Federal Court of Australia

HWLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 882

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the first respondent’s costs to be agreed or assessed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant, a citizen of Sierra Leone, met an Australian woman when they were working in Sudan. They married and in 2011, moved to Australia. They have a daughter who is currently aged 11 years who is an Australian citizen.

2    The applicant arrived in Australia as the holder of a partner visa and was later granted a resident return visa on 13 December 2017. On 2 August 2018, a notice was issued to the applicant that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act). The visa was cancelled on the basis that the applicant: failed the character test on the ground identified in s 501(6)(e) of the Migration Act, namely conviction of one or more “sexually based offences involving a child”; and was serving a sentence of imprisonment on a full-time basis, namely a term of seven months and four days as a result of a breach of an Intensive Correction Order.

3    The applicant made representations to the Minister pursuant to s 501CA(4) that the cancellation decision should be revoked. On 26 July 2019, a delegate of the Minister decided not to revoke the mandatory cancellation, and on 21 October 2019, the Administrative Appeals Tribunal (Tribunal) made the first of two decisions affirming the delegate’s decision. The applicant successfully sought judicial review of the first Tribunal decision: HWLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1039. The matter was remitted to the Tribunal to re-determine according to law.

4    On 13 April 2021 the reconstituted Tribunal again affirmed the delegate’s decision not to revoke the cancellation of his visa.

5    This is an application for judicial review of that decision of the Tribunal, brought pursuant to s 476A of the Migration Act.

6    For the reasons below, the application is dismissed.

Tribunal decision

7    The Tribunal affirmed the delegate’s decision not to exercise the discretion in s 501CA(4) of the Migration Act to reinstate the applicant’s visa, which had been cancelled by operation of s 501(3A).

8    Section 501CA(4) of the Migration Act provides:

501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(4)     The Minister may revoke the original decision if:

(a)     the person makes representations in accordance with the invitation; and

(b)     the Minister is satisfied:

(i)     that the person passes the character test (as defined by section 501); or

(ii)     that there is another reason why the original decision should be revoked.

9    The Tribunal found that the applicant could not rely on s 501CA(4)(b)(i) because, pursuant to the definition in s 501(7)(c), he had a “substantial criminal record” having been sentenced to a term of imprisonment of 12 months or more: at [17]. Therefore, the issue for determination by the Tribunal was whether it could be satisfied that there was another reason why the cancellation decision should be revoked: at [18].

Primary Considerations

10    The Tribunal noted at [20] that in considering whether to revoke the delegate’s decision, it must have regard to Ministerial Direction No. 79 (Direction 79). Part C of that Direction sets out three primary considerations: protection of the Australian community, the best interests of minor children in Australia and expectations of the Australian community.

11    First, the Tribunal considered the protection of the Australian community: at [23] to [52]. In relation to this consideration, the Tribunal at [23] noted that two factors were relevant: the nature and seriousness of the non-citizen’s conduct to date; and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

12    With respect to the first factor, the Tribunal determined that the applicant’s offending included crimes of a violent and sexual nature against children and must be viewed very seriously: at [24]. The Tribunal also noted the applicant’s conviction for multiple driving offences and a further offence involving trespass: at [26]. It concluded that the frequent and cumulative effect over a seven-year period, including multiple indecent assaults, reinforced the seriousness of the applicant’s offending: at [26].

13    With respect to the second factor, the Tribunal had regard, cumulatively, to the nature of the harm should the applicant reoffend and the likelihood of the applicant engaging in criminal or other serious conduct: at [27] and [49]. In assessing the former, the Tribunal found that “the consequence of further offending would involve physical and mental harm to victims, including children, with long lasting effects”: at [28].

14    In assessing the likelihood of further criminal or other serious conduct, the Tribunal noted that since proper diagnosis in April 2018 the applicant had not reoffended. It also noted that he had been complying with his medication and treatments and abstaining from alcohol and drugs. However, the Tribunal also took the applicant’s risk of relapse into account, noting that these behaviours remained untested in the community because he had been in prison or detention since May 2018: at [30].

15    The Tribunal considered the reports and evidence of a clinical psychologist and consultant forensic psychiatrist: at [31] to [34]. It accepted their opinion that the applicant had a low risk of reoffending while remaining drug and alcohol free and continuing his medication and treatment: at [34]. However, less weight was placed on this opinion on account of the applicant’s lack of genuine remorse: at [48]. The Tribunal was also concerned by the applicant’s ongoing denials of much of the conduct for which he had been convicted and was not satisfied that he had undergone sufficient rehabilitation: at [34]-[44].

16    The Tribunal concluded that there was a real and unacceptable risk of the applicant reoffending: at [48] and [51]. It also reached the view that the nature of the offending and the harm that would be caused if it were to be repeated was “so serious that any risk of similar conduct in the future is unacceptable”: at [50]. The protection of the Australian community was therefore a factor that weighed “most heavily” in favour of not revoking the cancellation decision: at [52].

17    Second, the Tribunal considered the best interests of minor children: at [53]-[58]. It noted that unless the cancellation decision was revoked, the applicant’s daughter would be negatively impacted by separation from her father: at [55]-[56] and [58]. The Tribunal also accepted that the applicant’s wife could not replace him as a father and provide “the stories of her African culture”: at [57]. This consideration therefore weighed heavily in favour of revocation: at [58].

18    Third, the Tribunal considered the expectations of the Australian community: at [59]-[63]. This consideration weighed strongly in favour of revocation because of the nature of the applicant’s character, the serious nature of his offending and the risk of reoffending: at [62]-[63].

Other considerations

19    The Tribunal also turned its attention to the other considerations listed in Direction 79: at [64]-[93].

20    With respect to the risk of harm, the Tribunal noted that the applicant would not receive the necessary treatment for his mental health disorders if returned to Sierra Leone. It also accepted that he held a genuine fear that he would be at risk of harm because of his criminal convictions for sexual offences against minors and his bisexuality: at [67]-[69].

21    The Tribunal determined that there is a real risk that the applicant would face harm if returned to Sierra Leone, with the consequence that Australia would be in breach of its non-refoulement obligations: at [70] to [80]. The consequence of a decision not to revoke cancellation of the applicant’s visa was found to be his removal to Sierra Leone as soon as reasonably practicable, subject to any successful protection visa: at [74]-[76]. In light of these findings, the risk of harm to the applicant and Australia’s non-refoulement obligations weighed heavily in favour of revoking the cancellation: at [77]-[78].

22    The Tribunal also considered the applicant’s contribution to and ties within the Australian community, as well as the negative impact on his wife should he be removed from Australia: at [82]-[84]. Although this was a factor in favour of revocation, it was afforded less weight because the applicant began offending soon after his arrival to Australia: at [85].

23    The Tribunal next turned its attention to the impact on Australian business interests and victims. Neither of these factors weighed for or against revocation: at [86]-[87].

24    With respect to the extent of impediments that the applicant may face in establishing himself and maintaining basic living standards if removed to Sierra Leone, the Tribunal considered the applicant’s mental health disorders and risk of harm as most significant: at [91]-[92]. This factor weighed strongly in favour of revocation of the cancellation decision: at [93].

Conclusion

25    In weighing considerations in favour of and against revoking the cancellation decision at [94] to [98], the Tribunal noted that primary considerations should generally be given greater weight than other considerations: at [97]. It concluded that there was not another reason why the cancellation decision should be revoked: at [97]-[98].

Consideration

Ground 1: failure to weigh countervailing considerations

26    In summary, the applicant submitted that the Tribunal’s process of weighing the competing considerations miscarried. It was submitted that this occurred because the Tribunal misapprehended Direction 79 paragraph 6.3(d), which was said to be evident in [98(d)] of its reasons. That paragraph (with the emphasis as recited in the applicant’s submission) is as follows:

In this circumstance, the cumulative effect of the criminal offending involving the sexual abuse of children, and the harm that would be caused if it were repeated, is so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations are insufficient to justify not cancelling the visa [a footnote here refers to Direction 79 at 6.3(4)].

27    It was submitted that paragraph was an erroneous recitation of Direction 79 paragraph 6.3(4). That it was a recitation was said to be evidenced by the presence of the footnote citing paragraph 6.3(4) appearing at its conclusion, which was said to indicate that it was a direct quote. The Direction (with the emphasis as recited in the applicant’s submission) is as follows:

In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

28    The applicant submitted the recitation in [98(d)] erroneously used the phrase “are insufficient” as opposed to “may be insufficient”, and therefore the Tribunal misconstrued the Direction. It was submitted that as a result of that misconstruction, the Tribunal failed to weigh the countervailing considerations, as required by the Direction. It was submitted the failure to refer to the countervailing considerations in that paragraph confirms that interpretation of [98(d)].

29    The first respondent submitted that this ground is based on a misunderstanding of the relevant parts of the Tribunal’s reasons.

30    The first respondent’s submission is to be accepted.

31    It is first appropriate to recall that a Tribunal’s reasons should be read fairly, and as a whole. The Tribunal’s reasons should not be construed minutely and finely with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38].

32    The Tribunal’s reasons, considered as a whole, include reference to the guiding principles from Direction 79: at [21] and [22]. In [21], the Tribunal summarised paragraph 6.3. In [22] the primary and other considerations were referred to, as articulated in the Direction.

33    Although, as the applicant submitted, paragraph 6.3 was not recited verbatim and paragraph 6.3(4) was not referred to, it may be accepted that it was in this part of the Tribunal’s reasons that it outlined the terms or form of the Direction.

34    Thereafter, the Tribunal addressed the considerations and made findings including the weight to be attributed to each of the considerations. In particular, at [50] the Tribunal addressed the risk to the Australian community. The Tribunal (which has footnoted a reference to Direction 79 at 6.3(4)) concluded that:

In this case, I have reached the view that the nature of the offending and the harm that would be caused if it were to be repeated is so serious that any risk of similar conduct in the future is unacceptable.

35    The interests of minor children are considered at [53]-[58].

36    After the Tribunal had considered each of the considerations, it then (under the heading, “[c]onclusion as to whether there is another reason to revoke the original decision”) described at [94] that it was “required to weigh up those considerations to determine whether there is another reason to revoke the cancellation decision”. Paragraph [98] appears in this section of the reasons. It commences with: “[t]his conclusion is reached by applying the principles in paragraph 6.3 of Direction 79 to the specific circumstances of the applicant who has committed serious crimes of a sexual nature against vulnerable members of the community”. The various subparagraphs address paragraph 6.3.

37    Against that background it is appropriate to return to [98(d)]. The applicant accepted during his submissions that this ground is dependent on the Court accepting that [98(d)] was an erroneous recitation of paragraph 6.3(d), such as to lead to a conclusion that the Tribunal misunderstood the Direction. Unless that is established, the ground could not succeed.

38    I am not persuaded of that interpretation of [98(d)] of the Tribunal’s reasons.

39    First, as noted above, the Tribunal at [50] had already made a finding as to the risk to the Australian community. That paragraph plainly reflects a factual finding particular to this case. In his submissions, the applicant did not contend otherwise in respect to [50]. Importantly, the applicant submitted that the first sentence in [98(d)] was a reflection of the finding in [50]. If that is so, as it plainly is, [98(d)] cannot have been a recitation of paragraph 6.3(d), but was rather a conclusion based on the facts of this case.

40    Second, the applicant’s reliance on the use of the phrase “are insufficient” in [98(d)] as the point of distinction between this paragraph and paragraph 6.3(d), said to give rise to the inference that it is a recitation, is misplaced. There is also a difference at the beginning of [98(d)], which commences with “[i]n this circumstance”, which can be contrasted with paragraph 6.3(d) which commences “[i]n some circumstances”. Again, this reflects that the paragraph was directed to a consideration of the circumstances in this case and was not a recitation of paragraph 6.3(d).

41    Third, the applicant’s reliance on the footnote to paragraph 6.3(d) at the end of [98(d)] as indicative of this paragraph being a quote cannot be accepted. At the conclusion of [50], the same footnote appears. It cannot be contended that footnote to [50] is indicative of the paragraph being a quote from the Direction. It plainly is not. Bearing in mind also that the applicant accepts that [50] is a factual finding. To take another example, there are footnote references to the relevant parts of the Direction to [98(e)] and [98(f)], yet it was not, and could not be, contended those were indicative of the content of those paragraphs being a recitation of the Direction. The applicant proffered no submission as to why the footnote in [98(d)] should be interpreted as having a different meaning to those footnotes elsewhere, even where they appeared within the same paragraph. A proper reading of those paragraphs, and the use of footnotes in the manner employed by the Tribunal, reflects that they were used to indicate that the Tribunal had considered the matters referred to in the footnotes.

42    Fourth, in so far as the applicant in oral submissions contended that the last phrase of [98(f)] indicates that the Tribunal misconstrued paragraph 6.3(d), to conclude that it had no choice but to reach the conclusion it did, I do not accept the submission. Read properly and in context, no such inference can be drawn.

43    I do not accept the applicant’s submission that [98(d)] was intended as a recitation of paragraph 6.3(d). Properly read in context, the paragraph does not reflect a misunderstanding of paragraph 6.3(4) of the Direction, but reflects a conclusion reached by the Tribunal assessing the facts in this case.

44    Therefore, it has not been established that the Tribunal considered that it was mandated to its conclusion by an erroneous understanding of paragraph 6.3(4) of the Direction, or that the Tribunal failed to take into account countervailing factors.

45    The applicant has not established this ground.

Ground 2: best interests of the child

46    The applicant submitted that although the Tribunal’s reasons at various points referred to the best interests of the applicant’s child as a primary consideration, the best interests of the child was not in fact weighed as a primary consideration as against the other primary considerations prescribed by Direction 79.

47    The applicant’s submission refers to [97] of the Tribunal’s reasons, which is as follows:

By cancelling the applicant’s visa, the government is exercising its commitment to protect the Australian community from harm. The primary considerations should generally be given greater weight than other considerations and I see no reason not to apply that approach in this case.

A footnote to Direction 79 at 8(4) appears to the word considerations in that paragraph. It was submitted that [97] should be read as referring to primary considerations other than the best interests of the child. It was also submitted that the Tribunal’s reasons: overlooked the Ministerial direction that one primary consideration may outweigh other primary considerations; and did not involve weighing of primary considerations, as contemplated by paragraph 8(5) of the Direction. It was submitted that rather, the best interests of the child was “lumped in with the serious consequences of this decision on the applicant’s wife” in [98(f)]. The applicant submitted that unlike the consequences for his child, the consequences for his wife are not a “primary consideration”.

48    It was also submitted that it may be inferred from the second sentence of [98(f)] that the Tribunal did not consider that it was required to take the best interests of the minor child into account in the same way that it took other primary considerations into account. That sentence of the Tribunal’s reasons reads:

This is very unfortunate for them, but it arises because of the conduct of the applicant who represents an unacceptable risk to the Australian community whose protection and expectations I must take into account.

49    I do not accept the applicant’s submission.

50    Again, these paragraphs must be considered in the context of the whole of the reasons. As noted above, the Tribunal at [22] recited the considerations from Direction 79, listing the best interests of minor children in Australia as a primary consideration. That passage plainly reflects that the Tribunal was aware of the primacy of this consideration. This is also in the context of a detailed assessment of the interests of the child at [53]-[58]. At [95], in the conclusion section of its reasons, the Tribunal expressly referred to this fact stating:

The primary consideration of the interests of minor children weighs heavily in the applicant’s favour because his daughter is only 10 years old and will be impacted very negatively if he is not released to the community.

51    In that context, there is no basis for the applicant’s submission that the Tribunal’s statement at [97] that it would give primary considerations greater weight than other considerations, did not include the interests of the child. Read fairly, there is no basis to suggest that the Tribunal did other than it said it was.

52    In that context, I do not accept the applicant’s submission that [98(f)] reflects that the interests of the child were “lumped in” with the interests of the applicant’s wife, without the Tribunal appreciating it was a primary consideration. As to the suggestion that the interests of the child were lumped in with those of his wife in the one paragraph, I note that the terms of paragraph 6.3(f), refer, inter alia, to “the consequences … for the minor children and other immediate family members”. The Direction itself addresses both aspects together. Referring to both in [98(f)], when read in context, does not suggest that the Tribunal did not weigh the interests of the child in its assessment without appreciating that Direction 79 states that it is a primary consideration. To the contrary, [98] by its nature as part of the Tribunal’s conclusion, was referring back to previous findings. There is no basis to suggest that those previous findings needed to be repeated. Noting again, that the Tribunal had summarised its conclusion in general terms in [96].

53    It is appropriate to recall that the effect of Direction 79, is not to prescribe or mandate any particular outcome of an exercise of power. Rather it prescribes matters that a decision maker must consider, and the approach a decision maker must take to some matters, as a matter of executive policy: Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 985 at [27]. As I observed in Gage v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1298; [2020] 171 ALD 591 at [27], the Direction “is about giving appropriate weight to the Direction 79 considerations in the circumstances of the particular case, the decision maker having formed a view of the various considerations in accordance with Direction 79”. As the first respondent submitted, a requirement to consider the best interests of minor children as a primary consideration does not require a decision-maker in all cases to “accord primacy to the interests of any relevant child”: see Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [56] citing Basile v Minister for Immigration and Citizenship [2011] FCA 237; (2011) 193 FCR 329 at [46].

54    Properly read, I am not persuaded that the Tribunal did not weigh the relevant considerations, or that it failed to take into account that the interests of the child is a primary consideration under Direction 79. In so far as it is implied that the Tribunal did not accord this consideration the weight that, it is contended, it ought to, I note that weight is a question for the Tribunal and does not establish jurisdictional error.

55    The applicant has not established this ground.

Conclusion

56    As the applicant has not established either of the grounds, the application is to be dismissed, with costs.

Associate:

Dated:    29 July 2022