appeal lies to the High Court other than by special leave which is rarely granted and then only on the grounds set out in s 35A of the Judiciary Act 1903 (Cth). If the matter is effectively tried in this Court then the appellant is denied a layer of appellate scrutiny.

The approach adopted by his Honour in AAM15 is consistent with the fact that, following the advent of special leave to appeal to the High Court, intermediate courts of appeal ought in general to be regarded as the final courts of appeal: Morris v R (1987) 163 CLR 454 at 475 (Dawson J) cited with approval in Smith Kline & French Laboratories (Aust) Ltd v Commonwealth (1991) 173 CLR 194 at 217-218 (the Court). As, by analogy, Kirby J, writing extra-judicially, has observed:

The interposition of the Court of Appeal in England produced ‘two tier appeals’, with a further avenue of appeal to the House of Lords, either by leave of the Court of Appeal or by the Law Lords themselves. However, as Sir Raymond Evershed explained in 1951, ‘[t]he Court of Appeal is the final court, in fact, for ninety-five per cent of the civil cases.’ The same was quickly to prove the case after the creation of the Australian permanent courts of appeal.

(Kirby, M, “Judicial Supersession: The Controversial Establishment of the New South Wales Court of Appeal” (2008) 30(2) Sydney Law Review 177)

23    The circumstances of the present case are redolent of those that risk first instance hearings becoming no more than ‘preliminary skirmishes’ (Tohi at [19]). Irrespective of the Minister’s concession as to the merits of the proposed new grounds at an impressionistic level, the appellant has not established that it is in the interests of justice for leave to be given to raise the proposed new grounds of appeal.

24    Without singling out counsel for the appellant (who presented the appellant’s case with economy and skill), it needs to be understood by those acting in migration appeals that they are not conducted by reference to bespoke rules, one of which is to allow an appellant to raise a new argument (or adduce new evidence in support of a new argument) simply because new counsel have been briefed. Like all civil litigation in this Court, migration appeals must be conducted in accordance with the case management imperatives in Pt VB of the Federal Court of Australia Act 1976 (Cth). In exercising a discretion relating to the grant of leave, the Court must exercise it in the way that best promotes the overarching purpose of the resolution of the dispute according to law, and as quickly, inexpensively and efficiently as possible: s 37M(3). These objectives are not promoted by giving appellants a second chance to run arguments that could have been run before a primary judge unless sound and cogent reasons are established. That is not the case here.

The proposed Ground 4

25    The proposed Ground 4 rises to no more than a complaint about the weight accorded to the Tribunal’s assessment of the strength, nature and duration of the appellant’s ties to Australia. This is not a valid ground of review. The ‘weighing of various pieces of evidence’ is a matter for the Tribunal, not for the Court: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [33]; Pallas v Minister for Home Affairs [2019] FCAFC 149 at [44].

26    The appellant contends that the Tribunal’s acceptance that the non-revocation of the cancellation decision ‘will impact [his close friends and relatives] to some degree’ (Tribunal’s reasons at [240]) was not an ‘honest confrontation of the what is being done to people’ and fell short of the ‘obligation of real consideration of the circumstances’ of the people so impacted: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 at [3]). Between [120] and [163] of its reasons, the Tribunal set out in detail the evidence that had been called on his behalf by his close friends and relatives. When dealing specifically with the requirements of paragraph 14.2 of Direction 79, the Tribunal summarised that evidence and accepted both the appellant’s evidence and that of the witnesses called on his behalf (Tribunal’s reasons [238], [240]). The Tribunal also gave weight to the ‘couple of years’ that the appellant contributed positively to the Australian community (Tribunal’s reasons at [239]) before drawing a conclusion in favour of the appellant – ‘The Tribunal gives this consideration limited weight in favour of revocation’ (Tribunal’s reasons at [241]). There is no merit to this ground.

27    Moreover, for the reasons discussed below, the appellant cannot discharge his onus of establishing that any error as alleged was material to the Tribunal’s decision.

28    Leave to amend the Notice of Appeal to include the proposed Ground 4 is refused.

Proposed Ground 6

29    Similarly, there is no merit to the proposed new Ground 6. The appellant contends that the Tribunal committed a jurisdictional error in failing to consider the character of the appellant’s violent conduct in custody as reactive or pre-emptive when considering both the nature and seriousness of the appellant’s conduct, as required by paragraph 13.1.1 of Direction 79, and the risk to the Australian community, as required by paragraph 13.1.2 of Direction 79.

30    The Tribunal clearly understood the appellant’s claim that he had been provoked, in relation to the boiling water incident, by having had a cup of hot water thrown at him by another inmate (Tribunal’s reasons at [93]-[94]), and that he had taken a pre-emptive strike, by way of a “king hit”, against an inmate who was rumoured to be planning on killing the appellant (Tribunal’s reasons at [99]-[100]).

31    The Tribunal’s reference to these two incidents, albeit without reference to the appellant’s reference to circumstances that were suggested to mitigate the seriousness of his violent conduct, in the introductory paragraph of the reasons dealing with paragraph 13.1.1 of Direction 79, cannot be read divorced from the earlier paragraphs where the Tribunal considered those incidents. No error is revealed.

32    Again, for the reasons discussed below, the appellant cannot discharge his onus of establishing that any error as alleged was material to the Tribunal’s decision.

33    Leave to amend the Notice of Appeal to include the proposed Ground 6 is also refused.

The fresh evidence

34    To the extent that the appellant seeks leave to adduce fresh evidence on the appeal pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth) and r 36.57 of the Federal Court Rules 2011 (Cth), that application should be refused.

35    Section 27 of the Federal Court of Australia Act 1976 (Cth) provides:

27    Evidence on appeal

In an appeal, the Court shall have regard to the evidence given in the proceedings out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence, which evidence may be taken:

(a)    on affidavit; or

(b)    by video link, audio link or other appropriate means in accordance with another provision of this Act or another law of the Commonwealth; or

(c)    by oral examination before the Court or a Judge; or

(d)    otherwise in accordance with section 46.

36    The appellant seeks to adduce the transcript of the hearing before the Tribunal. The relevant principles which guide the exercise of the Court’s discretion under s 27 were recently restated by the Full Court in Northern Land Council v Quall (No 3) [2021] FCAFC 2 at [16], per Griffiths and White JJ:

…Drawing on authorities including CDJ v VAJ [1998] HCA 67; 197 CLR 172; Cottrell v Wilcox [2002] FCAFC 53; Sobey v Nicol and Davies, in the Matter of Guiseppe Antonio Mercorella [2007] FCAFC 136; 245 ALR 389; Watson Australian Community Pharmacy Authority [2012] FCAFC 142; 206 FCR 365 and Kedem v Johnson Lawyers Legal Practice Pty Ltd [2014] FCAFC 3, they may be summarised as follows:

(1)    The discretion conferred by s 27 is unfettered, save that it must be exercised judicially and according to principle.

(2)    The power to receive further evidence is remedial and its primary purpose is to empower the Court to receive further evidence to ensure that proceedings do not miscarry.

(3)    The power is not constrained by common law rules that govern the grant of new trials on the ground of discovery of “fresh evidence”.

(4)    The following two considerations will normally be relevant to the exercise of the discretion:

(i)    the further evidence is such that, had it been adduced at trial, the result would very probably have been different; and

(ii)    the party seeking to adduce the evidence demonstrates that it was unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence;

(5)    The interests of third parties and the public at large may outweigh a party’s interest in the finality of litigation. For example, a greater willingness to receive further evidence on appeal has been apparent in bankruptcy matters which affect the interests of creditors generally.

37    The appellant has not discharged the onus of establishing that he was unaware of the transcript prior to the hearing before the primary judge. His affidavit evidence is in fact to the contrary. The affidavit reveals that the appellant had the transcript at 10.31am on 21 June 2021, shortly prior to the hearing before the primary judge on 23 June 2021. It is not apparent from the evidence why the transcript could not have been obtained earlier. Further, the appellant cannot demonstrate that, had the transcript been available in the hearing before the primary judge, the result very probably would have been different. This appeal only challenges the primary judge’s finding in relation to Ground 2 - the gravamen of the complaint being that there was no evidence before the Tribunal by which the critical factual finding was made. The Tribunal made extensive reference to the oral evidence before it and it is not suggested that any relevant parts of that evidence were not considered. In such circumstances, it is difficult to conceive of the need for a transcript to establish something which is said not to exist. Further, as we understand it, the transcript was only called in aid to establish that parts of the appellant’s evidence were unchallenged by the Minister’s representative before the Tribunal. But the real point of the contention of the Minister before the Tribunal was that whatever view the Tribunal took of the alleged mitigating circumstances surrounding the incidents, the conduct of the appellant was still violent and wholly unacceptable.

Ground 2 - Did the Tribunal make a critical factual finding on the basis of no evidence?

38    The appellant contends that the primary judge erred by failing to find that the Tribunal made a finding that the ‘language and cultural barriers to the Applicant’s potential assimilation into Maori society in New Zealand …, would likely resolve with time’ in the absence of any evidence to that effect. The particulars of this ground are as follows:

(i)    The Second Respondent found that the ‘language and cultural barriers to the Applicant’s potential assimilation into Maori society in New Zealand …, would likely resolve within time’ (AB 520 [250]) (Second Respondent’s finding).

(ii)    The primary judge found that ‘That observation amounts to little more than a finding that should barriers to assimilation into Maori society present themselves, the applicant would likely overcome some of them.’ (AB 547 [23], emphasis in original) (restyled finding)

(iii)    The restyled finding was not the finding in fact made by the Second Respondent.

(iv)    There was no evidence to support the Second Respondent’s finding.

(v)    In fact, the evidence tended against the Second Respondent’s finding.

39    In his first representations in support of his request for revocation of the cancellation decision, dated 6 November 2019, the appellant indicated that he had no diagnosed medical or psychological conditions. He wrote further that his ‘fear of moving to a country is that I have [n]o family other than here in Aus’.

40    In his evidence before the Tribunal, as recorded in the Tribunal’s reasons at [62], the appellant stated that ‘he regards himself as an Australian, and he has not embraced his Maori ancestry and culture, and had not learned the haka or how to speak Maori, and would find life difficult were he forced to return to New Zealand’.

41    The appellant’s mother also gave evidence to the Tribunal to the effect that the appellant identified himself as being an Australian citizen ‘to the point where he had always refused to learn the New Zealand Haka or learn his whakapapa (family/tribal history)’ (Tribunal’s reasons at [142]).

42    The Tribunal accepted that all of the appellant’s friends and close relatives reside in Australia and that the only relative in New Zealand with whom he is close is his grandmother (Tribunal’s Reasons at [244]). The Tribunal accepted the evidence of the appellant and his mother that he has practically nothing to do with most of his blood relatives in New Zealand (Tribunal’s reasons at [244]-[245]).

43    The Tribunal also accepted that there will be a degree of social adjustment required while noting that the appellant appears to be an able-bodied young man in good health who is fluent in the English language and should have no difficulty finding work if he seeks it. The Tribunal observed that if the appellant ‘chooses to show the side of himself which he has shown to those who gave such glowing evidence on his behalf, he should be able to establish a new and positive network quickly’ (Tribunal’s reasons at [246]).

44    The impugned finding is at [250] of the Tribunal’s reasons:

Whilst there may be some language and cultural barriers to the Applicant’s potential assimilation into Maori society in New Zealand, the Tribunal considers that they would likely resolve with time. The Tribunal also notes that New Zealand is a developed country, with a strong social welfare system which could assist him to get back on his feet. In any event, the Tribunal does not consider these issues to present any serious impairment to the Applicant’s ability to establish himself and maintain basic living standards in New Zealand.

45    This finding, and the paragraphs immediately preceding it appear under the heading, ‘(e) Extent of impediments if removed.’ It must be read in the context of the direction to the Tribunal prescribed by paragraph 14.5 of Direction 79 being:

the extent of any impediments that the non-citizen may face…in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a.    The non-citizen’s age and health;

b.    Whether there are substantial language or cultural barriers; and

c.    Any social, medical and/or economic support available to them in that country.

(emphasis added)

46    The Tribunal made a conclusory finding in favour of the appellant stating, ‘Overall the Tribunal views this consideration as being of slight weight in favour of revocation’ (Tribunal’s reasons at [251]).

47    As the primary judge said, the observation made by the Tribunal in the first sentence of [250] arises in the context of the earlier findings of the good health and English language skills of the appellant, that he should have no difficulty finding work, and that he should be able to establish a new and positive network quickly: it is an expression of likelihood (Reasons at [23]). Contrary to the appellant’s submission, the Tribunal’s finding was partial and contingent. Although the appellant’s evidence as to the cultural impediments specific to him was unchallenged, the Tribunal’s finding that he may face ‘some language and cultural barriers’ with respect to Maori culture was a partial finding about anticipated language and cultural barriers. It was contingent on the extent to which those barriers were likely to persist such that he would be unable to establish himself and maintain basic living standards (in the context of what is generally available to other citizens). No representation had been made by the appellant that he would face any language or cultural barriers in the context of New Zealand society as a whole, it being a developed country with a strong social welfare system and where English is the primary language.

48    Further, and again contrary to the appellant’s submission that there was ‘no evidence’ for the impugned finding, the evidence on which the earlier findings had been made, coupled with the ‘glowing’ references as to his character and work ethic provided a sound basis for that finding.

49    Despite the appellant’s attempt to impugn the primary judge’s explanation of the first sentence of [250], no error is revealed.

Materiality

50    The Minister submits that, even if there were an error, it was not material. The appellant bears the onus of establishing that, had the alleged error not been made, it could realistically have resulted in a different decision by the Tribunal: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 at [60] per Kiefel CJ, Gageler, Keane and Gleeson JJ.

51    The Tribunal found that Primary Consideration A [protection of the Australian community] ‘weighs extremely heavily in favour of non-revocation’ (Tribunal’s reasons at [254]) and that, ‘To the extent that Other Considerations weigh in favour of revoking the mandatory cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C’ [expectations of the Australian community] (Tribunal’s reasons at [254]). Primary Consideration B [best interests of minor children] was not relevant to the appellant’s circumstances.

52    In considering Primary Consideration A, the Tribunal referred to the remarks of the sentencing judge in the District Court of New South Wales (Tribunal’s reasons at [56]):

General principles that apply in this matter include, firstly, the totality of the criminal behaviour in undertaking it, and when the history is given, this is an ongoing and a serious matter, involving violence, threat and then execution against the adult victim, and in the presence of a young victim, who unfortunately has a number of issues which have resulted in his reaction being adversely affected greater than most.

53    The Tribunal also referred to the sentencing judge’s remarks in relation to the appellant’s antecedents (Tribunal’s reasons at [59]):

The offender’s criminal history commences, as I indicated, in his early teenage years, and it does involve some matters of seriousness. His antecedent history shows matters involving violence, such as an aggravated break and enter in company, common assault, what appears to be his first custodial matter which was perhaps a wounding, it is difficult to see, but nonetheless, he received on 17 May 2011 a period of custody under a control order at that time from the Children’s Court. There is an aggravated break and enter 2012, for which he received imprisonment of 22 months, of which there was 11 months of release in that time. It should be borne in mind that he was at that time, on my calculation, approximately 18 years. The last matter I believe to be possession of a firearm in the Sutherland Local Court in February 2013, for which he again received a period of custody.

54    As referred to by the Tribunal, a report from the New South Wales Department of Corrective Serviced dated 30 September 2019 discloses that the appellant was dealt with on 16 occasions for breaches of discipline while in custody. The breaches included a ‘king hit’ on a fellow inmate, throwing boiling water over another, intimidation, disobedience of directions, fighting and assault, and possessing prohibited goods such as a mobile phone, sim card, and drugs. The Tribunal acknowledged the appellant’s claim that he engaged in violence whilst in custody to protect himself (Tribunal’s reasons at [114]) but found that the appellant has repeatedly disregarded lawful authority whilst in custody (Tribunal’s reasons at [60]).

55    It is difficult to see that there could realistically have been a different decision by the Tribunal as to the overwhelming weight given to Primary Considerations A and C. The required threshold for materiality has not been met: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45] and [46] per Bell, Gageler and Keane JJ; MZAPC at [2]-[4] per Kiefel CJ, Gageler, Keane and Gleeson JJ.

56    Ground 2 cannot succeed.

Disposition

57    Leave to amend the notice of appeal and to adduce fresh evidence is refused and the appeal must be dismissed with costs.

Associate:

Dated:    19 November 2021