FEDERAL COURT OF AUSTRALIA

GKQK v Minister for Home Affairs [2019] FCA 1223

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

(Revised from transcript)

THAWLEY J:

INTRODUCTION

1    The applicant is a citizen of the People’s Republic of China. He arrived in Australia in 1997 on a UC-456 Business (Temporary – short stay) visa. The applicant was subsequently granted a Class CD Subclass 851 Resolution of Status visa (resolution visa). This visa was mandatorily cancelled on 24 November 2015 under s 501(3A) of the Migration Act 1958 (Cth).

2    Section 501(3A) of the Act provides:

The Minister must cancel a visa that has been granted to a person if:

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

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

   (ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

3    A person does not pass the character test in a way contemplated by s 501(3A) if the person has a “substantial criminal record” as defined by s 501(7): s 501(6)(a). Under s 501(7)(c), a person has a “substantial criminal record” if the person had been sentenced to a term of imprisonment of 12 months or more.

4    The applicant had been sentenced to an aggregate custodial period of six years and four months’ imprisonment on 24 April 2013 for the following offences: supply prohibited drug more than or equal to commercial quantity (x1); possession of precursor intended for use in manufacture/production of prohibited drug (x3); possession of drug manufacture apparatus to make prohibited drug (x1); manufacture prohibited drug (x1); possession of an unauthorised pistol (x1); and knowingly deal with proceeds of crime.

5    It follows that s 501(3A)(a)(i) applied.

6    The applicant was also serving a sentence of imprisonment, on a full-time basis, for offences against a law of the Commonwealth. It follows that s 501(3A)(b) applied.

7    On 22 November 2016, a delegate of the (then) Minister for Home Affairs refused an application made by the applicant for revocation of the cancellation decision which had been made on 25 November 2015. The applicant applied to this Court for judicial review of this non-revocation decision. That delegate’s decision was set aside by consent on 30 April 2018 – see: AUZ18 v Minister for Immigration and Border Protection [2018] FCA 68 (Farrell J).

8    On 18 January 2017, before the delegate’s non-revocation decision of 22 November 2016 had been set aside, the applicant lodged an application for a Protection (Class XA) Subclass 866 visa. That application was refused by a delegate of the Minister on 15 June 2017. The delegate’s decision was affirmed by the Administrative Appeals Tribunal on 20 October 2017 and the application for subsequent judicial review of that decision was unsuccessful.

9    On 7 January 2019, a delegate again decided not to revoke the cancellation of the resolution visa, the previous decision to that effect made on 22 November 2016 having been set aside. On 13 January 2019, the applicant sought review in the Tribunal of the non-revocation decision of 7 January 2019. The Tribunal had jurisdiction under s 500(1)(ba) of the Act. The Tribunal conducted a hearing on 15 March 2019 at which the applicant was unrepresented. On 1 April 2019, the Tribunal affirmed the delegate’s decision not to revoke the cancellation of the resolution visa.

10    On 29 April 2019, the applicant filed the application for judicial review of the Tribunal’s decision made on 1 April 2019 which is presently before this Court. This Court has original jurisdiction by reason of s 476A(1)(b) of the Act.

THE TRIBUNAL

11    The issue before the Tribunal was whether the cancellation decision should be revoked under s 501CA(4). That provision is in the following terms:

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.

12    The “invitation” referred to in s 501CA(4)(a) is the invitation to make representations to the Minister about revocation of the cancellation decision that the Minister must make as soon as practicable after making the cancellation decision – see: s 501CA(3)(b). There was no dispute that the applicant was invited to make representations, and that he did so. Accordingly, s 501CA(4)(a) was satisfied.

13    The applicant did not concede before the Tribunal that he did not pass the character test, but he also did not apparently resist the proposition. The Tribunal concluded that the applicant did not pass the character test: T[13]. That conclusion was clearly correct for the reasons explained earlier. Accordingly, s 501CA(4)(b)(i) did not provide a basis for revoking the cancellation decision.

14    That left only one issue for the Tribunal, namely whether there was “another reason why the [cancellation] decision should be revoked”: s 501CA(4)(b)(ii).

15    The Tribunal was bound, in accordance with s 499(2A), to comply with a direction made under s 499(1). Section 499(1) provides:

The Minister may give written directions to a person or body having functions or powers under this Act (other than the panel established under section 199A) if the directions are about:

(a)    the performance of those functions; or

(b)    the exercise of those powers.

16    The Tribunal noted that Direction No 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79) applied. Direction 79 provided that a decision-maker, informed by the principles set out in [6.3] of Direction 79, must take into account the considerations in Part C to determine whether a mandatory cancellation will be revoked: [7(1)(b)] of Direction 79.

17    Part C contains “primary considerations” and “other considerations”. The Tribunal considered in detail each of the three “primary considerations”, which it labelled as “Primary Considerations A, B and C”:

(1)    Primary Consideration A: the protection of the Australian community from criminal or other serious conduct: T[21]-[66]. This included analysis of:

(a)    the applicant’s criminal history: T[22]-[24];

(b)    the nature and seriousness of the applicant’s conduct to date: T[25]-[47];

(c)    the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct: T[49]-[54]; and

(d)    the likelihood of the applicant engaging in further criminal or other serious conduct: T[55]-[65].

(2)    Primary Consideration B: the best interests of minor children in Australia: T[67]-[68]; and

(3)    Primary Consideration C: the expectations of the Australian community: T[69]-[85].

18    In relation to the protection of the Australian community from criminal or other serious conduct the Tribunal stated at T[64]:

The state of the evidence before the Tribunal is suggestive of the Applicant not having addressed the issues that have caused him to commit his very serious offences to date. Were he to be released back into the community at this juncture, I have a firmly held apprehension that there would be a convincing likelihood of the Applicant re-offending and, would most likely, cause serious and potentially catastrophic harm to other members of the Australian community.

19    The Tribunal considered in detail each of the five “other considerations”:

(1)    Australia’s non-refoulement obligations: T[88]-[89];

(1)    the strength, nature and duration of the applicant’s ties to Australia: T[90]-[91];

(2)    the impact on Australian business interests: T[92];

(3)    the impact of the applicant’s continued presence in Australia on victims of the crimes: T[93]-[94]; and

(4)    the extent of impediments to the applicant’s return to China: T[95]-[96].

20    At T[98] and [99], the Tribunal concluded as follows:

98.    Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.

99.    In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancelation decision, I have had regard to the considerations referred to in the Direction. I find as follows:

•    Primary Considerations A and C weigh heavily in favour of non-revocation and outweigh all other Primary and Other Considerations (combined) that may weigh in favour of revocation.

•    Primary Consideration B is of neutral weight;

•    I have outlined the weight attributable to the Other Considerations. I do not consider that any of them even when combined with each other, outweigh the significant combined weight I have attributed to Primary Considerations A and C.

•    A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

The Application to this Court

21    The applicant filed an affidavit on 19 June 2019 which annexed an amended application for judicial review. The grounds of the amended application were (errors in original, lengthy particulars omitted):

1.    Conspiracy to illegally exercise the Ministerial power of section 501 of the Migration Act 1958 by way of using of forgery of information, and then conspiracy to engage in organized judicial fraud, but no remorse about its ----

2.    Failure to comply with section 43 of the Administrative Appeals Tribunal Act 1975 (AAT Act) when made relevant decision.

Ground 1

22    It is necessary at the outset to observe that the question for this Court is whether the applicant has established jurisdictional error on the part of the Tribunal.

23    Ground 1 was supported by three pages of particulars. The particulars referred to a range of individuals involved in the underlying events, the applicant’s prosecution and the process leading to the cancellation of his visa, and subsequent events. Unless the first part of Ground 1 is read as asserting that the Tribunal engaged in a conspiracy to exercise power under s 501 illegally, Ground 1 does not assert any jurisdictional error on the part of the Tribunal. It is apparent from the particulars and the applicant’s oral submissions (to be discussed next) that Ground 1 is not to be read in this way. In any event, there was no evidence establishing, directly or indirectly, a conspiracy to exercise the ministerial power provided by s 501 illegally.

24    So far as concerns the central allegations in Ground 1 of the conspiracy illegally to exercise the power under s 501 and then engage in “organized judicial fraud”, the applicant’s particulars described a three stage process to which the applicant also referred in oral submissions.

25    The first stage was an “artificial modification of migration information” of his family’s information in the database of the Department of Immigration and Border Protection.

26    The applicant described the second stage of the conspiracy as the exercise of Ministerial power under s 501 to cancel his visa. This stage was said to commence on 12 October 2015 and end on 24 November 2015 when his visa was cancelled. The “mastermind” of this stage was identified and the participants were said to include members of the NSW Police Force and Parole Officers (now Community Corrections Officers).

27    The third stage was described as “continuation of manufacturing case and conspiracy to engage in judicial fraud”. The “mastermind” remained the same. The parties alleged to have been involved were extensively set out and included police officers, various Local and District Courts, various solicitors and barristers, SERCO, detention officers and an identified individual dressed as a psychiatrist. The conduct was said to include conspiracies to manufacture a case against the applicant’s wife, to forge a legal document and “to engage in judicial fraud, intending to mislead the Federal Court”.

28    Litigants should not be deterred from making properly founded allegations of impropriety – see, for example: Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28 at [106] to [107] (Logan and Flick JJ, Graham J agreeing); Giddings v Australian Information Commissioner [2017] FCAFC 225 at [52] (Collier, Flick and Charlesworth JJ). However, any allegation of impropriety, whether it is made of judicial officers or others, must be responsibly advanced and founded in evidence.

29    The applicant relied on three affidavits to which various documents and submissions were attached. Insofar as these contained submissions, I read them and took them into account. A number of the documents postdated the Tribunal hearing. Ordinarily evidence which postdates a Tribunal hearing and which is adduced for the purpose of inviting the court to disagree with the factual findings of the Tribunal is inadmissible – cf: FJP17 v Minister for Home Affairs [2019] FCA 256 at [38] (Banks-Smith J). The evidence which postdated the Tribunal hearing was not shown to be relevant or admissible in these (judicial review) proceedings – cf: MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912 at [10]-[11] (Gordon J).

30    A number of the documents predated the Tribunal hearing. The relevance of these was not made clear. It was not contended that the documents which predated the Tribunal hearing had been before the Tribunal. If they were, they would ordinarily have been in the application book before this Court. The documents were also not shown to be relevant to any issue which arises in judicial review proceedings generally or these proceedings in particular. Accordingly, notwithstanding that I admitted the documents subject to their relevance being shown, that relevance has not been established.

31    In his oral submissions, the applicant made clear that his primary contention was that there was a difficulty with his criminal conviction, which he described as not being “final”. I inferred from his oral and written submissions that, in substance, he says that his conviction was somehow wrongfully obtained. I inferred that the evidence which both predated and postdated the Tribunal hearing was directed to challenging the reliability of the applicant’s conviction.

32    The decision the subject of the Tribunal’s review was founded on the applicant’s criminal conviction. In those circumstances, the applicant could not challenge the fact of the conviction or the essential facts on which it was based in the Tribunal, even if the circumstances of the conviction might be reviewed for a purpose other than impugning the conviction itself: Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49 at [50] (Davies J); Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673 at [42] (Branson J); HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78] (Bromberg J)

33    Ground 1 of the application cannot succeed.

Ground 2

34    As mentioned, Ground 2 contended that there had been a failure to comply with s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Ground 2 was accompanied by five paragraphs of particulars. These included an allegation that the Tribunal should have had an “essentially independent position”, should have “heavily question[ed] the credibility of the opposite party’s materials”, that the Tribunal “had a rich imagination that it should not have” and that it “lost its position of independence”.

35    It was evident from the applicant’s oral submissions that an asserted lack of independence was the central intended thrust of Ground 2.

36    The particulars also suggested that the Tribunal had overlooked possible illegal conduct engaged in by the delegate of the Minister. No oral submissions were directed to this issue. It was not established by the evidence. The applicant raised a further issue concerning his mental health history and its contribution to his conviction and other matters concerning the underlying facts. So far as concerns the applicant’s mental health it is relevant to note that he was found fit to stand trial and that that occurred after professional assessment: T[63].

37    The applicant did not specify exactly how he contended the Tribunal failed to comply with s 43 of the AAT Act. I understood from his oral submissions that the central complaint was a contention that the Tribunal was not independent, which I took to mean that its decision was affected by actual or apprehended bias or that the applicant was denied a fair hearing.

38    The applicant took issue with the way the Tribunal assessed the evidence before it and the way it addressed “several minor issues” including “the matter of [the applicant’s] wife and family, the relationship with ‘Big Circle’ Gang, as well as [the applicant’s] working history”.

39    It was the Tribunal’s function to assess and weigh the material before it and to make relevant findings of fact. The weight to give to competing material was a matter for the Tribunal.

40    There may be situations in which the manner of the Tribunal’s fact finding or weighing of the evidence (or its failure to engage in those tasks) demonstrates jurisdictional error, but that was not shown to be the case here. The Tribunal’s reasons demonstrate that it carefully considered and weighed the material before it and otherwise exercised the function entrusted to it in a manner contemplated and authorised by the statute.

41    The applicant, who bears the onus, did not demonstrate by reference to the reasons for decision, or the transcript of the proceedings, or any other material, that the Tribunal approached the hearing and its decision otherwise than independently and giving the applicant a proper opportunity to be heard.

42    Ground 2 is not made out.

APPLICATION FOR TRANSFER

43    In an email to my Associate on 13 May 2019, the applicant applied for an order that he attend the hearing in person and be transferred to the Villawood Immigration Detention Facility in NSW from his then current location in immigration detention in WA a reasonable time before the hearing date. On 15 May 2019, I ordered the applicant to file and serve any further submissions or evidence in respect of the location of the final hearing by 22 May 2019. The applicant filed an affidavit containing submissions on 22 May 2019.

44    I considered those submissions and concluded that the applicant should appear at the hearing via video link to his place of detention in WA. I indicated at that time that reasons would be given in the final judgment.

45    The ability of a litigant to be present in court to participate in proceedings (or to witness them in the event they are represented and not required to participate) is a central aspect of the requirements of open justice – cf: Minister for Immigration and Citizenship v MZYLE [2011] FCA 1210 at [20] per North J. It is at the heart of the requirement to afford procedural fairness that litigants be provided a proper opportunity to present their case and be heard.

46    Although no evidence addressed the issue, I was satisfied that appropriate facilities would be available such that the requirements of s 47C of the Federal Court of Australia Act 1976 (Cth) would be satisfied. At the time of making my decision I was satisfied that the availability of video link was likely to enable the applicant to participate effectively in the hearing. If for some reason the video link proved not to be effective at the hearing, then further arrangements could be made at that time. The video link did in fact provide effective participation to the applicant.

47    I also took into account the significant cost which would be involved in transferring the applicant to Villawood. I considered that, if the applicant were successful in the proceedings, the Minister would give effect to any order for his discharge from immigration detention notwithstanding that the applicant was not physically before the Court.

48    I took into account the nature of the proceedings, being judicial review proceedings. The applicant’s evidence had been filed at the time of my decision on 15 May 2019 (an affidavit filed on 24 April 2019) and there would be no difficulty in this being read at the hearing. There had been no application to adduce fresh evidence.

49    In all the circumstances, I considered that the interests of justice favoured declining to make an order requiring the Minister to transfer the applicant to Villawood or securing his physical presence at the hearing in Sydney. The applicant would, I considered, be able properly and sufficiently to witness, and participate, at the hearing by video link.

Conclusion

50    The application must be dismissed with costs.

Associate:

Dated:    9 August 2019