Federal Court of Australia

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v LJTZ [2021] FCA 92

ORDERS

THE COURT ORDERS THAT:

1.    The time within which the Applicant may commence the originating application for review of a migration decision under s 477A of the Migration Act 1958 (Cth) is extended to 2 September 2020.

2.    The Amended Draft Originating Application stand as the Originating Application for Review.

3.    The Originating Application for Review be dismissed.

4.    The Applicant pay the First Respondent’s costs of and incidental to the application to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

WHITE J:

1    On 27 July 2020, the Administrative Appeals Tribunal (the Tribunal) set aside the decision of the first respondent’s delegate made on 4 May 2020 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the mandatory cancellation of the first respondent’s visa and substituted a decision that that cancellation be revoked: LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3356.

2    The Minister has applied for judicial review of that decision. As he filed the application two days outside the 35 day period prescribed under s 477A(1) of the Act, he seeks an extension of time for its institution.

3    The first respondent (LJTZ) does not oppose the grant of the extension of time, and it is appropriate that it be granted. Accordingly, this judgment concerns the Minister’s substantive application for judicial review.

Background circumstances

4    LJTZ is a 33 year old national of Burundi. He has been in Australia since March 2005 as the holder of a Refugee (Class XB) (Subclass 200) Visa.

5    LJTZ has convictions for two serious criminal offences. The first was committed on 13 July 2012. It involved the extortion of a man who had been invited to the home of LJTZ’s former partner. LJTZ played the role of an “aggrieved husband” and led an attack by two others on the man, demanding cash and, in the absence of cash, the production of his bankcard and PIN. The two other men assaulted the victim in the presence, and with the encouragement, of LJTZ and his former partner used the bankcard and PIN to obtain money from his account. For this offence, LJTZ was convicted on 9 July 2014 of the aggravated offence of theft with force and sentenced to imprisonment for four years with a non-parole period of 20 months. Both the head sentence and the non-parole period commenced on 26 March 2014.

6    The second offence (in fact two offences), occurred on 7 September 2013. LJTZ and two other men attacked a woman carrying a baby. This was witnessed by the neighbours who sought to intervene on her behalf, and the police were called. LJTZ’s conduct included repeated punching of a police officer, grabbing the police officer’s testicles, biting his arm, and trying to obtain possession of his revolver. For these offences, after credit for his pleas of guilty and time served, LJTZ was sentenced to imprisonment for three years, five months and 12 days, to be served cumulatively on the sentence for the offence committed on 13 July 2012.

7    The effect was that LJTZ had aggregate head sentences of seven years, five months and 12 days with a non-parole period of five years, with both having taken effect on 26 March 2014.

8    On 18 April 2018, while LJTZ was still in custody, a delegate of the Minister cancelled his visa, acting under s 501(3A) of the Act. As noted, in 2020, the delegate decided not to revoke that cancellation. That led to LJTZ commencing the proceedings in the Tribunal in which he was successful.

9    Both of the Minister’s grounds of appeal concern the Tribunal’s compliance with Direction 79 made by the Minister under s 499 of the Act. The Tribunal member was bound to comply with the terms of that Direction (subs (2A)). It is convenient to refer to the Minister’s submissions about those matters, and to the Tribunal’s compliance with Direction 79, when considering the respective grounds.

Ground 1

10    Ground 1 in the Minister’s Amended Draft Original Application is as follows:

1.    The Second Respondent failed to comply with Direction 79, being a Ministerial direction binding on it, pursuant to s 499(2A) of the Act, about how it was to go about its task (relevantly) of determining whether or not to revoke the mandatory cancellation of the First Respondent’s visa.

Particulars

a)    The Second Respondent was required by paragraph 13.1(2) of Direction 79 (in the context of the primary consideration of the protection of the Australian community) to give consideration to (a) the nature and seriousness of the First Respondent’s conduct to date; and (b) the risk to the Australian community should the First Respondent commit further offences or engage in other serious conduct;

b)    The Second Respondent was required by paragraph 13.1.2(1) of Direction 79, in considering the risk to the Australian community, to have regard, cumulatively, to (a) the nature of the harm to individuals or the Australian community should the First Respondent engage in further criminal or other serious conduct; and (b) the likelihood of the First Respondent engaging in further criminal or other serious conduct;

c)    The Second Respondent recorded findings directed at: (a) the nature of the harm to individuals or the Australian community should the First Respondent engage in further criminal or other serious conduct at [35]; and (b) the likelihood of the First Respondent engaging in further criminal or other serious conduct at [36]-[45];

(d)    The Second Respondent did not however consider the nature of the harm to individuals or the Australian community cumulatively with the likelihood of the First Respondent engaging in further criminal or other serious conduct, including so as to make an assessment as to the quality of the risk involved;

…

(h)    As a consequence, the Second Respondent failed to comply with Direction 79, which failure amounted to jurisdictional error.

Direction 79 – para [13]

11    As is apparent, Ground 1 is a complaint about the Tribunal’s compliance with aspects of [13] in Direction 79. That Direction, which concerns a primary consideration, provides in [13.1]:

13.1    Protection of the Australian community

(1)    When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australia community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

(2)    Decision-makers should also give consideration to:

  a)    The nature and seriousness of the non-citizen’s conduct to date; and

b)    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

12    Paragraph [13.1.1] lists factors to which decision-makers must have regard in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct.

13    Paragraph [13.1.2] elaborates the matters to which decision-makers must have regard when considering the purposes of [13.1(2)] the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. It provides:

13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1)    In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

a)    The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)    The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

14    It was not in issue that a failure by the Tribunal to comply with Direction 79 in a way which is material to the outcome of the review may amount to jurisdictional error: VKTT v Minister for Home Affairs [2019] FCA 1018; (2019) 166 ALD 443 at [19]; FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555 at [34]; XFKR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 323 at [80]-[87].

The Tribunal’s reasons

15    The Tribunal could revoke the cancellation of LJTZ’s visa if satisfied that there was “another reason” within the meaning of s 501CA(4)(b) why the cancellation should be revoked.

16    The Tribunal recorded in some detail the offences of LJTZ referred to earlier, describing them as “very serious”. Then, the Tribunal addressed Direction 79, noting that it was required to follow its rules and guidelines. It commenced by noting aspects of the preamble to the Direction, including the commitment of the Australian Government expressed in [6.2] to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The Tribunal described the principles listed in [6.3] as being of “critical importance” in furthering the objective of protecting the community. It also noted the statements in the Direction to the effect that the Australian community expects that visas will be cancelled by the Government if non-citizens commit serious crimes in Australia; that non-citizens who have committed a serious crime should generally expect to forfeit the privilege of remaining in Australia; and that “in some circumstances, criminal offending 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”.

17    The Tribunal then addressed in some detail the factors listed in [13.1.1] of Direction 79 to which he was required to have regard.

18    Against that background, the Tribunal turned to [13.1.2] of Direction 79 saying:

[34]    I must consider also the risk to the Australian community should the applicant commit further offences. I must have regard to, “cumulatively”, the nature of the harm to individuals or the Australian community should he engage in further criminal or other serious conduct and the likelihood of a recurrence.

19    In relation to the first of the [13.1.2] limbs, the Tribunal said:

[35]    I think the nature of the harm to individuals or the Australian community if there is further criminal or serious conduct is of very real concern in this case. I am particularly concerned about the impact of violence upon members of the community who seek to protect others and upon police officers attempting to keep the peace when there are disturbances. I think the nature of the violence of which the applicant has shown he is capable is of very real concern. I would also mention again the violence towards women the applicant has demonstrated in his domestic life and towards his brother’s partner.

20    The Tribunal then addressed the second limb. It commenced by saying:

[36]    I must estimate the likelihood of the applicant’s engaging in further criminal or other serious conduct. In this regard, there are several things to be said in the applicant’s favour …

21    In the following paragraphs, the Tribunal referred to a number of matters bearing on the risk of LJTZ engaging in further criminal or serious conduct, including:

(a)    the role of alcohol abuse in LJTZ’s offending (in particular the second offending);

(b)    the evidence suggesting that LJTZ no longer had physical dependence upon alcohol;

(c)    the absence of any suggestion of drug dependence;

(d)    the insight which LJTZ had derived from his experience in jail and in immigration detention;

(e)    LJTZ’s fear of deportation which would be almost inevitable should he offend again; and

(f)    the positive reviews of LJTZ’s behaviour while in custody, including from his participation in a “Living Without Violence Program”.

22    The Tribunal then concluded:

[45]    Of course, I cannot say at this stage that the applicant poses no risk to the Australian community. But I do believe that there is a legitimate reason to suppose that the applicant may not revert to alcohol use or seek to use violence in his life. I believe there is a particularly strong deterrent held out to this applicant: he faces jail sentences that will only increase in severity if he chooses to reoffend as well as the near certainty that he will be deported if he chooses to be violent again. I believe that prison and immigration detention for the last seven years in aggregate have had a very impressive effect upon the applicant. In particular, jail appears to have assisted in his rehabilitation.

[46]    All in all, I believe, therefore, that there is some cause for cautious optimism that the applicant will not revert to crime; but I am also conscious of the fact that a real risk of reoffending is still present, that the applicant requires further training in respect of his relationship with women in particular, and that he also requires therapy for his post-traumatic stress disorder. I am also aware that the harm he has inflicted so far has been severe, and others will suffer grievously if his behaviour is repeated.

The submissions of the Minister

23    The Minister’s submission accepted that the Tribunal had “purported” to engage with the nature of the harm to individuals should LJTZ engage in further criminal or other serious conduct and had “purported” to engage with the likelihood of LJTZ engaging in such conduct. Counsel submitted, however, that the Tribunal’s reasons evidenced an absence of engagement with the requirement that these two limbs be considered cumulatively. That had required the Tribunal, so counsel submitted, to “apply a process of synthesis” so as to “take as a whole” the nature of the harm to individuals or the Australian community should LJTZ engage in further criminal or other serious conduct and the likelihood of that harm eventuating. Instead, the Tribunal had dealt with the two limbs as though they were discrete, rather than their product, with the consequence that it had failed altogether to quantify the risk as required by [13.1.2].

24    Counsel also submitted that the Tribunal’s error was evident in the absence of an analysis attaching, in qualitative terms, any value to the primary consideration of the risks to the Australian community. As I understood it, counsel was referring in this respect to the absence of an adjective such as “significant” or “slight” in the Tribunal’s assessment of the risk.

25    In the oral submissions, counsel submitted that [13.1.2] prescribed a “process”. A passage in Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 985 at [27] may provide some support for that understanding but I consider it more apt to regard [13.1.2] as prescribing the matters which must be considered and the manner in which they should be considered, ie, cumulatively.

Consideration – Ground 1

26    In context, the requirement to consider the two limbs in [13.1.2] in Direction 79 cumulatively means that they are to be considered together and in combination, and not as discrete items. Both the likelihood of the risk being realised, and the severity of the consequences if it is realised, have to be considered in combination. This means, for example, that even a remote risk of further untoward conduct will be pertinent if, in the event that it is realised, serious harm will ensue.

27    It goes without saying that the Tribunal’s reasons should be read fairly, as a whole and without an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. When that is done in this case, I consider it reasonably clear that the Tribunal did consider the two limbs of [13.1.2] cumulatively, as required by Direction 79.

28    First, the circumstance that the Tribunal did initially consider the nature of harm and likelihood limbs sequentially is to my mind a matter of no consequence. Some separate assessment of each was necessary in order that the cumulative assessment could be made.

29    Secondly, the Tribunal had noted specifically, in [34], that it was required to have regard to both limbs “cumulatively”. It is of course theoretically possible that only a short time later the Tribunal member overlooked that requirement. One would expect, however, in the light of that acknowledgement, to see a clear indication if that was so, and there is none.

30    It is also theoretically possible that, while the Tribunal understood that the two limbs were to be considered cumulatively, it did not understand how that was to be done or in fact did not do so. But there is no indication that that was so. On the contrary, [46] of the reasons indicates that the Tribunal considered the combined effect of both limbs. In that paragraph, the Tribunal commenced by recording its conclusion, expressed as “cautious optimism” that LJTZ would not revert to crime and referred expressly to two countervailing factors. It followed immediately by say:

… I am also aware that the harm he has inflicted so far has been severe, and others will suffer grievously if his behaviour is repeated.

(Emphasis added)

31    In my view, this is a manifestation of the Tribunal considering together (cumulatively) both the likelihood of LJTZ engaging in further criminal or other serious conduct and the nature of the harm which may be caused if he did so. That is to say, the Tribunal considered the consequence if the risk of reoffending was realised. This was a cumulative assessment. Contrary to the submission of the Minister, I think it unlikely that the Tribunal intended the second sentence in [46] to be no more than a repetition of the matter to which it had already adverted in [35].

32    Thirdly, it is pertinent, as counsel for LJTZ submitted, that the Tribunal had, earlier in the reasons, noted at [26], that:

… In some circumstances, criminal offending 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 the visa …

33    This passage was, in effect, an expression of an understanding by the Tribunal of one way in which the two limbs could operate cumulatively.

34    Contrary to the submission of counsel for the Minister, I do not regard the absence of some evaluative adjective such as “significant” as being material. Direction 79 does not require the evaluation of the matters to which [13.1.1] and [13.1.2] refer to be expressed in any particular way, or even an interim conclusion to be expressed about them. It was accordingly unnecessary for the Tribunal to express itself in terms of “acceptable” or “unacceptable” risk or the like. Counsel for LJTZ was correct in submitting that the Tribunal was not required to express itself using any particular formula: AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; (2016) 243 FCR 451 at [55].

35    Accordingly, Ground 1 fails.

Ground 2

36    By Ground 2 in the Amended Originating Application, the Minister contends that the Tribunal failed to apply appropriately [14.5] in Direction 79. Paragraph [14.5] provides:

14.5 Extent of impediments if removed

(1)    The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   a)    The non-citizen’s age and health;

   b)    Whether there are substantial language or cultural barriers; and

c)     Any social, medical and/or economic support available to them in that country.

37    In applying [14] of Direction 79, the Tribunal said:

[51]    There are other considerations that must be taken into account under the Direction. A non-exhaustive list of five factors appear in the Direction. These appear in paragraph 14. I deal first with the extent of impediments the applicant would face on removal. I believe that would be very significant. I believe that the applicant’s post-traumatic stress disorder would be exacerbated by a return to the very country in which he suffered so grievously. The mental health services that would be available to assist the applicant in Burundi are likely to be very limited, indeed. I take into account that Burundi is one of the poorest countries in the world and that its society has been convulsed in the past by violet upheavals and conflict.

[52]    Burundi’s society is also unlikely to be one in which the applicant will achieve, in my opinion, basic living standards. I bear in mind that he has no family or other connections in Burundi since he left so many years ago for Tanzania. He cannot read or write Kirundi, the language of Burundi. The impediments the applicant faces will make it extremely difficult for him to maintain even an elementary life there. I accept that for these purposes, I should not apply Australian standards of welfare and economic well-being. I do apply, however, the fundamental concept of basic minimum standards. I think the applicant will be severely challenged in maintaining basic minimum standards; and, as I say, I am concerned by the poor prospects he would have of receiving appropriate treatment in respect of what was acknowledged before me to be an existing mental condition, namely his post-traumatic stress disorder.

38    Ground 2 of the Amended Originating Application is in the following terms:

The Second Respondent failed to comply with a requirement of Direction 79 and asked itself the wrong question when considering the extent of the impediments that would be faced by the First Respondent if returned to his home country. The Second Respondent considered the First Respondent’s capacity to maintain basic living standards against “the fundamental concept of basic minimum standards” rather than in the context of basic living standards that are generally available to other citizens of that country, as prescribed by paragraph 14.5(1) of Direction 79. In doing so, the Second Respondent failed to undertake its statutory task under section 501CA(4) of the Act.

…

39    It is unnecessary to set out the particulars to this Ground as I will refer to their substance in the reasons which follow.

The Minister’s submissions

40    Counsel for the Minister submitted that [51] and [52] involved an appraisal by the Tribunal of LJTZ’s projected living standards against some conception of basic living standards. This did not conform with the requirements of [14.5(1)] which required that the assessment of the extent of the impediments be made “in the context of what is generally available to other citizens of the [home] country”. Counsel emphasised in this respect the Tribunal’s statement in [52]:

I should not apply Australian standards of welfare and economic well-being. I do apply, however, the fundamental concept of basic minimum standards. I think [LJTZ] will be severely challenged in maintaining basic minimum standards.

(Emphasis added)

41    The relevant comparison, counsel submitted, was not with some concept of “basic minimum standards”. It is inherent in [14.5(1)] that regard to the context of what is generally available to other citizens of the non-citizen’s home country may produce different outcomes depending on the circumstances of the home country to which the non-citizen is returned.

Consideration – Ground 2

42    In my view, [14.5(1)] in Direction 79 is capable of being understood in more than one way. However, properly understood, it requires decision-makers to have regard to the extent of any impediments which non-citizens may face if removed to their home country in engaging in particular activities, namely, establishing themselves and in maintaining basic living standards. The assessment of the extent of the impediments which the non-citizen will face in those matters is to be made in the context of what is generally available to other citizens of that country, but taking into account the non-citizen’s age and health (a matter personal to the non-citizen), whether there are a substantial language or cultural barriers (which may be a matter personal to the non-citizen or the country), and any social, medical and/or economic support available to the non-citizen in that country (which seems more directed to circumstances in the non-citizen’s country). But it is the extent of any impediments of the specified kind which is to be assessed.

43    In Nguyen, Mortimer J explained [14.5(1)] as follows:

[32]    The impediments are to be assessed in terms of how they may affect a person “establishing themselves” and “maintaining basic living standards”. These are practical matters, which require a decision maker to turn her or his mind to how a person is, in fact, going to be able to subsist if returned to the country in question. As both parties accepted, the statement in brackets – “in the context of what is generally available to other citizens of that country” – is designed to ensure that a rational comparison is made between what will face the individual concerned, and what may face other citizens of that country on a day to day basis, rather than any comparison with the situation in Australia. That is not to say that what a person enjoys in Australia by way of – for example – access to medical treatment is irrelevant, far from it. Rather, it is to say no more than this part of the Direction asks decision makers to engage in a realistic assessment of what a person will face and cope with, by reference to what other people in the country concerned may have to face, and cope with.

44    I respectfully agree with that analysis. In particular, I agree that [14.5(1)] requires a rational comparison between the circumstances which the non-citizen will face and those faced by other citizens of the home country. But that does not mean that the notion of “basic living standards” is irrelevant. Those standards must be considered but in the context of what is generally available in the home country.

45    The Tribunal’s statement in [52] that “I do apply, however, the fundamental concept of basic minimum standards” is capable of being understood as a reference to some concept of “basic minimum standards” which is separate and distinct from the concept of the basic living standards considered in the context of the non-citizen’s home country.

46    However, I do not consider that that is an appropriate understanding of [51]-[52]. Those paragraphs, and in particular [52], should be read as a whole. When that is done it can be seen that the Tribunal did have regard to the conditions generally available in Burundi. The member noted, in [51], that Burundi is one of the poorest countries in the World and that its society is being convulsed in the past by violent upheavals and conflict. The Tribunal considered that the mental health services available to LJTZ in Burundi were likely to be limited.

47    The Tribunal then noted a number of matters which would constitute impediments for LJTZ in establishing himself and in maintaining basic living standards in Burundi. These included LJTZ’s lack of family connections in Burundi, his lack of other connections, his inability to read or write the language of Burundi, his condition of post-traumatic stress disorder (PTSD), the prospect that the PTSD would be exacerbated by his return to Burundi, and that the mental health services available to him in Burundi are likely to be “very limited”. On my understanding, the Tribunal considered that these matters would create difficulties for LJTZ in establishing himself and in maintaining basic living standards in Burundi, having regard to conditions in Burundi. In particular, they meant that he would face impediments, in comparison with his fellow Burundians, in establishing himself in Burundi and in maintaining basic living standards.

48    An indication that the Tribunal related these impediments to the conditions generally available to citizens of Burundi is seen in the statement:

The impediments the applicant faces will make it extremely difficult for him to maintain even an elementary life there.

(Emphasis added)

49    Although it may be somewhat cryptically expressed, I understand this to be an express statement by the Tribunal concerning the difficulties which LJTZ would have in maintaining even an elementary life in the context of Burundi.

50    The Tribunal also recorded in [52] that “Burundi’s society is also unlikely to be one in which the applicant will achieve … basic living standards”, although it did not specify the particular features of that society likely to give rise to that difficulty.

51    The Tribunal twice used the expression “basic minimum standards” in [52] and not the term “basic living standards” used in [14.5(1)]. However, it was not suggested that anything turned on that change in language.

52    In summary, while I agree that there is some indication in [51]-[52] that the Tribunal may have reasoned in the way for which the Minister contends, I consider that, on a reasonable understanding of [51]-[52] of the Tribunal’s reasons read as a whole, it did assess the extent of the impediments which LJTZ may face in the establishing himself and in maintaining basic living standards in the Burundian context. This is what [14.5(1)] required.

53    Accordingly, Ground 2 fails.

Conclusion

54    For the reasons given above, I make the following orders:

(1)    The time within which the Applicant may commence the originating application for review of a migration decision under s 477A of the Migration Act 1958 (Cth) is extended to 2 September 2020.

(2)    The Amended Draft Originating Application stand as the Originating Application for Review.

(3)    The Originating Application for Review be dismissed.

(4)    The Applicant pay the First Respondent’s costs of and incidental to the application to be taxed in default of agreement.

Associate:

Dated:    12 February 2021