FEDERAL COURT OF AUSTRALIA

PKBV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2047

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the Administrative Appeals Tribunal dated 9 April 2019 affirming a decision of the Minister’s delegate not to revoke the cancellation of the applicant’s Class WA Subclass 010 Bridging A visa be quashed.

2.    The application for review be remitted to the Administrative Appeals Tribunal for determination in accordance with law.

3.    The first respondent pay the applicant’s costs of the originating application which costs are to be paid directly to the pro bono lawyer, Dr Juliet Lucy, pursuant to r 4.19(3) of the Federal Court Rules 2011 (Cth).

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

REASONS FOR JUDGMENT

JAGOT J:

1    I have decided that the decision of the Administrative Appeals Tribunal dated 9 April 2019 affirming a decision of the Minister’s delegate not to revoke the cancellation of the applicant’s Class WA Subclass 010 Bridging A visa must be set aside for jurisdictional error. My reasons follow.

Extension of time application

2    I deal first with the applicant’s application for an extension of time to make the application. By s 477A(1) of the Migration Act 1958 (Cth), the application was required to be made within 35 days of the Tribunal’s decision, that is by 14 May 2019. The application was accepted for filing on 11 July 2019. The evidence shows, however, that the applicant attempted to file the application within time on 7 May 2019, but the application was not permitted to be filed because it was not accompanied by an affidavit. The applicant was in immigration detention when he attempted to file the application. He had no access to legal assistance and restricted access to a justice of the peace. He had limited understanding of what he was required to do to commence his application, not knowing what an affidavit was or how to complete one. Further attempts were made to file an application on 14, 21 and 24 May 2019. The applicant managed to complete an affidavit and get it witnessed on 14 June 2019 and attempted again to file the application by facsimile thereafter, but was unsuccessful as he was using the wrong facsimile number. As noted, the application was ultimately accepted for filing on 11 July 2019.

3    In these circumstances, I am satisfied that it is necessary in the interests of the administration of justice to make the order extending the time for the filing of the application. The Minister acknowledges that he would not be prejudiced by the extension of time. The applicant’s failure to file the application within time resulted from his lack of understanding of and ability to manage the administrative processes required of him, exacerbated by the fact that he is in immigration detention. It would be an affront to justice if the applicant, having attempted to file the application within time and repeatedly thereafter, was denied the extension of time made necessary by his disadvantaged status as a (then) unrepresented litigant and person in immigration detention.

Background

4    The applicant’s visa was subject to mandatory cancellation under s 501(3A)(a) of the Act. That is, the Minister was satisfied the applicant did not pass the character test and was serving a sentence of imprisonment. Under s 501CA(4) of the Act, the Minister’s delegate was empowered to revoke the original decision under s 501(3A)(a) if, relevantly, there was another reason why the original decision should be revoked. Accordingly, the issue for the Tribunal was whether there was another reason why the original decision should be revoked. In so deciding, the Tribunal, by s 499(2A), was bound to comply with Direction 79 given under s 499(1) of the Act.

Consideration

5    I consider that the Tribunal did not comply with Direction 79 in the following respects:

(1)    The Tribunal did not exercise its discretion informed by para 6.3(5) as a whole, which it was required to do by para 7(1) of Direction 79 (ground 1a of the originating application).

(2)    The Tribunal did not consider the likely effect that separation from the applicant would have on minor children as required by para 13.2(4)(d) of Direction 79 (ground 1b of the originating application).

(3)    The Tribunal did not consider the strength, nature and duration of the applicant’s ties to Australia having regard to the strength, duration and nature of any family or social links with persons whom it was accepted have a permanent right to remain in Australia as required by para 14.2(1) and (1)(b) of Direction 79 (ground 1cii and 1ciii of the originating application).

(4)    The Tribunal did not consider the extent of the impediments the applicant may face if removed from Australia as required by para 14.5(1) of Direction 79 (ground 1d of the originating application).

(5)    The Tribunal did not consider the applicant’s submissions as it was required to do (ground 2 of the originating application).

6    In reaching my decision I have given weight to the following principles:

(1)    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”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [31];

(2)    reasons are to be read fairly and as a whole, recognising that:

Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole.

Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [14];

(3)    administrative decision-makers are not required to make findings of fact with respect to every claim made or issue raised by an applicant, as 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”: Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 362 ALR 48 at [46];

(4)    “…an obligation to give reasons does not require a ‘line-by-line refutation of the evidence of the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal’”. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405 at [65]‑[67] per McHugh J)”: Buadromo at [48]; and

(5)    “[i]t is generally not essential for a tribunal or other primary decision-maker to refer to every piece of evidence or contention advanced by a claimant”: Buadromo at [49];

(6)    if, however, a decision-maker overlooks a substantial, clearly articulated argument which, if accepted, could be dispositive then the decision-maker may have committed a jurisdictional error: Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [30].

7    To understand why I have concluded that the Tribunal’s decision is affected by jurisdictional error, it is necessary to identify some of the material that was before the Tribunal and the structure and content of the Tribunal’s reasons.

8    The applicant was born in Tonga and is 22 years old. His mother emigrated to Australia while the applicant remained in Tonga under the care of his grandparents. When his grandmother died, the applicant was sent to live with his mother in Australia, aged 11, and has lived in Australia since this time. He has a history of offending both as a juvenile and as an adult, as a result of which he failed the character test as provided for in the Act, leading to the mandatory cancellation of his visa. As noted, the Minister’s delegate refused to revoke the cancellation of the applicant’s visa, leading the applicant to apply to the Tribunal for review of the delegate’s decision. Given the statutory provisions, the Tribunal had to decide if there was another reason why the mandatory cancellation decision should be revoked.

9    The material before the Tribunal included the following:

(1)    By an undated letter the applicant said he had close ties to his family and in-laws and stable accommodation with his partner and her family.

(2)    The mother of the applicant’s partner, in another undated letter, said she considered the applicant to be her own son and that he had a very close relationship with her other children who regarded him as a brother. The letter also said the applicant has an ongoing and close relationship with his mother. The letter said that the family (that is, the family of the applicant’s partner) had recently lost a son-in-law and the author was pregnant and could not bear the thought of being separated from another of her children (that is, the applicant whom she regarded as a son).

(3)    The brother of the applicant’s partner, who is 16, wrote a letter saying that he regarded the applicant as his brother and an amazing role model who had helped him make better decisions including to complete his education, as well as giving him support when his older sister’s partner died. He said the thought of not having the applicant at home with them again was too painful for them to bear.

(4)    The applicant said that the cancellation of his visa was going to break his families’ heart and involve “a little bit of a struggle” as he was the one that provides for his families.

(5)    The applicant said that he hoped to leave prison reformed and a better man to be a role model for his siblings who included three minor half-sisters and his minor step-brother.

(6)    The mother of the applicant’s partner, in another undated letter, said she had grown to love the applicant as her own child. He had become her biggest support as the eldest of her children, particularly when her eldest daughter’s partner died. She said that the applicant had a relationship with her son who was a minor and her new baby daughter born in February 2019. She said that not knowing if the applicant would be permitted to remain in Australia was causing her insurmountable amounts of stress and she feared that if he was required to leave the country it would lead to her hospitalisation and her doctor had advised her this was a “very real outcome” if her blood pressure levels did not come down. Her 16 year old son had known the applicant since he was 11 and the applicant was wonderful in dealing with children. Her son had already lost one brother and had only the applicant as his brother now. Further, the applicant has ongoing ties with all his family in Australia and speaks to his mother often. The applicant has had no contact with anyone in Tonga for over a decade and nothing in Tonga.

10    In oral evidence the applicant said he was not close to his mother but was close to his younger half-sister before he was imprisoned. He lived with his girlfriend’s family for about 6 months before being imprisoned. He said that if he had to move his girlfriend would have to move and he did not want to drag her down with him.

11    In its reasons for decision the Tribunal outlined the basic facts at [2] to [6] and recited the applicant’s criminal history at [7]. At [8] it recorded the cancellation of the applicant’s visa. At [9] it recorded that the applicant had made representations seeking the revocation of the cancellation of his visa. The Tribunal dealt with aspects of Direction 79. In so doing at [15] the Tribunal said:

The Primary Considerations in Part C of the Direction reiterate that there is to be a low tolerance for non-citizens who have previously engaged in criminal or other serious conduct and the decision-maker is required to give consideration to the nature and seriousness of the non-citizens conduct to date; and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: see clause 13.1.2(a) and (b).

12    There is no reference to low tolerance for non-citizens who have engaged in crime in paragraphs 13.1.2(a) and (b) of Direction 79. Such a reference does appear in paragraphs 6.3(5) and (6), which states that Australia has a low tolerance for any criminal conduct by people who have been participating in and contributing to the Australian community for only a short period of time or are holding only a limited stay visa. Paragraph 6.3(5) continues saying “[h]owever, 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”.

13    The Tribunal’s reasons do not refer to this qualification. Rather, the reasons refer only to the low tolerance of criminal conduct at [15] and that the expectation of the Australian community requires that the visa remains cancelled at [78]. That expectation, it should be inferred, is a result of the Tribunal applying the community’s low tolerance for criminality without regard to the potentially applicable qualification in the applicant’s case.

14    The Minister submitted that the Tribunal should be found to have implicitly rejected the notion that the applicant had lived in Australia for most of his life or from a very young age. If there were any hint in the Tribunal’s reasons that it had turned its mind to the qualification then I would accept the Minister’s submission. In my view, however, the only inference available from the Tribunal’s reasons is that it gave no consideration to this qualification, which the Tribunal was required to consider either as applicable or as not applicable on the facts as found by the Tribunal. By the terms of para 7(1) of Direction 79, the Tribunal was to take into account the considerations in Part C informed by the principles in para 6.3, which included the qualification in para 6.3(5). The Tribunal did not do so in circumstances where it was a matter for the Tribunal to decide for itself if the qualification was engaged.

15    It is not to the point that the Minister contends that the qualification was not engaged on the facts. It was for the Tribunal to do its duty, to consider the qualification, find the relevant facts for itself, and be informed by the principles as required. The Tribunal did not discharge this duty.

16    Nor is it to the point that the applicant did not expressly invoke the qualification. The Tribunal is an inquisitorial body and was bound to comply with Direction 79. As the facts arguably engaged the qualification in para 6.3(5), the Tribunal had to decide whether the qualification applied or not and, if it applied, give it such weight as the Tribunal considered appropriate in all of the circumstances. Instead, however, it must be inferred that the Tribunal took into account the considerations in Part C of Direction 9, uninformed by the qualification in para 6.3(5). This is jurisdictional error. The error is material because it is possible that the Tribunal’s decision might have been different if it had decided the qualification applied and given it weight.

17    For these reasons, ground 1a of the application should be upheld and the Tribunal’s decision set aside on this basis.

18    The Tribunal then recorded the facts as to why the applicant did not pass the character test due to his history of criminal offences at [22] to [32].

19    The Tribunal thereafter moved to the primary consideration of the protection of the Australian community (para 13.1 of Direction 79) at [33] to [42].

20    The Tribunal then dealt with the best interests of minor children at [43] to [48]. The Tribunal referred to the applicant’s good relationship with his youngest half-sister (referred to as a step-sister by the Tribunal) and the statement of the applicant’s partner’s brother. The Tribunal said at [47] that it accepted that it would be in the best interests of the applicant’s youngest step-sister and his partner’s brother if the visa cancellation was set aside. The Tribunal said there was no written detail in respect of the youngest daughter of the mother of the applicant’s partner. In fact, and as noted above, there was information to the effect that the applicant had been the main support to his partner’s mother and she was extremely stressed at the thought of no longer having his support to the point where she might need hospitalisation. The applicant’s mother had also made the point that the applicant had a relationship directly with her youngest daughter and was now the only brother to her son. The Tribunal’s acceptance that it would be in the best interests of the applicant’s youngest step-sister and his partner’s brother does not confront the material from the mother of his partner about the potential adverse impacts on her (and by extension to her son and youngest daughter), her son and her youngest daughter should the applicant be required to leave Australia. The effect on them of separation from the applicant, a matter which must be considered where relevant in considering the best interests of the child, might include the hospitalisation of their mother and the associated impacts of that on the children. No such potential impacts were considered by the Tribunal.

21    The impact of the failure to revoke the cancellation of the visa on the mother of the applicant’s partner and, as a consequence, on her minor children was a substantial and clearly articulated argument which the Tribunal had to consider. It did not do so. In my view, this amounts to jurisdictional error. The fact that the Tribunal concluded at [77] that the best interests of minor children was a factor in favour of revoking the cancellation does not cure the error. In order to consider the relevant matter the Tribunal had to consider the effect on the minor children of separation including by having regard to the evidence from the mother of the applicant’s partner. Its failure to do so meant its consideration miscarried and that miscarriage cannot be cured by the finding that the best interests of minor children was a factor in favour of revocation of the visa cancellation. The extent to which the matter weighed in the consideration was for the Tribunal but that extent had to be decided by consideration in accordance with the requirements of Direction 79.

22    Ground 1b of the application, accordingly, should be upheld.

23    The Tribunal dealt with other considerations at [52] to [59]. It first dealt with the strength, nature and duration of ties which the applicant might have to Australia under para 14.2. The Tribunal said this:

55.    There is little material available concerning the relationship with the applicant’s biological mother. However there appears to be support from his stepmother and stepbrother with whom the applicant resided prior to his incarceration. The stepbrother claimed that the applicant had been a male role model. The applicant has been in a relationship for two years and the applicant claims that he intends to marry his partner. However there is no confirmation and in his Personal Circumstances Form, the applicant lists such partner as a stepsister. At the hearing the applicant acknowledged that such statement was incorrect. He frankly admitted that he lied when completing the form because he was concerned that, as he was 22 and his partner was 16 years of age, such fact might be detrimental to his application.

56.    The material suggests that the applicant’s biological parents have been separated since he was a very young child and the applicant has no recollection of his father.

24    These reasons do not involve any consideration of the strength, nature and duration of the applicant’s ties to Australia. The statement that the applicant has the support of his step-mother and step-brother does not confront the strength, nature and duration of his ties to these individuals who reside in Australia at all. Noting that the applicant has the support of these individuals is one thing; doing what Direction 79 required and considering the strength, nature and duration of the applicant’s ties to Australia is another. Nor does the Tribunal confront the strength, nature and duration of the applicant’s ties to his partner, despite noting the applicant’s claim that he wishes to marry his partner.

25    It is at this point that something must be said about the structure of the Tribunal’s reasons. Consistent with Applicant S20/2002, it would not ordinarily be inferred that a decision-maker had decided a matter in isolation from another matter merely because the matters appear in different parts of the reasons. In this case, however, the structure and content of the reasons lead to this inference. This is because in a subsequent section headed “Summary of Submissions for the Applicant” the Tribunal summarises what it understands to be the applicant’s case including at [69] that:

…if the applicant were returned to his home country, it would be especially difficult for him. With no close relatives, and having lived effectively all of his young adulthood in Australia, and in a capital city, it would be difficult to adjust to an island community, where he has only remote family, no ties and no employment readily available to him. Further, it would impact adversely upon his prospects of marriage to his partner. Until he was incarcerated, he did not know that he was living in Australia on a bridging visa, or indeed any visa.

26    Yet when dealing with the strength, nature and duration of the applicant’s ties to Australia, the Tribunal makes no mention of the applicant’s ties to his partner and wish to marry her. This suggests that the Tribunal has recited, but not in fact considered, the applicant’s submissions. Nor, again, does the Tribunal confront the closeness of the relationship between the applicant and his partner’s mother and brother which, on the evidence, went far beyond the mere fact that they supported the applicant. The applicant was regarded as a son by the partner’s mother and a brother by the partner’s brother. The Tribunal had to consider these circumstances in order to take into consideration the strength, nature and duration of the applicant’s ties to Australia but did not do so. The fact that the Tribunal accepted at [77] that the strength, nature and duration of the applicant’s ties to Australia meant that revocation of the visa cancellation was preferable does not cure the error. As stated above, while the weight to be given to the relevant considerations was a matter for the Tribunal, the Tribunal was bound to consider the relevant matters in compliance with Direction 79. For the reasons given, I consider the Tribunal did not do so, amounting to jurisdictional error.

27    Accordingly, grounds 1cii and 1ciii of the application should be upheld.

28    My inference that the Tribunal dealt with the other considerations in Part C of Direction 79 without considering the applicant’s submissions is reinforced by other matters. In dealing with para 14.5 of Direction 79, the extent of impediments if the applicant is removed from Australia, the Tribunal said this at [57]:

The applicant has been employed, as already referred to, as a concreter. The applicant’s skills should be useful in Tonga. He was 11 years of age when he left Tonga and accordingly should have some recollection of the customs and language of that country. According to the Personal Circumstances Form, the applicant has five uncles or aunts; three nieces or nephews; 20 cousins and a grandparent who reside in Tonga. Accordingly whilst there will be some emotional break in Australia from his stepmother and stepbrother, there is family for him in Tonga who could provide support if he were to establish himself in that community.

29    These findings do not refer in any way to the applicant’s summary of submissions at [69] when it would be expected from the context that they would do so. Nor does the conclusion that there “will be some emotional break in Australia from his stepmother and stepbrother” confront the reality of the representations that were made, which were to the effect that the applicant was as a son to his partner’s mother, that she was very dependent on him to the extent of possibly requiring hospitalisation if he had to leave given her stress about the situation, that he was as a brother to her son, and that he was now the only son and brother given the death of her son-in-law.

30    It is not just that the Tribunal’s characterisation of the facts involves restraint. It is that the characterisation does not confront the reality of what removal of the applicant from Australia will involve for the applicant, his partner, or his partner’s mother, brother and youngest sister. In Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, Allsop CJ said at [3] that administrative decision-makers discharge their obligation of real consideration of relevant circumstances by “confronting what is being done to people”. To say that there will be “some emotional break in Australia from his stepmother and stepbrother” does not involve a genuine confrontation with the circumstances with which the applicant will be faced. On the evidence he has had no contact with his relatives in Tonga for more than a decade, since he was 11. He has a partner in Australia he wishes to marry and not “bring down” with him. He is considered a son and a brother by persons permanently residing in Australia. His removal from Australia will necessarily involve a devastating and profound rupture of the applicant’s social and emotional life given that he arrived in Australia as an 11 year old child, has come to adulthood in Australia, and has had no contact with his Tongan relatives during his time in Australia. The fact that the applicant did not himself expressly identify the consequences in this way in the material he provided to the Tribunal and his oral submissions is not to the point. The nature and extent of the consequences were obvious and unavoidable from the material before the Tribunal. The applicant was unrepresented. English is not his first language. He could not reasonably be expected to articulate his case beyond the material that was filed, which disclosed the fundamental facts – that he had been in Australia since he was 11, had had no contact with relatives in Tonga since he left Tonga, had a stable relationship in Australia, and was considered as a son and brother to his partner’s family, and that the rest of his immediate family was also in Australia.

31    As noted, some of the devastating consequences for the applicant are raised in [69] of the Tribunal’s reasons in its summary of the applicant’s submissions but, as I have said, having been raised there as part of a recitation of the applicant’s submissions, these matters are not referred to anywhere else in the Tribunal’s reasons and, in particular, not at [57] when the Tribunal was purporting to deal with the extent of the impediments the applicant may face if removed from Australia. Further, it is apparent that in the section of its reasons headed “Consideration of Submissions” the Tribunal does not mention or grapple with any of the applicant’s submissions. Rather, the Tribunal deals with the Minister’s submissions about the applicant’s offending.

32    I do not consider that [77] and [78] of the Tribunal’s reasons involve the taking into account of the applicant’s submissions. Those paragraphs are concerned with weighing the competing considerations in circumstances where, for the reasons already given, the Tribunal’s consideration of the relevant factors itself has miscarried. In particular, I do not accept that the reference to the “personal interests of the applicant” in [78] encompasses the interests of the third parties, specifically, the applicant’s partner, her mother, her brother, and the applicant’s mother and youngest sister.

33    For these reasons, ground 2 of the application should be upheld in its entirety.

34    I do not consider it necessary to make any findings about grounds 1d and 1e as the substance of these contentions has been addressed above other than to say that I do not accept that there was no evidence for the Tribunal’s inference that the applicant still had relatives in Tonga. There was some evidence, albeit scant, that supported such an inference by the Tribunal and I do not accept that the Tribunal erred in this regard.

35    I also would not accept ground 3 of the application, which alleged a failure by the Tribunal to make an obvious inquiry about critical facts. As the Minister submitted, it was for the applicant to make such representations to the Tribunal as he wished to do. On my analysis he made sufficient representations to require the Tribunal to give real consideration to the profound and long-lasting impacts the applicant’s removal from Australia will have on at least the applicant, his partner, his partner’s mother and her youngest child, his partner’s brother and his own mother and youngest sister. The Tribunal’s reference to the applicant experiencing “some emotional break” from his removal, as I have said, discloses the Tribunal’s failure to give the real consideration required to the circumstances of the case. But the Tribunal did not err, in my view, by not making further inquiries. It erred by not giving real consideration to the material that was before it.

36    For these reasons, the Tribunal’s decision should be quashed and the application remitted to the Tribunal for determination in accordance with law.

Associate:

Dated:    13 December 2019