FEDERAL COURT OF AUSTRALIA

Matthews v Minister for Home Affairs [2019] FCA 2184

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    The applicant, a citizen of New Zealand, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the Minister for Home Affairs (Minister) under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the mandatory cancellation of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa (visa).

2    The applicant challenges the Tribunal’s decision on the basis that the Tribunal erred by failing to have proper regard to the strength of the applicant’s ties to Australia in considering whether or not to revoke the cancellation of the applicant’s visa. In particular, the applicant alleges that the Tribunal did not have adequate regard to the evidence from the applicant’s family about the father-like role that the applicant held in their family.

3    In summary, I accept that the Tribunal apparently overlooked letters provided by two of the applicant’s younger brothers, Cody and Tarran. However, in circumstances where the Tribunal considered and accepted separate evidence from the applicant’s mother, and the applicant’s brother, Colt, regarding the role of the applicant to their family, my view is that the Tribunal’s apparent failure to have regard to the letters from Cody and Tarran did not amount to a jurisdictional error. The applicant’s application to this Court for judicial review of the Tribunal’s decision is accordingly dismissed.

Background

4    The applicant moved to Australia permanently in 1989, when he was 6 years old. Since 1998, when he was 15 years old, the applicant has been convicted of a significant number of criminal offences, including:

(a)    in April 2005, receiving a sentence of 12 months’ imprisonment for armed robbery;

(b)    in October 2006, receiving an aggregate sentence of 15 months’ imprisonment for burglary and theft; and

(c)    in March 2013, receiving an aggregate sentence of 6 years and 9 months’ imprisonment for armed robbery, recklessly causing serious injury, causing criminal damage, theft and unlawful assault: DPP v Matthews & Schumann [2013] VCC 265.

5    On 21 July 2006, following the applicant’s conviction in April 2005, a delegate of the Minister for Immigration and Multicultural Affairs considered cancelling the applicant’s visa under s 501(2) of the Act. The delegate decided that, although the applicant did not pass the character test, he would not exercise the discretion to cancel the applicant’s visa. The delegate’s decision record relevantly stated that the applicant “is to be warned that a fresh assessment will be made with a view to cancelling his visa if he is convicted of any further offences”.

6    On 19 January 2016, following the applicant’s conviction in March 2013, a delegate of the Minister for Immigration and Border Protection decided to cancel the applicant’s visa under s 501(3A) of the Act.

7    The applicant was notified of the delegate’s decision, and was invited to make representations about the revocation of the decision. The applicant made representations in response to that invitation. These representations included letters from the applicant’s mother, Marlene, and his three brothers, Cody, Colt and Tarran.

8    On 2 March 2018, a delegate of the Minister decided under s 501CA(4) of the Act not to revoke the cancellation of the applicant’s visa.

Tribunal’s Decision

9    The applicant applied to the Tribunal for a merits review of the delegate’s decision. The applicant attended a hearing before the Tribunal on 12 June 2018, at which he was represented by a lawyer. The applicant gave evidence and was cross-examined. His mother and one of his a younger brothers, Colt, also gave evidence.

10    On 25 June 2018, the Tribunal affirmed the delegate’s decision not to revoke the cancellation of the applicant’s visa: Matthews and Minister for Home Affairs (Migration) [2018] AATA 1849 (AAT Reasons).

11    The Tribunal addressed the considerations identified in Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (Direction No. 65).

12    The Tribunal found that the protection of the Australian community weighed against revocation of the cancellation of the applicant’s visa: AAT Reasons at [40]-[63]. In particular, the Tribunal referred to the following matters:

(a)    the applicant’s offending was serious and violent: ibid at [41]-[45];

(b)    under Direction No. 65, violent crimes are to be viewed very seriously: ibid at [46];

(c)    the applicant had a lengthy criminal history, and had failed to heed warnings given by sentencing judges and by the Department: ibid at [47]-[54];

(d)    despite efforts at rehabilitation, there remained a risk of the applicant reoffending: ibid at [60]-[62]; and

(e)    given the violent nature of his past crimes, the risk of the applicant reoffending was unacceptable: ibid at [62].

13    The Tribunal further held that:

(a)    consideration of the best interests of minor children was not relevant to the applicant: ibid at [64]-[65];

(b)    the expectations of the Australian community weighed heavily against revocation of the cancellation of the applicant’s visa: ibid at [66]-[68];

(c)    the consideration of Australia’s international non-refoulement obligations was not relevant in this matter: ibid at [69];

(d)    the strength, nature and duration of the applicant’s ties to Australia weighed in favour of revocation of the cancellation of the applicant’s visa: ibid at [70]-[71];

(e)    the consideration of the impact on Australian business interests was not relevant in this matter: ibid at [72];

(f)    due to a dearth of information, the impact on victims weighed neither for nor against revocation of the cancellation of the applicant’s visa: ibid at [73]; and

(g)    in relation to the extent of impediments if removed to New Zealand, the applicant would not face any significant language or cultural barriers and, notwithstanding his criminal offending, the applicant had acquired valuable practical skills that would open up opportunities for employment in New Zealand.

14    The Tribunal concluded that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweighed the considerations that weighed either neutrally or in favour of revocation of the cancellation of the applicant’s visa. The Tribunal accordingly decided not to revoke the cancellation of the applicant’s visa, and affirmed the decision under review: ibid at [76]-[77]. The Tribunal expressed its conclusion at [76] as follows:

The Tribunal concludes that the nature and seriousness of [the applicant’s] offending, and the fact that there is some risk of reoffending, weigh against revoking the mandatory cancellation of his visa. These considerations outweigh the considerations in this matter that might weigh in his favour or weigh neutrally. The Tribunal is not bound only to consider the stipulations framed in [Direction No. 65] and also takes into account, as set out above, the fact that [the applicant] knew his visa had been in danger of cancellation before and also knew that on that occasion the discretion had been exercised in his favour with the injunction that he cease his record of offending. That he did not heed that warning is to be lamented, and has led to an outcome that no doubt will have a significant effect on the Applicant and his family. But the conclusion of the Tribunal is that refusal to revoke mandatory cancellation of the Applicant’s visa is the correct decision in law and the preferable decision in terms of the discretion available to the decision maker.

Application for judicial review

15    On 3 October 2018, the applicant filed an application for an extension of time to appeal the Tribunal’s decision. The application was in an incorrect form and, on 10 December 2018, Kenny J made the following orders:

1.     The applicant’s application for an extension of time be determined as though instituted under s 476A(1)(b) of the Migration Act 1958 (Cth).

2.     The applicant be granted an extension of time until 4 October 2018 within which to file an application seeking review of the decision of the Administrative Appeals Tribunal made on 25 June 2018 pursuant to s 477A of the Migration Act 1958 (Cth).

16    On 11 October 2019, the applicant lodged an amended originating application that replaced the original (and procedurally incorrect) application. The amended application specified one ground of review, which alleged that

[t]he decision of the second respondent Tribunal was affected by jurisdictional error in that:

1.    The Tribunal erred in not considering the length, nature and strength of the Applicant’s ties to Australia. As such, the Tribunal:

(a)    did not have regard to the matters in 14.2, which it was in fact required to have regard to under Direction 65, and

(b)    failed to accord procedural fairness by not addressing clear and substantial arguments; and

(c)    constructively failed to review the decision.

The reference to “14.2” in ground 1(a) is to paragraph 14.2 of Direction No. 65.

17    The application was heard on 25 November 2019. The applicant was represented by Ms Costello SC. The Minister was represented by Mr Hosking of counsel.

18    The particular bases on which the applicant argued that the Tribunal erred were summarised in the following paragraphs from the written submissions filed on the applicant’s behalf:

Nature and strength of ties

12.     The Tribunal did not have regard to the unchallenged evidence of Marlene, Cody, Colt and Tarran about the strength and nature of the Applicant’s ties to his immediate family as the male head of the household in circumstances whether the prior father figures of the household had deceased.

13.     The Tribunal did not have regard to the submissions of Cody or Tarran Matthews about their family links to the Applicant, their father-figure.

14.     The Tribunal’s reasoning in relation to the Applicant’s family ties in Australia is generic, treating such bonds as common factors, rather than looking at the real strength and nature of the ties in this case.

Length

15.     The Tribunal did not have regard to the fact the applicant had arrived as a young child.

19    The applicant argued, in essence, that that the AAT Reasons did not evidence a necessary reflection on these matters by the Tribunal such that the Tribunal failed to lawfully undertake its review function.

20    The Minister rejected the applicant’s contention that the Tribunal fell into jurisdictional error. The Minister argued that the Tribunal did have regard to the fact that the applicant had arrived in Australia as a young child. Moreover, although the Minister accepted that the Tribunal did not expressly refer to Cody or Tarran’s letters, the Minister submitted that the Court should not infer from this that the Tribunal did not consider that evidence. Alternatively, the Minister argued that, even if the Court concludes that the Tribunal did not consider those letters, the letters were not so significant such that the failure to consider them indicates that the Tribunal failed to reach the required state of satisfaction under s 501CA(4) of the Act. In the submission of the Minister, any error was not material to the outcome of the Tribunal’s decision.

Consideration

Representations made by the applicant’s family

21    The applicant’s challenge to the Tribunal’s decision primarily centred on the Tribunal’s alleged failure to adequately consider the representations made by the applicant’s family in support of revocation of the delegate’s cancellation decision.

22    The Department received four letters from the applicant’s family on 6 June 2017. The letters were addressed from, respectively, the applicant’s mother, Marlene, and the applicant’s three younger brothers, Cody, Colt and Tarran.

23    It is relevant to note the gap in age between the applicant and his younger brothers. At the time these letters were received by the Department, the applicant was 33 years old, while Cody, Colt and Tarran were 22, 20 and 17 years old respectively.

24    The letter from the applicant’s mother’s letter relevantly represented the following:

[The applicant] stands as the head and cornerstone of our family unit. Without his father here, [the applicant] when was with us took on that role. He assisted me ensuring that the growing boys in the house did their duties in the home, their work and school. He also assisted the home and me financially and his income when he was here, was the primary income for our home. I depend on him so heavily for support, for strength and foremost, for being there for his Mother (and Brothers).

25    Cody’s letter relevantly represented the following:

… [The applicant] is a vital and most important provider, supporter and member of our family. He is the oldest male and therefore being the head of our family. Our family has no other relatives residing in Australia.

26    Colt’s letter relevantly represented the following:

Being the younger brother to [the applicant], I’ve noticed he’s the closest thing to a father figure any one of my brothers has had. When dad passed away, [the applicant] took on the fatherly role at home. He made sure family came first before anything else. He provided food on the table and a roof over our heads when I knew he was struggling himself. I know that it was hard for him to take on such a huge role within the home. He was constantly at work every day just to make sure we were looked after each week. I remember when he did come home he never really had any energy to do any sort of family activities because he was always exhausted and tired, but he did anyway. And he always managed to be there for us.

27    Tarran’s letter relevantly represented the following:

My brother became the father figure of our house for me when dad died. At a young age it was hard for me to adjust to the changes that had occurred in my life. Since [the applicant’s] incarceration, I’ve missed a lot of years of his knowledge and guidance.

28    Each of these letters requested that the applicant not be deported from Australia.

Tribunal’s consideration

29    To address the applicant’s ground of review, it is necessary to consider the manner in which the Tribunal considered the representations made by the applicant’s family. In this regard, it should be recalled that the applicant’s mother and Colt also gave oral evidence at the hearing before the Tribunal.

30    The Tribunal summarised the applicant’s evidence at [31]-[35] of the AAT Reasons before turning to the “other evidence”:

Other evidence

36.     A younger brother of the Applicant, Mr Colt Matthews, gave evidence and said he had noticed a change in his brother’s behaviour that he has accepted the consequences of his bad behaviour and was now ‘more open about everything’. Mr Colt Matthews said that he had been unaware of the nature of the Applicant’s court appearance in 2005 but was aware of the circumstances of the offending in 2012. He said that the Applicant never took drugs at home but sometimes did, away from home.

37.     In her evidence, Mrs Matthews said that she had noted positive changes in her son’s conduct in recent years, since he has been undergoing counselling and undertaking other courses in prison. It was her opinion that Mr Matthews was ‘more gathered’. She said that she had struggled bringing up three boys as a single mother and felt the Applicant had taken the wrong path and had found himself, until recently, unable to cope with situations that confronted him. Mrs Matthews said that she felt Mr Matthews has the chance to be crime-free, based on the courses he has done and that he deserves another chance to prove that he would not re-offend on release.

38.     There was reference in the papers before the Tribunal to the Applicant also having an older sister, but Mrs Matthews gave evidence that she had not had contact with her daughter since around 1994 when she was leaving Australia to travel overseas, and did not know of her current whereabouts.

31    The AAT Reasons then turned to the analysis of the considerations set out in Direction No. 65. Relevantly for current purposes, paragraph 14(1) of Direction No. 65 provides that, in deciding whether to revoke the mandatory cancellation of a visa, the decision-maker must consider, amongst other matters, the strength, nature and direction of the non-citizen’s ties to Australia. Paragraph 14.2 of Direction No. 65 informs the content of this consideration:

14.2     Strength, nature and duration of ties

(1)     … decision-makers must have regard to:

a)     How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i.     less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii.     More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)     The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

32    The Tribunal analysed the impact of this consideration at [70]-[71] of the AAT Reasons:

Other consideration: Strength, nature and duration of ties (paragraph 14.2)

70.     As mentioned above, [the applicant] has resided in Australia since 1989. His mother lives here, and he has three brothers who live here, all of whom are Australian citizens. He began offending in 1998 when he appeared before the Children’s Court, aged just 15. He has made a positive contribution to the Australian community in his work, and seems to have held certain positions of responsibility in a number of jobs when gainfully employed.

71.     There was ample written and oral evidence from Mrs Matthews and Mr Colt Matthews that they would be significantly affected should Mr Matthews not be able to remain in this country. The Tribunal accepts this evidence and, on balance, finds that this consideration weighs in favour of revoking the mandatory cancellation of [the applicant’s] visa.

33    As can be seen, the Tribunal’s analysis of this consideration is concise, and only expressly refers to the evidence of the applicant’s mother and Colt. The Tribunal does not refer to the letters provided by Cody and Tarran. From this, the applicant argues that the Tribunal failed to consider (as required by paragraph 14.2(1)(a) of Direction No. 65) that the applicant arrived in Australia as a young child and failed to have regard to the evidence of the applicant’s immediate family regarding the father-like figure that the applicant represented to his younger brothers.

No jurisdictional error by the Tribunal

34    For the following reasons, my view is that the Tribunal did not commit an error that impugns the valid exercise of its jurisdiction.

Applicant’s arrival in Australia as young child

35    As a first matter, I reject the applicant’s contention that the Tribunal failed to have regard to the fact that the applicant arrived in Australia as a young child. Although [70]-[71] of the AAT Reasons did not expressly refer to that fact in those particular terms, the Tribunal at [70] referred to the applicant having resided in Australia since 1989 and had noted earlier in its reasons (at [1]) that the applicant was born in September 1983. The Tribunal was aware that the applicant had spent most of his life in Australia since arriving as a young child.

36    As such, I reject the contention that the Tribunal failed to comply with Direction No. 65. There was accordingly no breach of s 499(2A) of the Act (which requires the Tribunal to comply with ministerial directions including Direction No. 65).

Consideration of representations by the applicant’s family

37    As noted, the applicant’s challenge to the Tribunal’s decision primarily centred on the Tribunal’s alleged failure to adequately consider the representations made by the applicant’s family in support of revocation of the delegate’s cancellation decision.

38    The relevant principles regarding the consideration of representations in this context were summarised by the Full Court in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [84]-[89]. In addition to these principles, I note that a failure to address a substantial, clearly articulated argument relying upon established facts may also be a breach of procedural fairness and may constitute a constructive failure to conduct a review required by the statute and to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; 197 ALR 389; 73 ALD 321 at [24], [25] and [32] per Gummow and Callinan JJ, with Hayne J agreeing at [95].

39    Having regard to these principles, my view, in short, is that the Tribunal’s apparent failure to have regard to the letters from Cody or Tarran does not amount to a jurisdictional error.

40    To start, the Tribunal gave sufficient consideration to the letters from the applicant’s mother and Colt. Those letters were not lengthy. Although the Tribunal did not expressly refer to every aspect of their letters, the Tribunal stated at [71] that it accepted the crux of their evidence—that they would be significantly affected should the applicant not be permitted to stay in Australia.

41    The Tribunal highlighted the evidence from the applicant’s mother and Colt, presumably because they, unlike Cody and Tarran, also gave oral evidence. Although I acknowledge that the Tribunal was not required to refer to every piece of evidence presented by, or on behalf of, the applicant, the letters from Cody and Tarran were material to which the Tribunal ought to have referred to in its reasons. The failure of the Tribunal to expressly refer to Cody and Tarran’s letters leaves open an inference that the Tribunal overlooked that material.

42    Nevertheless, my conclusion is that the Tribunal’s apparent failure to consider Cody and Tarran’s letters was not material to the outcome of the Tribunal’s decision. I hold this view because:

(a)    the importance of the applicant being a father figure and the head of the family was expressly referred to in the representations made by the applicant’s mother and Colt. The Tribunal accepted their evidence. The representations by Cody and Tarran regarding the applicant’s role in the family do not add anything of substance to the representations made by the applicant’s mother and Colt;

(b)    having regard to the evidence provided by the applicant’s mother and Colt, the Tribunal recognised that they would be significantly affected should the applicant be removed to New Zealand. The Tribunal accordingly held that the strength, nature and duration of the applicant’s ties to Australia weighed in favour of the revocation of the cancellation of his visa; and

(c)    despite this, the Tribunal found that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweighed the considerations (including the applicant’s ties to Australia) that weighed in favour of revocation or otherwise weighed neutrally.

43    In these circumstances, my view is that, even assuming that the Tribunal had regard to Cody and Tarran’s letters, there is no realistic possibility that this would have resulted in a different outcome. Accordingly, the Tribunal’s error, if it be an error, did not amount to a jurisdictional error: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45] per Bell, Gageler and Keane JJ.

Conclusion

44    For the reasons expressed above, the applicant’s application for judicial review of the Tribunal’s decision is dismissed. The applicant will pay the Minister’s costs of and incidental to the application.

Associate:

Dated:        23 December 2019