Federal Court of Australia

Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 802

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an application for judicial review of a decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) made under s 501(1) of the Migration Act 1958 (Cth) by which the delegate refused to grant the applicant, Mr Shrestha, a Skilled Regional (subclass 887) visa (Visa).

Background

2    Mr Shrestha is a citizen of Nepal. He came to Australia on 16 October 2006, aged 21 years.

3    On 7 July 2016 Mr Shrestha was convicted in the Local Court of New South Wales at Dubbo of entering a building or land with intent to commit an indictable offence and assault with an act of indecency. He was sentenced to 18 months’ imprisonment. On appeal, the District Court of New South Wales varied the sentence to 18 months’ imprisonment, to be suspended on entry of a good behaviour bond.

4    On 12 September 2017 Mr Shrestha applied for the Visa.

5    On 19 August 2020 the delegate refused the Visa under s 501(1) of the Act.

6    On 24 August 2020 Mr Shrestha applied to the Tribunal under s 501(1)(b) of the Act for review of the delegate’s decision.

7    On 26 October 2020 the Tribunal conducted a hearing by video conference. Mr Shrestha appeared before the Tribunal and gave evidence.

statutory framework

8    Section 501(1) of the Act provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that he or she passes the character test.

9    Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a “substantial criminal record” as defined in subs (7). Relevantly, s 501(7)(c) of the Act provides that a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more.

10    Section 499 of the Act empowers the Minister to give directions to a person or body having functions or powers under the Act about the performance of those functions or the exercise of those powers. Direction No. 79 “Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79) was given by the Minister under s 499 of the Act. As is evident, among other things, it concerns the exercise of the powers by the Tribunal under s 501 of the Act.

11    Section 1 of Direction 79 is titled “Preliminary”. At cl 5 of s 1 the contents of Direction 79 are described as comprising the Preamble, Parts A, B and C and annexures A and B. The Preamble is, in turn, described as containing:

… the Objectives of this Direction, General Guidance for decision-makers and the Principles that provide a framework within decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a non-citizen’s visa under section 501 or to revoke a mandatory cancellation under section 501CA.

12    The Preamble is found in cl 6. It is divided into three subclauses, 6.1 which deals with “Objectives”, 6.2 which concerns “General Guidance” and 6.3 which sets out the “Principles”. Clause 6.3(5) which is one of the “Principles” is the focus of Mr Shrestha’s application. It provides:

Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

13    Section 2 of Direction 79, titled “Exercising the discretion”, includes two clauses: cl 7 titled “How to exercise the discretion”; and cl 8 titled “Taking the relevant considerations into account”. Clause 7 relevantly includes:

(1)    Informed by the principles in paragraph 6.3, a decision-maker:

(a)    must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; …

14    Part B of Direction 79 sets out the primary considerations and a non-exhaustive list of the other considerations to which the Tribunal must and may, respectively, have regard in deciding whether to refuse a non-citizen’s visa. The primary considerations are protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia and expectations of the Australian community.

The Tribunal’s decision

15    By its decision dated 10 November 2020 the Tribunal affirmed the decision under review.

16    The Tribunal’s decision is detailed. It identifies the evidence before it, sets out the background to the matter, describes Mr Shrestha’s offending, sets out in detail the evidence given by Mr Shrestha and by four additional witnesses in support of his application, including a forensic phycologist and clinical neuropsychologist, summarises Mr Shrestha’s contentions and then turns to consider those contentions.

17    It was not in dispute between the parties that, in light of his criminal record, Mr Shrestha could not pass the character test set out in s 501(6) of the Act, a matter which is also conceded for the purpose of this proceeding. Accordingly, the Tribunal’s decision was focused on the question of whether it should exercise its discretion under s 501(2) of the Act to refuse to grant the Visa. In doing so the Tribunal had regard to Direction 79.

18    The Tribunal first considered the mandatory considerations under Direction 79 and then turned to consider a list of other considerations as identified by Mr Shrestha, having accepted Mr Shrestha’s submission that none of the other considerations listed in Direction 79 were relevant to his circumstances. Given the single ground of review raised by Mr Shrestha, only the Tribunal’s consideration of the expectations of the Australian community, which the Tribunal referred to as Primary Consideration 3, needs to be set out in any detail.

19    In that regard, the Tribunal first referred to cl 11.3(1) of Direction 79, which concerns that primary consideration, and several authorities which address it. At [130] of its decision record, having regard to the offences committed by Mr Shrestha, the Tribunal found that Primary Consideration 3 weighed against the grant of the Visa to Mr Shrestha. However, it also said that this factor was moderated by the further matters it then turned to consider, namely cl 6.3(5) and cl 6.3(7) of Direction 79. Relevantly at [132]-[133] the Tribunal said:

132.    Counsel for Mr Shrestha conceded that Primary Consideration 3 weighed against his client, however contended that the adverse weight attributable to this consideration should be moderated or otherwise reduced by applying paragraphs 6.3(5) and 6.3(7) of Direction 79 in circumstances where Mr Shrestha has resided and participated in the Australian community for 14 years and has made a positive contribution by reference to his extensive 12 year employment in this country.

133.    In 2006, Mr Shrestha arrived in Australia aged 21. He has lived in Australia for 14 years. While it is true that Mr Shrestha has not been in Australia ‘only for a short period of time’, he has not lived in the Australian community for ‘most’ of his life or ‘from a very young age’ (paragraph 6.3(5)). Accordingly, the Tribunal finds that its considerations pursuant to paragraph 6.3(5) of Direction 79 only marginally moderates the weight to be ascribed under Primary Consideration 3 in favour of exercising the discretion to refuse the Visa.

(Footnote omitted.)

20    The Tribunal found that, on balance, Primary Consideration 3 weighed moderately in favour of exercising the discretion in s 501(1) of the Act to refuse to grant the Visa.

21    Upon weighing up its findings in relation to the primary considerations and the other considerations identified by Mr Shrestha, the Tribunal affirmed the delegate’s decision.

the application for review

22    Mr Shrestha raises a single ground of review which is in the following terms:

1.    The [Tribunal] made a jurisdictional error by misconstruing paragraph 6.3.5 of Direction No 79.

2.    The Tribunal at paragraph 133 of its decision found, in effect, that paragraph 6.3.5 of Direction No 79 did not apply to the Applicant as the Applicant had not lived in Australia for “most of [his] life” within the meaning of the paragraph;

3.    The Tribunal at paragraph 133 of its decision found that the Applicant had arrived in Australia aged 21 and had been present in Australia for 14 years;

4.    The Tribunal misconstrued paragraph 6.3.5 of Direction No 79 as, properly understood, the expression “most of their life” at least extended to a person who, like the Applicant, has lived in Australia for most of their adult life;

5.    This construction of paragraph 6.3.5 has previously been propounded by the Minister before this Honourable Court, as the Minister has previously submitted that paragraph 6.3.5 should be read as referring to “a significant part of his adult (and productive) life in this country”: DZC18 v Minister for Immigration [2018] FCA 1859 at [42];

6.    To the extent it is necessary for the Applicant to establish that paragraph 6.3.5 was a mandatory relevant consideration, then it is submitted that Mataia v Minister for Immigration [2018] FCA 401 at [61] was wrongly decided and the alternative suggested in Kura v Minister for Immigration [2020] FCA 1478 (Kura) at [98] should be preferred, with reference also to FYBR v Minister for Immigration for Home Affairs [2019] FCAFC 185; 272 FCR 454 (FYBR) at [76]-[77];

7.    The error in relation to paragraph 6.3.5 was material, especially in light of paragraph 171 of the Tribunal’s decision: compare Kura at [100] to [102].

Mr Shrestha’s submissions

23    Mr Shrestha contended that he has been present in Australia since early adulthood and that almost all of his adult life has been spent here. He made the following submissions about the construction of cl 6.3(5) Direction 79:

(1)    the reference to “most of their life” in cl 6.3(5) extends to a situation where an applicant has spent almost all of his adult life in Australia, as is the case for him;

(2)    there are good reasons for reading cl 6.3(5) in that manner. The clause refers to a situation where, by virtue of the duration and extent of the applicant’s time in Australia, the community would afford higher tolerance of criminal conduct in a context of his or her potential exclusion from Australia and the thinking must be that, the longer and more significant a person’s time in Australia, the greater the extent to which the community would not wish criminality to rupture the connection;

(3)    as to the latter he contended that is evidently so for a person who has been in Australia from a very young age, noting that formative years spent in Australia is something that the community, as perceived by Direction 79, would wish to preserve and build upon notwithstanding criminality;

(4)    the same applies where a person has spent “most of their life” in Australia, which readily encompasses a situation where a person arrived at a young, but not very young, age and has spent the majority of his or her life in Australia; and

(5)    such thinking should also be present where a person has spent most of their adult life in Australia. If a person has spent their higher education and career in Australia, with all of the facets of an adult existence, it is a connection which under cl 6.3(5) of Direction 79 should be recognised as being less prone to severance on account of criminal behaviour by the person.

24    Mr Shrestha observed that there is a debate in the case law about the extent to which cl 6.3(5) of Direction 79 is a mandatory consideration but said that it is not necessary to enter upon that debate for the purposes of considering his ground of review. Mr Shrestha submitted that an analogy can be drawn with the decision in Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32. He submitted that it may be deduced from Applicant S270 that a matter squarely raised by an applicant, while not of itself a mandatory relevant consideration, is required to be considered by the decision maker unless account of the matter is specifically provided for elsewhere in the Act. He said that having expressly raised cl 6.3(5) before the Tribunal, as recorded at [132] of the Tribunal’s reasons (see [19] above), it follows that the Tribunal was required to consider the effect of cl 6.3(5) with respect to him.

25    Mr Shrestha submitted that if this Court accepts his submissions as to the meaning of cl 6.3(5) of Direction 79 and its application to him, it follows that the Tribunal has misinterpreted Direction 79. That is because the Tribunal rejected Mr Shrestha’s claim in relation to cl 6.3(5) based on a misunderstanding of the meaning of the term “most of their life”. Mr Shrestha contended that, properly understood, the expression extends to him and, in those circumstances, the Tribunal had not, in effect, considered his claim based on cl 6.3(5) of Direction 79, a claim which he expressly made as part of his case for the exercise of the discretion. He contended that, because it was not considered, the Tribunal made a jurisdictional error.

26    Mr Shrestha submitted that, to the extent that another way of characterising the error is needed, an analogy can also be drawn with the decision in Jabbour v Secretary, Department of Home Affairs [2019] FCA 452 at [89] and that the error of interpretation gives rise to legal unreasonableness.

27    Mr Shrestha referred to Mataia v Minister for Immigration and Border Protection [2018] FCA 401 and Aitchison v Minister for Immigration, Citizenship, Migrant Services and Multicultural Services [2021] FCA 357 as two authorities which touch upon whether cl 6.3(5) of Direction 79 is a mandatory relevant consideration, He submitted that, insofar as those authorities rejected an allegation of error by another route, in each case the Court seems to have reasoned that the substance of cl 6.3(5) was considered in any event. Mr Shrestha submitted that the same approach is not available in this case because he specifically raised cl 6.3(5) of Direction 79 as a matter which should reduce the weight which the Tribunal would otherwise accord Primary Consideration 3. It was therefore necessary for the Tribunal to consider more than the extent and nature of his time in Australia. It was required to consider whether, on that basis, he attracted cl 6.3(5) and its effect on Primary Consideration 3. Mr Shrestha submitted that the Tribunal, having erroneously understood cl 6.3(5) of Direction 79 to be inapplicable, failed to do so.

28    Mr Shrestha observed that if he succeeded in establishing error, it remained necessary for him to establish that the error was material. He submitted that materiality exists in this case. In that regard Mr Shrestha contended that the Tribunal perceived two limbs in cl 6.3(5) of Direction 79: it could work against a person who had been in Australia for only a short period of time; but it could work in favour of a person who had spent most of their life in Australia or had been in the country from a very young age. Mr Shrestha noted that the Tribunal held that he attracted neither the favourable nor the unfavourable limb of cl 6.3(5) of Direction 79 and, as a result, held that the clause “only marginally moderates the weight to be ascribed under Primary Consideration 3 in favour of exercising the discretion to refuse the [Visa]”. Mr Shrestha submitted that, if the Tribunal had not misconstrued cl 6.3(5) of Direction 79, it would have found that the favourable limb of the clause operated in his favour and it could then have not marginally but significantly moderated the weight which the Tribunal would later accord to Primary Consideration 3.

29    Mr Shrestha submitted that the Tribunal based its decision on the fact that “Primary Considerations 1 and 3 outweigh Primary Consideration 2 and the other considerations”. Mr Shrestha contended that the Tribunal, in concluding that taken together primary consideration 2 and the other considerations “fails to tip the balance” in his favour, referred to the Preamble, including its description of the tolerance of the community, but wrongly omitted as inapplicable the higher degree of tolerance owed to him under cl 6.3(5) of Direction 79. He submitted that it is not unrealistic to say that, without the Tribunal’s misinterpretation of Direction 79, the balance might have operated differently, with Primary Consideration 3 having its weight moderated by cl 6.3(5).

consideration

30    The first issue to address is the proper construction of cl 6.3(5) of Direction 79.

31    Mr Shrestha contended that, properly construed, the reference to “most of their life” in cl 6.3(5) should be understood to mean or include a person’s adult life. That is, the relevant part of the clause, properly understood, should be read to mean that “Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life or their adult life, or from a very young age” (emphasis added). But that is not the natural and ordinary meaning of the clause.

32    The meaning of cl 6.3(5) of Direction 79 is plain. The phrase “most of their life” means what the words ordinarily convey. That is that a higher level of tolerance may be afforded to non-citizens who have spent most of their life in Australia. Significantly, the clause expressly refers to two distinct, albeit potentially overlapping, categories of non-citizens to whom a higher level of tolerance may be afforded: those who have lived in the Australian community for “most of their life”; and those who have done so “from a very young age”. If a higher level of tolerance were also to be afforded to non-citizens who had lived in the Australian community for most of their adult life, one would expect the clause to contain a similar express reference to that category of non-citizens. The absence of any such express reference is telling. There is no reason or cause to interpret the reference to “most of their life” to mean “most of their adult life” whether because of the ordinary meaning of the clause or as a matter of purposive construction.

33    The Tribunal’s interpretation was in accordance with the ordinary meaning of the words. As the Tribunal observed, Mr Shrestha had not spent most of his life in Australia. He arrived at the age of 21 and thus, at the time of the hearing before the Tribunal, had lived in Australia for 14 years. There was no error in the Tribunal’s approach.

34    Mr Shrestha accepted that if his proposed construction of cl 6.3(5) of Direction 79 was not accepted, which it has not been, then he cannot succeed on his ground of review. Accordingly, his application should be dismissed. However, although somewhat artificial, in case I am wrong about the meaning of cl 6.3(5), and assuming Mr Shrestha’s construction is correct, I consider briefly below whether, based on Mr Shrestha’s primary argument, the Tribunal fell into jurisdictional error. Mr Shrestha does not proceed on the basis of a contention that cl 6.3(5) of Direction 79 is a mandatory consideration and contends that the Court does not need to enter upon that debate as described in Aitchison at [65]-[66]. Mr Shrestha’s argument, assuming his construction of cl 6.3(5) is correct, is that, as he raised cl 6.3(5) as part of his case before the Tribunal, the Tribunal misconstrued the clause and so fell into jurisdictional error. This is because the Tribunal was required to consider cl 6.3(5) according to its true, not misapprehended, meaning.

35    Mr Shrestha relies on the decision in Applicant S270. In that case the issue before the High Court was whether the Minister was obliged to consider if non-refoulement obligations were owed to the appellant when exercising the discretionary power under s 501CA(4) of the Act. Mr Shrestha relies on [33] and [36] where Nettle, Gordon and Edelman JJ said:

33.    Although mandatory relevant considerations may be identified by reference to the text, subject matter, scope and purpose of the statute, there is nothing in the text of s 501CA, or its subject matter, scope or purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke cancellation of any visa that is not a protection visa where the materials do not include, or the circumstances do not suggest, a non-refoulement claim.

…

36.    It follows in this matter that, although the s 501CA(4) discretion is wide, it must be exercised by the Minister considering the claims and material put forward by the applicant. If no non-refoulement claim is made – as in this case – non-refoulement does not need to be considered in the abstract. In those circumstances, it would only need to be considered at a later time, if the applicant applied for a protection visa. The appellant has not done so.

(Footnotes omitted.)

36    Section 501CA(4) empowers the Minister to revoke a decision to cancel a person’s visa if the person makes representations and the Minister is satisfied that the person passes the character test or there is another reason why the decision to cancel the visa should be revoked. That is, the power under s 501CA(4) of the Act is predicated on the making of representations. The same is not the case for the power in s 501(1) of the Act which does not rely for its exercise on the making of representations or submissions by a person seeking to avoid its exercise.

37    In any event, as the Minister submitted, the Tribunal did not fail to consider Mr Shrestha’s argument by reference to cl 6.3(5). It took Mr Shrestha’s contention into account but arrived at a different conclusion about how the clause applied in the circumstances of his case. There was no error in the Tribunal’s understanding of or application of the clause. It accords with the approach in FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J); Mataia at [61]; and NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1077 at [26]-[29].

38    Mr Shrestha also relied, by analogy, on the decision in Jabbour to the extent that he needed to characterise the error another way. However, given the conclusion I have reached about the interpretation of cl 6.3(5) and the primary way in which he contends that, had his construction been correct, the Tribunal fell into jurisdictional error, I do not consider it necessary for me to address the alternate characterisation or the question of materiality.

conclusion

39    For those reasons the application should be dismissed. As Mr Shrestha has been unsuccessful he should pay the Minister’s costs as agreed or taxed.

40    I will make orders accordingly.

Associate:

Dated:    16 July 2021