Federal Court of Australia

BWI20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 518

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, as agreed or taxed.

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

REASONS FOR JUDGMENT

JAGOT J:

1    These reasons for judgment concern an appeal against orders of the Federal Circuit Court of Australia (the Federal Circuit Court) made on 4 September 2020 dismissing the appellant’s application for judicial review of a decision of the second respondent (the Tribunal): BWI20 v Minister for Home Affairs & Anor [2020] FCCA 2475. The Tribunal had affirmed the decision of a delegate of the first respondent (the Minister) to cancel the appellant’s Bridging General (subclass 050) visa (the bridging visa): 1927672 (Migration) [2020] AATA 4936.

2    The appellant contends that the primary judge erred by not finding that the decision of the Tribunal was affected by jurisdictional error in that the Tribunal denied the appellant procedural fairness and/or failed to provide the appellant a real and meaningful hearing pursuant to s 360 of the Migration Act 1958 (Cth) (the Act) and/or failed to complete its statutory task by failing to consider the appellant’s “clearly articulated argument” that the appellant would not commit further offences.

3    The appeal must be dismissed. My reasons follow.

Background

4    The appellant is a Sri Lankan national who arrived as an unauthorised maritime arrival in Australia in November 2012. The appellant applied for and was refused a protection visa. The appellant was granted the bridging visa on 11 July 2018 while his protection visa application was under review.

5    On 2 July 2019, the appellant was convicted in the Melbourne Magistrates’ Court of one charge of sexual assault and one charge of indecent act with a child under 16 years. The appellant was sentenced to a Community Corrections Order for a period of 18 months, with special considerations requiring him to perform 100 hours of unpaid community work (the CCO).

6    On 10 September 2019, the appellant was given notice that there were grounds for cancellation of his bridging visa as a result of the criminal convictions. On 30 September 2019, the appellant attended an interview with a delegate of the Minister to determine if his bridging visa should be cancelled. At the interview, the appellant promised on two occasions that the offending behaviour would not happen again (the promise). The promise was recorded in the delegate’s decision in the following terms:

I didn’t know those consequences. I promise it won’t happen again. I took alcohol and didn’t know what happened. I have a lot of family issues. I am a respected person. I can’t go back to my country.

(Emphasis added)

7    On 30 September 2019, the delegate cancelled the appellant’s bridging visa under s 116 of the Act. Section 116(1)(g) of the Act relevantly provides:

116 Power to cancel

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

…

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

8    The “prescribed grounds” are set out in the Migration Regulations 1994 (Cth). Regulation 2.43(1)(p)(i) relevantly provides:

2.43 Grounds for cancellation of visa (Act, s 116)

(1)    For the purposes of paragraph 116(1)(g) of the Act (which deals with the circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:

…

(p)    in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa – that the Minister is satisfied that the holder:

(i)    has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country (other than if the conviction resulted in the holder’s last substantive visa being cancelled under paragraph (oa)) …

9    On 1 October 2019, the appellant sought review of this decision in the Tribunal. The appellant appeared before the Tribunal on 25 November 2019 to give evidence and present arguments. The appellant was represented by a lawyer and assisted by an interpreter.

10    On 14 January 2020, the Tribunal affirmed the delegate’s decision to cancel the appellant’s bridging visa.

11    The Tribunal was satisfied that a ground existed for cancellation and then considered whether to exercise the discretion to cancel the visa. In so doing, the Tribunal had regard to Ministerial Direction No 63 Bridging E visas – Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q) made under s 499 of the Act (the Direction) which required the Tribunal to take into account specified primary and secondary considerations (set out below).

12    The appellant applied to the Federal Circuit Court for review of the Tribunal’s decision on one ground. That is, that the Tribunal denied the appellant procedural fairness and/or failed to provide the appellant a real and meaningful hearing pursuant to s 360 of the Act and/or failed to consider the appellant’s “clearly articulated argument” that he would not commit further offences.

13    The Federal Circuit Court was not satisfied that this ground had been made out, and dismissed the application for judicial review with costs.

Consideration

14    The notice of the appeal identifies the same ground as put to and rejected by the Federal Circuit Court. The appellant contends that the Federal Circuit Court erred in not finding that the Tribunal was obliged to consider and failed to consider the appellant’s promise not to re-offend and evidence in support of that promise in exercising the discretion under s 116 of the Act.

15    Resolution of this ground of appeal turns on two questions. First, was the Tribunal bound to consider the appellant’s promise not to re-offend and the risk of the appellant re-offending? Second, if so, did the Tribunal consider those matters?

16    In considering whether the bridging visa should be cancelled on the basis of the prescribed grounds in r 2.43(1)(p), the Tribunal must comply with the Direction.

17    The Direction requires the Tribunal to take into account certain primary and secondary considerations, where relevant, and specifies how these considerations are to be weighed in determining whether the bridging visa should be cancelled.

18    The primary considerations are:

(a)    the Government’s view that the prescribed grounds for cancellation at r 2.43(1)(p) and (q) should be applied rigorously in that every instance of non-compliance should be considered for cancellation; and

(b)    the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.

19    There are a number of secondary considerations prescribed by the Direction. None of the secondary considerations expressly require the consideration of a risk of re-offending. However, cl 7(1)(e) states that “delegates may also consider any other matter they consider relevant” (Emphasis added).

20    It is common ground that the appellant’s promise and the consequential risk of re-offending were not mandatory considerations under the Direction.

21    The Tribunal must also consider any claim which: (a) is the subject of a substantial “clearly articulated argument” relying on established facts, or (b) “clearly emerges” from the materials: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18]. Failure to comply with this obligation may amount to a breach of procedural fairness: Kaur v Minister for Immigration and Border Protection [2014] FCA 1046; (2014) 144 ALD 292 at [48]-[49]. In AYY17 at [18] the Full Court confirmed the summary of principles by Barker J in AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 at [67]-[68] about whether a claim “clearly emerges” from the materials as follows:

(a)    such a finding is not to be made lightly (NABE [NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263; (2004) 144 FCR 1] at [68]);

(b)    the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

(c)    to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection [2016] FCA 45; (2016) 241 FCR 214 per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

37    While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

38    Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov [Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389] that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

(d)    while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship [[2008] FCA 1609] (2008) 49 AAR 77 per Flick J (at [21]); and

(e)    understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.

22    In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at [1], Gleeson CJ said:

Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.

23    The appellant accepted that no reference to his promise or risk of re-offending was made during the hearing before the Tribunal. In the first of two written submissions to the Tribunal the appellant recorded the background to the Minister’s decision in the course of which the question and answer containing the promise were identified. However, in describing why the visa should not be cancelled the submission made no further reference to the promise or the risk of the appellant re-offending. No reference was made to either matter in the appellant’s second written submission to the Tribunal after the hearing.

24    The appellant contends that his promise amounted to a “clearly articulated argument” as to why the discretion pursuant to s 116 of the Act should be exercised in his favour. The argument, it is said, was expressly made in the interview with the delegate and was supported by the following underlying facts:

(a)    the appellant had not re-offended for two and a half years;

(b)    the appellant submitted a letter from his general practitioner, Dr Ganegoda, confirming that the appellant had been treated for depression and alcohol dependence;

(c)    the appellant had been compliant with his CCO until the appellant was detained; and

(d)    the appellant would be subject to supervision under that CCO if the appellant was in the community.

25    The appellant submitted that, although the promise was only briefly stated, it was the only reason the appellant provided to the delegate of the Minister as to why his bridging visa should not be cancelled, apart from family issues. It was thus important to the appellant’s claims and was clearly articulated or clearly emerged from the material before the Tribunal.

26    I disagree. In circumstances where the promise and consequential risk of re-offending were not relied upon by the appellant as a reason why the Tribunal should not cancel the appellant’s visa in either his written or oral submissions to the Tribunal it cannot be concluded that these matters were clearly articulated or clearly emerged from the materials. It is not to the point that the appellant never expressly abandoned these propositions as made in the interview with the Minister’s delegate. The issue is not whether a proposition was ever made and not expressly abandoned subsequently. The issue is whether the matters were clearly articulated or clearly emerged from the materials. They did not.

27    It must also be recognised that in this case the four matters allegedly supporting the lack of any risk of the appellant re-offending are said to be relevant because of the appellant’s promise. A promise is a personal representation as to future conduct. Of its nature, this kind of proposition, made in passing in the interview, could not be said to have been clearly articulated or clearly emerge from the materials before the Tribunal without some emphasis being placed on it by or on behalf of the appellant in written or oral submissions to the Tribunal. The appellant had a legal representative who appeared at the hearing and made oral and written submissions. The fact of legal representation is relevant. It may reasonably be expected that if the appellant wished the Tribunal to assess his case on the basis of his promise and the consequential low risk of him re-offending, the appellant’s lawyer would have made that case in some positive way to the Tribunal.

28    As a result, the Tribunal was not bound to consider the appellant’s promise or consequential risk of re-offending whether by reference to the four facts on which the appellant relied or otherwise.

29    In any event, it must be inferred that the Tribunal accepted that the appellant had not re-offended and did so in the context of the four matters on which the appellant relied. It may be accepted that the appellant’s promise did not form part of the Tribunal’s consideration (in the sense that it is not expressly mentioned) but, as I have said, this is hardly surprising given the lack of any claim to the Tribunal based on it by the appellant and the inherently uncertain nature of such a promise.

30    The Tribunal:

(1)    was aware of the appellant’s criminal record which recorded his last conviction as occurring on 2 July 2019. The Tribunal put that record to the appellant before giving its reasons for decision: Tribunal’s reasons (TR) at [14] and referred to again at TR [47]. Given that the Tribunal did not refer in its reasons to any other conviction it must follow that the Tribunal implicitly accepted that the appellant had no further convictions after 2 July 2019. If the Tribunal had considered otherwise it necessarily would have said so in its reasons. Further, the Tribunal described the second complainant as the appellant’s “most recent victim” in TR [57]. It is clear that the Tribunal also implicitly accepted that the appellant had not re-offended since the commission of his last offence on 16 February 2017. This is the first fact the Tribunal is alleged not to have considered;

(2)    referred to the evidence of Dr Ganegoda at TR [18] and the appellant’s reduced alcohol consumption at TR [55] and gave this some weight at TR [56], which is the second fact the Tribunal is said not to have considered;

(3)    acknowledged that the appellant had been complying with the CCO before he was detained at TR [54]. This is the third fact the Tribunal is said not to have considered; and

(4)    said that the appellant would benefit if he were able to complete the remainder of the CCO at TR [54]. This encompasses the fourth fact the Tribunal is said not to have considered.

31    The appellant contended that the Tribunal’s consideration of these facts was not in the course of assessing his risk of re-offending. It was submitted that, instead, the Tribunal observed at TR [57] that the “circumstances of the offences could be said to constitute to a pattern of behaviour, which is of serious concern, particularly given that the most recent victim was a 14-year-old girl”. By this, however, it is apparent that the Tribunal meant nothing more than that the appellant had been convicted of two very similar offences. This is an established fact. The Tribunal was not required to assess the risk of the appellant re-offending or his promise not to do so for the reasons given. The Tribunal was required to consider the appellant’s claims as clearly articulated or clearly emerging from the material, which the Tribunal did.

32    There can be no complaint that the Tribunal considered the matters at TR [54]-[56] under the heading “any other matters considered relevant”. This reflects cl 7(1)(e) of the Direction.

33    For these reasons, I consider that no error by the Federal Circuit Court is established.

34    Accordingly, the appeal must be dismissed with costs.

Associate:

Dated: 14 May 2021