Federal Court of Australia

WQKK v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 535

ORDERS

THE COURT ORDERS THAT:

1.    The time for filing of the originating application be extended to 6 February 2023.

2.    A writ of certiorari issue to the second respondent to quash its decision made on 22 November 2022, affirming the decision not to revoke the cancellation of the visa held by the applicant.

3.    The first respondent pay the applicant’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNETT J

introduction

1    The applicant is a stateless Faili Kurd who arrived in Australia from Iran in 2010, claiming to fear persecution in that country. His claims were accepted and in 2012 he was granted a protection visa.

2    He has accumulated an extensive criminal history, beginning in 2017. His offending has predominantly been of two kinds: traffic offences involving unlicensed driving, and a large number of offences involving the use of fraud to obtain prescription drugs (mainly if not exclusively painkillers).

3    In March 2019 the applicant’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Act), which requires cancellation of a visa when the holder fails the character test in s 501(6) and is serving a sentence of full time imprisonment. A delegate of the Minister declined to revoke that cancellation under s 501CA(4) of the Act but the Administrative Appeals Tribunal (Tribunal) set aside that decision and revoked the cancellation.

4    On 1 February 2021 the applicant was again sentenced to a term of imprisonment, as a result of which, on 16 April 2021, his visa was cancelled under s 501(3A). A delegate of the Minister decided on 29 August 2022 to refuse to revoke the cancellation. On the same day the applicant lodged an application for review of that decision in the Tribunal.

5    The Tribunal had before it the delegate’s decision, statement of reasons and attachments, a bundle of further documents tendered for the Minister and three volumes of documents tendered for the applicant. Also before the Tribunal were two further statutory declarations by the applicant, a statement by a lay witness, two reports from a psychologist and two reports from a counsellor. The hearing before the Tribunal occurred on 8 and 9 November 2022 and the Tribunal handed down its decision on 21 November 2022, indicating that it would give reasons later. The decision, in its terms, purported to affirm the cancellation decision on 16 April 2021. On 22 November 2022, pursuant to s 43AA of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), the Tribunal directed the Registrar to alter the text of the 21 November 2022 decision to identify the decision that was being affirmed as the decision made on 29 August 2022 to “cancel” the applicant’s visa. (I regard this “direction” as comprising the Tribunal’s decision. The decision published the previous day purported to affirm a decision that was not the subject of review.)

6    The Tribunal published its reasons on 31 January 2023.

7    The applicant filed an application for an extension of time and a draft originating application on 6 February 2023. The originating application seeks an order quashing the decision of the Tribunal and (in effect) mandamus requiring it to determine the applicant’s review application according to law.

Extension of time

8    The Minister did not oppose the grant of an extension of time. The extension is clearly justified.

9    Until the Tribunal’s reasons were received and read, the applicant’s solicitor could not properly have given the certification required by s 486I of the Act and therefore could not have filed an application for judicial review. The reasons, as noted above, were provided on 31 January 2023. The application for extension of time and the draft originating application were filed in this Court within a week thereafter.

10    Prior to receiving the reasons, the applicant’s solicitor had not waited passively for them to appear. He approached the Tribunal by email on 22 November, 6 December and 15 December 2022 requesting an indication of when reasons would be delivered. No indication was provided. On 19 January 2023 he drew the Tribunal’s attention to s 43(2A) of the AAT Act. The delay in the provision of reasons should not work against the applicant.

The substantive application

11    A proposed amended originating application was filed on 6 April 2023. Reliance on that document was not opposed by the Minister. It advances the following grounds:

(1)    the Tribunal erred by failing to consider relevant evidence;

(2)    the Tribunal erred by misrepresenting or misconstruing the evidence of an expert witness called by the applicant; and

(3)    the Tribunal misunderstood or misapplied s 501CA(4)(b)(ii) of the Act.

12    Ground 2 was not pressed at the hearing and does not need to be considered.

13    As noted earlier, the decision under review in the Tribunal had been made under s 501CA(4) of the Act. It provides as follows:

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

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

(b)     the Minister is satisfied:

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

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

14    As is well established, the Tribunal was required to “do over again” the task of the primary decision maker (Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [134] (Kiefel J)). It was required to make its own findings of fact, based on the material before it, and to make its own assessment against the statutory criteria. That required a careful review by the Tribunal of the applicant’s representations and the evidence put forward in support of them.

15    It was not in doubt that the applicant failed the “character test”. The question for resolution by the Tribunal was therefore whether there was “another reason why the original decision should be revoked”. That criterion requires an evaluative judgment, but is so broadly expressed as to be practically indistinguishable from a discretion.

16    The Tribunal’s reasons follow the structure of Parts 8 and 9 of Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction), in light of the “principles” set out in paragraph 5.2 of that document. The Direction was issued under s 499 of the Act on 8 March 2021 and is binding on decision-makers under the Act other than the Minister. It is not necessary to summarise the reasons at length. It is sufficient to refer to the aspects of the reasoning to which the grounds of review relate.

Ground 1 – failing to consider relevant evidence.

17    As an aspect of the first “primary consideration” (protection of the Australian community) paragraph 8.1.2 of the Direction required the Tribunal to consider “the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct”. Plainly, this was at least potentially a central consideration in deciding whether there was “another reason” why the revocation of the applicant’s visa should be revoked. In considering this issue the Tribunal was required, by para 8.1.2(2)(b), to have regard to:

the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

(i)    …

(ii)    Evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence ….

18    The applicant addressed this issue before the Tribunal, in his Statement of Facts, Issues and Contentions, in the following way.

(a)    At [3(c)] he contended that he “is sufficiently rehabilitated and intends to continue engagement with trauma-focused psychological intervention”, citing a report by a psychologist on which he relied before the Tribunal.

(b)    At [71] he contended that, since the previous Tribunal decision, he had “constructively used his time in detention to focus on rehabilitation”, particularly through counselling. Reference was made to a report by his counsellor (Ms Perry), which detailed the sessions he had attended and the fact he had only missed one (which was cancelled because of a staff shortage).

(c)    At [72] he referred (citing the same report) to his willingness to continue rehabilitation.

(d)    At [73]–[75] he referred to parts of the abovementioned reports that discussed his negative feelings about his past drug use. At [76] he referred to his own evidence on the topic, contained in a statutory declaration dated 10 June 2022 (the June 2022 declaration).

(e)    At [77] he referred to three specific programs that, he said, he had complete at his own initiative. Reference was made to a second statutory declaration by the applicant in which these programs were discussed and relevant documents were annexed (the September 2022 declaration).

(f)    At [78] it was contended that the applicant had “actively attempted to secure rehabilitation that is specifically targeted towards recidivism against fraud, driving offences and drug use”, referring to a request form that was annexed to the June 2022 declaration and to the reasons for the Tribunal’s earlier decision.

(g)    Reference was made at [79] to an email sent by the applicant’s solicitors to the Department of Home Affairs on 26 May 2022, requesting specifically targeted rehabilitation of the kind mentioned at [78]. The departmental response (also dated 26 May 2022) was that such courses are not available at the detention centre where the applicant was (and remains) held. That response was in evidence.

19    The Tribunal dealt with the issue of rehabilitation in one paragraph, as follows (at [63]):

The Applicant has provided limited evidence in relation to his attempts at rehabilitation. [Footnote] He has also referred to counselling undertaken in the last quarter of 2018 in his Statutory Declaration dated 10 June 2022. He has, however, used the excuse of not engaging in further rehabilitation course due to his incarceration and detention. I am not persuaded by these excuses and am of the opinion that if he was serious about seeking help in relation to his fraud and drug relationship, as well as his traffic offending tendency he would have been more proactive about seeking help.

(The footnote at the end of the first sentence reads: “Exhibit 7, pages 14, 49 & 63.”)

20    The Tribunal went on to find that the risk of the applicant re-offending was “unacceptable” (at [64]), and to regard the protection of the community as weighing heavily against revocation (at [69]).

21    It is apparent from the paragraph set out above that the Tribunal did not regard the applicant as having achieved much by way of rehabilitation or having made a serious effort to do so. The first step in that reasoning was that the applicant had provided only “limited” evidence of his attempts at rehabilitation. The second was that the applicant’s “excuse” for not having done more – that at relevant times he was incarcerated or detained – was not persuasive.

22    At the end of the sentence in the reasons that describes the applicant’s evidence as “limited” there appears a footnote, which cites three pages of the September 2022 declaration (referred to as Exhibit 7). Each of these was the opening page of a document annexed to the declaration. The first was an “anger management workbook” which the applicant completed in June 2022. The second was a “stress management workbook” which he completed in July 2022. The third was a certificate of completion for a course called “healing affirmations” dated September 2022. The Tribunal also referred, in the same paragraph, to counselling undertaken in the last quarter of 2018 (described in the June declaration).

23    What was not referred to in this connection was:

(a)    two other courses undertaken by the applicant in detention during the latter part of 2022 (entitled “DO IT” and “Positive Choices”), material for which was in evidence (one of these courses having been mentioned in the September 2022 declaration);

(b)    two reports of Ms Perry dated 15 September and 3 November 2022, which recorded the applicant’s attendance at counselling and progress with mental health rehabilitation; and

(c)    a “traffic offender’s program” completed in October 2022, material for which was also in evidence.

24    All of this material was before the Tribunal and was noted in the Exhibit Register which was annexed to its reasons. It was submitted for the Minister that the Court should therefore not readily infer that it was overlooked. However, the Exhibit Register (which was likely compiled by an Associate) simply records what went into evidence. I am comfortably satisfied that the Tribunal did not have regard to this material in the course of considering what steps the applicant had taken towards rehabilitation.

(a)    First, the assertion that the “evidence” provided was “limited”, followed immediately by a footnote referring to specific documents, powerfully indicates that these were the documents which the Tribunal understood to comprise the “evidence”. A document that is not mentioned in that context was almost certainly not considered in that context.

(b)    Secondly, the Tribunal’s statement that the applicant had relied on the unpersuasive “excuse” of being detained in order to explain desultory attempts at rehabilitation would be quite a bizarre thing to say if it had been made following consideration of the applicant’s activities in the second half of 2022 and the reports of Dr Perry. In May of that year, the applicant (through his solicitors) had expressed a wish to engage in rehabilitation “aimed at preventing recidivism in offences involving fraud, possession of illicit narcotic substances … and traffic offences”. The response was that the contractors who managed the detention centre “do not currently offer these courses” but that assistance could be provided in registering for online courses. The evidence showed completion of five separate courses by the applicant, and ongoing attendance at counselling sessions, after that (and while the applicant remained in detention).

25    A long line of decisions in this Court holds that one of the conditions for the valid exercise of the power in s 501CA(4) to refuse to revoke a visa cancellation decision is a genuine engagement with the “representations” of the visa holder referred to in s 501CA(4)(a). That proposition remains good law following the decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; 96 ALJR 497, for the reasons explained in ECE21 v Minister for Home Affairs [2023] FCAFC 52 at [7]-[9]. In order to perform its statutory task, the Tribunal needed to identify and understand clearly articulated submissions of the applicant, including those which he made on the issue of rehabilitation. Counsel for the Minister accepted – in my view correctly – that that requirement extended also to the particular items of evidence referred to and relied upon in those submissions, at least to the extent of understanding what were the asserted facts relied on and the basis for the assertions. The applicant’s representations in relation to rehabilitation could not be properly engaged with if he relied on evidence of having completed six separate courses (plus counselling) and the Tribunal only took account of the evidence relating to three of those courses.

26    The Minister (also correctly) did not suggest that this failure was not material. If (as must be assumed) the Tribunal was approaching the review with an open mind, a full appreciation of the steps the applicant had taken to achieve rehabilitation could realistically have affected its weighing of the competing factors and led to a different outcome (cf MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [38]-[39]).

Ground 3 – misapplication of s 501CA(4)(b)(ii)

27    What I have said above is sufficient to require the Tribunal’s decision to be set aside. However, it is appropriate also to consider Ground 3.

28     The Tribunal found that a decision not to revoke the cancellation of the applicant’s visa would likely lead to him remaining in immigration detention for a prolonged period, if not indefinitely. This was on the basis that, having successfully invoked Australia’s non-refoulement obligations, he could not be removed to Iran (unless one of the situations in s 197C came to exist); was unlikely to be accepted by a safe third country; and there were strict limits in the Act on the other visas for which he could apply and circumstances in which he could be permitted to live outside of immigration detention. The applicant further submitted that the cost of detaining him indefinitely was a factor that should be considered in deciding whether there was “another reason” why the cancellation decision should be revoked. The Tribunal’s response to this submission was as follows (at [91]):

Further, the Applicant invited me to consider the significant cost in detaining the Applicant indefinitely. With regards to this submission, I agree with the approach that was brought to my attention by the Respondent of SM O’Donovan in [Re FRLH and the Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 58 (FRLH)]. In that matter the Senior Member said:

The costs of managing Australia’s visa programs are matters for the Commonwealth government. The Minister has the tools for managing the costs of detention by utlising [sic] various statutory options such as community detention or using his non-compellable powers. Neither the terms of the Direction or the scope and purpose of the Migration Act suggests that the cost to the Australian government of a particular visa outcome is relevant to whether a visa should or should not be granted. I do not consider it appropriate, indeed it may not even be lawful, to consider the cost of removing someone from the community as a basis for favourable [sic] exercising a discretion enlivened by concerns about their character.

29    The applicant submitted that it was not open to the Tribunal simply to adopt what had been said in an earlier decision. I reject that submission. In stating her agreement with what had been said in FRLH, the Member constituting the Tribunal was doing two things. First, in so far as the passage quoted from FRLH contained propositions about the statutory scheme, she was adopting them (which leads to error only if the propositions themselves are erroneous). To the extent that the passage expressed a view about the “appropriateness” of taking into account the costs of future detention, she was concluding that that view was correct and applicable in the present case. That was a matter for judgment by the Tribunal.

30    The applicant also submitted that the passage in FRLH identified the costs of future detention as an “extraneous” consideration (to adopt the terminology of Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; 216 CLR 277 at [20] (Gleeson CJ)) for the purposes of s 501CA(4)(b)(ii) and that to do so involved a misreading of the provision. This submission is also rejected. Although the passage in FRLH suggests a leaning towards that view, I do not think it rests upon a conclusion as to statutory construction. Senior Member O’Donovan concludes that consideration of the costs of detention “may not … be lawful” (emphasis added) but “I do not consider it appropriate”. The determinative factor appears to have been a conclusion as to policy or merits.

disposition

31    The applicant should be granted an extension of time until 6 February 2023 to file an application for review of the Tribunal’s decision.

32    The Tribunal’s decision should be set aside. That order will establish that the Tribunal has not completed its review function, and it therefore remains under a statutory duty to do so. There being no evidence that the Tribunal will refuse to comply with that duty, I do not think there is a need to make any further order (cf NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 at [214] (Buchanan J) (Allsop CJ and Katzmann J agreeing at [1])).

33    No reason has been suggested why costs should not follow the event.

Associate:

Dated:    26 May 2023