Aby v Minister for Immigration, Citizenship and Multicultural Affairs

[2022] FedCFamC2G 1042

Federal Circuit and Family Court of Australia

(DIVISION 2)

Aby v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 1042

File number(s):

MLG 2553 of 2022

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

9 December 2022

Catchwords:

MIGRATION – Subclass 485 visa – whether delegate complied with s 120 – whether delegate failed to consider evidence – whether delegate failed to make necessary inquiries – whether there was jurisdictional error.

Legislation:

Migration Act 1958 (Cth) ss 57, 120, 122, 127

Cases cited:

Aggarwal v Minister for Immigration and Border Protection [2015] FCA 1312

Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3

Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429

Minister for Immigration and Citizenship v SZNVW [2010] 183 FCR 57

Minister for Immigratoin and Citizenship v SZRTK [2013] 212 FCR 99

Naikar v Minister for Immigration and Border Protection [2019] FCA 502

Nathanson v Minister for Home Affairs [2022] HCA 26

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] 258 CLR 173

SAAP v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] 228 CLR 294

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471

Division:

Division 2 General Federal Law

Number of paragraphs:

40

Date of last submission/s:

9 December 2022

Date of hearing:

9 December 2022

Place:

Parramatta

Counsel for the Applicant:

Mr Aleksov

Counsel for the Respondent:

Ms McInnes

ORDERS

MLG 2553 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

PAUL ARIMPORE ABY

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

order made by:	JUDGE HUMPHREYS
DATE OF ORDER:	9 DECEMBER 2022

THE COURT ORDERS THAT:

1.Grant leave to rely on the amended application.

2.The application is dismissed.

3.The Applicant is to pay the First Respondents costs, fixed in the sum of $6,000.00.

4.The orders dismissing the application are stayed for a period of 7 days of the date of these orders.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
(as revised from transcript)

JUDGE HUMPHREYS

1. The applicant is a citizen of India.  On 14 April 2021 the applicant was granted the subclass 485 visa as a dependent applicant, with the visa being valid until 14 April 2025.  The primary visa holder was the applicant’s wife, Ms Matai.  The applicant’s visa included the capacity to travel to and from Australia and enter multiple times back into Australia. 

2. On 20 November 2022 the applicant arrived in Australia at Perth Airport. Prior to being granted immigration clearance, he was stopped and questioned by officers of Border Force. During a formal interview, the applicant was advised by Border Force that they had information the applicant had separated from his wife on 11 May 2022 and they no longer lived together.  Further, there was evidence that the applicant was the subject of a family violence restraining order that prohibited the applicant from contacting his wife. 

3. The applicant was issued with a Notice of Intention to Consider Cancellation of his visa (“NOICC”) on the basis that he was no longer part of a family unit of a person who held a subclass 485 visa. 

4. The applicant was granted some time to consider any answers he may wish to give as to why his visa should not be cancelled.  After he was given that time, he was asked what he wanted to say. The decision-maker recorded that the applicant stated that in response to the prospect of his visa being cancelled, “You can cancel my visa.  I am requesting three days to finish my rentals and to put my resignation in for my jobs.  I also need to get back my personal belongings”.

5. In the record of decision relating to the applicant’s visa, the relevant decision-maker stated the following, which is recorded at Case Book page 38:

   In relation to the extent of compliance with visa conditions it’s said “he had travelled to Australia many times and stayed onshore for long periods.  There was no adverse information.”  This was given some weight against cancelling the visa. 

6. More importantly for this particular matter, below that box there is a box which has the following as a heading:

   Degree of Hardship Which May Be Caused to the Visa Holder and Their Family Members and Others if the Visa is Cancelled (Where applicable best interests of the child in Australia under 18 years must be considered in accordance with Australia’s obligations under the Conventions of the Right of the Child).

7. The following then appears:

   The visa holder has not raised any specific concerns.  I am unaware of any physiological or other hardship the visa holder may experience as a result of visa cancellation.  I have considered the cancellation may cause some financial loss to the visa holder.  I also acknowledge there may be other hardships that the visa holder has not raised. 

8. Critically, the following then appears:

   I am aware that the visa holder has two children and that a decision to cancel his visa will separate him from them;  however, I do note the visa holder is prevented from making contact with his children due to a family violence restraining order.

9. It goes on to state:

   There is no evidence before the department that the cancellation might lead to a breach of Australia’s non-refoulement obligations, therefore I give this consideration some weight against cancelling the visa holder’s visa.

10. Ultimately, the decision-maker determined to cancel the applicant’s visa.  In particular, the decision-maker took into account that the applicant was no longer part of a family unit which was a factor in the decision to grant the original visa.

11. The applicant seeks judicial review of the decision to cancel his visa.  The matter has been heard on an expedited basis as the applicant is and has been in Immigration detention since his arrival in Australia on 20 November.  The Court has been urged and has acceded to that request to consider the matter on an urgent basis and as a result this judgment is being delivered ex tempore, following a short hearing that has taken place this afternoon.

    Grounds of Judicial Review

12. The applicant relies upon the following grounds of judicial review contained within an amended initiating application:

    1. The delegate failed to comply with s 120 of the Migration Act1958 in relation to the information that the family violence restraining order extended to the applicant’s children.

    2.   The delegate failed to consider the important evidence, being that the order was under challenge.

    3.   The delegate failed to make necessary inquiries, relating to the status of the order and the applicant’s efforts to obtain access to the children.

    the Applicant’s Submissions

13. In relation to ground 1, it was submitted that it was correct that the family violence order prevented contact by the applicant with the children. It was submitted this fact was relevant to undermining the otherwise favourable weight that would surely have been placed on the interests of the children. It is submitted that this was thus relevant information within the meaning of ss 120(1)(a)(i), (1)(b) and (1)(c) of the Migration Act 1958 (Cth) (“the Act”). It was submitted that the delegate was required by s 122 of the Act to give this information to the applicant to comment on. The delegate did not do so. This was a failure to comply with section 122 of the Act.  Such a failure amounts to a jurisdictional error: (see; SAAP v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] 228 CLR 294, which deals with the analogous requirements under part 7 of the Act).  The materiality threshold is set at zero for this purpose.

14. Counsel for the applicant acknowledged the Federal Court decision Naikar v Minister for Immigration and Border Protection [2019] FCA 502 suggests this is not correct The reasoning in that decision was not ratio decidendi and, in any event, it was submitted that this Court is bound by High Court authority and the error was material: (see; Nathanson v Minister for Home Affairs [2022] HCA 26).

15. It was submitted that one cannot know what the applicant might have said or done if his attention was drawn to the effect of the order upon his contact with his children.  It was submitted that it could be inferred that he would have said or done anything or everything that was helpful to his case.  This undemanding standard is not met.  The Court notes, however, that it was clearly plain and should have been plain to the applicant that if the applicant was deported he would not be able to have any physical contact with his children.

16. In relation to ground 2, it was submitted the family violence order was interim only. It is correct that it was an interim application.  That is plain from the wording of the application which was before the Court.  It was submitted that the applicant was challenging that order with a hearing date set in early February 2023.  It was submitted that one could expect that some contact with the applicant’s children would be allowed at some time in the future.  In his exchange with the officers at the airport the applicant said, “The case is still ongoing in the Court and the final hearing is on 3 February”.  This appears at transcript page 4, line 8.  This clearly shows an engagement with the process.  The fact that an order was interim in nature and was under challenge was not considered by the delegate.  It is important evidence in the matter: (see; Minister for Immigratoin and Citizenship v SZRTK [2013] 212 FCR 99).

17. Realistically, the applicant’s “best shot” at keeping the visa was through a consideration of the interests of his children.  This factor was essentially given little favourable weight, perhaps even neutral weight.  Properly understood, this evidence might have warranted a greater weight in allowing him to retain the visa for the sake of the children. 

18. In relation to ground 3, if the evidence mentioned in ground 2 was insufficient to require express attention in the reasons or in addition to ground 2, the delegate failed to make reasonable inquiries about the matter.  The delegate was squarely on notice of the fact that the applicant was challenging the order.  The delegate was required by the rules of reasoning implied in the Act to ask the applicant details about the nature of the challenge and to inform themselves about the prospect of future contact with the children being allowed: (see; Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429).

19. All that was needed was to ask the applicant if he was challenging the order or otherwise seeking access to his children.

    The Respondent’s Submissions

20. First, the respondent noted that as set out in the application, reference was made to s 57 of the Act which was not relevant to the particular circumstances. No objection was taken to amending the grounds to replace s 57 with s 120 of the Act, noting the sections are identical in all relevant aspects.  Leave was granted for that amendment. 

21. It was submitted the fact that the family violence order extended to the applicant’s children was not relevant information because it was not, “the reason or part of the reasons for cancelling the visa for the purposes of section 120(1)(a) of the Act”. Reliance was placed on VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [30] which considered the equivalent provision contained in Part 7 of the Act, being s 424AA(1) where the following was said by Finn and Stone JJ:

    It commonly is the case that the detail and complexity of the case advanced by a visa applicant, and the information that is given and garnered for the purposes of considering it, results in the Tribunal being confronted with issues that may be of varying importance, relevance and centrality both to the decision to be taken and to the reasoning that in the event sustains that decision.

22. The following is emphasised:

    While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the Tribunal’s decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a Tribunal’s reasons are to be evaluated for s 424A(1) purposes, the Court as a matter of judgment is required to isolate what were the integral parts of the reasons for the Tribunal’s decision. That task, necessarily, is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy – and made the more so by less than explicit indications in the reasons themselves as to what the Tribunal itself considered to be integral.

23. It was submitted that s 120 of the Act will not be breached unless the information that the order extended to the applicant’s children was part of the reason for cancelling the visa.  It was plainly not.  No sensible reading of the delegate’s decision could be said that the visa was cancelled because the family violence order prevented the applicant from contacting his children.  It was submitted the delegate merely noted the applicant was prevented from making contact with his children due to the order.  The delegate, in noting the effect of the order, was no more than recording the delegate’s observation of fact.  The delegate noted that the effect of the order did not demonstrate that the delegate placed any weight upon it or otherwise transformed that observation into a reason for cancelling the visa.

24. This view is reinforced by the delegate stating he gave in his consideration weight in relation to this particular factor against cancelling the visa. In the light of the delegate only having noted the information and the delegate having considered the best interests of the children weighed against the cancellation of the visa, that information that the order extended to the children was not part of the reason for cancelling the visa. There was therefore no requirement for that information to be put to the applicant in accordance with s 120 of the Act.

25. In relation to ground 2, it was submitted the delegate did not fail to consider any important evidence.  The premise of this ground overstates the evidence that the applicant provided to the delegate.  When the applicant was initially interviewed and before the NOICC was issued, the applicant referred to a case in the context of his separation from his wife.  No direct evidence was given that the order was under challenge.  As there was no evidence before the delegate that the order was under challenge the delegate was therefore not required to consider the matter. 

26. In the alternative, if the evidence was to the effect, as asserted by the applicant, that the delegate was aware there was a case pending, it was not necessary for the delegate to refer to each and every piece of evidence and every contention made by the applicant in its written reasons. The delegate was not under any statutory obligation to give reasons for its decision beyond setting out those matters required by s 127(2) of the Act.

27. The applicant cannot show that the relevant material was ignored simply by pointing out that it was not mentioned by the delegate who was not obliged to give comprehensive reasons for his decision: (see; Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] 258 CLR 173 at [25]). The better inference is that the delegate considered the applicant’s evidence, that there was an ongoing court case, but did not consider that this was material in the light of the way that the applicant chose to respond to the notice. He did not raise his intention to challenge the order when asked to comment on the NOICC. Although the applicant might say with the benefit of legal assistance now that it was his “best shot at keeping the visa”, that is not how the applicant presented his case to the delegate. The delegate was not required to give prominence to the consideration of the potential challenge to the order that was not clearly raised by the applicant.

28. In relation to ground 3, it was submitted the delegate did not fail to make any necessary inquiries relating to the status of the orders or any efforts by the applicant to obtain access to the children.  The applicant was provided with an opportunity to comment on the proposed cancellation of his visa and did not raise any challenge to the order or attempt to seek access to his children in response to the NOICC.  It was not incumbent upon the delegate to ask the applicant further questions to discover if the applicant may want to raise those matters and provide further information.  A decision-maker is not required to investigate or conduct an inquiry to discover whether the applicant’s case might be better put or supported by other evidence: (see; Minister for Immigration and Citizenship v SZNVW [2010] 183 FCR 575 at [36]).

29. It will only be in rare and exceptional circumstances that a failure to make an obvious inquiry will amount to a jurisdictional error.  This will occur where the inquiry that was required to be made was obvious, concerned a critical fact, the existence of which was easily ascertained, and it supplied a sufficient link to the outcome so as to constitute a failure to review: (see; Minister for Immigration and Citizenship v SZNVW [2010] 183 FCR 575 at [49] and Aggarwal v Minister for Immigration and Border Protection [2015] FCA 1312 at [57]-[58]).

30. In relation to the first issue, there was no obvious inquiry for the delegate to make.  The applicant did not raise his children in response to the NOICC.  Second, the fact was not critical to the delegate’s decision.  The ongoing nature of the order may have been relevant to the weight potentially to be given to a discretionary factor weighing against cancellation of the visa and, indeed, this is precisely what happened.  It was noted, however.  Third, the delegate not having asked the applicant about challenging the order is not sufficiently linked to the decision made so as to constitute jurisdictional error.

    Consideration

31. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17], the task of a Court conducting judicial review is described in the following manner:

    … an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.

32. During the interview conducted by Border Force officials with the applicant, it is clear that the applicant confirmed that there was a hearing to take place on 3 February 2023 in relation to the family violence order.  The applicant also confirmed he had not seen his children since 11 May 2022.  He also confirmed that he was the subject of a family violence restraining order which prohibited him from seeing or making contact with the primary visa holder, being the applicant’s wife.  The impact of the cancellation of the visa on the capacity of the applicant to see his children was clearly considered by the decision-maker in coming to the conclusion the visa should be cancelled has been set out in the extracts above, quoting from Court Book page 38.

1. Indeed, the fact that the applicant would be separated further from his children was a matter that the decision-maker gave some weight to in not cancelling the applicant’s visa. It is submitted the failure to put the additional material to the applicant in relation to the children was relevant material that should have been put to the applicant. Section 120 of the Act is in the following terms:

   1)   In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

   a)would be the reason, or a part of the reason, for cancelling a visa; and

   b)is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and

   c)was not given by the holder; and

   d)was not disclosed to the holder in the notification under section 119.

   2)   The Minister must:

   a)give particulars of the relevant information to the holder; and

   b)ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and

   c)invite the holder to comment on it.

   3)   The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances.

2. The Court does not accept that the failure to put the additional material to the applicant in relation to the children was relevant material for the purposes of s 120 of the Act that should have been disclosed. When considering s 120(1)(c) of the Act, the fact that the applicant was subject to a violence order was known, and the applicant disclosed the fact that it was the subject of a further hearing in 3 February 2023.  The relevant information which was put to the applicant, which was the cause, in my view, of the cancellation of the visa, was the fact that the applicant was no longer in a relationship with his wife and thus not part of a family unit, which was the basis upon which the applicant was originally granted his visa.  The applicant confirmed he had not been living with his wife since May. 

3. The suggestion by Counsel for the applicant that one cannot know what the applicant might have said or done, had his attention been drawn to the effect of the proposal to cancel his visa upon contact with his children, is entirely speculative.  It is clear that the existence of the order was discussed and it was open to the applicant to put any material he wished to for consideration by the decision-maker.  He did not do so and, in fact, he indicated that he was content for his visa to be cancelled but requested three days to regularise his affairs prior to leaving the country.

4. The Court is satisfied that the dispositive reason for the cancellation of the visa was the fact that the applicant was separated from the substantive visa holder. The issue was clearly put to the applicant. He was allowed time to consider and formulate a response. He did so. There was no need to specifically put material relating to the children pursuant to s 120 of the Act as the Court is not satisfied it was the reason or part of the reason for the cancellation of the visa.  Ground 1 has no merit.

5. Ground 2 alleges the decision-maker failed to consider important information.  The Court is satisfied that the fact that the order was interim in nature and the matter would be back in court in February 2023 was known to the decision-maker.  A copy of the family violence order is before the Court and it is clearly an interim order only.  Counsel for the applicant stated that the applicant is challenging the order.  Even if that is the case and the order was not made permanent, this does not mean that the applicant will automatically resume a relationship and/or cohabitation with his wife and thus be able to satisfy the visa.  The dispositive issue was that the applicant was no longer in a relationship with the substantive visa holder.  When questioned about that he did not object to his visa being cancelled.  The issue in relation to the applicant’s children was considered by the decision-maker.  In fact, it was given some weight as to not cancelling the visa.  The fact that it is now suggested with the benefit of hindsight that this matter was the applicant’s best shot and that the issue was given insufficient weight when it was clearly considered is no more, in the Court’s view, than an attempt to invite the Court to undertake impermissible merits review.  Ground 2 has no merit.

6. Ground 3 has similar problems.  The applicant at no point asked the decision-maker to make inquiries about the challenge to the interim family violence order.  The Court is not satisfied that the family violence order was a critical fact, the existence of which could be easily ascertained.  The decision-maker, in the Court’s view, already had all the necessary information to make a properly informed decision.  The decision-maker noted the issue in their consideration.  The Court does not consider the additional information, given it is clear that the order was interim in nature and there was a future court date, could have assisted or changed the ultimate outcome in the particular circumstances of this case. 

7. As put forward by the Minister, the Court does not know what inquiries could have been made that were clearly not obvious to me.  The critical facts in the matter were clearly known to the decision-maker and the Court is not satisfied that there was a sufficient link to the outcome to constitute a failure to review such that it would warrant intervention by this Court in its supervisory capacity to undertake judicial review.

8. In the Court’s view, none of the grounds have been made out. The application is dismissed.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Deputy Associate:

Dated:       9 December 2022