FEDERAL COURT OF AUSTRALIA

BRO18 v Minister for Home Affairs [2020] FCA 688

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is dismissed.

2.    The applicant pay the respondent's costs as agreed or assessed on a lump sum basis.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

Introduction

1    The applicant is a citizen of Burundi who first arrived in Australia in 2002 as a stowaway on a boat at age 20. He was granted a Class XA, Subclass 866 Protection visa on 5 January 2007.

2    In 2008 the applicant was convicted in the District Court of Western Australia of breaching a violence restraining order and aggravated burglary. He was sentenced to 12 months imprisonment on the burglary charge and 6 months imprisonment on the breach of violence restraining order charge, to be served concurrently. On the same day the applicant was convicted in the Magistrates Court of Western Australia of the offence of aggravated assault occasioning bodily harm, and sentenced to 6 months imprisonment on that charge. The applicant committed further offences during the period 2009 to 2017.

3    After giving a prior warning of the potential for his visa to be cancelled, on 10 August 2017 the Minister cancelled the applicant's visa on character grounds under s 501(2) of the Migration Act 1958 (Cth).

4    Section 501(2) provides:

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

(a)    the Minister reasonably suspects that the person does not pass the character test; and

(b)    the person does not satisfy the Minister that the person passes the character test.

5    A person does not pass the character test in a way contemplated by s 501(2) if the person has a 'substantial criminal record' as defined by s 501(7): s 501(6)(a). Under s 501(7)(c), a person has a 'substantial criminal record' if the person had been sentenced to a term of imprisonment of 12 months or more.

6    Section 476A(1)(c) of the Act confers original jurisdiction on this Court to review the Minister's cancellation decision. Pursuant to s 477A(1), an application under s 476A(1)(c) in relation to a migration decision must be made to the Court within 35 days of the date of the migration decision. The applicant filed his papers in this Court some 126 days out of time.

7    The applicant applies for an extension of time in which to apply for review of the decision of the Minister and applies for a review of the decision.

Deferral of judgment

8    This application was heard on 23 July 2018. However, following the hearing and further correspondence with the parties, the determination of the application was deferred pending the resolution of three appeals before this Court, where the results, depending on the outcome, may have had some bearing in the applicant's favour. Those appeals were the matters of AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27; (2019) 268 FCR 424; Minister for Home Affairs v Brown [2020] FCAFC 21; and Makasa v Minister for Immigration and Border Protection [2020] FCAFC 22. The last date for the filing of supplementary submissions in this matter was 22 April 2020. The delay between the hearing and delivery of judgment in this matter is explained by the opportunity accorded to the applicant to defer determination pending the outcome of those appeals.

9    I will deal further below with the relevance of those decisions.

Extension principles

10    Relevant considerations in assessing whether an extension of time for the filing of an application should be granted include the length of the delay, any explanation for the delay, any prejudice to the respondent and whether the application for review would have any prospect of success if the extension were granted: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].

11    Ordinarily, caution is required in assessing the merits of an application at an interlocutory stage of the proceeding, and in determining what significance or weight to give to the resulting conclusion: Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [7]-[9] (Brennan CJ and McHugh J), [66] (Kirby J); and MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J). The applicant's proposed grounds of review should be considered on their face and examined at a 'reasonably impressionistic level'. If it appears from such an examination that the proposed appeal has no realistic prospect of success, it would not ordinarily be in the interests of justice to grant an extension of time.

12    The applicant's affidavit in support of his extension application provided little by way of explanation other than referring to difficulties he faces as a result of being in detention and the temporary loss of paperwork. The Minister did not suggest that any prejudice arose from the delay, but contended that no extension should be granted, in part due to the lack of proper explanation but primarily because based on the proposed grounds of review the substantive application has no merit and is futile.

13    I have approached this matter on the basis that if good proposed grounds of review are shown, then notwithstanding a substantial delay an extension of time may be granted.

14    Further, I have approached this matter on the basis that as the application for an extension of time and the application for a review have been heard together, it is appropriate to give close attention to the arguments made by the respective parties.

Chronology of events leading to cancellation of the applicant's visa

15    In 2006 the applicant was convicted in the Perth Magistrates Court of assaulting his then partner, Ms V (a pseudonym), by kicking her in the abdomen when she was six months pregnant.

16    As noted above, in December 2008 the applicant was sentenced to terms of imprisonment. The applicant breached a violence restraining order that was obtained by Ms V, and the burglary was aggravated in that it occurred in her dwelling. The circumstances included a violent assault on Ms V, who by then was no longer his partner and was also nine months pregnant.

17    In April 2009 the applicant was sent a Notice of Intention to Consider Cancellation of his protection visa under s 501 as a result of his criminal convictions (April 2009 Notice). The applicant made written submissions by letters in April and May 2009 to the National Character Consideration Centre in response. His barrister also made written submissions on his behalf. The applicant provided numerous letters supporting his wish to stay in Australia and reiterating protection claims that had been submitted at the time of the grant of his protection visa in 2007.

18    In summary, the submissions made by the applicant and on his behalf focused on his prospects of rehabilitation, his relationship with his children and the prior finding that he is a refugee and was owed non-refoulement obligations by Australia.

19    As to his offending, he submitted that it was generally alcohol related and involved the same complainant; he had a troubled upbringing in Burundi and needs assistance to deal with the trauma and ongoing effects of that difficult time; his trauma was compounded when he witnessed the drowning of his friend in Australia; he has shown a willingness to engage in steps aimed at rehabilitation during his imprisonment; and he has friends in the community willing to support him upon release and has available work.

20    As to his relationship with his two children with Ms V and his stepchild, the applicant submitted that he wished to work hard to develop his relationship with them, and that cancellation of his visa would deprive his children of direct and close contact with him. He acknowledged that the children had been in periods of foster care, but that Ms V was supportive of him having a relationship with them. They would, he submitted, be unable to visit him in Burundi due to the unstable circumstances there.

21    The applicant referred to the real chance that he would be persecuted and tortured upon a return to Burundi, particularly as a young male Hutu, referring to the finding of the Refugee Review Tribunal that he is a refugee.

22    He submitted that he has nothing left ('no idea where my family are, no friends, nowhere to live and absolutely no prospect of finding a job') in Burundi. He had been unable to find surviving family members through Red Cross.

23    By letter dated 31 July 2009 the applicant was informed of the decision of a delegate of the Minister not to cancel his visa. The letter included a formal warning that visa cancellation may be reconsidered if he were to commit further offences or otherwise breach the character test in the future.

24    The applicant continued to offend. The National Police Certificate relating to the applicant indicates that, leaving aside the convictions already referred to, between June 2009 and January 2017 the applicant was convicted of a string of offences including numerous breaches of community-based orders, drug possession offences (methylamphetamine and cannabis), dishonesty offences, stealing, burglary, breach of judicial orders including bail, driving offences and drinking offences. The subsequent offending was extensive and resulted in the imposition of significant fines, community-based orders and suspended terms of imprisonment, terms which in total exceeded 12 months.

25    On 14 May 2015 the Department issued to the applicant a further Notice of Intention to Consider Cancellation under s 501 (May 2015 Notice). The applicant was invited to comment or provide information as to both the character test and whether or not the decision-maker should consider their discretion to cancel his visa. The applicant was provided with various documents including Ministerial Direction 65, which whilst not binding on the Minister, was said to provide guidance as to matters relevant to the exercise of the Minister's discretion. The applicant's legal representative (The Humanitarian Group) was granted an extension of time in which to respond to the May 2015 Notice on the applicant's behalf.

26    In September 2015 The Humanitarian Group advised the Department that they were no longer representing the applicant.

27    In February 2017 a representative of the Department commenced an International Treaties Obligations Assessment (ITOA) with respect to the applicant.

28    On 12 April 2017 the ITOA assessor concluded in a detailed report that the applicant is a person in respect of whom Australia has non-refoulement obligations under the United Nations Convention Against Torture and the International Covenant on Civil and Political Rights. In summary, the Department found that the applicant is a citizen of Burundi of Hutu ethnicity who fears serious harm from the Tutsi if forced to return to Burundi, and that he has a well-founded fear of being persecuted for a Refugee Convention reason (race and imputed political opinion). A copy of the ITOA was provided to the applicant.

29    On 26 April 2017 the Department wrote to the applicant, referring to the May 2015 Notice and informing him that it had received additional information. That information comprised the transcript or extracts of proceedings before the Magistrates Court of Western Australia on each of 26 August 2015, 27 May 2016 and 6 December 2016. The Department also referred to the ITOA report and noted that it would be taken into account in considering whether or not the applicant's visa should be cancelled.

30    The 26 April 2017 letter listed and enclosed all the material the Department intended to provide to the Minister. In addition to the transcripts and the ITOA report, the information included the National Police Certificate, the May 2015 Notice, transcripts of proceedings before the District and Magistrates Court of Western Australia with respect to the 2008 convictions, transcripts of additional proceedings in 2012 and 2014, the 'warning' letter of 31 July 2009, a Department of Corrective Services Report, letters from the applicant to the Department, a newspaper article about the drowning of his friend at a local beach and numerous letters from people known to the applicant that had been provided in response to the April 2009 Notice. The applicant's letter and his barrister's submissions from April and May 2009 (see [17] above) were also included.

31    The 26 April 2017 letter invited the applicant to comment on the information provided to him or give any other information he wished to provide. It included a questionnaire as to the applicant's current personal circumstances. The letter informed the applicant that he had 28 days in which to respond.

32    There is no indication that any further materials or submissions were provided by the applicant to the Department.

33    On 10 August 2017 the Minister decided to cancel the applicant's visa under s 501(2).

34    On 19 October 2017 the Department informed the applicant of the Minister's decision.

The Minister's reasons

35    The Minister attached to his decision to cancel the applicant's visa a copy of his reasons.

36    After referring to s 501(2), the Minister stated that the applicant has a substantial criminal record as defined by s 501(7)(c) of the Act because of his conviction in the District Court of Western Australia for 'aggravated burglary and commit offence in dwelling' and the resulting sentence of 12 months imprisonment. The Minister accordingly found that under s 501(6)(a) the applicant did not pass the character test. The Minister stated that the applicant did not satisfy him that he passes the character test.

37    The Minister then collected his reasons under the headings set out below, which follow the matters that are addressed by Direction 65.

Protecting the Australian Community

38    The Minister said that in making his decision he considered the government's commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens.

Criminal conduct

39    The Minister stated as follows:

[10]    In considering the nature and seriousness of [the applicant's] criminal offending, I am of the view that violent offences are very serious.

[11]    On 18 December 2008, [the applicant] was convicted in the District Court of Western Australia at Perth of aggravated burglary and commit offence in dwelling, and breach of violence restraining order in circumstances of aggravation and was sentenced to twelve and six months imprisonment respectively. The offences occurred on 13 September 2008. [The applicant] assaulted his former partner, who was nine months pregnant at the time of the assault. He was in her residence without her permission and was subject to a violence restraining order at the time he assaulted her.

[12]    I am mindful that in 2006, [the applicant] assaulted the same partner by kicking her in the abdomen when she was six months pregnant.

[13]    On 18 December 2008 [the applicant] was convicted in the Magistrates Court of Western Australia at Perth of aggravated assault occasioning actual bodily harm and sentenced to a term of imprisonment of six months. The Magistrate did not provide a description of the applicant's offending however he described the offence as a 'serious assault'.

[14]    An Immigration report dated 16 March 2009 describes the circumstances of this offence; after a verbal altercation with his partner, [the applicant] grabbed her around the neck with both hands, using force to strangle her. The victim passed out on the laundry floor where [the applicant] repeatedly punched her in the face. During the assault the victim was in and out of consciousness and [the applicant] made comments to her that if she went to the police, their baby would be taken into care like their two other children.

40    The Minister then referred to the applicant's record of criminal convictions between June 2006 and 19 January 2017:

[15]    I note that [the applicant] also has a lengthy record of criminal convictions with non-custodial sentences for violent offences, drug offences, dishonesty offences, stealing, burglary, breaches of judicial orders, driving offences and drink driving offences between June 2006 and 19 January 2017. I note comments by the Magistrate on 31 October 2014, that [the applicant] '…is starting to develop a serious criminal record'.

41    The Minister referred to the cumulative effect of the applicant's persistent offending and its cost to the community. He noted that sentences of imprisonment indicate the seriousness of the applicant's offending and referred to his persistent recidivism across a lengthy period. The Minister also noted that he considered the applicant's violent offences against his pregnant former partner to be serious individually.

Risk to the Australian community

42    The Minister then addressed whether the applicant posed a risk through reoffending by having regard to mitigating or causal factors, rehabilitation and insight to offending.

43    The Minister noted the connection between offending and the applicant's issues with drugs and alcohol. He acknowledged that several letters of support were submitted in 2009 in support of the applicant remaining in Australia and attesting to him being a good person who had suffered great trauma, and presented with trauma related difficulties. The Minister also noted that the applicant lost a close friend who travelled to Australia with him and drowned not long after they arrived in Perth. He accepted that the applicant had experienced trauma and that this trauma has contributed to his drug and alcohol use which in turn has contributed to his offending.

44    The Minister noted that the applicant had enrolled in various drug rehabilitation programs but there was no evidence of him undertaking formal programs. The Minister said that he considered that the applicant had not made progress in addressing his drug and alcohol issues in that he continued to engage in substance abuse and was convicted of offences relating directly to the misuse of drugs and alcohol since advising that he would undertake rehabilitation programs.

45    The Minister said the applicant had some insight into his offending in that he had expressed remorse for his actions against his former partner, acknowledging that violence is wrong and that violence against women is wrong. However, the Minister considered that the applicant's breaches of conditional non-custodial orders despite the warning by the Department of the potential for visa cancellation indicated there was an ongoing likelihood that the applicant would reoffend. The Minister found that further offending by the applicant could result in physical, psychological or financial harm to members of the Australian community.

Best interests of minor children

46    The Minister noted that the applicant has two biological children and a stepchild who are minors and noted their interests as a primary consideration. He found that it was in the interests of his biological children that the applicant's visa not be cancelled. However, he noted that the children were in the care of the Department of Child Protection and Family Support and that he has limited access to them. In light of the limited access, the Minister said he gave the best interests of the minor children less weight than he may otherwise have done. The Minister also referred to the child with whom Ms V was pregnant at the time of the criminal assault for which he was convicted in 2008. The Minister said there was no evidence the applicant was involved with the child's daily care or has responsibility for the child.

Expectations of the Australian community

47    The Minister took into account the applicant's submission that the community would have some compassion for him due to his childhood and trauma suffered. However, the Minister found that the Australian community would expect non-citizens to obey Australian laws and that the applicant had breached the trust of the Australian community, having been convicted of common assault and aggravated assault occasioning actual bodily harm. He determined that given the serious nature of the offences, the Australian community would expect that the applicant should not hold a visa.

International non-refoulement obligations

48    The Minister then considered Australia's international non-refoulement obligations to the applicant. He accepted that the Department had found that the applicant is a person in respect of whom Australia has non-refoulement obligations, apparently referring to the ITOA. The Minister stated:

[47]    [The applicant] is a national of Burundi. [The applicant] has made claims as part of a previous response to a Notice of Intention to Consider Cancellation in 2009.

[48]    I accept that on 12 April 2017, my Department found that [the applicant] is a person in respect of whom Australia has non-refoulement obligations.

[49]    I understand that if I decide to cancel [the applicant's] protection visa, he will be prevented by s 501E of the Act from making an application for another visa, other than a Protection visa or a Bridging R (Class WR) visa, and that in respect of a Protection Visa, he will be prevented by s 48A of the Act from making a further application for such a visa while in the migration zone (unless the Minister determines under s 48B that s 48A does not apply to him).

[50]    I am aware that the statutory consequence of a decision to cancel [the applicant's] Protection visa is that, as an unlawful non-citizen, [the applicant] would become liable to removal from Australia under s 198 of the Act as soon as reasonably practicable, and in the meantime, detention under s 189. I am also aware that s 197C of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

[51]    I am also mindful that at the time of the insertion of s 197C in the Act, the Government indicated that Australia will continue to meet its international non-refoulement obligations through other mechanisms and not through the removal powers in s 198. These mechanisms included the use of the Minister's personal non-compellable powers in the Act, including the power in s 195A under which I may grant a visa to a person who is in immigration detention if I think it is in the public interest to do so. I am aware that the potential for using s 195A in order to meet Australia's international non-refoulement obligations is pertinent to [the applicant's] case and this potential is encompassed in my consideration of alternative management options in relation to him.

[52]    I have had regard to the existence of non-refoulement obligations in this case and have carefully weighed this factor against the seriousness of [the applicant's] criminal offending in the making of my decision whether to cancel [the applicant's] Protection visa.

Ties to Australia

49    The Minister had regard to the strength, nature and duration of the applicant's ties to Australia, noting he has resided in Australia for some 15 years and has contributed positively to the community through employment activities, including caring for a woman with a disability. He noted that in 2009 the applicant's former partner, despite the offences committed by the applicant against her, wrote in support of the applicant remaining in Australia.

Extent of impediments if removed

50    The Minister then had regard to difficulties the applicant would suffer if he returned to Burundi in that he was likely to be unable to find his family members and has no family land, home, community or job to which to return. The Minister noted he would be vulnerable and without family support if he returns to Burundi. The Minister accepted that the applicant would face significant impediments to resettlement.

Conclusion

51    The Minister then concluded his reasons as follows:

[64]    I considered all relevant matters including (1) an assessment against the character test as defined by s 501(6) of the Migration Act and (2) all other information available to me, including information provided by, or on behalf of [the applicant].

[65]    In considering whether or not to cancel [the applicant's] visa, I gave primary consideration to the best interests of [the applicant's] children and have found that their best interests would be best served by not cancelling the visa.

[66]    [The applicant] has committed serious crimes, including common assault and aggravated assault occasioning actual bodily harm, which are of a violent nature, and involved a vulnerable member of the community, that being his heavily pregnant former partner. [The applicant] and non-citizens who commit such offences should not generally expect to be permitted to remain in Australia.

[67]    I find that the Australian community could be exposed to great harm should [the applicant] re-offend in a similar fashion. I could not rule out the possibility of further offending by [the applicant]. The Australian community should not tolerate any further risk of harm.

[68]    I found the above consideration outweighed the countervailing considerations in [the applicant's] case, including the best interests of the child which I have treated as a primary consideration and non-refoulement obligations. I have also considered the length of time [the applicant] has made a positive contribution to the Australian community and or the consequences of my decision for minor children and other family members including his children [redacted].

[69]    I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of criminal conduct by [the applicant], than I otherwise would, because of his lengthy residence in Australia.

[70]    In reaching my decision I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.

[71]    Having given full consideration to all of these matters, I decided to exercise my discretion to cancel [the applicant's] Class XA, Subclass 866 Protection (Permanent) visa under s 501(2) of the Migration Act.

The proposed grounds of review

52    The applicant's proposed grounds of review were expressed at a very general level as follows:

1.    The respondent's decision made on 10th August 2107 [be] quashed.

2.    The respondent's decision was unreasonable.

3.    The respondent's decision involved an error of law.

4.    The respondent took into account irrelevant considerations.

5.    The respondent failed to [t]ake relevant considerations into account.

6.    The respondent in making [his] decision did not comply with the rules of natural justice.

7.    There was insufficient evidence or no evidence to support various findings made by the respondent.

8.    The respondent failed to properly exercise [his] discretion under s 501 CA and s 501 CA(4) of the Migration Act 1958 (Cth).

53    Ground 1 is not a ground of review. Grounds 2 to 7 are unparticularised. Ground 8 refers to provisions which are not relevant on the facts of this case.

54    The applicant was unrepresented before me, and was assisted by an interpreter. As is understandable taking into account his language limitations and the complexities of the law of judicial review, the applicant had difficulty enunciating any error on the part of the Minister upon which he relied. However, he made oral submissions in which he emphasised that he considered that he had made mistakes and was very apologetic and said that he wished to remain in Australia and be available to his children. He said he did not understand Australian laws when he came to Australia but that he now respected the people here and respected the authorities. He said he would not make the same mistakes again. He pointed out that he has resided in Australia for some 14 years, and referred to the sadness of the drowning of his friend. He said he wanted to look to the future of his children and his own future.

55    I accept the Minister's submission that unparticularised grounds are defective. However, from the oral submissions, I discern that to the extent there was alleged error, the applicant contends there was a failure by the Minister in the exercise of his discretion to take into account properly his prospects of rehabilitation or a failure to properly consider his risk of reoffending, and a failure to accord sufficient weight to the interests of his children. I will approach the applicant's proposed grounds of review on that basis.

56    In considering the application it is also necessary to appreciate the ultimate statutory task that was faced by the Minister. The element the Minister must address under s 501(2)(a) is whether the decision-maker reasonably suspects that the person does not pass the character test. In that regard the Minister is entitled to rely on a person's criminal convictions. The element the Minister must address under s 501(2)(b) is whether the person does not satisfy the Minister that the person passes the character test. If those elements are satisfied, then whether or not the visa is cancelled is a matter for the Minister's discretion, although the discretion is not at large. As summarised in Renzullo v Assistant Minister for Immigration and Border Protection [2016] FCA 412 (McKerracher J):

[20]    Parliament has left it to the Minister to decide the matters which are relevant to whether a person who fails the character test should be permitted to remain in Australia. It is not entirely at large as considerations relevant to the exercise of the power depend on the nature, scope and purpose of the power, understood in the context of the Act: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 per Heydon and Crennan JJ (at [126]–[128]) and Gleeson CJ agreeing (at [1]). The Minister must have regard to and consider the consequences for the person of the cancellation of his or her visa: NBNB v Minister for Immigration and Border Protection(2014) 220 FCR 44 per Buchanan J (at [118], [121], [125]).

57    In that context it seems to be standard practice for the Minister to inform a person in the applicant's position that any relevant direction (in this case, Direction 65) gives a broad indication of the types of issues that the Minister may take into account. That was the course undertaken by the Minister in this case.

Proposed grounds 2 to 5 and 7

Finding that applicant did not pass character test

58    Based on the applicant's 2008 criminal conviction and custodial sentence, the applicant plainly fell within s 501(6)(a) and s 510(7)(c) of the Act. On the material before him, it was open to the Minister to conclude that the applicant did not pass the character test and it is apparent that the applicant was unable in those circumstances to satisfy the Minister otherwise. It was accordingly open to the Minister to exercise his discretion to cancel the visa.

Submissions relating to rehabilitation and recidivism

59    As is apparent from his reasons, the Minister weighed considerations which favoured not cancelling the visa against his view that the Australian community could be exposed to great harm should the applicant commit further serious offences similar to the assault and aggravated assault which were violent and involved a vulnerable member of the community.

60    The Minister found that such consideration outweighed the countervailing considerations, including the best interests of his children, Australia's non-refoulement obligation to the applicant and the length of time he has resided in Australia.

61    I do not consider there is a real prospect of a Court concluding that the Minister's decision was legally unreasonable or that there was otherwise jurisdictional error relating to this matter. The Minister identified in his reasons the matters that he relied upon as to the risk of reoffending and harm, including the further offences committed since the 2008 conviction, the warning against further offending given by the Department by the 31 July 2009 letter, the lack of evidence of compliance with formal rehabilitation programs, the lack of progress in dealing with alcohol and drug issues, his failure to meet supervision and community work requirements and his poor history of responding to non-custodial sentences.

62    The Minister also noted the applicant's expression of remorse, his contribution to the community and the positive sentiments about the applicant expressed in letters from various third parties. However, the Minister concluded that even applying a higher level of tolerance to the applicant's conduct because of the length of time he has lived in Australia, the risk to the Australian community outweighed the considerations that weighed in favour of him remaining in Australia.

63    The applicant did not identify any relevant material that was overlooked or wrongly taken into account by the Minister in reaching that conclusion.

64    Therefore, having regard to the materials before the Minister, there is no reasonable basis for an assertion that the Minister's conclusion that there is an ongoing likelihood that the applicant will offend and that further offending could result in physical, psychological or financial harm to members of the Australian community, was illogical, irrational, arbitrary or capricious. As noted in Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81:

[41]    … To the extent that a possibility of recidivism was lawfully identified by the Minister on the material before him, it would be open to the Minister to view that possibility as unacceptable so as to outweigh the very strong considerations that favoured a decision not to cancel the visa. It matters not that another decision-maker might have reasoned to a different conclusion on the same material upon which the Minister relied, and it forms no part of the role of a court on judicial review to supplant the decision-maker's view of what is 'reasonable' with that of its own: Stretton at [21] (Allsop CJ). …

Interests of children

65    The Minister expressly treated the interests of the applicant's children as a primary consideration in the exercise of his discretion and found that they favoured a decision not to cancel the visa. That matter was clearly taken into account.

Non-refoulement obligations

66    It is apparent from [47]-[52] and [68] of the reasons (included above) that the Minister had regard to Australia's non-refoulement obligations to the applicant.

67    However, [47]-[52] of the reasons in this case are almost identical to [84]-[88] of the Minister's reasons that were the subject of the decision in AQM18 v Minister for Immigration and Border Protection [2018] FCA 944. That decision was overturned on appeal in AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27.

68    At first instance in AQM18, the primary judge had quashed a decision by the Minister to exercise his power under s 501A(2) of the Act to set aside a decision of the Administrative Appeals Tribunal and so to refuse the applicant's application for a protection visa. The primary judge held that in doing so, the Minister misunderstood the operation of s 197C and s 198 of the Act.

69    The primary judge noted (at [82]) that the Minister had 'correctly summarised the effect of ss 198 and 197C' at [86] of the reasons (the equivalent of [48] in the present case), but concluded that [87] (the equivalent of [51] in the present case) 'demonstrate[d] a misunderstanding as to the operation and effect of ss 198 and 197C'.

70    As to the first sentence in [87] (or [51] in the present case) his Honour said:

[82]    … I do not consider this to be merely a statement about the historical position as at the time of introduction of s 197C. There is no suggestion in the Statement of Reasons that the position had subsequently changed, and there was no reason to refer to this if it did not have ongoing relevance. Further, I do not consider this statement to refer only to the possibility that Australia could still meet its international non-refoulement obligations. The sentence is expressed in definite terms - Australia 'will' continue to meet its international non-refoulement obligations. In other words, the sentence expresses an understanding that non-citizens would not be refouled under s 198 in breach of Australia's international non-refoulement obligations. However, as outlined above, the true position was that, subject to consideration of alternative management options such as s 195A, a person in the position of the applicant would be removed as soon as practicable, irrespective of whether Australia had international non-refoulement obligations in respect of the person.

(original emphasis)

71    His Honour considered (at [85]) that, had the Minister properly understood s 197C of the Act, 'it is likely that he would have given careful consideration to the risk that the applicant faced upon return to [redacted]'. His Honour observed (at [85]) that the reasons in that case did not 'contain any detailed consideration of the risk that the applicant would face if returned to [redacted] or any weighing of this risk against other relevant factors'.

72    On appeal, the Full Court found that the Minister had correctly described the legal effect of s 198 and s 197C of the Act (AQM18 v Minister for Immigration and Border Protection [2019] FCAFC 27 at [19] (Besanko and Thawley JJ)) and had understood that the consequence of his decision was that the applicant would be removed from Australia in breach of Australia's non-refoulement obligations (at [17]; also at [119]-[121] (White J)).

73    The Full Court said:

[20]    Reading the first sentence of D[87] in context, the statement that the Minister was 'mindful' of what the Government had said when s 197C was introduced, indicates that the Minister was 'mindful' that the effect of his decision was that the appellant would likely be refouled despite the statement the Government had made when s 197C was introduced as to what Australia 'will' do in the future.

[21]    The first sentence of D[87] is a correct statement of fact. Indeed, each sentence in D[86] and D[87] is a correct statement.

[22]    There is nothing in the reasons outside of the first sentence of D[87] to suggest anything other than that the Minister expected the appellant to be refouled as a consequence of his decision.

[23]    At D[88], the Minister stated that he had 'carefully weighed' the non-refoulement obligations against his finding that it was in the national interest to refuse the appellant's application for a protection visa. This would not have been necessary if the Minister was proceeding on the basis that the appellant would not be refouled because Australia's non-refoulement obligations would be met by an 'alternative management option', such as s 195A of the Act.

[24]    The same point emerges from D[101]-[102]:

101.    I found that the above consideration outweighed the countervailing considerations in [the appellant]'s case, including non-refoulement obligations, [the appellant]'s mental health, the best interests of [Miss X] which I took into account as a primary consideration, and the impact on family members, particularly [redacted] residing in Australia.

102.    I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations such as in [the appellant]'s case, are insufficient for me not to refuse the visa application.

[25]    The Minister's reasons for decision do not mention indefinite detention as a possibility. This is because it was not a possibility. It was not a possibility because, as the Minister noted at D[86], the effect of s 197C was that the appellant was to be refouled notwithstanding that Australia owed the appellant non-refoulement obligations. It was not contemplated that the appellant would be kept in indefinite detention. She was to be refouled in breach of Australia's non-refoulment obligations.

74    In light of the parallel reasons of the Minister with respect to AQM18 and in this case, after the hearing the Court drew the primary decision in AQM18 to the attention of the parties and invited submissions. The Minister through counsel accepted that this case is not relevantly distinguishable from the primary decision in AQM18, but submitted that AQM18 was wrongly decided. It submitted that this matter should be adjourned and judgment deferred pending determination of the appeal in AQM18. The applicant also submitted in writing that there were parallels between AQM18 and his case.

75    Accordingly, determination of this matter was deferred pending the outcome of the appeal and I invited further submissions from the parties. The applicant did not provide further submissions. The respondent submitted that I should follow the reasoning of the Full Court in AQM18 in assessing the reasoning of the Minister revealed by [47]-[52] of the reasons relevant to this matter. I accept that is the appropriate course. There is no basis to find error in the Minister's reasons in light of the Full Court's assessment of effectively identical reasons. Therefore, the point raised at first instance in AQM18 that resulted in an order quashing the Minister's decision does not assist the applicant in this case, having regard to the outcome of the appeal.

76    It is apparent from [52] of the reasons that the Minister considered the significance of Australia's non-refoulement obligations to the applicant. The Minister also referred to and made findings that if the applicant returned to Burundi he will face significant impediments, having regard to his absence of family support, the economic situation to which he would return and his ongoing trauma issues. Although those reasons appear in a separate section of the reasons (relating to impediments if removed), it is clear that the Minister addressed and made findings about those matters and also had before him and had regard to the ITOA report.

77    Therefore, I do not consider that any jurisdictional error is established as to the manner in which the Minister had regard to and took into account Australia's non-refoulement obligations.

Statutory task

78    It is apparent that the Minister has carried out an exercise of weighing the various relevant matters, and in particular those identified by the applicant as relevant, being the risk of the applicant reoffending, the position of his children and Australia's non-refoulement obligations: see in particular [52] and [67]-[68] of the Minister's reasons. The weighing exercise was a task that the Minister was entitled to carry out for the purpose of the exercise of his discretion under s 501(2). The Minister was entitled to accord to each of those matters such weight as he considered appropriate. It is not to the point that a different decision-maker may have reasoned to a different conclusion on the same material.

79    In my view, there was evidence before the Minister that, viewed objectively, supported his findings. As already noted, the applicant did not identify any relevant material that was overlooked or wrongly taken into account by the Minister in reaching his conclusion as to the risk of reoffending. Nor did the applicant identify any relevant material that was overlooked or wrongly taken into account with respect to his consideration of the interests of the applicant's children or Australia's non-refoulement obligations.

80    Having regard to the serious nature of the applicant's offending, which included circumstances of domestic violence and an assault on a victim who was heavily pregnant, and having regard to the applicant's reoffending, the decision cannot be said to fall outside the range of possible lawful outcomes: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [11]. Even if a court takes a different view as to the weight to be given to various factors, that does not render the decision unreasonable in the Li sense (Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332).

81    It follows that I do not consider that the matters that the applicant has sought to raise establish any real prospect of a finding of jurisdictional error on the part of the Minister.

Proposed ground 6

82    The applicant was unable to point to any conduct or aspect of the relevant process that comprised or suggested a denial of natural justice. The applicant received the May 2015 Notice. He was provided with copies of all of the materials before the Minister and was given an opportunity to make any comments, but he did not do so. There was a long period of time available to the applicant in which to provide materials or make any comments. The submissions that were provided in April and May 2009 were made available to the Minister and it is apparent from his reasons that he had regard to them (for example, the Minister refers expressly to the applicant's 2009 submission or 'statement' at [38] of the reasons). This ground has no realistic prospect of success.

Minister for Home Affairs v Brown and Makasa v Minister for Immigration and Border Protection

83    It remains to address the other reasons that led to judgment in this matter being deferred.

84    Before the Full Court decision in AQM18 was delivered, the decisions in Makasa v Minister for Immigration and Border Protection [2018] FCA 1639 and Brown v Minister for Home Affairs [2018] FCA 1722 were delivered. Those decisions raised questions as to the power of a decision-maker to rely on the same facts with respect to the character test to cancel a visa where there has been an earlier determination not to cancel a visa based on the same facts.

85    In this case, the Minister expressly relied on the applicant's 2008 convictions in finding that the applicant had a substantial criminal record and failed the character test (at [7] of the reasons), albeit that there had also been subsequent offending. By the letter of 31 July 2009, and so following those convictions, the applicant had been informed that a delegate had decided not to cancel the applicant's visa.

86    Accordingly, and after further communications with the parties, I decided that the appropriate course was to await the outcome of the appeals that were brought with respect to Makasa and Brown to ascertain whether there might be any finding that might avail the applicant in this matter.

87    The reasons of the Full Court in the respective appeals were published in February 2020: Minister for Home Affairs v Brown [2020] FCAFC 21 and Makasa v Minister for Immigration and Border Protection [2020] FCAFC 22.

88    As it happens, the reasons in the appeals do not assist the applicant.

89    In summary, the factual basis here is distinguishable from that considered in Makasa and Brown. In those decisions, the Court was concerned with cases where the Minister had relied on the same facts in relation to the satisfaction of s 501(6)(a) to enliven the discretion in s 501(2) as were relied upon in an earlier decision of the delegate of the Minister, but in circumstances where the earlier decision was reviewed by the Administrative Appeals Tribunal. A majority of the Full Court in Brown (Appeal) explained:

[17]    We see the position differently if the Tribunal, after a contested proceeding before it, sets aside the decision of a delegate, substituting in its place a decision not to exercise the power to cancel the visa, and the Minister does not seek to set aside the decision of the Tribunal using the express power that is available under s 501A(2). In these circumstances, the power in s 501(2), having been since exercised, and set aside on review, should be seen as exhausted insofar as it was enlivened by a particular set of factual circumstances (here s 501(6)(a)).

90    The present case did not involve any hearing before the Tribunal. Rather, this case is of the type referred to in Brown (Appeal) at [16] where the Minister is not precluded from re-exercising the discretion relying on the same facts to enliven the discretion in s 501(2), being a case where the delegate had previously decided not to exercise the power in s 501(2) to cancel the visa. A decision of a delegate made under s 501(2) not to cancel the visa of a particular individual does not foreclose the possibility that a subsequent decision may be made to cancel that visa: Brown (Appeal) at [109], [110].

91    In this case, although the Minister relied upon the 2008 offending for the purpose of the first limb of s 501(2), there were new circumstances to justify reconsidering the exercise of the discretion, being the extensive subsequent offending by the applicant after receipt of the warning letter of 31 July 2009. The subsequent offending resulted in the imposition of significant fines, community based orders and suspended terms of imprisonment, terms which in total exceeded 12 months. Suspended terms of imprisonment are still regarded as a very serious form of punishment: Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [73].

92    As discussed above, the Minister took into account and referred to the subsequent offending of the applicant: see [40] above.

93    Having regard to the significant additional offending, it was open to the Minister to exercise the discretion anew, and the outcome of the respective appeals in Brown and Makasa does not assist the applicant.

Determination

94    Having regard to the matters raised by the applicant and having also considered carefully the subsequent identified decisions of the Full Court to assess their relevance to the applicant's position, I have come to the view that the proposed grounds of review have no prospects of success. Therefore, the application for an extension of time is dismissed.

95    Costs should follow the event and be assessed on a lump sum basis if not agreed.

Associate:

Dated:    22 May 2020