Federal Court of Australia

Ripley v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 93

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

Delivered ex-tempore, revised from transcript

JACKMAN J

1    The applicant seeks judicial review pursuant to s 476A(1)(b) of the Migration Act 1958 (Cth) (the Act) of a decision of the Administrative Appeals Tribunal (Tribunal) dated 7 September 2022. The Tribunal affirmed a decision of a delegate of the first respondent (the Minister), made pursuant to s 501CA(4) of the Act, not to revoke the cancellation of the applicant’s Special Category (Class TY) (Subclass 444) visa.

2    The applicant is a citizen of New Zealand born in July 1992. He first arrived in Australia in March 1994 and, other than a short absence between August and September 1996, has remained in Australia since then.

3    Between October 2009 and October 2020, the applicant was convicted of approximately 46 offences, including on 18 August 2020, when the applicant was convicted in the Muswellbrook local court of “contravene prohibition/restriction in AVO (Domestic)”, “Destroy or damage property (DD)”, “Assault occasioning actual bodily harm (DV) – T2”, and was sentenced to an aggregate term of 24 months’ imprisonment. That conviction and sentence were confirmed on appeal by the District Court.

4    On 22 April 2021, a delegate of the Minister cancelled the applicant’s visa pursuant to s 501(3A) of the Act. The delegate was satisfied that the applicant did not pass the character test (s 501(3A)(a)) on account of the aggregate term of 24 months’ imprisonment noted above. The delegate was also satisfied that the applicant was serving a sentence of imprisonment on a full time basis (s 501(3A)(b)).

5    On 7 June 2022, a delegate of the Minister decided not to revoke the cancellation of the applicant’s visa pursuant to s 501CA(4) of the Act. On 23 June 2023, the applicant sought review of that decision by the Tribunal. The Tribunal heard the application on 24 and 25 August 2022, and on 7 September 2022 the Tribunal affirmed the delegate’s decision. Written reasons for the Tribunal’s decision were provided on 10 October 2022.

6    The Tribunal was satisfied that the applicant did not pass the character test. It then identified the sole issue for determination as whether there was another reason why the mandatory cancellation of the applicant’s visa should be revoked pursuant to s 501CA(4). The Tribunal referred to the relevant statutory provisions (ss 501 and 501CA), and referred to Direction No 90 — visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 90), which the Tribunal was obliged to apply in making its decision. The Tribunal quoted the “principles” in para 5.2 of Direction 90 and referred to the guidance given by Direction 90 as to the weighing of each consideration. It identified the considerations under Direction 90 that it was required to take into account. The Tribunal then summarised its hearing and the evidence that had been adduced and then dealt in turn with each of the relevant considerations in Direction 90, namely the primary considerations (the protection of the Australian community, family violence, the best interests of minor children, and expectations of the Australian community) and the other considerations (relevantly the extent of the impediments if removed and the strength, nature and duration of ties to Australia).

7    The Tribunal summarised its findings and the weight it accorded each consideration, and found that on balance, the considerations weighed against revocation. Accordingly, the Tribunal affirmed the delegate’s decision.

8    The applicant’s argument is based on a representation made by the applicant to the Tribunal in his application for review of decision dated 23 June 2022. In answer to the question “Why do you say the decision is wrong?”, the applicant’s response was:

Because Australia has been my home for my entire life. I have not known New Zealand ever and have been here since two years old.

Words to substantially the same effect were used by the applicant in his oral submissions to the Tribunal.

9    The applicant accepts that the Tribunal referred expressly to that representation (as set out in the application) in the Tribunal’s reasons at [28]. The applicant submits the representation engaged the second sentence of para 5.2(4) of Direction 90, which reads as follows:

Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

10    The applicant submits that the Tribunal was duty bound in reviewing the decision to consider the applicant’s representation in the light of para 5.2(4). The applicant then submits that the representation was not considered by the Tribunal, and in particular the discussion of “expectations of the Australian community” (being the fourth primary consideration set out in Direction 90 para 8) is silent in respect of it.

11    I accept that the Tribunal as decision-maker must read, identify, understand and evaluate the representations made by the applicant and must have regard to what is said in the representations: Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 at [24] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ). However, it is wrong to say that the tribunal failed to consider the representation. In fact, the substance of the representation (that the applicant came to Australia at the age of two and has lived his life here subsequently) was referred to in various places in the Tribunal’s reasons.

12    At [3], the Tribunal referred to the applicant’s time of arrival in Australia; at [28], the Tribunal acknowledged the applicant’s claim that he arrived in Australia aged two and feels Australia is his home; at [41], the Tribunal referred to the applicant and his mother having settled in Australia in 1994 (ie, when the applicant was aged two); at [117], the Tribunal referred to the applicant saying that he “feels Australian”, having lived here since he was a small child; at [120], the Tribunal referred to the applicant having spent the vast majority of his life in Australia; at [125], the Tribunal referred to the applicant having resided in Australia since age two; at [131], the Tribunal referred to the applicant having spent almost his entire life in Australia; and at [137], the Tribunal referred to the applicant’s ties to the Australian community being numerous and significant, which is to be expected, given he has lived in Australia since he was a small child.

13    The Minister submits, and I accept, that the Tribunal’s reference to this issue at [125] is especially relevant. There, the Tribunal was considering the strength, nature and duration of the applicant’s ties to Australia. The Tribunal referred to para 9.4.1(2) of Direction 90, which requires the Tribunal to have regard to:

How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child.

14    That is the very substance of the matter the applicant now relies on in this proceeding. The Tribunal took that into account, including at [125], as it was required to. The Minister submits, and I accept, that there is simply no basis to accept the submission advanced by the applicant that the representation was not considered by the Tribunal.

15    Further, while the Tribunal did not refer expressly to the representation within the four paragraphs specifically discussing the “expectations of the Australian community” at [111] to [114], it is well established that where a matter has been taken into account in relation to one consideration, the Tribunal is not usually required to then take it into account repetitiously in the others: Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [26] (Perram J); WQRJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 736 at [78] (Derrington J). As the High Court expressed the point yesterday in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [50]:

A decision-maker’s written reasons for a decision are often structured in sequence. The sequential structure of reasons, so that each topic is dealt with under a separate heading, is not generally a sufficient reason to infer that in dealing with one matter the decision-maker has forgotten the substance of the preceding parts of the reasons or is unaware of the substance of the subsequent parts of the reasons. Nor would it be readily inferred from mere sequential structuring and dealing with each topic under its own heading that a decision-maker had quarantined the assessment of each topic from every other topic.

16    In my view, the general position expressed in that paragraph is directly applicable to the Tribunal’s reasons in the present case.

17    Further, it is clear that the Tribunal took into account the principles in para 5.2(4), which were quoted at [18] of its reasons. The Tribunal stated that it had considered those principles when reviewing the applicant’s application, a point which it reiterated at [114]. Moreover, para 5.2(4) is not a mandatory relevant consideration, but merely a guiding principle: NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1077 at [27]–[30] (Bromwich J); Fuller v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 65 at [38] (Jackson J); HDWH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1659 at [12]–[13] (Logan J).

18    Further, para 5.2(4) relevantly states only that Australia “may” afford a higher level of tolerance to a person in certain circumstances, not that Australia “will” do so, or that the Tribunal must proceed on the basis that Australia will do so.

19    Accordingly, the application should be dismissed with costs.

Associate:

Dated:    15 February 2024