Federal Court of Australia

Kim v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 294

ORDERS

THE COURT ORDERS THAT:

1.    The 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

JACKMAN J:

Introduction

1    This is an application seeking judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) dated 12 October 2023. The Tribunal affirmed a decision of the delegate of the first respondent (Minister) made on 20 July 2023 not to revoke the cancellation of the applicant’s Partner (Residence) (Class BS) (subclass 801) visa (partner visa) (Visa), pursuant to subs 501CA(4) of the Migration Act 1958 (Cth) (Act). I note that the application for judicial review was filed when the applicant was represented by solicitors and counsel, although the applicant was not represented at the hearing before me.

2    The applicant is a 40 year old male citizen of the Republic of Korea who arrived in Australia in 2012 on a working holiday visa. In October 2016, he was granted the Visa. On 11 April 2022, the applicant was sentenced to an aggregate term of imprisonment of 20 months for the following offences:

(a)    contravene prohibition/restriction in AVO (domestic);

(b)    common assault (DV) – T2; and

(c)    assault occasioning actual bodily harm (DV) – T2.

On 23 June 2022, the applicant’s sentences were reduced on appeal to an aggregate term of imprisonment of one year and four months with a non-parole period of seven months.

3    On 26 April 2022, the Visa was cancelled under sub s 501(3A) of the Act because he had a “substantial criminal record” on the basis of having been sentenced to a term of imprisonment of 12 months or more.

4    On 19 July 2023, a delegate of the Minister decided not to revoke the cancellation decision. That decision was made under s 501CA(4) of the Act, and was as follows:

Mr KIM has made representations, in accordance with the invitation given to him under s 501CA(3), about revocation of the cancellation decision. I am not satisfied that Mr KIM passes the character test (as defined by s 501). Nor am I satisfied that there is another reason why the cancellation decision should be revoked. Accordingly, the power in s 501CA(4) is not enlivened and Mr KIM’s Class BS Subclass 801 Partner (Residence) visa remains cancelled. My reasons are set out in the attached Statement of Reasons.

On 31 July 2023, the applicant applied to the Tribunal for a review of that decision.

The Tribunal Decision

5    The Tribunal referred at [12] to s 501CA(4) of the Act conferring on the Minister “the discretion” to revoke the mandatory visa cancellation decision under s 501(3A), and then at [13] quoted the terms of s 501CA(4) as providing:

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 test (as defined by section 501); or

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

6    The Tribunal then referred to the terms of Direction No 99 — visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). It was not in dispute that the applicant did not meet the character test, having been sentenced to an aggregate term of one year and four months imprisonment: [24]. The Tribunal then referred to the issue as being “whether the cancellation of the visa should be revoked”: [25]. The Tribunal said the following at [26]:

The purpose of the Direction is to guide decision-makers exercising powers under the Act. Delegates and the Tribunal must generally follow the Minister’s Directions. However, the Direction does not dictate the way in which the discretion is to be exercised, but rather it creates a framework within which the discretion vested in the decision-maker is lawfully exercised. The Direction identifies certain principles which provide a framework within which decision-makers should approach their task. It prescribes relevant considerations which must be taken into account. It provides guidance only as to the manner in which they are to be balanced. The Direction assists decision-makers with a width of discretion that enables them to take into account different circumstances that may arise in order to reach a finding that is fair and rational in all the circumstances, taking into account crucial considerations.

The Tribunal made similar references to “discretion” in the context of the Direction at [27]–[28].

7    The Tribunal then dealt with the primary considerations under the Direction. First, the Tribunal dealt with the protection of the Australian community from criminal or other serious conduct: [29]–[69]. The Tribunal then dealt with whether the conduct engaged in constituted family violence: [70]–[77]. Next, the Tribunal dealt with the strength, nature and duration of ties to Australia: [78]–[86]. In the course of that analysis, the Tribunal stated at [83] that the applicant had developed very strong ties to Australia through his employment history as a welder and boilermaker, and stated that he held qualifications that were in short supply, noting that the occupation was on the Department’s list of occupations in demand, and that the applicant was held in very high regard by his colleagues and employers as having excellent welding skills. The Tribunal dealt with the primary consideration of the best interests of minor children in Australia (at [87]–[97]), and with the expectations of the Australian community (at [98]–[104]).

8    In terms of the other considerations referred to non-exhaustively in the Direction, the Tribunal took into account the legal consequences of the decision (at [105]–[117]), the impact on victims (at [118]–[125]), and the impact on Australian business interests (at [126]–[129]). In dealing with the impact on Australian business interests, the Tribunal said the following:

126.    At paragraph 9.4 of the Direction, it is noted that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

127.    In post-hearing submissions, it was contended that the Applicant has developed very strong ties to Australia through his employment history. He is a Welder/Boiler Maker. He has had a very steady employment during the last 11 years of life in Australia. He holds qualifications that is in shortage and is on the Department’s occupations in demand list. The Applicant is held in very high regard by his colleagues and employers. The Applicant has provided 13 support letters from his colleagues, including his former manager who describes the Applicant’s welding skills as “excellent” and someone to whom he “entrusts” with all welding work.

128.    In oral evidence, the Applicant confirmed that he does not have any current offers of employment.

129.    Although the Tribunal is satisfied that the Applicant has skills in welding, the evidence does not support a conclusion that a non-revocation decision would significantly compromise the ‘delivery of a major project, or delivery of an important service in Australia.’ As such, the Tribunal gives this consideration limited weight in favour of revocation.

9    The Tribunal then expressed the conclusion at [133] that three of the primary considerations weighed strongly in favour of non-revocation, namely the protection of the Australian community from criminal or other serious conduct, whether the conduct engaged in constituted family violence, and the expectations of the Australian community. The Tribunal concluded that two of the primary considerations weighed slightly in favour of revocation, namely the strength, nature and duration of ties to Australia and the best interests of minor children in Australia: [133]. In addition, two of the other considerations were said to weigh slightly in favour of revocation, namely the extent of impediments if removed and the impact on Australian business interests: [133]. The Tribunal was satisfied that the three primary considerations which weighed strongly in favour of non-revocation significantly outweighed all other considerations: [134]. The Tribunal said that it was satisfied that the correct and preferable decision was not to revoke the cancellation of the Visa: [135]. Accordingly, the Tribunal affirmed the decision under review: [136].

Ground 1

10    Ground 1 contends that the Tribunal did not squarely address the submissions relating to labour shortage made by the applicant in his closing written submissions at [63]–[65], and contends that those submissions went beyond the considerations reflected in para 9.4 of the Direction and were not considered. The applicant said the following in those submissions:

63.    Mr Kim is not currently employed due to his incarceration and detention. His removal from Australia will not have any impact on Australia’s business interests nor significantly compromise the delivery of a major project or delivery of an important service in Australia. However, we note that Australia is currently suffering from a severe labour shortage of welders that the applicant will help fill upon his release from detention.

64.    The labour shortage in the welding industry is a key government priority in the present, which is reflected by its presence on the Medium- and Long-Term Strategic Skills List (MLTSSL) and on the Western Australian state nomination occupation list.

65.    We submit that Mr Kim’s decade and a half of experience in a skilled trade (i.e. welding) should hold further weight due to the fact that 30 [per cent] of Australia’s existing welding workforce is over 45 years old and nearing the age for retirement. The rapidly aging workforce is, furthermore, unable to be ameliorated by the existing apprentices, as the younger generation becomes increasingly unwilling to enter the industry. Mr Kim is an important and indispensable asset to bridge the gap between the previous and future generations of welders.

11    I have referred above to the way in which the Tribunal took into account the applicant’s skills and experience as a welder, being an occupation which is in demand and suffering from a shortage of supply, in terms of the primary consideration as to the strength, nature and duration of ties to Australia (at [83]), and also in relation to the other consideration of the impact on Australian business interests (at [126]–[129]). These were matters which were said to weigh slightly in favour of revocation: [133].

12    There is no error in this approach. As the Minister submits, and I accept, the Tribunal did not exclude weight from being given to this factor, but merely limited the weight which was appropriate to be given. The present case may be distinguished from circumstances where the decision-maker erred by excluding any weight from being given to this consideration altogether because the applicant could not link his or her future employment to a major project or an important service: see Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 at [67] (Rangiah J).

13    Further, it was not necessary for the Tribunal to refer to every contention made by the applicant in its written reasons. While an inference that the Tribunal has failed to consider an issue may be drawn from its failure to deal expressly with that issue in its reasons, that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point; it may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] (French, Sackville and Hely JJ). In the present case, the limited weight given by the Tribunal to the applicant’s benefit as a welder in a needed trade indicated that the Tribunal had indeed considered the issue. To the extent that the Tribunal did not expressly refer to every detail in the applicant’s written submissions, that indicated either that those matters were subsumed in findings of greater generality, or that there was a factual premise upon which the submissions rested which had been rejected. I also bear in mind that, while assertions about a course of future events may be received, the Minister may simply not be persuaded that such assertions can constitute “another reason” for revocation, and such a conclusion does not require the Minister to make any factual findings: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 at [28] (Keane, Gordon, Edelman, Steward and Gleeson JJ).

14    Accordingly, Ground 1 is not established.

Ground 2

15    Ground 2 contends that the Tribunal acted on a misunderstanding of the law by incorrectly referring to subpara 501CA(4)(b)(ii) of the Act as involving an exercise of “discretion”, relying on Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125; (2022) 295 FCR 315 at [51]–[52].

16    Au was a case in which the Tribunal did not address the question of whether, on the material, there was “another reason for revocation”, but merely asked itself whether, as a matter of discretion, the cancellation decision should be revoked: [42]–[43], [51]–[52] (Derrington J, with whom Perry J agreed), [153]–[155] (O’Sullivan J). The Tribunal’s decision, cited as [2021] AATA 372, contained no reference at all to the terms of s 501CA(4) or to the statutory criterion as to whether there was “another reason why the original decision should be revoked”: see the undisturbed finding of Cheeseman J at first instance in Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1240 at [21].

17    By contrast, the mere use of the word “discretion” in assessing whether there is “another reason why the original decision should be revoked” does not give rise to error in circumstances where the Tribunal’s reasons indicate that the Tribunal was asking itself whether there was “another reason” and was directing itself to the terms of the Direction in doing so: QYFM v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FCAFC 195 at [53]–[59] (Katzmann, O’Callaghan and McEvoy JJ); Pewhairangi v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1322 at [41]–[47] (Markovic J); JSMJ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1466 at [38]–[42] (Perry J).

18    In the present case, the Tribunal did direct itself to the correct statutory test. The Tribunal quoted the language of s 501CA(4) as stating the relevant criteria at [13], and concluded by affirming the decision under review (at [136]) which expressly stated that the delegate of the Minister was not satisfied that there is “another reason why the cancellation decision should be revoked”. Accordingly, the word “discretion” was used by the Tribunal in the present case as meaning no more than that the decision as to whether there was “another reason” involved an evaluative assessment, and one to be approached by weighing the various considerations referred to in the Direction. Read fairly in the context of the decision as a whole, the Tribunal did not use the word “discretion” as referring to a wider or more flexible discretion than that. I also bear in mind the principle that the reasons for the decision under review are not to be construed 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 (Brennan CJ, Toohey, McHugh and Gummow JJ).

19    Accordingly, Ground 2 is also not established.

Conclusion

20    The application for judicial review should be dismissed with costs.

Associate:

Dated:    26 March 2024