Federal Court of Australia

Jadidi v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1560

ORDERS

THE COURT ORDERS THAT:

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

2.    The application be dismissed.

3.    The applicant pay the first respondent’s costs of and incidental to the application, to be fixed by a registrar in a lump-sum, 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    Mr Pouria Siahpoush Jadidi (Mr Jadidi) is an Iranian citizen. He came to Australia on 18 June 1987 shortly after his fifth birthday. He has remained here ever since. His entry into Australia was lawful, as has been his subsequent residence, up to and including events which have given rise to the present proceedings. On 22 January 2020, a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (Minister), acting under s 501(3A) of the Migration Act 1958 (Cth) (the Act) cancelled Mr Jadidi’s permanent resident visa. Such cancellation became mandatory upon satisfaction that Mr Jadidi had failed the character test by virtue of terms of imprisonment imposed upon him in the Southport Magistrates Court on 16 March 2018.

2    As the Act required upon such cancellation, Mr Jadidi was invited to make representations in respect of the revocation of the cancellation of his visa. Via his solicitors, he did so in writing on 17 February 2020. It was not until 30 March 2022 that a delegate of the first respondent decided not to revoke the cancellation of Mr Jadidi’s visa. As was his right under the Act, Mr Jadidi sought, on 6 April 2022, the review of the Minister’s delegate’s decision not to revoke cancellation by the Administrative Appeals Tribunal (Tribunal). Following a hearing in the course of which, notably, Mr Jadidi gave evidence the Tribunal (Senior Member Tavoularis), for reasons given in writing, decided on 11 July 2022 to affirm the decision of the Minister’s delegate not to revoke cancellation of Mr Jadidi’s visa.

3    Mr Jadidi has now sought the judicial review by this Court of the Tribunal’s decision. The Tribunal, as is appropriate in matters such as this, filed a submitting appearance.

4    Mr Jadidi is presently 40 years of age. This is not the first occasion in which he has encountered the provision in the Act for cancellation of a visa of a non-citizen on the basis of a failure to pass the character test. An earlier such cancellation occurred on 6 April 2016. On that occasion, a delegate of the first respondent decided, on 11 May 2017, to revoke that visa cancellation. Mr Jadidi was then issued with a formal warning as to the potential consequences of further offending in respect of his restored visa. The Tribunal observed at [1]:

… The Applicant has a very significant criminal offending history in Australia, commencing when he was a juvenile. His criminal history runs from (in terms of sentencing episodes) 19 November 1998 to 21 April 2020, a period of some 21-22 years. Excluding the occasions on which he found himself before a court for re-sentencing consequent upon his commission of further unlawful conduct that post-dated sentences compelling him to not further offend, his history is indicative of the commission of some 106 separate offences that were dealt with at 23 separate sentencing episodes.

[footnote references omitted]

5    On the other side of the equation, Mr Jadidi has such a length of association with Australia that one might question whether he could be regarded any longer as an immigrant, as opposed to someone absorbed into Australian society. He has certainly only grown up here. He also has, as the Tribunal’s reasons reveal, very particular personal, familial associations with Australia. However this may be, the making of evaluative judgments on the merits in respect of whether or not to revoke the cancellation of a visa is in the first instance one for the Minister or, as in this instance, a ministerial delegate, and then, if external merits review be sought, the Tribunal in place of such a primary decision maker delegate.

6    The Court’s role, if its jurisdiction is invoked, is solely the determination of whether, having regard to expressed grounds of review, the Tribunal’s decision was attended with jurisdictional error. Further, the present basis of constitutional legislative competence for the enactment of the Act is no longer, as it was for most of the 20th century, the immigration power (Constitution, s 51(xxvii)), but rather the aliens’ power (s 51(xix)). Subject to questions of Aboriginality – and none arise in the present case – even though a non-citizen may have spent the vast proportion of his or her life in Australia, even to the point of absorption, they are none the less an alien: Love v Commonwealth (2020) 270 CLR 152.

7    One may distil the grounds of review in the present case into two broad issues. The first, and that which received particular attention in oral submissions, is whether the Tribunal had either denied Mr Jadidi procedural fairness, or further or alternatively constructively failed to exercise its review jurisdiction according to law by failing to deal with a claim that, if he were returned to Iran, he would be required to undertake military service. The second issue mentioned in written submissions, but not emphasised in oral submissions, was whether the Tribunal’s reasons exhibited irrationality or illogicality in a reference at [164] of those reasons to “his … employment does not necessarily speak favourably about him having any demonstrated any employment history in Australia during his time here.”

The alleged irrationallity or illogiality

8    This second issue may shortly be disposed of. It is therefore convenient to address it first. The alleged illogicality or irrationality is said to arise by comparing and contrasting [164] of the Tribunal’s reasons with what is stated in [239]:

164.    Second, with reference to the abovementioned sub-paragraph (b), the Applicant has resided in Australia from the age of five after arriving here in June 1987. He has just turned 40. His limited engagement in remunerative employment does not necessarily speak favourably about him having any demonstrated employment history in Australia during his time here. He has parented one child, who is an Australian citizen. Whatever participation in, and contribution to, the Australian community he may have made, cannot now be safely found to have been, “short”. Accordingly, the Australian community’s tolerance of this Applicant’s offending is not lowered by this component of the principles in paragraph 5.2(4) of the Direction.

…

239.    The second of the two tempering sub-elements requires me to assess the extent of the Applicant’s positive contributions to the Australian community. I have earlier recounted the Applicant’s intention to again become involved in remunerative work. The evidence around his engagement with remunerative employment seems genuine. It is thus safe to find that the Applicant has been engaged in remunerative employment in Australia and has an intention to do so in future if returned to the Australian community. There is a discernible extent to which he has made some sort of positive contribution to the Australian community as a result of taxation he would have paid on his earnings. Likewise, there is evidence of his contributions to the Australian community. In his Personal Circumstances Form prepared and submitted at an earlier stage of this proceeding, he said the following:

I have worked in charity collecting money for the less privileged; donated to surf lifesavers for many years; I owned my own business concreting i.e. Pepe Crete. Took part in the 2011 floods desaster (sic) cleaning random houses and donating my truck and trailer and my trade skills in the recovery.

[footnote references omitted – emphasis in original]

9    Paragraph 164 of the Tribunal’s reasons contains a footnote, number 126, which reads:

Note: to be fair to the applicant, I am keeping in mind that he did run his own concreting business and, at one stage, employed up to ten people. Tempering that, I have before me the Applicant’s very long of criminal offending that has resulted in his removal from the Australian community for relatively long periods of time.

10    In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (Wu Shan Liang), by reference to authority in this Court, the High Court cautioned against reading the reasons of the administrator narrowly and with an eye for error. The familiarity of encounter with that caution should in no way diminish its enduring force. The present case offers a reminder of that.

11    In truth, if one reads the Tribunal’s reasons as a whole and fairly, as one must in light of the caution sounded in Wu Shan Liang, there is no inconsistency. All that the Tribunal is doing is highlighting that there have been interruptions to Mr Jadidi’s history of employment by virtue of periods of incarceration. There is no substance in this second issue.

The alleged denial of procedural fairness or failure to exercise jurisdiction

12    I turn, then, to the first issue. In modern times, Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 (Dranichnikov) has become something of a root authority for the proposition that an administrative decision maker required to consider and determine a claim or representation both denies the author of that claim or representation procedural fairness and fails to discharge a statutory function of determining a claim or considering a representation if that administrative decision maker fails to consider an integer of that claim or representation.

13    In certain circumstances an additional jurisdictional error may be committed by a failure to consider an integer. That arises where the integer forms part of a representation which by statute the administrative decision maker is obliged to consider. Section 501CA(4) of the Act offers an example of such an obligatory duty to consider a representation.

14    There is no relevant distinction to be drawn in this case as between the delegate’s obligation and that of the Tribunal. The review jurisdiction exercised by the Tribunal under the Act was as provided for in s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The origins, as s 43 of the AAT Act contemplates, of one administrative decision maker, in this case the Tribunal, sitting in place of, and conferred with all of the powers and discretions of, an earlier administrative decision maker may be traced to the advice of the Judicial Committee in Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530, approaching 100 years ago.

15    That is not to say that the place of the Tribunal at a later stage of an administrative decision making continuum is irrelevant. In Re Easton and Repatriation Commission (1987) 6 AAR 558 (Re Easton), at 561, the Tribunal observed:

The ambit of the review by the ….. tribunal is necessarily influenced by the ambit of the steps and proceedings that have taken place prior to its review, for the function of the tribunal is to review a decision.

16    That particular statement in Re Easton commended itself to Davies J in Jebb v Repatriation Commission (1988) 80 ALR 329, at [333] – [334] and, in turn, to Kirby J in Shi v Migration Agents Registration Authority (2008) 235 CLR 286, at [45]; see also, more latterly, Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250, at [53].

17    These, and other cases which it is not presently necessary to mention, establish, amongst other things, that the place of the Tribunal in an administrative decision-making continuum provides a prism through which to scrutinise the way in which the Tribunal has come to deal with or, as the case may be, not deal with, or not deal with in any particular depth, particular issues which fall for determination. Sometimes issues which are initially adverted to in a claim, application or representation gain or lose emphasis, or are even abandoned, in the course of an administrative decision-making continuum.

18    An initial reference to a particular subject in a representation, and a later failure to make anything of that reference in the course of a continuum culminating in external merits review by the Tribunal, has given rise to sharp differences in the Full Court as to whether or not the Tribunal has committed one or the other of the jurisdictional errors adverted to in Dranichnikov: see, for example, Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47 (Hong). Latterly, this type of controversy must be read subject to observations made by the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (Plaintiff M1/2021), at [22] – [24]:

22.    Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

23.    It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.

24.    Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.

[citations omitted]

19    In that case, the Court added, at [25]:

…the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.

[citations omitted]

20    Plaintiff M1/2021 is also noteworthy for the emphatic cautionary note sounded by the High Court about the use of labels such as “active, intellectual engagement” and “proper, genuine and realistic consideration”, and as conducive to some type of general warrant for a form of impermissible merits review on judicial review. Both Mr Jadidi and the Minister, in their respective submissions, embraced the statements made in Plaintiff M1/2021, to the end of submitting that either jurisdictional error or, as the case may be, an absence thereof, was manifested by the Tribunal in the Tribunal’s reasons.

21    A difficulty for Mr Jadidi about that embrace is that the Tribunal does expressly mention his antipathy, in respect of military training, in the Tribunal’s reasons. The Tribunal was obliged by Ministerial direction under s 499 of the Act to consider particular subjects: see s 500 in respect of that obligation. One such subject was any non-refoulment and complementary protection obligations. The Tribunal dealt with this subject at [183] – [210]. It is only presently necessary to set out [183] through to and including [185]:

183.    The material contains a Reply filed on behalf of the Applicant. This Reply document is dated 8 June 2022. In this Reply, the components of the Applicant’s position around non-refoulement are expressed thus:

•    Complementary Protection Obligations: reference is made to three instruments to which Australia is a signatory, each of which incorporate Australia’s non-refoulement obligations into the “complementary protection” provisions under section 36(2)(aa) of the Act. The consequence of this is that pursuant to those complementary protection provisions, it is propounded that Australia owes this Applicant protection obligations if the Respondent Minister has, “substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”. This position then crystalises into the following contention: “In this case, the Applicant fears he will be subject to significant harm in Iran as a result of a likely relapse of his drug addiction and therefore arrest and imprisonment if he is forced to return to Iran.”;

•    Limited availability of drug rehabilitation support in Iran: it is contended that the structures and support systems that would otherwise be available to the Applicant to facilitate his drug rehabilitation efforts in Australia will not be available to him in Iran. Running parallel to this contention is a submission that the Applicant’s immediate family will not be with him in Iran (were he to be returned there) and the combination of (1) limited access to government-provided medical and rehabilitation services and (2) the likely stress this would cause the Applicant would, “...significantly increase the likelihood of relapse into drug use.”;

•    Harsh criminal penalties for drug possession in Iran and the likelihood of significant harm – death penalty, torture, and cruel or inhuman treatment or punishment: reference is made to country information material which refers to very harsh punishments for those found guilty of drug possession in Iran. The death penalty is said to be one of the punishments available to courts who are sentencing those found in possession of illicit drugs. The further contention is that, “Even in the event that the Applicant is not subject to the death penalty, he is likely to suffer torture or cruel or inhuman punishment due to the conditions in prison and detention centres in Iran.”;

•    Increased likelihood of relapse of relapse due to pressure of return to Iran: reference is made to the Applicant’s residence in Australia – a period of over 34 years. This component of the Applicant’s position on refoulement seemed to conflate the claimed impediments he would face upon a return to Iran with an actual fear of harm. As best as I understood this component, the Applicant fears relapsing into abusing illicit drugs as a result of those claimed impediments. The contention is put thus: “...the Applicant’s ability to reintegrate into Iranian society and obtain appropriate housing, employment and social support are very limited.

These are all factors that will significantly increase his distress and increase the likelihood of drug relapse.”

184.    The Applicant’s position on non-refoulement distils into this: having regard to the above dot-point components, “...there are substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant returning to Iran, there is a real risk that he will suffer significant harm.”

The Applicant’s claims – oral

185.    During his evidence in chief, the Applicant was asked whether he would voluntarily return to Iran in the event the mandatory visa cancellation decision under review was not revoked by this Tribunal. He replied in the negative. He explained that answer thus:

“MS LENTON: Why is that?

APPLICANT: No. I don’t think I would last in Iran with the population, with the people, with their way of life. I wouldn’t fit in. I just wouldn’t fit in there and knowing that I’ve got to go to maybe military training and stuff like that, I’ve spoken to a lot of people about it, it’s not somewhere where I’m going to really survive.”

[footnote references omitted – emphasis in original]

22    The Tribunal’s ultimate conclusion on this subject is to be found at [210]:

210.    I am of the view (and I find) that the Applicant’s claimed fear(s) of harm upon a return to Iran attract a moderate, but not determinative, level of weight in favour of the delegate’s decision under review.

[emphasis in original]

23    If one traces back through the reasons of the delegate to the representation, including the accompanying statement from Mr Jadidi, one finds that there is reference in similar terms to the passage of oral evidence set out by the Tribunal at [185]. The same may be said in respect of the statement of facts, issues and contentions lodged with the Tribunal on his behalf, prior to the hearing, in accordance with the Tribunal’s practice, by his legal advisers. But it is always nothing more than a factor which is adverted to, along with many others, touching upon an asserted difficulty which it is said Mr Jadidi would have upon any return to Iran as a sequel to removal by virtue of non-citizenship.

24    The Tribunal also adverts to military service at [213] of its reasons, in the course of considering the applicant’s written submissions in relation to [9.2] of the Ministerial directions. The Tribunal states, at [212] and [213], as follows:

212.    In the SFIC filed on his behalf, the Applicant confirms, with specific reference to his age and state of health, that he is currently 40 years of age and that he undertook, “significant surgery” to his neck in 2016. It is said that the result of this surgery has limited his capacity to move and to participate in daily activities. It is propounded that the Applicant faces substantial language, cultural and religious barriers in the event of a removal to, and resettlement, in Iran. He arrived in Australia at the age of five and has never left these shores. I have earlier referred to his oral evidence about an apparent lack of familiarity with written and spoken Farsi. His SFIC talks about him not having, “... anything greater than a rudimentary level ...” of Farsi and that he, “... has no language proficiency in Arabic.”

213.    The resulting contention is that the Applicant’s absence of Farsi and/or Arabic language proficiency will cause him difficulty in initially establishing himself in Iran and in terms of gradually being able to settle there on a permanent basis. It is said the Applicant does not possess, “... the cultural knowledge or awareness to assimilate into Iranian society ...” As best as I understood this aspect of his contentions, the Applicant’s perceived language, cultural and religious impediments upon a return and resettlement in Iran can be seen in the following words in his statutory declaration appearing in the material:

“The thought of having to move and live in Iran scares me. I can’t speak the language, I don’t really know the culture, I don’t have any family there.

...

I know that Iran has compulsory military service and that I would have to do it once I arrive. I don’t want to fight in the military.

...

I wouldn’t be able to get a job or housing or anything.”

[footnote references omitted – emphasis in original]

25    This consideration culminates in a conclusion reached by the Tribunal at [222]:

222.    Having regard to my findings referrable to each of the three sub-paragraph components of this Other Consideration (b), I am of the view (and I find) that this Other Consideration (b) attracts a moderate, but not determinative, level of weight in favour of revoking the delegate’s decision to refuse to revoke the original mandatory cancellation of the Applicant’s visa.

[emphasis in original]

26    The long and the short of it is, if one looks to the administrative decision-making continuum in the present case, the reference to the prospect of military service was a passing one, not a central one. It formed part of a much wider representation as to the impact of social and cultural differences which Mr Jadidi would face if returned to Iran. The subject of military service has, with respect, been elevated as an ex post facto construct, in my view, to a prominence which it never had in prospect, in terms of the submissions made both by way of initial representation and thereafter, culminating in the Tribunal’s decision.

27    Further, the Tribunal was, if one reads its reasons fairly, dealing with the broader issue, of which an apprehension concerning military service was part, expressly mentioned the subject in the Tribunal’s reasons.

28    There had been reference, in an earlier representation concerning the earlier request for revocation of the visa, to an additional incident of apprehension in relation to military service if returned to Iran; namely, the prospect of being deployed on operations against ISIS. That was not a feature of the representation which was made to the Minister in respect of the presently-relevant visa cancellation. It was never a feature of any submission made thereafter, either to the delegate or to the Tribunal.

29    The Tribunal was not obliged to second-guess issues which might have been raised but were not, and then to consider such strawmen. As it is, the Tribunal considered, to the extent required, in my view, the subject of apprehension concerning military service when considering the issue of social language and cultural difficulties which Mr Jadidi might face if removed to Iran. In the end, when all is said and done, and as Hong exemplifies, whether or not errors of the kind found in Dranichnikov have been committed by an administrative decision-maker turn on the particular facts and circumstances, and questions of characterisation, of a claim, application or representation in a given case. Hindsight is not the basis upon which one resolves such questions. For these reasons, then, however one approaches the second issue, it has, in my view, no merit.

disposition

30    It follows that the application must be dismissed.

Associate:    

Dated:    21 December 2022