FEDERAL COURT OF AUSTRALIA

Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to file and rely on the amended notice of appeal but limited to ground 1.

2.    Appeal dismissed.

3.    The appellant pay the first respondent's costs of the appeal to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

Background

1    Mr Leota is a citizen of New Zealand who has been living in Australia since January 2015. At that time he was granted a special category (subclass 444) temporary visa, which permitted him to remain in Australia while a New Zealand citizen: cl 444.511 of Schedule 2 of the Migration Regulations 1994 (Cth).

2    In 2016 Mr Leota was charged with and convicted of a number of crimes. Most significantly, he was charged with and convicted of 38 charges relating to the trafficking, supply and possession of dangerous drugs (methylamphetamine). Convictions were also recorded for a number of other offences including possession of drug utensils, possession of a knife in a public place, possession of property suspected to be the proceeds of crime and the assault or obstruction of a police officer.

3    Mr Leota was sentenced in the Supreme Court of Queensland to two terms of imprisonment on the various drug charges, being for 5 years and 12 months respectively to be served concurrently, and was given credit for time served. The sentence was suspended and Mr Leota was released on 10 April 2018, having served 434 days in prison.

4    Relevantly, s 116(1) of the Migration Act 1958 (Cth) grants to the Minister the power to cancel a visa if satisfied as to any one of a number of grounds. Subject to certain exceptions that are not presently relevant, holders of permanent visas are not exposed to the risk of cancellation under s 116(1): s 117(2) of the Migration Act. By contrast, holders of a temporary visa such as a subclass 444 visa remain exposed to such risk.

5    On 11 April 2018 a delegate of the Minister gave notice to Mr Leota stating that he was satisfied that there appeared to be grounds for cancelling Mr Leota's visa under s 116(1)(e)(i) of the Migration Act. That provision is to the effect that the Minister may cancel a visa if he or she is satisfied that the presence of its holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community.

6    An interview was conducted with Mr Leota on the same day. Also on the same day, the delegate decided to cancel the visa and notified Mr Leota of the decision. The delegate relied on the evidence of Mr Leota's criminal convictions and, after referring to matters said to be in Mr Leota's favour, said that after weighing up all of the information he was satisfied that the grounds for cancelling the visa outweighed the reasons for not cancelling it.

7    The cancellation of Mr Leota's visa had the consequence that he became an unlawful non-citizen, liable to be detained under s 189(1) of the Migration Act and kept in immigration detention under s 196(1). Mr Leota was then taken into immigration detention.

8    Mr Leota sought review of the decision to cancel the visa in the Administrative Appeals Tribunal. The power for the Tribunal to review a decision of a delegate under s 116 is found in s 348 read with s 338(3) of the Migration Act.

9    On 11 July 2018 the Tribunal affirmed the delegate's decision to cancel Mr Leota's visa.

10    Mr Leota applied to the Federal Circuit Court of Australia for judicial review of the Tribunal's decision. On 10 June 2019 the primary judge refused his application and he now appeals to this Court from that decision.

11    Mr Leota was unrepresented before the primary judge. He is represented by pro bono counsel on this appeal. By his amended grounds of appeal Mr Leota seeks to rely on two grounds, neither of which were raised before the primary judge. Accordingly, leave is required to rely on them.

The proposed appeal grounds

12    The proposed grounds are to the effect that:

(1)    the Tribunal failed to carry out its statutory function in that it failed to identify the risk that Mr Leota was said to pose to the 'health, safety and good order of the Australian community'; and

(2)    the Tribunal failed to consider the legal consequences of its decision to affirm the cancellation of Mr Leota's visa in that although it referred to some of the effects of cancellation, it did not consider the statutory bar at s 48 of the Migration Act or Public Interest Criterion 4013.

Statutory context

13    Section 116(1) of the Migration Act relevantly provides:

Power to cancel

(1)    Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(a)    the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or

(aa)    the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or

(b)    its holder has not complied with a condition of the visa; or

(c)    another person required to comply with a condition of the visa has not complied with that condition; or

(d)    if its holder has not entered Australia or has so entered but has not been immigration cleared - it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or

(e)    the presence of its holder in Australia is or may be, or would or might be, a risk to:

(i)    the health, safety or good order of the Australian community or a segment of the Australian community; or

(ii)    the health or safety of an individual or individuals; or

(f)    the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or

(fa)    in the case of a student visa:

(i)    its holder is not, or is likely not to be, a genuine student; or

(ii)    its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or

(g)    a prescribed ground for cancelling a visa applies to the holder.

(emphasis added)

14    Section 116(1)(e) in its current form was introduced by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth). Prior to the amendment, the provision stated that the Minister may cancel a visa if he or she is satisfied that:

The presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community.

15    The amending Act introduced s 116(1)(e) in its current form, so that it is sufficient for the cancellation power to be enlivened if the Minister is satisfied that the visa holder 'is or may be, or would or might be, a risk'. The introduction of the words 'or may be' and 'or might be' clearly lowers the threshold for satisfaction as to risk.

16    The parties agree that the provision directs a two stage process. First, the repository of the power (in this case the Tribunal) must reach a state of satisfaction that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community. Second, the Tribunal has a discretion as to whether or not to cancel the visa. Accordingly, there remains a decisional discretion.

17    As to the first stage, the scope for review where the condition on which a power is exercised is the state of mind of the repository of power - such as 'satisfaction' - is more limited than where the condition is an objective fact. The principles were thoroughly reviewed by Derrington J in EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681 at [65]-[92], and include the following summary:

[70]    Thus, in conformity with the manner in which the legislature has granted power, any review by the Court, as to the existence of a subjective jurisdictional fact must be limited to determining whether the state of mind actually reached is one within the range which the legislature intended to be formed as a pre-requisite to the exercise of power. If there are errors in the process by which a state of mind is reached, such as by considering extraneous or irrelevant considerations or by excluding relevant considerations, the state of mind will not be that which the legislature impliedly requires. Similarly, if, in reaching the state of mind, the repository of power has asked themselves the wrong question as a consequence of a mistake of law, the state of mind is not that on which the exercise of power is conditioned. It might also be noted that the Parliament implicitly intends the requisite state of mind should be one which has been formed logically and rationally upon findings of fact which are logically formed upon probative evidence. Further, even if it cannot be detected that an error occurred in the application of law or consideration of the correct matters, if the conclusion is one which is wholly unreasonable, it can, nevertheless, be inferred that one of the identified error has occurred …

18    See also Ali v Minister for Home Affairs [2020] FCAFC 109 at [42] (Collier, Reeves and Derrington JJ); and Tsvetnenko v United States of America [2019] FCAFC 74; (2019) 269 FCR 225 at [28]-[29], [44] (Besanko, Banks-Smith and Colvin JJ).

Before the Tribunal

19    Mr Leota was represented before the Tribunal. He provided a written statement and written submissions and gave oral evidence.

20    Prior to the hearing Mr Leota was informed that he was invited to comment on police records of his Queensland criminal history on the basis that the information in the records 'might suggest that his presence in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community'. Those records included detailed reports of the circumstances of his offending. Relevantly, the 38 separate incidents of trafficking, supply and possession of methylamphetamine are summarised, and the reports also include a description of Mr Leota's role and the network in which he operated.

21    In his statement, Mr Leota relevantly said:

[28]    I have no prior drug-related criminal history, and I am not a violent offender. I am not a risk of harm to the good order or safety of the community because I have learnt from the mistakes of my past and am committed to refraining from drug use, as well as the previous criminal activities I somehow found myself in.

…

[31]    Being separated from my family has been extremely difficult. The reality of my actions and my situation became very real when the effects of my drug taking wore off. I have come to learn first-hand that kicking a drug habit is not easy, but jail cleaned me up and made me realise that I need to get back on the straight and narrow - for the benefit of myself and ultimately the wellbeing of my family, as well as the community in large as I now appreciate the wider community issue of drugs and its impacts on its victims.

22    The written submissions before the Tribunal addressed his drug offending and submitted that the root cause of his offending had been addressed. It was submitted that:

[24]    While the Applicant has not been convicted of any offence involving violence, the Applicant accepts that personal physical violence is not the only conduct that might pose a threat to the safety or good order of the Australian community.

[25]    The Applicant submits that the following factors are relevant to the Tribunal's determination of whether the ground for cancellation exists:

(a)    The Applicant does not have a history of drug-related offending; and committed the first of this type of offence aged 34 years of age;

(b)    the Applicant's offending began in the context of:

(i)    methamphetamine dependency, which the Applicant has sought to address by engaging in rehabilitation programs, which he intends to continue if he is allowed to remain in the Australian community and in respect of which he now has the support of community organisations;

(ii)    stress induced by his inability to obtain stable and purposeful employment and temporary separation from his wife and son after moving from overseas with the intention of 'setting up' before his family also made the transition to Australia;

(iii)    grief following the death of a close family member, which was amplified by his guilt of non-contact with his family in recent months.

[26]    The Applicant submits that, taking all of the above factors into account, there is no proper basis to be satisfied that the Applicant's continued presence in Australia is a risk to the health and safety of the Australian community. Specifically, it is submitted that the Applicant's commitment to treatment for his methamphetamine addiction, the presence of his wife and son in Australia, and the resolution of steady family income (his wife has obtained full-time employment) and home addresses the key root causes of his criminal offending. With those factors now being addressed, it is submitted that the Applicant is in a position to return to being the model citizen, husband and father he was prior to the start of his methamphetamine addiction in 2015 and 2016.

[27]    In circumstances where the Applicant has never used dangerous drugs or previously had a drug addiction , there is no reasonable basis on which it could be found that the Applicant's character is typified by criminal activity.

23    Further, the submissions raised the question of the legal consequences of cancellation, stating:

[51]    If the Applicant's visa is cancelled, he will remain in immigration detention until his removal from Australia, subject to exercising any appeal or review rights.

[52]    Further, if the Applicant's visa is cancelled under s 116(1)(e) he will be the subject of a three year exclusion from Australia through the operation of [Public Interest Criterion] 4013(3).

[53]    Additionally, if the Applicant is removed from Australia as a result of the cancellation of his visa, he will become a 'behaviour concern non-citizen' for the purposes of s 32(2)(a)(ii) of the Act and be permanently ineligible to be granted a subclass 444 visa at any time in the future. This ineligibility will significantly restrict the Applicant's ability to obtain a visa allowing him to again reside in Australia with his children on a full time basis at any point in the future.

24    Mr Leota's submissions also refer to the Procedures Advice Manual (PAM3) issued by the Department of Home Affairs. PAM3 is said to comprise guidance to decision-makers in determining whether to cancel a visa. Relevant extracts that address visa cancellation under s 116(1)(e) (not all of which were referred to by Mr Leota) are as follows:

Identification of risk

…

For the ground at s 116(1)(e) to be made out it is for the delegate to clearly identify the risk that the person's presence in Australia poses to the health, safety or good order of the Australian community (or a segment of the Australian community, or to the health or safety of an individual or individuals). Delegates need to articulate the specific details or particulars of the risk.

…

Risk to safety

Meaning

The term 'safety' has its ordinary meaning which includes 'freedom from injury or danger'. Accordingly, the risks from which the Australian community, a segment of the community, an individual, or individuals, are to be protected include injury, danger, and other forms of harm (such as physical harm).

Criminal charges

The fact that prosecuting authorities have concluded that there is a proper basis to bring a charge or charges against a visa holder may, depending on the nature of the offence(s), and the circumstances of the case, be sufficient to support the state of satisfaction required by s 116(1)(e).

Delegates must have regard to the nature of the offence and draw a logical or rational link to how the alleged offending poses a risk to the health, safety or good order of the Australian community (or the health or safety of an individual(s)). For example, if a visa holder is charged with the commission of a violent offence, delegates must draw a connection between the nature of the alleged offence and the specified risk to health or safety that it poses. Property offences are not likely to pose a risk to the health or safety or good order of a segment of the Australian community or to the health or safety of an individual or individuals.

A charge, of itself, may not be sufficient to support the requisite satisfaction required by s 116(1)(e). Generally, delegates need to consider additional contextual information when deciding whether the existence of the charges justifies an inference that the visa holder engaged in the conduct charged.

…

It is not appropriate that s 116(1)(e) be considered in respect of allegations of low level or minor criminal behaviour.

…

Charges must not be equated with guilt

Delegates also need to be aware that, unlike a conviction, a charge cannot be equated with guilt. They must not use language that suggests the person has committed the offence in question (only that they are charged with the offence in question).

…

Drug-related offending

If a person has been charged with offences relating to the manufacture or possession of large quantities of illicit substances, a delegate may be able to be satisfied that the s 116(1)(e) ground exists if they are able to draw a logical link between the alleged commission of the offences and a risk to the Australian community, or a segment of the community.

Such a link to the risk of causing harm to the community may be drawn, for example, if a visa holder has allegedly produced drugs in sufficiently large quantities. However, if a person has been charged and their manufacturing equipment has been confiscated by the police, it may not be possible to make an argument that the person poses a risk to the community.

…

Risk to good order

…

Good order

'Good order', in the context of this provision, is concerned with activities which have an impact on public activities or which manifest themselves in a public way, for example, the risk of an adverse reaction by certain members of Australian society to the visa holder's presence in Australia.

A risk to the good order of the Australian community might occur if there is an element of a risk that a visa holder's presence in Australia might be disruptive to the proper administration or observance of Australian law or create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.

…

Tribunal's reasons

25    The Tribunal commenced by addressing the content of s 116(1)(e)(i):

[6]    Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116((1)(e)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

26    This is followed by the heading 'Does the ground for cancellation exist?'.

27    The Tribunal considered matters relating to the construction of s 116(1)(e)(i) (at reasons [7]-[8]). It cites the reasons of Judge Smith of the Federal Circuit Court in Gong v Minister for Immigration and Border Protection [2016] FCCA 561 at [41] to the effect that the fact that s 116(1)(e) is engaged where the Minister is satisfied that a visa holder's presence 'may be a risk' to certain matters means that there does not have to be any direct, solid or certain foundation before the power to cancel a visa can arise.

28    It then considered the meaning of 'good order of the Australian community', citing the manner in which that phrase was explained by Goldberg J in Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80 (discussed further below). Relevantly, the Tribunal stated that the expression good order 'requires that there be an element of risk that the person's presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australia society'.

29    The Tribunal then addressed (at [9]-[12]) Mr Leota's criminal offending, recording the various convictions and the sentence that I have set out above.

30    The Tribunal referred to Mr Leota's claims that he turned to drugs when he fell in with a wrong crowd when he came to Australia; that his wife has employment in Australia; that he has a second child born in Australia with another partner; that his wife claims Mr Leota's absence will have a negative effect on their child; and that his wife states that if Mr Leota is returned to New Zealand she will be unable to follow him within three years because of the stress and cost of an additional move (at [13]-[15]).

31    The Tribunal then referred to unsworn statements from Mr Leota, his wife and other witnesses who stated that Mr Leota has been reformed and rehabilitated; that he has recommitted to his Christian faith; that he will continue to work with his psychologist; that he has undertaken a number of remedial courses; and he will never re-offend (at [16]).

32    The Tribunal then stated:

[17]    The Tribunal finds that the applicant's presence in Australia, as a dealer in dangerous drugs, is or may be, or would or might be, a risk to the health, safety or good order of the Australia community or a segment of the Australian community.

[18]    For these reasons, the Tribunal is satisfied that the ground for cancellation in s. 116(1)(e)(i) exists. As that ground does not require mandatory cancellation under s. 116(3), the Tribunal must proceed to address matters relevant to the exercise of its discretion.

33    This is followed by another heading, being 'Consideration of discretion'.

34    Under this heading the Tribunal noted there were no matters referred to in the Migration Act or Migration Regulations that were mandatory considerations for the purpose of its task, but said that it had regard to a range of matters, taking into account the evidence of Mr Leota and matters referred to in PAM3.

35    The Tribunal referred to the following matters:

(a)    the hardship that may be caused to Mr Leota, his family and son should he depart Australia, although it said that there was no evidence apart from Mr Leota's own statements that he financially supports his family;

(b)    Mr Leota's evidence that he had a second child with another woman and that it was his intention to support the child (although Mr Leota's wife did not accept that Mr Leota was the child's father);

(c)    that Mr Leota mostly lived away from his home at a room above his workplace and he denied dealing drugs at home;

(d)    the stress that the visa cancellation process and the continuing incarceration of Mr Leota places on his wife;

(e)    Mr Leota's desire to stay in Australia to be closer to his family, although the Tribunal noted that he had been in Australia at that time for some three and a half years and had spent a significant amount of that time incarcerated;

(f)    the presence of other family members in Australia, although noting that Mr Leota also has family members in New Zealand;

(g)    the evidence of Mr Leota's brother and niece who reside in Australia, who said that they only saw the appellant at significant family events and that they hardly spoke, although it noted that Mr Leota said that he did not want to see family members as they would know that he was on drugs and he wished to hide his drug use from them;

(h)    the difficult choice to be faced by Mr Leota's family if he were deported as to whether to remain in Australia or travel to New Zealand;

(i)    that the appellant interacts infrequently with his wider family; that none knew of his drug taking or dealing until he was arrested; that he did not seek their support or talk to them about his difficulties settling in Australia; and that he lived only part time with his family;

(j)    his wife was capable of looking after herself and her son financially without the assistance of Mr Leota;

(k)    there was a lack of evidence as to Mr Leota providing financial support to his family;

(l)    whilst the rights of the Mr Leota's child were to be considered, as his wife and child had at that time lived in Australia for only two and a half years, it would not be a particular hardship to return to New Zealand if they chose; and

(m)    the best interests of children including the expectation that they have a safe and nurturing household, noting that whilst Mr Leota claimed he never dealt in drugs at home or gave out his address, the fact that he associated with people who traded in dangerous drugs and drug debts and who could potentially locate him was a matter that weighed in favour of visa cancellation.

36    It is useful to include the following extract insofar as it indicates that the Tribunal recorded Mr Leota's evidence of his conduct:

[30]    … In this case, the Tribunal notes that the applicant was dealing in commercial quantities of dangerous drugs. He also told the Tribunal that for a period of time he acted as [the group's 'debt collector']. He said this entailed collecting money from people who purchased drugs from him and others in the group. Asked if such collections involved violence on his part he denied this. Nevertheless, the involvement of the applicant with a group of people who traded in dangerous drugs and for whom he both sold drugs and collected drug debts, is an activity that attracts people who are generally not law abiding and frequently unpredictable and include both users and suppliers.

37    The Tribunal then considered the consequences of Mr Leota's visa cancellation, stating:

[32]    The Tribunal has also considered the consequences of the applicant's visa remaining cancelled. If the applicant's visa remains cancelled it is likely the Department will arrange for his return to New Zealand rather than grant him a bridging visa. If this is the case, the applicant will be removed from Australia under s.198 of the Act which means he would fall within the definition of a behaviour concern non-citizen in s.5(1)(d) and would be barred from returning to Australia on a TY444. There may be other options available to him but because of his criminal convictions have attracted a significant sentence of over 5 years, he would likely face refusal under s.501 of the Act. While it is difficult to speculate on what the Department might do in the applicant's particular circumstances, the Tribunal is mindful that this remains a possibility.

38    The Tribunal under the heading 'Conclusion' said the following:

[33]    Having regard to all of the material before the Tribunal and weighing those matters carefully, the Tribunal concludes that it will not exercise its discretion to reinstate the applicant's visa. The Tribunal has given significant weight to the seriousness and nature of the offending and the amount of time that the applicant has been sentenced for those crimes. While the Tribunal accepts that the applicant has made some attempts to rehabilitate, the Tribunal is not satisfied that those efforts would ensure that the applicant would not return to his previous life of drug taking, dealing and debt collection. He claims that he has the support of his broader family and they will ensure that he will remain 'clean'. The Tribunal has considered that explanation and does not give it much weight. The applicant's family has been in reasonable proximity but neither he nor they appear to have had any significant involvement in each other's lives. The Tribunal is not satisfied that the applicant would or could rely on his family to ensure that he no longer returns to that life.

[34]    The Tribunal is not satisfied that the efforts of the applicant overcome the Tribunal's concerns that the applicant's presence in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australia community or a segment of the Australian community.

[35]    Against this, the Tribunal has have had regard to the rights of the applicant's son and the hardship that will be faced by the applicant and his family caused by separation and the potential mandatory legal consequences arising from this cancellation.

Federal Circuit Court

39    Mr Leota was unrepresented before the primary judge. His grounds of review were long and detailed and may be distilled to an allegation that the Tribunal failed to give proper regard to representations that were made before it and denied Mr Leota procedural fairness. The grounds are not relied upon for the purpose of this appeal and it is not necessary to address them. The primary judge reviewed the Tribunal's reasons in some detail and found that Mr Leota had failed to demonstrate jurisdictional error on the part of the Tribunal.

Leave to raise new grounds

40    The Minister opposes leave being granted to Mr Leota to rely on the proposed new grounds of appeal. There was no dispute between the parties as to the relevant principles that govern circumstances in which an appellant can raise new grounds of appeal that were not before the primary judge. Those principles are well-established and are collected in a number of authorities, including by Colvin J in CHZ19 v Minister for Home Affairs [2019] FCA 914 at [31]-[39].

41    Leave to argue a new ground of appeal will only be granted where the Court considers that it is expedient in the interests of justice to do so: O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 at 319; and VAUX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). Where there is no adequate explanation for the failure to take the point and it seems of doubtful merit, leave should generally be refused: VAUX at [46]-[48]. The Court will consider whether there is an acceptable explanation for why the grounds were not raised below: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [166].

42    As the Full Court explained in Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; (2017) 250 FCR 510 at [20], 'generally speaking, leave is more likely to be granted to permit a fresh issue to be raised on appeal where the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy'.

43    The Court will consider the merits of the proposed grounds of appeal: BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418 at [66]. This has been described as 'an important consideration': Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; (2017) 258 FCR 1 at [33]. The assessment of merits should occur at a 'reasonably impressionistic basis': AWV18 v Minister for Home Affairs (No 3) [2020] FCA 365 at [55]; see also MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [29].

44    The Court will consider whether the respondent would be prejudiced by the grant of leave to rely upon a new ground of appeal: Han v Minister for Home Affairs [2019] FCA 331 at [20]. If leave is granted to argue a new point on appeal, the respondent is denied some right to appeal because any further appeal lies only by grant of special leave by the High Court: AAM15 v Minister for Immigration and Border Protection [2015] FCA 804; (2015) 231 FCR 452 at [14]. Further, Courts have cautioned that to allow an appellant to raise new grounds of appeal would be to defeat the statutory scheme by which the relevant jurisdiction is conferred on the Federal Circuit Court, and not on the Federal Court: Han at [2]; and SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [31].

45    As noted above, Mr Leota was not represented before the Federal Circuit Court. He has filed an affidavit in this Court in support of his application to rely on new grounds of appeal in which he explains that he attempted to obtain legal representation over a period of time without success. He identifies the names of law firms he approached and states that he also contacted Legal Aid and the Queensland Law Society seeking a referral to a lawyer that might assist him. Although there were some periods of inactivity, Mr Leota does seem to have made genuine attempts to seek legal representation for the purpose of the hearing before the primary judge, but he was not successful in those attempts. It is apparent from the grounds of review that Mr Leota sought to rely upon before the primary judge that he did not appreciate the types of matters that might be raised in a review application, a situation not uncommon for a litigant in person.

46    The proposed new grounds of appeal were drafted when Mr Watkins agreed to provide his services on a pro bono basis to Mr Leota following a referral from this Court. Mr Leota does not seek to rely on new evidence for the purpose of the new grounds of appeal. I acknowledge the prejudice to the Minister in that a grant of leave by this Court has consequences in terms of the Minister's more limited rights of appeal. However, proposed ground 1 raises questions as to the construction of s 116(1)(e) in circumstances where that provision has rarely come before this Court. On first impressions ground 1 is arguable and in light of the serious consequences for Mr Leota should his visa be cancelled and in the interests of justice, there should be a grant of leave. The consideration of ground 1 below reflects why I have formed the view that the ground is arguable. Counsel for the Minister said that if I were inclined to grant leave, then because the Minister had the opportunity to make full written and oral submissions on the grounds, the Minister was content that I should proceed to deal with whether or not the appeal should be allowed or dismissed.

47    The position with respect to ground 2 is different. For reasons that will be seen below, I do not consider ground 2 has sufficient merit that the interests of justice would be served by the grant of leave to rely upon it.

Ground 1

Appellant's submissions

48    Mr Leota submits that the Tribunal erred in its application of s 116(1)(e). He contends that it failed to identify the particular risk to the health, safety or good order that Mr Leota is said to pose or whether the risk is to the community generally or a particular segment of it. It is said that each of 'health', 'safety' and 'good order' are discrete risks that the Tribunal is obliged to consider and identify separately. Mr Leota submits that the Tribunal did no more at [17] of its reasons than recite the provision.

49    Mr Leota relies in this regard on the extract from PAM3 that refers to the need to expressly identify risk and to draw a logical or rational link to how the alleged offending poses a risk. He submits that unless the risk is properly identified, the Tribunal cannot proceed to exercise properly its discretion, as the measure against which discretionary factors are weighed is unknown. Mr Leota also submits that the Tribunal's reasons indicate that it failed to consider properly the claims made by Mr Leota, consideration that should have been undertaken in accordance with the guidance provided by Minister for Home Affairs v Omar [2019] FCAFC 188 at [36]-[39] (a case in which the Court considered the obligation on a decision-maker to give meaningful consideration to a clearly articulated and substantial or significant representation made by a former visa holder in the context of s 501CA of the Migration Act).

Authorities

50    There is little authority on s 116(1)(e), but two cases provide important guidance. The first is Tien, to which the Tribunal referred. The second is Newall v Minister for Immigration and Multicultural Affairs [1999] FCA 1624. At the time Tien and Newall were decided, s 116(1)(e) of the Migration Act was in the narrower terms set out above (at [14]) but I do not consider that detracts from their authority

51    In Tien, Goldberg J said at 93-94:

… The expression 'good order of the Australian community' is not defined in the Act. I was not referred to any judicial consideration of this particular expression. It must be construed in the context in which it appears, that is, juxtaposed to the words 'the health, safety' of the Australian community. In that context it has, in my opinion, a public order element, that is to say it requires there to be an element of a risk that the person's presence in Australia might be disruptive to the proper administration or observance of the law in Australia or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society. It involves something in the nature of unsettling public actions or activities. For example, a person who came to Australia and was found to be committing in Australia serious breaches of the law or criminal acts or was inciting people in the community to violence could properly be said to be a person whose presence in Australia is a risk to the good order of the Australian community. It should be emphasised that it must be the presence of the visa holder 'in Australia' which constitutes or would constitute the risk to the good order of the Australian community.

(emphasis added)

52    In Newall, the applicant was granted a visitor visa prior to departing the United Kingdom for Australia. He expressed concern to the Australian High Commission in London that he was not asked about his status as part of the visa application process and disclosed that he had been convicted of a crime in the United Kingdom and spent three years in prison. The crime of which he was convicted was being an accessory after the fact to his brother's murder of their parents. He had come across the murder scene on returning to his house and assisted his brother to avoid arrest. His visa was then cancelled pursuant to s 116(1)(e).

53    Justice Branson cited and agreed with Goldberg J's construction of the expression 'good order'. Her Honour said:

[23]    … It was submitted on behalf of the applicant that '[t]he delegate failed to address the correct question by looking only to the fact of the applicant's past conviction and sentence rather than to the risks that would be presented by the applicant's presence in Australia.' This submission I understand to be directed to the satisfaction of the delegate that there was a ground for cancelling the applicant's visa under s 116 of the Act.

[24]    By her letter of 17 December 1998, the delegate expresses her satisfaction 'that the presence of [the visa] holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community.' These words suggest that the delegate did not make the error which the applicant attributes to her (see s 116(1)(e)).

…

[30]    I am not persuaded that it was not open to the delegate to be satisfied that the presence in Australia of a person who has relatively recently been convicted of being an accessory after the fact to the murder of his parents would be a risk to the 'health, safety or good order of the Australian community' within the meaning of s 116(1)(e) of the Act. In particular, it seems to me, it was open to the delegate to be satisfied, having regard to the seriousness of the offences committed by the applicant, and the fact that he was, as it seems, still on parole licence in respect of such offences in December 1998, that the presence of the applicant in Australia as an authorised visitor might 'create difficulties … in relation to the values, balance and equilibrium of Australian society' (per Goldberg J in Tien at p 419). Such satisfaction might be based on the risk of an adverse reaction by certain members of the Australian society to his presence in this country in the circumstances referred to above, rather than on concern about the likely or possible conduct of the applicant in Australia.

54    The role of PAM3 has been the subject of consideration by the courts. PAM3 itself provides that it is to be taken into account by decision-makers but not given the force of law: see COT15 v Minister for Immigration and Border Protection [2015] FCAFC 190; (2015) 236 FCR 148 at [12].

55    In El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43 Gray J stated:

[45]    In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 (2000) 61 ALD 641 at [28]-[29] and Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 at [15]-[16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39-40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.

56    It is also acknowledged by the courts at a general level that dealing in dangerous drugs such as methylamphetamine causes harm to the Australian community. See, for example, The Queen v Roe [2017] NTCCA 7; (2017) 40 NTLR 187 (Grant CJ, Southwood J):

[47]    The supply and use of methamphetamine are matters of widespread concern in the community. Such offending is prevalent. The supply and use of the drug has an immediate and primary impact on individual users who suffer adverse physical and mental health outcomes. Methamphetamine use also has obvious and predictable adverse consequences for the family of the individual user. The proliferation of the drug is also detrimental to the wider community, as use of the drug quickly leads to antisocial and criminal conduct including violent behaviours. As a consequence, punishment, denunciation and deterrence are the main sentencing objects.

57    Although in the context of sentencing, it has also been said that each possession of drugs with intent to supply is 'a separate occasion of potential harm to the community from distribution of that particular drug': Borbil v The State of Western Australia [2007] WASCA 24 at [88] (Steytler P, Wheeler and McLure JJ agreeing).

Consideration

58    Having closely considered its reasons, it seems to me that the Tribunal understood and carried out its statutory task as required for the purpose of the exercise of the power under s 116.

59    It is true, as Mr Leota contends, that the Tribunal does not specify at [17] whether the relevant risk is to health, safety or good order. However, at [8] of its reasons it expressly considers the meaning of 'good order' and refers to Tien. Had the Tribunal's focus been on 'health' or 'safety', there would have been no need to address the meaning of 'good order'. The Tribunal does not separately address 'health' or 'safety'. In saying that, I note that there may be circumstances where there is an overlap and the nature of a risk may be such that it is a risk to health, safety and good order. In this case, however, it is apparent that the Tribunal identified that the risk it perceived was to good order.

60    It also considered the content of the relevant risk. It recites Goldberg J's explanation in Tien that it requires there to be an element of a risk that the person's presence in Australia might be disruptive to the proper administration or observance of the law in Australia or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society. As the Tribunal immediately proceeds to recite Mr Leota's criminal offending, I consider it is implicit that the Tribunal considered that the element of the risk described by Goldberg J was satisfied by the disruption to the observance of the law in Australia as reflected in Mr Leota's status as a convicted dealer in dangerous drugs.

61    It is to be recalled that Goldberg J said, by way of example, that a person who came to Australia and was found to be committing in Australia serious breaches of the law or criminal acts could properly be said to be a person whose presence in Australia is a risk to the good order of the Australian community.

62    Dealing in dangerous drugs constitutes serious criminal conduct. Dealing in methylamphetamine, including in commercial quantities, facilitates the spread of dangerous drugs into the community. Such drugs are included within the statutory definition of 'dangerous' drugs for a reason (Drugs Misuse Act 1986 (Qld): sch 1 and 2 of Drugs Misuse Regulation 1987 (Qld)). They impact not only on those who use them but on the broader community. So much is to my mind obvious and notorious. The Tribunal specifically brought to Mr Leota's attention his police records for the purpose of the hearing before it. Mr Leota acknowledged in his submissions 'the wider community issue of drugs and its impacts on its victims'. Whilst Mr Leota emphasises that all 38 drug-related offences of which he was convicted were dealt with at the same time by the Court and were part of what could be seen as comprising a 'first offence', such submission ignores Mr Leota's willingness to repeat his conduct on many separate occasions and on different dates.

63    Having regard to the nature and seriousness of Mr Leota's offending, it seems to me that the Tribunal was entitled to rely on his status as a dealer in dangerous drugs as the source of risk to the good order of the Australian community. I accept that 'risk' has an element of futurity to it such that reliance on past offending alone may not be sufficient, depending on the circumstances, to justify cancellation of a visa. However, in the case of a person with convictions for dealing in dangerous drugs on a large number of occasions and in commercial quantities, it was open for the Tribunal member to be satisfied that there was a risk that there may be further criminal conduct or non-observance of the law and so risk to the good order of the Australian community. To my mind the fact that the Tribunal had regard to such matters is implicit in its finding at [17] and its express reference to the applicant's presence in Australia 'as a dealer in dangerous drugs'.

64    The Tribunal's reasons expressed in its conclusion (at [34]) confirm that the Tribunal had such risk in mind. Having had regard to matters relevant to the prospect of re-offending on the part of Mr Leota (at [33]), the Tribunal was not persuaded that its concerns as to risk were overcome.

65    As I have said, it does not follow that reference by a decision-maker to a past conviction will of itself necessarily be sufficient to disclose the relevant risk. For example, a conviction for a minor crime is highly unlikely to be sufficient to explain the basis for a finding by the Minister of risk to good order as explained in Tien. Further, where the crime is more serious but of a type that is unlikely to be repeated by an offender, it may well be necessary for the Minister to set out in some detail the basis upon which it is contended that such conviction supports a finding of risk. Examples might include a criminal conviction following a car accident or a single episode of assault against an abusive family member with whom the offender no longer has any contact.

66    This approach is not inconsistent with PAM3, even accepting that it is not binding on a decision-maker. PAM3 adopts the language of Tien as to 'good order'. The parts of PAM3 that refer to criminal conduct refer to charges, not convictions. One can well understand why greater caution is required in cancelling a visa on the basis of charges that are not yet proved, as against convictions. If the Minister seeks to rely on charges it may be necessary to explain in some detail the basis upon which risk is perceived and to whom.

67    This is not such a case. Nor is it a case where a detailed express explanation or linking of the convictions to risk was required. The nature of the offending is serious, the risk to the community from such offending is obvious and it was open to the Tribunal to be concerned as to ongoing risk in light of the nature and extent of the criminal conduct on Mr Leota's part. The written reasons of the Tribunal reflect such a process of reasoning.

68    It is also true, as Mr Leota submits, that the Tribunal did not specify whether it was concerned with the risk to the Australian community as a whole or segments of it. I do not consider in the circumstances of the relevant risk in this case that it was obliged to do so. As explained in The Queen v Roe and Borbil, it is recognised that the supply of drugs such as methylamphetamine has an impact on the wider community and also users and families. In other cases, depending upon the relevant charge or conviction, it may well be necessary for a more precise identification of whether the risk is to the Australian community or a particular segment of it, but again, this is not such a case.

69    For completeness, I acknowledge that Newall is authority for the view that a single past conviction, and even in circumstances where the criminal conduct is highly unlikely to be repeated, may be sufficient to satisfy a decision-maker of relevant risk. The risk identified in that case - an adverse reaction by certain members of the Australian society to the offender's presence in Australia - is not a risk foreshadowed by the Tribunal in this case. However, one can understand why Branson J was careful in Newall to identify and explain the nature of the risk in that case, because it was by no means clear that risk might arise from the likely or possible conduct of the visa holder had he been permitted to come to Australia. The circumstances of the offending, and so the need for a precise explanation of the risk, are distinguishable from those with which the Tribunal was concerned in the present matter.

70    The Tribunal's reasons, having regard to the manner in which it first isolated and addressed the question of whether a ground for cancellation existed, disclose that it understood the nature of its statutory task. It identified that it was concerned with risk to good order, it considered the meaning of that expression and it had regard to the serious nature of Mr Leota's offending. It identified that it needed to be satisfied as to the question of risk as set out in s 116(1)(e)(i) before moving to consider its decisional discretion. Its reasons indicate that it identified the risk that Mr Leota posed and it formed the state of satisfaction that was required for the purpose of s 116.

71    Counsel for Mr Leota also submitted that the Tribunal's reasons indicate a lack of active and intellectual engagement with the question of risk, relying on Omar (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) in which the Full Court emphasised in the context of s 501 of the Migration Act the obligation on the Minister to engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a request to revoke a mandatory visa cancellation decision.

72    It must be recalled that the statement of reasons of the Tribunal has to be read fairly and not with an eye keenly attuned to the detection of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272. A conclusion that the decision-maker has not engaged in an active intellectual process 'will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicant carries the onus of proof': Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [48].

73    The determination of whether the decision-maker has given active intellectual consideration to a representation will frequently be a matter of impression reached in light of all of the circumstances of the case. In this context, whether or not the reasons of the decision-maker fall 'on the wrong side of the line' will be a matter of inference to be drawn in particular from the manner in which the representation was advanced, and the structure, tone and content of the decision-maker's reasons: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [49]; and Navoto v Minister for Home Affairs [2019] FCAFC 135 at [89] (Middleton, Moshinsky and Anderson JJ). Each case necessarily turns on its own particular facts and circumstances as established by the evidence: Omar at [36(e)].

74    I accept that the issue of the risk of re-offending was raised by Mr Leota's submissions before the Tribunal (see [21] above). Even assuming, as submitted by Mr Leota, that the principles as discussed in the context of representations for the purpose of s 501 apply for the purpose of s 116, it is apparent that the Tribunal had regard to evidence relevant to that question. Whilst the evidence was addressed expressly in that part of the reasons dealing with the exercise of discretion (at [33] of the Tribunal's reasons), as I have said, this is not a case where a detailed express explanation or linking of the convictions to risk was required for the purpose of the first step required under s 116(1)(e). It was open to the Tribunal to be concerned and satisfied as to ongoing risk in light of the nature and extent of the criminal conduct on Mr Leota's part. Having regard to the circumstances of the offending and the reasons as a whole, the fact that it is not expressly referred to as part of the finding at [17] of the Tribunal's reasons (or in a preceding paragraph) does not establish a lack of sufficient engagement with the issue. To find otherwise in those circumstances would construe the Tribunal's reasons too minutely, contrary to the approach endorsed in Wu Shan Liang.

75    In my view jurisdictional error is not established and ground 1 is therefore not upheld.

Proposed ground 2

76    Mr Leota submits that although the Tribunal referred to some of the effects of cancellation, it did not consider the statutory bar at s 48 of the Migration Act or Public Interest Criterion 4013.

77    An administrative decision-maker may commit jurisdictional error if they do not take account of the legal consequences of the decision: NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [8]-[10], [17] (Allsop CJ and Katzmann J); and Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [84], [86] (Kenny, Flick and Griffiths JJ). Further, jurisdictional error may be committed if, in addressing the legal consequences of a decision, there is a material misunderstanding as to those consequences such that there is a failure to carry out the statutory task: Re Patterson; Ex parte Taylor [2001] HCA 51; (2001) 207 CLR 391 at [193]-[196] (Gummow and Hayne JJ); and BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 at [62] (Bromberg and Mortimer JJ).

78    In summary, s 48 of the Migration Act prevents applications being made for a substantive visa while in Australia if an applicant's visa has been refused or cancelled during their stay. The Tribunal's reasons (see [37] above) indicate that it understood the operation of s 48. So much is implicit in its finding that if his visa remains cancelled, Mr Leota will likely be removed under s 198 of the Migration Act rather than being granted a bridging visa. It is apparent that the Tribunal understood that Mr Leota would have very limited rights to apply for another visa whilst he remained onshore, and so he would have very limited prospects of being granted a bridging visa to enable such an application to be processed. Its reference to him being removed from Australia necessarily proceeded on the basis that it understood that it was unlikely a bridging visa would be granted.

79    Nor do I consider the Tribunal overlooked the operation of Public Interest Criterion 4013, which was referred to in Mr Leota's written submissions before the Tribunal. In summary, that criterion would prevent Mr Leota entering Australia for a three year period unless there were compassionate or compelling grounds. The Tribunal recorded in its reasons that Mr Leota's wife would not be in a position to visit him in New Zealand for three years, suggesting it had regard to the potential for them to be separated physically for that period (see [30] above).

80    The Tribunal rightly did not discount absolutely the potential for Mr Leota to apply for a visa, noting 'there may be other options available to him'. There is no reason that an application based on compelling or compassionate grounds is not subsumed in that finding. However, the Tribunal also understood that there was the possibility that if the applicant applied for a visa, it might not be granted due to the operation of s 501, having regard to his criminal record. That the Tribunal understood there was a discretion was reflected in its finding that it was 'difficult to speculate' as to what the Department might do in Mr Leota's particular circumstances.

81    There was no material error in the Tribunal's approach. It directed its attention to both deportation and the prospect of difficulties with any further application for a visa. It had regard to the legal consequences of its decision, which could not be predicted with certainty. I do not consider that ground 2 is reasonably arguable.

Orders

82    It follows that I would grant leave for Mr Leota to advance ground 1 as set out in his amended notice of appeal, but I would dismiss the appeal.

83    I would not grant leave with respect to proposed ground 2.

84    The parties agree that costs should follow the event. Accordingly Mr Leota should pay the Minister's costs to be assessed if not agreed.

85    Finally, the Court expresses its gratitude to Mr Watkins for accepting the brief as pro bono counsel for Mr Leota. Although his arguments have not been met with success, they disclosed considerable care and thought.

Associate:

Dated:    5 August 2020