Federal Court of Australia

TGWR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 763

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the Minister’s costs.

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

REASONS FOR JUDGMENT

BURLEY J:

1    The applicant is a 27 year old male citizen of New Zealand who was born in Australia in March 1993 but never obtained Australian citizenship. He has lived in Australia for his entire life, although by the time he turned ten years of age he had spent just under 2 and a half years in New Zealand during a number of visits.

2    By amended application filed on 22 April 2021 the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal made on 16 December 2020, affirming a decision of a delegate of the first respondent (Minister) not to revoke the mandatory cancellation of the applicant’s Subclass 444 Special Category (Temporary) visa pursuant to s 501(3A) of the Migration Act 1958 (Cth).

3    There is no dispute that the conditions leading to mandatory cancellation within s 501(3A) were met. By reason of numerous criminal convictions, including obtaining financial advantage by deception, stealing, firearms offences, affray and assault the applicant had been sentenced to imprisonment for well in excess of 12 months. At the time of the cancellation, he was serving a sentence to a term of imprisonment of 5 years and 9 months for several offences committed over 2 and 3 July 2016, namely: two counts of robbery armed with offensive weapon; destroy or damage property by fire (<$2,000); aggravated break and enter and commit serious indictable offence (in company); take/detain in company with intention to get advantage; take/detain in company with intention to get advantage and occasion actual bodily harm; and 7 counts of dishonestly obtain financial advantage by deception.

4    Pursuant to s 501CA of the Act the applicant made representations to the Minister to revoke the cancellation decision. It was the decision of the delegate declining to revoke the mandatory cancellation that led to the application for review before the Tribunal.

5    The applicant contends that in affirming the delegate’s decision the Tribunal fell into jurisdictional error on the following bases:

(1)    By taking into account an irrelevant consideration; and

(2)    By making a finding on the basis of no evidence.

6    The applicant was represented by Mr Nathan Y H Li of counsel who filed written submissions in advance of the hearing. The Court is grateful to Mr Li for contributing his assistance on a pro bono basis pursuant to a certificate issued under r 4.12 of the Federal Court Rules 2011 (Cth). The Minister was represented by Ms K Hooper of counsel.

7    In its reasons, the Tribunal provided an introduction to the statutory regime and referred to Ministerial Direction 79, which it was obliged to take into account pursuant to s 499(2A) of the Act. Paragraph 13(2) of Direction 79 requires three primary considerations, lettered from A to C, to be taken into account in deciding whether to revoke the cancellation of a non-citizen’s visa.

8    In its reasons the Tribunal first considered Primary Consideration A – the protection of the Australian community from criminal or other serious conduct. It summarised in considerable detail his offences in the period from March 2008 until March 2019, noting that he had been released from prison into immigration detention in March 2020. The Tribunal concluded at [216]-[218]:

216. The Applicant’s offending and sentencing history clearly demonstrates that he has had many opportunities to modify and ameliorate his conduct. The courts have been patient with him in giving him the benefit of a graduated sentencing regime. His pattern of violent behaviour suggests that further periods of incarceration await him unless he himself takes steps which he has thus far failed to take.

217. The Tribunal has had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and has also had regard to subparagraph 6.3(3) of the Direction. The Tribunal finds that the nature of the Applicant’s offending conduct is very serious, and that there is at least a medium level likelihood that he will engage in further very serious conduct if returned to the Australian community.

218. Having considered the entirety of the evidence and each of the relevant factors contained in the Direction, the Tribunal finds that Primary Consideration A weighs extremely heavily in favour of non-revocation.

9    The Tribunal noted that Primary Consideration B – the best interests of minor children in Australia, did not arise as no minor children had been identified as relevant.

10    The Tribunal turned to Primary Consideration C – the expectations of the Australian community, and concluded at [233]-[234]:

233. The Applicant in this case has failed to take any practical notice of the very clear and constructive judicial advice that he received in 2012, and which he acknowledged as having understood at the time. He has shown a wanton disregard for the property and physical safety of others on numerous occasions. His conduct whilst in custody speaks loudly, but not favourably of his respect for authority. He has been sentenced to significant terms of imprisonment. He has made limited positive contribution of consequence to the Australian community.

234. Not only has this Applicant breached his obligation to obey Australian law, there is an unacceptable risk that he will do so again given the opportunity. The Tribunal believes the Australian community would strongly expect that this Applicant should not hold a visa.

11    The Tribunal then turned to Other Considerations listed as relevant under Direction 79. Its findings were relevantly:

(1)    As to international non-refoulement obligations, the applicant did not claim to fear harm if returned to New Zealand, and none was apparent to the Tribunal. Accordingly this consideration was not relevant;

(2)    As to the strength, nature and duration of the applicants ties, the Tribunal accepted that: the applicant was born in and had spent most of his life in Australia; all of his friends and close family live in Australia and he has “what are effectively strong lifeline ties to Australia”, and that these people would be impacted to some degree if the applicant’s visa remained cancelled; the applicant has spent some years positively contributing to the Australian community and did not begin offending soon after arriving in Australia; and the applicant has had very limited periods of employment in Australia. The Tribunal gave this consideration “very limited” weight in favour of revocation;

(3)    As to impact on Australian business interests, there was none apparent and the Tribunal considered it not relevant to determination of the application and gave it neutral weight;

(4)    As to impact on victims, there was no evidence before the Tribunal relating to the impact that the applicant’s continued presence in Australia would have on any of his victims and the Tribunal accordingly made no finding in relation to this consideration and gave it neutral weight;

(5)    As to extent of impediments if removed, the Tribunal accepted the applicant’s evidence, and that of his mother, that all of the applicant’s close friends and family reside in Australia, and the only relative he is close to in New Zealand is his grandmother who is in her late sixties, is still working, and who cares for the applicant’s aunt who suffers from schizophrenia and post traumatic stress disorder. It also accepted that the applicant has “practically nothing to do” with his other blood relatives in New Zealand, and noted that while the applicant’s removal to Australia would be upsetting for those who remain in Australia, there was no evidence before the Tribunal that there would be any impediment to travel by any member of the applicant’s Australian family to New Zealand once COVID-19 restrictions were lifted. The Tribunal further observed that the applicant stated that he had not embraced the Maori culture of his ancestors and relatives, does not speak Maori and has never learned to do the Haka. It said:

246. The Tribunal accepts that there will be a degree of social adjustment required on the part of the applicant if he is to be relocated to New Zealand, and that he will have no particular family or social network. However the Tribunal notes that the Applicant appears to be an able-bodied young man in good health, and there is no reason to believe that he ought not to be able to live harmoniously in New Zealand has he is fluent in the English language, and should have no difficulty finding work if he seeks it. In the same vein, if the Applicant chooses to show the side of himself which he has shown to those who gave such glowing evidence on his behalf, he should be able to establish a new and positive network quickly.

247. The Tribunal also notes that the Applicant has stated that his poor choice of associates has contributed to his past wrongdoings. In this regard, it may well be doing him a favour to remove him from the sphere of influence of those people, and give him an enhanced opportunity to turn his life around unimpeded by bad influences.

…

250. Whilst there may be some language and cultural barriers to the Applicant’s potential assimilation into Maori society in New Zealand, the Tribunal considers that these would likely resolve with time. The Tribunal also notes that New Zealand is a developed country, with a strong social welfare system which could assist him to get back on his feet. In any event, the Tribunal does not consider these issues to present any serious impairment to the Applicant’s ability to establish himself and maintain basic living standards in New Zealand.

12    The Tribunal concluded that consideration (5) weighed slightly in favour of revocation of the cancellation decision.

13    The Tribunal’s conclusion was expressed at [254] as follows:

254. In considering whether there is another reason to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal finds as follows:

Primary Consideration A weighs extremely heavily in favour of non-revocation;

Primary Consideration B carries no weight;

Primary Consideration C weighs heavily in favour of non-revocation; and

To the extent that Other Considerations weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.

Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

14    In ground 1, the applicant contends that the Tribunal took into account an irrelevant consideration in that “in determining the extent of impediments if removed” to New Zealand it took into account at [247] that removing the applicant would be “doing him a favour to remove him from the sphere of influence of those people, and give him an enhanced opportunity to turn his life around unimpeded by bad influences”.

15    The applicant submits that this was an irrelevant consideration to which the Tribunal could not legitimately have regard, citing Minister for Immigration and Multicultural Affairs v Yusuf [(2001] HCA 30; 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ) and Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40 (Mason J). He further submits that Direction 79 is not addressed to issues of criminal rehabilitation, which are irrelevant matters in the context of the task which the Tribunal is to perform.

16    Paragraph 14.5 of Direction 79 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.

17    Taken in context of both [246] and [247] of the Tribunal’s reasons, it is apparent that the Tribunal was there weighing up the circumstances in which the applicant was likely to find himself in the event that he was relocated to New Zealand. It took into account the fact that his friends and close relatives reside in Australia, and that while he had relatives in New Zealand he was not close with them, save for his grandmother. It had also noted earlier that the applicant himself had blamed his criminal behaviour in part on the bad company that he kept, a factor that was also observed in sentencing remarks by a judge.

18    It is apparent that in the second sentence of [247] the Tribunal was making an observation, best characterised as an aside. Its finding at [246] was that some social adjustment would be required in New Zealand, but that as a young, able-bodied man in good health and fluent in English he should have no difficulty finding work and establishing a positive network. In [246] the Tribunal noted that if the (positive) sides of the applicant identified by his referees in their evidence before the Tribunal manifest themselves in his conduct, then he should have no difficulty finding a social network in New Zealand quickly. The aside in [247] is that his removal from negative influences “may well” enable this to happen. This was no more than reinforcement of the point made in [246], namely that the Tribunal saw no reason to believe that he would not live harmoniously in New Zealand. Direction 79 requires a decision maker to take into account any impediments facing the non-citizen in both establishing themselves and also maintaining basic living standards. Factors to be taken into account in that regard include any social or economic support available. Having regard to the policy and purposes underlying the legislation and the content of Direction 79, the question of whether the applicant will be able to live harmoniously in New Zealand cannot be said to be an irrelevant consideration.

19    Assuming, contrary to my finding, that the Tribunal did take into account an irrelevant consideration by making the observation in [247], it is apparent that that observation was not material to the decision.

20    In assessing materiality it must always be borne in mind that the task of the Court is not to make a finding, on the balance of probabilities, as to what the Tribunal would have done had it taken the missing considerations into account or, in this case, had it not taken into account an irrelevant consideration. It is not an assessment of likelihood: Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; 268 FCR 379 at [33] (Yates, Murphy and Moshinsky JJ). Rather the question is whether a different decision could realistically have been made by the Tribunal properly taking into account the consideration raised: XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619 at [104] (Burley J). In this regard, the finding of the Tribunal at [246] has not been impugned. In my view, the observations in [247] are not such that an error of the type for which the applicant contends would be material.

21    In ground 2 the applicant contends that the Tribunal fell into jurisdictional error by finding at [250] that “Whilst there may be some language and cultural barriers to the Applicant’s potential assimilation into Maori society in New Zealand, the Tribunal considers that these would likely resolve with time” when there was no evidence to support the finding. The applicant submits that the Tribunal wrongly drew inferences as to his ability to assimilate into New Zealand Maori society based on his ethnicity (being of Maori descent) rather than by reference to the applicant’s evidence (summarised at [62] and [244] of the Tribunal’s reasons) that he regards himself as an Australian, has not embraced his ancestry and culture, does not speak Maori and would find life difficult if he were forced to return to New Zealand.

22    The applicant submits that the finding that the language and cultural barriers “would resolve in time” was a critical finding of fact in the Tribunal’s reasoning that was based on no evidence and accordingly amounted to a jurisdictional error within Soliman v University of Technology Sydney [2012] FCAFC 146; 207 FCR 277 at [23] (Marshall, North and Flick JJ).

23    In [250] of its reasons the Tribunal makes three points in successive sentences. First that there may be some language and cultural barriers to assimilation into Maori society, but that these would be “likely to resolve with time”. That observation amounts to little more than a finding that should barriers to assimilation into Maori society present themselves, the applicant would likely overcome some of them over time. That observation arises in the context of the earlier findings as to the good health and English language skills of the applicant, that he should have no difficulty finding work, and that he should be able to establish a new and positive network quickly (at [246]). It is an expression of likelihood. It does not assume that all or any of such barriers would be overcome. Nor does it address, or mischaracterise the applicant’s sense of identity, as the applicant submits. The second sentence moved on to note, uncontroversially, that New Zealand is a developed country with strong social welfare system to help the applicant get on his feet. The third point was that “in any event” the Tribunal did not consider “these issues” to present “any serious impairment to the applicant’s ability to establish himself and maintain basic living standards in New Zealand”. The language of the third sentence makes plain that the Tribunal considered that even were it to be the case that the language and cultural barriers presented to the applicant concerning his assimilation into Maori society were not overcome, he would nonetheless not be presented with serious impairment to establishing himself in general society in New Zealand. By choosing the words “to establish himself and maintain basic living standards” it is apparent that this finding addressed more than simply the economic aspects of life but considered social and other considerations pertinent to cl 14.5 of Direction 79. Moreover, it is clear from [246] that the Tribunal addressed not only economic but also cultural aspects of the impediments that the applicant may face if removed from Australia. Those findings are consistent with acceptance of the applicant’s own evidence to the effect that he did not identify as associated with Maori culture. It cannot be said that there was no evidence to support such findings.

24    Further, having regard to the manner in which the findings at [250] are expressed, it is apparent that the material finding in that paragraph is that the applicant would not face any significant impairment in establishing himself in New Zealand society. Were there to have been found to be jurisdictional error in the first sentence, it cannot have been material to the conclusion reached.

25    Accordingly, the application must be dismissed. The applicant must pay the Minister’s costs.

Associate:

Dated:    7 July 2021