Federal Court of Australia

DVDP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 567

ORDERS

THE COURT ORDERS THAT:

1.    The application for judicial review is dismissed.

2.    The applicant is to pay the Minister’s costs 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    The applicant (to whom I will refer respectfully as “Mr DVDP”) is a citizen of Vietnam. He arrived in Australia as a minor in 2007 with his siblings as the holder of a Subclass 117 Orphan Relative Visa sponsored by a relative in Australia following the death of their father. Tragically, Mr DVDP and his siblings suffered abuse at the hands of their Australian relatives and were then separated from each other when they were taken into foster care.

2    Mr DVDP was subsequently granted a Class BB Subclass 155 Five Year Resident Return visa (the visa). On 29 January 2019, the visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) (the cancellation decision). Section 501(3A) provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test and is currently serving a full-time sentence of imprisonment. As the applicant had been convicted of reckless wounding in company for which he was sentenced to a term of imprisonment of 2 years and 5 months (with a non-parole period of 1 year and 6 months), he did not pass the character test and, at the time of cancellation, was serving a full-time sentence of imprisonment.

3    Mr DVDP sought revocation of the cancellation decision and representations were made on his behalf by his legal representative pursuant to s 501CA(4)(a) of the Act. However, a delegate of the Minister decided not to revoke the cancellation decision under s 501CA(4) on 31 August 2020.

4    In this proceeding, Mr DVDP seeks judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal (the Tribunal), on 23 November 2020 to affirm the decision of the Minister’s delegate.

5    The application for judicial review filed on 21 December 2020 alleges that the Tribunal fell into jurisdictional error in failing to take a relevant consideration into account. The particulars of the ground are as follows:

a.    The Tribunal, at [47] of its decision, found that although the Applicant’s separation from his family in Australia would be difficult, “it would not be permanent in the sense that there are no restrictions, other than perhaps financial, preventing [Mr DVDP’s] family from visiting him in Vietnam in the future. They may also maintain contact with each other via telephone, video and other electronic means”.

b.    In making the finding referred to above at (a), the Tribunal failed to take into account the Applicant’s likely period of physical separation from his family in Australia due to the indefinite restrictions which have been placed on Australian citizens and residents in respect of outbound overseas travel.

c.    The matter referred to above at (b) was a matter which the Tribunal was expected to have had regard to in light of its acquired body of expertise and general knowledge.

d.    The matters referred to above at (a)-(c) were material to the outcome of the Tribunal’s decision …

6    At the time of this application, Mr DVDP was no longer in prison but had been taken into immigration detention. Ms Yu of counsel appeared for Mr DVDP, and made helpful submissions orally and in writing which I have carefully considered.

7    Nonetheless, the ground of review is not made out for the reasons set out below and the application for judicial review must be dismissed.

2.    BACKGROUND

8    Pursuant to s 501CA(4) of the Act, the Minister (and therefore her or his delegate) may revoke a mandatory cancellation decision made 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.

9    It was not in issue that Mr DVDP did not pass the character test pursuant to ss 501(6)(a) and 501(7)(c) of the Act (Tribunal reasons at [10]). Rather the question for the Tribunal was whether there was “another reason” why the cancellation decision should be revoked. In this regard, while a decision under s 501CA(4)(b)(ii) requires the Tribunal standing in the shoes of the Minister to make an evaluative decision, there is no discretion not to revoke the cancellation decision if the decision-maker is satisfied that another reason exists.

10    I have already referred to Mr DVDP having made representations to the Minister’s delegate as to the existence of a reason why, in his submission, the cancellation decision should be revoked. Among other things, in his representations to the Minister’s delegate Mr DVDP said that the decision to cancel his visa would impact negatively on his family and that he had a very close relationship with his siblings and his sister’s young children. In particular, Mr DVDP, who was still in prison at the time of making the representations, explained in his statutory declaration that:

I know that I have caused my family a lot of stress and hurt since I have been in custody. I miss them very much and I know they miss me … Most of all, I feel sad and sorry that I have upset my little niece … and my nephew … I feel I have been a bad example for them. [My sister] told me how much [my niece] cried when I went to prison. I feel very sad and upset with myself that I have hurt her so much.

I want to come out of prison and make it up to all of them. I want to get a good job, and help look after my family. I want to give them all a good future. We have had a very bad childhood and past. All I ever wanted was to take care of my family, but I ruined it. I want to come out of prison and make up for my mistakes.

…

I can also see that I have been a very bad example for my niece and nephew. I am ashamed that my darling niece… and nephew… who I basically brought up have to see me in prison. I do not know how I will explain myself to them in the future when they are older. I am worried what they will think about me. I have thought carefully about this. I know that when they are both older I will explain why what I did that night was bad. I will tell them that violence is never okay. I will make sure they never make the same mistakes as me.

(Mr DVDP’s statutory declaration dated 21 January 2020, CB 111–112.)

11    In its reasons for affirming the delegate’s decision not to revoke the cancellation decision, the Tribunal set out the relevant statutory provisions. It also correctly acknowledged at [9] that, in making a determination under s 501CA(4) of the Act, it was bound to comply with Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79) which was made pursuant to s 499 of the Act.

12    The Tribunal then addressed each of the primary considerations which it was required to consider under Direction 79. In particular:

(1)    with respect to primary consideration A (protection of the Australian community from criminal or other serious conduct), the Tribunal found that Mr DVDP’s offending should be viewed very seriously as it involved violence against a vulnerable victim (referring to the sentencing remarks and to the objective seriousness of the offending as reflected in a sentence involving a term of imprisonment);

(2)    despite finding that any risk of reoffending was low, the Tribunal found that the risk to the Australian community should Mr DVDP reoffend weighed heavily against revocation given the extremely serious nature of his conduct and the significant harm to individuals or the Australian community should he engage in further criminal or other serious conduct;

(3)    with respect to primary consideration B (best interests of minor children in Australia), the Tribunal accepted that Mr DVDP had been involved in the lives of his young niece and nephew before his incarceration and that it would be in the best interests of these children if he were to remain in Australia (noting that the applicant’s sister fulfilled the primary parental role); and

(4)    having regard to the nature and seriousness of Mr DVDP’s offending, the Tribunal found that the expectations of the Australian community (primary consideration C) weighed heavily against revocation of the cancellation decision.

13    The Tribunal found that only two of the “other considerations” which it was required to address under Direction 79 were relevant. First, the Tribunal found that any hurdles which Mr DVDP would face if returned to Vietnam were not insurmountable (other consideration E).

14    Secondly and relevantly for this proceeding, under paragraph 14.2(1)(b) of Direction 79 the Tribunal was required to consider:

The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents, and/or all 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).

15    In addressing that consideration, and placing paragraph 47 of the Tribunal’s reasons in context (being the paragraph challenged in this proceeding), the Tribunal relevantly found that:

45. … It is accepted that the applicant has strong ties to Australia, particularly to his siblings who would be greatly affected if the applicant was deported to Vietnam. The evidence shows that the applicant has an extremely close relationship with his siblings, no doubt as a result of their past traumas and difficult time in foster care. The applicant and his siblings were effectively orphaned in Vietnam … when they were very young … They were initially cared for in Australia by their paternal grandmother and uncle but were taken separately into foster care when it was found that the grandmother and uncle had been physically and psychologically abusive. The applicant and his siblings found this separation very distressing and, when the older three siblings were released from foster care, they all moved in together. The closeness of the applicant’s relationship with his siblings is highlighted by Mr Green [psychologist] in his report dated 13 October 2020. He opined that the applicant would have significant difficulty coping were he to be deported to Vietnam and said:

… [Mr DVDP] became distressed when reminiscing about the separation when they were in foster homes. Clearly, they are very close, as they continue to live together, sharing what sounds like a crowded apartment … [B]ut this is what they want, to be able to live together. For [Mr DVDP] to be deprived of the relationship with his siblings will have a grossly deleterious effect upon him and will, no doubt, have a deleterious effect upon them.

46. In addition to his close ties to his siblings, the applicant has been married to his wife, a temporary resident of Australia, for over six years. If he is removed from Australia, he will be separated from his wife. At hearing, the applicant’s wife advised that she would not return to Vietnam as she does not want to disappoint her mother. She said her mother spent all her savings to send her to Australia for a better life.

47. While I do accept the applicant’s separation from his siblings, niece, nephew and wife would be difficult, it would not be permanent in the sense that there are no restrictions, other than perhaps financial, preventing the applicant’s family from visiting him in Vietnam in the future. They may also maintain contact with each other via telephone, video and other electronic means.

48. In any event, I find that the applicant’s strength, nature and duration of ties to Australia favours revocation of the mandatory cancellation decision.

(Emphasis added.)

16    The Tribunal concluded at [54] that:

… [T]he primary considerations of the protection of the Australian community and expectations of the Australian community weigh heavily against revocation of the mandatory cancellation decision. To the extent that other considerations weigh in favour of revocation, they are insufficient to outweigh the protection of the Australian community and expectations of the Australian community.

3.    CONSIDERATION

3.1    Relevant principles

17    Subject to a number of contentions which I address separately, the relevant principles were not in issue and may be summarised as follows.

(1)    The onus lay upon Mr DVDP to put before the Tribunal by way of representation those matters which he contended were a reason for revoking the cancellation decision: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643 at [48] (Rares and Robertson JJ).

(2)    A decision-maker such as the Tribunal may fall into jurisdictional error if, among other things, it fails to take into account a relevant consideration in a way that affects the exercise of the power: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ).

(3)    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 relevant considerations in a jurisdictional sense: Matthews v Minister for Home Affairs [2020] FCAFC 146 at [30] (the Court).

(4)    Equally a failure to have regard to the representations made by an applicant seeking revocation under the Act can constitute jurisdictional error. In this regard, the Full Court held in Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 (Omar) that, while not every matter raised in representations is itself a mandatory relevant consideration, “[t]he representations made on behalf of [an applicant] in response to the invitation under s 501CA(3) are, viewed as a whole, a mandatory relevant consideration” (Omar at [34(e) and (g)] (the Court)). This, in turn, requires the decision-maker to “engage in an active intellectual process with significant and clearly expressed relevant representations made in support of a revocation request”: Omar at [37] (the Court) (emphasis added).

(5)    A legal error by the Tribunal will generally not sound in jurisdictional error if it was immaterial or not critical to the ultimate conclusion: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA). 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]); see also Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66; (2020) 276 FCR 75 at [66] (Mortimer and Bromwich JJ).

(6)    The question of whether the breach is material is a question of fact in respect of which an applicant bears the onus of proof: SZMTA at [46] (Bell, Gageler and Keane JJ). This principle was recently confirmed by the majority in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [60] (Kiefel CJ, Gageler, Keane and Gleeson JJ).

See also the recent discussion of the applicable principles in JKPM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1293 at [37]–[43] (Perry J).

18    Importantly, as the Minister’s counsel submitted at the hearing, the Court’s jurisdiction is limited to deciding whether the Tribunal’s decision was made lawfully under the Act, that is, whether the Tribunal’s decision is invalid by reason of a jurisdictional error. However, the Court has no jurisdiction to reinstate an applicant’s visa or to correct mistaken findings of fact by the Tribunal: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); 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 on which it can set that decision aside, even if the decision is harsh and a different decision-maker acting reasonably might have reached a different decision.

3.2    Did the Tribunal fall into jurisdictional error?

19    In essence, the applicant submits that the Tribunal erred in finding at [47] that the separation from his family would not be permanent because there were no restrictions upon them visiting him in Vietnam save for possible financial constraints. The jurisdictional error is said to lie in the alleged existence of an obligation on the Tribunal to take into account Mr DVDP’s likely period of indefinite physical separation from his family due to the COVID-19 restrictions on overseas travel, being a matter of which the Tribunal should have been aware given its expertise and general knowledge. In Ms Yu’s submission, these restrictions were required to be considered under Ministerial Direction 79 in the context of considering: (1) the extent of impediments that Mr DVDP may face if returned to Vietnam (although this contention was not developed in submissions); and (2) his ties to family in Australia (which was the focus of Ms Yu’s submissions). Although the travel restrictions were not expressly referred to in the representations made by and on behalf of Mr DVDP, Ms Yu relied upon the High Court’s decision in Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966 (Muin) at [116] (McHugh J) to submit that Tribunal members are expected to develop and build on their specialised knowledge and to have been cognisant of matters of such public notoriety. In her submission, it is now settled law that the Tribunal is required to make a decision based on all of the facts and circumstances before it (citing NABE v Minister for Immigration and Multicultural Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE)).

20    The difficulty, however, with the applicant’s submissions is that there is no complaint of a failure to consider any representation made by Mr DVDP or on his behalf; nor is there any allegation of a failure to consider a matter otherwise made relevant by the Act, Direction 79, or any other direction made under s 499 of the Act. The allegation is simply that the Tribunal failed to have regard to a matter of general public knowledge not raised by the applicant which was potentially relevant to a consideration to which regard must be had under Direction 79. As I explain below, the authorities relied upon by the applicant lend no support to the proposition that the Tribunal was required to take such matters into account of its own motion; nor is there any foundation otherwise in the Act for the proposition.

21    First, McHugh J in Muin at [116] held that he was not prepared to infer that the Tribunal had failed to read background country information in breach of procedural fairness despite representing to the applicant that it would look at all of the evidence before it, because (among other things) the Tribunal member may have become aware of the contents of the country information when conducting other similar reviews and been aware of their contents. In reaching that view, his Honour found that:

Tribunal members are expected to develop and build upon a body of expertise and general knowledge applicable to the cases that come before them. So the lack of reference in the notes and working papers does not lead to any firm conclusion as to whether the Tribunal member considered the Pt B material.

22    As such, the passage relied upon from Muin lends no support to the different proposition that the Tribunal falls into jurisdictional error simply by reason of a failure to have regard to a matter which it might be expected to know as a matter of its expertise and general knowledge.

23    Nor does the decision in EZA20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1775 (EZA20) lend any support to the applicant’s contention in this case. In EZA20, the applicant alleged that the Minister fell into jurisdictional error by making a critical finding, based on no evidence, that Ireland has comparable standards of healthcare, social and economic support, and that the applicant “would be entitled to the same level of services as other citizens of Ireland in a similar position”. In addressing that contention, Stewart J cited Muin with approval in support of the proposition that “specialist decision makers or tribunals are entitled to rely on their expertise and accumulated knowledge garnered through repetitive decision making” (at [58]). However, his Honour held there was nothing to indicate that the Minister drew on accumulated knowledge in making the finding in question; nor did Stewart J consider that the Minister was in an analogous position as he was not a specialist of that nature. As such, the decision in EZA20 does not assist Mr DVDP’s case. Whereas in EZA20 the question was whether the decision-maker was entitled to make findings about a matter which had not been the subject of evidence, in this case the question is whether the decision-maker is required to take specialised (or general) knowledge into account even where the issue to which that knowledge relates was not the subject of any submissions or representations.

24    The applicant also sought to rely upon the decision in NABE for the proposition that the Tribunal is required to take into account all of the facts and circumstances before it. With respect, that submission is based on a misapprehension as to the decision in NABE. That case goes no higher than to hold that there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which “is apparent on the face of the material before the Tribunal”: NABE at [58] (the Court). No such allegation is made in this case.

25    It follows that no jurisdictional error has been established and the question of whether any such error might have been material does not arise.

4.    CONCLUSION

26    For the reasons set out above, the application for judicial review must be dismissed. As the Minister has successfully defended the application, there is no reason why the applicant should not pay the Minister’s costs in accordance with the ordinary rule.

Associate:

Dated:    31 May 2021