Federal Court of Australia

Tran v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 75

ORDERS

THE COURT ORDERS THAT:    

1.    The application for judicial review is dismissed.

2.    The applicant is to pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an application under s 476A(1)(b) of the Migration Act 1958 (Cth) (the Migration Act) seeking judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) not to revoke under s 501CA(4) the cancellation of Mr Tran’s Class BB Subclass 155 Five Year Resident Return visa (the visa).

2    While the Minister filed written submissions in accordance with the timetabling orders made on 26 August 2020, no written submissions were filed by Mr Tran. He appeared unrepresented with the assistance of an interpreter in English and Vietnamese at the hearing of his application.

3    For the reasons set out below, the application must be refused with costs.

2.    BACKGROUND

2.1    The request for revocation of the Delegate’s decision to cancel Mr Tran’s visa

4    Mr Tran is a citizen of Vietnam. He arrived in Australia in the late 1980s at the age of 17. On 1 June 2017, he was convicted in the Local Court of New South Wales of a number of offences for which he received a sentence of 12 months’ imprisonment. That sentence was confirmed on appeal by the District Court of New South Wales on 7 August 2017. As a consequence, on 14 September 2017, a delegate of the Minister (the delegate) mandatorily cancelled Mr Tran’s visa under s 501(3A) of the Migration Act on the ground that he had a substantial criminal record and therefore did not pass the character test under s 501(6)(a) of the Migration Act (CB 202–203). This followed from the fact that Mr Tran had been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment in a custodial institution on a full-time basis.

5    Pursuant to s 501CA(4) of the Migration 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.

6    Mr Tran made representations to the Department of Immigration and Border Protection (the Department) on 27 September 2017 for the purposes of s 501CA(4), requesting that the Minister revoke the decision to cancel his visa (CB 172–173).

7    On 31 May 2018, the Minister’s delegate decided not to revoke the visa cancellation (CB 13). That decision was affirmed by the Tribunal on 21 August 2018 (CB 242). On 23 September 2019, a single judge of this Court ordered by consent that the Tribunal’s decision be quashed on the basis that it had failed to consider the best interests of all minor children in Australia as required by clause 13.2 of Direction No. 65: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65). By virtue of s 499(2A) of the Migration Act, the Tribunal was required to comply with Direction 65. As a result, the matter was remitted to the Tribunal for a rehearing according to law (CB 324).

2.2    The Tribunal’s decision

8    Following a hearing on 29 April 2020, on 22 May 2020 the Tribunal, differently constituted, affirmed the delegate’s decision (CB 360).

9    By way of background, the Tribunal found that Mr Tran had a lengthy criminal history, having spent more than eight and half years in prison, and been convicted of 54 offences in Australia before he was taken into immigration detention in August 2017. It found that those criminal convictions included:

(1)    five offences involving violence;

(2)    11 offences involving stealing;

(3)    12 offences involving drugs;

(4)    two offences involving firearms; and

(5)    19 driving offences

(Tribunal reasons (TR) at [7]).

10    Mr Tran had also been warned in 2005, 2007 and 2012 of the risk that his visa may be cancelled if he reoffended (TR at [9]–[10]).

11    It was not in issue before the Tribunal that Mr Tran did not meet the character test (TR at [11]). As such the Tribunal found that the issue before it was “whether, having regard to Ministerial Direction 79 (‘the Direction’), the Tribunal should exercise its discretion in revoking the mandatory cancellation of the applicant’s visa” (TR at [12]). As I later explain, the reference to a “discretion” was an error, although ultimately I find that it was not material to the Tribunal’s decision.

12    Under Direction No. 79: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a Visa under s 501(1) of the Act (Direction 79), the Tribunal was required to take into account the primary and other considerations specified in and relevant to Mr Tran’s case in determining whether or not to revoke the cancellation of his visa: Direction 79 at [8]; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591 at [41] (the Court).

13    As the Tribunal noted at [15], 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).

14    Paragraph 14(1) of Direction 79 provided a non-exhaustive list of the Other Considerations required to be taken into account, as the Tribunal acknowledged at [16]. These included the “Strength, nature and duration of ties” (referring to an applicant’s ties with Australia), and “Extent of impediments if removed” (referring to the extent of impediments which an applicant may suffer if returned to her or his country of origin).

15    First, the Tribunal found that it was necessary for it to consider the evidence in accordance with Direction 79. This direction post-dated and superseded Direction 65 which had been applied by the first Tribunal (TR at [13]).

16    Secondly, with respect to Primary Consideration A, the Tribunal found that Mr Tran had a history of repeated offending, incurring some 54 convictions and that 11 of those convictions had resulted in sentences of imprisonment for more than a year (TR at [25]). It further found that a number of these were violent offences “of very serious concern” (TR at [23]). While the most serious crimes involving violence and abuse towards his victim’s elderly in-laws and their disabled child had occurred in 1996, the Tribunal found that they could not be discounted given “the applicant’s apparent disregard of the rights of others and the length of the sentence he received, namely five years” (TR at [24]). The Tribunal also considered that it was “of serious concern” that Mr Tran had ignored the three warnings from the Department in July 2005, October 2007, and October 2012. In the Tribunal’s view, “[c]learly neither imprisonment nor very specific warnings as to the possible cancellation of his visa had any effect on the applicant’s behaviour” (TR at [28]). The Tribunal found that there was a real risk that Mr Tran would reoffend, given among other things that:

(1)    in the past Mr Tran did not appear to have been prepared to change his conduct despite his evidence that he wished to care for his family;

(2)    the fact that there was “very little evidence to indicate that he has a low chance of recidivism” despite assurances given by him in the past;

(3)    Mr Tran’s long history of criminal offences over 24 years and his long-standing drug addiction;

(4)    remarks of sentencing judges;

(5)    the lack of evidence of engagement with any serious counselling; and

(6)    Mr Tran’s failure to heed prior warnings from the Department (TR at [29]–[38]).

17    As to Primary Consideration B, the Tribunal found that Mr Tran had a “strong bond” with his children and stepchild even though he had spent a long period of their lives in prison or immigration detention, and that it would be “a major wrench” for them if he were to be removed to Vietnam where they would be unlikely to see each other often (TR at [39]–[45]). As such, the Tribunal found that Primary Consideration B weighed in favour of revocation and gave it “significant weight” (TR at [47]).

18    As to Primary Consideration C, the Tribunal correctly found that it was not for the Tribunal to determine for itself the expectations of the Australian community (at [48]–[49]). The Tribunal continued to find that:

50. The applicant’s extensive and violent criminal history criminal history [sic], his failure to heed judicial or departmental warnings or change his conduct substantially, demonstrate that he does not meet the expectations of the Australian community. This consideration weighs heavily against revocation of the Delegate’s decision.

19    With respect to the other considerations in Direction 79, the Tribunal had regard to the strength, nature and duration of Mr Tran’s ties to Australia, including his familial connections, which were found to weigh in his favour and given “moderate weight” (TR at [54]). The Tribunal also found that there were impediments to Mr Tran’s return to Vietnam including that he would find some difficulty in obtaining suitable employment, and that these weighed moderately in favour of revocation (TR at [55]–[60]).

20    The Tribunal concluded that the correct and preferable decision was to affirm the delegate’s decision on the ground that “the applicant’s long history of criminal offences, the seriousness of those offences, his failure to heed warnings and the likelihood of his reoffending outweigh those considerations in his favour” (TR at [62]).

3.    CONSIDERATION

3.1    Relevant principles

21    It is helpful briefly to summarise the relevant principles for determining whether Mr Tran has established that the Tribunal’s decision should be set aside and the matter remitted to the Tribunal to reconsider Mr Tran’s request for his visa to be reinstated.

22    First, the burden lies upon the applicant 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).

23    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 the original).

24    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].

25    Thirdly, in determining the application for judicial review, it is important to emphasise the limited jurisdiction of the Court to overturn a decision of the Tribunal. The Court’s jurisdiction is confined to deciding whether the Tribunal’s decision was made lawfully under the Migration Act, that is, whether the Tribunal’s decision is invalid by reason of a jurisdictional error. The Tribunal would make a jurisdictional error if, for example, there was no evidence to support critical findings made by the Tribunal in deciding not to revoke the cancellation decision or if it failed to hear and determine the applicant’s application for revocation of that decision in accordance with the requirements of procedural fairness: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court). However, the Court has no jurisdiction to decide for itself whether or not the cancellation of the applicant’s visa should be revoked, or to correct mistaken findings of fact by the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). The question of whether or not the Court agrees with the Tribunal’s decision is not, therefore, a basis for finding that decision invalid, even if another decision-maker might have taken a different view of the evidence and reached a different decision.

26    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 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) at [45] (Bell, Gageler and Keane JJ); see also, eg AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 266 FCR 83 at [41(f)] (the Court). 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]).

3.2    Should the application for judicial review be upheld?

27    In his affidavit in support of his application made on 2 June 2020, Mr Tran alleges that the Tribunal’s decision is invalid on the following grounds:

(1)    the decision was unreasonable;

(2)    the Tribunal did not properly apply, or properly exercise its discretion under, ss 501CA and 501CA(4) of the Migration Act;

(3)    the Tribunal failed to take a relevant consideration into account;

(4)    there was insufficient or no evidence to support the Tribunal’s findings;

(5)    the decision involved an error of law; and/or

(6)    the Tribunal failed to comply with the rules of procedural fairness.

28    In principle, as the Minister accepted at the hearing, each of these grounds is capable of giving rise to an error of a jurisdictional kind and therefore providing a ground on which the Tribunal’s decision must be set aside. However, they are expressed at such a high level of generality that it is not possible to discern the nature of any error complained of by Mr Tran. Nor did Mr Tran file written submissions which might have assisted in identifying any specific error. In so saying, I am not intending to be critical of Mr Tran. Given that he was unrepresented, in immigration detention, and does not speak English, the failure to file written submissions to elaborate upon his grounds of review is entirely understandable.

29    At the hearing, Mr Tran submitted that:

(1)    he was not advised that he would be returned if he committed crimes; and

(2)    while he was given a number of warnings, the warning letters advised that his visa was liable to cancellation only if he served a sentence for criminal sentencing for more than 12 months in prison but since the warning, he had not served a prison sentence exceeding one year for any criminal offences.

30    Neither of these grounds, however, can succeed.

31    First, as earlier mentioned, Mr Tran received three warnings from the Department, as the Tribunal found at [8] to [10] of its reasons. The first warning in July 2005 advised in bold type that while a delegate had decided not to cancel his visa, “conviction for ANY further offences will result in a fresh assessment being made to again consider cancellation of your visa” (CB 152) (emphasis in the original). Mr Tran received a further warning from the Department on 26 October 2007 (CB 165). That letter gave a “formal warning” in bold in the following terms:

Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.

32    A third warning was given on 2 October 2012 (CB 169) which advised that:

… any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in consideration of the cancellation of your visa. The consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia

(emphasis in the original).

33    A copy of s 501 was attached to this letter. Mr Tran also, as requested in the letter, signed an acknowledgement of receipt of the warning letter (CB 171).

34    None of these warnings advised that Mr Tran’s visa could be cancelled only if he served a sentence for further offending of more than 12 months. To the contrary, in each case the advice was that any further criminal conduct could result in a reconsideration of the question of whether his visa should be cancelled. Furthermore, the last of these warning expressly advised that Mr Tran could be removed from Australia if his visa was cancelled on character grounds.

35    It is true that none of the letters warned that Mr Tran’s visa would be cancelled automatically under s 501(3A) of the Migration Act and it may be that this perceived omission lies at the heart of Mr Tran’s complaint. However, this is because s 501(3A) was enacted after the last of the warnings by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth), which came into force on 11 December 2014. There was no obligation in law for the Minister to advise Mr Tran that that amendment had been made to the Migration Act.

36    Secondly, Mr Tran’s submission that the Tribunal had not reinstated his visa merely because of his driving offences is, with respect, incorrect. The Tribunal considered the totality of his offending, as it was required to do under Direction 79 in order to have regard in particular to Primary Considerations A and C.

37    Thirdly, Mr Tran submitted that the Court should exercise compassion and permit him to stay in Australia given that his family lives in Australia. It is understandable that a lay-person in Mr Tran’s circumstances would seek leniency from the Court and assume that the Court could overturn the Tribunal’s decision. However, for the reasons I have earlier explained, the Court does not have the power to decide whether or not to revoke the visa cancellation on compassionate or any other grounds. It is limited to considering whether or not the Tribunal made a lawful decision under the Migration Act.

38    Fourthly, the Minister’s counsel properly drew the Court’s attention to two errors in the Tribunal’s reasons. At [12] and [13], the Tribunal identified the issue as whether or not it should exercise its “discretion” to revoke the mandatory cancellation of Mr Tran’s visa under s 501(1). However, the question for the Tribunal was relevantly whether or not the Tribunal was satisfied that “there is another reason why the original decision should be revoked” under s 501CA(4). If satisfied that there was another reason, the Tribunal was required to revoke the cancellation decision: AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205 at [16] (Perry J). While unfortunate, on a fair reading of the Tribunal’s reasons as a whole, it is apparent that the Tribunal in fact applied the correct test under s 501CA(4). The Tribunal cited the correct provision at [4] of its reasons in referring to the decision of the delegate under review and cited Part C of Direction 79 at [26] and [29] which relates to a consideration of the power under s 501CA(4). The Tribunal then in fact weighed the Primary and Other Considerations in the manner required by Direction 79 in order to decide whether another reason existed to revoke the cancellation decision. In this regard, Colvin J explained in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 with respect to the process of weighing the Primary and Other Considerations, that Direction 65 (which is relevantly the same as Direction 79):

23. … 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 given greater weight.

39    Finally, I have carefully considered the Tribunal’s decision and, in particular, whether any of the general grounds of review alleged in the application might have merit. However, I was unable to discern any errors of the general kind alleged.

4.    CONCLUSION

40    For the reasons set out above, the application for judicial review of the Tribunal’s decision must be dismissed. As the Minister has successfully defended the application, the Minister should be awarded his costs in so doing.

Associate:

Dated:    9 February 2021