Federal Court of Australia
JKPM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1293
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application for an extension of time within which to seek judicial review under s 477A of the Migration Act 1958 (Cth) is granted save for ground 4 of the draft further amended originating application.
2. The application for judicial review is allowed.
3. An order in the nature of certiorari be issued to the Administrative Appeals Tribunal quashing the decision made on 25 February 2020 affirming the decision of a delegate of the first respondent.
4. The matter be remitted to the Administrative Appeals Tribunal for determination according to law.
5. The first respondent is to pay the costs of the applicant as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
PERRY J:
1 This is an application under s 477A(2) of the Migration Act 1958 (Cth) (the Act) for an extension of time within which to seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) given on 25 February 2020. By that decision, the Tribunal affirmed a decision of the delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), not to exercise the power in s 501CA(4) to revoke the mandatory cancellation of the applicant’s visa under s 501(3A) of the Act.
2 Since filing the application and following the appointment of pro bono counsel, a document described as an “amended originating application for review” was filed. Pending any grant of an extension of time, that document was treated as a draft amended originating application setting out the grounds which the applicant would seek to argue in the event that the application was granted in substitution for those attached to the original application for an extension of time. As I explain below, leave was granted to amend ground 5 of the draft application at the hearing.
3 With the consent of the parties, the hearing proceeded on the basis that the parties would not only make submissions on the application for an extension of time, but also put their submissions on the substantive application in the event that the extension of time was granted.
4 For the reasons set out below, the application for an extension of time is granted insofar as it relates to grounds 1, 2, 3 and 5 of the draft further amended originating application but is dismissed insofar as it related to ground 4 because that ground lacked sufficient prospects of success. The substantive application is allowed on the basis that the applicant has established that the Tribunal’s decision is tainted by jurisdictional error on the basis alleged in ground 5.
5 Finally, the Court expresses its gratitude to Jordan Widjaja of counsel for accepting the pro bono referral issued under r 4.12 of the Federal Court Rules 2011 and acknowledges the considerable assistance afforded by him to the applicant and more generally to the Court.
2.1 The mandatory cancellation of the applicant’s visa and the delegate’s decision
6 The applicant is a citizen of New Zealand who first arrived in Australia in March 1999 at the age of four with his family. His family departed Australia on a number of occasions before migrating to Australia in March 2010 when the applicant was aged 15. As a New Zealand citizen, the applicant resided in Australia on a Class TY Subclass 444 Special Category (Temporary) visa (the visa). His family consists of his parents, his two sisters, and his fiancée, (Ms T). The applicant and Ms T started dating in high school and became engaged to marry in 2017.
7 In October 2016, the applicant committed the offence of aggravated robbery. He pleaded guilty to the charge. On 28 March 2018, he was duly convicted in the New South Wales District Court of the offence (the 2016 conviction) and sentenced to a term of imprisonment for three years commencing on 26 March 2018 (CB 104). The sentencing court imposed a non-parole period of 18 months commencing in March 2018 and concluding in September 2019 (Tribunal Reasons (TR) at [3]).
8 The applicant’s visa was cancelled on 28 August 2018 under the mandatory cancellation power in s 501(3A) of the Act because he had a substantial criminal record for the purposes of the character test and was serving a full-time sentence of imprisonment for an offence against Australian law (CB 109). As a result, at the conclusion of the non-parole period, the applicant was taken into immigration detention.
9 Pursuant to s 501CA(4) of the Act, the Minister (and therefore his delegate) may revoke a cancellation decision under s 501(3A) 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.
10 The applicant applied for revocation of the cancellation decision pursuant to s 501CA(4) (CB 120).
11 On 3 December 2019 a delegate of the Minister informed the applicant that on 29 November 2019 a decision was made not to revoke the visa cancellation decision (CB 71). The applicant applied to the Tribunal on 6 December 2019 for review of the delegate’s decision (CB 64).
12 By a decision given on 25 February 2020, the Tribunal affirmed the delegate’s decision (CB 1). At the hearing before the Tribunal on 10 February 2020, the applicant gave oral evidence, as did his fiancée, mother, cousin, and uncle (TR at [8]). The Tribunal also noted that it had received written evidence which it set out in a list of exhibits attached to its reasons including the documents before the delegate (TR at [8]). The applicant was not represented by a migration agent or legal representative before the Tribunal.
13 It was not in dispute that the applicant had made representations for the purposes of s 501CA(4)(a). Nor was it in dispute (and is also the position in the current proceeding) that the applicant did not pass the character test by reason of s 501(6)(a) and (7)(c) of the Act (TR at [17]-[19]; applicant’s written submissions dated 18 August 2020 (AS) at [7]). The primary issue therefore before the Tribunal was whether there was “another reason” why the decision should be revoked under s 501CA(4)(b)(ii) of the Act.
14 In addressing this issue the Tribunal correctly found that it was bound by s 499(2A) of the Act to comply with Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79) (TR at [20]): Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591 at [41] (the Court). This meant that it was required to take into account the primary and other considerations specified in Direction 79 and relevant to the applicant’s case in determining whether or not to revoke the cancellation of his visa (para 8, Direction 79).
15 As the Tribunal noted at [21], para 13(2) of Direction 79 provided that there were three primary considerations which it was required to take into account, namely:
(a) Protection of the Australian community from criminal activity or other serious conduct;
(b) The best interests of minor children in Australia;
(c) Expectations of the Australian community.
(Primary Considerations A, B and C respectively)
16 Paragraph 14(1) of the Direction provides a non-exhaustive list of the Other Considerations required to be taken into account, as the Tribunal acknowledged at [23]. These included, relevantly, the “Strength, nature and duration of ties” and “Extent of impediments if removed”.
17 With respect to the process of weighing the Primary and Other Considerations, Colvin J noted in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23] (in a passage quoted by the Tribunal at [24]) that Direction 65 (which is relevantly the same as Direction 79):
… makes clear that an evaluation is required in each case as to the weight to be given to the “other considerations” … It requires both primary and other considerations to be given “appropriate weight”. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains “generally” they are to be greater weight.
18 As to Primary Consideration A, the Tribunal analysed the applicant’s criminal history and the sentencing remarks of Judge English with respect to the 2016 conviction. Based upon that analysis, the Tribunal accepted the Minister’s contentions that the applicant’s offending demonstrated “a pattern of increasingly serious behaviour” and that the nature and circumstances of the conviction for aggravated robbery must be viewed “very seriously” given the violent circumstances of that offending (TR at [34]-[118]). It also found that “the harm resulting from any return by the Applicant to his offending ways may very well be so serious such that any risk of similar conduct in the future is unacceptable” (TR at [113]) and that there was “a strong and convincing likelihood” that he would engage in further very serious conduct if returned to the Australian community (TR at [117]).
19 Secondly, in relation to Primary Consideration B the Tribunal concluded that the best interests of the relevant minor children in Australia, namely, his niece, nephew and cousin’s children, weighed moderately in favour of revocation (at [119]-[147]).
20 Thirdly, the Tribunal found that Primary Consideration C, namely the expectations of the Australian community, weighed heavily in favour of affirming the delegate’s non-revocation decision (TR at [148]-[159]).
21 Fourthly with respect to the Other Considerations, the Tribunal found that:
(1) Australia’s international non-refoulement obligations and impact on Australian business interests were not relevant (at [161], [167]);
(2) the impact on the victim was “neutral” because there was no evidence on the issue (at [169]);
(3) the strength, duration and nature of the applicants ties to Australia weighed moderately in favour of revocation (at [166]); and
(4) the extent of impediments if the applicant were removed weighed slightly in favour of revocation (at [176]).
22 The Tribunal concluded that “a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa” (TR at [179]).
3. SHOULD AN EXTENSION OF TIME BE GRANTED?
23 Section 477A(1) of the Act provides that an application to the Federal Court in its original jurisdiction under s 476A(1)(b) or (c) must be made within 35 days of the date of the migration decision. However, under s 477A(2), the Federal Court may extend that 35 day period “as the Federal Court considers appropriate if:
(a) an application for that order has been made in writing to the Federal Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b) the Federal Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
24 In the present case, the application for an extension of time was filed on 28 April 2020. At the time of filing, the applicant was unrepresented and in immigration detention where he has been detained since his release from prison.
25 In determining whether it is in the interests of the administration of justice to extend time, the Federal Court will have regard to the circumstances of the individual case including whether there has been a reasonable explanation for the delay and whether the proposed application for judicial review has any merit. In this regard, Rangiah J (with whose reasons Reeves and Bromwich JJ agreed at [1] and [109] respectively) explained in DKX17 v Federal Circuit Court of Australia [2019] FCAFC 10; (2019) 268 FCR 64 with respect to s 477(2) in relation to applications to the Federal Circuit Court that:
57. In an application to the Federal Circuit Court under s 476 of the Act, it is necessary for the applicant to demonstrate jurisdictional error on the part of the Tribunal: Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at [76]. In considering an application for an extension of time under s 477(2), the merits of the proposed application for review are relevant: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6]. The Federal Circuit Court ordinarily considers whether the applicant has at least an arguable case that the Tribunal fell into jurisdictional error. That is because it will seldom be in the interests of the administration of justice to grant an extension of time where the proposed application has little or no prospects of success: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585 at [62].
26 These principles apply with equal force to an application for an extension of time under s 477A(2) in the context of an application for judicial review in the Federal Court, given that s 477(2) and s 477A(2) are relevantly in identical terms.
27 Importantly, in considering the merits of the proposed application, the draft grounds of judicial review should be considered on their face and examined only at a “reasonably impressionistic level”: the Court should not descend into a fuller consideration of the arguments for and against each ground: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J) (approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] (the Court)).
28 For the reasons set out below, the applicant has established a reasonable explanation for the delay and the extension of time should be granted save for ground 4 which lacks sufficient prospects of success.
3.2 Has a reasonable explanation been given for the delay?
29 The applicant relied upon his affidavit dated 27 March 2020 in support of the application for an extension of time in which he alleged that the Tribunal denied him procedural fairness and that there was insufficient or no evidence to support various findings by the Tribunal. The applicant does not specifically depose as to the reasons for the delay. However, he annexed to his affidavit a letter dated 26 April 2020 and addressed to the Sydney Registry of the Federal Court headed “Extension of time” which stated that:
Regarding my application to Federal court was not lodged within 35 [days] and requesting extension of time the reason why my application did not made on time is due to Please refer to my attach document (Exhibit 1) a Transmission faxed copy showing that Serco Department incharge of villawood detention centre had faxed my papers to the federal court fax number (02) 9230 8295. On friday 24/04/2020 I made a call to regestry to find my current statues of application since I recived no response from registry and I was told my application was not recived by registry and I have resen my documents.
I Would really appreciate if Court could grant me extension of time according to law
(errors in the original)
30 The attached document is entitled “TX Result Report” and is an automatically generated report of the attempt to fax the applicant’s affidavit to the Federal Court fax number from Villawood, displaying the first couple of paragraphs of the applicant’s affidavit. The fax report establishes that there was an attempt to fax the affidavit to the Federal Court fax number. However, despite stating “OK” under the heading “Result”, nonetheless the fax report indicates in small script that there was an error in transmission for reasons which appear to have resulted in the refusal of receipt of the fax. Based upon that evidence which was not challenged, I infer that, through no fault of the applicant and unbeknown to him, the fax was not in fact received by the Federal Court.
31 After calling the Federal Court Registry on 24 April 2020 to inquire as to the status of his application, the applicant was told that his application had not been received. He then promptly arranged for the application to be filed under cover of the letter dated 26 April 2020.
32 For these reasons, I accept that the applicant has given a reasonable explanation for the delay.
3.3 Does the application have any reasonable prospects of success?
33 The primary issue on the application is, therefore, whether the application would have any reasonable prospects of success. I have considered the grounds set out in the draft amended originating application in light of the applicant’s written submissions. From a reasonably impressionistic perspective, I consider that grounds 1, 2 and 3 (which are interrelated) and ground 5 do not lack merit. In the circumstances, therefore, an extension of time should be granted with respect to these grounds. However, I do not consider that ground 4 has any reasonable prospects of success.
34 By ground 4, the applicant contends that, in determining whether his fiancée was “immediate family” for the purposes of para 14.2(1)(b) of Direction 79, the Tribunal “needed to (and should have) found that [the applicant] and [his fiancée] were in a de-facto relationship”. “Member of the immediate family” has the meaning given by reg 1.12AA of the Migration Regulations 1994 (Cth) and includes a person’s de facto partner. Paragraph 14.2(1)(b) of Direction 79 in turn reflects the principle articulated in para 6.3(7) of the Direction which is part of the framework set out in para 6.3 within which decision-makers are to approach their task of deciding whether to revoke a mandatory cancellation under s 501CA. Paragraph 6.3(7) provides that:
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.
35 With respect to ground 4, it is true that the Tribunal did not make any express finding that the applicant and his fiancée were in a de facto relationship. Nonetheless, the Tribunal referred to the applicant’s fiancée in the context of considering the strength, nature and duration of his ties with Australia under para 14.2(1)(b) at [164], in line with the respondent’s concession (quoted at TR [162]). Fairly read, the Tribunal then treated Ms T as a member of the applicant’s immediate family for the purposes of Direction 79, in attributing a moderate measure of weight to the strength, duration and nature of the applicant’s links with his immediate family (at [165]). The contrary suggestion in ground 4 is, in my view, without merit.
4. CONSIDERATION OF THE APPLICATION
36 The relevant principles pertaining to the substantive application are well settled and may be summarised briefly as follows.
37 First, the burden lies upon the appellant to demonstrate jurisdictional error: Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ); Matthews v Minister for Home Affairs [2020] FCAFC 146 (Matthews) at [28] (the Court).
38 Secondly, as the Full Court also held in Matthews:
29. … the appellant’s representations made pursuant to the invitation under s 501CA(3) must be considered by the Minister and, therefore, by the Tribunal on review standing in the Minister’s “shoes”. As such, the representations constitute a mandatory relevant consideration: Minister for Home Affairs v Buadromo [2018] FCAFC 151; (2018) 267 FCR 320 (Buadromo) at [41] (the Court). However, as the Full Court further explained in Buadromo, “they are a mandatory relevant consideration as a whole and not as to the individual statements contained in the representations”: ibid (emphasis added); see also e.g. Navoto v Minister for Home Affairs [2019] FCAFC 135 (Navoto) at [84] (the Court); and Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 (Omar) at [34 (e) and (g)] (the Court). Consistently with this, it is generally unnecessary for the Tribunal to refer to every piece of evidence or contention advanced by the appellant: Buadromo at [48]-[49]; Navoto at [88].
(emphasis in original)
39 Furthermore, as earlier explained, it was not in issue that the Tribunal was bound by Direction 79 and therefore required to have regard to the Primary and Other Considerations identified in the direction. As such those considerations were also relevant considerations in a jurisdictional sense: Matthews at [30].
40 Thirdly, the Full Court held in Navoto v Minister for Home Affairs [2019] FCAFC 135 (Navoto) that:
85. … if a decision-maker under s 501CA(4) of the Act overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked, which if accepted would or could be dispositive of the decision, the decision-maker may, depending on the seriousness of the error, commit a jurisdictional error…
41 Furthermore, the Tribunal is required to give active intellectual or meaningful consideration to “a substantial, clearly articulated argument” to the effect described: Navoto at [87]; Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 373 ALR 569 (Omar) at [34 (i)] and [36]-[37]. Importantly, this requires, as Allsop CJ (with whom the remainder of the Full Court agreed) explained in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628 (Hands), that:
3. … where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people.
(emphasis added)
42 This passage was recently quoted with approval by the Full Court in Omar at [37], which at [36] also emphasised a passage from Kiefel J’s reasons (as her Honour then was) in Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451 at 495 as follows:
To “consider” is a word having a definite meaning in the judicial context. The intellectual process preceding the decision of which s 10(1)(c) [of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth)] speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say.
43 Finally, a legal error by an administrative decision-maker will generally not sound in jurisdictional error if it was immaterial or not critical to the ultimate conclusion: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 (Hossain) at [29]-[30] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA); and AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 at [41(f)]. As Bell, Gageler and Keane JJ explained in SZMTA, “[a] breach is material to a decision only if compliance could realistically have resulted in a different decision” (at [45]; emphasis added). In turn, save where the decision made was the only decision legally available to be made:
… the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.
(SZMTA at [46])
44 In expanding upon the correct approach to materiality in the context of a finding that the Minister had failed to appreciate that the lack of an obligation to accord procedural fairness in that case did not entail a lack of power to do so, Mortimer and Bromwich JJ in Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66 (Chamoun) explained that:
66. … We are not required to be satisfied it is more likely than not [that the Minister] would have exercised the power he did not appreciate he had, only that there is a realistic possibility he might have. In our opinion, the adjective “realistic” in the statements of principle by the majority in the High Court in Hossain and Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 364 CLR 421 is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable, no more than that.
(emphasis added)
45 Their Honours further emphasised that particularly where questions of discretion and weight are involved, the Court must ensure that any assessment of materiality on judicial review does not stray into the areas of merits review (Chamoun at [69]). Rather, their Honours explained that:
70. On judicial review, where there is an identification of legal error and an assessment of whether it was an error which should be characterised as jurisdictional, there is a significant element of reconstruction involved. The reviewing court is asking: what if the repository of the power had (relevantly here) properly understood the nature of his power? That reconstructive exercise cannot simply be done by taking the reasons and findings as they stand, because those reasons are a product which incorporates the misunderstanding. The approach must be more objective, and nuanced, than that. Otherwise, there is a risk that the decision-maker’s reasons are used in a way which amounts to prejudgment. Such prejudgment would itself normally give rise to error. It cannot be used as proof of immateriality.
(emphasis added)
(See also Nguyen v Minister for Home Affairs [2019] FCAFC 128 at [45]-[51].)
4.2 Did the Tribunal lawfully consider the hardship to the applicant’s immediate family in Australia if the visa cancellation was not revoked (Ground 5)?
46 By ground 5, the applicant alleges that the Tribunal was required to, but did not, consider the “practical, emotional and financial hardship” to the applicant’s immediate family in Australia if he were removed for the purposes of para 14.2(1)(b) of Direction 79. (I note that the amended originating application was further amended without opposition at the hearing of the application to include the reference to emotional hardship.)
47 It was not in issue that the Tribunal was required to engage in an active intellectual way with the consideration in para 14.2(1)(b) in line with the principles set out above. Paragraph 14.2(1) relevantly provides that:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at para 6.3, decision-makers must have regard to:
…
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
(emphasis added)
48 The applicant’s immediate family consisted of his mother, father, and two sisters who are all New Zealand citizens permanently residing in Australia. Each of them holds a Class TY Subclass 444 Special Category (Temporary) visa and is entitled to live and work in Australia indefinitely (CB at 129, 377-382). The Minister did not dispute that the applicant’s fiancée is an Australian born citizen who was also a member of his immediate family for the purposes of paragraph 14.2(1)(b). The Minister also correctly submitted that, fairly read, the Tribunal accepted that the applicant’s fiancée was to be treated as such for the purposes of para 14.2(1)(b) in its reasons at [164] and [165] (as I earlier held in relation to proposed ground 4). As such the Tribunal was required to consider the effect of non-revocation on these individuals.
49 The applicant referred to the evidence of his mother of the financial impact when the applicant was in prison upon her and her husband, and the strength of the relationship between the applicant and his sister (CB140 and 143 respectively; AS at [61]-[62]). In my view, it can reasonably be inferred that the Tribunal had regard to those impacts upon these members of his immediate family. However, while I do not consider that it can be necessarily be inferred that the Tribunal overlooked the evidence as to the impact on the applicant’s fiancée if he were removed, I do not consider that that impact was lawfully considered in accordance with the principles articulated in Hands for the reasons I explain below.
50 In this regard, the evidence as to the impact upon Ms T if the applicant were deported assumed a high degree of prominence in his case before the Tribunal such that it was, in my view, plainly “a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked, which if accepted … could be dispositive of the decision” (Navoto at [85] (as quoted earlier above)). This is apparent from documents before the Tribunal, even though the transcript of evidence before the Tribunal was not in evidence.
51 First, in a lengthy letter to the Department in support of the request for revocation of the cancellation decision undated but sent under cover of an email dated 10 December 2018 (CB 135-139), the applicant’s fiancée explained that:
(1) she and the applicant met when she was 15 years of age in year 9 at high school and began dating in July 2011;
(2) over the years, their relationship grew stronger and the applicant had looked after her when she was suffering from depression, stress and anxiety during her final year of school;
(3) they became engaged in April 2017; and
(4) “[w]e had often spoken about getting married after I completed my studies and those plans I made with my best friend remain as strong as ever in my heart”.
52 However she said that:
In March 2018, our lives changed for ever. During the first semester of the third year of my Occupational Therapy degree, [the applicant] was placed into custody. From that moment on, being without him has affected my life negatively in every way possible. I was not able to concentrate during classes and barely managed to pass my assessments and examinations. My mental health was at risk as my depression and anxiety were resurfacing five years after [the applicant] had helped me overcome them. Although he was away from me physically, I vowed to be with him through this difficult journey spiritually and emotionally.
This is been the hardest six months of my life. Although I know that I am not alone, I struggle to cope with everyday life knowing that my soul mate and future husband is more than 200km away from me. Not being able to hear his voice and feel his touch after he gets home from work pains my heart and brings back those dark feelings that I would never wish on anybody. On the days that I do get to hear his voice again, my mood is instantly lifted and it makes me feel like I could take on the world with him beside me.
In the beginning of September 2018, I received a phone call from [the applicant] telling me there was a possibility he could be deported to New Zealand. I was left heartbroken and shattered when the phone call was finished. I tried my best to hold in my emotions while talking to [the applicant] but after hanging up, my world fell apart. I thought about our future and what that would mean for not only me but for his family who have been missing him as much as I do. For almost a decade we have made plans and been excited to get married and start our very own family. I was to become an Occupational Therapist while [the applicant] would continue working hard at his job [with his former employer].
53 After then describing in some detail her observations of the applicant’s relationship with his family and the extent of his rehabilitation, Ms T concluded her letter, saying that:
Please consider the effect his removal from Australia would have on me and his family. If he were removed it would mean that we would never see each other again as I cannot afford to travel to visit him in New Zealand which would also mean the end of our relationship… As detailed above, our relationship is extremely strong and being separated from [the applicant] in two different countries would destroy my entire world. [The applicant] has a very bright future here with me and our large, loving and supportive families and it would absolutely break us if we could never see him again. We have so much to look forward to in Australia and so many more positive memories to create as our very own little family.
54 Thirdly, in a lengthy statement also forwarded to the Department under cover of the same email as the fiancée’s letter, the applicant detailed the steps which he had undertaken to rehabilitate himself and his abstinence from drugs (cannabis) and alcohol, including his completion of the Young Adult Offenders Program over a period of four months of which he was understandably proud. He also explained his relationship with his family and, in particular, with respect to his fiancée said that:
I have been with my partner… for more than eight years. She is an Australian citizen and always strives for me to be a better person. We met in high school while we were in year 9. Being in such a strong and long relationship, the effect it has had on us both has been tough. However, I am lucky to have someone like her who has always been there for me and was willing to stick by me through this whole time. When I was arrested for my offence, she couldn’t believe why I would do something like that. She was in disbelief and was so upset when I could not even explain why did it. We had so many plans for the future and she was very disappointed in me. I made a promise I would never do anything like that again and I made a lot of changes prior to being in prison.… I love my partner and I am so sorry to her and what I have done to our relationship. I proposed to her prior to my sentencing and I am happy to say that she said yes, but has promised to put our plans on hold until after I am released. She is very excited to make it official to our family and friends but has been worried and upset about my possible visa cancellation. She herself has had a lot to lose so we haven’t thought about what we will do if I am deported. I don’t have any family in New Zealand so this is such a hard time in my life. My partner and I have always maintained contact though [sic] many daily phone calls and weekly visits throughout my entire sentence. I cannot express how much hurt it will cause myself, my family and my partner if my visa was to be revoked.
55 Fourthly, in the reasons for refusing to revoke the visa cancellation, the delegate directly addressed the impact upon the applicant’s fiancée, as well as the other members of his family, of a non-revocation decision finding, among other things, that: the applicant’s imprisonment and subsequent detention had been hard for his family including his fiancée; and that a non-revocation decision “will result in emotional hardship for his immediate family in Australia” (CB 89 at [65]). More specifically, the delegate found that:
66. In his representations [the applicant] advises that he has been in a relationship with an Australian citizen, Ms [T], since they were in High School in Year 9. He states that Ms [T] agreed to marry him in 2017, however as he was on bail at the time, they put their plans on hold. He submits that his fiancé remains supportive of him, has been devastated ever since his arrest and should his visa remain cancelled, it may impact on her mental health and adversely impact upon her ability to complete her university studies.
67. [The Applicant’s] fiancé, Ms [T], describes her relationship with [the applicant] as being loving and supportive. She states that she and [the applicant] have been friends since Year 9, and that she has been his girlfriend since 2011 and his fiancé since April 2017. I accept that since [the applicant’s] imprisonment Ms [T] has struggled to cope and that she was “heartbroken and shattered” to learn that [the applicant] may be deported.
68. I have considered the effect of non-revocation upon [the applicant’s] immediate family in Australia and accepted that those persons would experience emotional hardship.
(CB 89)
56 It follows that, while ultimately the delegate gave greater weight to Primary Considerations A and C, the impact upon Ms T was rightly regarded by the delegate as a substantial, clearly articulated argument put forward by the applicant in favour of revocation and, indeed, it accepted the devastating impact that deportation would have upon her. This impact included the potentially detrimental impact upon her capacity to complete her tertiary qualifications which (as the Tribunal observed at [108]) she had not completed when the Tribunal made its decision.
57 With respect, no such appreciation of the significance of the contentions put as to the impact upon the applicant’s fiancée is evident from the Tribunal’s reasons. The Tribunal referred to Ms T at three points in its reasons as follows.
(1) First, the Tribunal referred at [8] to the fact that oral evidence was given relevantly by the applicant and his fiancée, and listed the applicant’s statement and the letter from his fiancée in the exhibit list attached to its reasons.
(2) Secondly, the Tribunal referred to Ms T’s evidence in the context of considering Primary Consideration A (protection of the Australian community) and, more particularly, the likelihood that the applicant may engage in further criminal or other serious conduct, in the following passage:
108. The Applicant’s fiancée has provided both a written statement and oral evidence at the hearing. The relationship between her and the Applicant is palpable and genuine. They have been together since mid-2011. She seems a mature, sensible and intelligent young lady who will soon complete tertiary qualifications in occupational therapy. She wants to utilise those skills and qualifications in the aged care sector and to make that her career. In his evidence, the Applicant sought to suggest that his relationship with his fiancée was, to him, sacrosanct and that the importance of the relationship to him would deter him from offending in the future.
109. Such a contention must be weighed against the reality that the subject relationship spans virtually the entire period of the Applicant’s offending history. The relationship did not stop the Applicant from commencing his offending, nor did the relationship prevent the increase in the seriousness of his offending conduct. Having regard to the nature of the Applicant’s offending history, superimposed, as it is, over almost precisely the same period of time of his relationship with his fiancée, it is difficult to allocate any positive weight in favour of the Applicant to such a contention.
(CB 31)
(3) Under the heading “Strength, nature and duration of ties”, the Tribunal set out at [162], but did not (expressly at least) adopt, the “limited concessions made by the Respondent”, including relevantly:
The respondent accepts that the applicant’s immediate family (father, mother and 2 sisters), as well as his fiancée, are in Australia and would be affected by his removal to New Zealand. They understandably wish for him to remain in Australia.
(emphasis added)
(4) Otherwise under this heading the Tribunal simply referred to the fact that the applicant had a fiancée at [164] and concluded without further explanation that:
165. Given the size of the strength, duration and nature of the Applicant’s family/social links with members of his immediate and extended family in Australia, a moderate measure of weight is attributable to this Other Consideration (b) pursuant to paragraph 14.2(1)(b) of the Direction.
58 No other reference is made to the fiancée or the impact upon her of a decision not to revoke the cancellation decision in the Tribunal’s reasons.
59 With respect, the Tribunal’s reasons fall well short of demonstrating that it grappled in any meaningful way with the impact that a decision not to revoke the cancellation decision would have upon the applicant’s fiancée. Even assuming (which is unclear) that the Tribunal intended to adopt the respondent’s concession set out at [162] of its reasons, that concession was “limited”, as the Tribunal acknowledged. To say simply that the applicant’s fiancée would be “affected” by his removal and wished him to remain cannot on any view constitute an honest confrontation of what was being done to Ms T if he were to be removed (adapting the language of Allsop CJ in Hands). It follows that I do not accept the Minister’s submission that it was understandable that the Tribunal dealt with the issue briefly because the impact upon her was not in issue. There is, for example, nothing suggesting any appreciation of the potential impacts upon Ms T’s mental health, her capacity to complete her tertiary studies, and otherwise by separating, perhaps permanently, two young people who had been together since high school and had committed to building a life and bringing up a family together. Equally, the basis on which the Tribunal reached the view that only “a moderate measure of weight” could be attributed to the strength, duration and nature of the applicant’s links with his immediate and extended family is entirely opaque and again does not suggest that the Tribunal engaged in a genuine consideration of the human consequences of making a decision not to revoke the cancellation decision insofar as Ms T was concerned.
60 It follows that the applicant has established that the inference to be drawn from the Tribunal’s reasons is that it has failed to engage in a real consideration of the impact of a non-revocation decision upon the applicant’s immediate family and therefore to comply with the obligation to have regard to para 14.2(1)(b) of Direction 79 under s 499 of the Act.
61 Finally, this error was material to the Tribunal’s decision in the sense that it was possible that, if the Tribunal had lawfully considered the impact upon the applicant’s fiancée in accordance with para 14.2(1)(b) of Direction 79, it may have led to a different outcome (see above at [43]-[45]). In this regard, the impact upon Ms T, who was an innocent third party to the offending, constituted a prominent and significant aspect of the applicant’s submissions as to why the visa cancellation decision should be revoked. Furthermore, the Tribunal accepted at [108] in the context of considering the risk that the applicant might reoffend, that the relationship between the applicant and Ms T was “palpable and genuine” and was clearly impressed by Ms T’s evidence, finding that she “seems a mature, sensible and intelligent young lady”. Moreover, para 8(4) of direction 79 provides that “[p]rimary consideration should generally be given greater weight than the other considerations”, it does not provide that primary considerations should invariably be given greater weight. As such, it was possible that properly considered, the evidence as to the impact that a non-revocation decision might have upon Ms T might potentially have “tipped the balance” in favour of revoking the cancellation decision.
62 By ground one, the applicant claims that the Tribunal made findings which were irrational and illogical, namely:
(1) the applicant lacked insight into his offending (TR at [110]) and there was “no evidence before the Tribunal adduced at the hearing to demonstrate that the Applicant’s level of insight into the nature of both his offending and its causes was any greater than it was at the time of his sentencing before Judge English” (TR at [112]); and
(2) the applicant’s risk of reoffending was presently “high” (TR at [116]).
(grounds 1(1) and (2) respectively).
63 As a result, the applicant contended that the Tribunal fell into jurisdictional error given the significance of the applicant’s risk of recidivism to a consideration of Primary Considerations A and C of Direction 79. (I note in this regard, that the challenge in ground 1(2) to the finding at [110] ultimately depended upon the Court accepting that the finding at [112] was illogical or irrational.)
64 As to the applicable principles, Crennan and Bell JJ explained in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [133] that “the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it”. As their Honours continued:
135. … Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision-maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
65 First, with respect to ground 1(1) challenging the Tribunal’s findings as to the applicant’s lack of insight into his offending, the Tribunal found at [112] that:
In assessing the Applicant’s risk of re-offending, a decision-maker is required to “take into account available information and evidence on the risk of the non-citizen re-offending…” There is no such evidence before the Tribunal. There was no evidence adduced at the hearing to demonstrate that the Applicant’s level of insight into the nature of both his offending and its causes was any greater than it was at the time of his sentencing before Judge English.
(emphasis added)
66 The applicant said that the jurisdictional error lay in the Tribunal’s finding that there was no evidence at all demonstrating that the risk of recidivism was reducing. The Minister, however, contended that that submission was based upon a misreading of the Tribunal’s reasons. As such, the ground to this extent turns upon the proper construction of the Tribunal’s reasons.
67 It is well established that the reasons of an administrative decision-maker “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (Brennan CJ, Toohey, McHugh and Gummow JJ (quoting with approval Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287)). As such, when it is said that such reasons should be read beneficially, ultimately this means that “a commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the Tribunal was saying”: Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14]-[15] (Allsop J (as his Honour then was)).
68 In this regard, it is important to bear in mind that the Tribunal considered that the applicant’s level of insight into his offending was a relevant factor in determining whether he had rehabilitated himself and therefore the extent of the risk that he might re-offend. It was not a stand-alone consideration.
69 Bearing that in mind, I do not accept that the Tribunal’s reasons at [112] should be read as denying that there was any evidence at all addressing the question of whether the applicant had gained any greater insight into his offending since he was sentenced for the 2016 offences. Plainly there was evidence on that issue, including that of the applicant himself. However, the Tribunal’s finding at [112] was based on its finding at [110] that the applicant’s evidence was “unimpressive” because it considered that the applicant “lacks the insight about his offending that he would have otherwise received from external and expert diagnosis. As a result, the only (and thus ‘unimpressive’) evidence the Applicant could provide about his risk of re-offending was that he had [personally] rehabilitated himself from the negative or causative propensities behind it” (emphasis added). Similarly, in concluding on the risk that the applicant would re-offend, the Tribunal found that:
116. The state of the evidence means that he is nowhere near convincing this Tribunal that he has engaged with a process demonstrative of any meaningful or effective treatment or other expert and clinical intervention-based therapies necessary to demonstrate that his risk of re-offending could somehow move downwards from its present high level.
70 It follows that, fairly read in the context of the Tribunal’s reasons as a whole, its reference to “no evidence” at [112] is a reference to there being no independent or expert evidence confirming or corroborating the applicant’s evidence on this issue, and therefore no evidence of sufficient weight to persuade the Tribunal that the applicant had gained new insights into his offending and was rehabilitated. It was not an assertion by the Tribunal that, as a legal proposition, there was a complete absence of evidence on the topic: see by analogy Wickramasinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 30 at [18] (the Court) (applying A v Minister for Immigration and Multicultural Affairs [1999] FCA 227 at [1] (Burchett and Lee JJ) and [19]-[27] (Katz J)). That being so, the applicant’s disagreement with the Tribunal’s findings at [112] (and therefore [110]) is, in truth, a disagreement with the weight given to particular information and, therefore, with the merits which the Court has no power to consider on a judicial review application: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J); Federal Commissioner of Taxation v Primary Health Care Ltd [2017] FCAFC 131; (2017) 252 FCR 496 at [21] (the Court). As such, ground 1(1) is not established.
71 Secondly, in support of ground 1(2) challenging the Tribunal’s finding that there was a high level of risk that he would reoffend at [116], the applicant relied upon various documents before the Tribunal including the pre-sentence report prepared by the Corrections Officer in relation to sentencing for the 2016 offence which assessed that there was a “low/medium risk of reoffending” or “low risk” (CB 212), as well as his completion of the Young Adult Offenders Program, the Gurnang Life Challenge, and the EQUIPS Foundation Program of Corrective Services. The applicant also relied upon the references to the psychologist’s report in the sentencing remarks of Judge English at CB 98 and 100-101 albeit that it was common ground that the psychologist’s report referred to was not before the Tribunal. In addition, the applicant relied upon the evidence of his fiancée to the Department that he no longer uses drugs or consumes alcohol and “immediately ceased all communication and ties with people he once considered his friends” (CB 138), as well as his mother’s evidence to similar effect (CB 141). Based upon this information and in particular the evidence before the sentencing judge by people trained in assessing the risk of recidivism, the applicant submitted that it was unreasonable and illogical for the Tribunal to reach the view that there was a high level of risk that he would re-offend.
72 In my view, ground 1(2) is not established.
73 First, the Tribunal’s finding is based in part on its assessment that the applicant lacked insight into offending which, for the reasons already given, was lawfully made.
74 Secondly, the Tribunal was not bound by the opinions expressed in the pre-sentence report or the psychologist’s report tendered before Judge English; nor was it bound by the delegate’s view that the risk of re-offending was “low” (CB 212 and CB86 [49] respectively). To the contrary s 501CA(4) fell to be applied afresh by the Tribunal on review because it stands in the “shoes” of the delegate in deciding for itself what is the correct and preferable decision based upon the evidence before it: Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286; Matthews at [9] (the Court).
75 Thirdly, the Tribunal accepted that the applicant’s completion of various programs while in criminal custody and immigration detention was commendable, but found that:
… it falls well short of the necessary expert in independent clinical evidence that (1) the causative factors of the Applicant’s offending have been identified, and (2) that those factors are under some kind of remedial treatment, management and control such that it can be reliably found that the Applicant’s risk of re-offending is low.
(TR at [106])
76 The Tribunal also took into account the “upward trajectory” of the applicant’s offending, as well as his breaches of prison rules.
77 Fourthly, while the Tribunal took into account the applicant’s fiancée’s evidence and was clearly impressed by her evidence, it gave her evidence that their relationship would deter him from re-offending little weight given that their relationship had not prevented the applicant from offending in the past or prevented the increase in the severity of his offending (TR at [108]-[109]).
78 In short, the Tribunal found that little if any weight could be given to the applicant’s evidence that he had rehabilitated himself by personally abstaining from abuse of alcohol, illicit drugs, and gambling in circumstances where it was not corroborated by independent expert evidence and he had not sought expert help with these serious mental health issues (TR at [104]). As such, the Tribunal gave rational and logical reasons for its conclusion. The fact that another decision-maker might disagree, even strongly, with the Tribunal’s conclusion is not a basis on which this Court can interfere: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [35]-[36] (the Court).
79 It follows, given the proper construction of the Tribunal’s reasons, that grounds 2 and 3 of the further amended application must also be dismissed. By ground 2, the applicant contended that the Tribunal imposed a requirement that there must be independent and expert evidence before it could be satisfied that there was “another reason” for the purposes of s 501CA(4)(b)(ii) to revoke the cancellation. Ground 3 claimed in the alternative to ground 2 that the Tribunal breached its obligation to accord procedural fairness to the applicant in failing to inform him that it would or could only reach a state of satisfaction if expert evidence addressing the risk that the applicant might reoffend were led. However, for the reasons already given, the Tribunal’s reasons went no higher than to reject the applicant’s evidence that he was effectively rehabilitated on the state of the evidence (in particular, the absence of evidence of effective expert diagnosis and treatment), and that finding was open to the Tribunal notwithstanding that another decision-maker might have reached a different view.
80 For the reasons set out above, the decision of the Tribunal must be quashed and the matter remitted to the Tribunal to be determined according to law. The first respondent should pay the applicant’s costs as agreed or assessed.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry. |
