Federal Court of Australia

Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 494

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to amend the originating application for review of a migration decision

2.    The amended originating application for review of a migration decision be dismissed.

3.    The applicant pay the first respondent's costs of the proceedings.

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 of a decision made by the second respondent (the Tribunal) on 17 October 2024. The Tribunal affirmed a decision of a delegate of the first respondent (the Minister) made on 15 March 2021 not to revoke the cancellation of the applicant's Class BB Subclass 155 Five Year Resident Return visa under s 501CA(4) of the Migration Act 1958 (Cth) (the Act). The decision of the Tribunal was the result of the remittal ordered by the High Court in Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13; (2024) 278 CLR 628 at [7].

2    There was no dispute in the Tribunal that the applicant did not pass the character test. The applicant's extensive criminal history included assault, violence, and physical intimidation including domestic violence and contravening prohibition restrictions or apprehended violence orders. The Tribunal was therefore required to determine if it was satisfied that there was "another reason" why the cancellation decision should be revoked under s 501CA(4)(b)(ii) of the Act.

3    In favour of the applicant and the revocation of the cancellation decision, the Tribunal considered:

(a)    the strength, nature and duration of the applicant's ties to Australia, giving this factor moderate weight;

(b)    the best interests of the applicant's two minor children, giving his minor daughter's best interests "limited weight" and his minor son's best interests "moderate weight";

(c)    the best interests of the applicant's grandson, finding that the best interests of the grandson were slightly in favour of revoking the decision and that, overall, the best interests of the children in the applicant's life weighed moderately in favour of the applicant;

(d)    the various legal consequences of the decision, giving that some weight in favour of the applicant; and

(e)    the extent of the impediments if the applicant were removed to Fiji, finding that this consideration was slightly in favour of the applicant.

4    Against the applicant, the Tribunal considered that the protection of the Australian community, the family violence engaged in, and the expectations of the community all weighed heavily against the revocation of the cancellation decision. Accordingly, the Tribunal was not satisfied there was another reason to revoke the cancellation decision. At the outset of the hearing before me today, I granted leave to the applicant to amend the originating application to add grounds 3A, 3B and 3C to the original grounds of review. Mr Lang SC, who appeared at short notice, pro bono for the applicant, accepted that the original grounds 1 to 3 have no independent operation from those new grounds. Accordingly, I will proceed to deal with the three new grounds.

Ground 3A

5    Ground 3A is as follows:

The Tribunal erred in law by failing to consider, as a matter necessary for the consideration of the protection of the Australian community, family violence and/or the expectations of the community, the ongoing risk of the applicant harming members of the Australian community if he is removed to Fiji, including having regard to the Applicant's reduced prospects of rehabilitation in Fiji as compared to Australia.

6    The applicant submits that where the impugned conduct of the applicant has the potential to harm members of the Australian community even if the applicant is removed from Australia, it is logically necessary to consider whether the removal from Australia may reduce on the one hand, or heighten on the other, the risk of that harm. In this case, the applicant submits that a significant part, and the most recent part, of the applicant's conduct involves telephone, social media or electronic communications made to a former partner, causing mental harm. The applicant also submits that the Tribunal assessed the risk of the applicant re-offending in a similar manner as high.

7    In those circumstances, the applicant submits it is necessary to consider as a relevant matter the extent to which the relevant members of the Australian community may be at a comparatively greater or lesser risk of such behaviour if the applicant is removed from Australia, and submits that that is so because harmful communications may be made to members of the Australian community from outside Australia. Accordingly, the applicant submits that it was necessary for the Tribunal to consider whether the removal of the applicant from Australia may increase the likelihood that the applicant may continue to engage in harmful communications affecting members of the Australian community, such as his former partners. The applicant submits that that consideration should be informed by findings concerning the likelihood of Mr Miller's mental deterioration in Fiji and the substantial absence of rehabilitation support, including mental health, medical and family support, in Fiji, and the link which the Tribunal drew between those matters and the likelihood of the applicant reoffending.

8    The applicant submits that the Tribunal failed to consider the risk of the applicant harming members of the Australian community if he is removed to Fiji, including having regard to the applicant's severely reduced prospects of rehabilitation in Fiji as compared to Australia, as a matter relevant to the primary consideration of the protection of the Australian community.

9    The relevant portion of the Tribunal’s Statement of Reasons may be summarised as follows. At [115], the Tribunal referred to Mr Miller having a supportive family in Australia who would continue to support him in returning to the community and in his rehabilitation, and found that this support will assist him to desist from future offending. Pausing there, the applicant accepts that that paragraph applies to both physical and mental harm.

10    At [116], the Tribunal referred to Mr Miller's substantial work history in Australia and the willingness of his previous employer in 2020 to re-employ him.

11    At [117], the Tribunal referred to Mr Miller's reintegration plan and to the welfare services in the community, a mental health team and a psychologist, and the evidence that Mr Miller plans to attend SMART Recovery, obtain psychological counselling and see his general practitioners.

12    At [118], the Tribunal referred to Mr Miller's oral evidence in which he was said to be less certain about this plan and the providers he would consult; however, the Tribunal accepted that there are resources available to him which, if utilised, will reduce his risk of re-offending. However, the Tribunal was not satisfied that those resources would reduce the risk significantly, given Mr Miller's entrenched patterns of behaviour over many years.

13    At [119], the Tribunal referred to Mr Miller's rehabilitation being in its infancy, and that he would require extensive further rehabilitation before this resulted in a reduction in the risk to the Australian community.

14    At [120], the Tribunal found there was a high likelihood Mr Miller would reoffend, and that risk to the community is in the moderate range.

15    At [121], the Tribunal said that, having regard to the nature and seriousness of Mr Miller's offending and conduct, and to the risk to the Australian community should Mr Miller commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs heavily against revoking the cancellation of the visa.

16    The Minister submits, and I accept, that the Tribunal in those passages was addressing the argument which was actually put on behalf of Mr Miller. No argument was put to the Tribunal that mental harm to members of the Australian community, such as Mr Miller's former partner, would be lessened by the applicant being in Australia rather than in Fiji. Further, no argument was put to the Tribunal that mental harm should be considered separately from physical harm in relation to this issue. The Full Federal Court in NABE v Minister for Immigration, Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [62] approved the statement of Gleeson CJ, albeit in dissent, in S395 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at [1], to the effect that while proceedings before the Tribunal are not adversarial, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process.

17    In my view, no error giving rise to a valid ground for judicial review has been demonstrated along the lines of ground 3A, having regard to the way in which the matter was argued before the Tribunal and the way in which the Tribunal dealt with that argument at [115]-[121].

Ground 3B

18    Ground 3B is as follows:

The Tribunal erred in law by failing to comply with Ministerial Direction 99, clause 8.3(4)(a)(i), which requires considerable weight to be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending in assessing the strength, nature and duration of ties to the Australian community.

19    The applicant accepts that I am bound by two decisions of the Full Federal Court to reject that ground, namely Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) 241 FCR 461 and Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCAFC 119; (2024) 305 FCR 26. In the latter case, the High Court granted special leave to appeal on 5 December 2024 and the matter was argued on 1 April 2025. The applicant submitted that I should await the judgment in that matter before the High Court before giving judgment in the present matter. I do not regard that as the appropriate course, particularly given that ground 3B is not the only ground on which the applicant relies.

20    Accordingly, as the authorities currently stand, I reject ground 3B.

Ground 3C

21    Ground 3C is as follows:

In the alternative to 3B, the Tribunal erred in law by failure to consider how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, in assessing the strength, nature and duration of ties to the Australian community in accordance with clause 8.3(2)(a) of Ministerial Direction 110.

22    The Tribunal found at [147] that Mr Miller arrived in Australia when he was 10 years old and he is now 43, and that he has spent most of his life in Australia, with some visits to Fiji. The Tribunal said that his offending commenced when he turned 18, eight years after he arrived in Australia.

23    The Tribunal then said at [148], that Mr Miller had contributed to the community and was employed full time in the 20 years between 2000 and his imprisonment and subsequent detention in 2020, and referred to his last employer, in 2020, expressing a willingness to re-employ Mr Miller as a driver. The Tribunal referred at [149] to a statement from Uncle Johnny Lewis. Mr Lewis's statement refers to him having known Mr Miller since Mr Miller went to Liverpool Boys High School from about 1995, with both of Mr Lewis's sons. At [149], the Tribunal referred to Mr Miller having assisted Mr Lewis at the Liverpool Lions Club and participating in fundraising events with TAFE raising funds for the Children's Hospital at Westmead in 2001, commenting that his employment and assistance with the Lions Club provide some weight in favour of his ties to the community.

24    The applicant submits that the relevant question is not merely a question of duration of time in Australia but also involves questions as to the strength and nature of the ties of the applicant to Australia. The applicant criticised the Tribunal's reasoning for not engaging with the nature and strength of bonds to the Australian community of Mr Miller between the ages of 10 and 18, and for not referring to his schooling, which the applicant submitted is important in establishing a sense of belonging in Australia. I reject that submission. It is an obvious inference from the fact that Mr Miller arrived in Australia at the age of 10, that he attended school, and in the absence of any detailed evidence on the point, that the experience of Mr Miller during those school-age years was within the range of normal experiences of Australian children. I regard it as implicit in the reasoning of the Tribunal at [147]–[150], that the Tribunal did, in fact, take into account that Mr Miller experienced schooling from the age of 10 in Australia. In this regard, it should be borne in mind that it may be unnecessary for the Tribunal to make a finding on a particular matter where it is subsumed in findings of greater generality, see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (2003); 75 ALD 630 at [47] (French, Sackville and Hely JJ).

25    Accordingly, I reject ground 3C.

CONCLUSION

26    Accordingly, the amended originating application should be dismissed with costs.

Associate:

Dated:    15 May 2025