Federal Court of Australia

Jama v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 263

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant is to pay the first respondent’s costs of the application on a lump sum basis with such lump sum to be assessed by a Registrar.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    On 18 November 2008, the applicant, who is of Somalian heritage, arrived in Australia from New Zealand as the holder of a Special Category (Class TY) (Subclass 444). At that time he was 17 years old.

2    Since in or about 2004, the applicant has been a citizen of New Zealand.

3    On 8 June 2019, he was convicted of one count of aggravated armed robbery at a suburban location in Perth, Western Australia. On 12 November 2019, he was sentenced by the Supreme Court of Western Australia to a term of imprisonment of four years, backdated to 21 November 2018.

4    Since he had been sentenced to a term of imprisonment in excess of 12 months, on 16 December 2019, the applicant’s visa was the subject of mandatory cancellation pursuant to s 501(3A) of the Migration Act 1958 (Cth) on the basis he had a “substantial criminal record” for the purposes of s 501(6)(a) and s 501(7)(c) of the Act. At the time his visa was cancelled, the applicant was serving his term of imprisonment in a custodial institution on a full-time basis.

5    Representations made by the applicant to the Minister pursuant to s 501CA(4) were unsuccessful with the Minister’s Delegate deciding not to revoke the mandatory cancellation of the applicant’s visa. An application for review of the Delegate’s decision to the Administrative Appeals Tribunal resulted in the Tribunal affirming the Delegate’s decision. In making its decision, the Tribunal was bound to apply Ministerial Direction No 79.

6    The applicant applies for a review of the Tribunal’s decision pursuant to s 476A of the Act contending that the Tribunal fell into jurisdictional error:

(a)    By misconstruing cl 14.2 of the Direction and thereby asking itself the wrong question (ground one); and

(b)    By acting unreasonably, irrationally and/or illogically when concluding the best interests of minor children in Australia “[did] not weigh either for or against the revocation of the Cancellation Decision” (ground two).

7    Two issues arise:

(i)    Did the Tribunal misconstrue cl 14.2 of the Direction and thereby ask itself the wrong question? If so, did the Tribunal fall into jurisdictional error?

(ii)    Did the Tribunal act unreasonably, irrationally and/or illogically as contended, and if so, did it fall into jurisdictional error?

8    It is for the reasons which follow that the application for review is dismissed.

The Tribunal’s reasons

9    The Tribunal addressed the applicant’s employment history between 2011 and 2019 and considered his history of offending since arriving in Australia. That history commenced on 7 December 2012 with an offence relating to the possession of cannabis, however there appears to have been no further offending until 29 January 2017 when, together with a co-offender, the applicant committed an offence of aggravated armed robbery. Whilst on bail for that offence, he committed traffic offences in February and March 2019.

10    After reciting the terms of s 501CA, the Tribunal noted there was no dispute the applicant did not pass the character test such that the Tribunal was required to consider whether there was another reason why the original decision to cancel the applicant’s visa should be revoked: s 501CA(4)(b)(ii).

11    The Tribunal identified that the Direction had been issued pursuant to s 499(1) of the Act and that pursuant to s 499(2A) the Tribunal was obliged to comply with the Direction.

12    The applicant contended before the Tribunal that:

(i)    his low risk of offending;

(ii)    the strength of his ties to Australia;

(iii)    the impact that cancellation would have on his family members (including minor children); and

(iv)    the positive contributions he has made to Australia prior to and following his conviction for aggravated armed robbery,

weighed in favour of revocation.

Direction 79 considerations

13    The Tribunal considered each of the primary considerations in the Direction.

First Primary Consideration - Protection of the Australian community

14    The Tribunal gave careful, thorough and detailed attention to this consideration.

15    The applicant’s conviction for aggravated armed robbery involved the robbery of a young women, in company with another person, at knifepoint. The Tribunal considered the nature and seriousness of the conduct as very serious, a description the applicant accepted.

16    The Tribunal assessed the risk to the Australian Community should the applicant commit further offences or engage in other serious conduct before concluding that the first primary consideration weighed very strongly against the revocation of the Cancellation Decision. The applicant does not challenge this finding.

Second Primary Consideration - Best interests of minor children in Australia affected by the decision]

17    After setting out the matters to be considered in this Primary Consideration, the Tribunal noted the applicant’s evidence, together with that of his sister and cousin, that the applicant has 15 nieces and nephews in Australia with whom he is involved in various ways.

18    The Tribunal accepted the applicant’s nieces and nephews may experience disappointment but noted the applicant is not a parental figure and that at its highest, the evidence before the Tribunal indicated that the parents of a number of the nieces and nephews believe the children will be disappointed if the applicant returned to New Zealand and that they would miss him.

19    After considering this Primary Consideration, the Tribunal found that the best interests of the applicant’s 15 nieces and nephews did not weigh either for or against the revocation of the cancellation decision. The applicant challenges this finding.

Third Primary Consideration - Expectations of the Australian community

20    The Tribunal found the expectations of the Australian community would be that the Cancellation Decision should not be revoked and that that expectation weighed very strongly against revocation. The applicant does not challenge this finding.

Other Considerations

21    Under the category of “Other Considerations” in the Direction, cl 14.2 provides that in considering its decision, the decision-maker is to consider the strength, nature and duration of the applicant’s ties to Australia.

22    The Tribunal dealt with this consideration holding that it only weighed slightly in favour of the revocation of the Cancellation Decision. The applicant challenges this finding.

Ground one - the parties’ submissions and consideration

23    The applicant contends the Tribunal misconstrued cl 14.2 of the Direction such that it asked itself the wrong question and thereby made a jurisdictional error.

24    The particulars to ground one are, in summary, that notwithstanding the Tribunal had found the applicant had close ties to the Australian community, had contributed to the Australian community to some degree, and did not start offending shortly after arriving in Australia, the Tribunal found that the strength, nature and duration of the applicant’s ties to Australia only weighed slightly in favour of the revocation of the cancellation decision on the basis that the applicant’s ties to Australia were outweighed by the serious nature of his offending and the risk that he will reoffend.

25    The applicant contends that having already reduced the weight attached to the strength, nature and duration of his ties to “slight”, the Tribunal then weighed that “slight” weight against other factors including factors relating to the seriousness of the applicant’s offending.

26    The applicant submits that no part of cl 14.2 directs the Tribunal’s attention to the nature and seriousness of the applicant’s criminal offending or the risk of re-offending. The applicant refers to Reasons [175]:

In summary, the Tribunal finds that the Applicant has close ties to the Australian community. He has lived in Australia since he was 17 years old, and his family members reside in Australia, including his numerous siblings, nieces and nephews. Whilst the Applicant did not start offending shortly after arriving in Australia and has contributed to the Australian community to some degree, the Tribunal considers these matters are outweighed by the serious nature of his offending and the risk that he will reoffend. The Tribunal also finds that the Applicant’s family will suffer emotional detriment if he is returned to New Zealand, but would be able to continue to manage financially and practically. Overall, considering the serious nature of the Applicant’s offending and the risk that he will reoffend, this other consideration of the strength, nature and duration of the Applicant’s ties to Australia cannot outweigh these matters and therefore, the Tribunal finds it only weighs slightly in favour of the revocation of the Cancellation Decision.

27    The applicant submits that the Tribunal engaged in double-counting because in the passage set out above it considered the strength, nature and duration of the applicant’s ties with Australia could not outweigh the serious nature of the applicant’s offending and the risk of him re-offending with the consequence that the Tribunal found the applicant’s ties to Australia weighed only slightly in favour of the revocation of the Cancellation Decision.

28    The applicant then points to the Tribunal’s conclusions at Reasons [199], [200], where the Tribunal concluded that “After balancing the relevant primary and other considerations … the expectations of the Australian community would nevertheless weigh very strongly against the revocation of the Cancellation Decision”, and that:

… even when balanced against the other considerations that weighed in favour of the Applicant (being the strength, nature and duration of the Applicant’s ties to Australia, the impediments the Applicant would face if returned to New Zealand and the impact of the COVID-19 pandemic) the strong view of the Australian community would be that the Applicant should not hold the visa.

29    The applicant submits that this passage demonstrates the Tribunal put only slight weight on the strength, nature and duration of the applicant’s ties to Australia because the serious nature of the applicant’s offending and the risk of him re-offending outweighed the strength, nature and duration of those ties. In so doing, the applicant submits that the Tribunal misconstrued cl 14.2 because the clause does not require the Tribunal to balance the strength, nature and character of the applicant’s ties against the seriousness of the offending or the risk of re-offending.

30    Whilst accepting the decision-maker will balance the various considerations in the Direction, the applicant submits that exercise is to occur after a proper evaluation of each of the considerations set out in the Direction so as to avoid double-counting.

31    So it is that the applicant submits the Tribunal used its assessment of the nature and seriousness of the offending and the risk of re-offending to offset the weight to be given to the strength, nature and duration of the applicant’s ties to Australia and then weighed those same considerations again in its conclusion.

32    The first respondent submits cl 14.2 of the Direction permits a decision-maker to consider an applicant’s history of offending, and observes that not every decision-maker will necessarily conclude that offending and the risk of re-offending are relevant to that issue. The first respondent refers specifically to cl 14.2(1)(a) which deals with the time at which the non-citizen began offending after arriving in Australia and cl 14.2(1)(b) which refers to the time the non-citizen has spent contributing positively to the Australian community. The first respondent submits this latter provision permits consideration of an applicant’s offending while in Australia because it may be part of how an applicant has contributed, or failed to contribute to Australia.

33    The first respondent refers to BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 (Farrell, Perry and Derrington JJ). In that matter, the appellant had submitted that in the weighing process required by s 501CA(4), the Tribunal had wrongly diminished the weight attributable to the issue of the strength of the appellant’s ties to family or social links by reason of the appellant having commenced his criminal activities within a relatively short time of arriving in Australia. At [38], [39] the Court said:

Even if it were accepted that the Tribunal applied the abating effects of the appellant’s offending against the ties factor, as the learned primary judge held, no error would result. There is nothing in the Migration Act generally or in s 501CA(4) specifically, which suggests that the fact that a non-citizen commenced offending soon after arrival cannot be taken into account in relation to any factor considered by the decision-maker. As his Honour correctly observed (at [55]):

… 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.

His Honour was entirely correct and, importantly, the appellant did not suggest otherwise. It is within the decisional freedom of the decision-maker under s 501CA(4) to regard a non-citizen’s offending soon after arrival as a weighty consideration which diminishes the impact of any and all other factors. For instance, if a non-citizen commenced engaging in serious organised crime soon after arrival in Australia, a decision-maker might view that as negating the weight of any ties that person has to persons in Australia or social institutions. Similarly, a decision-maker would be entitled to regard it as minimising any weight which might be accorded to any positive contribution which the non-citizen had made to the community or the impact on the non-citizen’s family were the non-citizen to be deported.

34    The first respondent also refers to the notation in cl 14.2(1) that the decision-maker is directed to the principles at cl 6.3 of the Direction and in particular cl 6.3(3) (seriousness of offending) and cl 6.3(4) (risk of re-offending).

35    The first respondent submits that, the Tribunal did not err in concluding that the applicant’s offending and risk of re-offending were relevant to how much weight to afford to the consideration of the strength, nature and duration of the applicant’s ties to Australia.

36    The central point of the applicant’s submissions in relation to ground one is that in its conclusion, the Tribunal engaged in the weighing exercise for a second time and so double-counted.

37    I do not accept that submission. First, it is apparent from the text of cl 14.2 of the Direction, and the Full Court’s observations in BOE21 (noting that decision dealt with a different Direction), that the applicant’s offending and risk of re-offending are matters properly able to be considered as part of the evaluation of the strength, nature and duration of the applicant’s ties.

38    Further, when the paragraphs forming part of the Tribunal’s conclusion at Reasons [189]-[200] are considered, it is apparent that between Reasons [189]-[198] the Tribunal summarises the various findings it has made in the body of its reasons. It is in that context that at Reasons [199] and [200] the Tribunal brings together those findings and records the result of its evaluative exercise.

39    The Tribunal did not “double count” its assessment of the nature and seriousness of the applicant’s offending and the risk of re-offending.

40    That being the case, no question of jurisdictional error arises.

41    The first ground of review fails.

Ground two - the parties’ submissions and consideration

42    The second ground advanced by the applicant concerns the second Primary Consideration addressed in cl 13.2 of the Direction. It concerns the Tribunal’s treatment of the best interests of minor children in Australia affected by the decision.

43    The applicant contends the Tribunal’s conclusions at Reasons [153] and [154], set out below, constitute jurisdictional error as being unreasonable, irrational and/or illogical when concluding that the best interests of minor children in Australia “[did] not weigh either for or against the revocation of the Cancellation Decision”.

44    The Tribunal concluded at [153], [154]:

The Tribunal accepts that the 15 minor children that the Applicant has identified as his nephews and nieces may experience disappointment should he be removed from Australia. The Tribunal also accepts that the Applicant’s intentions are to be a positive role model for these children in the future. However, the Applicant is not a parental figure to these minor children. Additionally, the children can remain in contact with the Applicant via telephone or other electronic means should the Applicant be removed from Australia. The Tribunal does not have sufficient evidence before it regarding the wishes of these children. At its highest, the available evidence indicates that the parents of a number of these minor children believe the children would be disappointed if the Applicant returned to New Zealand and that the children would miss the involvement that the Applicant had with them.

However, the Tribunal must consider the available evidence and submissions within the framework of the relevant principles of Direction No. 79. Considering the matters and factors set out in paragraphs 147 and 148 above, the Tribunal finds that, the only conclusion reasonably available to it is that the best interests of the Applicant’s 15 nephews and nieces do not weigh either for or against the revocation of the Cancellation Decision.

45    The reference in the Tribunal’s reasons set out above to paragraphs 147 and 148, is a reference to cls 13.2 and 13.2(4) of the Direction.

46    The applicant submits that, having accepted the 15 minor children who are the applicant’s nieces and nephews, may experience disappointment if the applicant is removed and the evidence that the applicant provides financial and practical assistance, there is nothing in the Tribunal’s findings that would serve to negate those facts. The applicant submits that the only matter identified by the Tribunal being capable of reducing the weight to be given to this consideration is that the relationship is non-parental. The applicant submits there were no matters identified by the Tribunal so as to lead to a conclusion that the consideration did not weigh at all in the applicant’s favour.

47    The applicant submits that on the Tribunal’s own findings it ought to have given weight to this primary consideration and that in failing to do so, there was a realistic possibility of a different outcome such that there is jurisdictional error.

48    The first respondent submits that the Tribunal’s conclusion to attribute no weight to this consideration was open to it in view of the limited information before it about the applicant’s nieces and nephews. The first respondent submitted that the Tribunal’s conclusion was reached with the Tribunal noting there was insufficient evidence before it regarding the wishes of the children and that the children could remain in contact with the applicant electronically. The first respondent submitted that the Tribunal had considered the evidence and submissions before it, within the framework of the relevant principles of the Direction.

49    In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131], [133] and [135] Crennan and Bell JJ considered the concept of a decision being unreasonable, irrational or illogical. Their Honours identified the test for illogicality or irrationality as being whether on the evidence, logical or rational or reasonable minds might adopt different reasoning or might reach a different decision or finding on the evidence. If the reasoning process engaged in was open to the decision-maker and the decision reached was open on that process, then notwithstanding that logical or rational or reasonable minds might differ in the conclusion reached, the fact that one conclusion has been preferred over another does not mean that a decision can be said to be illogical or irrational or unreasonable. Their Honours said: at [135]

On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims …

50    The Tribunal referred to cl 13.2(1)-(3) and the factors in cl 13.2(4) of the Direction. It noted the evidence and submissions advanced by the applicant, before reaching its conclusion.

51    The Tribunal gave careful consideration to the material before it when reaching its conclusion albeit noting there was insufficient evidence before it in relation to the wishes of the children. Although it might be said in this matter that reasonable minds might differ on the weight to be attributed to the best interests of minor children in Australia affected by the decision, that is not sufficient. It cannot be said only one conclusion was open on the evidence or that the conclusion was not open on the evidence or that the process of reasoning adopted by the Tribunal in relation to the second Primary Consideration was such that the decision was illogical or irrational or unreasonable.

52    That being the case, no question of jurisdictional error arises.

53    The second ground of review fails.

Conclusion

54    It is for the reasons which I have set out that the application is dismissed.

55    The applicant is to pay the first respondent’s costs of the application.

Associate:

Dated:    28 March 2023