FEDERAL COURT OF AUSTRALIA

NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1077

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

2.    The applicant pay the first respondent’s costs as assessed or agreed.

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

REASONS FOR JUDGMENT

BROMWICH J:

1    The applicant is a 20-year-old citizen of Tonga. He came to Australia with his family when he was 12, remaining here on a series of visas. Between the ages of 13 and 16 he committed three serious child sexual assault offences upon a much younger relative. He was convicted and sentenced when he was 18, and served three sentences of imprisonment with a total head sentence of one year and eight months, and a total non-parole period of 11 months. While he was still serving that non-parole period, a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, cancelled his visa under s 501(3A) of the Migration Act 1958 (Cth). That cancellation was mandatory because the applicant did not pass the character test by reason of his convictions and was at that time still in custody serving his sentence of imprisonment.

2    The applicant was invited to make representations as to why the visa cancellation decision should be revoked, and made such representations, as provided for by s 501CA(3) and (4)(a) of the Migration Act respectively. The revocation depended upon the Minister (and thus his delegate) being satisfied either that the applicant passed the character test in s 501(6), which he could not do because of his convictions and prison sentence, or that there was another reason why the visa cancellation should be revoked: see s 501CA(4)(b)(i) and (ii) respectively. The sole issue was therefore whether there was another reason for revocation: s 501CA(4)(b)(ii). Another delegate of the Minister was not satisfied that there was another reason to revoke the visa cancellation and therefore decided not to revoke the visa cancellation.

3    The applicant applied for merits review of the delegate’s decision not to revoke the cancellation of his visa. Once again, the sole issue was whether there was another reason for revocation. The second respondent, the Administrative Appeals Tribunal, was also not satisfied that there was another reason to revoke the applicant’s visa cancellation, and therefore decided to affirm the delegate’s decision. This is an application for judicial review of that decision by the Tribunal.

Representation and submissions

4    Before the Tribunal, the applicant was represented by counsel and solicitors, and the Minister by a solicitor. In this Court, the applicant was initially legally represented and filed a coherent originating application, but was unrepresented at the hearing of that application and was unable to make any submissions either in writing or orally beyond reliance upon a letter to the Court from his partner going to the merits of his situation, which could not be taken into account. Counsel for the Minister furnished written submissions addressing the grounds of review succinctly but thoroughly, and also explained by oral submissions the substance of those submissions in writing.

Direction 79

5    The two grounds of review in the originating application both concern the operation and application of “Direction no. 79” made by the Minister under s 499 of the Migration Act. Direction 79 is binding on delegates and the Tribunal in relation to character-based visa refusal and cancellation under s 501, and revocation of a mandatory visa cancellation under s 501CA. It contains objectives, general guidance and principles for each such decision. Focussing on revocation, the principles provide a framework within which decision-makers should approach, inter alia, the exercise of the discretion to revoke the mandatory cancellation of a visa, informed by a series of principles and non-exhaustive mandatory relevant considerations: see paragraphs 6.2(3) and 6.3 of Direction 79.

6    Part C of Direction 79 includes a list of primary considerations (paragraph 13) and other considerations (paragraph 14) in relation to revocation decisions. The Tribunal was required by paragraph 7(1)(b) to take into account those considerations, “informed by the principles in paragraph 6.3”.

Before the Tribunal

7    The Tribunal considered and made the following findings by reference to each of the three primary considerations in paragraph 13 of Direction 79, and each of the five “other” considerations in paragraph 14 of Direction 79:

(1)    paragraph 13.1, being protection of the Australian community, including as to the nature and seriousness of the applicant’s conduct and the risk to the Australian community should he commit further offences or engage in other serious conduct, not being satisfied that the applicant presented minimal or no risk of reoffending, and finding that this weighed very heavily against revocation (referred to by the Tribunal as Consideration 1);

(2)    paragraph 13.2, being the best interests of minor children in Australia, namely the applicant’s three younger siblings, finding this weighed quite strongly in favour of him remaining in Australia (referred to by the Tribunal as Consideration 2);

(3)    paragraph 13.3, being the expectations of the Australian community, finding that the seriousness of the applicant’s offending, including penile penetration on two occasions of a young child, was so great that no other aspects of the evidence, including his accepted immaturity, would persuade the Tribunal that this consideration would weigh in favour of him remaining in Australia (referred to by the Tribunal as Consideration 3);

(4)    paragraph 14.1, being international non-refoulement obligations, finding that such obligations did not apply to the applicant;

(5)    paragraph 14.2, being the strength, nature and duration of the applicant’s ties to Australia, finding that his ties to Australia were significant, and despite no member of the applicant’s immediate family being “Australian citizens, permanent residents or people who have a right to remain in Australia indefinitely”, and despite him committing offences in Australia, the length of time he had spent in Australia and his age upon arrival weighed in favour of revocation;

(6)    paragraph 14.3, being the impact on Australian business interests, which was found not to be relevant to the applicant’s circumstances;

(7)    paragraph 14.4, being the impact on victims, which was found to have no identified application to the applicant; and

(8)    paragraph 14.5, being the extent of the impediments the applicant would face if he was removed from Australia and returned to Tonga, which was found to weigh in favour of revocation by reason of the likely adverse reaction to his offending conduct, which was likely to be made public upon his return.

8    The conclusion reached by the Tribunal (at [85]) was that the matters referred to in Consideration 1 and Consideration 3, taken together, weighed so strongly against the applicant that, on all the material, there was no other reason to substitute a different decision to that made by the delegate.

9    The applicant takes issue with the Tribunal’s determination of the following considerations:

(1)    the ‘other’ consideration in paragraph 14.5 of the extent of the impediments the applicant would face if he was removed from Australia and returned to Tonga: judicial review ground 1; and

(2)    the primary consideration in paragraph 13.3 (Consideration 3), being the expectations of the Australian community: judicial review ground 2.

Review ground 1 – other consideration of impediments the applicant would face on return

10    This ground of review concerns the extent of impediments that the applicant would face if removed from Australia to Tonga, in particular having regard to “any social, medical and/or economic support available” to him, as set out in paragraphs 14(1)(e) and 14.5(1)(c) of Direction 79. In a written statement of facts, issues and contentions furnished to the Tribunal on behalf of the applicant, the following was stated as being relevant to that consideration:

[45]    The applicant left Tonga at the age of 12 and is no longer familiar with that country. He lacks practical knowledge on how to access … employment, finances, accommodation and health services. His family are struggling financially and are not in a position to be able to provide him with financial support. His concern is that if he returns to Tonga, he will suffer emotional, practical and financial hardship without the strong family and social support he has in Australia.

[46]    The applicant’s father is concerned that the nature of the applicant’s offences means that he will be bullied and mocked in Tonga. It will make it hard for him to obtain employment.

11    There is nothing in the material before the Court to indicate that this outline of impediments was further developed in evidence or submissions. As such, it was a rather sparse representation. That may be because the understandable focus in the merits review process was upon the key related issues of the applicant’s rehabilitation and his risk of re-offending, which were ultimately not resolved in his favour.

12    The Tribunal addressed the topic of the impediments the applicant faced if returned to Tonga as follows:

(1)    In the part outlining the “other considerations” requirements of Direction 79, paraphrasing paragraph 14.5(1):

Extent of impediments if removed

[27]    The extent of impediments if removed requires consideration of 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: age and health; whether there are substantial language or cultural barriers; and the availability of any social, medical and/or economic support.

(2)    In the consideration part:

Extent of impediments if removed

[82]    Although the Applicant is of Tongan descent and lived with his family in that type of cultural environment in Australia, nonetheless, having lived his formative years since 12 years of age in Australia, the Tribunal considers that it will be traumatic emotionally and socially for the Applicant to be returned to Tonga. Furthermore, although the Tribunal has formed a view about non-refoulement obligations, nonetheless, the Tribunal is of the view that there is the real likelihood of his reason for being returned to Tonga being made public, at the very least, within the Church community. Furthermore, the Tribunal accepts that either because of his religion or more likely because of the knowledge of his offending in Australia, or both, the Applicant is likely to be subject to harassment, ridicule and bullying, perhaps even with a physical component. The Tribunal does, however, recognise that the Applicant is of relatively large stature with a muscular build and has played competitive rugby from which the Tribunal concludes, he would not likely be physically intimidated. Taking all of these matters into account, it is the Tribunal’s view that this consideration weighs in the Applicant’s favour.

13    The applicant challenges [82] of the Tribunal’s reasons as constituting “a jurisdictional error because of a breach of procedural fairness”. The particulars to this ground assert that:

[1]    The Tribunal did not intellectually engage with the applicant’s claims concerning practical and financial hardship upon return to his home country, Tonga [paragraph 82]. In contrast, the Tribunal considered the applicant would face ‘social hardship’ upon return to Tonga, which does not encapsulate the practical and financial hardship alluded [to] in the applicant’s Statement of Facts, Issues, and Contentions;

[2]    It is therefore argued that the Tribunal has failed to resolve this substantive argument advanced by the applicant.

14    No point was taken by the Minister about the apparent mismatch between this review ground as pleaded, asserting a denial of procedural fairness, and the particulars, which raise the sufficiency of engagement with the claims that the applicant made, rather than any issue of not being heard, or being given a chance to be heard, or the like. For present purposes, it is clear enough that the applicant is asserting that the Tribunal did not address an aspect of the case he advanced in support of his representations that the visa cancellation should be revoked, and thereby failed to complete its jurisdictional task.

15    In Minister for Home Affairs v Buadromo [2018] FCAFC 151; 267 FCR 320, the Full Court observed at [41] that, while representations made in support of revocation are a mandatory relevant consideration as a whole, this does not extend to each of the individual statements contained in such representations. Thus it is the substance of the representations made and other arguments advanced that must be considered, not each individual expression used. Such representations and arguments go to the ultimate question of whether the decision-maker is satisfied that there was another reason why the original visa cancellation decision should be revoked: see Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198; 267 FCR 492 at [47].

16    The live issues are thus whether the Tribunal erred by failing to have regard to substantial and consequential material that was before it, and if so, whether any such omission was material: see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [111]-[112], and especially the observation by Robertson J at [111] that the “fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”.

17    While it is true that the Tribunal does not specifically refer to practical and financial hardship as a separate component of the asserted impediments that the applicant relied upon, that degree of detail was not required in light of the sparseness of the representation by which this was advanced. What mattered was whether there were impediments that the applicant would face if he was returned to Tonga, such that this would favour revocation. The Tribunal did not have to recite each asserted component of those impediments in the form of some kind of checklist. It would not fail to exercise its jurisdiction properly merely if one or another was not specifically referred to. Rather, the Tribunal was entitled to identify the impediments that it chose to place weight upon, which is precisely what [82] of the reasons discloses.

18    When [82] of the Tribunal’s reasons is read in the context of [45] and [46] of the applicant’s statement of facts, issues and contentions, reproduced at [10] above, there is no proper basis to reach a conclusion other than that the substance of the submission made about impediments was considered, but only parts of it given weight and therefore expressly referred to. To find otherwise would be to subject the Tribunal’s reasons to over-zealous scrutiny: McAuliffe v Secretary, Department of Social Security [1992] FCA 483; 28 ALD 609 at [25]. . Nonetheless, it is not surprising that the Tribunal found in the applicant’s favour in relation to this consideration based only upon matters that were more readily capable of assessment, notably the impact of his offending becoming known in Tonga, without engaging in speculation as to what his employment prospects might be upon his return.

19    Even if, contrary to the above, there was some omission by the Tribunal to consider general claims concerning practical and financial hardship in part arising from his family’s lack of means to give him financial support, it has not been demonstrated that this could possibly have made a realistic difference to the outcome, in the sense of causing the revocation power to be exercised differently. The clearer impediments arising from his offending were identified, yet were not enough to overcome the primary consideration of the expectations of the Australian community that were found to weigh heavily against him. It is difficult to see that a speculative assessment of further possible practical and financial hardship, of a kind that was not clearly expressed or explained, could have advanced the finding that this consideration favoured revocation, let alone to do so to the extent that it would overwhelm the dominance of the considerations found to favour non-revocation. Reciting the bare assertion of practical and financial hardship, even if there were a finding that in some way further contributed to the case for revocation, could not have made any difference to the result. Thus any error of omission in relation to this particular aspect of the claims relied upon was not material so as to constitute a jurisdictional error.

20    It follows that this ground of review must fail.

Review ground 2 – primary consideration of expectations of the Australian community

21    This ground of review concerns one of the primary considerations, set out in paragraph 13.3 of Direction 79, the expectations of the Australian community:

(1)    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

22    The applicant relies in particular upon the principles in 6.3(5) and (7):

(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.

(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.

23    The applicant takes issue with [69] and [83]-[85] of the Tribunal’s reasons, as follows, adding [68] for context:

[68]    The Applicant makes the following submission:

At paragraph 44 of the Applicant’s Statement of Facts, Issues and Contentions,

In FYBR v Minister for Home Affairs [2019] FCAFC 185, the majority (Charlesworth and Stewart JJ) held that this part of the Direction expresses a ‘norm’; it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations are deemed – they are what the executive government has set out are its views in the Direction, not values that may be gauged by some other independent process. The applicant accepts that the Tribunal is bound to assess the expectations of the Australian Community in this manner and the serious nature of the applicant’s offending means that this consideration weighs in favour of not revoking the cancellation.

[69]    It is of course not for the Tribunal to substitute its own view but to apply what Direction no. 79 sets out as the prima facie position which should be adopted or “the norm”. The seriousness of the Applicant’s offending which includes penile penetration on two occasions of a young child, eight years or younger, is so serious a matter that there are no other aspects of evidence in this case, including the accepted immaturity of the Applicant at the time of the commission of the offences, which would persuade the Tribunal that this consideration weighs in favour of the Applicant remaining in Australia.

…

[83]    There are a number of factors within various considerations discussed above which are in the Applicant’s favour, including particularly the evidence of his laudable behaviour since being charged whilst on bail and in custody and in immigration detention.

[84]    The Tribunal is of the view that the Applicant’s criminal conduct towards the young child by two instances of penile penetration which he still refuses to admit despite being convicted by a jury is particularly egregious.

[85]    The Tribunal considers that those matters referred to in Consideration 1 and Consideration 3, taken together, weigh so strongly against the Applicant that, in this case, on all the material, the Tribunal is satisfied that there is no other reason to substitute a different decision.

24    This ground of review asserts that the Tribunal failed to discharge its statutory task in purporting to give effect to paragraph 13.3 of Direction 79 in relation to the evidence that was accepted, because:

(1)    the Tribunal made no express reference to the “degrees of tolerance” referred to in paragraphs 6.3(5) and 6.3(7) of Direction 79, when considering whether more or less weight should be given to the deemed community expectation reflected in paragraph 13.3;

(2)    [69] of the Tribunal’s decision does not implicitly demonstrate that the Tribunal had regard to the principles espoused in clauses 6.3(5) and 6.3(7); and

(3)    at [83] to [85] of its decision, the Tribunal did not address whether the deemed community expectation of non-revocation should be given more or less weight by reference to principles espoused in clauses 6.3(5) and 6.3(7).

25    The substance of this ground of review at least in part appears to rely upon the principles in paragraphs 6.3(5) and 6.3(7) themselves being mandatory relevant considerations, going beyond their role described in paragraph 7(1)(b) of informing the approach to the exercise of discretion by reference to express mandatory relevant considerations. Even if that overstates the applicant’s case, it is not in doubt that the Tribunal has a statutory obligation to comply with the requirements of Direction 79: FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555 at [34]. A failure by the Tribunal to appreciate the requirements of Direction 79 could amount to an error of law, leading to asking the wrong question and affecting the exercise or purported exercise of jurisdiction: Minister for Immigration and Citizenship v Obele [2010] FCA 1445 at [53], in turn citing Craig v South Australia (1995) 184 CLR 163 at 179. The issue raised by this ground is whether there was any such failure of compliance or understanding by the Tribunal.

26    In FYBR v Minister for Home Affairs [2019] FCAFC 185; 374 ALR 601, Charlesworth J observed:

[77]    In my view, the degrees of tolerance referred to in cl 6.3(5) and cl 6.3(7) are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion. They are factors that may be taken into account in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.

27    I agree with her Honour’s observation. The function of paragraphs 6.3(5) and 6.3(7) of Direction 79 is to give scope, in a principled manner, to soften the impact of an adverse finding that might otherwise be made by reference to the terms of the mandatory relevant considerations alone. However, these principles are not themselves mandatory relevant considerations. As Farrell J observed in Mataia v Minister for Immigration and Border Protection [2018] FCA 401:

[61]    The Minister correctly submits that the principle in cl 6.3(5) is a not a mandatory relevant consideration. Rather, having regard to cl 7.1, in determining whether to revoke a mandatory cancellation decision, the decision-maker must take into account the primary and other considerations set out in Part C “informed by” the principle set out in cl 6.3(5). Clause 6.3(5) is not apt to be “applied”, as it is a statement of likely societal attitudes about tolerance which “may” be afforded to serious conduct.

The same reasoning and conclusion applies to paragraph 6.3(7) of Direction 79.

28    Moreover, part of the general guidance in paragraph 6.2 states (emphasis added):

(3)    The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

This makes it clear that paragraphs 6.3(5) and 6.3(7) were no more than guiding principles and were not something that the Tribunal was obliged to consider. The only mandatory considerations were those set out in Part C.

29    As the Minister correctly points out, had either of paragraphs 6.3(5) or 6.3(7) of Direction 79 been intended to operate as a mandatory relevant consideration, rather than as principles intended to provide a framework for approaching the task of deciding whether to exercise the discretion to revoke a mandatory visa cancellation, they would be expected to have formed part of the primary consideration in paragraph 13.3(1).

30    The Tribunal was under no obligation to make any express reference to, nor to apply, the framework principles in paragraphs 6.3(5) and 6.3(7), to the consideration of the expectations of the Australian community mandated by paragraph 13.3(1), even if that generally “should” be done. Those paragraphs facilitated a departure from the strict and literal application of, relevantly, paragraph 13.3(1), but do not operate to fetter or constrain that application.

31    No error on the part of the Tribunal has been established. This ground of review must also fail.

Conclusion

32    As both grounds of review have failed, the originating application must be dismissed with costs.

Associate:

Dated:    29 July 2020