FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v YZXB [2019] FCA 1134

ORDERS

THE COURT ORDERS THAT:

1.    The originating application filed on 6 March 2019 is dismissed.

2.    The applicant pay the costs of the first respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1    This is an application for the review of a decision of the Administrative Appeals Tribunal. The review to this Court is under s 476A(1)(b) of the Migration Act 1958 (Cth) of a decision by the Tribunal on review of a “privative clause decision” (see s 474(2)) under s 500(1)(ba). The result is that in order to succeed in reviewing and setting aside the decision of the Tribunal, the applicant must establish jurisdictional error by the Tribunal.

Background

2    The relevant decision-making history is as follows.

3    On 19 January 2016, the first respondent’s Class XB Subclass 202 (Global Special Humanitarian) visa was cancelled under s 501(3A) of the Act on the basis that the first respondent had a “substantial criminal record”, having been convicted and sentenced to a term of imprisonment of 12 months or more as referred to in s 501(7)(c) of the Act.

4    That decision was reviewed by a delegate of the relevant Minister who decided on 31 October 2018 under s 501CA(4) of the Act not to revoke the cancellation of the visa. That was on the basis that the delegate was not satisfied that the first respondent passes the character test as defined in s 501 and the delegate was not satisfied that there was another reason why the original decision should be revoked.

5    The first respondent then sought a merits review of that decision in the Tribunal pursuant to s 500(1)(ba) of the Act. On 25 January 2019, the Tribunal upheld the review, set aside the delegate’s reviewable decision of 31 October 2018 and, in substitution, revoked the decision of 19 January 2016 to cancel the first respondent’s visa.

6    The review before me is based on one ground of narrow compass. The Minister asserts that the Tribunal failed to comply with Direction No. 65, being a direction issued by the Minister under s 499 of the Act, by asking itself the wrong question. It is said that the Tribunal misconstrued Direction 65 in that it understood that the “primary consideration” of the “protection of the Australian Community from criminal and other serious conduct” in paragraphs 11(1)(a) and 11.1 of the Direction was a matter which could weigh in favour of a person in the position of the first respondent whereas, so it is said, properly construed the Direction could weigh in favour of non-revocation of a decision to cancel a visa or be regarded as neutral to that issue, but it could not weigh in favour of revocation.

Additional background

7    The first respondent is a citizen of Iraq and is approximately 25 years old. He arrived in Australia on 18 September 2008, at age 14 years, as the holder of a humanitarian visa of the specific class referred to above at [3].

8    In May 2015, a jury of the New South Wales District Court found the first respondent guilty of one count of aggravated sexual assault. In October 2015, the first respondent was convicted and sentenced on that finding to three years imprisonment with an 18 month non-parole period. That is the conviction and sentence that led to the mandatory cancellation of his visa as referred to.

The decision of the Tribunal

9    The Tribunal identified that the original cancellation decision could be revoked under s 501CA(4) if it, standing in the shoes of the Minister, was satisfied that the first respondent passes the s 501 character test (s 501CA(4)(b)(i)), or there is another reason why the original decision should be revoked (s 501CA(4)(b)(ii)), and that such a decision involves an assessment and evaluation of the factors for and against revoking the cancellation.

10    The Tribunal also identified that its determination had to be carried out in accordance with any written directions under the Act (s 499(2A)). It recognised that in considering a request for revocation of a mandatory s 501(3A) cancellation, the Tribunal had to comply with Direction 65.

11    Direction 65 identifies three “primary considerations” to be taken into account, namely (1) protection of the Australian community from criminal or other serious conduct, (2) the best interests of minor children in Australia, and (3) the expectations of the Australian community. This case turns on the primary consideration of the protection of the Australian community.

12    The Tribunal recognised that the first respondent’s offending involved a sexual crime and is accordingly identified by paragraph 13.1.1(a) of Direction 65 as very serious. The Tribunal stated that it regards the offending as serious.

13    The Tribunal also recognised that the court’s sentence of imprisonment for three years is a reflection of the objective seriousness of the offence (as per paragraph 13.1.1(c) of Direction 65). It stated that in its view the offending was, however, at the lower end of the scale of seriousness for offences of the type in question.

14    With regard to the primary consideration of risk to the Australian community, the Tribunal stated as follows:

50.     Paragraph 13.1.2 of Direction 65 prescribes that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The nature of the harm of this type of sexual offending deliberately perpetrated upon a vulnerable victim if the Applicant were to reoffend in the future is particularly serious.

51.    As to the risk of reoffending, the sentencing judge considered that the Applicant had a moderate to low risk of reoffending based upon a pre-sentence report provided to the Court (referred to above).

52.    Having regard to the guidance in paragraphs 13.1.2(1) and (2) of Direction 65, the Tribunal considers that the protection of the Australian community is of primary importance. However, as discussed above, the Tribunal concludes that at this time, the Applicant is of minimal risk of committing any offence and the relevant risk is, at most, minimal.

15    It is significant that the Tribunal’s finding was that the risk of reoffending was, “at most”, minimal.

16    In relation to the best interests of minor children, the Tribunal recognised that the interests of the first respondent’s 17 year old brother who lives in Australia weigh in favour of revocation of the cancellation, but that this consideration should be given limited weight because the brother has almost reached adulthood and the applicant’s relationship to his brother is not paternal.

17    In relation to the expectations of the Australian community, the Tribunal reasoned that the weight of this consideration against the first respondent is alleviated somewhat having regard to his age at the time of offending and his lack of any other criminal convictions.

18    The first respondent had raised certain aspects of harm that he would face if returned to Iraq including that as a member of the minority Sabian Mandaean faith he would be the target of persecution. He also referred to the murder of his father and his evidence that he was kidnapped on three occasions as a child. The Tribunal recognised the first respondent’s claimed risk of harm in Iraq but concluded that it carries no weight in the first respondent’s favour. That was on the basis that it is appropriate for the determination of such “non-refoulement claims” to be made in response to any protection visa application made by the first respondent in the future.

19    The conclusion that the first respondent’s claim to suffer harm if returned to Iraq carries no weight plays no role in what has to be decided by me. However, I note that in the event that this matter is at any stage remitted to the Tribunal that conclusion should be revisited. That is because the Tribunal may have been in error in not bringing into account the harm which the first respondent claims he will suffer if he has to return to Iraq in its consideration of whether the cancellation of his visa should be revoked. In that regard, I have in mind such cases as Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [56] per Robertson J, BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 at [60]-[63] and [70]-[71] per Bromberg and Mortimer JJ and Omar v Minister for Home Affairs [2019] FCA 279 at [46] per Mortimer J.

20    The Tribunal concluded that the strength, nature and duration of the first respondent’s ties to Australia, and the impact on family members of the cancellation decision, weigh in favour of revocation of that cancellation, although they should be given limited weight. In that regard, the Tribunal identified that the first respondent had arrived in Australia as a teenager and has lived here for the past 10 years, but that he has not undertaken any caring or financial responsibilities since his incarceration in 2015. Whilst a return to Iraq would involve physical separation from his family members, there was no evidence to suggest that he would be unable to maintain contact with them by other means.

21    The Tribunal accepted that the first respondent may face difficulties in re-establishing himself in Iraq, but that there is no evidence that any hardship would be insurmountable.

22    The Tribunal’s ultimate conclusion is stated in the following paragraph, which is the paragraph that gives rise to the Minister’s ground of review:

69.     The primary consideration of the protection of the Australian community ultimately weighs in the Applicant’s favour. The Tribunal considers, as discussed above, that the Applicant is at minimal risk of reoffending or committing other offences. The Tribunal determines this consideration as the most important consideration, taking into account all considerations.

Direction 65

23    Direction 65 was made by the then Minister for Immigration and Border Protection on 22 December 2014. It comprises a Preamble followed by Parts A, B and C. The Preamble contains the objectives of the Direction, general guidance for decision-makers and the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a non-citizen’s visa under s 501 or to revoke a mandatory cancellation under s 501CA.

24    Paragraph 6.1(3) in the Preamble states that where the discretion to consider revocation is enlivened the decision-maker must consider whether to revoke the cancellation “given the specific circumstances of the case”. Paragraph 6.1(4) states that the purpose of the Direction is to guide decision-makers performing functions or exercising powers under s 501 of the Act and identifies that under s 499(2A) such decision-makers must comply with the Direction.

25    Paragraph 6.2(1) of the Preamble states that the principles in the Direction are of critical importance in furthering its objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable. This clearly allows for the possibility of a conclusion that the risk of future harm is acceptable.

26    Subparagraph (3) states that the principles provide a framework within which decision-makers should approach their task of deciding whether, relevantly, to revoke a mandatory cancellation under s 501CA. It states that the factors that “must be considered” in making a revocation decision are identified in Part C of the Direction. That decision-makers must take into account the considerations in Part C is reiterated in paragraph 7(1)(b).

27    Paragraph 6.3 is titled “Principles”. Relevantly, it includes the following:

(2)     The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4)    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5)    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

28    Paragraph 8 of Direction 65, relevantly, includes the following:

(2)     In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3)     Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4)    Primary considerations should generally be given greater weight than the other considerations.

(5)    One or more primary considerations may outweigh other primary considerations.

29    In paragraph 13(2) in Part C, the three “primary considerations” identified in paragraph [11] above are set out. The provisions of Part C that deal with the first primary consideration, namely protection of the Australian community, are the following:

13.1     Protection of the Australian community

(1)    When considering protection of the Australian community, decision­makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

 (2)    Decision-makers should also give consideration to:

   (a)    The nature and seriousness of the non-citizen’s conduct to date; and

(b)    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

13.1.1    The nature and seriousness of the conduct

(1)    In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

(a)     The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

(b)    The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   (c)    The sentence imposed by the courts for a crime or crimes;

(d)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   (e)    The cumulative effect of repeated offending;

(f)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

(g)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

(h)    Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

13.1.2     The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1)    In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)    In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

(a)     The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

(b)    The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

30    It will be noticed that paragraph 13.1(1) addresses the need to consider the protection of the Australian community from harm as a result of criminal activity or other serious conduct. Paragraph 13.1(2) then states that decision-makers should “also” give consideration to two matters, being (a) the nature and seriousness of the conduct to date and (b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. The second of these considerations (i.e. (b)) is essentially the same as that in paragraph 13.1(1).

31    Paragraph 13.1.1 then goes on to identify factors that the decision-maker must assess in considering the nature and seriousness of the criminal offending or other conduct to date (i.e. the consideration in 13.1(2)(a)).

32    Paragraph 13.1.2 identifies the factors to be taken into account with regard to the risk to the Australian community should offences or other serious conduct be committed in the future (i.e. the consideration in 13.1(2)(b)).

The parties’ submissions

33    The Minister submitted that the Tribunal’s reasoning rested upon the proposition that the “primary consideration of the protection of the Australian community ultimately weighs in the applicant’s favour” (quoting from paragraph [69] of the Tribunal’s reasons, which is quoted at [22] above). The Minister submitted that the above proposition involved a legally erroneous approach to the proper construction of that consideration in Direction 65, which could only weigh against the first respondent or, at best, be neutral. It was submitted that the approach taken by the Tribunal involved it either failing to comply with the Direction (properly construed) in contravention of s 499(2A) of the Act, or asking itself the wrong question.

34    The Minister relied on FYBR v Minister for Home Affairs [2019] FCA 500 at [37]-[38] per Perry J, and in particular the statement by her Honour that “some primary and other considerations, by their nature tend to ‘tip the balance’ in favour of or against refusal, while some considerations may tend to ‘tip the balance’ in one direction only, or the other depending upon the particular facts” (emphasis added).

35    Her Honour referred to Nigam v Minister for Immigration and Border Protection [2017] FCAFC 127; 254 FCR 295 at [44]. The Minister picked up that reference, and in particular relied on the statement by Siopis, Griffiths and Charlesworth JJ that the primary considerations of the protection of the Australian community from criminal and other serious conduct and the expectations of the Australian community in Direction 65 will “by their nature” weigh in favour of refusal of a visa, “in most cases”.

36    The Minister also referred to another first instance decision that apparently adopts that observation with respect to the expectations of the Australian community, namely Oluwafemi v Minister for Home Affairs [2018] FCA 1389 at [38] (Thawley J), but cf. also in relation to the expectation of the Australian community consideration DKXY v Minister for Home Affairs [2019] FCA 495 at [31] (Griffiths J).

37    The first respondent drew particular attention to paragraph 8(3) of Direction 65 (quoted in full at [28] above), namely that both primary and other considerations “may weigh in favour of, or against … whether or not to revoke a mandatory cancellation of a visa” as an indication that the Minister’s construction of Direction 65 is incorrect. The first respondent submitted that in the circumstances of a particular case, the primary consideration of protection of the Australian community might weigh in favour of the visa applicant or visa holder such that, as a matter of construction, it is not inevitably the case that such a consideration will always weigh the other way or will be neutral.

38    The first respondent submitted that paragraph 13.1 and the sub-clauses which follow outline a detailed, complex and varied evaluative exercise directed at assessing past conduct and forming a conclusion about the risk posed to the Australian community, and whether that risk is “acceptable” or not. It was submitted that a finding that there is “minimal risk” of any further offending of any type, which is what the Tribunal found in this case, could weigh ultimately in favour of revoking a visa cancellation.

39    The first respondent also submitted that the passages of FYBR and Nigam relied on by the Minister both allow for the possibility of the primary consideration in question weighing either way, depending on the circumstances of the particular case.

Consideration

40    The starting point of the analysis must necessarily be to properly understand the Tribunal’s reasoning. In that regard, the reasons must be read and understood as a whole. Moreover, in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, Brennan CJ, Toohey, McHugh and Gummow JJ (at 271-272) identified a number of propositions of the Full Court of this Court in previous cases favouring an approach that a decision-maker’s reasons are entitled to a “beneficial construction”. These included that a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker and “the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.” The Court then stated the following:

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. [The] … court must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.

41    In the same case, Kirby J (at 291-293) gave an expanded analysis of the importance of not reading the reasons of the decision-maker over critically.

42    In the critical paragraph, being paragraph [69], of its reasons the Tribunal was not in any express way identifying the question that it sought to answer. Nor was it construing, or setting out a conclusion on the construction of, Direction 65. In my view, the Tribunal was expressing a conclusion on the task required of it, namely to balance the various competing considerations, including the primary considerations identified by Direction 65, to reach an evaluative judgement. The Tribunal was doing what Perry J in FYBR at [37] identified as being necessary, namely balancing the various considerations against each other. It was not expressing a normative conclusion with regard to the construction of the primary consideration at issue. This is revealed by the fact that it had earlier in its reasons considered each of the primary and other considerations and that paragraph [69] is preceded by the heading “Conclusion”.

43    What paragraph [69] does is to draw together an ultimate conclusion based on the preceding discussion – which recognises the seriousness of the offence (at paragraphs [43] and [49]) and that the protection of the Australian community is of primary importance (at paragraph [52]). Understood in this way, the reasons as a whole are to be read as saying that the Tribunal’s findings with regard to the minimal risk of reoffending or committing other offences ultimately weigh in the first respondent’s favour in the sense that they are decisive – because of them the relevant primary consideration carries little weight and is outweighed by the considerations in favour of revocation. The latter considerations were identified earlier in the reasons as the best interests of a minor child and the first respondent’s ties to Australia, and possibly also the difficulties that he may face in re-establishing himself in Iraq.

44    Being a primary consideration, protection of the Australian community could be decisive against a visa applicant or visa holder. That would occur, in particular, where the relevant conduct was serious and the risk of reoffending was not insignificant. Given the primacy of that consideration, the fact of it carrying little weight in this case because of the finding that the risk of reoffending was, “at most”, minimal, is very significant. If one was to adopt a balancing analogy, it would be like taking a heavy weight off the side of the scale that was against revocation of the cancellation (i.e. against the visa). The removal, or absence, of that “weight” allows the scales to tip, or “weigh”, in favour of revocation of the cancellation (i.e. in favour of the visa holder).

45    It is only the use by the Tribunal of the word “weighs” in the first sentence of paragraph [69] that causes the difficulty. It is that word that gives rise to the Minister’s submission that the Tribunal placed the primary consideration in question on the wrong side of the scale. However, that technical approach to the Tribunal’s reasons is unjustified. The use of the word “weighs” here is an example of “unhappy phrasing” in the vein of Wu Shan Liang. As I have said, I am satisfied that on a reading of the reasons as a whole, what that sentence really reflects is the conclusion that the lack of weight to be attached to that primary consideration against the first respondent has a decisive influence upon the decision to reinstate the visa.

46    To my mind, the reasoning of the Tribunal is similar to that in Nigam. There, the Tribunal concluded (as recorded at [12]) that the primary consideration of the best interests of the visa applicant’s child did not favour him being granted the visa (i.e. it was neutral) and then stated that “this consideration weighs against” a decision in favour of granting the visa. Logically, following the finding that the consideration was neutral it could not then weigh the other way. The Full Court (at [44]) concluded that the expression was clumsy “but not inexplicable when read in context”. The statement that the consideration weighed against the visa being granted was explained by its neutral weight not being a countervailing consideration to the other considerations that favoured refusal of the visa.

47    Similarly in the present case, the statement that the consideration of protection of the Australian community weighed in favour of revocation of cancellation of the visa is explained by its neutral (or close to neutral) weight not counter-balancing the countervailing considerations.

Conclusion

48    In my view the Minister’s submissions proceed on a false premise, namely that the Tribunal construed Direction 65 as meaning that the primary consideration of protection of the Australian community can or did weigh in favour of the first respondent. I do not consider the Tribunal to have construed Direction 65 in that way. It follows that the application is to be dismissed.

49    In the circumstances, it is not necessary for me to decide whether, at a level of abstraction, the primary consideration of protection of the Australian community is capable of being construed in favour of revocation. As the parties’ submissions reveal, a number of other judges of this Court have already expressed views on that point, albeit mostly with regard to the analogous primary consideration of expectations of the Australian community. In the absence of it being necessary for me to do so in order to decide this case, and because one of the other cases referred to (FYBR) is shortly to be the subject of a hearing on appeal to the Full Court, I do not consider that there is any value in me adding to those views in the context of this case.

50    The Minister’s application should accordingly be dismissed. As in the ordinary course, the costs should follow the event.

Associate:

Dated:    25 July 2019