Federal Court of Australia

Afamiliona v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1100

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application dated 25 August 2023 be dismissed.

2.    The applicant pay the respondents’ costs.

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

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

JACKMAN J:

Introduction

1    This is an application for an extension of time pursuant to s 477A of the Migration Act 1958 (Cth) (the Act) to seek review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 25 January 2023. The Tribunal affirmed the decision of the first respondent (the Minister) refusing to revoke the cancellation of the applicant’s Special Category (Temporary) (Class TY, Subclass 444) visa (the Visa) under s 501CA(4) of the Act. I have granted leave to the applicant to amend the originating application in the form served on 25 August 2023.

2    The time for seeking judicial review under s 477A(1) of the Act was 35 days from the date of the decision and thus ended 1 March 2023 (being 35 days after 25 January 2023). However, the applicant did not have the benefit of the Tribunal’s reasons until 10 February 2023. The application was filed on 17 April 2023, and so the relevant or operative delay was one month from 17 March 2023 (being 35 days after 10 February 2023).

3    There is no significant prejudice to the respondent by the grant of an extension of time, but there would be very substantial consequences for the applicant if time were not to be extended. There is an explanation for the delay in that the applicant is in detention and his daughter was awaiting the Tribunal’s written reasons for its decision while also trying to obtain legal representation. In my view, the explanation is acceptable. The question in deciding whether to grant an extension of time thus turns on whether the applicant’s case for judicial review has sufficient merit to justify an extension.

Background facts and the Tribunal’s decision

4    The applicant was born in Samoa on 11 February 1967 and later became a citizen of New Zealand. The applicant was convicted of a number of driving offences in New Zealand which he failed to declare to the Australian authorities. In 2003, the applicant arrived in Australia from New Zealand and settled here permanently a few years thereafter. Since 2011, the applicant has been convicted of offences in Australia on six occasions. On 15 March 2011, he was convicted of common assault (domestic violence) against his five-year-old daughter. On 22 June 2011, he was convicted of low-range drink driving, having consumed substantial amounts of alcohol the previous evening. On 19 February 2013, the applicant was convicted of a number of offences related to the contravention of an apprehended violence order, which included damage to property in the presence of his wife and 15-year-old daughter. None of those offences attracted custodial sentences. However, on 21 September 2017, the applicant was convicted of causing grievous bodily harm after attacking his wife with a machete. He was sentenced to nine years imprisonment with a six year non-parole period.

5    On 26 May 2020, the Visa was the subject of mandatory cancellation under s 501(3A) of the Act. On 2 November 2022, a delegate of the Minister refused to revoke the cancellation. On 25 January 2023, the Tribunal affirmed the delegate’s decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) and on 10 February 2023, the Tribunal provided reasons for its decision.

6    The Tribunal found that the applicant, in light of the 2017 conviction for grievous bodily harm, did not pass the character test under s 501 of the Act. As a result, the Tribunal could not displace the cancellation of the Visa under s 501CA(4)(b)(i) of the Act. Thus, the sole issue for the Tribunal’s consideration was whether there was another reason for revoking cancellation under subpara (ii) of that provision. The Tribunal noted that the exercise of its discretion to refuse the Visa under s 501(1) of the Act was governed by Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction).

7    The Tribunal had regard to the following primary considerations set out in the Direction:

(a)    the protection of the Australian community from criminal or other serious conduct having regard to the nature and seriousness of the conduct to date and the risk to the community should reoffending occur;

(b)    whether the conduct engaged in constituted family violence, the seriousness of which fell to be assessed by reference to its frequency, any escalation, its cumulative effect where repeated and rehabilitation since the last known act of family violence;

(c)    the best interests of any minor children in Australia; and

(d)    the expectations of the Australian community, especially in relation to family violence.

8    The Tribunal also referred to “other considerations” referred to in para 9 of the Direction:

(a)    the impact on victims;

(b)    the extent of impediments if the applicant is removed to New Zealand; and

(c)    links to the Australian community.

9    As to the first of those primary considerations, the protection of the Australian community, the Tribunal formed the view that the applicant’s offending was very serious, as the applicant had been convicted of family violence against women and also against or in front of minor children and the offending had escalated and culminated in grievous bodily harm: [62]. The Tribunal considered the risk of reoffending was real. Given the seriousness of the applicant’s past offending, the risk weighed heavily against revocation: [88].

10    As to the second consideration, family violence, the Tribunal observed that the applicant had been convicted of a number of serious domestic violence offences and those offences have been both frequent and of increasing seriousness: [91]. Family violence was to be viewed very seriously and thus weighed heavily against revocation: [92].

11    As to the third consideration, the interests of minor children, the Tribunal noted the applicant’s loving relationship with his minor daughter and also noted the applicant had a minor grandson through his adult daughter. The Tribunal was satisfied that the best interests of these minor children weighed in favour of revocation: [99].

12    As to the fourth consideration, the expectations of the Australian community, the Tribunal found that the applicant’s offending was such that the Australian community would expect that the applicant no longer hold a visa. In light of case law regarding the application of community expectations under the Direction, the Tribunal concluded that the expectation would normally weigh against revocation: [104].

13    As to the factor of impact on victims, the Tribunal had regard to the forgiveness and support of the applicant’s wife and minor child and the fact that his removal would have a deleterious emotional and financial impact on both the victims of his offending: [107]. At [108], the Tribunal noted observations by Perram J in Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [26] as to the need to avoid double counting factual matters relevant to more than one consideration. The Tribunal considered that there was the potential for overlap with ties to the Australian community: [108]. The Tribunal concluded that the “strongly held views” of the applicant’s wife and minor child made this a consideration of moderate weight in favour of revocation: [109].

14    As to the factor of impediments, the Tribunal found that the applicant would not face language or cultural barriers in New Zealand, having lived there until the age of 40. The applicant was physically healthy and should be able to maintain a basic standard of living in New Zealand. In terms of mental health, the applicant would find it emotionally challenging in the absence of his very supportive wife and children, but on the other hand, the applicant had an ongoing connection with family members in New Zealand. The Tribunal found that this factor had moderate weight in favour of revocation: [114].

15    As to the final matter of links to the Australian community, the Tribunal referred to the applicant’s lengthy residence in Australia and the detriment of removal to the applicant’s wife and children, and also noted the applicant’s record of employment and payment of taxation as well as his community activities and extended family and social life. The Tribunal found that the applicant’s links to the Australian community should have moderate weight in favour of revocation: [118].

16    As to the expression of conclusions by the Tribunal, the following appeared at [119]–[121]:

The Applicant’s offending is very serious and includes escalating acts of family violence. It is to the Applicant’s credit that he has demonstrated a willingness to engage in rehabilitation and whilst there is significant evidence of the Applicant’s remorse and change, it is largely anecdotal and remains untested in the community. For the reasons set out above, the primary considerations relating to the protection of the Australian community, family violence and expectations of the Australian community weigh heavily against revocation and are afforded significant weight.

The best interests of the Applicant’s youngest child and his grandson are served by revocation of the cancellation decision and this primary consideration is afforded considerable weight. The consideration relating to the impact on victims weighs in favour of revocation, particularly in light of Mrs Afamiliona’s oral and written evidence and AF’s written evidence and this consideration is given significant weight in the Applicant’s favour. The impediments to his return to New Zealand weigh in favour of revocation but to a limited extent given he has relatives living in New Zealand who he is in contact with and his overall good health. The Applicant’s links to the Australian community are afforded significant weight in favour of revocation, particularly given his extensive family connections.

On balance I find that the weight of the considerations set out in Direction 90 weigh in favour of affirming the reviewable decision.

First ground of review

17    The applicant’s first ground of judicial review is, in effect, that the Tribunal has irrationally attributed heavy weight to each of two relevant considerations under the direction, namely the protection of the Australian community and family violence, in circumstances where those considerations had effectively merged on the facts into a single matter, and thus it is alleged the Tribunal has “double counted”. The applicant relies on Jama v Minister for Immigration, Citizenship, and Multicultural Affairs [2023] FCAFC 148. In that case, the Full Court found that the Tribunal had double counted the weight it attributed to the seriousness of offending, having applied a discount to the weight to be given to the evident strength, nature, and duration of Mr Jama’s ties to Australia by reason of the nature and seriousness of his offending, and that discount was then applied again in the Tribunal’s evaluation of the weight of the primary and other considerations: [31]–[33].

18    The applicant relies also on Trout v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 583, which Feutrill J said was a rare instance where the weight given to a relevant consideration revealed jurisdictional error: at [130]. The applicant in that case had two convictions relating to family violence, one resulting in a $400 fine and the other not attracting punishment. Feutrill J said that there was no relevant justification for the Tribunal concluding that family violence there was serious and weighed heavily against revocation: at [127]–[128]. That case, in my view, is readily distinguishable from the present case of undoubtedly very serious family violence, as I think the applicant’s counsel accepted.

19    In the present case, the Tribunal set out the applicant’s various criminal convictions, some of which entailed family or domestic violence, including in particular the conviction in 2017 for grievous bodily harm. I have referred above to the Tribunal’s conclusions at [62] with respect to that element of the primary consideration of protection of the Australian community from criminal or other serious conduct. The Tribunal also referred to the applicant’s family violence offending in the context of the risk to the Australian community should the applicant reoffend. The Tribunal’s conclusions with respect to the first primary consideration were that there was a real risk that the applicant may offend, and, given the seriousness of his past offending, the level of risk the applicant posed to the community weighed heavily against revocation.

20    The Tribunal also made findings with respect to the second primary consideration, namely, that relating to family violence. The Tribunal’s reasoning included reference to the conviction for serious domestic violence offences which the Tribunal found were both frequent and of increasing seriousness and said at [92] that the primary consideration relating to family violence weighed heavily against revocation. That was again referred to in the Tribunal’s conclusions at [119].

21    The Direction identifies considerations that must be taken into account by the decision-maker to the extent relevant in each case. The failure to comply with the express requirements of the Direction as to considerations to be brought to account would ordinarily involve jurisdictional error. The Direction does not stipulate the specific weight to be given to a particular consideration in the individual circumstances of a case except to the extent identified in para 7. In each case, there remains an overall weighing and balancing process to be undertaken, and that process is left to the individual decision-maker: Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46 at [23] (Mortimer J).

22    The matters required to be taken into account in respect of the primary and other considerations identified in the Direction can and do overlap, and, relevantly to the present case, there can be overlap between para 8.1 (protection of the Australian community), para 8.2 (family violence committed by the non-citizen), and para 8.4 (expectations of the Australian community). The terms of the Direction recognise the potential overlap between the above paragraphs. In Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870 at [23], Kennett J referred to the overlap between various primary considerations in the Direction, noting the reasoning of Halley J in XSLJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1138 at [122]–[123], where his Honour held that the matters to be taken into account in assessing mandatory and other considerations “may well overlap”, and it would be neither desirable nor permissible to exclude consideration of relevant material on the basis that it was more directly relevant to another consideration. I note that Halley J’s judgment was overturned on appeal, but not on this point.

23    The Minister submits, and I accept, that the Tribunal was not prohibited from taking into account the applicant’s family violence offending in relation to more than one relevant consideration where the Tribunal correctly perceived that offending was relevant to each consideration. Neither the Act nor the Direction prohibited the Tribunal from giving weight to the applicant’s family violence offending in the context of multiple primary considerations. The Tribunal was obliged to take into account the primary considerations in para 8 of the Direction and to consider the evidence bearing on those considerations, which is what it did. The Direction did not and could not dictate the weight that the Tribunal gave to the applicant’s family violence offending, which remained a factual question for the Tribunal to be balanced against the other relevant considerations in arriving at the ultimate state of satisfaction mandated by s 501CA(4)(b)(ii) of the Act. It was lawfully open to the Tribunal to consider and give weight to the applicant’s multiple convictions, including family violence, both to the extent this conduct informs the consideration of the protection and expectations of the Australian community and as a primary consideration in its own right.

24    As the Tribunal’s reasons make plain, the Tribunal did not adopt a mathematical or scorecard approach that involved it tallying the number of primary and other considerations for and against revocation and then arriving at a result based on that calculation. The applicant submits that almost all of the applicant’s offending was family violence and therefore it was irrational and illogical, merely because of that circumstance, for the Tribunal to weigh that violence adversely to him in relation to two primary considerations. However, consideration of the protection of the Australian community necessarily required the Tribunal to examine the nature and seriousness of the applicant’s criminal conduct to date and the likelihood of him causing harm, including the nature of that harm in the future. That could not realistically be achieved by ignoring the nature of the past conduct, and the family violence primary consideration necessitated the Tribunal’s consideration of the applicant’s family violence offending. It was neither illogical nor irrational for the Tribunal to consider the facts before it in applying the binding Direction to those facts and allocating weight to the relevant considerations which it considered appropriate.

25    The applicant submits that the mere identification of the two considerations which it submits in reality merged into one at [119] indicated the double counting engaged in by the Tribunal and indicated that the Tribunal was influenced by the fact that there were two factors in reaching its ultimate conclusion rather than one single factor. The applicant submitted that the Tribunal explicitly avoided double counting in a different context elsewhere in its reasons and failed to appreciate the broader relevance of double counting in relation to these particular matters. In my view, there is nothing in the Tribunal’s reasoning at [119]–[121] which indicated that the Tribunal did engage in any double counting or that it engaged in a mechanistic or scorecard approach in relation to the considerations which it took into account, nor, in my view, is there any indication in the Tribunal’s reasons that it was not aware of the need to avoid double counting when it arrived at its dispositive reasoning at [119]–[121]. Accordingly, in my view, there is negligible or no merit in ground 1 of the application.

Second ground of review

26    Turning then to ground 2 in the application. This is said in the amended originating application to be a jurisdictional error by the Tribunal not completing its statutory task in relation to finding another reason for revocation under s 501CA(4)(b)(ii) of the Act.

27    Particular reference is made in that ground to the Full Court’s decision in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, in which the Full Court found that the Tribunal did not complete its statutory task under s 501CA(4)(b)(ii) of the Act where, in relation to the Direction, there was no express evaluation or balancing and the Tribunal did not disclose any process of reasoning which led from the attachment of weight to each consideration as part of the first aspect of the task to the ultimate conclusion. CRNL was a case in which the reasons given by the Tribunal were described as perfunctory and formulaic at [38], and in particular:

(a)    the reasons revealed no process by which the Tribunal grappled with the competing considerations: [38];

(b)    it appeared as though the Tribunal had arrived at a conclusion as if that conclusion was made inevitable by the application of a mathematical formula: [38];

(c)    the reasons did not reveal anything which demonstrated that, in reaching its ultimate conclusion, the Tribunal brought to bear its assessment of the weight of the various other considerations: [43]; and

(d)    what the Tribunal had done was to ascribe weight to the various considerations, having considered each in isolation, and then expressed a conclusion, without demonstrating that it actually weighed the various considerations against each other and undertook a proper evaluation of whether there was indeed another reason why the cancellation should be revoked: [44].

28    The applicant submits that in the present case, the dispositive reasoning at [119]–[121] suffers from similar defects. The applicant places particular reliance on [121], but that paragraph must be read in the full context of the conclusions expressed at [119]–[121]. The applicant submits that the Tribunal has, effectively, treated the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side so as to lose sight of the ultimately evaluative nature of the statutory task, adopting the language of the Full Court in CRNL at [35]. The applicant also submits that the Tribunal did not disclose any process of reasoning which led from the attachment of weight to each consideration as part of the first aspect of the task to the ultimate conclusion, adopting the language in CRNL at [37].

29    In my view, those criticisms of the Tribunal’s reasoning are not justified. The Tribunal expressly weighed the various considerations against each other and did not adopt any formulaic or perfunctory or mechanistic reasoning. In doing so, it engaged in what was an evaluative task, exposing its reasons for the weight which it attributed to the various factors, which were then weighed in combination in reaching the Tribunal’s ultimate conclusion. It is clear from that reasoning why there is not “another reason” for revocation under s 501CA(4)(b)(ii), and, in my view, the Tribunal has discharged its statutory task in accordance with s 501CA(4).

Conclusion

30    Accordingly, in my view, there are insufficient merits in the application to justify an extension of time, and the application should be dismissed with costs. The orders of the Court, accordingly, are:

(1)    The amended originating application dated 25 August 2023 be dismissed.

(2)    The applicant pay the respondents’ costs.

Associate:

Dated:    14 September 2023