Federal Court of Australia

Adefarakan v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 409

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the second respondent made on 20 November 2023 be set aside.

2.    The applicant’s application for review by the second respondent be redetermined according to law, with the second respondent being differently constituted.

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

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an application for judicial review of the decision of the second respondent, the Administrative Appeals Tribunal. The decision was made on 20 November 2023, and written reasons were published on 20 December 2023. The Tribunal affirmed a decision by a delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, not to revoke the mandatory cancellation of the class BS Subclass 801 Partner visa held by the applicant, Mr Adebayo Ademola Adefarakan.

2    For the reasons that follow, the judicial review application must succeed on one of the two grounds advanced. As a result, the Tribunal’s decision must be set aside, and Mr Adefarakan’s merits review application must be reheard by the Tribunal according to law. The Tribunal must be differently constituted by reason of a need for Mr Adefarakan’s merits review application to be considered afresh.

Background

3    Mr Adefarakan was born in March 1991 in Lagos, Nigeria. He first arrived in Australia in 2014 on a student visa. In 2016, he had a daughter with his former partner. Also in 2016, he applied for a temporary partner visa (Class UK subclass 820) with the support of his then-partner. That visa was granted on 24 March 2017. On 6 May 2019, he obtained permanent residence through the grant of the partner visa (Class UK subclass 801).

4    On 13 December 2022, Mr Adefarakan was convicted of two counts of common assault and one count of contravening a prohibition/restriction in an apprehended domestic violence order. He was sentenced to a 12-month aggregate term of imprisonment, backdated to when he went into custody on 30 August 2022, with a non-parole period of 4 months (expiring on 29 December 2022). A community corrections order for an earlier offence of assault occasioning actual bodily harm was also revoked by reason of breaching it by reoffending, and instead a sentence of imprisonment imposed, forming part of the aggregate sentence. He was released on parole on 29 December 2022.

Visa cancellation and non-revocation of that cancellation

5    On 22 December 2022, a week before Mr Adefarakan’s release on parole, his visa was cancelled by the Minister as mandated by s 501(3A) of the Migration Act 1958 (Cth), by reason of the applicant having a “substantial criminal record” as defined by s 501(6)(a) when read with s 501(7)(c), namely because he had been sentenced to imprisonment for 12 months or more.

6    As chance would have it, also on 22 December 2022, the Full Court of this Court handed down Pearson v Minister for Home Affairs [2022] FCAFC 203; 295 FCR 177. Pearson held that an aggregate sentence, being a single sentence imposed for multiple offences, cannot be relied upon when assessing whether a person has a substantial criminal record as defined by s 501(7)(c). The Full Court’s decision had the effect of invalidating the decision to cancel Mr Adefarakan’s visa because the 12-month threshold for a substantial criminal record was achieved by the aggregation of shorter sentences. The Tribunal recorded that Mr Adefarakan was released from immigration detention in December 2022: AAT[11].

7    On 19 January 2023, Mr Adefarakan requested the revocation of the mandatory visa cancellation decision. On 17 February 2023, amendments to s 501 of the Migration Act by the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) took effect, statutorily overturning the effect of the Full Court’s finding in Pearson and retrospectively validating the original visa cancellation decision. Mr Adefarakan received a notification of this also on 17 February 2023. On 10 March 2023, he surrendered himself to NSW police at the request of the Australian Border Force.

8    On 14 March 2023, following an appeal to the District Court of New South Wales, Mr Adefarakan’s sentence was reduced to an aggregate term of imprisonment of 9 months, with the same non-parole period of 4 months (also expiring on 29 December 2022). It is clear that the Tribunal was well aware that Mr Adefarakan was in the community between late December 2022 and when he went back into immigration detention on 10 March 2023, and during that time attended counselling sessions with a psychologist: AAT[11], [49] (chronology entries for 28 January 2023 and 10 March 2023).

9    The reduction in Mr Adefarakan’s aggregate sentence from 12 months to 9 months on 14 March 2023 meant he no longer held a “substantial criminal record” within the meaning of s 501(7)(c) for the purposes of s 501(6)(a). However, on 24 August 2023, a delegate of the Minister affirmed the mandatory visa revocation decision on the alternative basis that Mr Adefarakan failed the character test under s 501(6)(d)(ii), because of a finding that there was a risk that he would “harass, molest, intimidate or stalk another person in Australia”. That finding of not passing the character test was challenged before the Tribunal and in the first ground of review in this application for judicial review.

10    Before the Tribunal, Mr Adefarakan conceded that he had a serious criminal history, having assaulted three former partners in 2017, 2020 and 2022, constituting family violence. The Tribunal deemed his offending as very serious (AAT[40(b)]), the circumstances of that offending being considered in some detail. Despite those concessions, he submitted that there was minimal risk of him re-offending again due to progress made in his rehabilitation efforts, relevant to the finding of risk under s 501(6)(d)(ii): AAT[40(g)]. Further and alternatively, he contended that there was “another reason” for his visa cancellation to be revoked: s 501CA(4)(b)(ii), Migration Act. Numerous reasons were relied upon, all of which failed before the Tribunal. The reason that continues to be relied upon, which was central to his case before the Tribunal, also relates to his efforts towards rehabilitation. This in turn went to the primary consideration of the risk posed to the Australian community from criminal or other serious conduct. None of the other reasons advanced need to be considered.

11    The Tribunal hearing took place by video link on 31 October and 1 November 2023, with Mr Adefarakan being legally represented and providing a statement of facts, issues and contentions (SFIC). As noted above, the Tribunal decided to affirm the delegate’s decision not to revoke the mandatory visa cancellation decision by way of a short-form decision made on 20 November 2023, with reasons being published a month later on 20 December 2023.

The grounds of review in this Court

12    Mr Adefarakan advances two grounds by which he asserts that the Tribunal’s decision was infected by jurisdictional error, being:

(a)    a failure to consider relevant facts or materials on the topic of rehabilitation, going to the question of whether he passed the character test for the purpose of revocation of the mandatory visa cancellation; and

(b)    illogicality or legal unreasonableness in the differential application of evidence of rehabilitation in relation to reoffending and in relation to the impediments he faced in the event of being made to return to Nigeria, going to “another reason” for revocation of the mandatory visa cancellation.

Failure to consider relevant facts or materials going to the character test reason for revocation

13    By ground one, Mr Adefarakan contends that the Tribunal failed to complete the exercise of its jurisdiction by ignoring, overlooking or misunderstanding relevant facts or materials before it, relying upon Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17; 275 CLR 582 at [27]. Specifically, he relies upon the fact that the Tribunal, in considering the risk of harassment, molestation, stalking or intimidation that he posed, was obliged by [8.1.2(2)(b)(ii)] of Ministerial Direction no. 99 (Direction 99) to consider rehabilitation achieved by him by the time of the revocation decision, giving particular weight to the extent to which this took place in the community. He contends that the Tribunal failed to do so as it did not consider that, during his time in the community between 29 December 2022 and 10 March 2023, and as raised in his SFIC at [13], [41], [42] and [47]:

(a)    he did not re-offend or “harass, molest, intimidate or stalk”;

(b)    he continued attendance upon a psychologist four times, in particular during the period in which his visa cancellation had been rendered invalid by the Pearson decision, such that this attendance was solely for rehabilitation;

(c)    he was helped with rehabilitation by the Wayside Chapel in Kings Cross, Sydney; and

(d)    he voluntarily surrendered himself to NSW police to be taken back into immigration detention in a law-abiding manner (at the request of the Australian Border Force).

14    Mr Adefarakan relies upon the Tribunal’s reasons at AAT[54] and [58] to demonstrate that these rehabilitation considerations were overlooked, especially by reason of the references to his rehabilitation efforts not being tested:

[54]    With the exception of his counselling sessions with his psychologist at the beginning of 2023, Mr Adefarakan’s rehabilitation efforts have not been tested either in a relationship or in the community.

[58]    Overall, the risk management or mitigation factors presented by his rehabilitation efforts and his personal relationships are either untested or have proved insufficient in the past to prevent the risk that he will harass, molest, intimidate or stalk another person in Australia.

15    The problem Mr Adefarakan identifies is that AAT[54] and [58], read fairly and literally, and to the extent possible, beneficially (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272), clearly indicate that the Tribunal formed the view that the only rehabilitation efforts he made that were able to be tested in the community was attending counselling sessions with a psychologist. Mr Adefarakan contends that the Tribunal had no regard to the three other aspects of his conduct that he relied upon as going to rehabilitation being able to be tested in the community, summarised above at [13].

16    Of those four aspects relied upon as to rehabilitation, the only one of present significance is that at [13(c)] above, namely being helped with rehabilitation by the Wayside Chapel in Kings Cross. To succeed on this ground, Mr Adefarakan must succeed on this aspect, as he is unlikely to succeed on the others advanced. That is because:

(a)    in relation to the point summarised at [13(a)] above, a short period of non-reoffending of itself begs the question of the risk of reoffending, rather than answering it, and does not of itself go directly to efforts at rehabilitation in the community;

(b)    in relation to the point summarised at [13(b)] above, while he ultimately accepted that the fact of seeing a psychologist in the community was expressly taken into account, the context relied upon of seeing that psychologist after his visa was reinstated and before he was returned to immigration detention, so as not to be merely a reactive response to visa cancellation as the Minister contended, was not, as he contended, overlooked, but expressly taken into account at AAT[40(g)];

(c)    in relation to the point summarised at [13(d)] above, the evidence before the Tribunal indicated no more than that he complied with a requirement to surrender himself back into immigration detention, which was not conduct directed to rehabilitation in the community per se.

17    The evidence going to the point summarised at [13(a)] above can best be understood by reproducing a letter that was before the Tribunal dated 20 February 2023 from the Wayside Chapel’s Pathways Coordinator – Specialised Services, Ms Georjia Newhouse:

Re: Letter of Support

Name: Adebayo Ademola [Adef]arakan D.O.B: [redacted]

To whom it may concern,

I am writing in my capacity as Pathways Coordinator – Specialised Services at The Wayside Chapel in support of Adebayo Ademola [Adef]arakan, preferred name ‘Prince’.

The Wayside Chapel has been providing social and community services to members of the Kings Cross and broader Sydney community since 1964. The Wayside Chapel's Community Services Centre provides holistic care, love and support to those at risk or experiencing homelessness and social isolation. It also provides information, crisis counselling, referrals and advocacy to those needing further support with presenting issues including homelessness, mental health and alcohol and other drugs. The Pathways Program supports people across all programs at Wayside that require the support to get back on their feet by supporting [them] to find meaningful vocation to enrich their life.

I have been working alongside Prince in the Pathways Program for the past few months. Prince was referred to the program to receive support in finding meaningful vocation to enrich his life. Within this time, Prince has demonstrated professionalism, reliability and respect in all the scheduled employment support meetings. Prince is a motivated individual, who is determined to establish himself as a professional and develop a sustainable career, which he has communicated proudly is to provide for his daughter and support her wellbeing. Prince has demonstrated commitment to his own wellbeing and has been actively engaged on a weekly basis with a psychologist, providing him with holistic support for his mental health and general wellbeing.

Within the time that I have known Prince, he has consistently demonstrated respect, determination, motivation and resilience in wanting to rehabilitate and establish himself as the best person he can be, for his daughter, his community and for himself. I look forward to continuing to support Prince whilst he requires employment support and excited to be kept up to date on the incredible progress he is making in his rehabilitation.

18    The above letter, if considered by the Tribunal, could readily have been understood as describing not just efforts at rehabilitation in the community, but also as evidence of those efforts having been tested and found to have been successful. If considered in that way by the Tribunal, the letter could have contradicted the conclusions reached at AAT[54] and [58] as to an absence of testing of Mr Adefarakan’s efforts of rehabilitation in the community. Yet not only is the letter not referred to, but nowhere in the Tribunal’s reasons is the Wayside Chapel mentioned at all. That is despite reference being made to it in the delegate’s reasons for non-revocation at [60] and Mr Adefarakan’s SFIC at [42], the latter of which states:

Upon release from Detention on the 29 December 202[2] the Applicant sought the assistance of the Wayside Chapel in Kings Cross. A letter of support dated 20 February 2023 is provided at [GD156]. Ms Newhouse writes:

‘I have been working alongside Prince in the Pathways Program for the past few months. Prince was referred to the program to receive support in finding meaning[ful] vocation to enrich his life. Within this time, Prince has demonstrated professionalism, reliability, and respect in all the scheduled employment support meetings. Prince is a motivated individual who has determined to establish himself as a professional and develop a sustainable carer, which he has communicated proudly is to provide for his daughter and support her well-being.’

‘Prince has demonstrated commitment to his own wellbeing and has been actively engaged on a weekly basis with psychologist’.

19    It may be that the Tribunal was led astray by an incompleteness in the Minister’s SFIC at [36], which contended that there was insufficient evidence of meaningful rehabilitation, referring to aspects of what had taken place, but omitting any reference to the Wayside Chapel letter. That paragraph also incorrectly, or at least inaccurately, characterised all such efforts at rehabilitation by Mr Adefarakan as reactive and in response to his visa cancellation. At least some of those efforts were made in the period when his visa had been reinstated as a consequence of Pearson and he had been released. This included the period before he was informed of the legislation to reverse the effect of Pearson and before he was told he had to surrender himself to resume immigration detention.

20    I am satisfied that the Tribunal overlooked probative material expressly relied upon by Mr Adefarakan on the topic of rehabilitation efforts in the community, going directly to the character test for the purposes of the revocation of a mandatory visa cancellation, as required to be considered by [8.1.2(2)(b)(ii)] of Direction 99. Counsel for the Minister very properly conceded that if I reached this conclusion, there was no basis for concluding this was not a material error, and would therefore be a jurisdictional error. It follows that the first ground of review succeeds, and the Tribunal’s decision must be set aside on that basis alone.

Illogicality or legal unreasonableness going to “another reason” for revocation

21    The second ground of review contends that the Tribunal’s reasoning was illogical or legally unreasonable. Mr Adefarakan contends that the Tribunal regarded evidence as to his rehabilitation sceptically in its inquiry as to the risk that he would harass, molest, stalk or intimidate going to whether he passed the character test for the purposes of revocation of his visa cancellation. However, when the same evidence was considered in the context of examining whether there was “another reason” to revoke the delegate’s decision, specifically, the extent of impediments he would face if he were removed to his home country, as required by [9.2(1)] of Direction 99, it was accepted uncritically. A contrast is drawn by Mr Adefarakan between the Tribunal’s treatment of those two topics at AAT[58], going to the character test reason for revocation (reproduced again for convenience and ease of reference), and AAT[238], going to “another reason” for revocation:

[58]    Overall, the risk management or mitigation factors presented by his rehabilitation efforts and his personal relationships are either untested or have proved insufficient in the past to prevent the risk that he will harass, molest, intimidate or stalk another person in Australia.

[238]    Balanced against this risk are the protective factors he has developed through the rehabilitative course he has undertaken in relation to his drug use – his insight into his behavioural issues, his acceptance of this, as well as the lessons from the rehabilitation and psychological therapy he has subsequently experienced. Mr Adefarakan now has tools at his disposal to manage this risk if it crystallises if he is returned to Nigeria.

22    Mr Adefarakan submits that it is illogical for the Tribunal to have differing views on the effectiveness and sincerity of his rehabilitation efforts when it comes to the risk that he poses to others in the Australian community, and when it comes to the risks posed to him if he is forced to return to Nigeria. His effective reasoning is that the Tribunal was not logically or reasonably (in the legal sense) entitled both to read those efforts down when it came to the risk of him engaging in adverse behaviour in Australia, but reading those same efforts up when it came to him meeting the risks to him if returned to Nigeria.

23    I am unable to accept that there was anything wrong with the Tribunal having regard to material going to his efforts at rehabilitation in a different way when it was being deployed for a significantly different purpose. The Tribunal regarded Mr Adefarakan’s efforts at rehabilitation as being both inadequate to reduce sufficiently the risk of stalking, harassing, molesting or intimidating another person in Australia (the aspect of its findings addressed by the first ground of review), but sufficient, in the context of other findings, to bolster his resilience in dealing with the impediments he would face if he were forced to return to Nigeria. I see nothing illogical or legally unreasonable in the Tribunal simultaneously reasoning that his rehabilitation efforts did not go far enough to reduce the risk that he posed to others, while at the same time giving him a better capacity to deal with the challenges he would face if he were to return to Nigeria. As the foundational error he relies upon has not been made out, this ground of review must fail.

Conclusion

24    As the first review ground has succeeded, the decision of the Tribunal must be set aside. Mr Adefarakan’s merits review application must be determined afresh. The prior Tribunal member made extensive findings about him, such that it would be impossible to avoid an impression of pre-judgment if the merits review application were not heard afresh by a different Tribunal member. The Minister must pay Mr Adefarakan’s costs.

Associate:

Dated:    23 April 2024