FEDERAL COURT OF AUSTRALIA

Benrabah v Minister for Home Affairs [2019] FCA 521

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be granted.

2.    The application for review be dismissed with costs to be agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

1    The applicant is an Algerian man, whose Class AZ Subclass 866 Protection visa was cancelled because he did not pass the character test pursuant to s 501(6) of the Migration Act 1958 (Cth) (the “Act”). That is not disputed. On 29 November 2017, a delegate of the first respondent (the “Minister”) decided not to revoke that cancellation pursuant to s 501CA(4) of the Act. The applicant sought review of that decision in the Administrative Appeals Tribunal (the “Tribunal”). On 26 February 2018, the Tribunal affirmed the delegate’s decision. On 30 May 2018, the applicant made an application for an extension of time to seek judicial review of the Tribunal’s decision. With the consent of the Minister, I granted the necessary extension of time and heard the application for judicial review.

Legislative Provisions

2    Section 501CA of the Act provides:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is 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.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(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.

…

Background

3    The applicant arrived in Australia in 1997 and two years later commenced a de facto relationship with an Australian woman. They have a daughter who at the time of the Tribunal’s decision was 17 years old.

4    In 2001, the applicant injured his back at his place of employment and thereafter relied upon a disability support pension because he could no longer work. Around this time he commenced using drugs and became addicted to “ice”. Commencing in 2003, and over around 13 years, he carried out a large number of crimes for the purpose, so the applicant states, of funding his drug habit. In 2006, the then Department of Immigration and Multicultural Affairs issued him with a formal warning that his visa might be cancelled should he continue to commit crimes.

5    The applicant has received over 60 convictions. The majority of these related to property offences including the following:

(a)    burglary;

(b)    theft;

(c)    theft of a motor vehicle;

(d)    obtaining property by deception;

(e)    obtaining financial advantage by deception;

(f)    receiving and disposing of stolen goods;

(g)    going equipped to steal/cheat;

(h)    intentionally destroying property; and

(i)    dealing with property suspected as proceeds of crime.

6    He committed other offences which related to the applicant’s use of drugs, including:

(a)    trafficking amphetamines;

(b)    possession of amphetamines; and

(c)    possession of a drug of dependence.

7    The Tribunal correctly understood how to consider these convictions. At [47], it said:

In assessing, particular offences, the Tribunal may not impugn a sentence or put in issue the propriety of a conviction or the fairness of the trial. The Tribunal may, however, examine the circumstances surrounding the commission of the relevant offence for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct: Minister for Immigration and Ethnic Affairs v Daniele [(1981) 61 FLR 354 at 358].

(Footnotes omitted.)

8    The Tribunal found that three sets of offending were more serious. In respect of these, the applicant either denied committing them or contended that his participation was limited or less serious. The first involved convictions for offences involving the use of false identities and false documents constituting “systematic fraud”. The Tribunal found that this showed a “calculated and lengthy disregard for the law”. The second entailed convictions for, amongst other offences, burglary and assault with a weapon. The gravity of this offending was disputed before me. In essence, after stealing from an unoccupied house, the applicant was confronted in the street by the occupier who had returned home. The applicant confronted the person “while holding a screwdriver and a Stanley knife in a threatening manner”. The third was a conviction for aggravated burglary. When committing that offence, the applicant had been discovered by a 90-year-old woman at her home.

9    The Tribunal took into account the applicant’s denial of these offences. It observed at [68]:

Overall, I find that the Applicant was untruthful and therefore not a reliable witness in relation to his offending. The Applicant’s systematic denial of the majority of the offending that was put to him indicates a disregard for the law and the criminal justice system and importantly, evidences a lack of insight into his offending, which negatively impacts upon his prospects of rehabilitation and of not committing further offences in future. This is considered further below.

It also took into account the Departmental warning. It observed as follows at [74]:

The Applicant’s offending continued unabated after the warning. I find that the 2006 decision to not cancel the Applicant’s visa on character grounds and his continued offending despite the warning is a circumstance that weighs against the Applicant in deciding now whether to revoke a later cancellation of his visa, …

The Tribunal’s Decision

10    The applicant was represented by his partner, who is not a lawyer, before the Tribunal.

11    The Tribunal applied, as required by s 499 of the Act, the Minister’s “Direction 65”. It thus had regard to the following three “primary” considerations:

(a)    the protection of the Australian community from criminal or other serious conduct;

(b)    the best interests of minor children in Australia; and

(c)    the expectations of the Australian community.

12    It also, as required, had regard to the following additional considerations:

(a)    Australia’s international non-refoulement obligations;

(b)    the strength, nature and duration of the applicant’s ties to Australia;

(c)    the impact on Australian business interests;

(d)    the impact on victims; and

(e)    the extent of impediments if removed.

13    As to the nature and seriousness of the conduct to date, the Tribunal concluded as following at [75]:

When considering the factors that are relevant to findings as to the nature and seriousness of the Applicant’s conduct to be considered under the Direction:

(a)    I find that the seriousness of the offences and the sentences imposed, barring those more serious offences considered above, are of neutral weight as relates to their nature, being property offences, and that sentencing is not at the higher end, being mostly sentences for less than 12 months.

(b)    I have already given particular consideration to the Applicant’s systematic fraud, assault and the offence involving an elderly woman, which I find are serious.

(c)    I find that the frequency of the Applicant’s offending is a factor that counts against the Applicant.

As to the likelihood that the applicant would reoffend, the Tribunal took into account the submission that he had commenced a “significant process of reformation”. This included completion of drug use programs. However, the Tribunal also took into account the applicant’s conviction for contravening a suspended sentence, his contraventions or failure to comply with community correction or community based orders, and a failure to answer bail. The Tribunal concluded that it was more likely than not that the applicant would reoffend. It said at [94]-[95]:

I find that the evidence of the Applicant’s past breaches of orders designed to provide the Applicant with an opportunity to address his criminal behaviour is a factor to which I attribute significant negative weight in assessing his risk of recidivism. Similarly, the Applicant’s breached “undertaking that I am well scared away from a life of crime” in relation to the 2006 threat of having his visa cancelled, weighs significantly against him in relation to his risk of recidivism. I find that his repeated breaches of these sorts of opportunities display a lack of respect for Australia’s laws. They also reflect poorly on the Applicant’s prospects for rehabilitation.

Overall, I find that there is little likelihood of the Applicant not re-offending. Put another way, I find that it is more likely than not that the Applicant will re-offend if released from detention into the Australian community, and accordingly he poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community.

(Footnotes omitted.)

14    The Tribunal next considered the best interests of the applicant’s daughter, and found that this factor supported revocation of the cancellation decision. It found that the applicant was part of an “extremely close-knit family”. It concluded at [109] as follows:

I find that revocation of the cancellation of the Applicant’s visa is in the best interests of the Applicant’s daughter. I attribute significant weight to the nature and duration of the relationship between the father and daughter as it is demonstrably significant and appears positive and typical, albeit in the attenuated circumstances of the Applicant. I find that the Applicant is likely to play a positive role in her future if his visa cancellation were revoked. However, this factor, as it concerns the interests of the daughter as a child, becomes almost neutral when considering that the daughter will turn 18 in a matter of months and that any future role in relation to her childhood is likely to be from custody as he is awaiting trial for a charge of riot.

15    It then considered the expectations of the Australian community. Given the “very large number of offences … committed over many years”, the Tribunal decided that the community would expect that the cancellation decision not be revoked.

16    As to Australia’s non-refoulement obligations, the applicant ultimately accepted that he did not fear for his safety if he were to return to Algeria.

17    The Tribunal was next of the view that the strength, nature and duration of the applicant’s significant family ties to Australia favoured the applicant’s case. As to the daughter, the Tribunal reasoned at [135] as follows:

The effect of non-revocation upon the Applicant’s daughter has been considered above. I take that into account and give it moderate weight under the primary consideration. The effect is also attributed weight, albeit a lesser weight, in relation to the period after she turns 18.

I shall return to consider this paragraph.

18    The Tribunal found that the extent of impediments that the applicant would face in Algeria neither weighed against or for him. Whilst it was accepted that he would face some difficulties, he had, nonetheless, significant family residing in Algeria. As to the applicant’s capacity to find work, and in the context of his apparent inability to do so here, the Tribunal reasoned at [144] as follows:

The Applicant gave evidence orally that he would struggle to find work in Algeria as his brother had told him that work was scarce. The Applicant did not raise the issue of his work injury and his incapacity to work and there was no evidence of the existence or otherwise of any form of disability support payments system in Algeria. Otherwise, the Applicant’s age and his medical conditions present no particular or specifically relevant impediment to the Applicant establishing himself in Algeria. Similarly, there was no independent evidence that the Applicant would face any specific difficulties in finding work in Algeria; these are difficulties that apply to any person seeking work in Algeria. When taking into account the close family the Applicant has in Algeria against the difficulties he may face in establishing himself and maintaining basic living standards, I find that this consideration neither weighs against or for the Applicant.

I shall also need to return to this paragraph.

19    The Tribunal concluded by weighing all of these considerations and found that there was no reason to revoke the cancellation decision. It concluded at [153] as follows:

On balance, when weighing up the various factors and considerations relevant to this decision, I find that those factors that weigh against the Applicant, of which many weigh heavily against the Applicant, far outweigh those that weigh in his favour, which are for the most part of moderate or minor weight.

Judicial Review Proceedings

20    Before me, the applicant was ably represented by Mr Krohn of Counsel. The Court is indebted to him for appearing on a pro bono basis. He initially relied on only one ground of review, namely that the Tribunal had failed to consider five relevant considerations. The Minister did not oppose reliance on that ground. With leave, some of these were further developed with new grounds of review (and a new consolidated set of grounds filed with the Court) and written submissions filed after the hearing.

21    The extent to which any of the five matters were mandatory relevant considerations was not the subject of any real debate before me: cf Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216. Rather, the Minister, represented by Mr Brown, contended that the Tribunal had, in substance, addressed each matter and made consequential findings that were open for it to make, or was entitled not to refer to or give weight to the particular considerations raised by the applicant.

The 2004 bills

22    The first matter said not to have been considered was that the applicant was gravely affected when he received in 2004 a bill for $1,000 for the processing of his “application for citizenship”, and then a few days later a bill for about $49,000 for the cost of his detention. Both matters, it was submitted, needed to be considered under Direction 65 and both were relied upon in written submissions before the Tribunal. Neither bill is referred to in the reasons of the Tribunal.

23    The applicant submitted in his written submissions to the Tribunal that these bills formed part of an explanation for why he turned to drugs. That explanation, however, was factually incorrect. At the hearing before the Tribunal, both the applicant and his partner gave evidence that his drug taking had commenced in 2002–2003 before the bills had been received. The applicant’s evidence was that his criminal offending then commenced in 2003 arising out of his inability to claim insurance for damage caused to his (then) new car by an unlicensed driver. Mr Brown submitted in his written submissions:

In the light of this oral evidence, the Tribunal was entitled to place no weight on the written submissions lodged on 29 December 2017, as context for the applicant’s serious offending that occurred in the first 9 months of 2003, or for the subsequent serious offences committed in 2014 and 2015, some 10 years after the April 2004 invoices were received.

I respectfully agree with that submission. The Tribunal is not under an obligation to consider every contention of fact raised by an applicant; nor is it obliged to make findings in relation to every contention of fact. In Minister for Home Affairs v Buadromo [2018] FCAFC 151, the Full Court of this Court said at [46]:

… a decision-maker is [not] required to make a finding of fact with respect to every claim made or issue raised by an applicant … A finding of fact may not be required if the claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality or, to use an example advanced by the appellant in the course of submissions in this case, even assuming fact or proposition A, I (the decision-maker) do not accept that fact or proposition B follows. These are only examples and it is not possible to be comprehensive.

Cited with approval in Maioha at [41] per Rares and Robertson JJ.

In my view, it was open to the Tribunal to place no weight on the receipt of the bills in considering the requirements of Direction 65. The significance of the bills was superseded by the testimony subsequently given concerning when the drug taking commenced and when the applicant started to commit crimes.

Unpremeditated aspects of offending

24    The applicant next submitted that the Tribunal erred when it failed to take account of the “apparently unpremeditated and accidental or careless aspects” of: (i) the aggravated burglary (only aggravated because a very elderly lady was at home at the time of the burglary); and (ii) the assault with a weapon (the applicant was in the process of being chased from the scene of the crime).

25    With respect, that submission is rejected. The Tribunal correctly understood that it could not question the propriety of the applicant’s convictions, but that it could examine the circumstances of each offence to assess their seriousness. The Tribunal was aware of the facts concerning each offence here, including those facts now described as “unpremeditated and accidental or careless”. In my view, having regard to those facts, it was open to the Tribunal to characterise each offence as serious. That was a matter for it to judge. What is now said not to have been considered is not the primary facts but the applicant’s own characterisation of these facts. That was not a matter raised below.

Likelihood of further offending

26    It was next submitted that the Tribunal erred in determining the risk of reoffending by not taking into account the fact that the applicant had committed no offences whilst in gaol. In that respect, the Tribunal also did not include the time spent in prison in observing that of the applicant’s 21 years in Australia, only the first five were law-abiding. The applicant was also law-abiding whilst in gaol.

27    Having regard to the contents of the applicant’s “National Police Certificate”, which was before the Tribunal, it may reasonably be inferred that the Tribunal was aware that he had not committed any offences whilst in gaol. The Tribunal gave careful attention to each offence. In that respect, it was also aware of an extant charge of riot arising from an incident which had taken place in 2015 at the Metropolitan Remand Centre, which the Minister did not rely upon. Once again, the Tribunal was not obliged expressly to address the fact that the applicant had not offended in prison, nor was it obliged to expressly refer to the time spent in prison. In each case, I infer that the Tribunal did not consider these matters to be material when taken with the other facts and circumstances. In my view, and with respect, it was open to the Tribunal so to find.

Time spent positively contributing to the Australian community

28    The Tribunal took into account that of the 21 years spent in Australia, the applicant was in paid employment for three years. The applicant next submitted, nonetheless, that the Tribunal erred in not taking into account that it was not his fault that he had only worked for three years. He could not work for any greater period of time than this because of his injury.

29    I respectfully reject that submission. First, the Tribunal was entirely aware that the applicant had been injured at work and was on a disability pension. Secondly, Direction 65 required the Tribunal at cl 14.2(1)(a)(ii) to give “more weight” to the “time the non-citizen has spent contributing positively to the Australian community”. At [133], the Tribunal accurately observed that here that time was only three years. This was then weighed against the applicant’s overall time spent in Australia. In my view, the Tribunal did not err in not referring in that paragraph to the reason why the applicant ceased paid employment. It was aware of that fact, but did not need to consider it when addressing an application of cl 14.2(1)(a)(ii).

Impediments to the applicant if removed

30    It was next submitted that in considering the impediments the applicant might encounter in returning to Algeria, the Tribunal did not consider that the applicant apparently suffers from “post-traumatic stress disorder, depression and anxiety”.

31    The Minister submitted that the applicant’s “medical state” was expressly considered in deciding that this factor neither weighed against or for the applicant. He relied on [144] which is reproduced above. On balance, I am satisfied that the express reference in that paragraph to the applicant’s “medical conditions”, together with the reference to the applicant’s “post-traumatic stress disorder, depression and anxiety” at [129], support a finding that the Tribunal did take into account his mental illness.

32    I was otherwise troubled by the statement in [144] that there was no independent evidence that the applicant would face “any specific difficulties in finding work in Algeria”. On the facts, the applicant has been unable to work since 2001. He had a “special” difficulty, namely the injury to his back. I asked the parties for further submissions on this point.

33    The applicant submitted that the fact that he did not “raise the issue of his work injury and his incapacity to work” did not absolve the Tribunal from considering his injury. He was, after all, not legally represented. I generally agree with that submission. The Tribunal is under a duty to consider the material issues which arise from its consideration of the evidence regardless of whether it is the subject of submissions by the parties; AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [18]; Hong v Minister for Immigration and Border Protection [2019] FCAFC 55 at [66], [69].

34    However, it would appear that the Tribunal did raise the issue of employment with the applicant. The answer given by him was that whilst it would not be easy, he agreed that it would be possible to work. The Tribunal addressed this answer when it said at [144] that the applicant did not raise the issue of his work injury and his incapacity to work. Perhaps the Tribunal could have expressed its reasons more clearly and have set out in a more fulsome way the applicant’s evidence. It did not do so. But it was not obliged to record every aspect of its reasoning process; Buadromo at [48]. Nor did the Tribunal fail to make an inquiry and consider the applicant’s prospects of employment in Algeria. Its findings followed from the applicant’s own answers.

Strength, nature and duration of ties to Australia − weight given to the relationship between the applicant and his daughter

35    Another concern I raised with the parties was the observation made at [135], for the purposes of considering the strength, nature and duration of the applicant’s ties with Australia, that the effect of deportation on the daughter was to be given “lesser weight” in relation to the “period after she turns 18”. Earlier, for the purposes of considering the best interests of a minor child, the Tribunal had observed at [109] that this factor was “almost neutral” because the daughter was about to turn 18. That finding was open to the Tribunal to make because Direction 65 limits a consideration of the best interests of a minor child to children younger than 18.

36    My concern with [135] was that, in a different context (namely consideration of the strength, nature and duration of ties to Australia) the Tribunal appeared to be incorrectly importing the age limitation referred to above. In considering the strength, nature and duration of ties to Australia, adult children are not excluded. Nonetheless, the Tribunal gave “lesser weight” to the ties the daughter has with the applicant for the period after she turns 18.

37    The effect of deportation on the applicant’s daughter is a very important issue. The two were found to be very close. Inferentially, the effect of deportation on her well-being should be just as significant, whether or not she just turned 18. I again called for further submissions from the parties.

38    The Minister strongly disputed the foregoing proposition. He also disputed that there had been a wrongful importation of the exclusion of adult children into this factor. He submitted that [135] should be read as a finding made by the Tribunal that the effect of non-revocation on the daughter as an adult would be less than the effect of non-revocation on her as a child. This is because, it was said, as an adult she would possess greater capacity to cope with the effect of non-revocation: she could, for example, independently make arrangements to visit her father and communicate with him as necessary. The Minister submitted that it was open to the Tribunal to make that finding and to draw such a distinction between childhood and adulthood in assessing the impact of a decision not to revoke the cancellation of the visa.

39    On balance, and after much hesitation, I agree that this is how [135] should be read. However, as a factual proposition, I strongly disagree with it. The distinction here between childhood and adulthood was not between, for example, a 10-year-old child and a 40-year-old woman; it was relatively, between someone who was 17 and who was about to turn 18. The Tribunal found at [110] that the impact on the daughter of separation was likely to be significant. In my view, that significance would not lessen upon her turning 18. It might lessen after a very significant period of years, if ever.

40    Whilst this matter has troubled me significantly, I nonetheless accept that the Tribunal’s finding, which I strongly disagree with on the merits, was not an error of law. It was a finding open to it to make.

41    For the foregoing reasons, the applicant’s application for an extension of time is granted but the application for judicial review should be dismissed.

Associate:

Dated:    17 April 2019