FEDERAL COURT OF AUSTRALIA

Dao v Minister For Home Affairs [2020] FCA 1136

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The Applicant pay the First Respondent’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

ANASTASSIOU J:

1    The Applicant, Mr Dao, applied for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal, which affirmed a decision of a delegate of the First Respondent, the Minister for Home Affairs, to cancel the Applicant's Class UF Subclass 309 Spouse (Provisional) visa. The Tribunal filed a submitting notice save as to costs and took no part in the proceedings.

BACKGROUND

2    The Applicant was born in 1977 and is a citizen of Vietnam. In April 1998 he entered Australia on a student visa. He was granted a bridging visa which expired in 2000. From that time until his departure in 2008, the Applicant remained in Australia without a visa. In February 2009, pursuant to the visa the subject of this application, the Applicant returned to Australia to reside with his wife who is an Australian citizen. In 2010 the Applicant’s daughter was born. She is also an Australian citizen.

3    In June 2013 the Applicant pleaded guilty to trafficking a large commercial quantity of drugs of dependence, and was sentenced to 18 years imprisonment.

4    On 21 December 2015 the Applicant's visa was cancelled on character grounds pursuant to the mandatory requirement contained in s 501(3A) of the Migration Act 1958 (Cth).

5    On 18 January 2016 the Applicant applied to have the cancellation revoked under s 501CA(4) of the Migration Act. That subsection provides:

…

(4)     The Minister may revoke the original decision if:

(a)     the person makes representations in accordance with the invitation; and

   (b)     the Minister is satisfied:

(i)     that the person passes the character test (as defined by section 501); or

(ii)     that there is another reason why the original decision should be revoked.

6    On 1 August 2016 the Applicant’s representatives wrote to the Minister. Under the heading “Procedural fairness/timing of the decision” they stated:

Our client should be afforded the remainder of his sentence to further improve and demonstrate his character qualities. To make a decision this far in advance, which is contrary to our client’s visa status would be procedurally unfair. As his visa has already been cancelled we submit that withholding the decision is of no detriment to the Minister or the Australian community.

7    On 27 February 2018 the Minister provided notice to the Applicant of his refusal to revoke the cancellation.

8    On 8 March 2018 the Applicant sought merits review of the Minister's decision by the Tribunal. The hearing was held on 15 May 2018. The Applicant and Minister were represented by counsel. The Applicant gave evidence by video-link and was cross-examined. His wife also gave evidence and was cross-examined. The Tribunal was assisted by a Vietnamese interpreter.

9    Before the Tribunal the Applicant advanced two alternative submissions. His written submissions to the Tribunal described his alternative positions as follows:

… His primary position is that the mandatory cancellation of his visa should be revoked including because he poses no risk to the community whilst incarcerated, and it is not feasible to assess whether he may do so upon any potential release.

His alternative position is that, for this same reason, if the Tribunal is not prepared to revoke the mandatory cancellation decision, the Tribunal should instead set aside the primary decision and remit with a direction that the delegate defer re-consideration of the matter until such time as it can be foreseen that the applicant may be released from prison.

10    On 21 May 2018 the Tribunal affirmed the delegate's decision in its Decision and Reasons for Decision (Decision Record), to which I will now turn.

Tribunal Decision

11    The Tribunal set out the relevant statutory framework. As stated above, the Applicant’s visa was cancelled pursuant to s 501(3A) of the Migration Act. By this power, the Minister, or his delegate, must cancel a visa granted to a person if the person does not satisfy the character test. A person is deemed not to satisfy the character test if the Minister is satisfied the person has a ‘substantial criminal record’ and is serving a sentence of imprisonment on a full-time basis in a custodial institution (ss 501(3A)(a)-(b)). A ‘substantial criminal record’ includes relevantly a sentence of 12 months or more (s 501(6)(a)). The Applicant, having been sentenced to a term of imprisonment for 18 years, met this definition.

12    The Applicant did not challenge the mandatory cancellation of his visa before the Tribunal or in this Court. The Applicant’s challenge was to the delegate’s decision, notified to the Applicant on 27 February 2018, not to revoke the cancellation. The Tribunal stated, “[t]he sole issue before [it was] … whether there is another reason why the [cancellation decision] should be revoked” (Decision Record at [15]).

13    The power to revoke a cancellation is contained in s 501CA(4) of the Migration Act. If representations are made by the subject of the cancellation within the 28 day period prescribed by the Regulations (Migration Regulations 1994, reg 2.52), the decision maker may revoke the cancellation if satisfied that the person satisfies the character test or there is another reason why the original decision should be revoked. Upon the issuance of a rejection by the Minister, an Applicant has 9 days in which to seek merits review by the Tribunal. The Tribunal then has 84 days in which to make a decision, in default of which it is taken to have affirmed the delegate’s decision (the Migration Act, s 500(6L)).

14    The Tribunal referred to the oft-cited statement of approach to s 501CA of North ACJ in Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 337 (at [38]):

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.

15    The Tribunal also referred to Ministerial Direction No. 65 which it was obliged to comply with pursuant to ss 499(1) and (2A) of the Migration Act. The Direction requires a decision maker to take into account considerations in Part C of the Direction which are divided into primary and other considerations, as informed by the “Principles” in paragraph 6.3. The Tribunal set out the Principles as follows:

(1)     Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)     The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3)     A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4)     In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5)     Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6)     Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(7)     The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

16    The Tribunal also set out the primary considerations prescribed under the Direction, namely protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia and expectations of the Australian community. As well as noting the other considerations which are generally to be given less weight (Decision Record at [22]): international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed.

17    Before the Tribunal the Applicant made submissions described by the Tribunal as being in “two parts” (Decision Record at [23]):

The principal submission was that the Tribunal should set aside the mandatory cancellation of Mr Dao's visa because he poses no threat to the community whilst incarcerated and it is not feasible to assess currently whether he may pose a risk upon any potential release.

Secondly, Mr Aleksov submitted that, as an alternative, if the Tribunal was not minded to set aside the mandatory cancellation decision, the Tribunal should set aside the mandatory cancellation of the visa and remit the matter to the Respondent with a direction to re-consider the question of mandatory cancellation 'until such time as it can be foreseen that the applicant may be released from prison'.

18    The Tribunal’s reasons will be considered in more detail below. In brief, the Tribunal found against the Applicant in relation to each of the above submissions. Though the Tribunal appears to have implicitly accepted the stated premise for the Applicant’s first submission – that as the Applicant was incarcerated he posed no threat to the community – the Tribunal found by reference to the considerations outlined above, that the Applicant did present a risk of harm to the community if released (Decision Record at [68]).

19    The Tribunal also rejected the Applicant’s request that the application be remitted with a direction that it be considered closer to the Applicant’s release from imprisonment. The Tribunal’s reasons in this regard was a matter of debate on this application; namely whether the Tribunal found it did not have the power to remit the application before it on those terms, or rather declined to do so in this case. I shall consider this question below.

20    Before turning to other aspects of the Tribunal’s reasons, it is convenient to set out the Tribunal’s conclusion (Decision Record at [95]-[96]):

Conclusion

95.     At the beginning of July 2011 Mr Dao's circumstances were that he had a young baby and a loving wife who was studying to acquire skills. By her account, he was an attentive father to their infant child. He was married to an Australian citizen and had only one minor offence to his name. I conclude, had he continued along this course, he would have been granted citizenship when the time came to make such an application. However, he decided to become involved with serious drug-trafficking. The consequences to him and his family have been devastating. Mr Dao's criminal behaviour is completely unacceptable conduct by any person, whether or not the person is a citizen, and he was rightly sent to prison for a significant term after he admitted guilt for a heinous crime. However he remains at one end of the scale either oblivious of, or, at the other end, indifferent to, the gravity of his serious crime and the consequences of this nature of criminal activity to Australia. Counsel for the Applicant submitted that the principles set out in the Direction did not form part of what a decision maker should consider. That is wrong. Paragraph 5 of the Direction makes clear that the Preamble, which includes the principles, is part of the Direction. Paragraph 6(4) states:

In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

96.     I find that, because of the magnitude of the value of the illicit drugs the Applicant pleaded guilty of trafficking, this case falls into the category contemplated in this paragraph. The Tribunal also concludes that the primary considerations in the Direction of the protection of the Australian community and the expectations of the Australian community, which weigh heavily against the Applicant, and the lack of any other reason to revoke the mandatory cancellation decision which might outweigh those factors, means that the correct and preferable decision is to refuse to revoke the cancellation of Mr Manh Hung Dao's visa.

APPLICATION FOR JUDICIAL REVIEW

21    On 18 June 2018 the Applicant filed an originating application for review of a migration decision in this Court. The application was made on three grounds:

1.    The decision of the Administrative Appeals Tribunal (AAT) is affected by jurisdictional error, in that the AAT misconstrued its power under s 43 of the AAT Act, in finding that it “cannot ... direct that the decision on whether to cancel [the Applicant's] visa be deferred until some unfixed date in the future”.

Particulars

a.    The Tribunal failed to consider the applicant's argument with respect to its power to make a recommendation, rather than a direction.

b.     The Tribunal did have power to make a direction or recommendation in the manner sought by the applicant.

2.     The Tribunal misunderstood or misconstrued the applicant's argument, and thereby constructively failed to consider a submission of substance, in relation to Reasons [54] - [55], in that the point made by the applicant concerned risk into the "foreseeable future", and not current risks.

3.     The Tribunal acted legally unreasonably in purporting to find that the applicant would present any risk of harm to the Australian community:

a.     in the reasonably foreseeable future, given that he will remain imprisoned for the reasonably foreseeable future; or

  b.     upon release from prison; because

    by reason of his imprisonment for a period of time stretching so far into the future, it was not reasonably or rationally possible to assess what, if any, risk of harm might be posed by the applicant upon his eventual release from prison.

22    Counsel for the Applicant submitted that Grounds 2 and 3 were closely linked, however it is convenient to consider Ground 3 first and then Ground 2, as Ground 3 concerns antecedent steps in the reasoning process.

23    The above grounds flow as a matter of argument follows. First, it was legally unreasonable to determine the risk the Applicant may present to the community upon release at least six years in advance of the earliest time at which he may be released (Ground 3). Second, the Tribunal, in forming the view the Applicant did pose a risk, misconstrued the Applicant’s submission as being to the effect that the Tribunal could assess only ‘current’ risks as opposed to ‘future risks’ (Ground 2). Third, accepting that it was legally unreasonable by the Tribunal to have formed a view about future risk, the Tribunal could not have carried out its central function of merits review legally reasonably. Accordingly, the Tribunal should have remitted the application before it to the delegate, with a direction to refrain from making a decision until the central question of risk to the community on release could be determined legally reasonably, namely at a time closer to the Applicant’s release from imprisonment. The Tribunal incorrectly considered that it did not have power to remit and to give a direction of the kind proposed by the Applicant (Ground 1).

24    I consider the grounds in that order.

Ground 3 – acted unreasonably in respect of harm to the risk of Australian community

25    Ground 3 amounts to the following question: on the information available, could the Tribunal make a legally reasonable decision about the risk the Applicant would present to the community upon release in not less than six years’ time. It was explicitly accepted by the Tribunal, as it must be, the Applicant presented no ‘present’ risk while imprisoned. It therefore follows that the question concerns the ‘future’ risk, contingent upon the Applicant’s release.

26    The Applicant submitted that as at the time of the Tribunal’s decision he posed no risk of harm to the community, or in the foreseeable future, not less than six years hence. Accordingly, the Tribunal could not have based its decision on an immediate or reasonably foreseeable risk of harm to the community, but upon a risk that could only arise in the future. Further, the Applicant submitted that given the length of sentence it would be unrealistic (and unreasonable) to assess what risk, if any, the Applicant might pose at release. The Applicant contended that the length of time before he could pose any risk made it impossible to make a reasonable assessment of any future risk posed by him.

27    The Applicant placed reliance on the objective of rehabilitation of the criminal justice system. The Applicant submitted that “one of if not the dominant consideration of our criminal justice system is the principle of rehabilitation”. Whether or not rehabilitation is the paramount objective of the criminal justice system, clearly it is a significant objective. The Applicant submitted that to purport to determine the future risk posed by him at such an early stage in the context of a lengthy term of imprisonment would in effect be to pre-judge against the Applicant his prospects for rehabilitation while imprisoned. Conversely, were the assessment of risk to be made closer to the Applicant’s release, the decision maker would be in a better position to consider the rehabilitation of the Applicant. This point was buttressed by the Applicant’s uncontested good behaviour while imprisoned, suggesting that there were good prospects of the Applicant being rehabilitated.

28    The Applicant relied upon the decision of Justice Bell in Bayley v Nixon and Victoria Legal Aid [2015] VSC 744 in support of his contentions concerning the unreasonableness of deciding his application so many years in advance of his release from imprisonment. While serving a 35-year term of imprisonment for rape and murder, Mr Bayley was convicted of three further rape offences committed prior to his imprisonment. He was sentenced to an increased term of imprisonment, including the fixing of a non-parole period of 43 years. As a result of the further sentence he would not be eligible to apply for parole until he reached the age of 86 (as opposed to 76 under his previous sentence: at [60]). Mr Bayley sought leave to appeal, and requested legal assistance from Victorian Legal Aid, which was denied. Mr Bayley sought a review of the decision to deny him legal aid. An independent reviewer was appointed to review the decision pursuant to a procedure under s 35(1) of the Legal Aid Act 1978 (Vic)). The independent reviewer concurred with Legal Aid’s decision. The judgement of Bell J concerns in part Mr Bayley’s application to have the independent reviewer’s decision reviewed for legal unreasonableness.

29    At [65]-[71] Justice Bell considered whether it was reasonable for the independent reviewer to have considered as relevant an opinion regarding Mr Bayley’s prospects of obtaining parole in forty years’ time. In this regard, his Honour stated as follows (at [68]; as quoted by the Tribunal at Decision Record [33]):

I expressly decline to go into the considerations for and against whether Mr Bayley would be granted parole in about 40 years. The parole authority at the time will have to exercise its discretion in this regard upon the facts and circumstances then obtaining. In my view, it is simply not possible to make a reasonably informed judgment now about what the facts and circumstances will be so far in the future and how the authority will then exercise its discretion. With respect, such a consideration is no more than mere speculation. I reject VLA’s submission that it can speculate upon this matter in the proper exercise of its statutory discretion. I think it is the antithesis of proper to exercise a statutory discretion by reference to an opinion about a matter that is not capable of reasonably informed judgment.

30    The Applicant contended that despite being a much longer time than in his case, similar reasoning applied to any present assessment of a future risk he may pose to the Australian community. The Tribunal did not “find this decision on point in this matter” as the Applicant’s non-parole period ended in July 2024, being six years’ hence at the time of the Tribunal’s decision, compared with 40 years in the case of Mr Bayley (Decision Record at [33]).

31    The Minister responded by submitting that it could not be unreasonable for a a Tribunal charged with the task of making a determination about an application, within the statutory context of a ‘timely, prompt and efficient’ procedure for consideration and determination, to make such a determination despite the length of time of the Applicant’s sentence.

32    The Minister also pointed to the terms of the Direction in support of the legal reasonableness of the Tribunal’s decision. The Direction requires the Tribunal to consider the risk to the community “should the non-citizen commit further offences”. There is no express language limiting the time in advance of the risk arising when such assessments may be made.

33    Further, the Minister submitted that paragraph 13.1.2(2)(b) of the Direction expressly states that the Tribunal should not delay a decision regarding the risk of further criminal conduct in order for rehabilitative courses to be undertaken. The Minister submitted that such express language pointed away from the statutory power being constrained by foreseeability, rather, being a procedure by which the decision maker is mandated to make a determination on the basis of the material before it. This conclusion is buttressed by clause 6.2(2) of the Direction, which states that the decisions about cancellations under the character test should be made in a timely manner.

Consideration – Ground 3

34    The Applicant was found by police, along with his co-accused, in possession of up to $47 million in heroin and methylamphetamine, and around $160,000 in cash. This quantity of drugs amounts to hundreds of thousands of ‘hits’ for users.

35    The Applicant appears to have not cooperated with authorities save for pleading guilty (Decision Record at [48]-[51]). The Applicant provided no explanation to authorities concerning the source of the drugs, his involvement in their manufacture or distribution, nor who else may have been involved in their manufacture and importation into Australia. The Tribunal found the Applicant to be “deliberatively evasive and unresponsive to many questions asked of him by the Minister and by the Tribunal” (Decision Record at [51]).

36    The Applicant’s counsel submitted that an explanation for the Applicant’s unwillingness to explain his involvement in the importation and distribution of the drugs, or to identify others involved, may be due to a fear of reprisal from others involved. It may be readily inferred as a matter of common knowledge and common sense that there were bound to have been others involved in the manufacture and importation into Australia of the drugs. Beyond that inference it is not possible on the evidence to draw any other relevant inferences, including as to the extent of the Applicant’s knowledge of who else may have been involved in producing and importing the drugs found in the Applicant’s possession. Similarly, though it may be plausible to believe that the Applicant may be at risk of serious reprisals, including reprisals directed to his family, there is no compelling evidence that this is the case. The Applicant did not give evidence to this effect and accordingly the most that can be said is that fear of harm from reprisals may be an explanation for the Applicant’s refusal to explain his role and the role of others in production, importation and distribution of the drugs.

37    In any event, for the reasons discussed below, while a present assessment of a future risk posed by the Applicant may have been influenced by the Applicant’s refusal to disclose details about his own involvement and possibly the involvement of others in the relevant arrangements concerning the drugs, the assessment of the risk to the Australian community posed by the Applicant upon his release was not the only question with which the Tribunal was concerned.

38    The Applicant’s contentions before the Tribunal and in this application must be considered in their proper context. That context relevantly includes the operation of s 501(3A) of the Migration Act which deems a visa to be cancelled if the holder does not meet the character test. It is beyond rational dispute that the Applicant failed the character test as a result of his conviction.

39    If accepted, the Applicant’s reasoning would make a mockery of the demonstrable intention of the deeming provisions in relation to the character test in ss 501(3A)(a) to (b) and of the definition of a “substantial criminal record” in s 501(6)(a) of the Migration Act; as the more serious the offence, the longer the term of imprisonment, and the stronger the reason to defer an assessment of the offender’s risk to the Australian community. This is sufficient reason alone to reject Ground 3, though I need not and do not rely on this reason.

40    The Applicant’s contentions fight against the legislative intention that an application pursuant to s 501CA(4) of the Migration Act should be expeditiously determined as referred to above.

41    Further, the unstated premise of Ground 3 is that the risk of harm posed to the Australian community by an applicant seeking revocation of the mandatory cancellation of his or her visa on character grounds, is a paramount pre-condition to refusing such application. It is not. An assessment of the risk posed by an applicant is plainly an important consideration for the Minister or his delegate. But that does not mean that an application for revocation must be allowed (or deferred) if, for whatever reason, the decision maker is not able to make an assessment of that risk or arrive at a conclusion about it.

42    The Principles applicable to the Direction referred to above represent a basket of relevant factors to be taken into account by the Tribunal when reviewing the decision of the primary decision-maker. The Principles are not an exhaustive list of factors to be applied in all cases to which any of the Principles may be apposite. The terms in which the Principles are expressed make it abundantly clear that they are normative guidelines to assist in the evaluation of the application. There is nothing in the principles to suggest that if it is not possible, or practical, to make an assessment of a particular factor referred to in the Principles, the decision maker should defer making a decision until the factor in question can be assessed. The present application is an example of the potential for a long period of deferral of the decision if the Applicant’s contention was accepted. As I have said above, that construction would fight against the evident legislative intention that applications pursuant to s 501CA(4) be determined expeditiously.

43    The Tribunal was correct in rejecting Bayley as an apposite authority in this case. The facts and legislative context of Bayley referred to above reveals that that decision was not “…[on] point in this matter”, as the Tribunal correctly concluded.

44    Finally, the Tribunal was plainly correct to draw particular attention to paragraph 6(4) of the Principles. This principle gives emphasis to the seriousness of the offending or other conduct. It posits a circumstance where the seriousness of the conduct and the harm caused by it is so serious that any risk of similar conduct in the future is unacceptable, even when there are strong countervailing considerations. Having regard to the seriousness of the Applicant’s offences, the Tribunal was justified in rejecting the Applicant’s contentions that the primary decision should be set aside because of the countervailing consideration that it was not presently possible to determine the risk of harm of re-offending posed by the Applicant, or because of the countervailing consideration that to make a decision presently would deprive the Applicant of an assessment of his character, including any risk of harm posed by him, after he has been afforded the opportunity for rehabilitation while serving a lengthy term of imprisonment. I note further, that paragraph 6(4) fortifies the proper characterisation of the Principles as normative guidelines to assist the evaluation of the application and not pre conditions which must be considered, or capable of being considered, before a decision may be made.

45    For the above reasons I reject Ground 3.

Ground 2 – The Tribunal misunderstood or misconstrued the Applicant’s argument

46    Ground 2 is put on a narrower footing. The Applicant contends that the Tribunal at [54]-[55] misconstrued its submission regarding whether a future risk could reasonably be considered at the time of the decision as set out above. The Applicant contends the Tribunal misconstrued this argument by taking it to be an argument that the Tribunal could only consider present risks, but could not consider any future risk.

47    The Applicant’s written submissions to the Tribunal were provided to this Court. The relevant paragraphs of the submissions state:

Alternative position – allow time

18.     The relevant provision engaged in this review is s 501CA(4) of the Migration Act 1958 (Cth) (the Act), empowering the Minister to revoke a mandatory cancellation decision. This provision is engaged only where the applicant has made representations seeking revocation in accordance with an invitation under s 501CA(3)(b) of the Act, which in turn imposes a time limit within which to make such representations in accordance with the Regulations.

19.     This tends to suggest that the power to consider representations under s 501CA(4) of the Act, and to decide whether or not to revoke a decision, is a “once only” power, such that once a decision has been made not to revoke a mandatory cancellation of a visa, that person is not able to make another application for revocation.

20.     That is important. In the present case, the applicant will not return to the Australian community for many years (at least eight years will pass before he is eligible for parole). To seek to assess any risk that the applicant may pose upon his release, whenever that might be, is non-sensical; see Bayley v Victoria Legal Aid [2015] VSC 744, [69]. It seems, therefore, that the Tribunal cannot make any findings about risk, which renders impossible the application of the Direction.

21.     If the Tribunal were to contemplate making findings about risk, the only legally available finding whilst the applicant is incarcerated is that he poses no risk to the Australian community. Where a person poses no risk to the Australian community, it is submitted, there is no basis on which the Tribunal could lawfully refuse to revoke the mandatory cancellation decision.

22.     Also, and separately, any failure to defer making the decision essentially deprives the applicant of the opportunity to rehabilitate. That is procedurally unfair.

23.     As the primary decision is not constrained in any way in relation to the timing of their decision, it was open not to decide this case until such time that the applicant approached a potential release date (whether at the end of his sentence, or perhaps some earlier time identified in consultation with the Parole Board).

24.     The Tribunal, stepping into the shoes of the delegate, has power to remit this matter to the delegate for reconsideration, with a “direction” or “recommendation” that a decision not be made in this case until such time as the applicant approaches a potential release date: s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth). It should do so.

48    The relevant paragraphs of the Tribunal’s reasoning are as follows:

54.     As Mr Dao is in prison and is not due to be considered for parole until 9 July 2024 (G29, p 423), Mr Aleksov submitted on the Applicant’s behalf that there was no risk to the community. As a consequence, because there was no risk, it follows that all the other parts of the Direction should, in effect, be read beneficially in regards to revoking the mandatory cancellation of the Applicant’s visa.

55.     The Tribunal finds that this submission is a misreading of this part of the Direction. Paragraph 13.1(2)(b) is not couched in terms of a decision-maker making an assessment of current risk. Most non-citizens to whom the Direction applies, particularly in regard to requests to revoke a mandatory visa cancellation, will be either in prison or in immigration detention. Paragraph 5 of the Direction sets out what the Direction comprises and that the purpose of the instrument is to provide a framework within which decision-makers should approach their task of deciding whether to, in this case, revoke a mandatory cancellation under section 501CA. If the Tribunal accepted the Applicant’s submissions that only current risk is to be assessed and that a non-citizen poses no risk in custody and that, as a consequence, therefore all the other parts of the Direction fall away or should essentially be read down, the Tribunal would be vacating its responsibility under section 499 to apply the Direction. This submission is rejected.

49    The Tribunal’s Decision Record, read as a whole, discloses a detailed engagement with the Applicant’s arguments, especially with the distinction between present and future risks. To construe the Tribunal’s reasons as the Applicant asserts on the basis of the paragraph above would be to read “the words of a decision-maker with a fine appellate tooth-comb, seeking a verbal slip”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291, and see GD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1463 at [74] (Thawley J) and Fualau v Minister for Home Affairs [2019] FCA 1545 at [13].

50    Further, the core of the Applicant’s contention under Ground 3 was that as it was not presently possible to forecast the effects of rehabilitation on the Applicant during imprisonment, and as there was no present risk to the community because of his imprisonment it was not possible to make a meaningful risk assessment of the Applicant. This meant that the Direction could not be applied and accordingly any decision regarding the Applicant’s application to revoke the cancellation should be deferred.

51    In paragraph 55 of the Tribunal’s reasons referred to above, the Tribunal merely commented about the consequences of the Applicant’s submissions that “only current risk is to be assessed…” This is a correct characterisation of a consequence of the Applicant’s submissions before the Tribunal and on this application. It follows from the Applicant’s submission that it was not legally reasonable to assess the risk posed many years into the future that only ‘current risks’ may be assessed. The Tribunal’s reasons did no more, read in context, than comment upon the consequences if that submission were accepted. There is nothing in the Tribunal’s reasons to indicate that it had misunderstood the applicant’s argument to be one that put the unqualified proposition that only ‘current risks’ may be assessed. In any event, it follows from the Applicant’s primary contention the subject of Ground 3 above (leaving aside the length of time into the future as a factor) that only current risks may be assessed. In other words, the Applicant’s contention necessarily includes the proposition that there is a temporal limit to the ability to make an assessment of future risks. It follows that if, as the Applicant submitted, the risk was too far off, the Tribunal would be left in a position where it may determine only such current risk as may exist. There was no error in the Tribunal pointing out that consequence in the context of the primary submission made by the Applicant.

52    For the reasons above I reject Ground 2.

Ground 1 – jurisdictional error by misconstruing s 43 of the AAT Act

53    This leaves the final ground of appeal. The Minister accepted that the power under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) to remit with a direction was available to the Tribunal. This ground turns upon whether the Tribunal acted upon the false premise that it did not have power to remit the application with a direction, or recommendation, that a decision concerning the application for revocation of the cancellation of the Applicant’s visa be deferred until closer to the time of his release from imprisonment.

54    The power to remit and direct as sought in this case is contained in s 43(1)(c)(ii) of the AAT Act. Section 43(1) of the AAT Act is as follows:

43     Tribunal’s decision on review

(1)     For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:

(a)     affirming the decision under review;

(b)     varying the decision under review; or

(c)     setting aside the decision under review and:

(i)     making a decision in substitution for the decision so set aside; or

(ii)     remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

55    The Tribunal also set out s 2A(b) of the AAT Act which concerns the Tribunal’s objectives in reviewing a decision:

2A Tribunal’s objective

In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

…

(b) is fair, just, economical, informal and quick; and

…

56    The Tribunal’s reasoning relevant to Ground 1 is contained in paragraphs [36]-[40] of the Decision Record:

36.    The Applicant’s written submission contended:

The Tribunal, stepping into the shoes of the delegate, has power to remit this matter to the delegate for reconsideration, with a "direction" or "recommendation" that a decision not be made in this case until such time as the applicant approaches a potential release date: s 43(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth). It should do so.

37.    In oral submissions at the hearing, Mr Aleksov argued that the context of the wording in section 2A(b) of the AAT Act supported this contention, as the words "fair" and "just" appear before use of the word "quick". Accordingly, he argued that affording the Applicant an expeditious review was only one factor to consider amongst several, and deferring the ultimate decision in favour of a more just outcome would take precedence. The Tribunal accepts the view that providing a means of a 'quick' review should be read as only one part of the objectives and, additionally, only one of those adjectives listed in section 2A(b), but considers that the construction of the subsection does not give them unequal weight, one to the other. It is unarguable that an aim for speed alone should not lead as a consequence to a review that was unjust or unfair to a party, but the Tribunal takes the view that to make some direction, as was suggested by counsel, that could leave an applicant who is an unlawful citizen who has properly applied for a review but then been denied any outcome by the Tribunal, would be completely unsatisfactory.

38.    The Tribunal accepts that the power set out in section 43(1)(c) is broad-ranging, but finds that the power to make directions must be read in the context of the first limb of the subsection that is within the context of the relevant enactment, which in this case is the Migration Act 1958. That Act sets out, at section 4, its Object. Relevantly, section 4(1) states:

(1)    The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens;

(2)    To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

39.    If the Tribunal were to accept the Applicant's submission in this regard, it would be inconsistent with the object of the Act under which the reviewable decision was made. Mr Dao having made an application to the Tribunal for a merits review of the mandatory cancellation of his visa, as provided for in the Act, is entitled to have a due, but also an expeditious, consideration of his application and to a decision to affirm the reviewable decision or to set it aside. That is also an approach consistent with the objective of the Tribunal as set out in section 2A above. The Tribunal cannot, in this matter, direct that the decision on whether to cancel Mr Dao's visa be deferred until some unfixed date in the future. I do not accept this submission that, in effect, the Tribunal should make a decision that a decision not be made. It would be repugnant to the role of the Tribunal and inconsistent with the Act, and as a collateral consequence, as I say above, could leave the Applicant in a legal limbo for an indefinite period.

40.     The Tribunal now turns to consideration of whether or not to revoke the mandatory cancellation of Mr Dao's visa by considering, as required under section 499(2A) of the Act, the relevant considerations within the Direction.

(emphasis added)

57    The Applicant contended that the above paragraphs disclosed that the Tribunal considered itself without power to remit with a direction. The Applicant pointed to several passages specifically. The Applicant submitted that the Tribunal’s statement in the last sentence at [37] that to make the orders sought by the Applicant would be to deny him ‘any outcome’ revealed its error in considering itself not able to make an order. The Applicant also pointed to the third last sentence of [39] as an express statement by the Tribunal that it lacked power. The Tribunal there states that it “cannot, in this matter, direct that the decision on whether to cancel [the Applicant’s] visa be deferred until some unfixed date in the future”.

58    The Minister submitted the Tribunal’s statement that to remit and direct would be to deny ‘any outcome’ should be read as saying ‘in effect’ that the Tribunal eschewed making a decision in relation to the application for review.

59    I do not accept the Applicant’s construction of the Tribunal’s reasons in relation to Ground 1. In my view, the Applicant’s construction is unrealistically literal and fails to consider the Tribunal’s express path of reasoning.

60    The Tribunal commenced its reasoning in paragraph 38 by accepting that the power in section 43(1)(c) of the AAT Act is “broad-ranging”. It then, correctly, notes that the power to make directions must be read in the context of the first limb of the subsection, that is taking into account the context of the relevant enactment. The Tribunal used the expression “relevant enactment”, being the words of the description of the power in sub-section 43(1), which the Tribunal referred to as the “first limb”.

61    Having stated that the power in sub-section 43(1) should be considered in the context of the “relevant enactment”, in paragraph 39 the Tribunal stated its reasons why, having regard to the objects of the relevant enactment in the Migration Act, the power to remit with a direction should not be exercised.

62    The first sentence of paragraph 39 makes it clear that the Tribunal was considering whether, having regard to the objects of the Migration Act, it should exercise the power in s 43(1)(c)(ii). There is nothing expressed in, or implied by, the Tribunal’s reasons to suggest that it doubted the power was available to it. Indeed, as I have said above, the Tribunal’s reasoning commenced with an acknowledgement that section 43(1)(c) is “broad-ranging”.

63    The Applicant gave emphasis to the word “cannot” in the third last sentence of paragraph 39 of the Tribunal’s reasons and to the word “should” in the second last sentence of that paragraph as suggesting a misapprehension on the part of the Tribunal as to the availability of the power. I disagree. The Applicant’s submission strains to identify an error by close examination of the verbal formulation or phrasing used by the Tribunal. In my view, the Applicant’s submissions are baseless as they are founded upon a reading of the Tribunal’s reasons taken out of context of the Tribunal’s express path of reasoning. As I have said, that path of reasoning entailed firstly the identification, and acknowledgement, of a broad power in section 43(1) of the AAT Act. Secondly, the Tribunal referred to the relevant statutory framework in which the power is to be exercised, including having regard to the objects of the relevant enactment. Finally, the reasons, taking into account the objects of the relevant enactment, leading to the conclusion that the power should not be exercised in this case. The Tribunal’s conclusion was clearly concerned with the exercise of power not the existence of it, as is plain from the qualification to ‘cannot’ with ‘in this matter’, plainly restricting its conclusion to one concerning the exercise of the power to the facts before it.

64    For the above reasons I reject Ground 1 of the Application.

Disposition

65    The application should be dismissed. The Applicant should pay the Minister’s costs of the application.

Associate:

Dated:    10 August 2020