FEDERAL COURT OF AUSTRALIA

FAF18 v Minister for Immigration and Border Protection [2018] FCA 1474

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), these orders and the reasons for judgment are to be published under the pseudonym “FAF18”.

2.    The application for judicial review of the Minister’s decision given on 31 January 2017 is dismissed.

3.    In the event that the Minister seeks his legal costs:

(a)    the Minister is to file and serve on or before 10 October 2018 a submission of no more than three pages in support of his application for costs; and

(b)    the applicant is to file and serve on or before 19 October 2018 a submission of no more than three pages in response.

4.    The question of costs will be determined on the papers.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    On 6 August 2015, the delegate gave notice of a decision to cancel the applicant's visa pursuant to subs 501(3A) of the Migration Act 1958 (Cth) (the Act). That section provides for the mandatory cancellation of a visa where the visa holder does not pass the character test prescribed by subs 501(6) by virtue of possessing a substantial criminal record within the meaning of subs 501(7) of the Act, and is serving a sentence of full time imprisonment.

2    On 31 January 2017, the Assistant Minister for Immigration and Border Protection (the Minister) made a decision personally not to revoke the original decision to cancel the applicant’s visa. It is from this decision that the applicant seeks judicial review. As I explain below, an extension of time within which to seek judicial review was granted by the Federal Circuit Court (the FCC) on 21 March 2018 and the matter proceeded thereafter in this Court.

3    The applicant did not have legal representation and is in immigration detention on Christmas Island.

4    For the reasons set out below, the application must be dismissed.

2.    PROCEDURAL MATTERS

5    I note that the applicant initially sought an extension of time within which to seek judicial review in the FCC. The applicant required an extension of time having filed the application outside the 35 day period required by subs 477(1) of the Act. Pursuant to orders made on 20 March 2017 at the instigation of the Minister, the application was transferred to this Court under subs 39(1) of the Federal Circuit Court of Australia Act 1999 (Cth) and r 8.02(1) of the Federal Circuit Court Rules 2001. Orders were made on 6 June 2017 in this Court adjourning the hearing of the matter pending the determination by the High Court of Australia of Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 92 ALJR 201 (Falzon).

6    Following the delivery of judgment by the High Court in Falzon, the Minister submitted that subs 477(2) of the Act gives the FCC alone power to extend time in respect of applications commenced in the original jurisdiction of that Court under s 476. As the Minister submitted, the Federal Court’s power to extend time in subs 477A(2) applies only to applications commenced in its original jurisdiction pursuant to subs 476A(1)(b) or (c) of the Act. As a consequence I made orders on 14 March 2018 declaring that the Federal Court did not have jurisdiction to decide the application for an extension of time and remitted the matter for urgent determination by the FCC. Subsequently on 21 March 2018, the FCC made orders (which were not opposed) varying the orders made on 20 March 2017 which had referred the matter to this Court, so as to grant the applicant an extension of time within which to file the application for judicial review.

7    Finally, I note that, while this matter does not involve review of a decision concerning a protection visa application, the applicant has in fact made an application for a protection visa which alleges a fear of harm if returned to Eritrea. In those circumstances, I consider that it is appropriate for this decision to be published under a pseudonym and have made orders accordingly.

3.    BACKGROUND

3.1    Relevant statutory provisions

8    Subsection 501(3A) of the Act provides for automatic cancellation of a visa in cases where, relevantly, a person does not pass the character test prescribed by subs (6) because the person has a substantial criminal record and is serving a sentence of imprisonment on a full time basis. A “substantial criminal record” is defined in subs 501(7) to include cases where the person has been sentenced to a term of imprisonment of 12 months or more. It is clear from the use of the word “must” in subs 501(3A) that the Minister has no discretion, but is required to cancel a person’s visa in cases where she or he is satisfied that the criteria in subs 501(3A) are met.

9    Once a visa has been cancelled under subs 501(3A), the person affected is given an opportunity to make representations on the question of whether the cancellation decision should be revoked, including on whether the Minister should revoke the cancellation decision in the exercise of discretion. First, subs 501CA(3) requires the Minister as soon as practicable, to give the person a written notice setting out the cancellation decision and particulars of the “relevant information”, together with an invitation to make representations. “Relevant information” is defined in s 501CA(2) as:

….information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

10    Secondly, the power to revoke the cancellation decision is conferred by subs 501CA(4) which provides that:

(4)    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.

11    Where the original cancellation decision is revoked, subs 501CA(5) provides that it is taken to have not been made.

12    Thirdly, the Minister has a discretion under subs 501CA(4)(b)(ii) to revoke the cancellation decision despite being satisfied that the person does not satisfy the character test, if the Minister is satisfied that there is “another reason” why the decision should be revoked. It is apparent from the terms of subs 501CA(4)(b)(ii) that this discretion is a broad one pursuant to which the Minister may have regard to factors such as: the impact that cancellation of the visa may have upon the individual concerned, her or his family, and the Australian community; and the risks of harm to the person if she or he is returned (BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 (BCR16) at [24] (Bromberg and Mortimer JJ); Poroa v Minister for Immigration and Border Protection [2017] FCA 826; (2017) 252 FCR 505 at [10] (Perry J)).

13    Finally, the Minister’s decision not to revoke the cancellation decision is not subject to merits review by the Administrative Appeals Tribunal (subs 501CA(7)). The only way to challenge the Minister’s decision is by way of judicial review of the legality of the Minister’s decision.

3.2    The Minister’s decision

14    The Minister found first that the applicant had made representations seeking revocation of the mandatory visa cancellation decision in accordance with the invitation as required under subs 501CA(4)(a) of the Act (Minister’s reasons at [3]).

15    Secondly, the Minister found that the applicant at the time his visa was cancelled was serving a sentence of imprisonment on a full time basis in a correctional centre in New South Wales. The Minister further found that he was convicted in the Central Local Court of New South Wales in 2012 of Assault Occasioning Actual Bodily Harm for which he was sentenced to 12 months imprisonment. In his representations, the applicant did not dispute that he did not pass the character test and the Minister found that he was not satisfied that the applicant passed the character test with the result that subs 501CA(4)(b)(i) of the Act was not met (Minister’s reasons at [4]-[9]).

16    Thirdly, the Minister considered whether there was another reason why the original decision should be revoked for the purposes of subs 501CA(4)(b)(ii). He stated that in undertaking this task, he assessed all of the information set out in the attachments including the applicant’s representations and the documents he submitted in support of his representations as to why the original decision should be revoked. The applicant’s reasons included (as noted by the Minister at [12]) that: international non-refoulement obligations may be owed to the applicant as he was granted permanent residency on refugee grounds in 1987; his ties with Australia through his 30 years of residence; his adult son who is an Australian citizen, his extended family members in Australia and support from a volunteer; his progress in rehabilitation, alcohol abstinence and compliance with medication; his plan for the future to reconnect with his son and work for the Salvation Army; and the difficulties he would encounter on his return to Eritrea.

17    Relevantly, with respect to the question of international non-refoulement obligations, the Minister found as follows:

16. [The applicant] has made claims that may give rise to international non-refoulement obligations. I acknowledge [the applicant’s] submissions that he was born in Eritrea. He fled the country during a civil war. He …finally arrived in Australia as a stowaway [in] 1986. He was granted permanent residency on refugee grounds [in] December 1987.

17. … [The applicant] states that he will be killed ‘for political reasons’ if he were to return to Eritrea. He also fears being conscripted for ‘indefinite national service, knowing that anyone who resists conscription in Eritrea risks being killed’. I acknowledge that [the applicant’s] circumstances may give rise to international non-refoulement obligations.

18. I had regard to [the applicant’s] Statement of Claim for protection, dated 26 October 2016, which states that he fears for his safety and deterioration of his mental health if he were to return to Eritrea.

19. However, I note that [the applicant] is able to make a valid application for another visa. In particular [the applicant] is not prevented by s501E of the Act from making an application for a Protection visa. I note that his application for a Class XA Subclass 866 Protection visa was received by the department on 8 November 2016. Thus it is unnecessary to determine whether non-refoulement obligations are owed to [the applicant] for the purposes of this decision.

18    In addition under the heading “Extent of impediments if removed”, the Minister notes that the applicant fears for his safety and found that:

33. I have considered the submission detailing [the applicant’s] circumstances before he escaped from Eritrea. I note that he is ‘scared of the police and government’ and ‘fears for his safety’ if he returns to Eritrea.

34. I note that [the applicant] arrived in Australia prior to the Eritrea became [sic] an independent country in 1991 and consequently has not resided in Eritrea.

35. I note that Eritrea is a developing economy. While [the applicant] may have equal access to health and other services as are generally available to other Eritrean citizens in the same position as [the applicant], I recognise that the health care and welfare systems in Eritrea offer limited support to its citizens and will be of a significantly lower standard compared with those available to him in Australia.

36. I find that [the applicant] has limited education and employment background in Eritrea, and that he may encounter substantial difficulties in finding employment, considering his age and health conditions.

37. With his traumatised past, limited employment prospects, alcohol addiction and mental health problems, lack of familial and social support in Eritrea and the lengthy residence in Australia, I find that [the applicant] will experience considerable emotional, financial and practical hardship should he be removed to his home country. His mental health conditions are likely to deteriorate further with possible relapse in alcoholism and I have taken this into consideration in making my decision.

19    The Minister then addressed the nature and seriousness of the applicant’s criminal offending, finding that he has an extensive criminal record in Australia from 1991 to 2015 and that most of his offences were violent or potentially violent, including different types of assaults and bodily harm offences. These offences were committed against his ex-partner, members of the public and police officers on duty (Minister’s reasons at [42]). The Minister also noted that the applicant’s victims include pregnant women and persons with medical conditions (Minister’s reasons at [54]). Further, the Minister found that for his offending, the applicant has received multiple terms of imprisonment, including a total of four terms of 12 months or more, and that the sentences he received showed that the courts viewed his offending as serious (Minister’s reasons at [55]). The Minister also considered the significant cost being born by the Australian community when the applicant’s offending was considered cumulatively (Minister’s reasons at [56]). Having taken into account the applicant’s mitigating circumstances, remorse, recent improvements in his behaviour and abstinence from alcohol, support, programs, education and counselling and other matters relied upon by the applicant, the Minister found that:

79. Notwithstanding the above, I note his lengthy history of offending in Australia, his past failure to overcome his alcohol abuse when in the community, his history of breaching judicial orders and the fact that his rehabilitation has not been tested in the community.

80. I have also noted the psychiatrist’s opinion in 2008 that [the applicant] has a ‘propensity for violent behaviour’, which is likely to be lower only if he remains abstinent and if he remains compliant with his mental health treatment and medications.

81. Taking into account all the circumstances of the case, I find that there is a likelihood that [the applicant] will reoffend. [The applicant’s] past offending has resulted in physical and/or psychological harm to multiple victims. Should [the applicant] reoffend with further crimes of violence, I find that it could cause significant physical or psychological harm to members of the Australian community.

20    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 other considerations including, among other things, his lengthy residence in Australia, international non-refoulement obligations and the hardship that the applicant and his family will endure in the event that the original decision is not revoked (Minister’s reasons at [90]).

4.    CONSIDERATION

4.1    The applicant’s case

21    In his application, the applicant alleges that:

1.    The Purported Decision of the Minister from Immigration and Border Protection (Respondent) and His Department on 31 January 2017 is legally unreasonable in that it is vitiated by Judicial Error and has denied me Procedural Fairness.

2.    Ignoring relevant information.

22    The applicant did not file written submissions before the hearing on 17 May 2018. However, in his oral submissions at the hearing made via videolink from Christmas Island, the applicant emphasised his fear that he would be harmed or killed if returned to Eritrea. He submitted that his visa had been cancelled for an offence for which he was sentenced only to 3 months imprisonment, and that he had not been warned by the Department that his visa might be cancelled. His submissions also focused on the circumstances in which his most recent offences took place, and took issue to some extent with the convictions and sentences imposed. He further submitted that the Court should refer his matter to the United Nations High Commissioner for Refugees (UNHCR).

23    Finally, in submissions filed after the hearing on 7 June 2016, the applicant submitted that:

(1)    he had experienced difficulties in filing his originating documents in the Federal Court from Christmas Island;

(2)    his case was analogous to BCR16 and Steyn v Minister for Immigration and Border Protection [2017] FCA 1131 (Steyn) in that the Minister had erred by finding that it was not necessary to determine his claims regarding non-refoulement obligations because those claims would be examined during the protection visa process;

(3)    the Minister had ignored a relevant consideration, being the fact that he was “granted parole for my last conviction”; and

(4)    questions had been raised in the media as to whether the Assistant Minister was disqualified from sitting as a member of the House of Representatives under subs 44(i) of the Constitution by virtue of being a dual citizen of Australia and Greece.

24    A difficulty arises in considering certain of these written submissions in that leave had been granted to the applicant to file submissions after the hearing only in order to afford him an opportunity to address the authorities relied upon by the Minister, as is apparent from the terms of the orders made on 17 May 2018. However, the submissions summarised at paragraphs (1), (3) and (4) above plainly address matters beyond that grant of leave and do so in circumstances where no orders had been made affording the Minister any right of reply. These difficulties are compounded by the fact that neither of matters identified at paragraphs (3) or (4) were raised by the application for review. In these circumstances, it would not be appropriate for me to take the submissions into account save for the submissions addressing the decision in BCR16 and Steyn. Nonetheless, I note that in my view, none of the additional matters appeared to have any merit. Any difficulties encountered by the applicant in filing documents do not bear upon any substantive issue on the appeal. Furthermore, the evidence in this Court does not suggest that there was evidence before the Minister that the applicant had been granted parole in respect of his last conviction, in the absence of which it could not be said that the Minister erred in failing to consider that matter. Nor was there any evidence that the Assistant Minister was disqualified from sitting as a member of Parliament.

25    For the reasons set out below, no error of a jurisdictional nature has been established in the Minister’s decision.

4.2    Limitations upon the Court’s role on the application for judicial review

26    To a significant extent the applicant’s submissions at the hearing expressed disagreement with the Minister’s decision and asked this Court instead to decide whether the cancellation decision should be revoked. The applicant’s submissions to that effect proceed on a misunderstanding of the role of the Court. As I explained at the hearing (and as the Minister submitted), the Court’s jurisdiction is limited to deciding whether the Minister’s decision was made lawfully under the Act, that is, whether the Minister’s non-revocation decision is invalid by reason of a jurisdictional error. The Minister would make a jurisdictional error if, for example, she or he failed to consider a mandatory relevant consideration (such as the risk of harm to the community posed by the applicant), or failed to give him an opportunity to make representations on whether the cancellation decision should be revoked: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court). However, the Court does not have jurisdiction to decide for itself whether or not the Minister’s decision not to revoke the cancellation decision is the correct or preferable decision: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [65] (Sackville J (North J agreeing at [129]), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). As such, it is not open to the Court to decide whether it agrees with the Minister’s decision. The Court’s role is limited to deciding whether the Minister made a legal error justifying setting aside his decision and requiring the Minister to make a new decision.

27    Equally, the submission that the Court should refer the matter to the UNHCR is based upon a misunderstanding of the Court’s function. The question of whether the applicant is a refugee is not a matter for this Court but rather is relevant to the merits of his application for protection.

4.3    Did the Minister fall into jurisdictional error in finding that the preconditions in subs 501(3A) were met?

28    The applicant submitted that a 3 month sentence only was imposed for the conviction which resulted in the cancellation of his visa. He also made submissions as to the seriousness of that offence. However, as is apparent from the description of the statutory provisions set out earlier, a visa must be cancelled under subs 501(3A) where relevantly two criteria are met, namely:

(1)    that the Minister is satisfied that the person does not pass the character test because of the operation of subs 501(6), that is, the person has “substantial criminal record” as defined by subs 501(7); and

(2)    the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence.

29    Under subs 501(7)(c), a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more.

30    Contrary to the premise underlying the applicant’s argument, there is no requirement under subs 501(3A) that the person be serving a sentence of imprisonment for a term of 12 months or more at the time of cancellation, or that no sentence of a shorter period has been imposed on the person in the interim. It is sufficient that such a sentence has been imposed on the person in the past. In this case, the Minister found that the applicant had been sentenced on four prior occasions to terms of 12 months or more (at [55]). No issue was taken by the applicant as to the correctness of that summation of his criminal record. As a result, the first criterion was met. Nor was any issue taken with the fact that the applicant was serving a custodial sentence at the time of cancellation. It follows that the second criterion was also met.

4.4    Did the Minister fall into jurisdictional error in his treatment of the applicant’s fears of harm if returned to Eritrea?

31    Given the applicant’s submissions before the Minister and on judicial review as to his fear of harm if returned to Eritrea, the Minister also made submissions on the question of whether the Minister fell into jurisdictional error in his treatment of the applicant’s fears. It is clear that the applicant had significant concerns as to his safety if returned to his country of nationality and put this forward as a reason why the cancellation decision should be revoked. A letter by a volunteer and support person on behalf of the applicant also submitted that returning the applicant to Eritrea would breach Australia’s non-refoulement obligations and place the applicant at risk, and the applicant should instead be given a protection visa.

32    The Full Court of the Federal Court has recognised that the Minister, when considering cancellation of a visa under subs 501(2), is not required to consider whether Australia owes non-refoulement obligations to a person who is able to make an application for a protection visa (see Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 67 at [61]-[65]). However, that does not absolve the Minister from addressing a claim to fear harm if an applicant is forced to return as a reason for revoking any such cancellation decision. Rather, Justices Bromberg and Mortimer held in BCR16 at [32]-[75] that the Minister will fail to carry out the task required by subs 501CA(4) if the Minister fails to address or turn her or his mind to the risk of harm that an applicant may face on return to her or his country of nationality solely because that risk may be addressed through the protection visa process: BCR16 at [62] and [72]; see also BHA17 v Minister for Immigration and Border Protection [2017] FCA 1288 at [60]-[71] (Griffiths J); and Steyn at [15]-[16] (Jagot J) (applying BCR16 by analogy).

33    However in this case it is apparent that the Minister did take the applicant’s submissions regarding his fear of harm if returned into account in deciding not to revoke the cancellation decision, as the Minister submitted. It is true that, as in BCR16, the Minister considered that it was unnecessary to determine whether non-refoulement obligations were owed to the applicant, noting that the applicant was able to make a valid visa application, is not prevented by s 501E of the Act from applying for a protection visa, and had in fact so applied (Minister’s reasons at [16]-[19]). However, unlike BCR16, the Minister’s consideration of the applicant’s fears if he were returned to Eritrea did not stop at that point. Rather, as earlier explained, the Minister then took into account the applicant’s fears for his safety if returned in the context of considering the extent of impediments that the applicant would face if returned from Australia to Eritrea (Minister’s reasons that [33]-37]). As such, this is not a case where the Minister wrongly failed to take such fears into account either by misunderstanding the applicant’s claims or by assuming that they would be addressed through the protection visa process. The decisions in BCR16 and Steyn are therefore distinguishable, contrary to the applicant’s submissions.

4.5    Did the applicant otherwise establish jurisdictional error?

34    Turning to the question of whether the applicant otherwise established jurisdictional error, first the application for review alleged a breach of procedural fairness without any particularity; nor did the applicant identify in submissions any matter capable of constituting a breach of procedural fairness. Furthermore, there is no material indicating that the applicant was not afforded procedural fairness. I note in this regard that subs 501(3A) provides for automatic cancellation of a visa where the criteria are met and subs 501CA(3)(b) allows a person to make representations only on the question of whether cancellation should be revoked. In the present case, the applicant was given a notice setting out the cancellation decision on the day it was made and particulars of the relevant information required by subs 501CA(3)(a)(ii). He was also invited to make representations in accordance with subs 501CA(3)(b) (as the applicant in fact did). In addition, before the Minister made his decision regarding revocation, on five separate occasions the applicant was provided with, and asked to comment upon, further personal information received by the Minister. The applicant also made further submissions in response to that further information. It follows that the applicant has not established any breach of procedural fairness in relation to the revocation decision.

35    Secondly, the applicant took issue in his oral submissions with the Minister’s findings as to the circumstances in which certain of his offences took place and their seriousness. However, the Minister’s reasons disclose that he considered the applicant’s submissions on these matters, including that some offences were not deliberate and were committed under the influence of alcohol or due to his mental health. In particular, the Minister found that the applicant’s explanations demonstrate that he has limited insight into his offences and, while also accepting that the applicant’s psychiatric disorder lessens his responsibility for his offending, found that this had been taken into consideration in the various sentences which he received (Minister’s reasons at [69]-[70]). As such, no failure to consider these matters has been demonstrated.

36    Finally, while the application for review alleged that the decision of the Minister was legally unreasonable, nothing was identified which might establish that ground. Nor is any basis for the allegation apparent from the decision. In this regard, while legal unreasonableness is a ground on which a decision by the Minister may be held invalid, a high degree of caution must be exercised before finding that adverse findings expose jurisdictional error in order to ensure that the Court does not embark impermissibly upon merits review: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [96] (Crennan and Bell JJ); SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089; (2015) 233 FCR 451 at [14]-[15] (Flick J); DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 353 ALR 641 at [30(5)] (the Court). Thus, in order to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [148] (Robertson J); see also SZMDS at [135]). Indeed, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [61] (the Court). In this case, while it is appreciated that the applicant disagrees strongly with the Minister’s decision, no such extreme illogicality is demonstrated. To the contrary, that decision reveals that the Minister took into account relevant factors based upon the evidence, including the risk of harm to the Australian community, and that it was open to the Minister on the evidence to find that this consideration outweighed the other considerations in the applicant’s favour, including the hardship and risks he would face if returned to Eritrea.

5.    CONCLUSION

37    For the reasons set out above, the application must be dismissed. The question of what, if any, orders for legal costs should be made is reserved pending the provision of an opportunity to the parties to file brief submissions as to costs, in the event that costs are not agreed. As to the latter, I note the procedural history of this application, and in particular the delay which the Minister’s mistaken position with respect to the jurisdiction of this Court occasioned to the hearing and determination of the application to the applicant’s detriment. In those circumstances, I indicate that it is my preliminary view that the appropriate order is that there be no order as to costs.

Associate:

Dated:    3 October 2018