FEDERAL COURT OF AUSTRALIA
DKY22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 24
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: | 7 MARCH 2024 |
THE COURT ORDERS THAT:
1. The appellant’s application for leave to amend his notice of appeal be dismissed.
2. The appeal be dismissed.
3. The appellant pay the first respondent’s costs of the appeal as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
[1] | |
[6] | |
[25] | |
[27] | |
[28] | |
[31] | |
[39] | |
[44] | |
[49] | |
[55] | |
D.3 The history of the proceeding and why the appellant seeks to raise new grounds | [64] |
[73] | |
[74] | |
[75] |
THE COURT:
1 The appellant is a citizen of South Sudan. In September 2001, he entered Australia as the holder of a humanitarian visa. In 2016, he attempted to strangle his former partner, whose life was saved only by the intervention of police officers. In 2018, he was convicted of attempted murder and sentenced by Boddice J of the Supreme Court of Queensland to nine years’ imprisonment.
2 On 24 April 2020, the Department of Home Affairs made a decision pursuant to s 501(3A) of the Migration Act 1958 (Cth) to cancel the appellant’s visa (cancellation decision) and invited the appellant to make representations to the first respondent Minister concerning a revocation of the cancellation decision pursuant to s 501CA(4) of the Migration Act. The appellant subsequently made such representations.
3 On 12 May 2022, the Minister, by a delegate, made a decision to not revoke the cancellation decision (non-revocation decision). The appellant then applied to the second respondent, the Administrative Appeals Tribunal, for review of the non-revocation decision. On 8 August 2022, the Tribunal affirmed the non-revocation decision and on 7 September 2022 it published its reasons for doing so: [DKY22] and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4707 (T).
4 The appellant then applied to this Court for judicial review of the Tribunal’s decision. At the hearing before the primary judge, the appellant was represented by senior and junior counsel. The sole ground advanced on that application was a contended failure by the Tribunal to identify and understand representations made to it by the appellant concerning the risk that the appellant would commit suicide if returned to South Sudan. The primary judge dismissed the application for judicial review: DKY22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1166.
5 On 26 October 2023, the appellant, who at that time was unrepresented, filed a notice of appeal against the orders of the primary judge. He is now represented by counsel and seeks leave to rely upon an amended notice of appeal which asserts that the primary judge erred by failing to find that the decision of the Tribunal was affected by four instances of jurisdictional error. However, such contended errors formed no part of the appellant’s application for judicial review before the primary judge.
6 In light of the grounds contained in the proposed amended notice of appeal, it is necessary to set out in some detail the reasoning of the Tribunal before considering those grounds.
7 The Tribunal commenced by setting out the relevant provisions of the Migration Act and of Direction No. 90 which, as the Tribunal noted at T[9], had been made by the Minister pursuant to s 499 of the Migration Act. The Tribunal then identified salient parts of the Direction and in particular paragraph 5.2 and the primary and other considerations that it was required to address. In the course of doing so, the Tribunal stated at T[9] to [13]:
9. The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction” or “Direction 90”).
10. The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:
...
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 type 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.
11. Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as “secondary” as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
12. The primary considerations (paragraph 8 of the Direction) are:
(a) protection of the Australian community from criminal or other serious conduct (“Primary Consideration A”);
(b) whether the conduct engaged in constituted family violence (“Primary Consideration B”);
(c) best interests of minor children in Australia (“Primary Consideration C”); and
(d) expectations of the Australian community (“Primary Consideration D”).
13. The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:
(a) international non-refoulement obligations;
(b) extent of impediments if removed;
(c) impact on victims; and
(d) links to the Australian community, including:
(i) the strength, nature and duration of ties to Australia; and
(ii) the impact on Australian business interests.
(emphasis added)
8 After identifying the evidence before the Tribunal, and noting that the appellant did not pass the character test for the purposes of s 501CA(4)(b)(i) of the Migration Act, the Tribunal identified that the sole issue for determination was whether there was another reason, for the purposes of s 501CA(4)(b)(ii), why the cancellation decision should be revoked (T[18] to [19]).
9 The Tribunal then turned to address the “primary considerations as relevant” (T[20]). In doing so, the Tribunal addressed, in sequence, the primary considerations set out in paragraph 8 of the Direction (reproduced at [7([12])] above). The Tribunal referred to the primary considerations as primary considerations A, B, C and D.
10 The first primary consideration addressed by the Tribunal was the protection of the Australian community from criminal or other serious conduct, as required by paragraphs 8(1) and 8.1 of the Direction. After setting out the terms of paragraph 8.1(1), the Tribunal noted at T[22] that:
Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the applicant presents to the community.
11 The Tribunal noted that it had had regard to paragraph 8.1.1(1)(a) of the Direction – the nature and seriousness of the appellant’s conduct to date – before setting out at T[24] a lengthy summary of the appellant’s criminal history. The Tribunal then noted (at T[25]) that it had considered the sentencing observations in relation to the appellant’s most recent convictions, before providing a summary of the observations made by Boddice J in the course of sentencing the appellant in September 2018 (T[26] to [28]).
12 The Tribunal then turned to paragraph 8.1.2 of the Direction – the risk to the Australian community should the appellant commit further offences or engage in other serious conduct. At T[29] to [31], the Tribunal stated:
29. The Tribunal has had regard to paragraph 8.1.2 of the Direction.
30. The Tribunal is satisfied that the nature of the Applicant’s offending is serious. The Tribunal also accepts that, without treatment, the Applicant is at moderate risk of re-offending.
31. Given the factors discussed above, the Tribunal finds that this consideration weighs against revocation of the original decision.
13 The second primary consideration addressed by the Tribunal was whether the conduct engaged in by the appellant constituted family violence, as required by paragraphs 8(2) and 8.2 of the Direction. The Tribunal dealt with this consideration at T[32] to [38]. The Tribunal concluded that as the appellant and his former partner were not in a domestic or de facto relationship at the time that he attempted to murder her, his former partner was not a family member and the actions of the appellant could not be considered to have been “family violence” for the purposes of the Direction. The Tribunal found that this consideration was neutral.
14 The third primary consideration addressed by the Tribunal was the best interests of minor children in Australia, as required by paragraphs 8(3) and 8.3 of the Direction. The Tribunal found that the appellant had no children and was not in a parental relationship with any child and as such this consideration was also neutral (T[39] to [42]).
15 The fourth primary consideration addressed by the Tribunal was the expectations of the Australian community, as required by paragraphs 8(4) and 8.4 of the Direction. The Tribunal dealt with this consideration at some length at T[43] to [72]. The Tribunal commenced by stating (T[43] to [48]):
43. Paragraph 8.4(1) of the Direction provides that:
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 not to allow such a non- citizen to enter or remain in Australia.
44. Paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be 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 the 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.
45. 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 (sub- paragraph 8.4(3)).
46. 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 (sub-paragraph 8.4(4)).
47. This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.
48. It has further been held that the consideration is “in substance … adverse to any applicant”: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
(emphasis added)
16 The Tribunal then addressed, in some detail, the appellant’s criminal history (T[51] to [59]). The Tribunal observed that: (1) the appellant’s numerous traffic offences should not be regarded as trivial but instead as a manifestation of the appellant’s disdain for the law; (2) the appellant had engaged in other conduct which had not resulted in convictions but involved verbal abuse and aggression toward police, which conduct was inimical to the law; (3) the appellant was increasingly prone to violence; and (4) the sentencing remarks of Boddice J disclosed the gravity of the attempted murder charge, to which the appellant had pleaded guilty. At T[59], the Tribunal observed:
The Tribunal, pursuant to 5.2 of the Principles contained in Direction No. 90 must take into account the primary considerations and other considerations relevant to the individual case. As provided by (5) of clause 5.2, the nature of the applicant’s conduct, or the harm that would be caused to 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.
(emphasis added)
17 The Tribunal then considered the appellant’s personal history (T[60] to [66]), including his most unfortunate childhood.
18 The Tribunal then made the following observations and finding at T[67] to [72] concerning the fourth primary consideration:
67. The material for the Tribunal shows that the Applicant has consumed alcohol excessively over many years. Many of the offences with which the Applicant has been charged and convicted have been the result of his alcoholism. In respect of the serious charge of attempted murder, there is evidence that the Applicant consumed alcohol with the victim prior to going to a hotel where more alcohol was consumed before returning to her home where the assault occurred. However there is no evidence that the Applicant was so affected by alcohol that he could not form the intent to commit the crime of attempted murder. There is also material which shows that a second serious charge, was made against the Applicant, but was not proceeded with. Such charge was laid apparently on the facts that, when police forcibly entered the unit where the offence of attempted murder was taking place, the Applicant was found in a dishevelled state.
68. Significantly, the sentencing judge in respect of the attempted murder, Boddice J. could find no link between the Applicant’s alleged mental condition and the criminal intent.
69. The Tribunal notes that the Applicant has completed various courses whilst in prison including a Drug and Alcohol Abuse 101 course; a Domestic Violence 101 course and a 24-hour Low Intensity Substance Intervention (LISI) Explore Program through Drug ARMS course; and a certificate in Skills for Work and Vocational Pathways course. The Applicant has also undertaken a course in medical terminology. The Applicant expressed the wish that he can undertake a course in medicine in the future. He made a similar comment to IHMS staff whilst in detention.
70. Despite undertaking such courses, the Applicant has continued to drink alcohol to excess. The IHS records record that until he went to prison, the Applicant would drink up to 2 casks of wine a day. On 2 March 2022 the records that the patient was “visibly intoxicated”. It appears that the alcohol anonymous course has not been successful in teaching the Applicant to reduce or to abstain from alcohol.
71. Mr Kuel Paul stated he arrived in Australia in 2004, and that he had known the Applicant as they grew up together in the same refugee camp. Mr Paul asserts that the Applicant’s father became ill whilst he was visiting Sudan and suspects the Applicant’s father’s death was a political assassination resulting from poisoning. Mr Paul refers to the chaotic and violent situation in South Sudan with extra-judicial killings in the capital and across the country and the kidnapping of persons who are considered to be a threat to the regime. Mr Paul states that the Applicant is a target and if sent to a neighbouring country he could be kidnapped. Mr Paul believes that after all the years in prison the Applicant is now remorseful for his actions and is ready “to make things right. Think he deserve a second chance – like every other human being”.
Finding on Primary Consideration D
72. Taking into consideration the fact that the evidence establishes the Applicant remains unrehabilitated, the Tribunal considers that the Australian expectations to be that the applicant poses a danger to the community. This factor weighs against revocation of the decision.
(emphasis in original)
19 The Tribunal then turned to address the “other considerations” set out in paragraph 9 of the Direction. This section of the Tribunal’s reasons (T[73] to [89]) appears under a heading “SECONDARY CONSIDERATIONS”.
20 The first other consideration addressed by the Tribunal was international non–refoulement obligations, as required by paragraphs 9(1)(a) and 9.1 of the Direction. At T[73] to [76] the Tribunal stated:
73. The Applicant states that he fears for his life because he is a member of the Nuer tribe and that such tribe and Dinka tribe are still at war. He stated he would be identified immediately as a Nuer because his name and language would reveal his origins. Accordingly it would not be safe for him to remain anywhere in Sudan.
74. The Tribunal notes that no independent evidence has been provided that the Applicant would be at risk, other than from the Applicant’s statement and from the observations of his cousin, Mr Paul. The Tribunal also notes that the Applicant departed the country approximately 28 years ago when he was at a relatively young age. Accordingly, the Tribunal questioned whether there is any link between the Applicant and his fear. It notes however that the tribes remain in dispute and there is evidence that there are extra-judicial killings in Sudan. The Tribunal also understands that such consideration, namely tribal rivalry, may extend over a long period and may constitute a very valid reason why the Applicant fears return to his country.
75. The Tribunal finds that the Applicant’s claims should be determined on an application for a protection visa. The Applicant may apply for such a visa, and this Tribunal is empowered to consider this prospect when deciding whether to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4)(b)(ii) of the Act: see Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [19] per the majority (Kiefel CJ, Keane, Gordon, Steward JJ).
76. Irrespective, the Tribunal notes the Applicant’s claims, and finds that such claims weigh in favour of revocation of the decision under review.
21 The second other consideration addressed by the Tribunal was the extent of impediments that the appellant may face if removed from Australia to South Sudan, as required by paragraphs 9(1)(b) and 9.2 of the Direction (T[77] to [79]). The Tribunal concluded that the absence of evidence that there would be medical facilities available in South Sudan to treat the appellant’s mental health condition weighed in favour of revocation of the cancellation decision.
22 The third other consideration addressed by the Tribunal was the impact of a revocation of the cancellation decision on victims and others where information in this regard is available, as required by paragraphs 9(1)(c) and paragraph 9.3 of the Direction. At T[80] to [82] the Tribunal stated:
80. Paragraph 9.3 (1) of the Direction provides:
Decision-makers must consider the impact of the s501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
81. The only evidence of the effect of the Applicant’s conduct upon his victim is contained in the sentencing remarks of Boddice J where his Honour said:
Despite police announcing their presence and directing you [sic –to] get off the victim,, you ignored this direction. You are forcibly removed from the victim. Thereafter, you continued to struggle with police.
The victim, fortunately, did not suffer significant physical injuries. She has, however, significant psychological injuries as a consequence of that traumatic and terrifying event. The Victim Impact Statement, which is not under her hand, indicates it has caused significant difficulties in her ongoing enjoyment of life.
When she was assessed by medical staff, she was found to have a number of injuries to her face, as well as a probable small fracture of one of the vertebrae. That appears not to be the case because she discharged herself from hospital shortly thereafter. It appears there is no suggestion that there was a permanent injury to her spine.
82. No more recent material has been provided.
(emphasis added)
23 The fourth other consideration addressed by the Tribunal was the appellant’s links to the Australian community, as required by paragraphs 9(1)(d) and 9.4 of the Direction (T[83] to [89]). The Tribunal did so by reference to:
(1) the strength, nature and duration of the appellant’s ties to Australia (as required by paragraphs 9(1)(d)(i) and 9.4.1 of the Direction), which the Tribunal found provided an insufficient basis “to warrant revocation of the cancellation decision” (T[88]); and
(2) the impact on Australian business interests if the appellant were not allowed to remain in Australia (as required by paragraphs 9(1)(d) and 9.4.2 of the Direction), in respect of which the Tribunal found that the only relevant evidence was the appellant had worked in an abattoir in Queensland and had worked in Victoria for an unspecified period (T[89]).
24 Having addressed the primary and other considerations, the Tribunal returned to the issue that required determination: whether there was another reason why the cancellation decision should be revoked. At T[90] to [93], the Tribunal explained:
90. The Applicant does not satisfy the character test. Accordingly the Tribunal must assess whether there is “another reason” why the original mandatory cancellation decision should be revoked. The evidentiary test is to be established on the balance of probabilities, and the Full Court of the Federal Court of Australia in Viane v The Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 per Colvin J at [64] states relevantly:
… It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carry sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the Visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in the decision not to revoke a Visa cancellation.
91. Visa cancellation is not to be considered as a form of punishment: see the observations in Folau v Minister for Immigration and Border Protection [2016] FCA 1149 at [11] where Pagone J said:
It is well-established that the Minister cannot regard Visa cancellation as a form of punishment for past events.
The primary considerations A and D weigh against revocation. Primary consideration B and C are neutral. Of the secondary considerations, the issues of concern to the Tribunal is the fact of the Applicant’s mental condition, namely PTSD; the lack of evidence concerning treatment available to him if he is returned to his country of origin; and the risk of harm should he be returned the Tribunal is also concerned that there is no proposal put any treatment to be made available to the Applicant if he remained in Australia, resulting in the potential for future violence by the Applicant.
92. However outweighing these considerations, and having regard to the future, is the fact that the Applicant continues to consume alcohol to excess and in such a state he is a danger to the community.
93. For these reasons the Tribunal does not consider that there is “another reason” which would justify the setting aside of the decision under review. It follows that the decision under review is affirmed.
(emphasis added)
C. THE REASONS OF THE PRIMARY JUDGE
25 It is unnecessary to consider in any detail the reasons of the primary judge in circumstances where the primary judge: (1) dealt with the sole ground of review before him – a contended error by the Tribunal of failing to identify and understand representations made to it by the appellant to the effect that the appellant would commit suicide if returned to South Sudan – which ground is not pursued on this appeal; and (2) was not required to, and did not, deal with the grounds of review now sought to be advanced by the appellant.
26 It is sufficient to note that the primary judge dismissed the application before him.
D. THE APPLICATION FOR LEAVE TO AMEND THE NOTICE OF APPEAL
27 We turn now to consider the appellant’s application for leave to rely upon an amended notice of appeal, which contains four proposed new grounds of appeal.
D.1 The need for leave and relevant principles
28 The appellant requires the leave of the Court to raise grounds not raised below: Francuziak v Minister for Justice [2015] FCAFC 162; (2015) 238 FCR 332 at 335 [11] (Siopis, Flick and Katzmann JJ). The exercise of the Court’s discretion to grant such leave is informed by s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act), which requires the discretion to be exercised in a manner which facilitates the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 26 at [34] (Katzmann, Banks-Smith and Rofe JJ).
29 As the Full Court explained in Khalil at [34] to [37], the predominant consideration is the interests of justice: see also VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at 598 [46] (Kiefel J (as her Honour then was), Weinberg and Stone JJ), Francuziak at 335 [11] and Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144; (2023) 298 FCR 476 at 484 to 485 [40] (Stewart, Feutrill and Hespe JJ) and the authorities there cited.
30 The discretion to grant or refuse such leave is broad. The matters germane to the exercise of the discretion in the present case are discussed below.
D.2 The merits of the proposed new grounds of appeal
31 It is well-established that the merits or otherwise of the proposed new grounds of appeal are an important consideration: see Khalil at [36], EQV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 129 at [5] (Rangiah, Stewart and Cheeseman JJ); Garland at 485 [41].
32 Consideration of the merits of proposed new grounds of appeal does not involve a full consideration of those grounds: EQV20 at [5]. As the Full Court (Heerey, Moore and Goldberg JJ) explained in Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 at [24]:
... in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success. We also consider it appropriate to take into account whether the appellant had the benefit of legal representation at the hearing before the primary judge.
33 Before considering the individual proposed new grounds, we make the following general observations.
34 These grounds each involve a contention that the Tribunal failed to comply with the Direction and invite the Court to draw inferences as to what the Tribunal did or did not do (or consider) in reaching its decision.
35 In considering whether to draw inferences from the reasons of an administrative decision-maker such as the Tribunal, it is trite law that such reasons are to be read as a whole and not with an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271 to 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at 604 to 605 [38] (Kiefel CJ, Keane, Gordon and Steward JJ).
36 Relatedly, it does not follow from the absence of an express reference to a particular matter within a particular section of the reasons that such a matter was not taken into account by the decision-maker. The individual sections of an administrative decision-maker’s reasons are not to be treated as self-contained or exhaustive of the topics they address. As the High Court of Australia (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ) recently explained in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 98 ALJR 196 at 207 [50]:
... A decision-maker’s written reasons for a decision are often structured in sequence. The sequential structure of reasons, so that each topic is dealt with under a separate heading, is not generally a sufficient reason to infer that in dealing with one matter the decision-maker has forgotten the substance of the preceding parts of the reasons or is unaware of the substance of the subsequent parts of the reasons. Nor would it be readily inferred from mere sequential structuring and dealing with each topic under its own heading that a decision-maker had quarantined the assessment of each topic from every other topic. As previously noted, in the present case, moreover, the concluding section of the delegate’s reasons discloses an overall weighing of all considerations against each other. In so doing, the delegate expressly weighed the plaintiff’s personal circumstances against, amongst other things, the expectations of the Australian community.
37 The caution to be observed before drawing an inference that a Tribunal has failed to address a particular matter was explained by a Full Court of this Court (French J (as his Honour then was), Sackville and Hely JJ) in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, at 604 to 605 [47]:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
(emphasis added)
38 We turn now to consider each of the proposed new grounds.
39 Proposed ground 1a concerns the Tribunal’s treatment of the first primary consideration in the Direction (summarised at [10] to [12] above). The proposed ground is:
The Tribunal has failed to comply with para 8.1.2(2) of Direction 90, as at [30] it has failed to have regard to the matters specified in paras 8.1.2(2)(a) to (b) in assessing the risk that may be posed by the applicant and the weight to be afforded to that primary consideration as required by paras 8.1(1) to (2).
40 Paragraph 8.1(2) of the Direction required the Tribunal to give consideration to the risk to the Australian community, should the appellant commit further offences or engage in other serious conduct. Paragraph 8.1.2 provided in so far as is presently relevant:
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the non-citizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
41 This proposed ground of appeal invites the Court to infer that the Tribunal, when assessing the risk that may be posed by the appellant and the weight to be afforded to that risk, did not have regard to: (1) the nature of the harm to individuals or the Australian community should the appellant engage in further criminal or other serious conduct (paragraph 8.1.2(2)(a) of the Direction); and (2) the likelihood that the appellant would engage in such conduct (paragraph 8.1.2(2)(b) of the Direction).
42 We are not satisfied that this ground has reasonable prospects of success.
43 The Tribunal’s analysis at T[29] to [31] (set out at [12] above) was concise. However, it does not follow from the conciseness of the Tribunal’s analysis that it failed to address matters that it was required to consider under Direction 90. The Tribunal commenced at T[29] by stating that it had had regard to paragraph 8.1.2 of the Direction. At T[30] it referred expressly to the risk of re-offending as moderate. Further, and bearing in mind the principles set out at [35] to [37] above, it is clear from other parts of the Tribunal’s reasons that the Tribunal gave detailed consideration elsewhere in its reasons to both the nature of the harm and the likelihood that such harm would come to pass.
44 Proposed ground 1b concerns the Tribunal’s treatment of the fourth primary consideration in Direction 90 (summarised at [15] to [18] above). The proposed ground is:
The Tribunal failed to comply with para 8.4(4) of Direction 90, as at [72] it has made its own assessment of community expectations.
45 Paragraph 8.4 of Direction 90 provided:
8.4 Expectations of the Australian Community
(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.
46 We are not satisfied that this ground has reasonable prospects of success. Fairly read, T[72] (which is reproduced at [18] above) is not an expression of the Tribunal’s assessment as to the expectations of the Australian community; rather it is an expression of the Tribunal’s view that the appellant, unrehabilitated, posed an unacceptable risk to the Australian community and as such the expectations of that community were that he should not be allowed to remain in Australia. We accept that T[72], with respect, could have been expressed more clearly. However, it does support an inference that there was an independent assessment by the Tribunal of the community’s expectations.
47 This is particularly so when, as part of the Tribunal’s consideration of paragraph 8.4 of the Direction, the Tribunal at T[46] to [47] (set out at [15] above) expressly noted the terms of paragraph 8.4(4) and then put into the Tribunal’s own words at T[47]:
... That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. ...
48 The appellant placed considerable reliance upon the decision of the Full Court of this Court (Moshinksy, Stewart and Jackman JJ) in Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68; (2023) 297 FCR 662. In that case the Full Court held that the Tribunal erred in independently assessing the community expectation. However, we are required to construe the Tribunal’s reasons in the present case to assess whether there are reasonable prospects of ground 1b succeeding. The conclusion reached in another case involving a different set of reasons is of little assistance.
49 Proposed ground 1c concerns the Tribunal’s treatment of the third other consideration in Direction 90 (summarised at [22] above). The proposed ground is:
The Tribunal failed to comply with para 9.3(1) of Direction 90, as at [81] it has considered the effect of the applicant’s conduct upon his victim rather than any impact of the visa decision on members of the Australian community.
50 Paragraph 9.3 of Direction 90 and T[81] are set out at [22] above.
51 We are not satisfied that this ground has reasonable prospects of success.
52 The requirement to take into account the impact of the decision upon members of the community is one that arises if information in that regard is available. So much is clear from the wording of paragraph 9.3(1) (see [22] above). More generally, paragraph 6 of the Direction (see [56] below) requires the considerations identified in paragraphs 8 and 9 of the Direction to be taken into account “where relevant to the decision”. Indeed, as noted at [9] above, the Tribunal at T[20] expressly addressed the “primary considerations as relevant”.
53 On a fair reading of the Tribunal’s reasons, the Tribunal at T[80] identified the terms of paragraph 9.3 of the Direction; and at T[81] identified only the evidence concerning the appellant conduct upon his victim, because that was the only information that fell to be considered for the purposes of paragraph 9.3.
54 Further, the appellant did not identify any salient information provided by him to the Tribunal in this regard. As the plurality of the High Court of Australia explained in Plaintiff M1, a decision-maker is required to read, identify, understand and evaluate the representations made to it but the requisite level of engagement will vary according to, among other things, “the length, clarity and degree of relevance of the representations”; and “[t]he decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise in the materials before them” (at 598 to 599, [24] to [25])).
55 Proposed ground 1d concerns the Tribunal’s treatment of the first and second other considerations in Direction 90 (summarised at [20] to [21] above) in its overall assessment of the various considerations. The proposed ground is:
The Tribunal has failed to consider, as required by paras 6 and 7 of Direction 90, whether the applicant’s non-refoulement claims and the extent of impediments that may be faced in South Sudan, which it described as “secondary considerations” (heading beneath [72] and [91]), justify greater weight than one or more of the primary considerations.
56 Paragraphs 6 and 7 of Direction 90 provided:
6. Exercising discretion
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
7. Taking the relevant considerations into account
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
(emphasis in original)
57 It will be recalled that “the [appellant’s] non-refoulement claims and the extent of impediments that may be faced in South Sudan” referred to in proposed ground 1d, correspond to the first and second “other considerations” in Direction 90, which the Tribunal found both weighed in favour of revocation of the cancellation decision (see [20] and [21]) above.
58 We are not satisfied that this ground has reasonable prospects of success. The Direction requires the decision-maker take into account all of the relevant primary and “other considerations” set out in paragraphs 8 and 9 of the Direction, and weigh them, informed, inter alia, by the principles in paragraphs 5.2 and 7 of the Direction. It is clear from the Tribunal’s reasons that the Tribunal undertook such an exercise, in particular at T[90] to [93] (set out at [24] above).
59 The appellant relied upon the use of the term “secondary considerations” as a heading and in T[91] as a basis for inferring that the Tribunal regarded the “other considerations” as necessarily inferior to the primary considerations. However, the following matters tell strongly against the drawing of such an inference:
(1) at T[11] (set out at [7] above), the Tribunal stated explicitly that “... other considerations should not be viewed as ‘secondary’ as, in certain cases, other considerations may outweigh primary considerations ...”;
(2) at T[13] and [59], (set out at [7] and [16] above respectively) the Tribunal referred to the “other considerations” by that label, rather than as “secondary considerations”;
(3) at T[88], the Tribunal, as part of its consideration of the fourth “other consideration”, expressed the view that the strength, nature and duration of the appellant’s ties to Australia were “not sufficient to warrant revocation of the decision”. Implicit in this statement is the possibility, if the evidence had been different, that the fourth “other consideration” could have been sufficient, of itself, to warrant the revocation of the cancellation decision. There is no reason to infer that the Tribunal did not consider such a possibility to be open for the remaining “other considerations”; and
(4) in the Tribunal’s ultimate synthesis of the primary and other considerations at T[91] and [92] (reproduced at [24] above), the Tribunal decided that the factors in favour of revocation (all of which were “other considerations”) were outweighed by the risk posed by the appellant to the Australian community. This was expressed by reference to the substance of the various considerations, rather than by reference to a ranking or hierarchy of considerations.
60 Thus, the use of the expression “secondary considerations” as a heading and in T[91], viewed in the context of the principles set out at [35] to [37] above, and the features of the Tribunal’s reasons set out in the previous paragraph, does not provide a sufficiently strong basis for the drawing of the inference suggested by the appellant. Rather, in that context, those references to “secondary considerations” are properly to be seen as “loose language” with which the Court is not concerned: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287 (Neaves J, French J (as his Honour then was) and Cooper J).
61 The appellant called in aid of his argument the decision of Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545 at 551 [23] in which his Honour held that the use of the word “secondary” by the Tribunal in that case indicated that the Tribunal had taken the view that the other considerations were always of lesser importance than the primary consideration. Again, this is of little assistance to the present case which involves a different set of reasons.
62 For the reasons set out above, when the Tribunal’s reasons are read fairly, there is no reasonable likelihood that an inference would be drawn that the Tribunal considered the “other considerations” inevitably to have been of lesser weight than the primary considerations, or that it did not consider each of the “other considerations” in the requisite manner as part of its synthesis at T[90] to [93].
63 Thus, none of the proposed new grounds has reasonable prospects of success.
D.3 The history of the proceeding and why the appellant seeks to raise new grounds
64 We turn now to consider the history of this proceeding and how the present situation has arisen.
65 As noted above, before the primary judge the appellant was represented by senior and junior counsel. The sole ground of review advanced below was a contended error by the Tribunal of failing to identify and understand representations made to it by the appellant to the effect that the appellant would commit suicide if returned to South Sudan. The grounds now sought to be advanced were available to be advanced before the primary judge. No explanation has been proffered as to why this did not occur.
66 These circumstances weigh heavily against the grant of leave to rely upon the proposed new grounds of appeal, for the following reasons.
67 First, as noted above, s 37M of the FCA Act requires that the discretion to grant or refuse leave be exercised in a manner which facilitates the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. In this section “disputes” is not limited to the particular proceeding before the Court, and extends to other proceedings filed (and potentially, to be filed) in the Court. In Iyer v Minister for Immigration & Multicultural Affairs [2001] FCA 929; (2001) 192 ALR 71 at 86 [62], Gyles J opined:
In my opinion, it is wrong to analyse the question which arises here as requiring a balancing of prejudice. Departure from the proper role of appeal in the court system is not simply a discretionary procedural decision. Furthermore, in public law matters like this, it can always be said that no actual prejudice apart from costs is suffered by the respondent compared with the prejudice to the appellant. It can easily be overlooked that there is a significant public interest in the timely and effective disposal of litigation. This aspect has particular force in this area of public law, where delays in dealing with applications for protection visas are obviously to be avoided if possible. In the present case, there was no bona fide ground of appeal from the primary decision and the litigation should have ended at that point more than seven months ago. It is unnecessary, for present purposes, to go beyond the authorities cited by Mansfield J on the issue. Leave to argue the points sought to be raised should be refused. The appeal should be dismissed and the appellant ordered to pay the costs of the respondent. In coming to this view, I have had regard to the nature of the points sought to be argued, but not to the ultimate merits of those points.
(emphasis added)
68 The aims encapsulated within s 37M of the FCA Act are more likely to be achieved when parties are not generally provided with (and do not expect to be provided with) an opportunity to agitate at appellate level grounds of review that were not run before a primary judge. We say “generally” because of the breadth of the discretion and the requirement to facilitate the just resolution of disputes may allow for exceptional cases. The fewer the cases which are run on such a basis, the greater the resources available to deal with other disputes, thereby enhancing the ability of the Court to deal with those other disputes as quickly, inexpensively and efficiently as possible.
69 Secondly, it is well-established that a party should, save in exceptional circumstances, be bound by the conduct of their case before the primary judge: see, e.g. Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 at 71 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7 (Gibbs CJ, Wilson, Brennan and Dawson JJ).
70 Thirdly, the effect of leave would be to render the proceeding before the primary judge essentially irrelevant and to deprive this Court of the benefit of a primary judge’s consideration of the grounds now sought to be advanced: see Francuziak at 336 ([15] and [19]).
71 Fourthly, there has been no explanation, much less an adequate explanation, for the appellant’s failure to advance the proposed new grounds before the primary judge. A change of counsel is self-evidently an inadequate reason: see Khalil at [35] and the authorities there cited.
72 Finally, the public interest in the finality of litigation ordinarily would be undermined where a new ground is allowed to be argued on appeal, and this is so even if it concerns only a question of law: Garland at 484 to 485 ([40]). There is no unusual feature in the present case.
D.4 Prejudice to the respondent
73 The Minister accepted that there would be no prejudice to him if the appellant were granted leave to rely upon the proposed new grounds. For the reasons explained by Gyles J in Iyer (set out at [67] above), we consider this to be of less weight than the matters considered above and in particular the factors relating to the administration of justice more generally.
74 In circumstances where: (1) the proposed new grounds do not have reasonable prospects of success; and (2) the history of the proceeding to date and the absence of an explanation as to why these grounds are pursued for the first time on appeal weigh heavily against the grant of leave, the application for leave to rely upon the new grounds of appeal should be dismissed.
75 For the reasons set out above, the application for leave to amend the notice of appeal should be dismissed. No submissions were advanced in support of the original notice of appeal in the event that the application for leave was unsuccessful and the original notice of appeal should be regarded as having been abandoned. It follows that the appeal should be dismissed. We will make orders accordingly.
76 The Court is grateful to counsel for the appellant who acted for him on a pro bono basis in this appeal.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Sarah C Derrington, Goodman and Raper. |
Associate:
Dated: 7 March 2024
