Federal Court of Australia

HDWH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1659

ORDERS

THE COURT ORDERS THAT:

1.    A writ of certiorari issue bringing the decision of the second respondent to affirm the decision of the first respondent not to revoke cancellation of a visa under s 501CA(4) of the Migration Act 1958 (Cth) into this Court and quashing it.

2.    A writ of mandamus issue directing the second respondent to re-determine the applicant’s application according to law.

3.    The first respondent pay the applicant’s costs of and incidental to the application, to be fixed by a Registrar if not agreed.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

LOGAN J:

1    The applicant is a citizen of New Zealand. He is presently 22 years old. The better part of two decades ago, in May 2003, as a three year old, the applicant entered Australia lawfully as a member of family group pursuant to a class TY, subclass 444, special category (temporary) visa. He has remained in Australia since then but has never become an Australia citizen.

2    About 12 years after the applicant’s arrival in Australia, at age 15, the applicant commenced what later events have shown to be a course of offending conduct. A particular pervasive theme in relation to that offending conduct has been over consumption of alcohol and related intoxication. It is not necessary to set out in detail that course of offending conduct. That detail is to be found in reasons given by the Administrative Appeals Tribunal (Tribunal) in proceedings the occasion for which I shall now highlight.

3    The climax of the course of offending conduct by the applicant came in the form of offences of robbery with actual violence, assault occasioning grievous bodily harm and stealing, in respect of which, on 20 February 2020, he was sentenced to successive terms of imprisonment with an effective head sentence of three years and six months. A sequel to that was that on 17 June 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) cancelled the applicant’s visa acting under s 501(3A) of the Migration Act 1958 (Cth) (the Act). The basis for that cancellation was satisfaction on the part of the delegate that the applicant did not pass the character test. Upon that satisfaction, it became mandatory that the applicant’s visa be cancelled.

4    The applicant was subsequently invited to, and did, apply for revocation of the cancellation decision. On 2 June 2021, it was decided that the cancellation of his visa should not be revoked. The applicant then sought the review of that refusal to revoke the decision by the Tribunal. On 26 August 2021, the Tribunal, for reasons given in writing that day, decided to affirm the refusal to revoke decision.

5    The applicant has now applied in this Court’s original jurisdiction for the judicial review of the Tribunal’s decision. The Tribunal, as is appropriate, has filed a submitting appearance. The Minister is the only active party respondent.

6    Of the grounds of review pleaded, only two are pressed. They are:

Ground One

The Second Respondent fell into jurisdictional error by erring in law by not applying the principle stated in 5.2(4) of Ministerial Direction 90.

Ground Two

The Second Respondent fell into jurisdictional error (including at paragraph 134) by erring in law by failing to correctly interpret and apply 9.4.1(2) and 5.2(4) of Ministerial Direction 90.

7    Before turning to these grounds, there is an overarching principle which, unsurprisingly, is applicable. That principle is to be found in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272, where the High Court emphatically endorsed observations earlier made by the Full Court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287, to the effect that the reasons of an administrator are not to be read narrowly with an eye for error.

8    The importance of that principle translating into restraint by the judiciary in relation to the scrutiny of an administrator’s reasons cannot be overstated. The Tribunal is, though it follows a judicial model, an emanation of the executive. The principle so stated applies to the reasons given by the Tribunal. It is only natural, given that the Tribunal provides reasons in writing, that attention comes to focus upon them in relation to any challenge to a Tribunal’s decision on jurisdictional error grounds. Exposure of the Tribunal’s reasons has an aim of promoting better understanding and decision making but to approach reasons so furnished in an over-exacting way would make the business of public administration well-nigh impossible.

Ground 1

9    Ground 1 takes as its starting point a particular paragraph in the ministerial direction, Direction 90 which, at the time the Tribunal made its decision, was the applicable direction issued by the Minister pursuant to s 499 of the Act. To the extent, that in that direction, the Minister specified that particular considerations had to be taken into account by those exercising the discretion conferred in respect of a revocation of a visa cancellation by s 501CA of the Act, those considerations were mandatory. In other words, they were, in the sense described by Sir Anthony Mason in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, relevant considerations.

10    The content of paragraph 5.2(4) of the ministerial direction is made overt by the following extract from the Tribunal’s reasons:

10.    For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.

11.    The principles in paragraph 5.2 of the Direction may be briefly stated as follows:

(1)    …

(4)    Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(5)    …

12.    Paragraph 6 of the Direction provides that:

Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

11    In NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1077 (NWQR), at [26], Bromwich J referred with approval to an observation made by Charlesworth J in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR), at [77]. Her Honour there stated:

77    In my view, the degrees of tolerance referred to in cl 6.3(5) and cl 6.3(7) are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion. They are factors that may be taken into account in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.

12    Like Bromwich J in NWQR, I respectfully agree with her Honour’s observation in FYBR. It is applicable to a like manifestation found in paragraph 5.2(4) of the present ministerial direction. Having referred with approval to that observation in FYBR, Bromwich J continued in NWQR, at [27]:

27    … The function of paragraphs 6.3(5) and 6.3(7) of Direction 79 is to give scope, in a principled manner, to soften the impact of an adverse finding that might otherwise be made by reference to the terms of the mandatory relevant considerations alone. However, these principles are not themselves mandatory relevant considerations. As Farrell J observed in Mataia v Minister for Immigration and Border Protection [2018] FCA 401:

[61]    The Minister correctly submits that the principle in cl 6.3(5) is a not a mandatory relevant consideration. Rather, having regard to cl 7.1, in determining whether to revoke a mandatory cancellation decision, the decision-maker must take into account the primary and other considerations set out in Part C “informed by” the principle set out in cl 6.3(5). Clause 6.3(5) is not apt to be “applied”, as it is a statement of likely societal attitudes about tolerance which “may” be afforded to serious conduct.

The same reasoning and conclusion applies to paragraph 6.3(7) of Direction 79.

13    With these further observations of Bromwich J, I also agree. These two have like application to paragraph 5.2 of the present ministerial direction.

14    Reading the Tribunal’s reasons as a whole, there is no error, in my view, of the kind to which ground 1 is directed.

15    One way of highlighting that is to quote [120] of the Tribunal’s reasons:

120.    The Applicant has no memory of his life in New Zealand and he identified as Australian. New Zealand is culturally and linguistically similar to Australia so I am not satisfied that the Applicant would face any substantial language or other cultural barriers if he were to relocate to New Zealand.

16    Another is to recall, as was conceded on behalf of the applicant, that the particular content of paragraph 5.2(4) did not feature in the submissions either orally or earlier in writing in the facts, issues and contentions statement made on behalf of the applicant. That is not in any way to be adversely critical of what was obviously a very well evidenced submission, on the merits made on behalf of the applicant to the Tribunal. It is only to recall that the particular emphasis and cast of the reasons of the Tribunal will unsurprisingly be influenced heavily by the way in which a case is presented to the Tribunal by both applicant and respondent.

17    That would not, of course, excuse a failure to take into account a relevant consideration raised on the evidence. However, as is apparent from the authorities cited and for that matter, apparent on the face of paragraph 5.2, it is not in itself productive of a relevant consideration as that term is used in a jurisdictional error sense.

18    For these reasons, there is no merit in ground 1.

Ground 2

19    Ground 2 engages with what is a relevant consideration as derived from the ministerial direction and found in paragraph 9.4.1 of that direction. It is there stated:

9.4.1.    The strength, nature and duration of ties to Australia

(1)    Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)    Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:

a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i.    less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii.    more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

9.4.2    Impact on Australian business interests

(3)    Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501 CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

20    Under the heading Strength, Nature and Duration of Ties to Australia, the Tribunal stated, at [134]:

The Applicant came to Australia at the age of three. He has lived in Australia for 19 of his 22 years. He commenced offending nearly 12 years after arriving in Australia, but whilst still a minor, and therefore he is entitled to limited weight under paragraph 9.4.1(2)(a) of the Direction.

21    In [134], the Tribunal misconstrued paragraph 9.4.1(2)(a)(i) of the ministerial direction. Within paragraph 9.4.1(2)(a)(i), two considerations are raised. One is whether the non-citizen arrived in Australia as a young child as part of considering how long a non-citizen has resided in Australia. The other is, directed to weight, is that specified in subparagraph 9.4.1(2)(a)(i), which is that less weight should be given where the non-citizen began offending “soon after” arriving in Australia. What the Tribunal, with respect, has done is to conflate these two and in so doing, misconstrue the Minister’s direction.

22    The Tribunal has appreciated that the applicant commenced offending nearly 12 years after arriving in Australia. Nonetheless, because the applicant was still a minor when this occurred, the Tribunal has construed the Minister’s direction as entitling the Tribunal to afford the applicant limited weight. That is just not so.

23    It was put on behalf of the Minister that the Tribunal was entitled to take into account that offending conduct had occurred whilst a minor. There can be no gainsaying the correctness of that, but that submission does not in any way ameliorate the error of construction found in [134] of the Tribunal’s reasons.

24    Of course, as was also submitted on behalf of the Minister, what constitutes “soon after” does entail an element of factual evaluation. There is an element of imprecision inherent in the expression “soon after”. But on no view of its meaning could a passage of 12 years constitute “soon after” arrival in relation to commencement of offending conduct. It would be unwise in relation to what, after all, are plain English words, to attempt to give any precision to “soon after”. It just means what it says. It does admit of an evaluation but it does not admit of the evaluation reached by the Tribunal.

25    Moreover, it is not merely a matter of evaluation which has informed the Tribunal’s affording less weight. It is a misconstruction of the Minister’s direction which has informed that. The Tribunal has acted on the basis that it is permissible to give less weight just because the offending conduct commenced when the applicant was a minor.

26    It was, with respect, appropriately conceded on behalf of the Minister that, if there were a misconstruction which had resulted in an affording of less weight, then that error was material. The concession was appropriately made because, as is so very evident from the Tribunal’s reasons read as a whole, this was a most difficult case in terms of merits review. There was a course of offending conduct of an increasingly serious nature, but there was also a lengthy period of residence in Australia and deep ties both with a grandfather and a mother, each of whom were and are Australian citizens. The grandfather suffers from serious illness; the mother, understandably, feels an obligation to care for her father yet, at the same time, feels deep ties of natural love and affection towards a son who is the applicant.

27    Against this background, the particular error made by the Tribunal may have had an impact upon the overall merits evaluation by the Tribunal in accordance with the Minister’s direction.

28    It necessarily follows from the foregoing that the Tribunal’s decision must be quashed and the matter remitted to the Tribunal for rehearing according to law. Costs must follow the event.

Associate:        

Dated:    9 February 2022