FEDERAL COURT OF AUSTRALIA

Spruill v Minister for Immigration and Citizenship [2012] FCA 1401

THE COURT ORDERS THAT:

1.    Leave be granted to the applicant to amend his originating application for review of a migration decision, the amended application being as filed in Court on 10 December 2012.

2.    A writ of certiorari, directed to the Administrative Appeals Tribunal, issue to quash the decision of the Administrative Appeals Tribunal the subject of the proceeding and the matter be remitted to the Administrative Appeals Tribunal for determination according to law.

3.    The first respondent pay the applicant’s costs of the application.

4.    The professional fees charged by the applicant’s counsel in this Court be paid directly to the applicant’s counsel pursuant to r 4.19(3) of the Federal Court Rules.

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

REASONS FOR JUDGMENT

Introduction

1    The applicant is a citizen of the United States of America. He arrived in Australia in 1990. On 24 July 2012 a delegate of the Minister cancelled the applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) (Migration Act). On the same day the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of that decision. On 5 October 2012 the Tribunal decided to affirm the delegate’s decision. The applicant now seeks judicial review in this Court of that decision by the Tribunal. The jurisdiction of the Court is conferred by ss 476A(1)(b) and 476A(2) of the Migration Act and is limited to jurisdictional error.

2    The Court is not concerned with whether or not Mr Spruill’s visa should be cancelled. It is not for this Court to determine that question.

Application

3    I granted leave to the applicant to amend his originating application, leave not being opposed by counsel for the Minister. By his amended originating application for review of a migration decision, the applicant raises the following grounds:

1.     The Tribunal failed to complete the exercise of its jurisdiction.

Particulars

The Tribunal failed to make a finding as to the best interests of the applicant’s child Joshua.

2.     The Tribunal failed to afford the applicant procedural fairness.

    Particulars

(a)     The Tribunal failed to make a finding as to the best interests of the applicant’s child Joshua.

(b)     The Tribunal failed to inform the applicant “disregard for the truth” was a critical issue in its determination of the degree of risk to the Australian community.

3.     The Tribunal took into account an irrelevant consideration.

    Particulars

The applicant’s perceived “disregard for the truth” was not relevant to determination of the degree of risk to the Australian community.

4.    The decision of the Tribunal was based on the existence of a fact that did not exist.

Particulars

The Tribunal took into account against the applicant that Purvis J had found the applicant had a history of engaging in domestic violence, when Purvis J had made no such finding.

I note that counsel for the applicant accepted that particular (a) of ground 2 could not succeed if ground 1 failed and further accepted that given the mandatory terms of Direction no. 55 made under s 499 of the Migration Act (Direction no. 55) the resort to procedural fairness was unnecessary.

Applicant’s submissions

4    In his written submissions the applicant developed these grounds under three heads.

5    In relation to the best interests of the child, the applicant relied on the terms of Direction no. 55, which came into effect on 1 September 2012, and on the earlier decisions in Nweke v Minister for Immigration and Citizenship (2012) 126 ALD 501 (Nweke) and Lesianawai v Minister for Immigration and Citizenship [2012] FCA 897 (Lesianawai). Clause 9.3(1) of Direction no. 55 requires the Tribunal to “make a determination about whether cancellation is, or is not, in the best interests of the child”. The applicant drew attention to the following paragraphs of the Tribunal’s reasons:

[61]    Furthermore, I find that there is much force in the submission by the Respondent namely that given the short period of time before Joshua reaches his majority, the ability of the Applicant to exercise any parental role is limited.

[62]     No doubt there is an argument that it may be of benefit to Joshua to become reacquainted with his father, although given the Applicant’s background one might question whether the father’s influence would be entirely beneficial. Notwithstanding these factors, I find that Joshua’s best interests do not outweigh the risk to the Australian community posed by the Applicant.

6    As to the second head, of “disregard for the truth”, this issue centred on the following paragraphs of the Tribunal’s reasons:

[48]    Given the Applicant’s refusal to accept, or acknowledge, the full extent of his offending behaviour, his propensity to engage in domestic violence combined with a disregard for the truth, I find that there is a real risk that he will continue to offend and that there also exists the potential that any reoffending by him would involve serious harm to the victim.

7    The applicant submitted that this was a critical integer of the Tribunal’s decision relating to the risk to the Australian community but that it was not a matter which could be identified in Direction no. 55 and was not a matter which was obviously relevant to that question. Had the applicant being placed on notice of the fact that this matter was seen as a critical issue he could have made submissions as to why the Tribunal was placing unwarranted significance on it.

8    As to the third head, it was submitted that the reasons of Purvis J of the Family Court of Australia contained no finding of a “history of engaging in domestic violence”. By relying upon such a finding of the history, the Tribunal’s finding was based upon a fact that did not exist. The applicant referred to [23] of the Tribunal’s reasons as follows:

[23]    The judgment of Purvis J contains findings that show that the Applicant has a propensity to domestic violence. My approach to the judgement of Purvis J is that it is a judgment in a superior court of record and His Honour would not have made findings without admissible evidence upon which to base those findings.

…

[43]      … As pointed out in the judgment of Purvis J, the Applicant had had the offence of assault found proven in 1992. The judgement of Purvis J also makes it clear that the Applicant has a history of engaging in domestic violence.

Minister’s submissions

9    In relation to the best interests of the child, the Minister did not submit that Nweke or Lesianawai was wrongly decided but submitted that each case turned on its own facts and the outcome of this case was not determined by the language used by the Tribunal or Minister in other decisions with other facts. When read properly, it was submitted, the Tribunal’s reasons showed that the Senior Member did make a determination on what decision was required by the best interests of the applicant’s son. It was submitted that the Tribunal considered a number of relevant factors and at [61] accepted the submission that given the short period of time before the applicant’s son reached his majority, the ability of the applicant to exercise any parental role was limited. The submission then analysed [62] of the Tribunal’s reasons and submitted that paragraph could only be understood on the assumption that a decision to cancel was not in the best interests of the son. This submission would require the first sentence of [62] to read “It would be in the best interests of the son to become reacquainted with his father, although given the applicant’s background it may be doubtful whether the father’s influence would be entirely beneficial.” The Minister also submitted that, tracking through [55]-[62] of the Tribunal’s reasons, those paragraphs were referable to cl 9.3 of Direction no. 55 and in particular to cl 9.3, 4(a), (b), (c), (d), (e) and (f).

10    As to the second head, the Minister submitted that the real question was whether consideration of the applicant’s disregard for the truth in connection with the risk to the Australian community was open or obvious on the material and in the relevant statutory framework. Attention was also drawn to the reasons of Magistrate Dive of 6 September 2002 and the reasons of the delegate of 9 July 2012. It was submitted that the Tribunal was required to consider whether to accept the applicant’s claims to have changed. In his written submissions the Minister submitted the Tribunal rejected the broader claim because of the applicant’s disregard for the truth. Thus the Tribunal did not act on the basis that a disregard for the truth, of itself, might bring serious harm to the Australia community. Rather, the Tribunal rejected the applicant’s claims to have changed for the better on the basis of the applicant’s disregard for the truth.

11    As to the third head, the Minister submitted that the Tribunal did not act on the basis that Purvis J of the Family Court found that the applicant had a history of engaging in domestic violence; rather, the Tribunal drew inferences from findings made by Purvis J that the applicant had such a history.

Consideration

12    As to the first head of review, applying Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [55], Direction no. 55 imposes binding requirements on relevant decision-makers, including the Tribunal.

13    In my opinion, construing the words of the Tribunal beneficially rather than zealously, the Tribunal has not done what is required by cl 9.3(1), that is, “make a determination about whether cancellation is, or is not, in the best interests of the child”. Instead the Tribunal has posited an argument and then found that argument did not outweigh the risk to the Australian community. As submitted by counsel for the applicant, the language of clause 9.3(1) is not a requirement merely to have regard to the best interests of the child.

14    While I accept that each case turns on its own facts and on the language used by the decision-maker, and while I accept that both Nweke and Lesianawai were concerned with different provisions, in my view, the judgments in those cases point to the conclusion which I have reached.

15    Those decisions were for review of a decision by the Minster and the Minister was not bound by his direction as then in force, or indeed by the present direction. This explains the references to Minister of Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 and the reliance on procedural fairness. Nevertheless, in my view, the principle is the same and indeed the terms of cl 9.3(1) tend to reinforce rather than detract from the reasoning of Jagot J in Nweke and of Katzmann J in Lesianawai. The question in those cases was whether the Minister had given primary consideration to the best interests of the child or children: cl 9.3(1) now requires decision-makers to whom the direction applies to make a determination about whether cancellation is or is not in the best interests of the child.

16    In Nweke, Jagot J held at [21] that the Minister had not treated the best interests of the applicant’s children as a primary consideration because he never confronted the central question of what the best interests of the children required him to decide with respect to the proposed deportation of the father. Not having done so as his starting point, the Minister also could not then assess whether any other consideration outweighed the best interests of the children understood as a primary consideration.

17    In Lesianawai, Katzmann J approved and followed Nweke in relation to the Minister’s reasons which her Honour was considering and concluded at [51] that the Minister had not meant to be any more definite than his language suggested. Her Honour held on the facts of that case that the Minister had not, from his language, reached a conclusion about what the children’s best interests involved or required.

18    What I take from these decisions and from the terms of cl 9.3(1) of Direction no. 55 is that a decision-maker bound by that Direction must, expressly or impliedly, actually make a determination about whether cancellation is, or is not, in the best interests of the child. It is not enough merely to have regard to those interests. I reject the submission that the last sentence of [62] of the Tribunal’s reasons contains an implicit determination about whether cancellation is or is not in the best interests of the child.

19    For these reasons I uphold ground one, and decide that the Tribunal failed to complete the exercise of its jurisdiction in that it failed to make a make a determination about whether cancellation was or was not in the best interests of the child.

20    In fairness to the present Tribunal, it does not appear that Nweke and Lesianawai were brought to its attention. I also note that the Tribunal does not itself set out or state in terms the requirement of cl 9.3(1) and I also add that it does not appear that the extensive written submissions on behalf of the Minister to the Tribunal, which fully evaluated the factual material, specifically adverted to the terms of cl 9.3(1) either as a matter of language or as a matter of substance.

21    My conclusion in relation to the first head makes it unnecessary to consider the remainder. However, for completeness, I indicate my views.

22    In my opinion, the second head is not made out when the Tribunal’s reasons are properly read. The Tribunal viewed the applicant’s disregard for the truth as founding some of his criminal activity, in particular perjury and embezzlement, and, therefore, risk to the Australian community. The Tribunal also considered the applicant’s disregard for the truth as a reason for rejecting his claims to have reformed, which was relevant to cl 9.1.2(1)(b), at least, of Direction no. 55.

23    Generally, the applicant must be taken to have known that his disregard for the truth was a live issue. So much must have been apparent not only from the nature of the inquiry required by Direction no. 55 but also at a factual level from the judgment of Purvis J of 16 May 1997, the reasons of Magistrate Dive of 6 September 2002 and the reasons of the delegate of 9 July 2012, each of which was in the material that was before the Tribunal.

24    As to the third head, the Tribunal was dealing with a submission that the applicant had had no convictions for violent offences until the age of 55. Purvis J had found that there was a propensity to violence in the applicant. Contrary to the apparent submission of the applicant, I would not construe that finding as excluding domestic violence. Further, and this was implicit in the applicant’s submissions, I would not limit domestic violence to legal spouses, as to which, in terms of Ms Jude’s status, see the questions and answers in the transcript of the hearing before the Tribunal at page 418 of the application book. The ground of no evidence in my view fails when one has to regard in particular to paragraphs 23, 50, 53 and 78 of the judgment of Purvis J: there is a sufficient basis on which the Tribunal could have concluded as it did. In my view therefore the third ground fails.

25    For these reasons, ground 1 having succeeded, I grant relief to the applicant in terms which involve the matter going back to the Tribunal for determination according to law.

Orders

26    I order that a writ of certiorari, directed to the Tribunal, issue to quash the decision of the Tribunal the subject of the proceeding and I remit the matter to the Tribunal for determination according to law. I also order that the first respondent pay the applicant’s costs of the application.

Associate:

Dated:    12 December 2012