Adekoya v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 1400
•16 November 2021
FEDERAL COURT OF AUSTRALIA
Adekoya v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1400
Review of: Adekoya and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 768 File number: VID 317 of 2020 Judgment of: ANASTASSIOU J Date of judgment: 16 November 2021 Catchwords: MIGRATION – judicial review of decision from Administrative Appeals Tribunal to refuse grant of visa to applicant’s husband – partner visa application – whether Tribunal failed to consider both s 501(6)(ba)(iii) of the Migration Act 1958 (Cth) and Direction 79 in deciding to refuse grant of visa – whether Tribunal took into account irrelevant considerations – whether Tribunal engaged in illogical and/or irrational reasoning – whether decision was a Part 5-reviewable decision such that Tribunal was subject to the requirements prescribed in s 359AA of the Act – whether applicant’s husband was denied procedural fairness – application dismissed Legislation: Migration Act 1958 (Cth), ss 338(5), 347(2)(b), 359AA, 500(1)(b), 500(3), 501(1), 501(6)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1F
Cases cited: AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; 243 FCR 451
Brown v Minister for Immigration and Border Protection [2015] FCAFC 141, 235 FCR 88
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293; 49 FCR 576
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496
Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
Minister for Immigration and Border Protection v SZUXN [2016] FCA 516
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 81 Date of last submissions: 7 September 2021 (Applicant)
14 September 2021 (First Respondent)Date of hearing: 11 March 2021 Counsel for the Applicant: Mr R. Sorensen Solicitor for the Applicant: Goz Chambers Lawyers Counsel for the First Respondent: Ms C. Symons Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent did not appear ORDERS
VID 317 of 2020 BETWEEN: NADINE ADEKOYA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
ANASTASSIOU J
DATE OF ORDER:
16 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant pay the Respondents’ costs of and incidental to the application, to be assessed failing agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ANASTASSIOU J:
By originating application made pursuant to s 476A(1)(c) of the Migration Act 1958 (Cth) and dated 11 May 2020, the Applicant has appealed from a decision of the Second Respondent, the Administrative Appeals Tribunal.The Tribunal affirmed a decision of the delegate of the First Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse to grant the Applicant’s husband (the Visa Applicant) a Partner (Provisional) (Class UF) visa (partner visa) pursuant to s 501(1) of the Act.
For the reasons that follow, the application is dismissed.
BACKGROUND
The Visa Applicant is a citizen of Nigeria. He first arrived in Australia on 13 May 2002 on a Tourist (Class TR) visa. On 21 May 2002, the Visa Applicant lodged an application for a Protection (Class XA) visa, which was refused on the basis that the Applicant was a member of the O’odua People’s Congress (OPC). The OPC is an organisation active throughout Nigeria responsible for committing numerous crimes against humanity within the terms of Article 1F of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (Refugees Convention).
On 15 March 2004, the Visa Applicant departed Australia, as the holder of a Bridging (Class WA 010) visa. He has not returned since that time. On 24 March 2004, the Visa Applicant lodged a combined application for a Partner (Provisional) (Class UF) visa and a Partner (Migrant) (Class BC) visa (March 2004 Application). The application was made from outside Australia and was ultimately refused on 26 October 2009.
On 26 June 2013, the Visa Applicant lodged a further combined application for the same classes of visas as his March 2004 Application. On 25 August 2016, a delegate of the Minister concluded that the Visa Applicant did not pass the character test by reason of s 501(6)(ba)(iii) of the Act and therefore the application was refused pursuant to s 501(1) of the Act.
The Applicant is an Australian citizen residing in Australia. On 21 September 2016, the Applicant applied to the Tribunal for review of the Minister’s decision. On 31 October 2017, the Tribunal affirmed the Minister’s decision. On 21 May 2019, the matter was remitted (by consent) to the present Tribunal by order of this Court. On 8 April 2020, the Tribunal (differently constituted) affirmed the decision of the delegate to refuse the application.
Relevantly, the Applicant brought the application for review of the Minister’s decision to the Tribunal on behalf of the Visa Applicant, as the sponsor of the Visa Applicant. In its Reasons at [3], the Tribunal stated that the Applicant’s right to bring the application for review stemmed from s 338(6)(c) and 347(2)(b) of the Act. However, as I discuss below, the Tribunal was incorrect and the Applicant’s right to bring the application stemmed from ss 338(5) and 347(2)(b) of the Act.
The issues before the Tribunal were two fold. First, whether the Visa Applicant failed the character test under s 501(6) of the Act, and second, if he did, whether the discretionary power to refuse the application for a partner visa should be exercised.
Section 501(1) of the Act provides that “[t]he Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test”. Section 501(6)(iii) of the Act provides that:
Character test
(6) For the purposes of this section, a person does not pass the character test if:
…
(ba)the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:
…
(iii) the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;
whether or not the person, or another person, has been convicted of an offence constituted by the conduct…
In determining whether the Visa Applicant satisfied the character test, the Tribunal, in its Statement of Decision and Reasons, considered the various statements given by the Visa Applicant relating to his involvement with the OPC from 2002 to 2015. These statements changed significantly over the years, particularly in relation the Visa Applicant’s level of involvement in the OPC.
In the first statement given in 2002 (the 2002 Statement), the Visa Applicant “offered that he had been an active participant, office-holder and financial supporter of a violent organization, the OPC, but also that he ‘led’ the burning of a house with the result that the inhabitants were killed”: see Tribunal’s Reasons at [62]. The Tribunal considered it implausible that the details given by the Visa Applicant in the 2002 Statement could have been made up, as alleged by the Visa Applicant, having regard to the explicit details he provided. Those details included information about “when he had joined the OPC, when he was promoted, who the victim was, details about reconnaissance of the victim’s house and physical details about the house itself”: see Tribunal’s Reasons at [62].
At [64], the Tribunal held that even if the Visa Applicant had made up this account in the 2002 Statement, the manner in which he recast the events at the next interview in 2005 did not suggest the earlier statement was incorrect. Indeed, the revised version of events provided in 2005 did not seek to repudiate the Visa Applicant’s involvement in the OPC entirely, but rather sought to vary the nature of his involvement. Accordingly, the Tribunal held that this supported the credibility of the 2002 Statement being factually correct.
Having regard to the above, the Tribunal held (at [66]) that the Visa Applicant did not pass the character test, on the basis that it had a reasonable suspicion that the Visa Applicant had been involved in conduct constituting a crime against humanity. This was based on not only the 2002 Statement, but also on the subsequent statements provided up until the hearing..
In determining whether to refuse to grant a visa under s 501(1), the Tribunal was also required to consider Ministerial Direction 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation under s 501CA. That direction was made pursuant to s 499 of the Act and must be complied with as required by s 499(2A) of the Act.
Direction 79 provides three “primary considerations” which the Tribunal was required to take into account in deciding whether or not to refuse the grant of the visa, namely:
(a)protection of the Australian community from harm as a result of criminal activity or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
(Primary Considerations (a), (b) and (c) respectively)
Clause 14(1) of Direction 79 provides a non-exhaustive list of Other Considerations, which the Tribunal is also required to take into account:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
The discretion must be exercised having regard to these considerations, as well as the objectives and general guidance set out in Direction 79.
In exercising this discretion, the Tribunal (at [129]) also took into consideration the various accounts given by the Visa Applicant, including his “willingness” to change his accounts to his own advantage. The Tribunal summarised the nature of the different accounts at [50]:
So, simply put, [the Visa Applicant’s] story has changed from his first claim that he was a founding member and officer of the OPC, and led what can only be described as a crime of extreme violence against another member of the organisation, killing that person and his family; to a second version of him being a member of the OPC who was present when a person had petrol poured over him (but not himself being involved); to a third version of being a member of the organisation, but not ‘in the hierarchy’ of the OPC; to a fourth version of being a member of the OPC only because of his age, sex and tribal group, but a ‘non entity’; to a fifth version, in his oral evidence, that he was not a member of the OPC at all, and did not know anything about the organisation.
The Tribunal also took into consideration the fact that the Visa Applicant failed to provide a “satisfactory response” as to why he did not retract his account in 2002 and say that he was not involved in the OPC at all, if it was completely false. The Tribunal noted (at [53]) that this was a “key difficulty” in accepting the truthfulness of the Visa Applicant in respect of the different versions of events which “progressively, but by steps, retreated from the first detailed statement, and also progressively diluted his level of involvement with the OPC until, at [the] hearing, he claimed to have no involvement with the organisation at all”. At [64], the Tribunal described the various accounts which simply re-cast events as an attempt to “pursue an immigration outcome”.
In its Reasons at [127]-[130], the Tribunal found that:
…two of the primary considerations, the protection of the Australian community and the expectations of the Australian community, weigh against granting the visa. The Tribunal has found that the best interests of affected minor children weighs in favour of granting the visa, but not as heavily so as might generally be the case in the circumstances, given the length of time the Visa Applicant has been out of Australia, which predates the birth of both of the relevant children. His involvement in their lives has effectively been remote.
In respect of the other considerations the Tribunal has found that three of them are not engaged in this assessment. The sole other consideration in the Direction that is engaged, the impact on family members in Australia, weighs in favour of granting the visa, and relatively heavily so, because of the interests of [the Applicant].
The Tribunal is not constrained only to consider the stipulated considerations set out in the Minister’s Direction. It may also take into account any other consideration relevant under the Act. In this case, a significant factor has been the willingness of the Visa Applicant to calibrate his story to his own advantage, in an attempt, as he openly admitted in oral evidence, to achieve an immigration outcome. His cavalier attitude to the truth is a significant factor that counts against him, especially as the kernel of his original statement to the Department detailed an horrific act, in which he said he was directly involved.
The Tribunal is mindful in this case of the significant effect [the Visa Applicant’s] absence has had on his spouse and their children, but has concluded, weighing all the circumstances before it, that the discretion in section 501(1) of the Act, being enlivened to consider whether or not to grant the visa, the correct exercise of that discretion in this case is to refuse the visa.
APPLICATION TO THIS COURT
By Originating Application dated 11 May 2020, the Applicant applied for judicial review of the decision of the Tribunal to this Court. The Application contained the following six grounds:
1.Failure to properly consider exercise of the Second Respondent's discretion under Section 501(1) of the Migration Act 1958 (Commonwealth) as to whether to grant the Applicant's Husband a Visa; by improperly constraining exercise of that discretion by reference to whether it was satisfied that he passed the: "character test" by virtue of Section 501(6)(ba)(iiii) of the Act
2. Inflexibly applying a policy or rule without regard to specific circumstances of the case, by treating Applicant's Husband's failure to pass the: "character test" by virtue of Section 501(6)(ba)(iiii) of the Migration Act as determinative of whether or not the Second Respondent should exercise its discretion under Section 501(1) of the Act to nevertheless grant the Applicant's Husband a Visa
3.The Second Respondent failed to take into account the fact that the matters which the Second Respondent, at Paragraphs 38 and 43 of its Decision, found the Applicant's Husband had failed to coherently explain were in fact readily explicable by material submitted to the Tribunal with respect to the O’odua People’s Congress (“OPC”)
4. The Second Respondent took into account the following irrelevant considerations:
a.Alleged relevant inconsistencies in the Applicant's Husband's evidence which were incapable of being objectively characterised as such in light of his assertion that he had no relevant involvement in the OPC
b.The allegedly self-serving nature of the Applicant's Husband's statements to the First Respondent's Department in support of Visa Applications (See Paragraphs 51, 54, 64, 91 and 129 of Second Respondent's Decision)
c. he Applicant's Husband allegedly proceeding with an earlier Application for Judicial Review knowing that he was asserting a false account of events (See Paragraph 34 of Second Respondent's Decision)
d.The Applicant's Husband having stated that he hoped he might get a Visa eventually if he continued to communicate with the First Respondent's Department ( See· Paragraph 37 of Second Respondent's Decision)
e.A Police Certificate with respect to the Applicant's Husband being out-dated (See Paragraphs 86 and 109 of Second Respondent's Decision)
5.The Second Respondent's decision was unreasonable, irrational, illogical and/ or arbitrary, lacked an evident and intelligible justification and/ or not based on findings or inferences of fact supported by logical grounds by virtue of the errors outlined in the Grounds of Review stated above and below
6.The Second Respondent failed to accord Natural Justice by failing to put to the Applicant that the following matter(s) might be a reason for affirming the First Respondent's Decision:
a.A Police Certificate with respect to the Applicant's Husband being out-dated (See Paragraphs 86 and 109 of Second Respondent's Decision)
b.The date of a Letter from the OPC (See Paragraphs 44-5 of Second Respondent's Decision)
c.The Applicant's Husband allegedly proceeding with an earlier Application for Judicial Review knowing that he was asserting a false account of events (See Paragraph 34 of Second Respondent's Decision)
[Errors in original]
Applicant’s Submissions
The Applicant submitted that in deciding whether to refuse the grant of the visa, the Tribunal did not understand the two stage process it was required to undertake. That process being, first, whether or not the Visa Applicant failed the character test under s 501(6) of the Act and second, if he did, whether the discretionary power to refuse his application for a visa should be exercised having regard to the matters prescribed by Direction 79: ss 499 and 499(2A) of the Act. The Applicant submitted that the Tribunal treated the Visa Applicant’s failure to pass the character test as determinative of whether or not to exercise discretion under s 501(1) of the Act and that the Tribunal did not have proper regard to Direction 79 in assessing whether the risk of the Visa Applicant re-offending was more than minimal or remote. It instead focused on un-contextualized evidence of tenuous relevance to assess the likelihood of reoffending.
The Applicant submitted that the Tribunal erred in finding that the Visa Applicant’s evidence was “unreliable” as it failed to take into account readily available online information about the OPC that the Visa Applicant repeatedly explained was the source of his accounts of events about which he did not have first-hand knowledge. The Tribunal therefore failed to properly consider material it was required to take into account and address.
The Applicant also submitted that in determining the risk of reoffending, the Tribunal selectively took into account the following irrelevant considerations:
(1)the inconsistencies in the different versions of events given by the Visa Applicant and the self-serving nature of these statements;
(2)the Visa Applicant allegedly proceeding with an earlier application for judicial review knowing he was asserting a false account of events;
(3)the Visa Applicant’s statement that he hoped he might get a visa eventually if he continued to communicate with the delegate of the Minister; and
(4)that Police Certificates from the Nigeria Police and South African Police that disclosed no criminal offending were outdated.
The Applicant contended that for the above reasons, namely the Tribunal’s selective focus on un-contextualised evidence of tenuous relevance to the Visa Applicant’s risk of re-offending, the Tribunal’s decision was unreasonable and/or irrational and illogical.
The Applicant also submitted that there was a denial of procedural fairness as the Tribunal failed to give the Visa Applicant “clear particulars” of information which the Tribunal could consider in making its decision. It also failed to invite the Visa Applicant to comment on, or respond to, such information, as prescribed by s 359AA of the Act. That information being:
(1)the outdated Police Certificates from the Nigeria Police and South African Police Service;
(2)a Letter from the OPC dated 11 April 2017 stating that the Visa Applicant was not a member of the organisation; and
(3)the Visa Applicant allegedly proceeding with an earlier application for Judicial Review knowing he was asserting a false account of events.
The Applicant submitted that the Tribunal did not make it sufficiently clear to the Visa Applicant that these matters were potentially relevant to a negative decision against the Visa Applicant such that he could challenge, explain or contextualise them; given such adverse conclusions were not obviously open or known on the materials. The Tribunal therefore failed to accord procedural fairness to the Visa Applicant.
Minister’s Submissions
The Minister submitted that a fair reading of the Tribunal’s Reasons demonstrates that it understood the two assessments it was required to undertake in deciding whether to refuse the grant of the visa, and understood that these two assessments were discrete. Not only did the Tribunal correctly apply the law in terms of s 501(6)(b)(a)(iii) of the Act, concluding that the character test was satisfied, but it went on to correctly identify the framework for the exercise of its discretion by reference to Direction 79 and apply that direction. The Minister contended that the Tribunal very deliberately, and very consciously, engaged in a different type of consideration when it came to the exercise of the discretion under the heading “Discretion to Refuse to Grant the Visa – The Ministerial Direction – Direction No. 79”, giving consideration to the Primary Considerations as well as to the Other Considerations as it was required to under Direction 79.
In relation to the way in which the Tribunal assessed the risk of the Visa Applicant reoffending, the Minister submitted that there is no particular threshold or degree of risk that needs to be identified by the decision maker. The approach to the assessment of risk was open to the Tribunal, conformed to Direction 79 and took into account the findings about the Visa Applicant’s conduct, which he had admitted in the first of his statements. Further, the Tribunal considered the lack of candour that the Visa Applicant had demonstrated through his involvement with the Department, which the Tribunal considered was capable of informing an evaluation of risk.
The Minister also submitted that the Tribunal’s analysis of the Visa Applicant’s statements, as well as the outdated police certificates, was open to the Tribunal and the Tribunal was entitled to take these matters into account. They were not irrelevant matters. They were matters that were capable of informing the Tribunal’s view both with respect to the character test as well as the exercise of the discretion.
The Minister submitted that there was no denial of procedural fairness to the Visa Applicant. In this respect, the Minister advanced three propositions. First, the Minister submitted that the Tribunal was not subject to the requirements in s 359AA of the Act. Second, that the Tribunal was instead subject to more general obligations of the kind identified in s 33(1) of the Administrative Appeals Tribunal Act 1975 (Cth) as well as common law principles of procedural fairness: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 293, 49 FCR 576. Third, by reference to those principles, it was clear that the Visa Applicant understood the case against him and that the substantial issues – namely, his compelling and detailed account of his involvement with the OPC in 2002, as well as the other evidence that he had provided to the Tribunal - were capable of engaging both the character test and operating unfavourably to him in the exercise of their discretion.
Is the decision the subject of judicial review a Part 5-reviewable decision under Act?
During the course of drafting my reasons, I identified an issue that, to my mind, had not been addressed satisfactorily in written submissions or during the course of the hearing by either the Applicant or the Minister. That is, the question of whether the decision the subject of judicial review was a Part 5-reviewable decision pursuant to the Act. This issue is a preliminary or threshold question to the consideration of Ground 6, which I consider below at [68]. Accordingly, I directed that the parties provide further submissions in relation to the following points:
(1)Is the decision the subject of judicial review a Part 5-reviewable decision under the Act?
(a)Paragraph 3 of the Tribunal’s Reasons states that the Application was brought pursuant to s 338(6) of the Act. Prima facie, a decision to refuse to grant a non-citizen a visa pursuant to s 338(6) of the Act is a Part 5-reviewable decision;
(b)This appears to be contra to the Minister’s Submissions;
(c)If the application was brought pursuant to s 338(6) of the Act, as stated at [3] of the Tribunal Reasons, had each of the criteria in s 338(6) been satisfied;
(d)Should the Tribunal’s reference to s 347(2) at [3] of its Reasons refer to subsection (c) rather than (b), given that s 347(2)(b) corresponds to s 388(5) of the Act rather than s 388(6); and
(e)Does s 500(4)(b) of the Act, which provides that a decision made under s 501 is not a Part 5-reviewable decision, have any effect on the decision under review such that it is not a Part 5-reviewable decision.
(2)What consequences, if any, do the submissions in relation to question 1 have in relation to the sixth ground of appeal?
Those submissions were filed by the Applicant on 7 September 2021. The Applicant submitted that the decision the subject of judicial review is a Part 5-reviewable decision because the application was brought pursuant to s 338(5)(b) of the Act, and each of the criteria of s 338(5)(b) are satisfied. Namely, the visa could not be granted while the Visa Applicant is in the Migration Zone and the Visa Applicant was sponsored by the Applicant, who is an Australian citizen.
The Applicant also submitted that the decision is reviewable under Part 5 notwithstanding s 500(4)(b) of the Act. This is because, the Applicant submits at [1]:
(e) … Section 500(1)(b) provides that decisions of the Minister's Delegate made pursuant to Section 501 are reviewable under Part 5, subject to Section 500(4A), which is not applicable because the Visa Application was not refused because the applicant was imprisoned and he was not applying for a protection visa. Section 500(4)(b) is referring to decisions made by the Minister personally, as opposed to his or her delegate, having regard to the distinction between these two types of decision[s] apparent from Section 501. It cannot be read as excluding decisions of a delegate from merits review, because this would render Sections 501(1)(b) and (4A) redundant in so far as they expressly provide for review of a delegate's decisions subject to an express exception.
The Applicant submitted that accordingly, the Tribunal was subject to the requirements of s 359AA of the Act.
The Minister also filed submissions on 14 September 2021 in relation to the issues identified above at [31]. The Minister submitted that the Tribunal’s decision is not a Part 5-reviewable decision for two reasons.
First, the Minister submitted that pursuant to s 500(3) of the Act, the Applicant was entitled to seek review of the delegate’s decision to refuse the visa on character grounds. The reason for this being that s 500(3) disentitles a person from making an application for review of a decision under s 501 of the Act, unless that person would have been entitled to apply for review of the decision under Part 5 or Part 7 if the decision had been made on a another ground, for example, a decision to refuse to grant a visa because the Visa Applicant is not the spouse or de facto of an Australian citizen or permanent resident.
The Minister submitted that if the decision to refuse the grant of the visa had been made on a ground other than character grounds, the Applicant would have been entitled to seek review of the decision under Part 5: s 500(3) of the Act. This is because:
·the decision to refuse the grant of the visa to the Visa Applicant satisfies s 338(5) of the Act as it is a visa that could not be granted while the applicant is in the Migration Zone and the Visa Applicant was being sponsored by an Australian citizen; and
·s 347(2)(b) provides that an application for review of a decision covered by s 338(5) may only be made by the sponsor or nominator referred to in that subsection.
Accordingly, the Applicant, who is the sponsor of the Visa Applicant, would have been entitled to seek review of the decision under Part 5 had the decision not been made on character grounds. The Minister submitted that it follows that the Tribunal, at [3] of its Reasons, was wrong and incomplete. Wrong, as it incorrectly referred to s 338(6)(c) of the Act when it should have referred to s 338(5). The requirements in s 338(6)(a) to (c) are cumulative and so s 338(6)(c) is not a discrete basis for characterisation as a Part 5-reviewable decision. Incomplete, as it omitted any reference to s 500(3) of the Act. The Minister noted that neither error is an issue as the Tribunal had jurisdiction in any event.
Second, the Minister submitted that s 500(4)(b) provides further support for his submission that the decision is not reviewable under Part 5 of the Act as that provision makes clear that a decision under s 501 is not reviewable under Part 5 or Part 7. Rather, it is reviewable under the specific provisions of s 500, provided that the s 501 decision was made by a delegate and not the Minister personally. As s 500(1)(b) only confers jurisdiction on the Tribunal with respect to s 501 decisions made by a delegate of the Minister, the Minister submitted that s 500(4)(b) has the effect that decisions made under s 501 by the Minister personally are not reviewable by the Tribunal.
The Minister submitted that as the decision was not a Part 5-reviewable decision, s 359AA of the Act did not regulate the procedures required to be observed on review, and otherwise relied on its written submissions dated 4 March 2021 in relation to procedural fairness.
CONSIDERATION
For the following reasons, I am not satisfied that any of the grounds advanced by the Applicant should be accepted.
Grounds 1 and 2 – allegation that the Tribunal improperly constrained its exercise of discretion under s 501(1) of the Act and/or inflexibly applied policy
The principal criticism developed orally in argument by counsel for the Applicant was that the Tribunal failed to appreciate the two stage process that the legislative scheme requires. Namely, the determination of whether the Visa Applicant satisfied the character test pursuant to s 501(6)(ba)(iii) and whether the discretionary power to refuse the grant of the visa should be exercised having regard to the matters prescribed by Direction 79: s 499(2A) of the Act.
I do not accept the contention that the Tribunal conflated the two stages of the analysis it was required to consider separately. In my view, read fairly and as a whole, the Tribunal’s reasons distinguish between, on the one hand, its consideration of the character test, and, on the other hand, having concluded that the Visa Applicant does not satisfy the character test, the discretionary factors relevant to its power to refuse to grant a visa.
It is clear that the Tribunal properly exercised its discretion by reference to Direction 79. In its Reasons (at [67]-[71]), the Tribunal expressly identified the pertinent features in Direction 79 and took into account the considerations required by Direction 79.
The Tribunal correctly noted (at [83]) that Direction 79 requires it to consider the nature and seriousness of the Visa Applicant’s conduct to date, and the risk to the community should the Visa Applicant commit further offences or engage in other serious wrongful conduct. Based on the detailed accounts given by the Visa Applicant, the Tribunal reasonably suspected that the Visa Applicant had been involved in crimes that would amount, if proven, to murder. By reference to cl 11.1.1(1)(i) of Direction 79, the Tribunal (at [84]) had regard to whether the Visa Applicant had provided false or misleading information, noting that the Visa Applicant had on “several occasions” provided information that he later claimed was false or misleading. The Tribunal concluded (at [85]) that both of these factors constituted “serious conduct” that “weigh[ed] against the grant of a visa”.
At [93], the Tribunal found that the conduct volunteered by the Visa Applicant in his 2002 Statement, which the Tribunal reasonably suspected he had engaged in, fell within the description of cl 6.3(4) of Direction 79. The Tribunal concluded, correctly in my view, that the conduct was so serious that the harm it would cause, were it to be repeated, would create an unacceptable risk to the community.
On these bases, the Tribunal found that the Primary Consideration, protection of the community, weighed against exercising its discretion to grant the visa.
I agree with the Minister’s submission that the Tribunal demonstrated an understanding of the two stage process it was required to undertake and applied that process in its reasoning. I do not accept the Applicant’s submission that there was error in the Tribunal’s assessment of risk of the Visa Applicant engaging in further serious conduct.
In AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; 243 FCR 451, the Court (Allsop CJ, Robertson and Griffiths JJ) held at [55] that in quantifying the risk to the Australian community of an applicant re-offending there was “no duty” on the Tribunal “to evaluate that risk in any particular way or to ascribe any particular characterisation to the quality of the risk”, citing Brown v Minister for Immigration and Border Protection [2015] FCAFC 141, 235 FCR 88 at [41] (Rares, Flick and Perry JJ). There is no mandated prescription as to how a decision maker such as the Tribunal is to assess risk. Equally, there is no analytical threshold the Tribunal must satisfy.
Direction 79 requires the Tribunal to consider the nature of harm to individuals, should the non-citizen engage in further criminal or other serious conduct, and the likelihood of the person so engaging. By reference to cl 11.1.2(1) of Direction 79, the Tribunal emphasised that any likelihood of reoffending would be taken as so serious to be deemed unacceptable.
At [90]-[91], the Tribunal explained its assessment of risk as follows:
…It is difficult to ascertain what the likelihood of [the Visa Applicant] re-offending is, but the reasonable suspicion of the Tribunal that he was actively involved in a very violent organisation that carried out atrocities against civilians weighs against him in this assessment.
The Tribunal does not accept submissions by counsel for the Applicant that this might constitute an ‘irrational’ linkage in terms of assessing risk. While the particular circumstances may not be likely to present in Australia, the fact that the Visa Applicant is reasonably suspected of carrying out such an atrocity, and has then given several conflicting stories to Department officers about his conduct and history, inclines the Tribunal to the view that there is a risk of criminal or serious misconduct, and, taking all the information into account it is a real risk. There has been a conspicuous lack of honesty in [the Visa Applicant’s] interactions with immigration officials which illustrates his desire to say whatever is most beneficial to him, in the particular case and at the particular time, whether or not it is the truth. This lack of honesty axiomatically contributes to a risk of reoffending
I am satisfied that the Tribunal considered the evidence before it and did so having regard to the requirements in Direction 79. That is all that was required of it in making its decision.
For these reasons, I reject Grounds 1 and 2.
Ground 3 – failure to take certain considerations into account
The Full Court in Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352, (Griffiths, White and Bromwich JJ) at [45] affirmed the principle that “when a decision maker is required by statute to consider a claim or other mandatory criteria, the decision maker must engage in an active intellectual process directed at that claim or criteria”. To answer the question whether there had been an active intellectual process, a reviewing Court is required to make an evaluative judgment: see Carrascalao at [47]. Such evaluation must be made taking into account the available evidence and reasonable inferences as to the facts and circumstances relevant to the decision: Carrascalao at [47].
The Applicant contended that the Tribunal, in determining that the Visa Applicant’s evidence was unreliable, failed to take into account readily available information about the OPC that the Visa Applicant explained was the source of his accounts of events.
The Minister submitted, correctly in my view, that the Tribunal’s concern was that there was reason to doubt the accuracy of any account offered by the Visa Applicant in circumstances where: (1) the Visa Applicant’s accounts had changed substantially over time; (2) the Visa Applicant did not depart from his first, and most detailed, account of events; and (3) the Visa Applicant did not provide a satisfactory response as to why he did not, at his next interview, retract his 2002 statement and say he had no involvement in the OPC at all.
In my view, having regard to the evidence before the Tribunal referred to above, the finding that the Visa Applicant’s evidence was “completely unreliable” at [51] was rational and was a finding reasonably open to the Tribunal to make.
Accordingly, I reject Ground 3.
Ground 4 - allegation that the Tribunal took irrelevant considerations into account
I agree with the Minister that the matters taken into account by the Tribunal were relevant and capable of rationally informing the Tribunal’s decision.
If undue weight is given to an irrelevant consideration that may render a decision unreasonable. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at [15], Mason J held:
…
(b) … In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.
(d) … in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’.
[Emphasis added]
In making its decision, it was permissible for the Tribunal to take into account the various statements provided by the Visa Applicant. These statements were directly relevant to the first question, namely, whether the Visa Applicant satisfied the character test. They were also relevant considerations open to the Tribunal in exercising its discretion to refuse the grant of the visa by reference to Direction 79. As discussed above, in exercising its discretion by reference to Direction 79, the Tribunal took these statements into account only to the extent that they were responsive to that direction.
It was also permissible for the Tribunal to take into account that the Visa Applicant’s unsuccessful protection visa application was made knowing, as he conceded, that his account of events at that time was untruthful. The fact that the Visa Applicant “thought [he] might get a visa sooner or later” when asked why he persisted in making these statements after his protection visa application had been refused was also a relevant consideration that was open to the Tribunal in exercising its discretion. While written submissions were not put forward by the Applicant as to materiality, having regard to the decision of the Tribunal as a whole, I am not satisfied that the outcome would have been any different, or that there is a realistic possibility of a different outcome for the Applicant had the Tribunal not taken these factors into account: see, eg, MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [2] – [3] (Kiefel CJ, Gageler, Jeane and Gleeson JJ) approving Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, 264 CLR 421.
It is well-established that it is generally for the decision-maker, and not the Court, to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Peko-Wallsend at [15] (Mason J). The Tribunal was entitled to give the police certificates the weight that it did. Significantly, the Tribunal considered these certificates only in circumstances where the Visa Applicant had identified them as relevant and asked the Tribunal to consider them. In my view, the weight given to the police certificates was not inappropriate and accordingly does not give rise to any jurisdictional error.
These matters were plainly relevant to the substantive merits of the application, a consideration deemed relevant to the exercise of the discretion to refuse to grant the visa.
Ground 5 - allegation of unreasonableness, irrationality or illogicality
For the reasons explained in relation to Grounds 1 - 4, it follows that it cannot be said that the Tribunal’s decision was illogical or irrational such that no rational person could reach the same decision on the material before the decision maker: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [135] (Crennan and Bell JJ). Nor that the Tribunal’s decision was “lacking rational foundation, or an evident or intelligible justification” or was “plainly unjust, arbitrary, capricious or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power”: see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [11], (Allsop J).
To be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, I must be satisfied that there is “extreme” illogicality or irrationality in the Tribunal’s reasons, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [60] (McKerracher, Griffiths and Rangiah JJ) endorsing the principles collated in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52], [54]-[56] (Wigney J). Having regard to not only the seriousness of the conduct described in the 2002 Statement, but also to the other evidence before the Tribunal, I am not satisfied that the Tribunal’s decision involved anything akin to extreme illogicality or lacked an intelligible justification. To the contrary, it was a decision entirely open to the Tribunal based on the evidence and findings it made.
I therefore reject Ground 5.
Ground 6 - allegation of denial of procedural fairness
Finally, the Applicant submitted that the Tribunal failed to accord procedural fairness to the Visa Applicant because it did not give adequate notice of matters adverse to his visa application as required pursuant to s 359AA of the Act.
I am not satisfied that the Tribunal failed to accord the Applicant procedural fairness. First, I accept the Minister’s submission that the decision is not a Part 5-reviewable decision and accordingly, s 359AA does not apply to the Tribunal’s review.
Section 338 of the Act provides a starting point for determining which decisions are Part 5-reviewable decisions. In its Reasons at [3], the Tribunal stated that the Applicant’s right to bring the application for review stemmed from s 338(6)(c) and 347(2)(b) of the Act. However, as I noted above, and as both the Applicant and Minister submitted, the Tribunal’s reference to s 338(6)(c) this should have in fact been a reference to s 338(5). Accordingly, I am satisfied that the application was brought pursuant to s 338(5), which correctly corresponds with the right for a sponsor or nominator to bring an application for review of a Part 5-reviewable decision in s 347(2)(b).
Further, as noted by the Minister in his submissions, the requirements in s 338(6) are cumulative such that s 338(6)(c) is not a discrete basis for characterising a decision as a Part 5-reviewable decision. However, this error is neither material nor relevant, as the Tribunal’s jurisdiction to review the decision arises pursuant to s 500(1)(b) of the Act.
Pursuant to s 500(3) of the Act, the Applicant was entitled to seek review of the delegate’s decision to refuse the visa on character grounds. Section 500(3) of the Act provides that:
A person is not entitled to make an application under subsection (1) for review of a decision referred to in paragraph (1)(b) or (c) unless the person would be entitled to seek review of the decision under Part 5 or 7 if the decision had been made on another ground.
[Emphasis added]
I am satisfied that, had the decision to refuse to grant the visa had been made on another ground, the Applicant would have been entitled to seek review of the decision under Part 5 because, as noted by the Minister, the decision to refuse the grant of the visa to the Visa Applicant satisfies s 338(5) of the Act and the Applicant is a sponsor of the Visa Applicant, as required by s 347(2)(b). However, it was not such a decision and therefore s 338(5) does not assist the Applicant.
I am further satisfied that the decision is not a Part 5-reviewable decision because s 500(4)(b) makes clear that a decision under s 501 is not reviewable under Part 5 of the Act. I do not agree with the Applicant’s submissions that s 500(4)(b) refers to decisions made by the Minister personally. To the contrary, as s 500(1)(b) only confers jurisdiction on the Tribunal with respect to decisions made by a delegate of the Minister, it follows that s 500(4)(b) also only applies to decisions made by a delegate of the Minster and not to decisions made by the Minister personally.
Accordingly, having decided that the decision is not a Part 5-reviewable decision, the Tribunal, in determining whether or not to refuse a visa pursuant to s 501(1) of the Act, was not required to comply with the requirements of s 359AA. Specifically, it was not required to give “clear particulars of any information that [it] considers would be the reason, or a part of the reason, for affirming the decision that is under review”: s 359AA(1)(a) of the Act.
The Tribunal was, however, required to comply with the well-established common law principle of procedural fairness. As the Court (Northrop, Miles and French JJ) explained in Alphaone at 591-592:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. For a statutory exception to the latter proposition see the pre-decision conference process provided for in the Trade Practices Act 1974 (Cth).
[Emphasis added]
See also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [29] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); Minister for Immigration v SZGUR [2011] HCA 1; 241 CLR 594 at [9] (French CJ and Kiefel J, with whom Heydon and Crennan JJ agreed).
It is clear that the Visa Applicant and those representing him understood that his compelling and detailed account of his engagement in the OPC in 2002 was a substantial issue and one which was capable of engaging both the character test and operating unfavourably to him in the exercise of discretion. The police certificates, which were identified as relevant by the Visa Applicant himself, were also clearly “known material” that the Tribunal could take into account adversely to him, as was the Visa Applicant’s unsuccessful protection visa application, that he agreed was made knowing that his account of events, at that time, was untruthful.
Further, I agree with the Minster, that it could be reasonably expected that the analysis of the letter provided by the OPC in 2017, which stated that the Visa Applicant was not a member of the OPC, would yield the type of observations and conclusions that the Tribunal reached with respect to it. These included giving the document “little weight” and approaching it with “scepticism” (at [45]). In substance, the Tribunal was rationally entitled to discount the weight to be given to the letter as self-serving. As the Tribunal explained, the Visa Applicant did not proffer a letter of this kind in 2002, when he made an allegedly false statement about his involvement in the OPC. Instead, he chose to give very different accounts of his level of involvement with the OPC and provide the letter in 2017 in support of his final account that he had “never” been involved with the OPC.
The Tribunal’s decision was made by reference to information that would “obviously be open on the known material”: see Alphaone at 591-592 ((Northrop, Miles and French JJ). Given that the material taken into account was provided by the Visa Applicant himself, there is no basis to conclude that reliance upon the material was procedurally unfair to the Visa Applicant.
I reject Ground 6 for these reasons.
DISPOSITION
For the reasons give above, I have concluded that there is no basis for overturning the Tribunal’s decision and accordingly the application must be dismissed with costs.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anastassiou. Associate:
Dated: 16 November 2021
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