Federal Court of Australia
JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 168
ORDERS
QUD 336 of 2022 | ||
Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the first respondent’s costs.
3. The name of the first respondent be amended to “Minister for Immigration, Citizenship and Multicultural Affairs”.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
1 This application is concerned with the legality of decision made under Pt 9 Div 2 of the Migration Act 1958 (Cth) (the Act) to affirm a decision of the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister), then known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, not to revoke the cancellation of a visa on character grounds. It impugns both the satisfaction of the Administrative Appeals Tribunal (the Tribunal) that the applicant failed the character test set out in s 501(6) of the Act and the Tribunal’s satisfaction that there was no other reason to revoke the original decision.
2 The Tribunal reached the first state of satisfaction on the basis that an aggregate sentence of 15 months imprisonment met the definition of “substantial criminal record” in s 501(7)(c), being “sentenced to a term of imprisonment of 12 months or more”. After the Tribunal’s decision, the Full Court in Pearson v Minister for Home Affairs [2022] FCAFC 203; 295 FCR 177 (Pearson) held that an aggregate sentence of 12 months or more was not one within the meaning of subs (7)(c). Special leave to appeal from the decision was refused by the High Court on 11 August 2023.
3 Shortly after judgment in Pearson was delivered, the Parliament passed the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) (the Amending Act) to overturn the decision on that point. The applicant challenges the application of the Amending Act, which commenced on 17 February 2023, to his circumstances. He does so as a matter of construction and constitutional invalidity.
4 As to matters of construction, the applicant contends that the Amending Act simply does not apply in the present circumstances for two reasons. First, the Amending Act does not validate the Tribunal’s decision to affirm the original decision because that decision was made under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), which is not one of the laws or provisions covered by item 4(2) of Sch 1 of the Amending Act and so “cannot be taken to be valid”. Secondly, the applicant submits that properly construed, the Amending Act does not apply to a decision which was, at the time of the Amending Act’s enactment, subject to judicial review proceedings in a court exercising Ch III judicial power.
5 As to constitutional matters, the applicant seeks a declaration of invalidity on two grounds: first, that the impugned provisions of the Amending Act involve a usurpation of or interference with the judicial power of the Commonwealth or purport to exclude the entrenched jurisdiction of the High Court; and secondly, that those provisions effect an acquisition of the applicant’s right sue for false imprisonment otherwise than on just terms, contrary to s 51(xxxi) of the Constitution.
6 These latter two grounds were raised in Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 167 (Tapiki) (which was heard immediately after this application by the Court as presently constituted). Tapiki and this case are the first to consider the question of the validity of the Amending Act.
7 Notice of the constitutional issues was served on the Attorneys-General of the Commonwealth and the States under s 78B of the Judiciary Act 1903 (Cth). None gave notice that he or she wished to intervene.
8 As to the Tribunal’s state of satisfaction that there was not another reason to revoke the original decision, the applicant challenges the Tribunal’s approach to the issue of whether the decision would have any relevant impact on Australian business interests and its findings in relation to the extent of the applicant’s non-familial ties, and asserts that family violence was impermissibly weighed multiple times.
Background
9 The applicant’s Class TY Subclass 444 Special Category (Temporary) visa was mandatorily cancelled under s 501(3A) of the Act (the cancellation decision) following his conviction for offences of intentionally causing injury and threats to kill, committed in December 2020, for which he was sentenced to an aggregate term of imprisonment of 15 months.
10 On 1 June 2022, a delegate of the Minister decided not to revoke the cancellation decision. The Tribunal affirmed that decision on 29 August 2022.
The application
11 The application is made under s 476A of the Act for judicial review of the Tribunal’s decision on five grounds. By his amended originating application filed on 31 January 2023, the applicant contends that the Tribunal fell into jurisdictional error:
1. by misunderstanding and/or misapplying paragraph 9.4.2 of Direction No 90 in failing to consider whether there would be any impact on Australian business interests (other than where the decision would significantly compromise the delivery of a major project or important service).
2. in its application of para 9.4.1(2) of Direction 90 by:
a. reasoning illogically, irrationally, unreasonably or making finding based on no evidence, that the Applicant’s non-familial ties to the Australian community were ‘not extensive’; or
b. failing to give adequate reasons for its finding that the Applicant’s non-familial ties to the Australian community were ‘not extensive’.
3. in its interpretation or application of para 8.2 of Direction 90 as if it permitted weight to be given to family violence committed by the Applicant where weight was also given to this consideration in an identical way under para 8.1 and/or 8.4 of Direction 90.
4. in the alternate to Ground 3, in its interpretation or application of para 8.2 of Direction 90 by giving weight to family violence committed by the Applicant “unconnected to the protection of the Australian community and/or expectations of the Australian community.
5. in not being satisfied that the Applicant passed the ‘character test’.
12 For the reasons that follow, none of these grounds is made out.
The decision-making process and framework
13 Section 501(3A) of the 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.
14 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.
15 Section 501CA(3) requires the Minister to give notice to the visa holder of a decision to cancel that visa and invite representations “about revocation of the original decision”. Subsection (4) provides that the Minister may revoke the original decision if such representations are made and if:
(b) the Minister is satisfied:
(i) that the person passes the character tests (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
16 Section 499(1) provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 8 March 2021, the then Minister made “Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90), which came into force on 15 April 2021 and applied to the decision in respect of the applicant’s visa refusal. We interpolate that Direction 90 has since been revoked and replaced by “Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 99), made on 23 January 2023 with effect from 3 March 2023.
17 The preamble to Direction 90 describes the objectives of the Direction and the principles which “provide the framework within which decision-makers are to approach their task of deciding” whether, as in the present case, to revoke a cancellation decision.
18 The objectives of Direction 90 are set out in para 5.1, subpara (4) of which provides:
The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
19 The status and operation of directions made under s 499 were helpfully stated by Mortimer J, in Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46 at [23]:
Directions made under s 499 of the Act bind administrative decision-makers, including the Tribunal: see s 499(2A). They must be taken into account, and they must be accurately understood: see my observations in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [39], and see also Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 461 at [55]. That said, the directions provide no more than guidance on the exercise of discretionary powers. As Kenny J and I said in Jagroop at [55], directions of this nature are avowedly intended to affect the weight decision-makers generally give to certain factors. However, they can do so as guidance only: see [78] of Jagroop. Such directions cannot compel a repository of a power to reach a particular outcome, or compel specific weight to be given to a particular matter if, in the individual circumstances of the case, the administrative decision-maker’s view is that different weight should be given to a particular matter. The statutory power in respect of an individual visa holder is being exercised by the administrative decision-maker, not by the Minister who made the directions. The principles in Drake (No 2) about policies remain generally applicable to these kinds of directions: see Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; 2 ALD 634 at 645.
(Emphasis added.)
20 The framework referred to in the preamble is found in Pt 2 of Direction 90.
21 Section 6 stipulates that, informed by the principles in para 5.2, a decision-maker must take into account the considerations identified in ss 8 and 9, where relevant to the decision.
22 Section 8 of Direction 90 identifies four primary considerations:
(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;
(4) expectations of the Australian community.
23 Section 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Section 7(3) provides that one or more primary considerations may outweigh other primary considerations.
24 Section 9 provides that other considerations must also be taken into account, where relevant. These considerations include, but are not limited to:
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties;
ii) impact on Australian business interests
25 More detailed guidance relating to each of the primary considerations is set out in paras 8.1–8.4, and in respect of the “other considerations”, in paras 9.1–9.4.
26 We return to the framework when considering Grounds 3 and 4 of the application.
Ground 1 – Impact on Australian Business Interests
27 The applicant contends that the Tribunal erred in the same way as the Court found had occurred in the Tribunal decisions reviewed in Singh v Minister for Home Affairs [2019] FCA 905 (Singh) and Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 (Arachchi), in that it misconstrued para 9.4.2 by focusing only on the delivery of an important service in Australia.
28 Paragraph 9.4.2 of Direction 90 relevantly provides:
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
29 The Tribunal recorded the applicant’s evidence at [193] that “he has worked in Australia in a number of jobs but predominantly as a taxi driver and halal slaughterman”. In his written submissions to the Tribunal, the applicant indicated that he owned his own taxi and taxi licence and had worked as a taxi driver from 2018 until the date of his offence.
30 The Tribunal found at [194]:
In light of this evidence, as I see it, there is nothing to displace the general position found in Direction 90 to the effect than an employment link is given weight only where the decision to revoke or to not revoke the visa cancellation decision would significantly compromise the delivery of a major project or delivery of an important service in Australia (which is not the case here).
31 If, as was the case in both Singh and Arachchi, there had been some evidence of the nature and extent of the applicant’s business, including its viability after his period of incarceration, there may have been some force in that contention. But there was none. Neither the applicant’s taxi licence nor any business records were in evidence. The applicant’s psychologist recorded in his report dated 19 July 2021 that the taxi “is apparently sitting unused in a taxi depot”, which suggests no one was continuing the business on the applicant’s behalf. The evidence did not even rise to a “bare assertion”, as in Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 at [119], of the value of the applicant as a self-employed taxi driver to Australian business interests.
32 In the absence of any evidence of a business interest, or indeed any employment, there was nothing unorthodox, let alone erroneous, in the Tribunal’s finding at [194].
33 Ground 1 must be rejected.
34 Paragraph 9.4.1 of Direction 90 provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, 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.
35 The applicant challenges the Tribunal’s finding at [191] that “[t]here is evidence of some non-familial ties and social links, but the material before me suggests that they are not extensive”. He contends that the finding was directly contrary to the evidence before the Tribunal to the effect that he had been involved with the Somali Australian community for 6 years, was a leader in that community, volunteered for the benefit of that community and performed music for free at events of that community.
36 Although the applicant’s written submissions to the Tribunal were prepared by a lawyer, they did not specifically address Direction 90. There was a passing reference to the applicant’s intention “to contribute to his community in a voluntary capacity as he has done previously”. Otherwise, support for the applicant’s non-familial ties and social links was essentially provided in two letters. One, dated 19 July 2021, was provided by the applicant’s psychologist, who said relevantly:
[The applicant] reported that he has engaged in volunteer work on several occasions, including picking up Somali food from restaurants and delivering it to families in the Kensington high rise public housing blocks when they were locked down during the 2020 Covid crisis. [The applicant] added that he is a skilled vocalist who often performs for free for the Sudanese community, at weddings, parties and public events.
37 As is apparent, nothing in this letter provided any first-hand knowledge of the applicant’s history of volunteering, nor is there any degree of specificity. The reference to “several occasions” could be taken to suggest that the applicant did not engage in volunteer work frequently or regularly.
38 The second was a letter of reference dated 26 July 2021 in which the writer, who was based in Victoria, attested to having known the applicant for seven years. The letter said, among other things:
He has been a father and husband to his family, raising his children in a very open, caring, and creative family environment where respect and acceptance of all people are paramount…
His long involvement with Somali Australian communities (6years), culminating as a leader and volunteer community programs in North Melbourne, Flemington, Braybrook, Footscray, Werribee and surrounding areas, attest to his tenacity and long-term commitment to things of value to him, and to society. [The applicant] has worked with the Australian Somali Football Association and United through football Inc on its annual leadership conference and Football festival in the past several years as an elder and respected leader. [The applicant] has shown dedication and commitment to the wellbeing of the local communities.
[The applicant] is a self-motivated person, He has previously participated in community run programs and forums that brought together, community leaders and newly arrived refugees, mainly women and children in metropolitan Melbourne to discuss issues faced by the local Somali Victorian communities.
39 The Tribunal referred to the letter but did not engage with the contradictions between the writer’s apparent knowledge of the applicant’s raising of his children at a time, on the writer’s own account, before he knew the applicant and which was before the applicant lived in Victoria. On the applicant’s own evidence, he has not seen his daughter since 2015. In addition, although he has maintained contact with his two sons, they have lived in Brisbane since 2015 during which time he has lived primarily in Victoria and specifically in Melbourne from 2018-2020.
40 In view of these matters, it is difficult to criticise the Tribunal’s finding that the applicant’s non-familial ties and social links “are not extensive”. That inference was clearly open on the material before it. Nonetheless, the Tribunal found that the applicant’s links to the Australian community weighed in favour of being satisfied that there was another reason to revoke the visa cancellation decision and, combined with his strong familial ties, attributed moderate weight to the consideration. The applicant contends this conclusion is illogical because it “offset” the strong familial ties with “an absence of extensive non-familial ties”. But that is the evaluative task of the Tribunal, a task with which the Tribunal clearly engaged at [182]–[194] of its reasons. Further, to the extent that it was suggested that the term “offset” means that the applicant’s limited non-familial ties were treated as a negative (diminishing the weight to be given to his family ties), we do not understand the Tribunal to have used the term in that sense. When the relevant passage is read in context, it is clear that the Tribunal was simply adverting to the contrast between the applicant’s strong familial ties in Australia and the limited nature (on the evidence) of his other ties with the community.
41 The applicant’s complaint rises no higher than one as to weight.
42 Ground 2 must be rejected.
Ground 3 – Repetitious Weighing of Family Violence
43 The applicant contends that the Tribunal “repetitiously”, and so impermissibly, weighed family violence against him by giving weight to family violence committed by him under each of the primary matters for consideration prescribed by paras 8.1 and/or 8.2 and 8.4.
44 The applicant’s complaint is directed at the manner in which the Tribunal undertook the evaluative task required of it in assessing the weight to be given to the primary considerations prescribed in s 8, taking into account the numerous considerations identified in the section, informed by the principles in para 5.2.
45 As is customary in Tribunal decisions, the Tribunal first dealt with the protection of the Australian community from criminal or other serious conduct. Section 8 directs the Tribunal to give consideration to two particular matters: the nature and seriousness of the non-citizens’ conduct to date, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
46 The applicant points to the following passages in the Tribunal’s reasons as emblematic of repetitious adverse weight being attributed to the several matters the Tribunal was required to consider.
47 In respect of the nature and seriousness of the conduct, the Tribunal found that the conduct was “very serious”. It said at [59]:
A finding that the applicant’s offending was very serious reflects the view which the Australian Government and the Australian community are said in Direction 90 to have. As is apparent from the description earlier of that offending, it involves crimes of violence, crimes of a violent nature against a woman and acts of family violence (a point to which I will return).
48 The characterisation of the offending as “very serious”, on the basis of its being family violence, is said to have informed the Tribunal’s attribution of a moderate weight against finding that there is another reason to revoke the cancellation decision being given to the first primary consideration. The Tribunal said at [100]:
The attribution of moderate weight to the consideration reflects a balance between the very serious nature of the applicant’s offending and the severe harm likely to flow from its repetition, on the one hand, and the risk of him re-offending being low, on the other hand.
49 In its consideration of the second primary consideration, family violence, the Tribunal also attributed a moderate weight against finding that there is another reason to revoke the cancellation decision. The Tribunal said at [113]–[114]:
The family violence consideration weighs against me being satisfied that there is another reason to revoke the visa cancellation, to a moderate extent.
The attribution of moderate weight to this consideration again reflects a balance. On the one hand, the family violence in which the application engaged was very serious (as is evident from the description of what occurred outline earlier). On the other hand, that violence involved conduct characterised as “an extreme aberration in” the applicant’s personal history, reflective (according to the respondent) of a “once-off” incident.
50 When dealing with the fourth primary consideration, the expectations of the Australian community, the Tribunal also attributed moderate weight against there being another reason to revoke the cancellation decision at [159]. In arriving at that conclusion, the Tribunal referred specifically to para 8.4(2) before continuing to identify the second norm, identified in para 8.4(1), which together with para 8.4(2), informs the Australian community’s expectations:
[144] The latter part of cl 8.4(2) serves only to particularise the circumstances in which the Australian community expectation identified in the first part of the clause arises. Hence, and for instance, mandatory cancellation of a visa so that a person would not continue to hold a visa would be expected where the offences are of such a nature as to raise serious character concerns through, say, acts of family violence or the commission of crimes of a violent nature against women.
[145] This approach to particularising the expectation that arises by reason of the inherent nature of certain offending or conduct is reflected in the principles found in Direction 90, which both inform and comprise the framework within which considerations (such as the expectations of the Australian community consideration) are to be taken into account.
[146] As identified earlier, one such principle provides that:
“In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.”
[147] As expressed, the words of that principle reflect a clear intention that conduct mentioned in cl 8.4(2) be considered to be of such a nature that even strong countervailing factors “may be” insufficient to justify, amongst other things, revocation of a mandatory cancellation decision. That intention is expressed in the principle and given effect in cl 8.4(2). A construction of cl 8.4(2) which had the effect that the expectation provided for in it does not apply when considering whether to revoke a mandatory cancellation decision would be inconsistent with that intention and, as such, would be a construction that failed to achieve a purpose or object of Direction 90.
…
[149] As outlined earlier, the applicant has engaged in acts of family violence and committed crimes of a violent nature against a woman. Accordingly, he has engaged in conduct of the type which would enliven the expectation provided for in cl 8.4(2) if serious character concerns are raised “through” such conduct. It is not enough to engage in conduct of the relevant kind. If it were, there would be no need for the requirement that serious character concerns be raised.
…
[151] Accordingly, by reason of cl 8.4(2), the Australian community is taken to expect mandatory cancellation of the applicant’s visa so that he would not continue to hold a visa.
[152] Another Australian community expectation reflected in cl 8.4 of Direction 90 is to similar effect. In particular, in cl 8.4(1), it is said that the Australian community expects non-citizens to obey Australian laws while in Australia and that, 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 not to allow them to enter or remain in Australia.
…
[156] Hence, the Australian community expectations consideration weighs against revocation of the visa cancellation decision. The extent to which it does so, however, depends on what is appropriate “in the particular circumstances”.
[157] In the context of offending that is very serious, the community’s expectations that the non-citizen not hold a visa and not be allowed to remain in the Australia ought generally be attributed significant weight. Strong countervailing factors may, however, serve to lessen that weight (albeit that they might not always do so). Hence, the weight to be attributed to the community expectations consideration may be affected by such things as the extent of the risk that the relevant non-citizen will re-offend and the frequency of the non-citizen’s offending.
[158] In this case, the applicant’s risk of recidivism being low coupled with the relevant offending comprising a one-off incident does serve to moderate the weight I would otherwise have attributed to the community expectations consideration.
51 The issue of taking matters into account “repetitiously” was considered by Halley J in XSJL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138, albeit in the context of the precursor to Direction 90, “Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA” (Direction 79), which did not have family violence as a primary consideration. Halley J observed at [123]:
Not being required to take into account a matter “repetitiously” is a fundamentally different proposition to prohibiting a matter being taken into account for two or more mandatory considerations. The matters to be taken into account in addressing mandatory and other considerations may well overlap, particularly in circumstances where a consideration is expressed in general terms. It is neither desirable nor, in my view, permissible not to have regard to material that is otherwise relevant to a consideration in Direction 79 on the basis that it is more directly relevant to another consideration in that direction.
52 The paragraph in XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74 at [53], upon which the applicant relied, does not gainsay the proposition that a matter might be taken into account for two or more mandatory considerations. Rather, it is concerned with a Tribunal not being required to “repetitiously” deal with the same matter over again under different headings where it is clear that the requisite matter has been properly taken to account.
53 Since the promulgation of Direction 90, there are now four primary considerations, and family violence is a matter which overlaps with three mandatory considerations. To paraphrase the passage of the Full Court in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; 230 FCR 367 at [63], the applicant’s argument assumes that there is a neat distinction between the primary considerations. If, through conduct involving acts of family violence, there is a community expectation that the non-citizen should not remain in Australia, it is at least likely that part of the underlying rationale is the need to protect the Australian community from persons who could commit crimes which the community views very seriously. The other rationale is the Government’s serious concerns about conferring on non-citizens who engage in family violence the privilege of remaining in Australia, albeit proportionate to the seriousness of the family violence.
54 Viewed in this way, each consideration is directed at subtly different policy objectives which are articulated, primarily in the principles in para 5.2, but which permeate the entire Direction. That the Tribunal has treated each consideration separately, and without “double counting” family violence, is apparent from the paragraphs extracted from the reasons above.
Protection of the Australian community
55 First, in relation to the protection of the Australian community, the Tribunal was guided by the provisions of para 8.1.1, which provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i. violent and/or sexual crimes;
ii. crimes of a violent nature against women or children, regardless of the sentence imposed;
iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
…
(Emphasis added.)
56 The Tribunal was not directed by para 8.1.1 to attribute any particular weight to an act of family violence, and it did not do so. An act of family violence is simply described as being “viewed very seriously”. Nevertheless, having regard to the actual circumstances of the offending, the Tribunal considered the conduct to be very serious. In this respect, the Tribunal’s focus at [56] was on the significance of the violence and the severity of injuries sustained by the victim at [53]–[54], albeit acknowledging at [59] that it was required to have regard to what type of crimes the Government viewed as very serious. As it was required to do, guided by para 8.1.2, the Tribunal then assessed the risk of recidivism and balanced what it found to be a low risk against the very serious conduct. It attributed moderate weight against revoking the cancellation decision to the consideration of the protection of the Australian community at [98]. It is tolerably clear from the Tribunal’s reasons that it would have reached that conclusion whether or not the victim was a family member.
57 As to family violence, para 8.2 provides:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at the time of decision since the person’s last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizens engage in further acts of family violence.
58 It is apparent from the guidance provided by para 8.2 that, although the Government has signalled its policy intent that perpetrators of family violence should lose the privilege of remaining in Australia, a proportionate approach is to be taken by decision-makers. Thus, any circumstances of family violence will not necessarily attract significant adverse weight. The commission of family violence is just one other factor a Tribunal must consider and weigh against all other matters both favourable and adverse to the non-citizen.
59 This is precisely what the Tribunal did at [106]–[114] of its reasons. It adverted to the requisite proportionality and took account of the crime being: a “one-off incident”, neither frequent nor reflective of any trend of increasing seriousness, or part of repeated acts of family violence; and the applicant’s acceptance of responsibility for his conduct. Having assessed the seriousness of the family violence against the seriousness of the Government’s concerns with respect to family violence, the Tribunal attributed moderate weight to this primary consideration.
Best interests of minor children
60 Although of no moment to the appeal, the Tribunal attributed slight weight in favour of revocation of the cancellation decision to primary consideration 3, the best interests of minor children in Australia.
Expectations of the Australian community
61 As to the expectations of the Australian community, para 8.4 relevantly provides:
(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
…
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;
…
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable 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.
(Emphasis added.)
62 In addressing this consideration, the Tribunal noted at [139] the policy intent outlined in para 8.4 and observed that para 8.4 gives rise to at least two potentially relevant community expectations. The first is the norm expressed in para 8.4(1) that the Australian community expects non-citizens who engage in serious conduct in breach of the law not be permitted to remain in Australia. The second is the similar expectation, expressed in para 8.4(2), where the conduct raises “serious character concerns”. The Tribunal concluded that whether conduct raises “serious character concerns” is tied to the character test in s 501 of the Act. Given the sentence that had been imposed on the applicant (15 months), serious character concerns were raised (subject to the outcome of Ground 5) “through” that conduct as referred to in para 8.4(2). The Tribunal was therefore distinguishing between the serious nature of the conduct, previously considered in relation to primary consideration 1, and the “serious character concerns” that were required to be considered in relation to primary consideration 4.
63 That the Tribunal did not “double count” family violence in considering the expectations of the Australian community is made plain at [157]–[158]. The Tribunal started with the proposition that, in the context of offending that is very serious, the community’s expectation that a non-citizen would not be allowed to remain in Australia should generally be given significant weight. The Tribunal also referred to the separately identified community expectation that non-citizens are expected to obey the law and, that where a non-citizen engages in serious conduct, or (as in this case) very serious conduct, contrary to that expectation, similar weight should be given to this consideration. Nevertheless, as it was required to do so, the Tribunal considered the particular circumstances of this case, taking into account the applicant’s low risk of recidivism and the one-off nature of the offence, and reduced the weight it would otherwise have attributed to the consideration of the expectations of the Australian community, attributing to it moderate weight.
Conclusions
64 Having properly and carefully undertaken the evaluative task required of it in relation to each of the primary and other considerations, the Tribunal attributed moderate weight to three of the primary considerations, which it found outweighed the moderate weight it gave to the applicant’s links to the Australian community, and the slight weight it gave to the extent of impediments if removed and the primary consideration of the best interests of minor children.
65 In so doing, the Tribunal did not fall into the error identified by the Full Court in Jama v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 148 (Jama). In Jama, the Tribunal applied a discount to the weight to be given to the evident strength, nature and duration of Mr Jama’s ties to Australia by reason of the seriousness of his offending and afforded that consideration only slight weight in favour of revocation. It then weighed that favourable, albeit only slightly favourable, factor again against the protection of the Australian community and the expectations of the Australian community. The result was to double count the seriousness of Mr Jama’s offending against the strength, nature and duration of his ties to Australia.
66 It must also be observed that when dealing with each of the primary considerations in the present case, the Tribunal was at pains to accord a reduction in weight to each one in which the circumstances were the same – the low risk of recidivism and the one-off nature of the offence. The Tribunal’s concluding observations at [197]–[199], under the heading “Conclusion as to other reason for revocation”, must be read in the light of its careful discussion of the primary considerations. The Tribunal did not “double count” family violence by mechanically “weighing” the considerations for and against revocation.
67 There was nothing illogical, irrational or unreasonable in the approach adopted by the Tribunal. Ground 3 must be rejected.
Ground 4 – Punitive or Irrelevant Weight to Family Violence
68 The applicant contends that, in any event, Direction 90 did not permit the giving of weight to family violence for reasons unconnected to the protection of expectations of the Australian community unless there is some independent relevance identified.
69 This ground is misconceived. The fact that the Tribunal must give weight to family violence, where relevant, because it is a primary consideration in Direction 90, is squarely premised on the protection and expectations of the Australian community. There is nothing in the Tribunal’s reasons to suggest that the Tribunal approached the consideration of para 8.2 in a manner unconnected to the protection or expectations of the Australian community. To the contrary, the Tribunal expressly referred to the “Australian Government”, which must be taken to reflect the will and therefore expectations of the Australian community, as “[having] serious concerns about conferring on a person who engages in family violence the privilege of remaining in Australia” at [106].
70 Further, the principles by which a decision-maker must be informed in exercising the discretion make pellucid the relevance of family violence to the protection and expectations of the Australian community.
71 Paragraph 5.2 of Direction 90 provides as follows:
5.2 Principles
The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.
(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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
(Emphasis added.)
72 It can be seen that principle 5.2(2) makes the policy statement that non-citizens who have engaged in criminal or other serious conduct (which in terms includes family violence by virtue of para 8.1.1(a)) should expect to be denied the privilege of staying in Australia. Principle 5.2(3) directs attention to the similar expectation in respect of conduct that raises “serious character concerns” (as family violence is expressed to do so in para 8.4(2)(a)). Principle 5.2(5) highlights family violence amongst the other types of conduct mentioned in para 8.4(2) in describing the inherent nature of certain conduct that renders it so serious as to minimise countervailing considerations in some circumstances.
73 There is nothing that can be derived from the terms of para 8.2 to suggest that it is contrary to the principles in para 5.2, even less that it is in some way punitive. Each of primary considerations 1, 2 and 4 are focussed on different matters: one on the protection of the community, whereby seriousness of conduct is weighed against risk factors; one on the Australian Government’s concern about perpetrators of family violence remaining in Australia; and one on the expectations of the Australian community about those who are not law abiding and those whose conduct raises serious character concerns. The fact that family violence is “viewed very seriously” in relation to the first, is to be considered “proportionately” within the context of the Government’s concerns about such conduct, and that it “raises serious character concerns” does not connote that the relevant act of family violence is to be considered and treated in a punitive manner with respect to each consideration. A plain reading of Direction 90 indicates otherwise.
74 Ground 4 must be dismissed.
Ground 5 – Aggregate Sentencing
75 It will be recalled that the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act on the basis that the applicant failed the character test. Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a substantial criminal record, as defined by subs (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. The applicant was sentenced to an aggregate term of imprisonment of 15 months.
76 In Pearson, the Full Court held that an aggregate sentence of 12 months imprisonment does not involve being “sentenced to a term of imprisonment of 12 months or more” within the meaning of s 501(7)(c).
77 By Ground 5, as summarised in the introductory paragraphs of these reasons, the applicant contends that the reasoning in Pearson remains apposite to his circumstances for four reasons. Two raise matters of construction and two raise constitutional issues.
78 As to construction the applicant contends that:
(1) the Amending Act does not validate the Tribunal’s decision to affirm the original decision because that decision was made under the AAT Act, which is not one of the laws or provisions covered by item 4 subitem (2) and so “cannot be taken to be valid”; and
(2) properly construed, the Amending Act does not apply to a decision which, at the time the Amending Act commenced, was subject to judicial review proceedings in a Ch III court.
79 As to constitutional matters, the applicant contends that:
(3) the impugned provisions of the Amending Act involve a usurpation of, or interference with, the judicial power of the Commonwealth or purport to exclude the entrenched jurisdiction of the High Court;
(4) those provisions effect an acquisition of the applicant’s right to sue for false imprisonment otherwise than on just terms, contrary to s 51(xxxi) of the Constitution.
80 The Explanatory Memorandum to the Bill (the EM) makes it clear that it was introduced in response to the reasoning in Pearson.
81 The only operative provision of the Amending Act is s 3, which gives effect to Sch 1 to the Act. It provides:
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
82 Schedule 1 to the Amending Act does two things. First, item 1 inserts into the Act s 5AB. Section 5AB provides that a single sentence imposed by a court in respect of two or more offences is to be treated no differently to a sentence imposed in respect of a single offence. That amendment applies prospectively (item 3). Secondly (and relevantly here), Sch 1 expressly validates things done before its commencement which would otherwise be invalid on the ground that an aggregate sentence had been regarded as equivalent to a sentence for a single offence. It also includes provisions dealing with the effect of validation on review, appeal and other rights which need not be discussed here.
83 Item 4 of Sch 1 is as follows:
4 Validation of things done before commencement
(1) This item applies if a thing done, or purportedly done, before commencement under a law, or provision of a law, covered by subitem (2) would, apart from this item, be wholly or partly invalid only because a sentence, taken into account in doing, or purporting to do, the thing, was imposed in respect of 2 or more offences.
(2) The laws and provisions are as follows:
(a) the Migration Act 1958;
(b) any legislative instrument made under that Act;
(c) clauses 51 and 53 of Schedule 1 to the Environment Protection and Biodiversity Act 1999;
(d) clauses 51 and 53 of Schedule 1A to the Fisheries Management Act 1991;
(e) clauses 51 and 53 of Schedule 2 to the Torres Strait Fisheries Act 1984.
Note: The things referred to in subitem (1) include (for example) the following:
(a) deciding under section 501, 501A, 501B or 501BA of the Migration Act 1958 to refuse to grant a visa to a person, or to cancel a visa granted to a person;
(b) accessing information under Division 2 of Part 4A of that Act, or disclosing information under Division 3 of that Part;
(c) giving a notice under subsection 501L(1) of that Act;
(d) divulging or communicating information as mentioned in subparagraph 503A(1)(a)(ii) or (b)(ii) of that Act.
(3) The thing done, or purportedly done, is taken for all purposes to be valid and to have always been valid.
(4) To avoid doubt, anything done or purported to have been done by a person that would have been invalid except for subitem (3) is taken for all purposes to be valid and to have always been valid, despite any effect that may have on the accrued rights of any person.
(5) For the purposes of applying this item in relation to civil or criminal proceedings, this item applies in relation to:
(a) civil and criminal proceedings instituted on or after commencement; and
(b) civil and criminal proceedings instituted before commencement, being proceedings that are concluded:
(i) before commencement; or
(ii) on or after commencement.
84 The concepts of doing “a thing” and purporting to “do a thing” are defined in item 2, in a way that includes making a decision, exercising a power, performing a function and discharging a duty (or purporting to do any of these things).
Decision made under the AAT Act or Migration Act?
85 The applicant submits that the absence of the AAT Act from item 4(2) is fatal to the Minister’s reliance on the Amending Act and that, if so, it would be unnecessary for this Court to consider the other point of construction or the constitutional issues.
86 The applicant relies on the judgment in Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; 118 FCR 326 at [68] where the Full Court, in observing that the powers of the Tribunal on a review of a delegate’s decision made under s 501 are derived from s 43 of the AAT Act said:
By virtue of s 43 of the Administrative Appeals Tribunal Act empowering it to “exercise all powers and discretions that are conferred by the relevant enactment on the person who made the decision”, the AAT stands in place of the primary decision-maker. However, as was pointed out in Powell v Administrative Appeals Tribunal and Anor (1998) 89 FCR 1 at 12 (French J) the source of the AAT’s power is s 43 of the AAT Act. It does not exercise afresh the power conferred by the enactment under which the decision was made. A fortiori, when it affirms a decision or sets it aside and remits it for reconsideration, it does not exercise a power conferred by the enactment under which the primary decision-maker has made his or her decision.
(Citations omitted.)
87 Powell v Administrative Appeals Tribunal (1998) 89 FCR 1 (Powell) was concerned with whether the Tribunal’s decision affirming a delegate’s decision not to grant a parent visa was a judicially-reviewable decision within the then terms of s 500(1) of the Act. Section 500(1) provided, relevantly, that:
Applications may be made to the Administrative Appeals Tribunal for review of:
…
(b) decisions of a delegate of the Minister under section 501 (subject to subsection (4A)); or
…
(Emphasis added.)
88 Section 475(1), as then enacted, provided that a “judicially reviewable decision” includes:
(a) decisions of the Immigration Review Tribunal;
(b) decisions of the Refugee Review Tribunal;
(c) other decisions made under this Act, or the regulations, relating to visas.
89 In construing this iteration of the relevant provisions, French J said in Powell, at 11–12:
The question remains however whether a decision by the Tribunal reviewing a decision of the Minister in relation to visas under the Migration Act is a judicially-reviewable decision. Section 500(1) of the Act provides for applications to be made to the Tribunal in respect of decisions of the Minister under s 501. The decision-making power of the Tribunal, however, is to be found in s 43 of the Administrative Appeals Tribunal Act. This requires consideration of the character of the decision which is made by the Tribunal. Pursuant to s 43(1) the Tribunal “may exercise all the powers and discretions that are conferred by a relevant enactment on the person who made the decision”. It has been said, by virtue of this provision, that the Tribunal stands in place of the decision-maker whose decision is under review.
The Tribunal is empowered to do what the decision-maker under review could do. The source of the power is s 43(1) albeit it is ambulatory in form. The content of the power it confers is defined by the particular enactment under which the decision to review was made. It may be arguable that where the Tribunal substitutes a new decision for the old it can be said to exercise power under the relevant enactment. I am inclined to the contrary view that even in that case it exercises power conferred by s 43(1) of the Administrative Appeals Tribunal Act and that in doing so it cannot be regarded as exercising power under the other enactment. However that may be, when the Tribunal affirms a decision in my opinion it exercises a power conferred by s 43(1)(a). It does not exercise afresh the power conferred by the enactment under which the decision reviewed was made.
(Citations omitted.)
90 Similarly, in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (Shi) at [100], Hayne and Heydon JJ said:
The AAT Act provides for the review of decisions by a body, the Tribunal, that is given all of the powers and discretions that are conferred on the original decision maker. As Brennan J rightly pointed out in an early decision of the Tribunal, not all of the powers that the Tribunal may exercise draw upon the grant of powers and discretions to the primary decision-maker:
“A decision by the Tribunal pursuant to s 43(1)(a) to affirm the original decision leaves the original decision intact, and that is the only decision which takes effect under the enactment: the original powers are not drawn upon by the Tribunal’s order. Equally, a decision to set aside the decision under review and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) require the original repository of the powers and discretions to exercise them afresh: they are not exercised by the Tribunal. Section 43(1) grants the original powers and discretions to the Tribunal, but it does not require them to exercise them unless the Tribunal is making a fresh order the effectiveness of which depends upon their exercise.”
But subject to that qualification, the Tribunal’s task is “to do over again” what the original decision-maker did.
(Citations omitted.)
91 What these cases in fact explain is that it is the original decision to which one must look to understand the jurisdictional foundation for that decision. That is because all that is done by the AAT Act is to require the Tribunal to make a decision in writing either to affirm the original decision, vary it, or set it aside and remit it to the Tribunal to remake, or to make a substitutive decision, and in so doing permit the Tribunal to exercise the powers and discretions that are conferred by the original enactment. As Kiefel J said in Shi at [134], “the Tribunal should consider itself as though it were performing the function of that administrator in accordance with the law as it applied to that person”.
92 The logic of the ratios of Powell and Madafferi that, where the Tribunal affirms a decision or remits it to the original repository of the power, it is not exercising a power under the Act either to grant or refuse a visa, is unarguable. Nevertheless, it is an odd result that the decision then to be made by the Tribunal under ss 43(1)(a) and (c)(ii) is to be treated as one made under the AAT Act, whereas one made under ss 43(1)(b) or (c)(i) could be considered to be exercising power under the Act, a position which French J considered to be at least arguable. The precise point does not appear to have been dealt with in Madafferi.
93 Relevantly, s 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of “decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa”. Since the decision in Powell, amendments to s 500 have constrained the application of the AAT Act in various circumstances: s 500(6A) disapplies s 28 (requirements as to reasons); s 500(6B) disapplies ss 29(7), (8), (9) and (10) (provisions as to when the Tribunal may extend time); s 500(6D) disapplies s 29AC(1)(b) (notice to decision-maker requirement) and s 37 (provisions relating to lodgement of documents). Further, the Tribunal is subject to the requirements and directions provided for in ss 500(6D)(a), (6F)(d), (6FA), (6G), (6H), (6J), (6K), (6L).
94 It is difficult to resist the conclusion that the consequence of these amendments, together with the plain words of s 500(1) of the Act conferring jurisdiction on the Tribunal to review the decisions therein specified, has served to elucidate the interaction between the Act and the AAT Act as it was explained by Logan J in Mamatta v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 637 at [10]:
Section 500(1)(ba) of the Act confers on the Tribunal jurisdiction to hear and determine applications for the review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa. The requisite jurisdiction having been so conferred, the type of review required to be undertaken is ordained by s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). That provides that:
For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision.
95 Even if it were accepted that the decision-making power of the Tribunal is found only in s 43 of the AAT Act, that does not exempt the Tribunal’s decision from the validation provisions of the Amending Act. At the very least, the Tribunal “did something else” within the meaning of item 2 of Sch 1 in undertaking a review of a decision of a delegate of the Minister under s 501CA(4) of the Act not to revoke a decision to cancel a visa pursuant to an application made to it under s 500(1).
96 The applicant’s submission that the Amending Act excludes a decision made by the Tribunal exercising its power under s 43 of the AAT Act to review a decision of a delegate made under s 501CA(4) of the Act must be rejected.
Decisions subject to judicial review in a Ch III court
97 This argument depends on reading the words “in relation to civil and criminal proceedings instituted before commencement” in item 4(5) of Sch 1 to exclude pending judicial review proceedings in Ch III courts. The applicant points to five matters in support of such an interpretation:
(1) the reference to “civil and criminal proceedings” rather than “all proceedings” suggests an intention to identify only certain proceedings to which item 4 of Sch 1 applies;
(2) the heading to item 5 — “Effect of validation on review and appeal rights” — suggests an intention that item 4 governs the general run of criminal and civil proceedings while leaving item 5 to govern “any … action for the purpose of having the decision varied, revoked, quashed or set aside”, thereby prescribing certain limited consequences of the Amending Act for such proceedings but otherwise to immunise them from the effect of the Amending Act;
(3) the narrow reading gives effect to both the strict interpretative approach to jurisdiction-limiting provisions and the presumption against retrospectivity;
(4) the strict interpretative approach to jurisdiction-limiting provisions is strongest when what is sought to be limited is a Court’s jurisdiction to grant public law remedies, this being at the heart of such courts’ constitutional function and courts being astute to preserve the “protective purpose” of judicial review; and
(5) there is good reason to think that by the Amending Act that Parliament may, on the one hand, wish to protect a decision-maker or Commonwealth officer from criminal or private civil liability (for example, in tort) while, on the other hand, preserving the rights of affected individuals to seek judicial review remedies, the reason for the distinction being in the relationship between judicial review and the rule of law.
98 The applicant’s contention fails at the first hurdle. Contrary to the above submissions, there is no legitimate justification for reading the phrase “civil and criminal proceedings” in item 4(5) as excluding judicial review proceedings. Judicial review proceedings are civil proceedings. Given the clear terms of item 4(3) (which provides, as a matter of substantive law, that a “thing” is “valid”), it would be incongruous to construe item 4(5) as contemplating that the “thing” would be held to be valid in some kinds of proceedings but not in others. Further, were there to be any doubt about the Parliament’s intention, it is removed by the EM, which explains at [23]–[24] that item 4 is intended to retrospectively validate all things done from the original cancellation decision, to the Tribunal’s review, to the judicial review of the Tribunal’s decision by the Federal Court. As the EM states at [24](d):
Once this Act (including Part 2 of Schedule 1 to this Act) commences, to the extent that each decision, and each other thing done, or purportedly done, in this example, would be wholly or partly invalid only because the person’s sentence was imposed in respect of 2 or more offences, will be taken for all purposes to be valid and to have always been valid. Accordingly, the person’s visa was validly cancelled and the person will be liable for removal from Australia once released from custody.
99 As we said in Tapiki at [23]:
It is well settled that, while the vesting of the judicial power exclusively in courts by Ch III of the Constitution entails that the Parliament cannot enact a law purporting to “direct the courts as to the manner and outcome of the exercise of their jurisdiction” (Australian Education Union v General Manager of Fair Work Australia [2012] HCA 19; 246 CLR 117 (AEU) at [48] (French CJ, Crennan and Kiefel JJ)), it does not prevent legislation altering the substantive law, including alterations with retrospective effect or affecting rights in issue in pending proceedings (Australian Building Construction Employees’ and Builders Labourers’ Federation v Commonwealth (1986) 161 CLR 88 at 96).
(Emphasis removed.)
100 Here, as in Tapiki, the applicant submits that the impugned provisions in item 4 of Sch 1 are on the wrong side of this line. The applicant contends that the Amending Act is beyond power in its retrospective application to administrative decisions that were, at the time of its enactment, the subject of judicial review proceedings in Ch III courts. In the present case, from the date on which this Court made an order permitting the applicant to rely on an amended application raising the Pearson point (14 February 2023) until 16 February, this Court had jurisdiction and the power to make an order quashing the Tribunal’s decision but, as from the day on which the Amending Act commenced, 17 February 2023, was subsequently deprived of that power.
101 The applicant submits that his complaint is well illustrated by the change to the course of these proceedings from 14 to17 February 2023, as just outlined. At the earlier of those dates, this Court would have been expected to follow the decision in Pearson and, absent discretionary considerations, would therefore have quashed the Tribunal’s decision. At the later date, the Court is obliged, on the Pearson ground, to affirm the legality of a decision which had been unlawfully made.
102 For the reasons given in Tapiki at [27]–[34], the decisions in Australian Education Union v General Manger of Fair Work Australia [2012] HCA 19; 246 CLR 117 and Duncan v Independent Commission Against Corruption [2015] HCA 32; 256 CLR 83 stand in the way of acceptance of the applicant’s argument that item 4 interferes with the exercise of judicial power and is thereby inconsistent with Ch III. There is nothing constitutionally offensive about a law which declares or changes the parties’ substantive rights, even if they are the subject of pending judicial review proceedings.
Acquisition of property on just terms
103 In Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 it was held that a right to bring an action for damages constituted “property” within the meaning of s 51(xxxi) and that a law which extinguished such a right, conferring a corresponding benefit on the person against whom the action might be brought, thereby effected an “acquisition” of such property (see also Haskins v Commonwealth [2011] HCA 28; 244 CLR 22 at [41]).
104 Upon the completion of his criminal sentence, the applicant was taken immediately into immigration detention where he remained until 23 December 2022, the day after the publication of judgment in Pearson. He was taken back into detention on 17 February 2023 when the Amending Act commenced. The applicant contends that the property acquired under the Amending Act is the right of persons to sue the Commonwealth for false imprisonment which item 3 of Sch 1 to the Amending Act purportedly extinguishes. He submits that no “just terms” are provided and that, therefore, the relevant provisions in item 4 are invalid.
105 Without reaching a view that the applicant was unlawfully detained, we proceed for present purposes on the basis that the applicant has standing to seek a declaration that the relevant provisions of item 4 are invalid, because his status under the Amending Act and his liberty depends directly on their effect, albeit he has not commenced an action for false imprisonment.
106 As we have observed in Tapiki at [49]–[51]:
[T]he extinguishment of a cause of action results in the Amending Act infringing s 51(xxxi) only if that is done without “just terms”. The Minister submits that s 3B of the Act provides “just terms” and therefore avoids invalidity.
Section 3B provides (relevantly) as follows:
Compensation for acquisition of property
(1) If:
(a) this Act would result in an acquisition of property; and
(b) any provision of this Act would not be valid, apart from this section, because a particular person has not been compensated;
the Commonwealth must pay that person:
(c) a reasonable amount of compensation agreed on between the person and the Commonwealth; or
(d) failing agreement—a reasonable amount of compensation determined by a court of competent jurisdiction.
…
(3) In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
It will be seen that s 3B is drafted so as to come into play if the Act has any effect which, absent sufficient compensation, would infringe s 51(xxxi). If triggered, it creates a right to receive compensation as agreed or as determined by a court. That clearly amounts to “just terms” (and the applicant did not contend otherwise). An argument as to invalidity is thereby transformed into a claim for compensation.
107 We adopt the reasons given in Tapiki at [51]–[63], the reference to “this Act” in s 3B includes an act which amends the Act. Thus, if item 4 of the Amending Act acquires property of the applicant by extinguishing a cause of action for false imprisonment, just terms are provided for that acquisition, and it does not offend s 51(xxxi) of the Constitution.
108 Ground 5 must be rejected.
109 For these reasons, the applicant has not made out any of his grounds of review of the Tribunal’s decision to affirm the cancellation decision or established that the Amending Act is invalid.
110 It follows that application must be dismissed with costs.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Katzmann, Sarah C Derrington and Kennett. |
Associate:
