Federal Court of Australia

Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the second respondent dated 8 November 2022 be set aside.

2.    The matter be remitted to the second respondent for redetermination according to law.

3.    The first respondent pay the applicant’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    This is an application in the Court’s original jurisdiction under s 476A(1)(b) of the Migration Act 1958 (Cth) seeking judicial review of a decision of the Administrative Appeals Tribunal by one of its Deputy Presidents. That decision set aside a decision of a delegate of the relevant Minister (now the applicant) to not revoke the cancellation of the first respondent’s permanent resident’s visa pursuant to s 501CA(4) of the Act.

2    The Tribunal is named as the second respondent, but as it has filed a submitting appearance and has had no further involvement in the matter it is convenient to refer to the first respondent as simply the respondent.

3    The Minister relies on three grounds of review, with the second and third grounds raising essentially the same error but putting it in two different ways. For the reasons given below, we are satisfied that the Minister has established jurisdictional error on the first ground of review. For that reason, the application must succeed and it is unnecessary to consider the other grounds.

Background

4    The respondent is a citizen of Portugal. He moved to Australia from what is now the Portuguese Autonomous Region of Madeira with his parents and five siblings in April 1975. He was nine years old. He has lived in, and not left, Australia since then. He speaks little Portuguese.

5    Although he had some prior convictions for minor offences, on 3 May 2007, the respondent was sentenced in the NSW District Court to imprisonment for six years with a three year non-parole period for an offence of sexual intercourse without consent. That is his most serious offence. He served three and a half years before being released on parole. On 29 January 2010, the respondent was informed that a decision had been made not to cancel his visa, but he was warned of the consequences of further offending.

6    On 25 June 2018, the respondent pleaded guilty in the NSW Local Court at Wollongong to an offence of “cause or set fire to the property of another or Crown” and was sentenced to one year imprisonment with a nine month non-parole period. The Tribunal recorded that before the Magistrate the respondent was unable to provide any explanation for his conduct other than the fact that he had lost his employment and began consuming the drug ice at the age of 51 or 52. He claimed that he was under the influence of ice when he set the fire and had no recollection of committing the offence. However, before the Tribunal the respondent claimed that the grass in the park where the fire was lit was untidy and he wanted to clean up the area.

7    On 15 August 2018, the respondent’s visa was mandatorily cancelled under s 501(3A) of the Act. The respondent was renotified of this decision on 20 January 2022 under s 501CA(3) and invited to make representations to the Minister about revocation of the cancellation decision. The respondent took up that invitation.

8    On 16 August 2022, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the cancellation decision.

9    The respondent sought review of the delegate’s decision by the Tribunal. On 8 November 2022, after a hearing on the merits, the Tribunal set aside the delegate’s decision.

The statutory framework

10    Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the “character test” and the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence.

11    Relevantly, a person does not pass the “character test” under s 501(6)(a) as read with s 501(7)(c) if they have been sentenced to a term of imprisonment of 12 months or more.

12    By s 501CA(3), as soon as practicable after the cancellation decision under s 501(3A) is made, the Minister must give notice of the cancellation decision to the person and invite them to make representations to the Minister about revocation of the decision.

13    By s 501CA(4), the Minister may revoke the original decision if the person makes representations in accordance with the invitation and, relevantly, the Minister is satisfied that there is “another reason” why the original decision should be revoked.

14    The decisions referred to in the above-mentioned provisions are not required to be made by the Minister personally. They can be made by a delegate of the Minister. In that regard, under s 499(1), the Minister may give written directions to a person or body having functions or powers under the Act about the performance of those functions or the exercise of those powers. By s 499(2A), the relevant person or body must comply with a direction under sub-s (1).

15    The relevant Minister has published several directions from time to time on visa refusal and cancellation under s 501 and the revocation of mandatory cancellation of a visa under s 501CA. At the time of the decision of the Tribunal the applicable direction was Direction No. 90. It was given by the then Minister on 8 March 2021 with a commencement date of 15 April 2021.

16    In Pt 1 of Direction No. 90, the preamble in para 5 identifies objectives of the Act with regard to the refusal or cancellation of a visa on character grounds and sets out principles that provide the framework within which decision-makers should approach their task in making the relevant decision.

17    Part 2 of Direction No. 90 deals with “Exercising the discretion”. It provides that a decision-maker must take into account the considerations identified in paras 8 and 9, where relevant to the decision (para 6). Paragraphs 8 and 9 identify “Primary considerations” and “Other considerations” respectively. It is provided that primary considerations should generally be given greater weight than the other considerations (para 7(2)).

18    Paragraph 8 identifies four primary considerations in the making of a relevant decision, namely (1) protection of the Australian community from criminal or other serious conduct; (2) whether the conduct engaged in constituted family violence; (3) the best interests of minor children in Australia; and (4) expectations of the Australian community.

19    Paragraphs 8.1 to 8.3 deal with the first three primary considerations.

20    As will be seen, review ground 1 turns on the Tribunal’s treatment of primary consideration (4). Paragraph 8.4, which deals with “Expectations of the Australian Community”, relevantly provides as follows:

(1)     The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

(2)     In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a)     acts of family violence; or

(b)     causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c)     commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

(d)     commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e)    involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern, including, but not limited to, war crimes, crimes against humanity and slavery; or

(f)    worker exploitation.

(3)     The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

(4)     This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

21    Paragraph 9 identifies four “Other considerations”, namely, but not limited to, (1) international non-refoulement obligations; (2) extent of impediments if removed; (3) impact on victims; and (4) links to the Australian community, including strength, nature and duration of ties to Australia and impact on Australian business interests.

The Tribunal’s decision

22    The Tribunal commenced its reasons by identifying the relevant provisions of the Act and acknowledging the applicability of Direction No. 90. It also identified the four primary considerations and the four “other considerations”. After detailing relevant background, the Tribunal concluded that the respondent does not pass the character test because he has a substantial criminal record as defined in the Act, and identified the remaining question to be whether there is “another reason” why the original decision should be revoked. There is no issue in the review application with regard to the respondent failing the character test. The application is directed to the second question.

23    After setting out relevant facts with regard to the respondent’s background, including aspects of his criminal history, the Tribunal turned to consider the primary considerations. It concluded that the consideration of protecting the Australian community from criminal or other serious conduct weighs against revocation, the consideration of family violence is not relevant and the consideration of the best interests of minor children in Australia weighs slightly in favour of revocation.

24    With regard to the fourth primary consideration, the expectations of the Australian community, the Tribunal correctly identified with reference to para 8.4(4) of the Direction and FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 at [75] that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying the consideration – the expectations of the Australian community that decision-makers are required to consider are those set out in Direction No. 90 at paragraph 8.4. The Tribunal also recognised, with reference to YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76], that the consideration is “in substance … adverse to any applicant”.

25    The Tribunal then canvassed aspects of the respondent’s criminality and his medical history and present condition. In the latter regard, the Tribunal considered the report of a forensic psychiatrist, Dr Stephen H Allnutt. The Tribunal noted from the report that the respondent has a history of drug use. He also has mental health diagnoses of a mood disorder – chronic major depressive disorder or a persistent depressive disorder. The Tribunal also noted a number of matters relevant to the hardship that the respondent would likely face if removed to Portugal that Dr Alnutt identified in his report, including that he has no family or friends or job opportunities overseas, he has lived with his mother with whom he has a close bond, and that he would be at a significant disadvantage as compared to a person of normal mind given his recurrent and/or persistent depressive condition and because he is HIV positive. Dr Allnutt concluded that if the respondent were deported, he would likely experience a deterioration in his mental state with aggravation of his mental condition.

26    The Tribunal then concluded (at [63]) as follows with regard to the consideration of the expectations of the Australian community – being the conclusion at the heart of review ground 1:

Based upon these factors, the community expectation, whilst deploring the offences with which the applicant has been convicted, would balance such feelings with the fact that the applicant is, and it appears has been for a considerable time, mentally unwell. Accordingly, this factor would weigh in favour of revocation of the decision to cancel a visa.

27    The Tribunal then considered each of the “other considerations”, concluding that consideration of international non-refoulement obligations was neutral; the extent of impediments to the respondent if removed from Australia weighs in favour of revocation; the strength, nature and duration of the respondent’s ties to Australia weigh strongly in favour of revocation; and, the impact on victims and on Australian business interests did not bear on the decision.

28    Finally, the Tribunal considered whether there is “another reason” to revoke the cancellation of the visa. The Tribunal listed 14 different considerations or factors and then concluded (at [87]) as follows:

In weighing the competing considerations and the weight to be given to all relevant considerations, primary consideration A supports non-revocation; primary consideration B is not relevant; primary consideration C is slightly in favour of revocation and primary consideration D is strongly in favour of revocation.

(Emphasis added.)

29    Primary consideration D, as referred to by the Tribunal, is the primary consideration of the expectations of the Australian community.

30    After again noting that the evidence is that the respondent’s mental health is likely to deteriorate if he were deported and could lead to suicide, the Tribunal was ultimately satisfied that there is another reason why the original decision to cancel the respondent’s visa should be revoked.

Review Ground 1

31    The Minister puts review ground 1 as follows in the originating application:

The Tribunal failed to comply with para 8.4(4) of Direction 90, as at [63] it has made its own assessment of community expectations, and found that they favoured revocation of the cancellation of the first respondent’s visa.

Consideration

32    The Full Court in FYBR considered an earlier iteration of Direction No. 90, namely Direction No. 65 that was given by the Minister on 22 December 2014. The essential structure and approach of Direction No. 90 is much the same as Direction No. 65. The earlier Direction also identified primary and “other” considerations. Like Direction No. 90, one of the primary considerations was the expectations of the Australian community. Much of the wording of the relevant paragraphs (paras 6.3 and 11.3) of Direction No. 65 is the same or similar to that in para 8.4 of Direction No. 90, except that the latter Direction is even clearer in material respects, its changed wording having been apparently based in part on the decision in FYBR.

33    Relevantly, in FYBR it was held (by Charlesworth and Stewart JJ in separate judgments, Flick J dissenting) that the relevant clause:

(1)    expresses an expectation deemed by the Government to be held by the Australian community and that it is not the role of the decision-maker to undertake an assessment of what the community expectations are in each case (at [61], [66]-[67] and [75] per Charlesworth J and [86], [97], [101] and [103]-[104] per Stewart J); and

(2)    gives expression to an expectation that must of its nature weigh against the grant of a visa in every case (at [75] per Charlesworth J and [86] and [101]-[102] per Stewart J).

34    It was also held that it is up to the decision-maker, after having considered the primary and other considerations, to reach their own view as to whether the non-citizen should or should not be granted a visa or, in the case of a revocation decision, whether or not the cancellation of the non-citizen’s visa should be revoked (at [73] and [79] per Charlesworth J and [92] and [105] per Stewart J). That is to say, although Charlesworth J held that the deemed expectation of the Australian community is that if the non-citizen fails the character test they will have their visa refused or cancelled (at [72] and [75]) and Stewart J disagreed and held that the deemed expectation is that failing the character test will be held against the non-citizen but that the expectation does not speak to the outcome in any given case (at [97] and [103]), the majority were agreed the expectations of the Australian community, as expressed by the Government in the Direction, do not determine the outcome of the decision because all relevant factors have to be weighed up and considered.

35    Direction No. 90 is consistent with the above, save that it is even clearer in certain respects. First, it makes it express in paras 8.4(1) and (2) that the expectation of the community is not that failure of the character test should result in the non-citizen being denied a visa or their visa being cancelled – that expectation is confined to the particularly egregious types of cases set out in para 8.4(2). The character test as expressed in ss 501(6) and (7) of the Act can be failed on lesser bases. Secondly, para 8.4(4) expressly provides that “decision-makers should proceed on the basis of the Government’s views” as articulated in the Direction, “without independently assessing the community’s expectations in the particular case” (emphasis added).

36    On that analysis, there are on the face of it two errors by the Tribunal evident in [63] (quoted at [26] above). First, the Tribunal independently assessed the community expectation. Secondly, the Tribunal concluded that this factor would weigh in favour of revocation of the decision to cancel the respondent’s visa.

37    The submissions on behalf of the respondent advance four reasons why it should be concluded that the Tribunal did not make a jurisdictional error in the respects identified.

38    First, it is submitted on behalf of the respondent that the use of the word “should” in para 8.4(4) has the result that that paragraph does not impose a mandatory requirement. In support of that submission, attention is drawn to Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 at [34]-[41] where it was identified that some of the provisions of the Direction are mandatory and others are expressed only to offer guidance. The respondent draws attention to the use of the word “must”, eg, in para 6 which provides that a decision-make “must” take into account the primary and other considerations where relevant to the decision, compared to the use of “should” in para 8.4(4).

39    It is correct that the Direction sets out guiding and mandatory considerations, ie, that not all of what it says is mandatory. In Williams, Mortimer J observed (at [39]-[40]) that the parts of the Direction there under consideration headed “General Guidance” and “Principles”, which loosely correspond with the “Objectives” (para 5.1) and “Principles” (para 5.2) sections of Direction No. 90, purport to offer “guidance” only, but that the remainder of the Direction is intended to, and does more than, “offer guidance”. Her Honour held that the Direction prescribes, to a significant extent, how the relevant discretion is to be exercised. That analysis applies equally to Direction No. 90.

40    It is to be observed that s 499(2A) of the Act, as mentioned, provides that a person or body “must” comply with a direction given under s 499(1) – reference is expressly made to that requirement in para 5.1(4) of Direction No. 90. Also, the Direction provides that the decision-maker “must”, amongst other things, consider the expectations of the Australian Government as expressed in the Direction (para 5.2(4), 5.2(5) and 6 read with 8.4(4)), and that expression of the expectations applies as a “norm” (para 8.4(1)). In that context, “should” in para 8.4(4) is indicative of a requirement that must be followed; it is mandatory. That is because it would be inconsistent to read, for example, para 6 as being mandatory because of its use of the word “must”, with the result that the relevant consideration must be taken into account, but reading para 8.4(4) as merely offering guidance thereby permitting the decision-maker to arrive at its own view or assessment of what the expectations of the Australian community are. It is to be noted that one of the meanings of “should” is to convey duty or obligation rather than merely guidance: Oxford English Dictionary online version, “shall” (meaning no. 18.a). Reading “should” as indicating only guidance would also be inconsistent with what was held in FYBR, and the acceptance by the Court in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] that a failure to comply with the relevant Direction’s express requirements as to the conditions to be brought into account and the manner in which those considerations were to be weighed in deciding whether to revoke a visa cancellation would be jurisdictional.

41    Secondly, it is submitted on behalf of the respondent that at [63] the Tribunal was not itself making an assessment as to community expectations, but was rather saying that the community expectations as deemed had to be balanced against “the fact” that the respondent is mentally unwell.

42    That submission cannot be accepted because it is contrary to the language employed by the Tribunal. The Tribunal expressly stated in [63] that “the community expectation … would balance such feelings [ie, deploring the applicant’s offences] with the fact that the applicant is … mentally unwell”. The respondent’s contended for reading of the sentence is not available on this language.

43    Thirdly, it is submitted on behalf of the respondent that the Direction does not forbid the Tribunal from having regard and giving weight to its own views or its own assessment of community expectations “outside the prism of paragraph 8.4”. Attention is drawn to para 9(1) of the Direction which requires the Tribunal to take account of “other considerations” where relevant, and that such considerations are not limited to the four identified “other considerations” in that paragraph.

44    Leaving aside whether the Tribunal can permissibly have independent regard to community expectations as assessed by it, which must be considered at least doubtful given the Direction’s express provisions with regard to that subject which can be expected to cover the field, the submission fails on the facts. That is because the Tribunal did not take account of its own assessment of community expectations “outside the prism of para 8.4(4)”. On the contrary, it made its own assessment of community expectations expressly within the context of its consideration of para 8.4. That is a clear error.

45    Finally, it is submitted on behalf of the respondent that the error, if it is that, is not material, and therefore does not amount to jurisdictional error, because whether the Tribunal took into account the respondent’s mental illness in its consideration of community expectations or as an “other consideration”, it still gave the fact that the respondent is mentally unwell greater weight than the Government’s views as set out in para 8.4. It is said that the alleged error therefore made no difference to the ultimate outcome.

46    The relevant inquiry is whether the decision that was made by the Tribunal could have been different had the error not been made “as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [38]. With reference to that passage, it was explained in Nathanson v Minister for Home Affairs [2022] HCA 26; 403 ALR 398 at [33] that the standard of “reasonable conjecture” is “undemanding”.

47    It will be recalled that at [87] (quoted at [28] above) the Tribunal weighed up the various considerations, ascribing a weight of “strongly in favour of revocation” to the consideration in question. The next best consideration in favour of revocation was the best interests of minor children which was considered to be only “slightly” in favour of revocation. It hardly needs to be said that had the community expectations consideration been given a weighting against revocation as required by FYBR, or even a neutral weighting, the ultimate decision may have been different within the undemanding standard of materiality as expressed in Nathanson. The respondent may be right that the decision is likely to have been the same even if the error was not made, but it would not necessarily have been the same. The error was therefore material.

48    It follows that the Tribunal’s errors in making its own assessment of community expectations in considering the primary consideration in para 8.4 and in giving that consideration a weighting in favour of revocation are jurisdictional.

Conclusion

49    In the result, the decision of the Tribunal must be quashed and the matter must be remitted to the Tribunal for reconsideration. The costs should follow the event.

Associate:

Dated:    11 May 2023