FEDERAL COURT OF AUSTRALIA

Farah v Minister for Immigration and Border Protection [2018] FCA 461

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for review dated 23 December 2016 is dismissed.

2.    The applicant is to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

SIOPIS J:

1    On 25 January 2016, a delegate of the Minister for Immigration and Border Protection (the Minister) decided, under s 501CA(4) of the Migration Act 1958 (Cth), not to revoke the mandatory cancellation under s 501(3A) of the Migration Act of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa (special category visa). However, on 1 August 2016, the Administrative Appeals Tribunal (the Tribunal) on review set aside the delegate’s decision and revoked the cancellation of the applicant’s visa. Then, about three months later, without first affording the applicant natural justice, the Minister set aside the Tribunal’s decision and cancelled the applicant’s visa under s 501BA(2) of the Migration Act.

2    The applicant’s application for judicial review of the Minister’s decision was transferred to this Court from the Federal Circuit Court of Australia.

BACKGROUND

3    The background to the application is as follows.

4    The applicant left his home country of Somalia as an eight year old after his father was assassinated and his family fled as refugees to Kenya. In Kenya, the applicant, his mother and his siblings were assessed as refugees by the United Nations High Commissioner for Refugees.

5    The applicant and his family then found refuge in New Zealand. However, in 2005, the applicant and his family moved to Australia. At that time, he was 22 years old. He has since resided in Australia more or less continuously, having visited New Zealand in 2008.

6    On 26 August 2013, the applicant was convicted in the County Court of Victoria of armed robbery, making a threat to kill and false imprisonment and sentenced to terms of imprisonment of 42 months, 12 months and 6 months respectively, with 15 months of the total 60 months to be served concurrently. The applicant received a fine for two counts of obtaining property by deception.

7    On 28 May 2014, on appeal from the Melbourne Magistrates Court, the applicant was convicted in the County Court of Victoria of theft, theft of a motor vehicle, criminal damage and three counts of obtaining property by deception and sentenced to a further 12 month term of imprisonment.

8    The convictions on 26 August 2013 and 28 May 2014 all relate to events which occurred on the night of 30 December 2011.

9    At the time that the applicant was convicted of the crimes referred to above, he held a special category visa.

10    On 23 February 2015, a delegate of the Minister cancelled the applicant’s special category visa under s 501(3A) which is a mandatory cancellation decision by reason of the applicant’s substantial criminal record.

11    The applicant was released from prison on 27 April 2015 on parole and was then immediately taken into immigration detention. The applicant was first detained in immigration detention in Victoria at Maribyrnong. On 11 June 2015, the applicant was then transferred to immigration detention in Western Australia at Yongah Hill and then on 1 October 2015, the applicant was removed to the Christmas Island immigration detention centre. On 24 June 2016, the applicant was then moved back to Yongah Hill immigration detention centre, where he remained until his release on 1 August 2016.

12    On 25 January 2016, a delegate of the Minister rejected the applicant’s application to revoke the mandatory cancellation of the applicant’s visa under s 501CA(4) of the Migration Act. That subsection reads as follows:

The Minister may revoke the original decision if:

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

(b)    the Minister is satisfied:

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

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

13    On 1 August 2016, the Tribunal set aside the delegate’s decision and decided that the mandatory cancellation of the applicant’s visa should be revoked under s 501CA(4).

14    Consequent upon the Tribunal’s decision, on 1 August 2016, the applicant was released from immigration detention in Western Australia. Upon release, the applicant remained resident in Western Australia and did not return to Victoria.

15    On 19 August 2016, the Minister requested that the Department of Immigration and Border Protection (the department) prepare a submission with respect to considering setting aside the Tribunal’s decision and cancelling the applicant’s visa under s 501BA of the Migration Act. That section read as follows:

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

(2)    The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

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

(i)    paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e); and

(b)    the Minister is satisfied that the cancellation is in the national interest.

(3)    The rules of natural justice do not apply to a decision under subsection (2).

(4)    The power under subsection (2) may only be exercised by the Minister personally.

(5)    A decision under subsection (2) is not reviewable under Part 5 or 7.

16    On 2 September 2016, the Adult Parole Board of Victoria (the APB) found that the applicant had breached his parole conditions and cancelled his parole.

17    On 8 November 2016, having received the departmental submission, the Minister cancelled the applicant’s special category visa.

18    The applicant was advised of the Minister’s decision by letter dated 30 November 2016 which was sent to his legal representative.

19    On 23 December 2016, the applicant commenced a proceeding in the Federal Circuit Court for judicial review of the Minister’s decision. That proceeding was transferred to the Federal Court.

the minister’s decision

20    The Minister found that the applicant did not pass the character test because of the applicant’s conviction for armed robbery. The Minister also found that the applicant’s criminal conduct was of sufficient seriousness to found a satisfaction that it was in the national interest to cancel the applicant’s special category visa.

21    The Minister then went on to consider a number of other factors. One such factor was the risk of the applicant re-offending. In considering this factor, the Minister had regard to the circumstances of the applicant’s criminal conduct including the fact that his criminal conduct was associated with the abuse of alcohol and that the applicant had developed some insight into his offending. The Minister also made the following observations in relation to the applicant’s parole conditions.

22    At [66] of his reasons, the Minister said:

I note that Mr FARAH is subject to the supervision of Community Corrections Victoria, until 20 August 2017, his parole expiry date. I consider that ongoing supervision is a protective factor which should reduce Mr FARAH’s risk of re-offending, in the community. However, I note the advice of Community Corrections Service, on 8 September 2016, that Mr FARAH breached his parole conditions by remaining interstate in Western Australia, with the result that he is now without formal supervision in the community. Mr FARAH professes to have “good” proficiency in oral and written English which I consider would be sufficient to comprehend the obligations of conditional release, on parole. Further, in her submission on his behalf, Ms Jannetto refers to the non-parole period of two years. While it is likely that Mr FARAH remained in Perth to take up his sister’s offer of accommodation and employment, and to be close to his family members, given that I find he was aware of his parole obligations, I consider that this breach of parole is a serious matter and I have weighted it accordingly.

23    At [74] of his reasons, the Minister said:

However, I consider that Mr FARAH’s involvement in some incidents in criminal and immigration detention and his subsequent breach of the conditions of his parole, by remaining interstate without authority, tend to demonstrate his lack of respect for authority and for Australian laws. I have given this some weight, while acknowledging that Mr FARAH’s behaviour in criminal custody and immigration detention, over a fairly lengthy period, was generally satisfactory.

24    The Minister went on to conclude that the protection of the Australian community outweighed all the other countervailing circumstances, and he overturned the Tribunal’s decision.

The application for judicial review of the Minister’s decision

25    The originating application contained two grounds of review. They are:

1.    That the Minister based his reason or part of his reason for cancelling the applicant’s visa personally on factors caused by his Department – namely that the actions of the DIBP put the applicant in breach of his parole conditions. This breach of parole was as a direct consequence of the DIBP detaining the applicant in immigration detention away from the Australian mainland on Christmas Island thereby making him unable to abide by his parole conditions. The Minister in his decision record referred to the applicant’s breach of parole conditions as part of the reason why he cancelled the applicant’s visa.

2.    The Minister came to illogical conclusions. The Minister in his decision record acknowledged that the applicant’s offending was once off, was at low risk of re-offending and no longer posed a risk to the Australian community. However, the Minister then went on to cancel the applicant’s visa on the basis of the “National Interest” power.

26    However, during the hearing, I permitted the applicant to amend his originating application to include a further ground of review as set out below. The new ground became the second ground of review and the illogicality ground became the third ground of review.

The Minister fell into jurisdictional error by making findings adverse to the applicant in relation to the breach of his parole conditions, in circumstances where the Minister had failed to make a sufficient enquiry as to the circumstances of the applicant’s parole conditions and any breach thereof.

Ground one of the grounds of review

27    The applicant contended that the Minister had taken into account, adversely to the applicant, that he had breached his parole conditions. The applicant contended that the breach of parole arose because the applicant was detained by the department in immigration detention at Christmas Island. Therefore, said the applicant, the Minister should have taken into account that the breach of parole was caused by the acts of the executive and not by the voluntary actions of the applicant. I have treated this contention as a claim that the Minister’s decision was, in those circumstances, unreasonable.

28    The only evidence before the Minister on the question of parole, was in Attachment X of the material which was placed before the Minister as part of the departmental submission which had been sent to the Minister on 30 September 2016.

29    Attachment X comprised a file note by a case officer in the department dated 8 September 2016. The file note records that the case officer spoke to “Ross” a parole manager with the Community Correctional Services. The case officer asked to be provided with a copy of a report in respect of the applicant’s performance on parole; and also a copy of the remarks of the appeal hearing in the County Court of Victoria on 28 May 2014. The parole manager, “Ross”, asked the case officer if she could provide her request in writing.

30    The file note goes on to state that:

During our discussion, [Ross] stated that [the applicant] was not in Victoria. I said that I was aware of his intention to go to Perth to work for his sister. [Ross] confirmed that it is his understanding that [the applicant] is in Perth. I queried his parole status, and if he had received permission of the APB to relocate to WA, and if he receives supervision by WA Corrections. [Ross] indicated that he did not get permission, he is not receiving any supervision and he is in breach of his parole conditions.

31    The Minister contended that the evidence before the Minister was that the applicant had breached his parole conditions by his conduct after he was released from immigration detention on 1 August 2016 and before the cancellation of his visa by the Minister on 8 November 2016. Accordingly, contended the Minister, any breach of the applicant’s parole conditions which may have previously occurred by reason of his removal to Christmas Island immigration detention centre was irrelevant, because it was not acted on by the APB.

32    I adjourned the hearing of this application part heard to give the applicant an opportunity to serve a subpoena upon the APB.

33    The applicant, by an affidavit of Mr Martin Udall dated 10 November 2017, put into evidence the documents provided by the APB upon subpoena.

34    The Minister read an affidavit of Mr Peter Corbould dated 5 December 2017 which annexed email correspondence between officers of the APB and officers of the department respectively.

35    The documents emanating from the APB adduced into evidence were not particularly informative. The following documents were, however, relevant.

36    The first document contained the parole orders made by the APB on 14 April 2015. Those orders provided that the applicant must attend in person at a community corrections centre as directed and must not leave Victoria without the written permission of the regional manager. There is also a condition that the applicant must reside at the Maribyrnong immigration detention centre. However, that condition was varied on 1 December 2015 to include any immigration detention centre established under the Migration Act.

37    The second relevant document is the decision of the APB dated 2 September 2016, whereby the APB cancelled the parole of the applicant because the applicant had breached his parole conditions. The document records that the breach of the parole conditions identified by the APB were:

•    You have ceased contact with Community Correctional Services

•    You have breached a residential condition of your parole order

•    You have breached a mandatory condition of your parole order; You must not leave Victoria without the written permission of the Regional Manager

38    In my view, the applicant has failed to demonstrate that the decision of the Minister insofar as he relied on the applicant’s breach of parole conditions was unreasonable.

39    This is because the applicant has failed to establish the fundamental premise upon which the claim was founded, namely, that the Minister had relied upon a breach by the applicant of his parole conditions which had been caused by the department detaining the applicant in immigration detention at Christmas Island and not in Victoria.

40    The evidence before the Court showed that the applicant’s parole conditions were originally imposed on 14 April 2015 by the APB. The parole conditions imposed upon the applicant on that date contemplated that the applicant would be held in immigration detention but only in Victoria. Accordingly, it does appear that by moving the applicant to immigration detention at Christmas Island on 1 October 2015 without any variation being made to the parole conditions at that time, the department may well have caused the applicant to breach his parole conditions as originally imposed.

41    However, it was not this breach of the parole conditions which was relied upon by the Minister when making the observations which he did at [66] and [74] of his reasons for decision (see [22] and [23] above). The breach of the parole conditions which the Minister relied upon was that referred to in the case officer’s file note, which was Attachment X to the departmental submission. This file note, and the Minister’s reasons, are founded on the conduct of the applicant in failing to return to Victoria after he was released from immigration detention in Western Australia on 1 August 2016.

42    The record of the APB of 2 September 2016 (which was produced on subpoena) does not set out the basis upon which the APB found that the applicant was in breach of his parole conditions. However, that record is consistent with the information which was given to the case officer by “Ross” during their telephone conversation, referred to in the file note, upon which the Minister relied.

43    The applicant led no evidence upon which it would be possible to conclude that the breach of the parole conditions referred to by the APB on 2 September 2016, and the consequential cancellation of the applicant’s parole, was based on the fact that prior to his release from immigration detention, the applicant had breached his parole conditions by being detained on Christmas Island.

44    Accordingly, ground one of the grounds of review is dismissed.

Ground two of the grounds of review

45    The second ground of review contends that the Minister did not make a sufficient inquiry as to the reasons why the APB had found in September 2016 that the applicant was in breach of his parole conditions and cancelled his parole, and, in acting upon information which was not the subject of a reasonable inquiry, the decision of the Minister was unreasonable.

46    The applicant contended that it was incumbent upon the Minister to make a formal inquiry of the APB as to the basis of its findings on 2 September 2016 that the applicant had breached his parole conditions, rather than relying upon the file note of the case officer which reflected a telephone conversation.

47    As mentioned, the Minister’s reasons show that he acted on the basis that the applicant had breached his parole conditions by his conduct in remaining in Western Australia after he had been released from immigration detention consequent upon the Tribunal’s decision of 1 August 2016. It is to be observed, therefore, that the information as to the applicant’s breach of parole conditions, upon which the Minister relied, was not information which was before the Tribunal whose decision the Minister set aside.

48    The question of whether the Minister acting under s 501BA(2) of the Migration Act, is under a duty to carry out a reasonable inquiry to ascertain facts which were not before the Tribunal and upon which he or she relies to set aside the Tribunal decision, when he or she has not afforded the applicant natural justice, is a large question.

49    However, in my view, it is not necessary to embark upon a consideration of that question. This is because, in this case, there is no evidence to suggest that had a formal inquiry been made of the APB, it would have advised the Minister otherwise than that the basis for its finding of 2 September 2016 was that the applicant had breached his parole conditions in the way stated by “Ross” during the telephone conversation with the case officer. In particular, the applicant did not seek to adduce evidence that he had challenged the 2 September 2016 decision of the APB.

50    Accordingly, the second ground of review is dismissed.

Ground three of the grounds of review

51    The third ground of review is based on a claim that the Minister’s decision was illogical.

52    The ground of review is without merit because it is based upon false assumptions. The applicant contended that the Minister had found that the applicant “no longer posed a risk to the Australian community”. Although the Minister did find that the applicant’s most serious offending conduct occurred in the course of one evening on 30 December 2011, and also that he had formed the view that the likelihood of the applicant re-offending was low, the Minister did not find that the applicant no longer posed a risk to the Australian community.

53    Rather, at [132], the Minister stated that the Australian community could be exposed to great harm should the applicant re-offend in a similar fashion and that he could not rule out the possibility of further offending by the applicant. The Minister stated further that the “Australian community should not tolerate any further risk of harm”, and at [134], the Minister concluded that the applicant “represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations”.

54    Those findings were open to the Minister and they cannot be characterised as being illogical.

55    Accordingly, the third ground of review is dismissed.

56    The applicant’s application for judicial review is dismissed.

Associate:

Dated:    6 April 2018