Afu v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Afu v Minister for Home Affairs [2018] FCA 1311

File number: NSD 278 of 2018
Judge: BROMWICH J
Date of judgment: 29 August 2018
Catchwords: MIGRATION – application for extension of time granted – application for judicial review of decision of Administrative Appeals Tribunal affirming non-revocation decision of delegate of first respondent – whether Tribunal misapplied or misconstrued s 501CA(4) of Migration Act 1958 (Cth) – whether Tribunal failed to comply with Ministerial Direction No 65 – whether Tribunal failed to give proper, realistic and genuine consideration to representations made by applicant – whether Tribunal made critical findings of fact without logically probative evidence – held: all four grounds of review fail – held: application dismissed with costs
Legislation:

Acts Interpretation Act 1901 (Cth) s 25D

Migration Act 1958 (Cth) ss 5(1), 499(2A), 501(2), (3A), (6), 501CA(4), 501G(1)(c)

International Covenant on Civil and Political Rights. Opened for signature 19 December 1996, 999 UNTS 171. 6 ILM 386 (entered into force 23 March 1976), art 7

Cases cited:

BZC17 v Minister for Immigration and Border Protection [2018] FCA 902

Djalic v Minister for Immigration [2004] FCA 151; 139 FCR 292

Goundar v Minister for Immigration and Border Protection [2016] FCA 1203

Islam v Cash [2015] FCA 815; 148 ALD 132

Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140; 112 ALD 1

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323

Picard v Minister for Immigration and Border Protection [2015] FCA 1430

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Date of hearing: 25 July 2018
Registry: New South Wales
Division: General
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 86
Counsel for the Applicant: Dr S Tully (Pro Bono)
Counsel for the First Respondent: Mr G Johnson
Solicitor for the First Respondent: Sparke Helmore
Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 278 of 2018
BETWEEN:

MAKA AFU
Applicant
AND:

MINISTER FOR HOME AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:

BROMWICH J

DATE OF ORDER:

29 AUGUST 2018

THE COURT ORDERS THAT:

1.The applicant be granted an extension of time in which to file an originating application for review of a migration decision to the date upon which an originating application was filed on 27 February 2018.

2.The draft amended originating application filed on 15 June 2018 be treated as an amended originating application.

3.The amended originating application be dismissed.

4.The applicant pay the first respondent’s costs as assessed or agreed.

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

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Details
Case
[2018] FCA 1311
Decision Date

CaseChat Overview and Summary

Maka Afu, a Tongan national and permanent resident of Australia, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) affirming the Minister for Home Affairs' non-revocation of his visa cancellation. The applicant argued the AAT misapplied the law, failed to follow Ministerial Direction No 65, and did not properly consider his representations or made critical findings without evidence. The Federal Court found all grounds of review failed.

The Court first examined whether the AAT misapplied or misconstrued s 501CA(4) of the Migration Act. The Court held the AAT was required to consider whether there was another reason to revoke the original decision, not just affirm it. However, the AAT had considered relevant factors and properly balanced them. The Court found no error in the AAT's approach.

The Court then considered whether the AAT failed to comply with Ministerial Direction No 65. The applicant argued the AAT did not adequately consider his representations. The Court found the AAT did consider the applicant's representations and provided adequate reasons for its decision.

The Court also examined whether the AAT failed to give proper consideration to the applicant's representations. The Court found the AAT considered the applicant's representations and provided adequate reasons for its decision.

Finally, the Court considered whether the AAT made critical findings of fact without logically probative evidence. The applicant argued the AAT made unsupported findings about the Australian community's expectations. The Court found the AAT was entitled to make findings about community expectations based on the relevant law and facts before it.

The Court dismissed the application for judicial review and ordered the applicant to pay the respondent's costs. The AAT's decision affirming the Minister's non-revocation of the applicant's visa cancellation was upheld.

Orders

Orders of the court

1. The applicant be granted an extension of time in which to file an originating application for review of a migration decision to the date upon which an originating application was filed on 27 February 2018.

2. The draft amended originating application filed on 15 June 2018 be treated as an amended originating application.

3. The amended originating application be dismissed.

4. The applicant pay the first respondent’s costs as assessed or agreed.

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

Background

Background to the litigation

It is appropriate to acknowledge at the outset the considerable assistance given to the Court by pro bono counsel for the applicant. Background and procedural history The applicant, Mr Maka Afu, is a citizen of Tonga. He arrived in Australia with his parents and three siblings when he was an adolescent (the materials are inconsistent as to whether he was 12 or 13 at the time). On 1 September 1994, he was granted permanent residency in Australia by way of a Class BF Transitional (Permanent) visa. He is now aged 49. The applicant has three children residing in Australia and a number of his close and extended family members also reside in Australia. The applicant has a lengthy history of criminal offending in Australia spanning from 1986 to the present. That history includes a number of violent criminal offences and related periods of imprisonment. Following his first adult conviction and sentence for a violent offence in 1989, the applicant was warned by the then Department of Immigration, Local Government and Ethnic Affairs that his conviction rendered him liable for deportation from Australia pursuant to the Migration Act, but that deportation would not be ordered on that occasion. After a number of convictions for which he received non-gaol-based sentences or suspended sentences, on 24 November 2005, the applicant was convicted of maliciously inflicting grievous bodily harm and sentenced to four years’ imprisonment. On 5 December 2007, the then Department of Immigration and Citizenship advised the applicant that his visa was liable for cancellation on character grounds, but that, again, a delegate of the Minister had decided not to cancel the applicant’s visa at that time. The applicant was explicitly made aware on that occasion that this was his second warning about possible visa cancellation, and that his history of violence, which had thus far resulted in one death, required personal reform. On 7 October 2015, the Minister issued to the applicant a notice of intention to consider the cancellation of his visa pursuant to s 501(2) of the Migration Act on character grounds. The materials before the Court are not explicit as to what triggered the issue of this notice, but it seems likely that it was the imposition of a term of imprisonment upon the applicant in 2014 for contravening an apprehended violence order in relation to the mother of his children. In any event, in response to the notice, the applicant completed a personal details form on 15 October 2015. He also provided a letter of support from his son dated several weeks earlier. On 20 May 2016, the applicant was convicted of a string of offences, including assault occasioning actual bodily harm, and was sentenced to nine months’ imprisonment. On 25 October 2016, the Minister sent a notice to the applicant advising him that his visa had been mandatorily cancelled pursuant to s 501(3A) of the Migration Act, and invited the applicant to make representations about revocation of the decision to cancel his visa. The applicant made such representations on or about 7 November 2016 and requested that the Minister revoke the cancellation of his visa.Before the delegate

Evidence

Evidence Before The Court

This sub-ground of review does not reach the point of identifying any jurisdictional error, much less making out such an allegation. The fact of authorising contact to be made did no more than enable the Tribunal to do so if it found that such a course was necessary or appropriate. Nothing more can be derived from such an authorisation in the circumstances of this case. The Tribunal was not under any obligation to record in its reasons the fact that such an authorisation had been given, let alone take any step in acting upon such an authorisation. This sub-ground of review must therefore fail.Ground 4 – making critical findings of fact without logically probative evidence The terms of this ground of review are as follows:The Tribunal made factual findings which were critical to its decision in the absence of logically probative evidence.Particularsa.In its reasons for decision dated 8 November 2017, the Tribunal found that:(i) for violent transgressions, the Australian community would have less regard to the individual, err on the side of visa revocation and want that person deported (at [105]); and(ii) it would be preferable for the Australian community to see the Applicant deported to Tonga (at [108]).b.There was no probative evidence before the Tribunal, including from Ministerial Direction No 65, which supported either finding.c.These findings were significant to the Tribunal’s decision because the expectations of the Australian community was one of two considerations upon which the Tribunal affirmed the decision under review (at [124] of its reasons for decision). The applicant submits that the Tribunal made factual findings that were critical to its decision without the support of logically probative evidence. It is not in doubt that if that circumstance can be shown to exist, it can amount to jurisdictional error: see BZC17 v Minister for Immigration and Border Protection [2018] FCA 902 at [100]. The applicant submits that that is so in this case. In support of that submission, the applicant characterised the following as constituting findings that were made without the support of logically probative evidence:(1)that for violent transgressions, the Australian community would have less regard to the individual, err on the side of visa cancellation and want that person deported: Tribunal reasons at [105]; and(2)that it would be preferable for the Australian community to see the applicant deported to Tonga: Tribunal reasons at [108]. The applicant characterises those two findings as being critical to the Tribunal's decision because the expectations of the Australian community were one of two considerations upon which the decision under review was affirmed. The applicant submits that there was no logically probative evidence before the Tribunal, including from Direction 65, which supported either of those two findings. The Minister submits that it is plainly unnecessary for the Tribunal to have evidence before it of the views of Australians before it can make findings as to what it considers to be the expectations of the Australian community in a given case. That is because the Tribunal, in common with the Minister or his delegate, is permitted to have regard to the expectations of the Australian community in the context of determining whether or not to revoke the cancellation of a non-citizen’s visa. That, in turn, is because, quoting Djalic v Minister for Immigration [2004] FCA 151; 139 FCR 292 at [71]: … the legislation is designed to protect the community from criminal or other undesirable conduct and to permit the Minister to give effect to what might loosely be described as community expectations that perpetrators of such conduct, should not be a permitted to remain in Australia.

Decision

Reasons for decision

The Tribunal then turned to “other considerations” (as listed above at [16]) insofar as they were relevant. It concluded the following as to the considerations it deemed relevant:(1)The nature, strength and duration of the applicant’s ties to Australia were in his favour.(2)The only potential impact on victims would be with regard to any future victim, a consideration which had been included in the assessment of the protection of the Australian community.(3)The extent of the applicant’s impediments if removed was a significant factor, particularly as the removal was permanent.The Tribunal’s conclusion The Tribunal then balanced its considerations and concluded the following:123.Taking all things into consideration, I regard the primary considerations as being paramount here, those being the protection of the Australian community, the best interests of the children, and the expectations of the Australian community.124.For the reasons given, the protection of the Australian community and the expectations of the Australian community necessitate that in this case, because of the serious nature of the various offences committed over three decades, and the continued nature of the serious assaults, that there can be only one decision that this Tribunal can make and that is that the decision of the delegate of the Minister is correct, and his visa does have to be cancelled.Before this Court The applicant commenced proceedings in this Court by way of an originating application filed on 27 February 2018, and now seeks to rely upon four grounds of review contained in a draft amended originating application filed on 15 June 2018.Ground 1 – misapplying or misconstruing s 501CA(4) of the Migration Act The terms of this ground of review are as follows (emphasis in original):The decision of the Tribunal of 25 September 2017 is affected by jurisdictional error because:1.The Tribunal misapplied or misconstrued s 501CA(4) of the Migration Act 1958 (Cth) (the Act), asked itself the wrong question, or otherwise committed jurisdictional error.Particularsa. In its reasons for decision dated 8 November 2017 at [124], the Tribunal concluded “that there can be only one decision that the Tribunal can make and that is that the decision of the delegate of the Minister is correct and [the Applicant’s] visa does have to be cancelled”.b. The Tribunal was instead required to ask itself and consider whether there was another reason why the original decision should be revoked: s 501CA(4)(b)(ii) of the Act. The penultimate paragraph of the Tribunal’s reasons, [124], is set out in full above at [28]. The applicant submits that the Tribunal’s conclusion “that there can be only one decision that the Tribunal can make and that is that the decision of the delegate of the Minister is correct and [the applicant’s] visa does have to be cancelled” constitutes jurisdictional error by the misapplication or misunderstanding of s 501CA(4) of the Migration Act, or otherwise a failure by the Tribunal to ask itself the correct question, so as to fail to fulfil its statutory task. The applicant submits that, under s 501CA(4)(b)(ii) of the Migration Act, the Tribunal was instead required to consider whether there was another reason why the original decision should be revoked.

Ratio Decidendi

Legal Principle Established

The Tribunal noted with regard to the primary considerations that while the best interests of minors as a criterion was “quite strongly” in favour of the applicant, the two other main criteria of the protection and expectations of the Australian community were “strongly against him”.Other considerations The Tribunal then turned to “other considerations” (as listed above at [16]) insofar as they were relevant. It concluded the following as to the considerations it deemed relevant:(1)The nature, strength and duration of the applicant’s ties to Australia were in his favour.(2)The only potential impact on victims would be with regard to any future victim, a consideration which had been included in the assessment of the protection of the Australian community.(3)The extent of the applicant’s impediments if removed was a significant factor, particularly as the removal was permanent.The Tribunal’s conclusion The Tribunal then balanced its considerations and concluded the following:123.Taking all things into consideration, I regard the primary considerations as being paramount here, those being the protection of the Australian community, the best interests of the children, and the expectations of the Australian community.124.For the reasons given, the protection of the Australian community and the expectations of the Australian community necessitate that in this case, because of the serious nature of the various offences committed over three decades, and the continued nature of the serious assaults, that there can be only one decision that this Tribunal can make and that is that the decision of the delegate of the Minister is correct, and his visa does have to be cancelled.Before this Court The applicant commenced proceedings in this Court by way of an originating application filed on 27 February 2018, and now seeks to rely upon four grounds of review contained in a draft amended originating application filed on 15 June 2018.Ground 1 – misapplying or misconstruing s 501CA(4) of the Migration Act The terms of this ground of review are as follows (emphasis in original):The decision of the Tribunal of 25 September 2017 is affected by jurisdictional error because:1.The Tribunal misapplied or misconstrued s 501CA(4) of the Migration Act 1958 (Cth) (the Act), asked itself the wrong question, or otherwise committed jurisdictional error.Particularsa. In its reasons for decision dated 8 November 2017 at [124], the Tribunal concluded “that there can be only one decision that the Tribunal can make and that is that the decision of the delegate of the Minister is correct and [the Applicant’s] visa does have to be cancelled”.b. The Tribunal was instead required to ask itself and consider whether there was another reason why the original decision should be revoked: s 501CA(4)(b)(ii) of the Act. The penultimate paragraph of the Tribunal’s reasons, [124], is set out in full above at [28]. The applicant submits that the Tribunal’s conclusion “that there can be only one decision that the Tribunal can make and that is that the decision of the delegate of the Minister is correct and [the applicant’s] visa does have to be cancelled” constitutes jurisdictional error by the misapplication or misunderstanding of s 501CA(4) of the Migration Act, or otherwise a failure by the Tribunal to ask itself the correct question, so as to fail to fulfil its statutory task. The applicant submits that, under s 501CA(4)(b)(ii) of the Migration Act, the Tribunal was instead required to consider whether there was another reason why the original decision should be revoked.