FEDERAL COURT OF AUSTRALIA

HVLC v Minister for Home Affairs [2019] FCA 616

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant do pay the first respondent's costs of the application to be assessed if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The grant of a safe haven enterprise visa to the applicant was refused by a delegate of the Minister on the basis that the applicant did not pass the character test stated in s 501(6) of the Migration Act 1958 (Cth). The Minister's decision was affirmed by the Administrative Appeals Tribunal. The applicant now seeks judicial review of the Tribunal's decision. The application raises three grounds. For the following reasons each of those grounds should not be upheld and the application for review should be dismissed.

Direction No 65

2    In making its decision, the Tribunal was bound to comply with Direction No 65 made by the Minister under s 499 of the Act: s 499(2A) and Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [41]. The Direction applies when consideration is being given to whether a person who does not pass the character test should be refused a visa of any kind. It also applies to a decision as to whether to cancel a visa on character grounds. There was no dispute that the applicant did not pass the character test.

3    The Direction states that in deciding whether to refuse a visa to a person such as the applicant, certain matters are primary considerations. One such matter is the protection of the Australian community from criminal conduct: para 11(1)(a). Further, when considering the protection of the Australian community decision-makers should give consideration, amongst other things, to the nature and seriousness of the applicant's conduct to date and to the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: para 11.1(a) and (b). Provision is then made in para 11.1.2 of the Direction for the matters to be considered in that regard. Four matters are separately enumerated in para 11.1.2. They are each expressed in terms of risk of harm to the Australian community. The last of those matters is expressed in para 11.1.2(4) as follows:

Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.

4    The Direction also states that other considerations must be taken into account where relevant: para 12. Although para 12 refers to considerations to be taken into account in deciding whether to cancel a visa, in the context of the Direction as a whole they also apply where the decision to be made is whether to exercise the discretion conferred by the Act to refuse a visa. The considerations include, but are not limited to (a) international non-refoulement obligations; (b) impact on family members; (c) impact on victims; and (d) impact on Australian business interests.

5    As to the impact on victims, para 12.3(1) describes in the following terms the impact to be considered:

Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for a visa refusal.

Ground 1: Alleged failure to consider strong or compassionate reasons for short-stay visa

6    It was contended for the applicant that the reference to a short-stay visa in para 11.1.2(4) included a safe haven enterprise visa being the visa sought by the applicant. So (it was submitted) the Tribunal was required to consider whether there were strong and compassionate reasons for granting the safe haven enterprise visa and it did not do so.

7    There are a number of reasons why that contention should not be upheld.

8    First, although the term 'short stay visa' is not defined for the purposes of the Direction or the Act, as a matter of ordinary language the term would not include a safe haven enterprise visa by reason of its duration. The Act provides for three classes of protection visa; a permanent protection visa, a temporary protection visa and a safe haven enterprise visa (which is a class of temporary visa): s 35A. The duration of a safe haven enterprise visa is five years: see subclass 790 of Schedule 2 to the Migration Regulations 1994 (Cth). It does not allow for a short stay.

9    Second, there is no form of short stay protection visa. The Act does provide for a temporary safe haven visa: s 37A. Such visas are subject to the terms of subdivision AJ of Part 2 of the Act. It was not claimed that such a visa was a short stay visa or that there was some other form of visa that should have been considered by the Tribunal. It would be odd for the Direction to purport to require consideration as to whether a different visa should be granted when considering whether to grant the visa the subject of the application.

10    Third, as I have noted, the Direction applies generally wherever consideration is being given to refusing or cancelling a visa because of a failure to meet the required state of satisfaction that the person passes the character test. In that context, the form of words used in para 11.1.2 are explicable on the basis that they require consideration to be given to the type of visa applied for and in the particular case where that visa is a short term visa then to consider whether there are strong or compassionate grounds for granting such a visa. As the Minister submitted, a subclass 676 tourist visa may be an example of such an instance. If such a visa was sought for a short term to visit an elderly parent who is unwell then for that type of visa the Direction requires consideration as to whether there are strong or compassionate reasons for granting the visa. It is instances of that kind that explain the existence of the provision.

11    Fourth, even if it be accepted that a safe haven enterprise visa was a short term visa (contrary to the above), no submission was advanced to the Tribunal by lawyers acting on behalf of the applicant that there were strong or compassionate reasons for granting the visa. Rather, the matters advanced went to the other considerations in the Direction without any attempt to identify some additional aspect that meant that there were strong or compassionate reasons. This is not an instance where the nature of the matters before the Tribunal made apparent that there was a separate issue raised that there were strong and compassionate reasons for granting the visa which was of a character that it had to be considered by the Tribunal in order to properly discharge its functions. For a review of the relevant authorities as to when there may be a review for a failure to consider a matter that was apparent on the materials before the decision-maker see the recent decision of Allsop CJ in Navoto v Minister for Home Affairs [2019] FCA 295.

Ground 2: The Tribunal's approach to the impact of applicant's offending on the victim

12    The Tribunal's reasons followed the scheme of the Direction. When it came to 'other considerations' the reasons dealt with the four matters listed in para 12 in order. In that context, it may be inferred that when the Tribunal dealt with matters under the heading 'Impact on victims' it was intending to address the matters in para 12.3(1) as stated above. It did so in the following terms (at paras 92 and 93):

Counsel for the Applicant appropriately submits that the offence committed by [the applicant] 'must have an ongoing impact on the victim and his family.' I also note in this regard the sentencing remarks at [the applicant's] criminal trial in which Her Honour states:

…it is likely that the boy you sexually abused will suffer from the effects of [this] crime for some time into the future…

I find that this consideration weighs in favour of refusing [the applicant's] visa application.

13    The Tribunal was in error in treating para 12.3(1) as being concerned with the effects of the crime on the victim and his family. Rather, para 12.3(1) is concerned with the additional impact of 'a decision to grant a visa'. It requires a particular focus upon the consequences of the exercise of a discretion to grant a visa with the result that the applicant will remain in Australia. This was the conclusion reached by North J in Williams v Minister for Immigration and Citizenship [2013] FCA 702 at [58] (in considering an earlier version of the Direction in which the relevant para was expressed in substantially the same terms). There are many ways in which such an outcome may have an impact upon the victim and his family. Importantly, para 12.3(1) provides that such matters are to be taken into account 'where that information is available'. It was common ground that no such information was available to the Tribunal in this case. It follows that there was no error in failing to consider the impact of a decision to grant the visa on the victim and his family.

14    Nor could it be said to have been irrelevant to have considered the way the criminal conduct of the applicant affected the victim and his family. It was an aspect of evaluating the seriousness of the offending conduct and also a consideration that could be viewed as independently relevant and therefore a matter that must be taken into account under para 12(1).

15    However, jurisdictional error was alleged to arise by reason of the Tribunal's approach to the effect on the victim and his family because of the way in which the conclusion about the impact on the victim and his family was brought to account by the Tribunal in reaching its conclusion. The Tribunal found that Australia's international non-refoulement obligations weighed strongly in the applicants favour. However, it then stated (at para 98):

But this does not outweigh the two primary considerations relevant in this matter, coupled with the impact on victims, which are strongly against exercising the discretion to grant [the applicant] a visa.

16    The two primary considerations were a finding that the offence committed by the applicant was objectively very serious (para 56) and a finding that protection of the Australian community weighed strongly in favour of refusing to grant the applicant a visa (para 67). It was submitted that the effect was that the Tribunal considered the effect on the victim and his family in concluding that the offending was serious and then counted the same matter as a further and independent relevant consideration when reaching its conclusion. The submission was to the effect that there was a form of double weighting given to the effect of the conduct on the victim and his family.

17    I do not accept that the foundation for the 'double weighting' contention has been made out. In the course of its consideration as to whether the conduct was serious the Tribunal did refer to the impact on the victim and the victim's family but only for the purpose of considering whether the applicant had demonstrated remorse (para 53). Therefore, I do not accept that the Tribunal engaged in a form of double counting of the effect of the offending on the victim and his family. Rather, the Tribunal approached the matter on the basis that it was when the matters in para 12.3 were to be considered that the effect of the offending on the victim and his family was to be evaluated. For reasons I have stated that was a misunderstanding of the proper approach. However, it was not an approach that gave rise to jurisdictional error. It resulted in no more or less than the Tribunal considering a relevant matter as it was obliged to do.

Ground 3: The legal consequences of affirming the decision not to grant the visa

18    Before the Tribunal, the lawyer for the Minister maintained that there were practical impediments to returning the applicant to Afghanistan (being his country of citizenship). There was no evidence as to the nature or likely duration of those impediments. However, it was put as a form of 'concession' that it was then not reasonably practicable to return the applicant to Afghanistan on the basis that it would be an involuntary return. It was said that was the position that would prevail for the reasonably foreseeable future. The submission was advanced as part of a contention that there was a legal possibility that the applicant may be returned to Afghanistan, but that at present the immediate legal consequence of a decision to affirm the refusal of the grant of the visa on character grounds was not that the applicant would be returned to Afghanistan.

19    The lawyer for the applicant maintained that the effect of a decision not to grant a visa would be that the applicant would be returned to Afghanistan. However, the lawyer also accepted at the time of the hearing that there appeared to be 'no current practicable basis for the government to consider that it is reasonably practicable to remove [the applicant] to Afghanistan'.

20    The Tribunal found that by reason of s 197C and s 198 of the Act, a person in the position of the applicant who has been refused a protection visa must be removed from Australia 'as soon as reasonably practicable' irrespective of whether Australia has non-refoulement obligations in respect of that person. In the context of the position adopted by the lawyers before the Tribunal, it was reasoned by the Tribunal (at para 88) that the consequence of the applicant's visa application being unsuccessful was liability for removal as soon as practicable and, in the meantime, detention. Then the Tribunal said: 'Indefinite detention raises the prospect of further adverse impacts on [the applicant's] mental health'.

21    In BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456, Bromberg and Mortimer JJ held that a decision-maker determining whether to refuse a protection visa on character grounds must take into account the legal consequences of such a refusal which - in a given case - include a person being held in indefinite detention. See also, Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68; (2018) 260 FCR 523.

22    The Court has found jurisdictional error where there has been a failure to consider those legal consequences: see for example the decision of Moshinsky J in AQM18 v Minister for Immigration and Border Protection [2018] FCA 944 at [89].

23    In DMH16 v Minister for Immigration and Border Protection [2017] FCA 448; (2017) 253 FCR 576, North ACJ held that by the operation of s 197C of the Act if the protection visa was refused in that case then the consequence was not indefinite detention but rather that the applicant for the visa would be removed to another country in contravention of Australia's non-refoulement obligations: at [26]-[30]. In other words, indefinite detention was not a possible outcome.

24    It is to be noted that the Minister also has non-compellable powers under provisions such as s 195A and s 197AB that may be exercised in respect of persons in detention that may have the consequence that the detention is not indefinite.

25    The submission advanced in support of ground 3 was that the statements by counsel for the Minister to the effect that it was, at the time of the hearing, not reasonably practicable was 'a cynical attempt to get around the authority in DMH16'. It was said to be an attempt to persuade the Tribunal to approach the application on the basis that refusal of the application for a protection visa would not produce the consequence that the applicant would be removed to Afghanistan in breach of non-refoulement obligations. Rather, there would be detention until it became practicable to return the applicant to Afghanistan.

26    However, before the Tribunal the impracticality of removal (at least for a time) was accepted. More importantly, the Tribunal was plainly aware of the consequence that there would be removal once practicable and such removal would occur irrespective of the non-refoulement obligation that the Tribunal found was owed to the applicant (see, in particular, para 86). Therefore, it has not been shown that the Tribunal misdirected itself as to the consequences that would flow for the applicant if the application for a protection visa was refused.

Conclusion and costs

27    For the above reasons the grounds of the application have not been made out. It was accepted that costs should follow the event. The application for judicial review should be dismissed with costs.

Associate:

Dated:    3 May 2019