Federal Court of Australia

TPTN v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 788

ORDERS

THE COURT ORDERS THAT:

1.    The Administrative Appeals Tribunal be joined to the proceeding as second respondent and:

(a)    that joinder take effect nunc pro tunc on and from the date of filing of the originating application; and

(b)    the name of the respondent be amended to “first respondent”.

2.    The name of the first respondent be amended to “The Minister for Immigration, Citizenship and Multicultural Affairs”.

3.    The application be dismissed.

4.    The applicant pay the first respondent’s costs of and incidental to the proceeding 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    In the process that led to the establishment on 1 January 1901 of the Commonwealth of Australia, there was a time when it was possible that the then colony of New Zealand might become a State within the Commonwealth of Australia. Reference to that possibility and how that did not come to pass is to be found in Quick and Garran’s Annotated Constitute of the Commonwealth of Australia, at p 228; and see also pp 233 to 234. Even so, the closeness of ties between Australia and the now long independent New Zealand is evident on the Australian statute book in statutes such as the Extradition Act 1988 (Cth), which, by Pt III, makes special and liberal provision in respect of extradition from Australia to New Zealand, adopting a regime once used for extraditions between Australian states; in the Trans-Tasman Mutual Recognition Act 1997 (Cth), which affords, in respect of both goods and occupations, preferential treatment for goods approved in New Zealand or occupations carried on in New Zealand in respect of Australia; and in the Trans-Tasman Proceedings Act 2010 (Cth) which, again, affords special status in Australia in respect of New Zealand proceedings.

2    The closeness of ties is not just evident in the statute law, but exemplified both in Australia and in New Zealand in a shared and solemnly remembered mutual military heritage, forged initially at Gallipoli on 25 April 1915 and marked annually in Australia and New Zealand on the anniversary of that day, which has come to be known in each country as Anzac Day.

3    Another manifestation of the closeness of ties between Australia and New Zealand is found in the provision under the Migration Act 1958 (Cth) (the Act), for what is known as a special category class TY, subclass 444 visa. Such a visa permits a New Zealand citizen, upon proof of that citizenship at the point of entry to Australia, to enter and stay in Australia, in effect, for the term of that person’s natural life, so long as they remain a New Zealand citizen.

4    All of these thoughts were provoked by the circumstances of the present applicant. Although the applicant was born in the Cook Islands, his father was a New Zealand citizen. The applicant, by virtue of that parentage, is also a New Zealand citizen. The applicant came here as a young boy, aged eight, with his family. He is now in his early 30s. He has spent all of his childhood after entering Australia, and all of his adult life, in Australia. He has visited New Zealand, briefly, many years ago, on a holiday for some three weeks. But has not otherwise been to New Zealand.

5    It is a matter of ready notice that New Zealand has responsibility in respect of the conduct of foreign affairs and defence of the Cook Islands, but that the Cook Islands is, subject to these considerations, self-governing, self-governing to the point where its final court of appeal remains the Judicial Committee of the Privy Council, rather than the Supreme Court of New Zealand. It did not follow New Zealand in ceasing appeals to the Judicial Committee.

6    The applicant is thus someone whose ties to New Zealand are those of formal citizenship, but, otherwise, for all practical purposes, absent.

7    All of this is evident in reasons given by the Administrative Appeals Tribunal (Tribunal) (Senior Member B.J. Ellingworth) on 14 February 2022, for affirming a decision made by a delegate of the Minister responsible for the administration of the Act to refuse to evoke, pursuant to s 501CA(4), a cancellation of the applicant’s special category, class TY, subclass 444 visa.

8    The occasion for the cancellation of the applicant’s visa was found in satisfaction on the part of another delegate of the Minister, that the applicant did not pass the character test for which s 501 of the Act provides. Such satisfaction was unremarkable, given that on 31 March 2021, the applicant had been sentenced to a term of imprisonment for 18 months in respect of what one might describe as domestic violence offending against his former partner. That sentence had the consequence of reasonably grounding satisfaction, administratively, that the applicant failed the character test set out in s 501(7)(c) of the Act.

9    The effect of s 501 of the Act is that, upon such administrative satisfaction, it becomes obligatory to cancel the visa of the person concerned.

10    The offending conduct in respect of which the applicant was sentenced on 31 March 2021 was but the latest in a lengthy history of offending conduct, a detailed description of which is to be found in the Tribunal’s reasons, and which dates back to mid-teenage years.

11    All that said, all of that offending conduct has occurred in Australia. To read the Tribunal’s reasons is to understand the length, depth, and closeness of the applicant’s family ties with Australia. For all practical purposes but one significant one, the applicant is a member of the Australian community. A significant difference is that he has remained a citizen of New Zealand.

12    The applicant has sought the judicial review of the Tribunal’s decision, to the end of that decision being quashed, and the matter sent back to the Tribunal for reconsideration according to law.

13    The applicant conducted his own case before the Court in respect of that application. He did so with respect, eloquence, courtesy, and no little natural dignity, and that notwithstanding the understandably emotional circumstances attending a proceeding a consequence of which may be a failure in his endeavour to overturn a dismissal of his challenge in respect of his endeavour to overturn on the merits the refusal to the revoke the cancellation of his visa. A consequence of such or refusal is the obligation which arises under the Act on the Minister and his officers to remove from Australia those who, by virtue of not holding a visa, are unlawful non-citizens.

14    The grounds of review set out in the applicant’s originating application are these:

1.    The decision… is Legally Unreasonable.

2.    Natural Justice has been denied in the decision…

3.    [The Tribunal], failed to consider the nature of ties applicant has in Australia.

[sic]

15    As the applicant confirmed in the course of his oral submissions, the third of these grounds is an elaboration of why it is put by him that the Tribunal’s decision is legally unreasonable. Also in oral submissions, the applicant indicated that the allegation of a denial of natural justice was grounded in his perception upon reading the Tribunal’s reasons that the Tribunal had, in effect, gone through the motions without really affording him a meaningful opportunity to be heard. I shall consider each of these grounds in turn.

16    In the aftermath of the High Court’s judgment in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li), I once thought that there were passages in the joint judgment in that case which supported a more liberal view of the jurisdictional error ground unreasonableness and, in particular, supported a conclusion of unreasonableness based on an absence of proportionality. In particular, I reached that conclusion against facts where persons who had come to Australia as young children and remained here for many decades were placed in the position of removal to a country with which they had no familiarity and no association other than a continuance of citizenship. That view, however, did not survive scrutiny at intermediate appellate level: see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 and Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158. Later authority in the High Court after Li suggests strongly that a conclusion of unreasonableness in respect of outcome is not likely to be favoured where rational reasons are given. For example, in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, at [10], Kiefel CJ stated:

10    In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational…

[footnote references omitted]

17    The reasons given by the Tribunal for affirming the refusal to revoke cancellation of the applicant’s visa might, with respect, be regarded as having about them a formulaic quality. Further, the culmination of the reasons as to why it is that the Tribunal has decided not to revoke cancellation is found in a very compressed paragraph indeed. At paragraph [158], the Tribunal states:

The combined weight of Primary Considerations 1, 2 and 4 is such that they outweigh all other Primary Considerations.

18    The reference in this paragraph to “primary considerations” is a reference to classifications adopted by the Minister in a direction given under s 499 of the Act. Section 499 made it obligatory for the Tribunal to have regard to the direction when making its decision. A consequence of that was, almost inevitably, to lend a formulaic quality to the Tribunal’s reasons in the sense that the Tribunal was constrained to have regard to particular considerations, primary and otherwise, specified in the direction and raised on the facts as found on the material before the Tribunal.

19    It is possible to find cases in this Court where criticism is voiced of Tribunal reasons on the basis that they are formulaic or not indicative of proper, genuine and realistic consideration of a particular applicant’s case: see for example Minister for Home Affairs v Omar (2019) 272 FCR 589 (Omar); Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 (Hands), especially at [3]; and DQM18 v Minister for Home Affairs (2020) 278 FCR 529 (DQM18).

20    Some caution, in my respectful view, must now be exercised with DQM18, Omar, and Hands, having regard to observations made in the High Court in the joint judgment of Kiefel CJ and Keane, Gordon and Steward JJ in the recently decided Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1/2021), where at [26] and [27], their Honours stated:

26    Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant invoking language of indefinite and subjective application in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised”. That is not the correct approach, as Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend, “[t]he limited role of a court reviewing the exercise of administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.

27    None of the proceeding analysis detracts from or is inconsistent with established principle that, for example, if review of a decision-maker’s reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantially and clearly articulated argument, misunderstood the applicable law, or misunderstood the case being made by the former visa-holder, that may give rise to jurisdictional error.

[citations omitted]

21    Scrutinising the Tribunal’s reasons in this case discloses no misunderstanding by the Tribunal either of the nature and extent of the applicant's prior offending conduct or, just as pertinently a deepness, closeness, length and intimacy of his ties, especially familial ties, to Australia. The Tribunal observed, at [156]:

The Tribunal is particularly conscious of the serious concerns expressed by Government about non-citizens who engage in family violence, as reflected in the Direction, in addition to his failure to pass the character test.

22    The Tribunal also observed, at [151]:

That Tribunal accepts that the Applicant has significant links to the Australian community and that the whole of his immediate and extended family resides in Australia. His links with his mother are particularly significant at the time when she is dealing with a debilitating illness. His father will also be assisted by the Applicant’s help in the care of his mother. His parents will be particularly upset and distressed should the Applicant’s visa cancellation not be revoked. The Applicant has also demonstrated in the past a significant contribution to the youth of Australia in his volunteer work within the Ted Noffs Foundation, which weighs in his favour.

23    The Tribunal’s reasons are not irrational. Indeed, to put matters that way is to do a disservice to a very thorough consideration indeed of the overall circumstances of this case.

24    In my view, the passage which I have quoted from Plaintiff M1/2021 is a reminder to judges of this Court of the limits of judicial power in respect of this type of case. The making of evaluative judgments on the merits is not for this Court, but for the Tribunal. It is nothing to the point that an individual judge or others might find the outcome harsh. A layperson such as the applicant might, without any strain of the English language, describe such an outcome as has occurred in this case as unreasonable. But the jurisdictional error ground of unreasonableness is not to be found in such sentiments or descriptions. The outcome in this case has been rationally explained and is within the bounds of an evaluative choice open to the Tribunal on the material before it. I therefore conclude that the ground of unreasonableness has not been made out.

25    Before departing from that ground, some reference ought also to be made to a submission put on behalf of the Minister that the decision in question in the present case entailed a binary choice and “the Minister did not have scope to make a decision which both did not cause hardship to the applicant and yet at the same time protected the Australian community”.

26    That submission, with respect, I find difficult to reconcile with the following statement made by the High Court. In another recent case, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13, where at [15], the Court stated:

… The breadth of the power conferred by section 501CA of the Act renders it impossible, nor is it desirable, to formulate absolute rules about how the Minister might or might not be satisfied about a reason for revocation.

27    It might well be accepted that it is evident from a requirement upon consideration of a representation pursuant to s 501CA(4) that there must be satisfaction that a person did not pass the character test. It may also be accepted that a corollary of this, having regard to s 501 and the provision for obligatory cancelation where such satisfaction exists, is that there is evident a purpose of visa cancellation where there exists a failure to pass the character test with a sequel necessarily being removal from Australia, subject to satisfaction that there is another reason to revoke. But what might amount to another reason for the purposes of s 501CA(4) is, as the passage quoted from Plaintiff M1/2021 indicates, not something to approach with any preconceived notions of protection or otherwise.

28    I turn, then, to consideration of the natural justice ground. Once again, the applicant is hardly to be criticised, in my view, for having a perception that the Tribunal had given formulaic reasons and, in effect, “ticked boxes”. As I have already indicated, the Tribunal’s reasons took that form because of a requirement to address particular considerations specified in the Minister’s direction.

29    In theory, although it would be a difficult case to make, the reasons of an administrator, in themselves, might evidence either actual or an apprehension of bias such that one might find that there had been a denial of natural justice. However, in this case, the reasons do fully address the case as put on behalf of the applicant as to why there was another reason to revoke cancelation of his visa. The reasons also, in so doing, evidence that an opportunity to be heard another dimension of requirement to observe natural justice was observed in this particular case. I do not consider, having regard to the Tribunal’s reasons, that either aspect of what might amount to a denial of natural justice is proved in this case. Once again, this is but one of those cases in which for all too understandable reasons the applicant emphatically disagrees with the outcome, but that is no reason to characterise the Tribunal’s reasons as evidencing a denial of natural justice.

30    It is notorious, in terms of contemporary relations between Australia and New Zealand, that New Zealand has voiced some disquiet in respect of the removal to New Zealand of persons in just the situation in which the applicant finds himself. That that is so is a reminder that any change in respect of the position in respect of the removal of New Zealand citizens to New Zealand against the background of a case such as the present is a matter for resolution on the merits in the diplomatic field, not in a court such as this in a case such as this.

31    For these reasons, then, the application must be dismissed.

Associate:    

Dated:    7 July 2022