Federal Court of Australia

Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 914

ORDERS

THE COURT ORDERS THAT:

1.    The Amended Originating Application be dismissed.

2.    The Applicant is to pay the First Respondent’s costs of the application.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    In this application, Mr Samer Ibrahim seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 1 October 2020, which affirmed the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) not to revoke the cancellation of Mr Ibrahim’s visa under s 501CA of the Migration Act 1958 (Cth) (the Act).

2    For the reasons which follow, the application must be dismissed. Despite prior extensions of time to allow Mr Ibrahim to amend his application and to file written submissions, he failed to do so and he has also failed to raise any sustainable ground on which the decision of the Tribunal might be vitiated. In any event, when the Tribunal’s reasons are considered no relevant error appears and, indeed, in the circumstances of the applicant’s offending the Tribunal’s decision was unremarkable.

Application to adjourn the hearing

3    On 28 July 2021, being three days prior to the hearing, Mr Ibrahim’s then pro bono Counsel advised my chambers by email that he had ceased to act for the applicant. The history of that counsel’s involvement in the proceedings had been somewhat problematic as is discussed below. When the matter was called on for hearing, the applicant appeared in person and immediately sought an adjournment. He claimed that he had had no communication with the pro bono Counsel for some time, and that it was only recently that he was informed by Counsel that he would no longer act for him. Although in some circumstances the late withdrawal of counsel might found a reasonable basis on which to grant an adjournment, that is not so in this case where it is apparent that the counsel concerned appears to have had negligible involvement in the matter in any event.

4    Nevertheless, Mr Ibrahim sought an adjournment and I received submissions from the parties on that issue. I indicated that the application was refused and that the reasons for the refusal would be included in these reasons.

5    The context for such consideration is as follows:

(1)    Mr Ibrahim was unrepresented when he filed his originating application in October 2020. The grounds of review in his originating application were vague and generally not particularised.

(2)    On about 12 November 2020, a Registrar of this Court issued a pro bono referral certificate seeking legal assistance for the applicant.

(3)    On 9 December 2020, directions were made programming the application to a hearing on 19 April 2021. In particular, Mr Ibrahim was required to file and serve any amended application with particularised grounds of review and any further affidavit material on which he intended to rely by 27 January 2021. By consent, this was later extended to 22 February 2021 at the applicant’s request as he had not then obtained pro bono representation. He was also due to file written submissions by 5 April 2021.

(4)    On 22 February 2021, the applicant filed an amended application. Unfortunately, this document merely contained additional grounds of review which were also not particularised and did not explain the content of the existing grounds.

(5)    On 23 March 2021, the Registry advised my chambers that pro bono Counsel had accepted the referral. Counsel was then advised that he should seek leave to file any amended application or further material as soon as possible, having regard to the pending hearing date of 19 April 2021. Although Counsel indicated that he was likely to seek leave to amend, no such application was forthcoming, nor did the applicant file written submissions before they were due on 5 April 2021.

(6)    On 16 April 2021, the applicant’s Counsel advised the Court by email that he was unwell “since earlier that week” and requested that the hearing on 19 April 2021 be adjourned, inclusive of a period of time to allow him to amend the application and to file written submissions. No explanation was then offered as to why the applicant had not complied with the earlier direction as to the filing of written submissions, nor as to why an amended application had not been filed as foreshadowed. The absence of such an explanation was raised by the Minister’s legal representatives, however the Minister ultimately consented to the hearing being adjourned for six weeks.

(7)    Orders were then made by consent on 23 April 2021 adjourning the hearing to 1 July 2021 and affording the applicant until 30 April 2021 to file any amended application and until 17 June 2021 to file written submissions. The applicant did not subsequently file any amended application or written submissions as contemplated by those orders.

(8)    On 29 June 2021, the applicant’s Counsel advised my chambers by email that he was again unwell and could not appear at the hearing. In opposing a request for a further adjournment, the Minister again identified that no explanation had been provided for the failure to file written submissions. Although the applicant’s Counsel subsequently advised by email that his illness was of a chronic and disabling nature, such an explanation is somewhat unsatisfactory where it is provided nearly two weeks after the date on which the applicant was to file his written submissions. The Counsel also sought further time to file an amended application and written submissions.

(9)    The hearing scheduled for 1 July 2021 was ultimately adjourned to 2 August 2021 and the applicant’s Counsel was advised by my Associate to file any amended application and written submissions by 21 July 2021, thus affording him a period of three weeks to do so. He was further advised that leave would be required to rely upon any such further material and that any material to be relied upon in support of the grant of leave also needed to be filed by 21 July 2021. Once again, no further material was filed for the applicant and, indeed, the applicant’s Counsel advised my chambers by email on 28 July 2021 that he had ceased to act.

6    The Court is left in the situation of having afforded the applicant every reasonable indulgence to allow him to articulate his case in a properly formulated application for review and to file written submissions in support of it. It has facilitated the securing of pro bono counsel for him and accorded him a number of opportunities to frame his case. Despite that, he has not advanced his case in any way nor provided any further articulation of the grounds on which he truly relies. More relevantly, he has provided no cogent reason as to why the indulgences which the Court has granted have not had the consequence that he is now ready for the hearing of the application. The absence of any explanation is significant.

7    In addition, there was no evidence that the applicant was likely to secure legal assistance in the future. He claimed that he had contacted lawyers about his case but that they required payment of $15,000 in order to represent him in the matter. He said that he was unable to afford that fee. Unfortunate though it is, it is unlikely that allowing Mr Ibrahim any further time will enable him to secure legal representation or will put him in a position to file an amended application or written submissions.

8    Although the applicant asserted a number of factual matters in support of his application, none of these assertions were the subject of sworn evidence and the full circumstances of his dealings with the pro bono Counsel are unknown.

9    In these circumstances, there is simply no basis for granting any further adjournment should be allowed. The Minister’s legal representatives have acted with the utmost propriety in agreeing to or not opposing the previous extensions sought by the applicant and he should not be further imposed upon by this latest failure by the applicant to ready himself for the application.

10    It follows that the application for a further adjournment of the hearing of the application is refused.

Background

11    The applicant is a citizen of Lebanon, being the place where he was born. He has a former wife and son there, the latter now being older than 21. His father and all five of his siblings live there as well.

12    He arrived in Australia in July 2001 when aged 25 years old. He was 44 at the time of the Tribunal’s decision in October 2020.

13    His criminal activity commenced two years after his arrival in Australia. It is detailed in the reasons of the Tribunal below and it is not necessary to repeat it in full here. For present purposes, it suffices to note that it commenced with a number of traffic offences and he has maintained a constant level of serious violations since 2003.

14    The applicant was first convicted in around 2005 after he had received stolen property and he has continued to commit property offences for which he has been sentenced to various terms of imprisonment. During a period of incarceration in 2015 the applicant’s visa was cancelled and, at the termination of his sentence, he was taken into immigration detention. Whilst there the cancellation decision was revoked by the Minister and he was allowed to return to the community and to his Australian wife and children.

15    In 2018, the applicant was convicted of an arson related offence, albeit one committed in 2014, and was later sentenced to a period of imprisonment of five years.

16    On 12 March 2019, the Minister’s delegate cancelled Mr Ibrahim’s visa (being a Class WE Subclass 050 Bridging Visa E (General) visa) pursuant to s 501(3A) of the Act, this being founded upon his most recent period of incarceration.

17    The applicant subsequently made representations pursuant to s 501CA(3) and (4) of the Act in March and December 2019 as to the revocation of the cancellation decision. On 8 July 2020, the Minister determined not to revoke the cancellation of the applicant’s visa.

18    On 13 July 2020, the applicant applied to the Tribunal for review of the non-revocation decision.

The Tribunal’s decision

19    The Tribunal gave extensive reasons for its decision. In them it set out at length the applicant’s background, his family circumstances and his traffic and criminal history. It then turned its attention to the matters referred to in Direction No. 79 which had been issued under s 499 of the Act. In relation to his criminal history, the escalation of the seriousness of offences was particularly noted and the Tribunal observed that, in total, the applicant had been sentenced to 12 years and one month imprisonment. This, it noted, disclosed that he had a disregard for the safety of members of the Australian community and was prepared to commit serious crimes despite the threat of consequential incarceration. It followed, so the Tribunal concluded, that the criterion of the protection of the Australian community weighed heavily in favour of not revoking the cancellation decision.

20    Similarly, it was concluded that the risk to the Australian community should the applicant commit further offences weighed heavily against revocation. The consequences of further offending were serious and potentially catastrophic, and there was a low to medium risk of the applicant reoffending.

21    The Tribunal then turned its attention to the best interests of minor children in Australia. In doing so, it noted that the applicant relevantly had a daughter who was 14 years old and a nine year old son in this country, but observed that his relationship with them had been significantly interrupted by his incarceration which, since 2007, totalled approximately eight years. It rejected the applicant’s assertion that he was the “pillar of the family and the role model and teacher” in the family, and it found that it was his wife who had cared for his children. It was further found that if he were required to return to Lebanon she would remain as the primary care-giver.

22    After reviewing the material before it, the Tribunal accepted that the applicant’s minor children will suffer some emotional hardship if the cancellation decision was not revoked, but that they will not suffer mentally. As a result, it was found that it was in their best interests if revocation occurred, although the weight given to that was reduced due to the applicant’s long absences from their lives whilst he was incarcerated, and the uncertainty as to the extent to which his presence in the children’s lives would be positive. The Tribunal was also of the view that the applicant could maintain contact with his children via electronic communication and, in any event, it was his wife who had been the main care-giver to the children in the past.

23    In relation to the criterion of whether revocation meets the expectations of the Australian community, the Tribunal took into account that the applicant had commenced offending two years after arriving here, his offences were serious and persistent, he was not deterred from committing further offences even after periods of imprisonment including whilst on parole, there was a low to moderate risk that he will reoffend, his offending demonstrated a disregard for the law and for the safety of the members of the community, when not in prison he has a solid work history and is an active member of his local mosque, and his removal to Lebanon would adversely affect his adult step-daughter and his two minor children. It concluded that those elements had the consequence that the expectations of the Australian community weighed heavily against revocation of the cancellation decision.

24    In relation to the “other” criteria in Direction No. 79, the Tribunal considered the strength, nature and duration of the applicant’s ties to Australia and, in particular, his family circumstances. It reviewed the evidence of his adult step-daughter’s assertions as to his role as her father and other letters of support. It concluded that the strength, nature and duration of his ties to Australia weighed moderately in favour of revocation.

25    The Tribunal also considered the extent of impediments to the applicant were he to be removed from Australia. In this respect, it noted his substantial connections in Lebanon and the likelihood of him obtaining employment there. It also considered his physical health and the medication which he claimed to be taking for a heart condition. Mr Ibrahim alleged he may not be able to obtain those medications in Lebanon although there was no evidence to support that claim. The fact that he would reside in his father’s home with members of his family mitigated any disadvantages of being removed from Australia, as did the fact that he spoke Arabic. As a result there were “no significant or substantial language or other cultural barriers to the applicant’s return and re-establishment in Lebanon”. Although the Tribunal had regard to the less stable socio-political situation in Lebanon, it did not consider that there was any more than a remote risk that the applicant would be a victim of societal violence there.

26    In the result, the “Other Consideration (e)” was found to weigh slightly in favour of revocation of the cancellation decision.

27    Nevertheless, taking the criteria together, the Tribunal determined that there was no “other reason” for revoking the cancellation decision and the decision under review was affirmed.

Application for review

28    The consequence of the applicant’s failure to attend to the proper prosecution of his application is that the Court is left with mere generalised assertions in the Amended Originating Application which alleges the existence of errors by the Tribunal, but which fails to identify any grounds on which the allegations might be sustained. For this reason, alone the application is defective and it can be dismissed on that basis. However, Counsel for the Minister has prepared a careful analysis of the nine grounds set out in application and, after making several assumptions in the applicant’s favour as to their substance, has responded to them. In the absence of any written submissions or any substantial oral submissions in the course of the hearing from the applicant, it is appropriate to consider the grounds raised in the order addressed in the Minister’s written submissions.

29    As a result of the COVID-19 pandemic, the application was heard via an audio-visual connection between the Court and the parties, each of which were in separate locations. This did not appear to hamper any party in advancing any submission which they saw fit to make. The appellant was able to address the Court and was offered an opportunity to raise any argument in support of each of the grounds of review.

Ground 1 – relevant and irrelevant considerations

30    The first asserted ground of review is that the Tribunal failed to ‘properly take into account’ relevant considerations and took into account irrelevant consideration. As Mr Johnson for the Minister correctly submitted, in the absence of particulars or explanation, this ground is meaningless.

31    In the exercise of the statutory function under s 501CA(4) to ascertain whether the decision-maker is satisfied that there exists “another reason” why the cancellation decision should be revoked, the decision-maker is required to take into account the matters raised by the applicant in response to the invitation issued to them as required by s 501CA(3): GBV18 v Minister for Home Affairs (2020) 274 FCR 202 at 217 – 221 [30] – [32]; Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v CTB19 [2020] FCAFC 166 [15]; Viane v Minister for Immigration & Border Protection (2018) 263 FCR 531 at 546 [66] – [68].

32    There is nothing to suggest that the Tribunal did not take into account any matter which the applicant advanced as being “another reason” why the cancellation decision should be revoked or any ground or argument advanced in support of such a matter. On the contrary, the Tribunal’s decision shows that it had regard to the information which the applicant advanced and a perusal of the applicant’s Statement of Facts, Issues and Contentions reveals that the Tribunal referenced, had regard to and took into account all of the matters raised. That was despite the fact that the arguments were advanced upon an incorrect premise and were in vague and general terms.

33    The Tribunal also took into account the terms of Direction No. 79 as being relevant to its determination as to whether it was satisfied that “another reason” existed as to why the cancellation decision should be revoked. This it was entitled to do. All matters relevant to the formation of the state of mind required by s 501CA(4) were considered by the Tribunal and no substantive submission was made to the contrary.

34    It need not be determined in this case whether Direction No. 79 should be regarded as containing considerations which the decision-maker is bound to take into account in the formation of the state of satisfaction required by s 501CA(4) as opposed to the exercise of the discretion, even if an orthodox approach to statutory construction might suggest that it does not: see Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 [51]; Guclukol v Minister for Home Affairs (2020) 279 FCR 611 at 616 – 617 [16]. In any event, the applicant did not identify any matter referred to in Direction No. 79 which was not appropriately considered by the Tribunal.

35    In the course of the hearing of the application, Mr Ibrahim identified that which appeared to be the focal point of his concern with the Tribunal’s reasons. This permeated his oral submissions and went to nearly all grounds on which he relied. He submitted that, in effect, the Tribunal had failed to take into account that the Minister had previously revoked an earlier cancellation of his visa and that this had the consequence that he must reach the same conclusion after his visa was cancelled a second time. The applicant’s earlier visa (a bridging visa) had been subject to cancellation on 9 June 2015 whilst he was serving a term of imprisonment following a conviction for an offence of receiving stolen property. After his release, the applicant was placed in immigration detention, although after representations were made to the Minister, that cancellation was revoked on 5 October 2016. In the context of making submissions on this point, Mr Ibrahim asserted that, on the occasion of that earlier revocation, he had entered into a written agreement with the Department which he signed and which was to the effect that if he abstained from further criminal conduct his visa would not be cancelled in the future. In the course of the hearing he identified a document at page 175 of the Court Book as that which he regarded as the agreement between him and the Department. It provided:

I, Samer Youssef IBRAHIM, acknowledge that I have received Notice of decision to revoke visa cancellation under s 501CA(4) of the Migration Act 1958. I understand that I can again be considered for cancellation of any visa I hold if further information of relevance comes to the attention of the department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.

36    Mr Ibrahim identified that he had signed the document containing that statement which bears the date of 5 October 2016. As is immediately apparent, far from constituting an agreement between himself and the Department that if he does not commit any further offences his visa will not be subject to cancellation, it identifies that if further information comes to the Department’s attention any visa which he may hold would be also subject to cancellation. In short, the document is an acknowledgement that any visa he holds is subject to cancellation on the Department becoming aware of additional relevant information. As it happened, that new information was his subsequent sentencing in 2019 to a term of imprisonment for five years in respect of the arson related charges.

37    The import of the alleged agreement to the issues under consideration is that, although Mr Ibrahim was in prison serving a sentence of five years for his part in an arson when his visa was cancelled on 12 March 2019, the sentence had been imposed in 2019 for an offence committed by him in 2014. He submitted that, in these circumstances, he had not been shown to have engaged in further criminal conduct after the first revocation and that his visa ought not to be subject to cancellation (or that the cancellation decision should be revoked) given the absence of any further offending since the earlier revocation. He suggested that the earlier revocation had the effective consequence that he was deemed to be of good character and a suitable member of the community and that this was a relevant consideration under s 501CA(4) when the issue arose again.

38    The first reason as to why these submissions fail is that they are founded upon a misunderstanding of the document signed by Mr Ibrahim in 2016 and the effect of the first revocation. The initial matter is discussed above and it suffices to observe that there was no agreement between Mr Ibrahim and the Department as identified. Rather, the document affirmed the position which arises by operation of the Act; being that if the Minister received further information and was satisfied that the requirements of s 501(3A) were met, the applicant’s visa would again be subject to cancellation.

39    Second, there is no evidence that the revocation of the earlier cancellation decision proceeded upon any conclusion that Mr Ibrahim was of good character or was otherwise perceived to be a worthy member of the Australian community. Such a conclusion is most unlikely as, under the Act, he is unable to ever pass the character test as a consequence of his criminal record and the time for which he has been sentenced to a term or terms of imprisonment. For instance, he was sentenced in 2011 to a term of imprisonment for four years and four months. As a result of the operation of s 501(6)(a) and (7)(c) of the Act, a person will fail the character test if they have been sentenced to a term of imprisonment of 12 months or more. It follows that it was not possible that the decision-maker who made the revocation decision under s 501CA(4) in October 2016 was satisfied that Mr Ibrahim passed the character test. The revocation decision could only have been made by reason of the existence of some “other reason” for revocation and the discretion was then exercised in his favour.

40    The basis on which the 2016 revocation decision was made is not clear. It may have been made upon a conclusion that the detriment to the applicant’s children flowing from his deportation was sufficient to overwhelm the perceived disadvantages flowing from his then risk to the Australian community. In addition, the evidence before the Court does not provide any indication of whether the decision-maker who exercised the power under s 501CA(4) in 2016 was aware of the offences with which the applicant was being charged. The Departmental Revocation Memorandum was not reproduced in the Application Book. Certainly, however, if the decision-maker was aware of the charges, they could not have known whether a conviction would follow and, if so, what sentence would be imposed. It would have been quite wrong for the decision-maker in 2016 to assume that he would be convicted of that offence and to then take it into account.

41    The result of the above is that there was no agreement as alleged by the applicant and there was nothing in the document signed by him, of itself, which was relevant to the Tribunal’s subsequent decision.

42    A submission similar to that made to this Court was made in Mr Ibrahim’s written submissions to the Tribunal. It stated:

g)    Importantly, yet another reason why the decision should revoke the Applicants cancelled visa is that Mr Ibrahim has already past the character test in 2016 under the same Act without further committing any crime and in the midst of his reform efforts towards repairing an healing his past wrongs. Due to the technicality of an unresolved outstanding criminal matter.

43    Again, that submission misunderstand the nature of the initial revocation and the obligation of the Minister to exercise the power in s 501(3A) of the Act. As has been discussed, the initial revocation did not have the consequence that the applicant then passed the character test. He could not do so at that time and that position was exacerbated by the subsequent sentence of five years imposed upon him in relation to the arson offences.

44    However, the paragraph cited did raise a submission that the Tribunal should take into account that the applicant did not commit any further crimes after the initial revocation. However, as the Tribunal’s reasons reveal, it did have regard to that matter. It identified the periods during which the applicant was engaged in criminal activity as well as the times of his incarceration, and it made specific mention of this topic at paragraph [75] of its reasons in the following terms:

The Applicant was living in the community between October 2016 and September 2018. Between an unknown time in 2017 and September 2018, he did not offend. However, this alone does not persuade me that the Applicant is successfully rehabilitated as he has gone for lengthy periods before without offending such as between March 2009 and February 2010, and between October 2010 and June 2011.

45    It follows that the Tribunal was aware of the applicant’s submission that he had abstained from offending since the first revocation and it took that into account when assessing the risk which he posed to the Australian community. It is clear that the Tribunal was aware of the applicant’s pattern of criminal behaviour and the occasions of his offending. At paragraph [33] of its reasons, and in the course of a chronological discussion of the applicant’s offending, it notes that on 1 February 2014, whilst still on parole, the applicant committed a further offence of being involved in a scheme to destroy a commercial property by fire for the purposes of insurance fraud. It was this offence for which he was sentenced in 2019. It is clear that the Tribunal had the sequence of events firmly in mind and understood that Mr Ibrahim had not been convicted of any offences which he committed after the 2016 revocation decision. It follows that the applicant has failed to establish that the Tribunal failed to take any relevant matter into account.

46    It may be that in the exercise of power under s 501(3A) the Minister could not rely upon the same term of imprisonment as part of the trigger for that section: Minister for Immigration and Border Protection v Makasa (2021) 95 ALJR 117; XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619: although the preferable view appears to be that in Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545 which was to the effect that the Minister’s authority is not stultified when new circumstances, including the sentencing of the visa holder to a further term of imprisonment, arise and enliven the power. These matters are not relevant to the present case as the Minister’s obligation under s 501(3A) was activated when Mr Ibrahim was sentenced to five years imprisonment for an arson related offence. This was distinct from the circumstances which had enlivened the power in s 501(3A) in 2016.

47    Ultimately, the point raised by the applicant in his written submissions was legally irrelevant to the Tribunal’s determination as it was founded upon a misapprehension as to the effect of the earlier revocation. That revocation did not have the effect that he passed the character test or deem him to be a worthy member of society. It follows that Ground 1 was not made out.

Ground 2 – misunderstanding Direction No. 79

48    The second ground of review advanced was that the “Tribunal erred as it misconstrued and misunderstood Ministerial Direction No. 79 in its application to the Applicant’s case”. The applicant did not explain what that misunderstanding was, how it occurred, or where in the Tribunal’s reasons it can be identified.

49    The Tribunal’s reasons disclose that it identified the matters identified in Direction No. 79 and considered the material before it in accordance with its structure. It analysed the evidence before it to the extent to which it went to each of the criteria specified by the direction and its reasons show that it understood the import of each criteria and why the evidence was relevant to it.

50    In the course of the hearing, Mr Ibrahim acknowledged that the amended Originating Application was drafted by another person and that he did not understand parts of it. This ground fell within that category.

51    Again, there is nothing in the Tribunal’s reasons which supports this vaguely articulated ground.

Grounds 3 and 4 – procedural fairness

52    By Ground 3, the applicant asserts:

The Tribunal erred in respect to certain critical facts and evidence without first properly putting these critical facts or evidence to the unrepresented Applicant.

53    More generally, Ground 4 asserts that, “The Tribunal erred as it failed to conduct a hearing that met its obligation at law.”

54    These grounds appear to raise issues of procedural fairness. However, in relation to Ground 3, the applicant failed to identify what were the “certain critical facts and evidence” which were allegedly not put to him and, for this reason alone, the ground is not sustainable. Further, he failed to adduce any evidence in support of this Ground. It is underpinned by a factual issue, the onus of which is on him to discharge. It would require, at least, an affidavit deposing to the Tribunal’s failure and evidence of what occurred during the course of the hearing. Neither of those matters are established with the result that there is no substance to this Ground.

55    In this context, and on the assumption that it is relevant to the applicant’s concern, it is appropriate to observe that it is well-established that the Tribunal is not required to provide an applicant with “a running commentary” on what it thinks about the evidence that is given: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 166 [48] citing F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369.

56    The even more broadly asserted failure by the Tribunal to conduct a fair hearing in Ground 4 also lacks any substance. It can be accepted that the Tribunal is bound to accord procedural fairness to an applicant with respect to a review of a decision made under s 501CA(4). However, what is required to ensure that the decision was fairly made is to be ascertained by reference to the legal framework in which it was made: Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 335 [30] where Kiefel, Bell and Keane JJ held:

… It is sufficient to say that, in the absence of a clear, contrary legislative intention, administrative decision-makers must accord procedural fairness to those affected by their decisions. Recourse to the notion of legitimate expectation is both unnecessary and unhelpful. Indeed, reference to the concept of legitimate expectation may well distract from the real question; namely, what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made.

57    The Tribunal’s reasons reveal that it held a hearing in which the applicant participated prior to making its decision. The Tribunal’s reasons record, where appropriate, the evidence which he gave and the evidence of others whether oral or written. Prior to the hearing, the applicant had filed a SFICs and filed submissions. It is also apparent that the Tribunal received a substantial amount of evidence from the applicant in the form of statements and the like. In the absence of any particularisation of the claim, it is not possible to ascertain which aspect of the hearing is the subject of his complaint.

58    It is apparent that there is nothing in these grounds which raises any error on the Tribunal’s behalf.

Ground 5 – error in the delegate’s decision

59    Ground 5 of the Amended Originating Application provides:

The delegate of the Minister is having two bites of the cherry and Mr Ibrahim is caught in a catch-22.

60    It appears that this assertion is directed to the delegate’s decision and to that extent it is misconceived because that decision is not the subject of the review application.

61    In the course of the hearing, it became clear that by this ground Mr Ibrahim sought to raise the effect of the 2016 revocation decision. To that extent, it has been dealt with above.

Grounds 6, 7 and 8 – inconsistency with other decisions

62    Grounds 6, 7 and 8 are:

6.     The Tribunal made an irrational failure by not giving proper, genuine and realistic consideration to the merits concerning a previous favourable decision by a delegate of the Minister.

7.     The Tribunal failed to recognise Applicants bona fide belief and failure to recognise the Applicant kept his good will in regards to a previous decision by a delegate of the Minister.

8.     The Tribunal undermine a prior authoritative decision whilst failing to show proper cause or valid reasoning for a new reconsidered changed decision. Therefore demonstrating a jurisdictional inconsistency.

63    Again, it emerged during the course of the hearing that these grounds also referred to the impact of the decision on 5 October 2016 to revoke the previous cancellation decision and the applicant’s attempt to assert that it somehow had the result that the Minister was not able to reach an inconsistent decision in March 2019. As discussed above, the applicant’s submission proceeds upon a misunderstanding of the effect of the 2016 revocation decision and of the matters relevant to the later non-revocation decision. The earlier revocation decision related to a different occasion where different matters triggered the cancellation. The later non-revocation decision (and preceding cancellation decision) related to the subsequent sentence imposed in 2019 for the arson related office. The Minister’s consideration in 2019 as to whether he ought to again revoke the cancellation included material which did not exist and was not considered in relation to the 2016 decision. Far from there being any inconsistency between the earlier revocation and the refusal by the Tribunal to revoke on this occasion, where a person’s visa has previously been cancelled and that decision revoked and they are then sentenced to a further lengthy term of imprisonment, the likelihood of a second cancellation being revoked is greatly diminished.

Ground 9 – alleged failure to intellectually engage with contentions

64    By Ground 9, the applicant alleged that the “Tribunal failed to intellectually engage fully with respect to applicants history and ignored his contentions regarding his past history verses present history and therefore failed to recognise the worthiness of his correct merits.”

65    Again, this ground is difficult to understand and the lack of particulars has the necessary result that it does not raise any sufficient ground of review. That is particularly so in relation to the allegations that the Tribunal ignored his past history. As the reasons make pellucid, his history of offending was carefully set out and considered and the increasing seriousness of his offending was noted. The Tribunal also referred to and considered his family circumstances as well as his work history, which was consistent with the evidence before it. There is nothing in the material to demonstrate what other historical material might have been overlooked.

66    In the course of the hearing, Mr Ibrahim seemed to suggest that the Tribunal ignored that he was a changed person and that his criminal behaviour was in the past. He said that he had learned from his previous errors and that he is and would be a worthwhile member of the Australian community. Again, he relied on the fact that he had not committed any offences since being released from detention in 2016 when the initial revocation decision was made.

67    There is nothing to suggest that the Tribunal ignored the applicant’s present circumstances and the claimed state of his character subsequent to 2016. In considering the risk of his reoffending, it observed at paragraph [68] of its reasons:

68.    The Applicant asserted that he poses zero risk of re-offending. He said, in his revocation request, he is a different person today to the person he was at the start of his last period of incarceration because he has changed his morals and values. He said his goal in life was to get his family back together. In a letter to the Tribunal, dated 11 September 2020, he said

“I have messed up in the past by breaking the law and have been silly, irresponsible and careless person, but that was in the past, we’re all human beings and we all make some mistakes my errors being pretty bad I admit and do regret.

As you will become aware from my old submissions I had a very serious and strong heart attack. The heart attack in some strange way I’m thankful for; it was the biggest ever wake- up call in my entire life. So I decided to turn this into a positive and I worked towards a healthier life style. Fortunately I’ve always had some strength and had a strong will. This too obviously has become a motivating factor in my life and it also ties in with my motivation I get from my children.

    (Footnotes omitted).

68    The Tribunal then analysed the applicant’s submissions in this respect and considered letters from Mr Ibrahim’s friends and relatives which were tendered in support of it. However, it did not give them much weight given that their contents were contrary to the known circumstances. It carefully considered Mr Ibrahim’s circumstances including his position since being released from prison and his stated intentions for the future. However, it concluded that it was not satisfied that he presented a lower risk of re-offending than he did in 2018. At paragraph [79], it found:

The Applicant has previously resolved to abstain from offending: he said when he was released from prison in 2013, he promised not to leave his family again. Since he was assessed as having a low to medium risk of re-offending in September 2018, he has not undergone treatment for any psychological conditions or for any of the factors that predisposed him to offend, being the gambling addiction and a sense of obligation to comply with the wishes of others in his community. Since that risk assessment, he has been in the highly structured environments of prison and Immigration Detention. I am not persuaded by the evidence before me that the Applicant presents a lower risk of re-offending now than he did in September 2018.

69    The Tribunal’s reasoning is logical and appropriately founded upon the evidence before it. It can be accepted that it is difficult for a person in Mr Ibrahim’s position who has been in prison or detention for some time to demonstrate that, if he were released into the community, he would not be a threat. However, the Tribunal is only able to determine the issue on the material before it and, in this case, it was not satisfied that there was a lower risk of his re-offending than had previously been regarded.

70    The applicant’s real complaint in this respect is that the Tribunal did not accept his assertions that he is a changed person who would present a low or no risk of offending in the future. However, this Court has no jurisdiction to examine the merits of that issue. It suffices to observe that the process by which the Tribunal undertook its examination and consideration of the issues conformed to the statutory requirements with the result that no error has been shown in this respect.

71    In the result, this ground was not made out.

Conclusion

72    The necessary conclusion from the foregoing is that none of the applicant’s grounds can be sustained. It follows that the Amended Originating Application should be dismissed. There is no reason why the applicant should not pay the Minister’s costs in relation to the Application.

Associate:

Dated:    6 August 2021