Federal Court of Australia

LRMM v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1571

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent’s interlocutory application filed 21 November 2022 be dismissed;

2.    A writ of certiorari issue directed to the second respondent, quashing its decision made on 19 August 2022.

3.    A writ of mandamus issue directed to the second respondent, differently constituted, requiring it to determine the applicant’s application for review according to law.

4.    The first respondent pay the applicant’s costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

SARAH C DERRINGTON J

1    The applicant seeks judicial review, for the third time, of a decision of the Administrative Appeals Tribunal relating to the mandatory cancellation of the applicant’s refugee visa, which he had held since the age of 11. He is now 21. The decision the subject of this application was made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) on 19 August 2022 and affirmed a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the cancellation of his visa.

2    The offending for which the applicant’s visa was mandatorily cancelled included two convictions for “robbery armed in company” and “wounded/used personal violence” for which he was sentenced to terms of imprisonment for three years and four years respectively, suspended for four years after 10 months served. In his submissions to the Tribunal, the applicant conceded that the offences must be characterised as “very serious” under Direction 90.

3    The applicant relies on three grounds of review in support of his contention that the Tribunal erred jurisdictionally. First, that it took into account the applicant’s offending as a child for which no convictions were recorded. Secondly, that it failed to lawfully consider the applicant’s representations in support of revocation, in particular his representations as to the effect of his being subject to a suspended sentence until 1 October 2024. Thirdly, that it failed to consider the representations as to the harm he would or may suffer if removed to Ethiopia in the context of para 9.2 of “Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90), namely the extent of impediments the applicant may face.

4    For the reasons that follow, Ground Two of the application must succeed. Grounds One and Three cannot succeed.

Ground One

5    The applicant contends that the Tribunal erred by taking into account the applicant’s offending as a child for which no convictions were recorded, contrary to the decision of the Full Court in Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23; 288 FCR 10. An appeal from that decision is pending in the High Court of Australia: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (B42/2022).

6    For that reason, the Minister filed an interlocutory application on 21 November 2022 seeking an adjournment of the matter pending the determination of the appeal by the High Court. An affidavit of Liam Dennis filed in support of that application on 22 November 2022 attested to four other matters having been adjourned on the same grounds: JFPT (NSD409/2022); Faanoi (QUD366/2021); TXZQ (NSD99/2022); and NHWY (QUD110/2022). It was not contended that the factual circumstances in any of these matters were identical to the present matter.

7    The interlocutory application was listed for hearing on the same day as the substantive hearing. In circumstances where the applicant is in immigration detention, all submissions and materials had been filed and the parties were ready to proceed, and given the application is not limited to the question decided by the Full Court in Thornton, I declined to grant an adjournment.

8    Paragraph 8.1.1 of Direction 90 directs a Tribunal as to the matters it should take into account when considering Primary Consideration 1, the protection of the Australian community from criminal or other serious conduct, and in particular, the nature and seriousness of the conduct.

9    The phrase “other serious conduct” is defined in s 4(2) of Direction 90 to include “behaviour or conduct of concern that does not constitute any criminal offence”.

10    Paragraph 8.1.1 of Direction 90 provides:

(1)    In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision makers must have regard to the following:

a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

i.    violent and/or sexual crimes;

ii.    crimes of a violent nature against women or children, regardless of the sentence imposed;

iii.    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

…

d)    the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

e)    the cumulative effect of repeat offending;

…

11    The Tribunal observed (Tribunal’s reasons at [35]), that the applicant:

has amassed some 13 offences since he appeared before the Magistrates’ Court of Queensland in May 2019. He appeared before the Children’s Court of Queensland on three prior occasions, but the Respondent submitted that, because of the Full Court decision in Thornton, the Tribunal should not have regard to these matters. The Tribunal accepts that submission.

12    The applicant makes no criticism of this observation but contends that the Tribunal subsequently erred when it said (Tribunal’s reasons at [42]):

The criminal activity of LRMM since becoming an adult has been serious, and his conduct both before and since achieving adulthood has been antisocial and inconsistent with a law-abiding member of the Australian community. The Tribunal notes that the Respondent submitted that while Thornton found that the Tribunal cannot take into account the fact of conviction or the finding of guilt in relation to LRMM’s Court matters as a minor, a distinction may be drawn between crimes and conduct, because the Direction requires ‘other serious conduct’ to be taken into account. The Tribunal agrees with that submission, in terms of making an assessment of the flavour of LRMM’s broad pattern of behaviour, which may have drawn him to the notice of the law enforcement and judicial system. However, proven convictions axiomatically carry much more weight than serious ‘conduct’, so the Tribunal concentrates in its assessment on LRMM’s convictions as an adult.

13    In Thornton, unlike the present circumstances, the Minister had accepted that he had taken into account six finding of guilt against Mr Thornton when he was a child, in respect of which the court had ordered no convictions be recorded: Thornton at [37]. It was against that background that the Full Court held the Minister had taken into account an irrelevant consideration in light of the construction the Court had given to the combined effect of ss 148 and 184 of the Youth Justice Act 1992 (Qld) and s 85ZR(2) of the Crimes Act 1914 (Cth). The Full Court held that, on the proper construction of those statutory provisions, Mr Thornton is taken never to have been found guilty of any offence committed as a child and the Minister was prohibited from taking into account a conviction of a child when there has been an order that no conviction be recorded: Thornton at [36].

14    The decision in Thornton is squarely directed at the consequences of a conviction as a child for the purposes of para 8.1.1 of Direction 90. To the extent that it is authority for the proposition that a finding of guilt as a juvenile is effectively expunged for the purposes of considering the nature and seriousness of a non-citizen’s offending, it does not extend to expunging the fact of “other conduct to date”. It is tolerably clear from the definition of “serious conduct” that Parliament intended that a decision-maker have regard to conduct which, although serious, cannot be considered criminal for whatever reason.

15    That is what the Tribunal did in the present matter – it observed that para 8.1.1 of Direction 90 requires “other serious conduct to be taken into account”, being the way the Tribunal characterised the applicant’s “broad pattern of behaviour, which may have brought him to the notice of law enforcement”, but expressly noted that it “cannot take into account the fact of a conviction or the finding of guilt” in relation to the applicant’s court matters as a minor.

16    There being no discernible error on the part of the Tribunal, Ground One cannot succeed.

Ground Two

17    By Ground Two, the applicant contends that the Tribunal fell into jurisdictional error by failing to consider a representation to the effect that the applicant’s suspended sentence (until 1 October 2024) was a protective factor in respect of the likelihood, or otherwise, of potential recidivism.

18    The principles relevant to a Tribunal’s consideration of representations are explained by the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at [22]-[25]:

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.

25.    It is also well-established that 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.

19    The applicant made several representations in respect of his suspended sentence:

a.    Before the delegate, the applicant submitted:

I will not reoffend again, as I believe I have learnt my lesson. I can’t imagine going back to jail again. I am aware that I am on probation for 3+ years and I cannot commit any other crime again otherwise I will be sent back to jail. That does scare me alot. I want to seek the right help and obey any instructions given to me by the parole and probations board.

b.    Before the Tribunal,

•    in his SFIC at [62], the applicant submitted:

The risk of future re-offending is also mitigated by the fact that the Applicant is subject to a suspended sentence in place until 1 October 2024. Should he re-offend in this time, the Applicant is aware that he will be returned to prison to serve the remainder of his criminal sentence, and would again be subject to mandatory visa cancellation under section 501(3A).

•    in his SFIC at [3(c)], he expressly relied on the SFIC filed in the first review in which he submitted:

The triggers of his offending behaviour will be further abated through the protective factors of his release plans. These plans not only mitigate his risk of relapse but they also promote positive lifestyle changes. These include:

…

c)    Suspended sentence – this is in force for an operation period of four years (until 1 October 2024) and will provide a further safeguard. Should he reoffend in any manner he will be returned to prison to serve the balance of his sentence. The threats of prison and deportation will remain after his probation ends.

c.    In oral evidence before the Tribunal, the applicant gave evidence that he “will end up in jail” if he failed to comply with his sentencing orders and gave evidence of his difficult experience of imprisonment.

20    As the Minister submitted there is no doubt, as evidenced by the numerous references to it, that the Tribunal reviewed and engaged with the applicant’s SFIC. There is also no doubt that the Tribunal was aware that the applicant was subject to a suspended sentence (Tribunal’s reasons at [3] and [39]). That however does not answer the question of whether the Tribunal overlooked the specific representations made in respect of the consequences for him of his suspended sentence. Paragraph 8.1.2 of Direction 90 requires the Tribunal to have regard, inter alia, to the “likelihood of the non-citizen” engaging in further criminal or other serious conduct.

21    In assessing this likelihood, the Tribunal referred to: the “scant evidence of rehabilitation undertaken by” the applicant (Tribunals reasons at [88] and [108]); his parents’ lack of knowledge of his alcohol and drug use and his offending (Tribunal’s reasons at [89]-[90], [94]-[98]); the proposed living arrangements for the applicant (Tribunal’s reasons at [92] and [99]); and doubt that his parents would be able to help him modify his behaviour (Tribunal’s reasons at [107]).

22    The Tribunal also considered in some detail a report of a clinical and forensic psychologist, Professor James Freeman. The Tribunal noted (Tribunal’s reasons at [114]) Professor Freeman’s observation that the applicant “seemed particularly distressed about the uncertainty if he is deported to Ethiopia and this, in his view would prove to have a strong specific deterrent against recidivism if he were permitted to remain in Australia”.

23    The Tribunal concluded (Tribunal’s reasons at [115]), “based on its assessment of the evidence and Professor Freeman’s professional clinical opinion, that [the applicant] is at least a moderate risk of re-offending, including in a violent manner” and that this consideration “weighs heavily against revoking the mandatory cancellation of the visa” (Tribunal’s reasons at [116]).

24    Professor Freeman’s report records in [3.1] that the applicant “was sentenced to a 4 year custodial episode (suspended after 10 months with a 2 year Probation Order)”. Contrary to the Minister’s submission that Professor Freeman’s report did not contain a statement or opinion to the effect that the suspended sentence was an important aspect in respect of the applicant’s risk of re-offending, at [13.3], Professor Freeman did observe “The supervisory element of a probation order, with special conditions, may also prove a protective factor against relapse and recidivism”. Despite its “thorough” examination of Professor Freeman’s report (as submitted by the Minister), the Tribunal made no reference to this observation.

25    It is not necessary for a tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [46]. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality: Applicant WAEE at [47]. It falls to the applicant to establish a basis for drawing the inference necessary to establish the alleged jurisdictional error: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [67]. And it is trite to observe that a tribunal’s reasons should not be scrutinised minutely and finely with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

26    In the present case, the omission of any reference to the protective effect of the applicant’s suspended sentence and probation order falls to be assessed in the context of the express representations made to the Tribunal, coupled with the reference to that protective effect in the only expert report put before the Tribunal. The representations were so clearly put that it is “unthinkable that that the Tribunal would not have referred to it if it had actually considered it”: SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; 150 ALD 34 at [20]. The inescapable conclusion is that the reasons of the Tribunal fell “on the wrong side of the line”: Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [49].

27    Whether the Tribunal’s error in failing to consider the applicant’s representations as to the protective effect of his suspended sentence and probation order could have made a difference to the Tribunal’s decision “falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities”: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [38]; Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737 at [32]. The High Court went on to explain in MZAPC, at [39]:

Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made … the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made…

(emphasis added)

28    Where it is improbable that the result could have been different, the “realistic possibility” threshold is not satisfied: DNQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 72; 275 FCR 517 at [60]. The materiality of an error is assessed by the reconstruction of a counterfactual question considered in light of the totality of the evidence, and the question is one of fact which the Court must resolve by whatever inferences are available on the evidence: MZAPC at [38].

29    Section 7(2) of Direction 90 provides that “Primary considerations should generally be given greater weight than the other considerations”. The Tribunal found (Tribunal’s reasons at [180]) that Primary Consideration 1, the protection of the Australian community, and Primary Consideration 4, the expectations of the Australian community, both weighed “relatively heavily” against revocation. This was in the context of the Tribunal’s finding that “the risk of re-offending, including violent re-offending, is assessed as moderate”.

30    As regards Primary Consideration 3, the best interests of minor children, the Tribunal found that consideration weighed “somewhat” in favour of revocation (Tribunal’s reasons at [180]).

31    In terms of the “other considerations” specified in s 9 of Direction 90, the Tribunal found that the extent of impediments if removed and the links to the Australian community both weighed “strongly in favour of restoring his visa”. The additional special consideration, being that he faced the possibility of prolonged detention, was also found to weigh “relatively strongly” in favour of revocation (Tribunal’s reasons at [181]).

32    In circumstances where one of the three factors singled out by the Tribunal as tipping the balance against revocation was the risk of re-offending, (Tribunal’s reasons at [182]), the inference arises that had the Tribunal considered the applicant’s representations of the protective effect of the suspended sentence and the probation order, there was at least a realistic possibility that the Tribunal could have reached a different decision. In my view, the applicant has discharged the burden described in MZAPC at [39].

33    For these reasons, Ground Two must succeed.

Ground Three

34    By Ground Three, the applicant contended that, although the Tribunal considered the applicant’s representations as to the harm he would or may suffer if removed to Ethiopia in the context of Australia’s international refoulement obligations as required by para 9.1 of Direction 90, it failed to do so in the context of para 9.2 of Direction 90, namely the extent of impediments the applicant may face if removed.

35    In his Statement of Facts, Issues and Contentions before the Tribunal, the applicant made the following submission under the heading “Non-refoulement obligations”;

80     …

(b)    Given that the Applicant is of mixed Somali and Ethiopian descent, without family support and connections, has limited work history and education, is illiterate and does not speak any of the Ethiopian languages he is at much higher personal risk of violence and death if he was to return. He is therefore at risk of significant harm (including death or serious physical harm) if he was to be returned to Ethiopia…

(c)     The Applicant is also likely to experience persecution on the basis of Oromo ethnicity. This was described in detail in the Applicant’s Statement of Issues and Contentions at A1, paragraphs 71 to 76 [being those made to the previously constituted Tribunal, and which made reference to specific page spans within a large bundle of country information].

36    Under the heading “Extent of impediments if removed”, the applicant submitted:

87    The impediments to the Applicant establishing himself in Ethiopia should he be removed to that country are discussed above, but in summary:

(a) The Applicant is likely to suffer significant violence and harm in Ethiopia;

37    The applicant submitted that although the Tribunal referred in passing (Tribunal’s reasons [153]) that he was “likely to suffer significant physical violence and harm in Ethiopia”, it did not evaluate that assertion beyond reiterating its earlier conclusion concerning non-refoulement, namely that it was “not satisfied on the information before it that LRMM would face a risk of significant harm if deported to Ethiopia” (Tribunal’s reasons at [141]).

38    In addition to the “passing reference” to likely harm in [153], the Tribunal recorded its exchange with the applicant’s father where the Tribunal asked why he thought his son would be killed if he went to Ethiopia. The father’s response was: “They don’t know who he is. Maybe they would think he had gone there to commit crime. All his relatives are either killed or displaced” (Tribunal’s reasons at [156]). In assessing that evidence, the Tribunal observed that it was necessarily based on the applicant’s father’s “knowledge of the political instability of Ethiopia in general, and his own experiences prior to leaving the country in 1990” (Tribunal’s reasons at [157]). Having weighed that evidence, the Tribunal found that the applicant had not raised a “particularised real risk of significant harm” (Tribunal’s reasons at [157]).

39    Nevertheless, weighing all the factors raised by the applicant, the Tribunal concluded that he would face significant impediments in his resettling in Ethiopia which would be over and above those which an Ethiopian national who had lived in the country would experience if repatriated. The Tribunal found that this consideration “weighs heavily in favour of revoking the mandatory cancellation of the visa” (Tribunal’s reasons at [158]).

40    On a plain reading of the Tribunal’s reasons, there is no basis for the applicant’s contention that the Tribunal failed to consider the risk of violence or harm to the applicant in Ethiopia.

41    Ground Three cannot succeed.

Disposition

42    For the reasons given Ground Two is upheld. Grounds Two and Three are dismissed. The matter should be remitted to the Tribunal, differently constituted, to determine the applicant’s application for review according to law. It is appropriate for the Minister to pay the applicant’s costs.

Associate:

Dated:    23 December 2022