FEDERAL COURT OF AUSTRALIA
LQZW v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 478
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. Leave be granted to the applicant to extend the period in which he may file his originating application for review until the day of filing of the application for an extension of time.
2. The draft originating application for review annexed to the application for an extension of time be treated as the originating application and be taken to have been filed on the day of filing of the application for an extension of time.
3. The originating application be dismissed.
4. The applicant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
KATZMANN J:
1 The applicant is a non-citizen, born in Russia, raised from infancy in Azerbaijan, who came to Australia as a 13-year old accompanied by his mother. On 2 February 2017 he was sentenced to 18 months imprisonment following his conviction for sexual offences involving a child under 13. At the time, he was the holder of a Partner (Migrant) (Class BC) (Subclass 100) visa. As a result of his conviction, the responsible Minister (then the Minister for Home Affairs) cancelled his visa. A delegate of the Minister decided not to revoke the cancellation and the Administrative Appeals Tribunal affirmed that decision. The applicant claims that the Tribunal’s decision is infected by a number of jurisdictional errors and wants this Court to set it aside. But he did not institute a proceeding until several months had passed and he may not do so now unless he can persuade the Court to exercise its discretion to permit an application to be filed.
Background
2 The applicant travelled to Australia on his mother’s passport. He has no passport of his own. His mother remarried, this time to an Australian she met in Azerbaijan, has become an Australian citizen herself and has renounced her Azeri citizenship.
3 In about January 2016, when the applicant was 20 years old, he was charged with one count of sexual penetration of a child under 13 and three counts of indecent dealings with a child under 13 to which he pleaded not guilty. After the trial, he was released on bail pending sentence. At the time the offences were committed, he was 15 years old. The victim was 10. On 2 February 2017, he was convicted and sentenced to 18 months imprisonment for the first offence, and received two sentences of three months and one of six months imprisonment for the other offences, to be served concurrently. He served his sentence in an adult prison. Two days after he was sentenced, he was assaulted by four other prisoners who poured hot water over him after which he was transferred to another prison where he was held in protection.
4 On 26 April 2017 the Minister’s Department notified the applicant that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth). On 25 June 2017 the applicant applied for the cancellation to be revoked. In support of his application, written submissions were sent to the Minister by the applicant’s then representatives, Putt Legal, and further submissions were provided to the delegate, together with a number of documents. Additional documents were placed before the Tribunal. They included statements from the applicant, his partner, his mother, and his stepfather, a report from a clinical psychologist, Mercurio Cicchini, dated 9 January 2019, letters from another clinical psychologist relating to the applicant’s mother and partner, and a decree issued by a court in Azerbaijan dated 16 May 2005 “depriving” the applicant’s father of parental rights.
5 On 19 January 2018, after the applicant had applied to the Minister for revocation of the cancellation of his visa but before the delegate considered that application, the applicant was convicted of one count of aggravated home burglary with intent to commit an offence and was sentenced to 14 months imprisonment to be served cumulatively from 11 January 2018. The offence was committed while he was on bail awaiting sentence on the sexual offence charges. The applicant attributed his conduct to a methamphetamine addiction.
The statutory framework
6 The Minister’s decision was made under s 501(3A). The effect of that subsection is that the Minister must cancel a visa that has been granted to a person if, relevantly, the Minister is satisfied that the person does not pass the character test (see subs 501(6)) because the person has been convicted of one or more sexually based offences involving a child and 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, State or Territory.
7 Once the Minister decided to cancel the applicant’s visa, he was obliged to give the applicant written notice of his decision and an opportunity to make representations to have the decision revoked. Section 501CA relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) 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.
(5) If the Minister revokes the original decision, the original decision is taken not to have been made.
…
8 The power to revoke the original decision may be delegated: see s 496.
9 Paragraph 500(1)(ba) provides that applications may be made to the Tribunal for review of decisions of a delegate under subs 501CA(4) not to revoke a decision to cancel a visa. For the purposes of the review, the Tribunal stands in the shoes of the Minister, exercises the same power or powers as the Minister, and has the same obligation to determine the relevant question or questions on the material before it: see Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; 93 ALJR 629; 367 ALR 695 at [51] (Bell, Gageler, Gordon and Edelman JJ).
10 Where the Minister has given a written direction to decision-makers with functions or powers under the Act about the performance of those functions or the exercise of those powers, then the decision-maker is bound to comply with the direction (s 499). Such directions have been made with respect to visa refusal, cancellation, and revocation decisions. Direction No 65 (the Direction), which was made on 22 December 2014, applied in the present case.
11 Part C of the Direction is concerned with revocation decisions. 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”: para 13(1). Informed by the principles in para 6.3, to which I shall come shortly, a decision-maker must take into account the considerations in Pt C. The “[p]rimary considerations should generally be given greater weight than the other considerations”: para 8(4).
12 Insofar as they are relevant, the principles in para 6.3 are these:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to … remain in Australia. Being able to … remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should … 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 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.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
13 The primary considerations, listed in para 13(2) of Pt C, are:
(a) protection of the Australian community from “criminal or other serious conduct”;
(b) the best interests of minor children in Australia; and
(c) the expectations of the Australian community.
14 With respect to the first of these considerations, decision-makers are required to take into account, amongst other things, the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should he or she reoffend or engage in “other serious conduct”.
15 The other considerations that must be taken into account where relevant include international non-refoulement obligations; the strength, nature and duration of the non-citizen’s ties to Australia; the impact on victims; and the extent of impediments if the non-citizen is removed from Australia: para 14. It should be noted that para 14.2(1) stipulates that less weight should be given to the strength, duration and nature of the non-citizen’s ties to Australia if the non-citizen began offending soon after arriving in Australia and more weight should be given to the time the non-citizen has spent making a positive contribution to the Australian community.
The Tribunal’s decision
16 After considering all the evidence, the Tribunal made the following findings.
17 It began with the primary considerations.
18 First, the nature and seriousness of the applicant’s offending weighs strongly against the revocation of the cancellation of his visa.
19 The sexual offences were extremely serious, committed against a vulnerable young girl whom he had groomed over several months and for whom the consequences were “dire” (at [46]). Over a relatively short period of time since his arrival in Australia, the applicant had repeatedly engaged in criminal behaviour. In about 2012, when he was 16 or 17, the applicant punched a minor and stole a scooter; in August 2014, aged 18, he was convicted of disorderly conduct; then there was the aggravated burglary in January 2017, when he was 21; and the same month he was convicted of being in possession of drug paraphernalia “with prohibited drug”.
20 The attempted burglary was also a serious offence. It carried a maximum penalty of 20 years and was not only committed while the applicant was on bail but it was a breach of his bail conditions. The fact that the applicant committed the offence while under the influence of methamphetamine does not diminish its seriousness.
21 The harm that would be caused if he were to repeat his offending behaviour is obvious and serious. The sexual offences not only harm the immediate victim but also her family. The burglary offence affects the security of people in their own home and also has an effect on the wider community by wasting police resources and increasing insurance premiums.
22 There is a real and not insignificant risk that the applicant will reoffend, since he has failed to address, in any meaningful way, his drug addiction or the underlying psychological issues which led to his offending in the first place. He failed to undertake any rehabilitation courses while in prison and “[his] attitude towards rehabilitation, at least to formalised rehabilitation programs, could best be described as ambivalent if not dismissive”. And he has made no serious attempt to arrange for counselling or any other form of rehabilitation if he were to be released back into the community.
23 Second, the best interests of minor children in Australia, in this case, his half-brothers, aged eight and six, who are Australian citizens, favoured non-cancellation of the visa but this is a minor consideration relative to the other considerations since the relationship is not a parental one (the boys’ father fulfils that role and there is no reason to think he will not be able to continue to do so); it is reasonable to assume the applicant could maintain contact by phone or other electronic means; and there has already been a significant absence or lack of meaningful contact while the applicant has been incarcerated.
24 Third, the expectations of the Australian community weigh strongly against revocation.
25 The Tribunal then turned to the other considerations.
26 First, the Tribunal was satisfied that non-refoulement issues did not arise, noting that the applicant conceded that he was not at risk of significant harm if he were to return to either to Russia or Azerbaijan.
27 Second, the Tribunal noted the strength, nature and duration of the applicant’s ties to Australia. In particular, it recognised that he has spent all his teenage and adult years in Australia, that he had positively contributed to the Australian community after leaving school in 2011 until he was imprisoned in early 2017, and that he played a role in the care and upbringing of his half-brothers. It also noted that he had been in a de-facto relationship since August 2013, that his partner is Australian born, that she has lived her whole life in Australia, that she only speaks English, that if he were deported the relationship would inevitably be doomed, and her anxiety and depression would worsen. It took into account, too, the fact that the applicant’s mother lives in Australia, is now an Australian citizen, does not wish to leave Australia, that she would lose his support if he were deported, and that that would have a deleterious effect on her mental health. Finally, it referred again to the impact of deportation on his half-brothers.
28 The Tribunal accepted that this consideration weighed in favour of revocation but agreed with the Minister that the weight to be attributed to it was reduced by the fact that the applicant began to offend within about 18 months of his arrival in Australia.
29 Third, the Tribunal said that no weight could be given to the impact on the applicant’s victims or their family members of a decision not to revoke the cancellation of the applicant’s visa since there was no evidence one way or the other on the subject.
30 Fourth, the Tribunal had regard to the impediments the applicant might face if removed from Australia to Azerbaijan or Russia. While it accepted that deportation was likely to have a detrimental effect on the applicant’s mental health and that inevitably there would be “disruption and dislocation”, the Tribunal observed that this would be the effect of forced relocation in the vast majority of cases. It took into account the effect that deportation would be likely to have on the mental health of the applicant’s partner and mother. It found that, on balance, the potential impediments weigh in favour of revocation of the cancellation of the applicant’s visa.
31 Finally, the Tribunal reflected on its findings regarding the various considerations. It gave the greatest weight to the nature and seriousness of the applicant’s offending and the risk to the Australian community if he were to reoffend. In these circumstances, despite those factors that favoured revocation, the Tribunal concluded that it would not be appropriate to revoke the mandatory cancellation of the applicant’s visa.
The application for an extension of time
32 A decision of this kind is a “privative clause decision” within the meaning of s 474 of the Migration Act in that it is final and conclusive, and incapable of being challenged, appealed against, reviewed, quashed or called into question in any court unless the relief sought is of the kind the High Court might grant under para 75(v) of the Constitution: Migration Act, s 476A. The effect of this provision is that the applicant could only bring an application for judicial review of the Tribunal’s decision and the only remedies he could obtain were writs of certiorari to quash the Tribunal’s decision, mandamus to remit the matter to the Tribunal for review according to law, and prohibition to prevent the Minister from giving effect to the decision. To succeed, he would need to demonstrate that the Tribunal’s decision is affected by jurisdictional error.
33 Section 477A of the Migration Act stipulates that an application for judicial review of a decision of the Tribunal must be made within 35 days of the date of the decision but gives the Court a discretion to extend the period as it considers appropriate if two conditions are fulfilled. Those conditions are that:
(a) an application for the order has been made in writing to the Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
34 On 9 October 2019, nearly seven months after the 35 days had elapsed, the applicant filed an application for an extension of time. Annexed to the application was a draft originating application for review setting out the details of the relief the applicant would seek if the Court agreed to extend the period and the grounds upon which he wished to challenge the Tribunal’s decision. The application was supported by an affidavit in which the applicant provided an explanation for the delay.
35 The application for extension of time was opposed.
36 The explanation for the delay was summarised in the following way in the submissions filed on the applicant’s behalf:
The reason (CB471-512) is that he was quoted an unaffordable amount to apply for judicial review ($100,000) and he resigned himself to being deported. However, Russia’s failure to recognise him as a citizen or issue him with a travel document and the prospect of indefinite detention led him to seek legal advice and, once he received the advice, he acted without delay. He was also unaware of the 35 day time limit until recently.
37 In his affidavit, the applicant said that a copy of the Tribunal’s decision was sent by email to his former partner (T) the day it was made and the following day he received a copy from a prison guard. The day after that, he said he had a telephone discussion with T in which she told him he had been unsuccessful and “the lawyer said that there is not much more we can do”. She suggested that “maybe [he] could go to court”, but she told him that “it would cost about $100,000”. He also deposed that she told him the process could possibly take two years and that his chances were “not good”. He said that she did not mention that there was a time limit if he wanted to go to court. Following this conversation, he said he felt hopeless. He said that there was no way his mother could afford the legal fees and there was no other person to whom he could turn for support. The effect of his evidence is that he resigned himself to deportation at some point after he was released from prison on 10 March 2019 and attempts were made on his behalf to contact the Russian consulate to see if he could establish a right to a Russian passport but when nothing came of them he decided to seek other legal advice and finally contacted a lawyer who offered to help him. Only at that time did he become aware of the time limit for challenging the Tribunal’s decision and it was not long afterwards that he commenced this proceeding.
38 Annexed to the applicant’s affidavit was an email from his mother dated 28 April 2019, translated into English, from his mother to Konstantin Shuvalov, who described himself as “Vice-consul, Russian Consulate in Sydney”. In the email the applicant’s mother stated that she was born in Azerbaijan, that she came to Australia in 2009 with her son, and that he was listed in her Azeri passport. She said that the applicant was born in Russia but raised in Azerbaijan. She also said that he had never had a passport or “a citizenship”. On 1 May 2019 she informed Mr Shuvalov that she had the applicant’s original birth certificate and her original Azeri passport but reiterated that the applicant was not an Azeri citizen. A reply from Mr Shuvalov dated 6 May 2019 indicated that an enquiry had been sent to Russia “for the confirmation of citizenship, but this does not necessarily mean that he will be granted citizenship”. The correspondence ends at this point.
39 The applicant deposed that on 7 October 2019 he was told by a female officer from Australian Border Force that he had an appointment with the Russian consulate in Sydney on 15 October 2019 and that, if he did not go to the appointment, she did not know when he would get another. The applicant did not say whether or not he attended the appointment or what, if anything, followed.
40 It appears from the applicant’s affidavit that he only considered filing the present application in late August 2019 after a telephone discussion with his mother in which she told him that he could not remain in immigration detention or wait for the consulate or “immigration” to help him. She pleaded with him to “find a solution”. He said that the following day he searched the internet for immigration assistance in Western Australia, came across a firm of immigration lawyers, and telephoned them seeking their help. At their request he emailed them a copy of the Tribunal’s decision. Later, he received a call from someone who worked there who told him that they could not help but recommended that he contact his present lawyer, Farid Varess. He called Mr Varess on 2 September 2019. Mr Varess informed the applicant that he could give him an advice on his prospects. He also told him about the time limit and advised him that “the longer [he left it], the less likely an extension of time will be granted”. The applicant then spoke to his mother. She encouraged him to seek the advice and offered to help him financially with the little money she had saved. On 5 September 2019 he engaged Mr Varess to provide him with advice. The advice was forthcoming on 16 September 2019. And on 27 September 2019 he hired Mr Varess to bring this proceeding.
41 The applicant’s reasons for failing to commence proceedings within the prescribed time are summarised in the final paragraph of his affidavit:
I did not file a court application within time because I could not afford to engage Estrin Saul who assisted me with my Tribunal application and because Estrin Saul had advised that my chances of success are not good. Further, prior to making contact with Mr Varess, I was not aware that if I wanted to challenge the Tribunal’s Decision at court I should do so within 35 days. Over the last 7 months or so the ABF/ Immigration have unsuccessfully tried to obtain a Russian travel document for me. This delay, along with my detention, being away from my mother, the end of my relationship with [T], and the lack of support has pre-occupied me and caused me much stress and anxiety. There does not seem to be any end in sight and I am concerned that if I do not seek to challenge the Tribunal’s Decision I will remain in immigration detention indefinitely. I am also concerned about being sent to a country in which I have no support, particularly since the Russian authorities have confirmed in an email to my mother that on return to Russia I “will not be provided with anything”.
42 The applicant submitted that, if his application had any merit, it was in the interests of justice to extend the time because the evidence suggests that neither Russia nor Azerbaijan will recognise the applicant or issue him with a travel document, which means that he faces the prospect of remaining in indefinite detention.
43 No evidence was cited to support this submission and the evidence does not go this far. The evidence certainly indicates that the applicant does not currently hold either a Russian or Azeri passport and never has. The evidence is silent, however, as to whether the applicant ever applied for one. Nor does it indicate that he is not eligible for Russian or Azeri citizenship. Evidence could have been given by a consular official or experts in Russian and Azeri citizenship law but no such evidence was adduced. I accept that the applicant is concerned that he might be held in immigration detention indefinitely but I am not satisfied on the evidence that he is not entitled to Russian or Azeri citizenship.
44 But the question remains: am I satisfied that it is necessary in the interests of the administration of justice to make an order extending the time? In order to answer that question, I am not required or permitted to look beyond the facts, circumstances and propositions contained in the application.
45 It is true, as the applicant argued, that the phrase “in the interests of the administration of justice” is broad, indeed “deliberately broad”: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [52] (Mortimer J). On the other hand, as has been observed in a different context, “necessary” is “a strong word” and, as is obvious, it does not merely mean desirable: Hogan v Australian Crime Commission (2010) 240 CLR 651 at [30]. The notion that an extension of time is necessary in the interests of the administration of justice implies that injustice will occur if an extension is not granted: cf. Gabriel v Minister for Immigration and Border Protection [2015] FCA 474 at [7] (Jessup J). As Jessup J observed in that case, the injustice would be depriving “an applicant with an apparently viable case from the opportunity to present, and to develop, that case in a court with jurisdiction to grant the appropriate remedy…”.
46 On the question of the applicant’s professed ignorance of the existence of a time limit to challenge the Tribunal’s decision, the Minister read an affidavit affirmed by Catherine Helen Heap, a “Movements Officer” at Acacia Prison in Western Australia where the applicant was imprisoned at the time he learned of the Tribunal’s decision. Ms Heap said that on 6 February 2019 she handed a copy of the decision to the applicant, which is consistent with the evidence he gave. But she went further. Her evidence calls into question the applicant’s assertion that he did not know there was a time limit until he received the advice from Mr Varess months later.
47 Ms Heap deposed that she had received the Tribunal’s decision by email from the Tribunal’s Perth Registry. Attached to the same email was a letter addressed to the applicant. Ms Heap stated that she not only handed a copy of the decision to the applicant but she also handed him a copy of the letter. Annexed to her affidavit was an email chain which starts with the email from an administrative assistant (legal) at the Registry and a copy of the letter. In the email from the Registry Ms Heap was informed that the attached letter provides important information about appeal rights and time limits and she was urged to read it carefully. She was also asked to deliver to the applicant by hand a copy of the decision and the letter and that she advise the administrative assistant when this was done. Ms Heap replied later that day that she had given the applicant a copy of “the attached” that morning and handed “this document” directly to him.
48 The letter relevantly contained this information:
Can I appeal this decision?
If you think the decision is wrong, you might be able to appeal to the Federal Court of Australia. There is a time limit for appealing to the Federal Court. If you received this letter by email, the appeal period starts to run from the date of the email. If you are considering an appeal, obtain legal advice without delay.
49 No objection was taken to the affidavit and Ms Heap was not required for cross-examination. Counsel agreed not to take a Browne v Dunn point. But no affidavit from the applicant was read in reply. Consequently, Ms Heap’s evidence went unanswered.
50 The Minister submitted that the delay is substantial and it is not satisfactorily explained. He observed that it appears from the affidavit that the applicant chose not to seek legal advice about possible court action concerning the Tribunal’s decision until August 2019 and submitted that there is nothing to indicate that he could not have taken the steps he took in August much earlier, including in the 35 days after the Tribunal’s decision. He also submitted that the grounds of the application are unmeritorious. He did not suggest, however, that he would be prejudiced if the application were allowed to proceed.
51 There is no doubt that the delay is lengthy and the applicant could have taken the steps he took in August a lot sooner. But it has been explained and the explanation is acceptable. Given the initial advice the applicant received, it is unsurprising that he did not take the matter any further. He plainly concluded that his prospects were bleak and that he did not have the means to pursue it. The letter from the Perth Registry of the Tribunal was misleading. The applicant was never able to appeal from the Tribunal’s decision. His only option was to seek judicial review. Having regard to Ms Heap’s evidence, however, it is difficult to accept the applicant’s account that he was unaware there was a time limit. His counsel, Mr Reynolds, suggested that he might not have received the letter. He pointed to what he submitted was an ambiguity in Ms Heap’s email to the Registry: the reference to “the document”, rather than “the documents”. Even if the email was ambiguous, however, Ms Heap’s evidence was not. Moreover, having regard to what she was asked to do, it is very unlikely that she did not give the applicant copies of both the letter and the decision. On the other hand, I do not find that the applicant’s evidence was dishonest. Assuming that he read the covering letter, more likely than not he forgot about the reference to a time limit once he heard from his former partner that his prospects were bleak and the costs of an appeal were out of his reach. While the nature of the advice he received from Mr Varess was not disclosed in the affidavit, having regard to the lawyer’s professional obligations it may be inferred from the filing of the application that he was informed that an application to this Court had reasonable prospects of success. That was the first time he realised there was any point in challenging the Tribunal’s decision.
52 In these circumstances, and given that the Minister does not contend that he would be prejudiced by an extension of time, I am satisfied that, if the applicant has “an apparently viable case”, it would be necessary in the interests of justice that time be extended to enable him to prosecute it. On the face of the material, I am satisfied that the applicant’s proposed case is apparently viable. I therefore propose to extend the time to enable him to file his originating application to the date he filed the application for an extension of time and will treat the draft originating application for review as having been filed.
The issues raised by the originating application
53 There were five grounds upon which the applicant sought judicial review but only three were pressed. They are grounds 1, 4 and 5.
54 First, did the Tribunal fail to take into account submissions and/or evidence that the applicant was a minor at the time of the sexual offences and should therefore be treated differently from an adult sex offender; that juvenile child sex offenders are less likely than adult child sex offenders to commit further sexual offences; that the applicant had steered clear of negative peers while in prison; that it was incorrect to think that the applicant did not care about his rehabilitation; that his experiences in prison caused him to commit to a life free of crime and drugs; that his drug addiction contributed significantly to his behaviour; and he had ceased drug use since late January 2017 despite the availability of drugs in prison?
55 These matters were said to be either claims or component integers of claims made by or on behalf of the applicant before the Tribunal (ground 1) or considerations the Tribunal was required as a matter of law to take into account (ground 5). With respect to ground 5, the applicant also submitted that the Tribunal failed to take into account a passage from a report of the Western Australia Law Reform Commission and certain evidence of Mr Cicchini to the effect that there was a low incidence of juvenile child sex offenders becoming adult child sex offenders.
56 Second, did the Tribunal fail to consider the extent of the impediments faced by the applicant if he were removed or the consequences of the cancellation decision for him (ground 4)?
57 Third, if so, did the Tribunal’s omission(s) give rise to jurisdictional error?
58 The written submissions for the applicant summarised his case in the following way:
In totality, having regard to the reasoning, it is evident that the Tribunal has not complied with its duty to consider the Applicant’s case individually, or to consider the components of the Applicant’s claim, or to comply with para 10.5 of the Direction. Alternatively, it was illogical or unreasonable to the requisite degree to find that the impediments to be faced by the Applicant were comparable to “the vast majority of forced relocations”.
59 The alternative argument falls outside the scope of the originating application and was not pursued in oral argument.
The relevant principles
60 As the statute requires the Minister to invite the applicant to make representations about revocation of the original decision, where representations in accordance with the invitation are made, the Tribunal must take those representations into account. The Full Court observed in Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [41] (Besanko, Barker and Bromwich JJ) that the representations, as a whole, but not the individual statements within them, are “a mandatory relevant consideration”. A failure to take into account the applicant’s representations will vitiate the decision for it will amount to a constructive failure to exercise jurisdiction: cf. Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; 197 ALR 389; 73 ALD 321 at [22]–[27] (Gummow and Callinan JJ); at [87]–[88] (Kirby J); at [95] (Hayne J). The same is true of a failure to comply with the Direction.
61 Further, if the Tribunal were to overlook a substantial, clearly articulated argument advancing a reason why a cancellation decision should be revoked, which if accepted, would or could be dispositive of the decision under review, the Tribunal may well also commit jurisdictional error: Navoto v Minister for Home Affairs [2019] FCAFC 135 at [85].
62 The Tribunal makes an error of law if it fails to take into account a consideration to which it is bound to have regard (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J). If an administrative tribunal like the Tribunal “falls into an error of law which causes it to … ask itself a wrong question [or to]… ignore relevant material … and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers”; “[the] error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it”: Craig v South Australia (1995) 184 CLR 163 at 179. See, too, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ). But the Tribunal is not required to refer to, or comment upon, every particular piece of information which appears in a document it receives or every contention the applicant makes: Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [45] (Griffiths, White and Bromwich JJ). As Marshall and Mansfield JJ put it in SHKB Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 11 at [27], “[f]or the purposes of discerning jurisdictional error, the measure of relevancy is the prescription of the legislation …” and, citing Yusuf, “[t]here must be a failure to have regard to relevant considerations in a way which affects the exercise of jurisdiction”.
63 Moreover, it is for the decision-maker to determine the weight to be given to these matters. Rares J explained in AUE15 v Minister for Immigration and Border Protection (2016) 239 FCR 148 at [33]:
A statutory or legislatively prescribed requirement that a decision-maker take into account, or have regard to, a particular matter entails that the decision-maker must take the matter into account and give it weight as a fundamental element in making his or her determination as Mason J explained in The Queen v Hunt; Ex parte Sean Investments Pty Limited (1979) 180 CLR 322 at 329. In that case, the statute required the Minister to take into account one matter alone, namely, costs. In other cases a statute or other provision may, and often does, require a decision-maker to take into account a number of matters, some of which may reflect conflicting legislative or policy objectives. In those situations, the obligation of the decision-maker is to take each of the stipulated matters into account and give each weight as fundamental elements in the decision-making process. However, it is for the decision-maker to decide the degree of weight he or she gives to individual elements, in reaching a decision.
64 A failure to mention a matter may indicate that it has not been taken into account, but that is by no means invariably so. As the Full Court observed in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [47]:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
Did the Tribunal fail to take into account the various submissions and/or evidence?
65 Ground 1 reads as follows:
When considering the likelihood of the applicant reoffending, the Tribunal engaged in jurisdictional error in that it failed to consider claims or component integers thereof in respect of one or more issues.
Particulars
Any or all of the following matters were claims or component integers raised by the applicant or otherwise squarely raised by the material before the Tribunal in relation to the likelihood of the applicant reoffending that the Tribunal failed to consider:
a. the applicant was also minor at the time he committed the sexual assault offences, was under the Federal and State ages of consent at the time, the offending was not a case of an adult engaging in sexual behaviour with a minor, and as such his case should be treated differently from one involving an adult sex offender (e.g. Applicant’s Statement of Facts, Issues and Contentions (ASFIC), [79]-[82]);
b. juvenile sex offenders were less likely than adult child sex offenders from committing further sexual offences (e.g. ASFIC [81]-[82]);
c. the applicant had steered clear of negative peers while in prison, which was a recognised indicator of an intention to break free from antisocial influences (e.g. ASFIC [96]-[98][126(f)]);
d. there was an incorrect impression that the applicant did not care about his rehabilitation caused by him declining certain courses in order to maintain contact with his family. This was not a frivolous choice but, rather, the visits were a significant factor in maintaining morale and good behaviour (e.g. ASFIC [102]-[104]);
e. the applicant’s experiences in prison (including being assaulted two days after being sentenced for the sexual assault offences) caused him to commit to maintaining a crime-free and drug-free life (e.g. ASFIC [111]-[120]; [126(b)]); and
f. The applicant’s methamphetamine addiction contributed significantly to his behaviour, whereas he had ceased drug use altogether since his incarceration in late January 2017 despite the availability of drugs in prison (e.g. ASFIC [129]-[137]; [126(a)]).
66 The first and second matters relate to the same subject, that is, the fact that the applicant was himself a child at the time he committed the sexual offences. All the other matters relate to the applicant’s prospects of rehabilitation.
67 Ground 5 reads:
The Tribunal engaged in jurisdictional error by failing to take into account relevant considerations.
Particulars
a. The applicant repeats grounds 1 [and] 4 and says that, in the alternative, these matters constituted relevant considerations that the Tribunal failed to take into account.
b. Further and in the alternative, the Tribunal failed to take into account the passage from a report of the WA Law Reform Commission quoted at ASFIC [81].
c. Further and in the alternative, the Tribunal failed to take into account the expert evidence given by Mr Cicchini referred to at ASFIC [81]-[82], [96]-[97], [102]-[103], [140].
d Further, by failing to take into account any or all of the matters referred to at (a)-(c) above, the Tribunal constructively failed to consider the likelihood of the applicant reoffending and expectations of the Australian community or, alternatively, failed to consider the likelihood of the applicant reoffending and expectations of the Australian community in compliance with its statutory obligations.
68 In his report, Mr Cicchini was critical of the delegate’s conclusion that the Australian community would expect that the applicant should not hold the visa, given “the very serious nature of his sexual offending”. He said the statement might be valid but would not be supported “if the community was made aware of the low incidence of the juvenile sex offender becoming an adult sex offender”. He said that the low incidence of adult sex offending by juvenile sex offenders was “clearly recognised” by the WA Law Reform Commission and on the last page of his report extracted the following passage from its Final Report on the Community Protection (Offender Reporting) Act 2004, published in 2012:
In general terms, it is well recognised that juveniles should be treated differently and separately from adults. One reason is that most juveniles ‘grow out’ of crime by the time they reach adulthood. Another is the need to focus on rehabilitation and to avoid ‘labelling and stigmatisation’. In the context of this reference the Commission highlighted important differences between juvenile child sex offenders and adult child sex offenders, including that juvenile child sex offenders are less likely than adult child sex to commit further sexual offences.
(Original emphasis.)
69 Mr Cicchini was also critical of the delegate for “applying a prediction of an assumed future risk being posed to the Australian community”, which he said was apparently based on the assumption of child sex offenders becoming adult sex offenders, an assumption described as incorrect, once again citing the WA Law Reform Commission Report.
70 Elsewhere in his report, Mr Cicchini emphasised that the applicant was “a 15 year-old child” at the time of the sexual offending and described his offending as a case of “child-on-child offending”. He also wrote (without alteration):
[It] is well known that the incidence of children sex offenders becoming adult sex offenders is minimal, and for that reason it has been clearly recommended that such offenders ought not to be treated the same as adult offenders, including with regard to mandatory reporting and supervision requirements in the community. I feel that in both the sentencing remarks and the subsequent quotations of those remarks, lip service is paid to his youth at the time of offending and there is no actual appreciation in real terms that that the offender was a 15-year-old boy, and not the man he now is.
71 Mr Cicchini returned to the subject in his concluding remarks, noting that “WA legal authorities argue against child sex offenders being regarded and treated the same as adult sex offenders, most clearly because they do not invariably pose a risk of continuing to offend sexually in adulthood”. Again he referenced the WA Law Reform Commission Report.
72 In his Statement of Facts, Issues and Contentions, the applicant submitted that the Tribunal should consider that this is not a case of adult child sexual offending and that the Tribunal would fall into error if it were to ignore the larger age gap between most child sex offenders and their victims. The submission went on to refer to Mr Cicchini’s opinion that the WA Law Reform Commission Report had noted “the low incidence of juvenile sex offenders becoming adult sex offenders” and cited the passage he had extracted from the Report as well as the passage I quoted at [68] above.
73 The proposition that the Tribunal failed to take these matters into account must be rejected. As the Minister submitted, that is hardly a fair reading of the Tribunal’s reasons. In effect, the applicant’s complaint can only relate to the weight the Tribunal attached to this evidence. In any case, while I accept that Mr Cicchini’s evidence was relevant to the risk of the applicant reoffending, it could have had no bearing on the expectations of the Australian community for the reasons given by Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]–[77], which the Tribunal cited in its decision. In short, the expectations of the Australian community are defined in the Direction and they were adverse to the applicant:
In this primary consideration as expressed (and despite the references earlier in the Direction to ‘tolerance’) the Australian community’s ‘expectations’ are defined only in one particular way: namely, that the Australian community ‘expects’ non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief.
See also Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296 at [64].
74 The Tribunal considered Mr Cicchini’s evidence at some length. It quoted from two of the above passages at [72] and [73] of its reasons. The Tribunal did not extract the quotation from the WA Law Reform Commission Report, but it pointed out that this was the source cited by Mr Cicchini. The Tribunal then observed at [74]:
At the hearing Mr Cicchini was cross-examined at some length about what test or measure should be applied to determine a likelihood of recidivism or future criminal behaviour in juvenile offenders if it is inappropriate to apply the adult test criteria. Unfortunately no clear answer emerged from Mr Cicchini’s evidence. That is not a criticism of Mr Cicchini but rather, the Tribunal suspects, a product of the inherently imprecise “science” of predicting future behaviour. As is probably the case with most people, whether there is a repeat of previous criminal behaviour will depend on a whole range of factors and outside forces, environment and circumstances. That, unfortunately, is the reality in which the Tribunal must make a decision.
75 The applicant’s counsel submitted that the Tribunal did not indicate whether it accepted or rejected the proposition that juvenile child sex offenders are less likely than adult child sex offenders to commit further sexual offences. He argued that this was “actually the critical question”. He also complained that the Tribunal did not deal with the WA Law Reform Commission’s opinion that most juveniles grow out of crime.
76 The Tribunal was not obliged to make a finding on either question. The Tribunal’s duty was to include in its reasons “its findings on material questions of fact and a reference to the evidence or other material on which those findings were based”: see Administrative Appeals Tribunal Act 1975 (Cth), s 43(2B). That duty does not entail making findings on questions of fact that it did not consider material to its decision. The section is not significantly different from s 430 of the Migration Act. In Yusuf, McHugh, Gummow and Hayne JJ held at [68] (Callinan J agreeing at [217]), that the Tribunal’s duty under s 430 was to set out its findings on those questions of fact which it considered material to its decision and to the reasons it had for reaching that decision. In the present case, whether or not juvenile child sex offenders are less likely than adult child sex offenders to commit further sexual offences or whether most juveniles grow out of crime was not a question the Tribunal considered material to its decision or to the reasons it had for reaching that decision.
77 The critical questions for the Tribunal were those raised by the Act and the Direction. In the context of the point the applicant was making, it was not whether juvenile sex offenders are less likely than adult sex offenders to commit further sexual offences, but whether, and if so to what extent, the applicant might reoffend. While an answer to the former question might be relevant to the latter, it was not determinative. It would certainly not be dispositive of the Tribunal’s review of the delegate’s decision. In considering the question it was required to answer, it is plain that the Tribunal took into account Mr Cicchini’s opinions, the source material for those opinions, and the applicant’s submissions based on them. Its failure to refer to the WA Law Reform Commission’s opinion that most juveniles grow out of crime is entirely understandable, given that the evidence in the case was that the applicant did not grow out of crime. To the contrary, he continued to offend after he turned 18. Whatever the position might be in most cases, the applicant’s position was different.
78 As I mentioned earlier, the other four matters the applicant alleged the Tribunal disregarded relate to the subject of rehabilitation.
79 The first is that the applicant “steered clear of negative peers while in prison”.
80 In his Statement of Agreed Facts, Issues and Contentions, the applicant submitted (at [96]):
Mr Cicchini notes that association with a negative peer group at “a crucial stage of development in adolescence… shaped his slide into a problem with alcohol and drug use and drug-dependence.” Since being imprisoned, the Applicant has been noted to keep to himself within his unit and has avoided interacting with drug users in prison. Given the fact that his prison block houses approximately 50 – 60 adult male prisoners, the Applicant’s choice to steer clear of negative peers whilst in prison should be given appropriate weight by the Tribunal.
81 The Statement also referred (at [97]) to the assertion made by Mr Cicchini that professionals in the justice system recognise that “prisoners who want to break free from antisocial influences often do so by distancing themselves from other prisoners, particularly those who spend time discussing crime”.
82 At [77] of its decision record the Tribunal referred to the evidence the applicant led on this subject, observing that the applicant’s approach “involved the making of personal decisions to not become involved with drug use or drug users whilst in prison in order to be better positioned to stay drug free in the future”. It is true that the Tribunal made no other specific reference to this evidence, but it is apparent that it took both the evidence and the submission into account. It is clear from its reasons that it considered it was entitled to little, if any, weight.
83 The second matter was the allegedly “incorrect impression that the applicant did not care about his rehabilitation” caused by his decision to prefer visits from his family to enrolling in courses and that the applicant’s choice to prefer contact with family over undertaking courses was not a frivolous one but “a significant factor in maintaining morale and good behaviour”.
84 This proposition was drawn from Mr Cicchini’s report. The passage was extracted at [102] of the applicant’s Statement of Facts, Issues and Contentions:
In my opinion, the reported outcomes…involve the selective use of information in prison reports, creating an incorrect impression that he did not care about his rehabilitation. In reality, he was essentially on a cleft stick – a “Sophie’s choice” type situation – which is not referred to in the documentation. It is well known in the justice system that visits from loved ones are a significant factor in maintaining morale and good behaviour by offering hope for the future, as well as help retain a support system to facilitate reintegration upon release to the community, so the choice made was not a frivolous one. In my opinion, the documentation regarding his non-completion of the Pathways programme is incomplete with regard to reporting relevant information, which distorts the real picture.
(Emphasis added.)
85 The words emphasised in the extract from Mr Cicchini’s report were quoted verbatim by the Tribunal at [78] of its reasons. In these circumstances, I cannot accept that the Tribunal overlooked the contention. I am not persuaded that the Tribunal’s failure to refer to the whole passage or to specifically mention the statement two sentences later about the significance of visits from loved ones indicates that the Tribunal failed to have regard to it. Rather, it reflects the significance the Tribunal attributed to that statement in its assessment of the applicant’s commitment to rehabilitation. The Tribunal referred to a number of passages in the applicant’s cross-examination which explored the applicant’s attitude to rehabilitation, including at [80] to an exchange in which the applicant said that he decided that his visits were “more important at the time” than finishing the Pathways sessions and that he was only doing the program so that he could get parole, and to his concession that he was not undertaking the program in order to change his behaviour.
86 At [103], the applicant’s Statement of Facts, Issues and Contentions quoted from his partner’s statement that he had told her that he would not have been able to see his family for six months if he undertook one of the courses. At [104], the Statement referred to the offer of a six-month sex offenders treatment program in June 2018 which would have taken place in Bunbury and indicated that the applicant declined to participate in the program because his family members would have found it “extremely difficult” to visit him.
87 I am not persuaded that the Tribunal ignored these parts of the Statement either, merely because it did not refer to them. As the Minister submitted, the Tribunal was not obliged to give a line by line refutation of the applicant’s contentions. Once again, it seems to me that the absence of a reference is more likely to reflect the Tribunal’s view of their importance in the scheme of things. At [82] the Tribunal observed:
The obvious concern that the Tribunal has is that, for whatever reasons, the Applicant has undertaken no rehabilitation courses during the two years that he has been in prison. It may be that more courses should be available to prisoners or prison authorities should be more flexible, however, the bottom line is that on two occasions the Applicant has made a choice not to undertake the rehabilitation courses which were available to him. While understandable at a personal level, the choice that the Applicant made to decline the rehabilitation courses in favour of family visits was made on the basis of what was more appealing to him in the short term rather than on what was best for the community in the long term.
88 The Tribunal’s point was that the applicant’s reasons for not undertaking rehabilitation courses were immaterial; whatever they were and no matter the effect the visits from his family may have had on his morale, he opted not to undertake them. At [83]–[85] the Tribunal reflected further on his attitude towards rehabilitation:
83 The Applicant’s attitude towards rehabilitation, at least to formalised rehabilitation programs, could best be described as ambivalent if not dismissive. It became clear in cross-examination that the Applicant did not consider that the Pathways course, a program that has been running in West Australian prisons for many years, would be of any benefit to him. His only interest in the program was to get parole, not to address his psychological and behavioural issues. This is made clear in the answers to the questions put to him in cross-examination…
…
85 The Applicant has not undertaken any rehabilitative programs, seems not to consider them to be effective and has made no serious attempt to put in place any sort of counselling or other program if he were to be released back into the community. The sum total of his “rehabilitation” appears to be his assertion that he has not taken drugs while he has been in prison and that he won’t return to a life of methamphetamine abuse if he was released back into the community”.
89 I will return to the last item the Tribunal mentioned in [85] shortly. At [96] the Tribunal revisited the subject, accepted that the applicant had reasons for not undertaking any rehabilitation courses in the two years he had been in prison but observed that “in the end it was his choice not to do so”. At no time did the Tribunal describe the choice as “frivolous”.
90 The third matter the applicant alleges the Tribunal failed to take into account is the contention that his experiences in prison caused him to commit to a life free of crime and drug-abuse.
91 The Statement of Facts, Issues and Contentions at [111]–[117] detailed assaults upon the applicant in prison, the first of which resulted in burns and severe bruising after which his mother and girlfriend noticed he had become withdrawn and increasingly “paranoid”, the second where he alleged he had been grabbed in the groin area, placed in a headlock, and had his glasses broken. At [118]–[120] it was submitted that “his experiences in prison have been a serious wake-up call for him to change his behaviour”; he does not ever want to return to prison, and he is committed to a life free of crime and drugs. Paragraph [118] reads as follows:
Suffice to say, his experiences in prison have been a serious wake-up call for him to change his behaviour. He states:
I really, really do not ever want to come back to jail. The fact I was going to jail really hit me for the first time while I was on the prison bus. Before that, while I was using drugs, it didn’t really seem real and I wasn’t thinking about consequences. When I was on the bus I realised I would be in jail for one and a half years. I realised I couldn’t see my girlfriend, I couldn’t be at home for dinner with my family – all the things I didn’t care about when I had them I started to care about when I didn’t have them anymore. I decided to use this time in jail to turn my life around.
92 I can find no reference to these matters in the Tribunal’s reasons. But I am not persuaded that this is a material omission. That is because the contention that the prison assaults had any long-term salutary effect on his criminal or anti-social behaviour appears to be entirely speculative. I was not taken to any evidence to support it. That is not the effect of the remarks cited at [118] of the Statement of Facts, Issues and Contentions. There is no suggestion in Mr Cicchini’s report that his prison experiences inspired him to change his behaviour. The only reference to the effect of a prison assault is in the applicant’s statement to the Tribunal at [33] where he said with respect to the first assault:
The bashing made me paranoid, that’s why I usually stay in my cell. I am skeptic (sic) about meeting new people. Before I came to jail I feel like I was quite extroverted, whereas nowadays I mostly sit in my room.
He made no connection between the assault and his prospects of reoffending or even his desire to stay out of gaol. In the circumstances, even if the Tribunal did overlook the submission, it did not thereby fall into jurisdictional error.
93 The fourth matter is the contention that the applicant’s methamphetamine addiction significantly contributed to his behaviour and he had ceased drug use since his incarceration in late January 2017 despite the availability of drugs in prison. It was submitted in his Statement of Facts, Issues and Contentions at [137] that the fact that the applicant has successfully abstained from drugs for over 23 months in prison should be given “significant weight” in the Tribunal’s assessment of his risk of reoffending.
94 At [49] and [54] of its reasons, the Tribunal referred to the applicant’s statements that “[m]eth was the main reason why [he] committed the burglary offence”. At [53] it noted his explanation that he committed the aggravated burglary while “high” on methamphetamine.
95 At [71] the Tribunal referred to Mr Cicchini’s evidence that the applicant had been making “a concerted effort during his time in prison to move away from drugs and drug users”. At [77] the Tribunal referred to Mr Cicchini’s evidence that the applicant’s approach to rehabilitation “involved the making of personal decisions to not become involved with drug use or drug users whilst in prison in order to be better positioned to stay drug free in the future”. At [85] the Tribunal referred to the applicant’s assertion that he had not taken drugs while in prison and that he would not return to a life of methamphetamine abuse if he were released back into the community. It mentioned the applicant’s assertion again at [96].
96 In these circumstances, there is no reason to conclude that the Tribunal failed to take the contention into account.
97 It follows that grounds 1 and 5 must be dismissed.
Did the Tribunal fail to consider the extent of the impediments faced by the applicant if he were removed from Australia or the consequences for him of the cancellation decision?
98 Ground 4 is in the following terms:
The Tribunal engaged in jurisdictional error by failing to consider the extent of the impediments faced by the applicant if he were removed or the consequences of the cancellation decision for the applicant.
Particulars
a. The Tribunal was required to consider the extent of the impediments facing the applicant if he were removed to his home country (Direction 65, [14.5(1)]) and / or the consequences of the cancellation decision for the applicant.
b. In order to lawfully discharge this obligation, the Tribunal was obliged to consider the applicant’s particular circumstances. This entailed making a finding as to what country constituted the applicant’s home country and what particular impediments and /or consequences would be faced by the applicant if removed to that country;
c. The Tribunal failed to discharge the obligation referred to in (a)-(b).
99 I accept the applicant’s submission that the Tribunal was bound to consider the consequences of its decision. The Minister did not suggest otherwise. In Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 at [84], to which the applicant referred in oral argument, the Full Court said that, in making a decision under s 501, the Minister is obliged to consider the direct and immediate consequences that the Migration Act attaches to that decision — even where those consequences are obvious (see [86]). While Taulahi was concerned with the exercise of the power conferred by s 501, there is no apparent reason to take a different view of the obligations of a decision-maker dealing with an application for revocation of a cancellation decision under s 501CA. Certainly the Minister did not offer one. Taulahi was also concerned with the legal consequences of the decision in question. At least to the extent that they fell within the terms of the Direction, the Tribunal in the present case was also bound to consider the factual consequences for the applicant.
100 The applicant submitted that, having regard to all of the material before the Tribunal, there was a real possibility that, upon cancellation, the applicant’s removal from Australia would not be reasonably practicable and therefore he faced the prospect of indefinite detention. The bases for the argument were as follows. The applicant left Russia for Azerbaijan when he was a baby. His father left him and his mother when he was two. He was not an Azerbaijani citizen. He travelled to Australia as a young teenager under his mother’s Azeri passport, and she has since renounced her Azeri citizenship. He has never held a passport in his own name. He has no connections with anyone in Russia or Azerbaijan. His Statement of Facts, Issues and Contentions pointed to “confusion” regarding his citizenship. In these circumstances, he argued, the Tribunal could not lawfully discharge its statutory duty without considering whether the applicant had a legal right of entry into Azerbaijan or Russia or whether it was reasonably practical to procure a travel document to effect his removal and, if not, what were the consequences for him. He contended that the Tribunal did not consider these matters. Rather, it assumed “without evidence or findings” that he could be removed either to Azerbaijan or Russia and “overlooked the issue”.
101 There was no confusion about the applicant’s nationality before the delegate’s decision.
102 In his request for revocation of the cancellation decision and his response to the Minister’s invitation to make representations about revocation of the original decision, the applicant said that he was born in Russia and nominated Russia as his country of citizenship. He requested revocation because, he said, he felt “that to be deported back to Russia will be almost life destroying to [him] and [his] family …”. He complained about the consequences of deportation to Russia. Although there was evidence from his stepfather that the applicant did not have a passport of any kind, having arrived in Australia on his mother’s passport, the submission to the Department from his then lawyer/migration agent, Alisdair Putt, described him as “a Russian citizen”. He made submissions about the impediments he would face if removed to Russia.
103 The delegate referred to the submissions from Mr Putt about the problems in Russia but dismissed them as irrelevant as the applicant “is a citizen of Azerbaijan and as such would be removed to Azerbaijan and not Russia”. Birth certificates submitted to the delegate for the applicant’s half-brothers state that the applicant’s mother was born in Baku, Azerbaijan, but in her statement to the Tribunal she stated that she was born in Russia and that the applicant’s father was a Russian citizen.
104 In his statement to the Tribunal, the applicant expressed a number of concerns about leaving Australia, the first of which was that he said he did not know where he would be deported to. That concern is entirely understandable in the light of the delegate’s finding and presumably derives from that finding. He said he came to Australia from Azerbaijan on his mother’s passport and has no “ID documents for Azerbaijan”. In her statement to the Tribunal, the applicant’s mother confirmed that he came to Australia on her passport and said that she did not remember applying for citizenship for him in either Azerbaijan or Russia.
105 The applicant’s Statement of Facts, Issues and Contentions states (at [194]) that:
The documents before the Tribunal indicate some confusion from the Applicant and his family around the Applicant’s citizenship, given that he was born in Russia to a Russian father and his mother states she did not apply for Azerbaijani citizenship for him (rather he was included automatically on her passport when she applied).
106 As the Minister submitted, however, no submission was made to the Tribunal that it was not reasonably practicable to remove the applicant to either Russia or Azerbaijan. Nor did the applicant point to any evidence to support the allegation. By the time the applicant’s case came before the Court, there was still no evidence to indicate that the applicant was likely to be stateless. In these circumstances, the Tribunal was not obliged to consider the prospect of indefinite detention. It simply did not arise.
107 The Minister’s Statement of Facts, Issues and Contentions, filed in the review application, described the applicant (at [4]) as a “dual citizen of Russia and Azerbaijan”, but later (at [60]), asserted that he could be removed either to Russia or Azerbaijan “given it appears he may be a dual national”. The basis for those assertions was contained in a footnote which referred to two publications available on the internet: Art 11-12 of Federal Law on Citizenship of the Russian Federation, 31 May 2002, which was said to provide for citizenship by birth, and Art 15 and 22 of On Citizenship of the Azerbaijan Republic, which was said to provide that children whose parents renounce their citizenship remain citizens, and in any event that Azerbaijani citizenship could be restored. The applicant filed a Reply which did not take issue with the Minister’s contention. In his statement to the Tribunal the applicant said he had a Russian birth certificate and oral evidence was given that his mother had a copy of it. The Tribunal referred to that evidence at [126] of its reasons. In those circumstances and in the light of the applicant’s own assertions that he was a Russian citizen, the Tribunal was entitled to proceed on the basis that he was. Notwithstanding the delegate’s finding to the contrary, since the applicant’s submissions and evidence canvassed the potential impediments facing the applicant if he were to be removed to either Russia or Azerbaijan, that did not involve any procedural unfairness.
108 In the absence of any suggestion, let alone evidence, that the applicant was stateless or that there were practical difficulties in deporting him to either Azerbaijan or Russia, the Tribunal did not fall into jurisdictional error in failing to have regard to any.
109 The applicant also submitted that the Tribunal failed to consider the applicant’s particular circumstances, as it was required to do, because:
(a) Its reasoning at [135]-[137] (CB453-455) is expressed at a very high level, especially when compared to the detail of the submissions (SOFIC, [191]-[212]; CB388-391);
(b) It makes no finding as to which country the Applicant would be removed to, although it dismisses a number of the Applicant’s impediments as relating to Azerbaijan only and “would not apply in Russia…” (without finding that the Applicant would not be removed to Azerbaijan) ([135(a]);
(c) It dismisses the Applicant’s submissions as to the lack of availability of employment, housing and social services as anecdotal on the basis that “there is no evidence other than anecdotal statements or unsupported opinions of the Applicant” ([135(a)]), whereas the Applicant’s submissions show that they were based on independent country information from recognised sources including the US Social Securities Administration and the United Nations (SOFIC, [198]-[202]; CB388-9);
(d) It fails to refer to the two most obvious issues faced by the Applicant – in respect of Azerbaijan, the Applicant does not speak the language, and in relation to Russia – he has not been there since the age of 1; and
(e) It considered the disruption and dislocation faced by the Applicant if he were removed to either Russian or Azerbaijan as being comparable to the “vast majority of cases where a person is forced to relocate to another country” ([135(c)] and [137]), which is indicative of lack of individual assessment, given the very obvious individual factors in this case that would take the Applicant’s situation outside the ‘vast majority’ of cases where a migrant is forcibly removed back to his home country.
110 It will be recalled that one of the considerations the Direction requires the Tribunal to take into account, where relevant, is the extent of any impediments if the non-citizen is removed from Australia. Paragraph 10.5(1) of the Direction requires the Tribunal to take into account:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
111 Since this paragraph requires consideration of the conditions the non-citizen may face in his or her “home country”, it is obviously necessary for the Tribunal to decide what the home country is. It is true that the Tribunal did not expressly find that Russia was the applicant’s home country. By dismissing the applicant’s concerns about the prospect of deportation to Azerbaijan on the basis that the applicant was born in Russia, has a Russian birth certificate, and is fluent in Russian, however, it is evident that that was the conclusion the Tribunal reached. In substance, the Tribunal took the opposite position from the delegate on the home country question.
112 The matters raised by the applicant in his Statement of Facts, Issues and Contentions were these.
113 First, the applicant expressed “serious concerns about his ability to cope with finding employment, housing and a social network if returned to either [Russia or Azerbaijan]” and has also raised concerns about compulsory military service in both countries, particularly Russia.
114 The Tribunal addressed the first submission but not the second. With respect to the first, it said:
It is not clear to the Tribunal exactly what the impediment is that is being identified. Is the impediment a concern that the Applicant apparently has about the exercise of finding employment, housing etc. or is the impediment that there is no employment, housing etc.? It is not clear.
If it is the former, a subjective concern felt by the Applicant is not, in the Tribunal’s view, an impediment coming within paragraph 14.5 of Direction no. 65. If the impediment is a lack of jobs, housing and social services, there is no evidence other than anecdotal statements or unsupported opinion of the Applicant. The Applicant asserts in his witness statement (A2 at para. 45) that “[t]here are no jobs there [either Russia or Azerbaijan], no money, things are pretty bad” These basis’ (sic) identified for that somewhat hyperbolical statement. He goes on to state that “[i]t is also a Muslim country so I think that some of the customs will be unfamiliar”. Presumably this is a reference to Azerbaijan. Russia, where he was born and for which his mother has a birth certificate for him, is of course, not Muslim.
This and the majority of the impediments identified in the Applicant’s SFIC are not supported by any evidence and in the majority of cases assume that he will be deported to Azerbaijan. Most of the impediments that the Applicant claims will confront him in Azerbaijan would not apply in Russia as the Applicant is Russian born and is fluent in Russian.
115 The transcript of the Tribunal hearing was not in the court book or otherwise put before the Court. In his statement to the Tribunal the applicant said that, although he was born in Russia, he had not lived there for over 20 years, he did not know how to look for a job there, did not know the cities or any places, would probably have to do military service, could be sent to fight, had no family support there, and, in fact, knew no-one there. The impediment he identified was alienation or social isolation. This was not merely a subjective concern but an inevitable consequence of not having lived in the country since the age of one. On any view of the matter, that was relevant to determining the extent of any impediments he might face in establishing himself in Russia.
116 But I am not persuaded that the Tribunal did not have regard to these matters. After all, it stated that deportation was likely to have a detrimental effect on his mental health and it referred at [135] to the observation made in the Statement of Facts, Issues and Contentions that it was clear that the applicant would receive “no [social, medical or economic support] from any individual person in either [Azerbaijan or Russia], as he has no social links to either”. I accept the Minister’s submission that the Tribunal did not fail to undertake a personal assessment of the difficulties the applicant might face merely because it observed that disruption and dislocation would occur, and impediments or difficulties are likely, in the vast majority of forced relocations.
117 Finally, the applicant submitted that the Tribunal was wrong to say that there was “no evidence” to support his concerns about a lack of jobs, housing and social services apart from “anecdotal statements” or his own “unsupported opinion”. I am not persuaded that the Tribunal was wrong in this respect. It is true that the Statement of Facts, Issues and Contentions cited a number of different sources. But all but one of the references relate to Azerbaijan. Only one relates to Russia. In [92] the following statement is made:
Russia’s social security and welfare programs are said to be “often inadequate, and a significant proportion of Russia’s population lives on the threshold of poverty”.
The footnote indicates that the source of this statement was an article on the welfare system in contemporary Russia published in the Journal of Policy Science in 2017. But the material before the Court does not indicate that the article was tendered in evidence or even furnished to the Tribunal.
118 Ground 4 is not made out.
Conclusion
119 Leave should be granted to extend the time to enable the applicant to file his originating application but the application should be dismissed. Costs should follow the event.
I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. |
Associate:
