Federal Court of Australia

Sexton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1463

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an extension of time is granted.

2.    The application be dismissed.

3.    The applicant 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

BROMBERG J:

Background

1    The applicant is a citizen of the United Kingdom. He migrated to Australia with his parents as an infant in 1971 but has never become an Australian citizen. Commencing in 1988, the applicant was convicted of a series of offences including: intentionally or recklessly causing injury, obtaining benefits not payable, aggravated burglary, aggravated assault, aggravated threatening life and false imprisonment and cultivation and possession of cannabis. The applicant has substantial ties to Australia, including his two siblings, three children, four grandchildren and nieces and nephews, each of whom reside in Australia.

2    On 26 July 2018, the applicant was convicted of false imprisonment, aggravated threatening life and two counts of aggravated assault for which he was sentenced to five years’ imprisonment with a three-year non-parole period. On 9 January 2020, a delegate of the Minister cancelled the applicant’s Class BF transitional (permanent) (visa) pursuant to s 501(3A) of the Migration Act 1958 (Cth) on the basis that the applicant failed the “character test” because he had a “substantial criminal record” as a result of being sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a), 501(7)(c), 501(3A)(b). The applicant requested that the cancellation of his visa be revoked under s 501CA(4) of the Act. Under that provision the first respondent (Minister) is empowered to revoke the cancellation of a visa where satisfied that the former visa-holder satisfies the “character test” or there is another reason why the cancellation decision should be revoked.

3    The applicant now seeks judicial review of a decision of the second respondent (Tribunal) made on 22 February 2021 (Tribunal’s decision). The Tribunal’s decision affirmed the decision of a delegate of the Minister made on 23 November 2020 under s 501CA(4) of the Act not to revoke the cancellation of the applicant’s visa.

4    The application for judicial review was made outside the statutory timeframes prescribed by s 477A(1) of the Act. The applicant seeks an extension of time pursuant to s 477A(2) of the Act and r 31.23 of the Federal Court Rules 2011 (Cth). That application was heard instanter with the application for judicial review. The Minister does not oppose the application for an extension of time. I consider it appropriate to grant the extension of time sought by the applicant and will make an order to this effect.

Legal framework

5    The legal framework was not disputed by the parties. 

6    The Tribunal’s decision was required to be made in accordance with a direction made by the Minister under s 499 of the Act titled the ‘Migration Act, Direction No. 79 visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA’ which commenced on 28 February 2019 (Direction). Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. The Direction applied to both the delegate and the Tribunal in this case, and under s 499(2A) each was required to comply with it in the exercise of the power under s 501CA(4) to the extent that it is lawful to do so.

7    The Direction provides that in exercising the discretion to revoke a mandatory visa cancellation under s 501CA, decision makers must take into account “primary” and “other” considerations relevant to the individual case: see clauses 8(1), 13(2) and 14(1). The “other” considerations are non-exhaustive and included “strength, nature and duration of ties” at cl 14.2. Under cl 14.2(1)(a) one of the matters to which decision makers must have regard is how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child. It is convenient to set that subclause out in its entirety:

14.2    Strength, nature and duration of ties

(1)    The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, 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.

8    It is not disputed that a failure to comply with the Direction may result in jurisdictional error: see YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (Mortimer J at [35]); and Williams v Minister of Immigration and Border Protection (2014) 226 FCR 112 (Mortimer J at [22] - [44]).

Issue before the Court

9    The sole ground of review is that the Tribunal fell into error by misconstruing and/or misapplying cl 14.2 of the Direction. The applicant submitted that the Tribunal incorrectly weighed the factors to be taken into account by the Tribunal under cl 14.2(1)(a) by giving “diluted” and “reduced” favourable weight to the consideration of how long the applicant has resided in Australia and the fact he arrived in Australia as an infant, relying principally on the Tribunal’s findings at [86] and [88]. The applicant contended that the Tribunal’s alleged error was material.

Consideration

10    There are two limbs to the single ground of review advanced by the applicant. The first is in relation to the Tribunal’s finding at [87] of the Tribunal’s reasons referring to the weight to be given to the factor under cl 14.2(1)(a)(ii) of the Direction and the second relates to proper construction of cl 14.2(1)(a)(i).

The first limb

11    The first limb can be dealt with briefly and should be dismissed. Under this limb, the applicant refers to [87] of the Tribunal’s reasons for decision and relies on [88] to demonstrate error. In essence, the applicant contended that the Tribunal gave negative or “reduced” weight to the matter referred to in cl 14.2(1)(a)(ii), being the time the applicant has spent contributing positively to the Australian community. The applicant contended that the first sentence of [88] of the Tribunal’s reasons demonstrates the Tribunal’s negative weighting of that matter. It is convenient to set out [85] to [88] of the Tribunal’s reasons:

85.    As to the first sub-consideration mentioned above, I recognise the applicant has lived essentially his entire life in Australia, and he therefore has very strong ties to Australia. I note the applicant has lived in many different parts of Australia and has not left the country after his arrival as an infant.

86.    I have taken into account that his offending commenced in early adulthood and continued. In my assessment, this has diluted the favourable weight to be given to how long the applicant has resided in Australia and the fact he arrived as an infant.

87.     I also consider that the time the applicant has spent contributing positively to the community through his employment is to be understood against the substantial amount of time the applicant has spent in prison, which I do not view as periods of positive contribution to the community.

88.    Notwithstanding that those matters reduce the favourable weight to be given to how long the applicant has resided in Australia, I remain of the view that the duration of the applicant’s residence in Australia points to strong and significant ties that cannot be understated. The applicant’s ties arising out of the duration of his residence in Australia attract significant weight in favour of revoking the visa cancellation when considering the strength, nature and duration of his ties to Australia.

12    The applicant contended that where the Tribunal referred to “those matters” at [88] of its reasons, one of the matters being referred to was the “substantial amount of time the applicant has spent in prison” referred to at [87] of its reasons. The applicant contended that this reveals that the Tribunal in effect reduced the weight to be given to the applicant’s positive contribution to the community and gave him a “negative contribution” for it where the factor dealt with in cl 14.2(1)(a)(ii) should not have been negatively weighted and instead treated as a “lesser positive factor or…a neutral factor”. The applicant relied on the decision of Thawley J in FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 where his Honour at [59] found that the Tribunal had misconstrued cl 14.2(1)(a)(ii) by thinking that it was “required it to give less weight to how long a non-citizen had resided in Australia if there had been limited positive contribution to the Australian community”. The applicant contended that a similar error had occurred in this case because the Tribunal considered “that the [applicant’s] offending as an adult and his time in prison required or permitted it to reduce the weight to be given to the [applicant’s] lengthy residence and arrival in Australia as a young child”.

13    During the hearing, it was put to counsel for the applicant that nowhere in [87] or elsewhere does the Tribunal give the applicant’s contribution to the community a negative weighting. Counsel agreed that the Tribunal did not explicitly do this, but said that by “reduc[ing] the favourable weight” to be given to the factor in cl 14.2(1)(a)(ii) the Tribunal “ha[d] gone backward[s]” and had effectively treated the length of the applicant’s residence in Australia as a negative consideration which weighed against the revocation of the visa cancellation.

14    As I understand the submission, at its essence was the proposition that the applicant’s length of residence in Australia and arrival as a young child were not treated by the Tribunal as positive factors which favoured the revocation of the cancellation decision. I accept that the Direction requires those considerations to be treated as positive factors which favour revocation. However, I reject the applicant’s contention that this was not what the Tribunal did in this case.

15    It is clear from the content of [88] of the Tribunal’s reasons that the applicant’s long residence and his ties to Australia arising from the duration of his residence were treated as considerations favouring revocation. The Tribunal’s reference to “those matters” at [88], read in its proper context, is a reference to the factual matters set out at [85] to [87] of the Tribunal’s reasons. All that the Tribunal was here saying was that more positive weight might have been given to the length of the applicant’s residence in Australia but was not. That was so because of the applicant’s offending in early adulthood and the substantial amount of time he had spent in prison which had reduced the time that he had spent contributing positively through his employment.

16    Accordingly, the first limb of the ground of review must be rejected.

The second limb

17    As to the second limb of the review ground, that contention is based on the matter dealt with by cl 14.2(1)(a)(i) that “less weight should be given where the non-citizen began offending soon after arriving in Australia”. The applicant contended that the factor dealt with by cl 14.2(1)(a)(i) should be construed in light of the principles set out at cl 6.3 of the Direction and in particular cl 6.3(5) which provides (emphasis added):

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

18    The applicant contended that the rationale being dealt with by cl 14.2(1)(a)(i) is twofold. First, this part of the Direction recognises that the strength of a person’s ties to Australia is likely to be increased by the fact that the person came to Australia as a young child and therefore grew up in Australia. Second, that Australia will have more tolerance for non-citizens involved in criminality in circumstances where the non-citizen came to Australia as a young child and therefore Australia may be said to bear some responsibility for that person’s character and involvement in criminal behaviour.

19    The Minister did not cavil and generally agreed with the rationale for which the applicant contended. I too see some force in that rationale. However, accepting the rationale exists does not take the applicant’s challenge very far. That is so because it has little to say about the asserted misconstruction of the Direction upon which the applicant relies.

20    The applicant asserted that his offending should not have been taken into account and weighed unfavourably against him in the assessment required to be made by the Tribunal under cl 14.2(1)(a) of the Direction. He accepted that the Tribunal was entitled to have taken his offending into account as part of the overall balancing exercise under Part C of the Direction, but that because his offending had not begun “soon after arriving in Australia” within the meaning of cl 14.2(1)(a)(i), he contended that his offending should not have been taken into account in the balancing exercise called for and internal to cl 14.2(1)(a). In support of his contention that his offending did not occur “soon after” he arrived in Australia, the applicant pointed to the fact that the offending first occurred some 17 years after he arrived and relied on the observations of Logan J in HDWH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1659 at [24] that a 12-year span between arrival and first offending would not constitute offending “soon after” arriving in Australia.

21    The applicant acknowledged that the observations of Burley J in Vaokakala v Minister for Home Affairs [2019] FCA 1979, in particular at [15] and [39], may stand against his contention. At [15] his Honour quoted the Tribunal’s finding that:

[t]he applicant has resided in Australia for the majority of his life; having arrived in Australia shortly after he was born. However, less weight is given to this consideration because the applicant started criminally offending at the age of 18 and has continued to commit criminal offences since that time; a period spanning nearly 20 years. He has been criminally offending in Australia for most of his adult life.

22    At [39] Burley J rejected the applicant’s contention that this passage demonstrated that “the Tribunal had misconstrued cl 14.2(1)(a)(i) of Direction 65 [a predecessor to the Direction] by stating that the applicant had arrived in Australia shortly after he was born and then subsequently giving less weight to the duration of his residence in Australia because he had started his criminal offending when he was aged 18”. His Honour at [39] found (emphasis in original):

…the Tribunal notes, as it is required to do, that the applicant has resided in Australia for the majority of his life having arrived shortly after he was born. It then says that less weight is given to this consideration “because the applicant started criminally offending at the age of 18 and has continued to commit criminal offences since that time; a period spanning nearly 20 years”. The applicant’s submissions ignore the balance of the sentence commencing “and”. When those words are given proper weight, it is apparent that the Tribunal here is balancing the fact that the applicant arrived in Australia as a young child against the fact that he has continued to commit criminal offences for a period of 20 years, commencing when he was aged 18. The stipulation at paragraph 14.2(1)(a)(i) of Direction 65 that less weight should be given where the non-citizen began offending soon after arriving in Australia is not inconsistent with the Tribunal giving less weight to this consideration in circumstances where the applicant has frequently committed offences throughout his adult life. No jurisdictional error is demonstrated in this approach.

23    The applicant contended firstly that, the approach taken by Burley J was distinguishable. That was put on the basis that Burley J was proceeding on the understanding that the Tribunal had done what it had as part of the overall balancing exercise discussed above at [20] rather than as part of the internal weighing exercise required by para 14.2(1)(a)(i) of Direction 65. Therefore, the applicant contended jurisdictional error was not found by Burley J. Alternatively, the applicant contended that if Burley J did proceed on the basis that the Tribunal had been engaged in an internal weighing exercise, Burley J was plainly wrong.

24    The Minister responded to that argument accepting that the Tribunal in Vaokakala had been involved in an internal weighing exercise. The Minister also accepted that in the present case the Tribunal had been involved in an internal weighing exercise. The Minister, however, contended that it was perfectly valid for the Tribunal to have engaged in that process. At the heart of the Minister’s submission was the proposition that cl 14.2(1)(a)(i) does not make it impermissible for the decision maker to take into account at the point of determining the weight to be attached to the consideration being dealt with by that subclause, the later offending engaged in by the non-citizen. That is, offending that took place well after the non-citizen arrived in Australia.

25    In support of its contention, the Minister referred to BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1429 where Bromwich J considered cl 9.4.1 of ‘Direction No. 90 Migration Act 1958, direction under section 499 visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA’ (Direction No. 90), a subsequent ministerial direction to the Direction. Clause 9.4.1 of Direction No. 90 is in substantially similar terms to cl 14.2 of the Direction both concerning the mandatory relevant consideration of the “strength, nature and duration of ties” of a non-citizen to Australia. At [55] his Honour stated:

However, this does not mean that offending soon after arrival in Australia cannot be taken into account as a generally relevant consideration, including in relation to the strength of ties in Australia more generally. That is, the argument depends upon a confusion between mandatory relevant considerations, and considerations that are generally relevant but not mandatory, treating the latter as if they are irrelevant forbidden considerations. Direction 90 does not create any such false dichotomy.

26    The Minister accepted that BOE21 was not entirely factually analogous to this case because it was dealing with the interplay between cl 9.4.1(2)(a) and (b) of Direction No. 90, which are equivalent to cl 14.2(1)(a) and (b) of the Direction, whereas, the issue in this case concerns the operation of 14.2(1)(a) itself. Nevertheless, adopting the rationale employed by Bromwich J, the Minister contended that the later offending of the applicant was not “an irrelevant forbidden consideration” for the purpose of the internal weighing exercise which the Tribunal was entitled to undertake in considering the weight to be accorded to the matter dealt with by cl 14.2(1)(a)(i). On that basis, the Minister submitted that the Tribunal had not misconstrued the Direction and that the applicant had failed to demonstrate jurisdictional error.

27    Following the hearing of this application, the Full Court (Farrell, Perry and Derrington JJ) in BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 (BOE21 FC) affirmed Bromwich J’s decision in BOE21. Relevantly, their Honours at [38] and [39] also explicitly endorsed his Honour’s findings at [55] of BOE21 quoted above. I respectfully agree with their Honours and Bromwich J that “considerations that are generally relevant but not mandatory” should not be treated as “irrelevant forbidden considerations”. To put it in the terms of the Full Court at [39] of BOE21 FC, “it is within the decisional freedom of the decision-maker under s 501CA(4) to regard a non-citizen’s [later offending well after they arrived as a young child] as a weighty consideration which diminishes the impact of any and all other factors”.

28    For the reasons just stated, I do not accept the applicant’s contention that Burley J’s decision in Vaokakala was plainly wrong. I accept the Minister’s contention that the Tribunal’s consideration of the later offending of the applicant at [86] of the reasons was not “an irrelevant forbidden consideration” for the purpose of the internal weighing exercise which the Tribunal was entitled to undertake in considering the weight to be accorded to the matter dealt with by cl 14.2(1)(a)(i).

29    Both limbs of the applicant’s ground of review therefore fail.

Disposition

30    For the reasons set out above, the application is dismissed with costs.

Associate:

Dated:    7 December 2022