Ali v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Ali v Minister for Home Affairs [2018] FCA 1895

File number: NSD 1407 of 2018
Judge: BROMWICH J
Date of judgment: 30 November 2018
Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal to affirm decision of delegate of first respondent to refuse to revoke decision to cancel applicant’s visa – whether Tribunal misconstrued Direction No. 65 by misconstruing [14.2(1)], by incorrectly relying upon a “balance of probabilities” standard, by erroneously assessing expectations of the Australian community, or in erroneously expressing its final conclusions – whether decision of Tribunal was infected by jurisdictional error by reason of legal unreasonableness – held: both grounds of review must fail – held: application dismissed
Legislation:

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 499, 501(3A), (6)(a), (7)(c), 501CA(4)(b)(ii)

Cases cited:

Afu v Minister for Home Affairs [2018] FCA 1311

Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592

Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 338

DAF18 v Minister for Home Affairs [2018] FCA 1367

FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 310 ALR 1

Hooton v Minister for Home Affairs [2018] FCAFC 142

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1

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

QSVS v Minister for Home Affairs [2018] FCAFC 124

Romanov v Minister for Home Affairs [2018] FCA 1494

Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162

Siueve v Minister for Home Affairs (Migration) [2018] AATA 1079

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Tupai v Minister for Home Affairs [2018] FCA 986

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

Viane v Minister for Immigration and Border Protection [2018] FCAFC 116

Wehi v Minister for Immigration and Border Protection [2018] FCA 1176

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

Date of hearing: 9 November 2018
Registry: New South Wales
Division: General
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 63
Counsel for the Applicant: Mr J Donnelly with Mr J Adamopoulos
Solicitor for the Applicant: Kyu & Young Lawyers
Counsel for the First Respondent: Mr M Cleary
Solicitor for the First Respondent: Clayton Utz
Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 1407 of 2018
BETWEEN:

SHAMSHER ALI

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

BROMWICH J

DATE OF ORDER:

30 NOVEMBER 2018

THE COURT ORDERS THAT:

1.The amended originating application be dismissed.

2.The applicant pay the first respondent’s…

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Details
Case
[2018] FCA 1895
Decision Date

CaseChat Overview and Summary

Ali brought an application for judicial review of a decision of the Administrative Appeals Tribunal (AAT) affirming the decision of the delegate of the Minister for Home Affairs to refuse to revoke a decision to cancel his visa. The Federal Court was required to decide whether the AAT misconstrued Direction No. 65 by misconstruing [14.2(1)], by incorrectly relying upon a "balance of probabilities" standard, by erroneously assessing expectations of the Australian community, or in erroneously expressing its final conclusions. The Court was also required to decide whether the decision of the AAT was infected by jurisdictional error by reason of legal unreasonableness.

The Court found that Mr Ali's argument read too much into the Tribunal's reasons and failed to read them beneficially. The Court found that there was no error in the substantive way in which the Tribunal assessed and applied the primary consideration of community expectations. The Court found that the Tribunal properly weighed the competing factors against one another and reached a conclusion, as to which no error was alleged or identified. The Court found that the Tribunal quoted from two prior Tribunal decisions for guidance as to the general approach to be taken, together with a more recent decision of this Court which addressed the current Direction 65. The Court found that the Tribunal's reasons were clear and that the Tribunal had given proper consideration to the primary and other considerations required under the Direction.

The Court dismissed the application and ordered that the applicant pay the first respondent's costs as agreed or assessed.

Orders

Orders of the court

1. The amended originating application be dismissed.

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

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Under the heading “Matters for the Tribunal’s consideration", the Tribunal correctly described the statutory framework for the revocation of a mandatory visa cancellation, and the undisputed fact that Mr Ali did not past the character test. In those circumstances, the issue before the Tribunal was correctly described as whether, for the purposes of s 501CA(4)(b)(ii) of the Migration Act, there was “another reason” why the visa cancellation decision should be revoked. The Tribunal then stated (at [38]-[40], with footnotes embedded in the text in square brackets and emphasis in original):In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, North ACJ elaborated on how to approach this discretion:The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. [at [38]]It has also been stated by this Tribunal that:The existence or otherwise of “another reason” should be established on the balance of probabilities. [Siueva v Minister for Home Affairs (Migration) [2018] AATA 1079 at [21]]The Evidence on the Applicant’s BehalfHowever, before proceeding to consider matters according to the requirements set out in the Direction, the Tribunal thinks it appropriate to interpolate a summary of the evidence presented in support of Mr Ali by various members of his family. No issue was taken by Mr Ali as to the correctness of the Tribunal relying on the passage quoted above from Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 338 at [38]. However, Mr Ali contended that the subsequent quote from the prior Tribunal decision of Siueve v Minister for Home Affairs (Migration) [2018] AATA 1079 at [21] entailed asking the wrong question, so as to constitute jurisdictional error. Reliance was placed by Mr Ali upon the following propositions established by authority that he cites as to the application of the “another reason” criterion under s 501CA(4)(b)(ii) of the Migration Act:(1)the necessary state of satisfaction as to whether or not there is “another reason” why the visa cancellation decision should be revoked requires weighing the factors for and against that outcome: Romanov v Minister for Home Affairs [2018] FCA 1494 at [2]; Hooton v Minister for Home Affairs [2018] FCAFC 142 at [52]; DAF18 v Minister for Home Affairs [2018] FCA 1367 at [29]; Wehi v Minister for Immigration and Border Protection [2018] FCA 1176 at [28]-[29]; QSVS v Minister for Home Affairs [2018] FCAFC 124 at [20]; Tupai v Minister for Home Affairs [2018] FCA 986 at [30];(2)there is a statutory obligation to consider whether the required state of satisfaction is met by reference to the material presented in the representations made in support of revocation: Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592 at [49] (it is noted that that decision was overturned by the Full Court of this Court in Minister for Home Affairs v Buadromo [2018] FCAFC 151, but not in such a way as to cast doubt on this proposition); Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [66], [72] and [75]; Hay v Minister for Home Affairs [2018] FCAFC 149 at [13]; Tupai v Minister for Home Affairs [2018] FCA 986 at [116];(3)the civil standard in the Evidence Act 1995 (Cth) is not applicable to a decision under s 501CA(4)(b)(ii): Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162 at [28];(4)the “other reason” must be a reason that carried “sufficient weight or significance” to satisfy the decision-maker that the cancellation decision should be revoked: Viane at [64];(5)a party to Tribunal proceedings bears no onus of proof, nor any onus to establish facts to any particular pre-determined standard, citing FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 310 ALR 1 at [34] for the fundamental proposition that notions of standard and onus of proof do not find “ready accommodation in administrative decision making, where no issue is joined between parties”;(6)the concept of community expectations is not a matter to be measured as though it were a provable fact, but, rather, as an assessment made on behalf of the community: Afu v Minister for Home Affairs [2018] FCA 1311 at [85] (see also YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]-[77] and Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [64]-[65], relied upon by Mr Ali in relation to the next limb of this ground of review, considered below).

Decision

Reasons for decision

In my view, Mr Ali’s argument reads too much into the Tribunal’s reasons and, in so doing, fails to read them beneficially as this Court is required to do: see again Wu Shan Liang at 271‑2. While there may be some infelicity in the Tribunal referring to its opinion or belief, and while references of that kind are best avoided because of the risk of it leading to error, the passing use of those subjective phrases without more cannot and should not be used to obscure an assessment of the Tribunal’s evaluative exercise in the absence of infected reasoning being demonstrated. Mere personal agreement, by way of opinion or belief, with a prior understanding of the expectations of the Australian community is an unnecessary gloss on the state of satisfaction required, but does not deny that state of satisfaction having been reached, nor, in this case, impugn the process by which it was reached. An agreement with what is assessed to be community expectations is a distraction. It might, in some cases, be seen to cloud the formation of the requisite state of mind, but not in this instance. I can see no error, let alone jurisdictional error, in the substantive way in which the Tribunal assessed and applied the primary consideration of community expectations. The competing factors were properly weighed against one another and a conclusion reached, as to which no error is alleged or identified. Limb 4 – error in the expression of the final conclusions The substance of Mr Ali’s complaint is that the Tribunal, having posed the correct question at [37] of its reasons, namely whether under s 501CA(4)(b)(ii) there was “another reason” why the cancellation decision should be revoked, failed to repeat that question in its final conclusions and squarely and precisely answer it. Under the heading “Conclusions”, the Tribunal quoted from two prior Tribunal decisions for guidance as to the general approach to be taken, each having been made under an antecedent version of Direction 65, together with a more recent decision of this Court which addressed the current Direction 65, as follows (at [149]-[151], footnotes embedded in the text in square brackets):After consideration of all the primary and other considerations which are required under the Direction, the Tribunal must come to a final conclusion. This final “calculus” has been characterised by the Tribunal in the following terms:Having considered the applicable primary considerations and the other relevant considerations in this case, the ultimate task of the Tribunal is to determine, on the basis of the appropriate weight to be given to each of those considerations having regard to Direction [41], whether or not those considerations, on balance, favour cancellation, or non-cancellation, of the visa. [Applicant 4262 of 2011 v Minister of Immigration and Citizenship [2011] AATA 920 at [88]. Ministerial Direction No. 41 was an earlier version of Ministerial Direction No. 65.]Giving appropriate weight is not a mechanical process, it must by the very nature of the Act and the Direction be essentially subjective – a matter of fine judgment. As the Tribunal has said elsewhere:The balancing process contemplated by the Direction is not a simple mechanical exercise. One does not reach a conclusion by assigning values to particular considerations and tallying the differences. Beginning with each of the primary considerations – and without forgetting other considerations that are generally regarded as being of lesser weight – we must ask ourselves: what is the preferable decision in this case? [Visa Cancellation Applicant v Minister for Immigration and Citizenship [2011] AATA 690 at [49]]That is the broad approach which this Tribunal takes, although with the modification set out in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.

Ratio Decidendi

Legal Principle Established

It was not in dispute that the schemes for visa cancellation on character grounds and revocation of a cancellation decision in the Migration Act 1958 (Cth) meant that:(1)by reason of Mr Ali’s 2010 conviction and gaol sentence of a year or more (albeit suspended) and the fact that in 2017 he was serving a gaol term for a subsequent conviction at the time of the visa cancellation decision, he failed the “character test” and his visa was subject to mandatory cancellation: s 501(3A), (6)(a) and (7)(c);(2)by reason of his prior 2010 conviction and sentence, he could not pass the “character test” as a means of securing the revocation of the visa cancellation decision: s 501CA(4)(b)(i); and(3)the question for determination by the Tribunal was whether there was “another reason” why the cancellation decision should be revoked: s 501CA(4)(b)(ii).Direction No. 65 under s 499 of the Migration Act In conducting merits review of the delegate’s revocation decision, and in particular in determining whether there was “another reason” why the cancellation decision should be revoked, the Tribunal (like the delegate, but unlike the Minister) was bound by Direction No. 65, made by the Minister under s 499 of the Migration Act. Mr Ali’s challenge concerns the way in which the Tribunal determined that the reasons he advanced for revocation should not prevail so as to reverse the delegate’s adverse revocation decision. It was common ground that the mandatory “other” considerations in [14(1)] of Direction 65 were not exhaustive. In the Tribunal, Mr Ali relied in particular upon the following parts of Direction 65, which are reproduced below:(1)the strength, nature and duration of his ties to Australia: [14(1)(b)]; and (2)the extent of the impediments he would face if he were made to return to Fiji by reason of his visa remaining cancelled: [14(1)(e)]. Because Mr Ali’s case turns in significant measure on the precise terms of particular paragraphs of Direction 65, and because the Minister relies on the precise terms of other paragraphs, it is convenient to reproduce the following extracts that are raised by, or relevant to, the competing arguments, so as to make the consideration of those arguments below easier to follow:6. Preamble6.1 Objectives…6.2General Guidance(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.…6.3Principles(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement network, and will not cause or threaten harm to individuals or the Australian community.(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.…Section 2 Exercising the discretion7. How to exercise the discretion(1) Informed by the principles in paragraph 6.3 above, a decision-maker:…b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.…8. Taking the relevant considerations into account…(4)Primary considerations should generally be given greater weight than the other considerations.(5)One or more primary considerations may outweigh other primary considerations.…PART C13.Primary considerations – revocation requests…(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:a)Protection of the Australian community from criminal or other serious conduct;b)The best interests of minor children in Australia;c)Expectations of the Australian community.[This is followed by the following topics addressing the primary considerations list in [13(2)]:13.1 Protection of the Australian community13.1.1 The nature and seriousness of the conduct13.1.2The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct13.2 Best interests of minor children in Australia affected by the decision13.3 Expectations of the Australian community]…14. Other considerations – revocation requests(l)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):a) International non-refoulement obligations;b) Strength, nature and duration of ties;c) Impact on Australian business interests;d) Impact on victims;e) Extent of impediments if removed.14.1 International non-refoulement obligations…14.2 Strength, nature and duration of ties(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:i.less weight should be given where the non-citizen began offending soon after arriving in Australia; andii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).14.3 Impact on Australian business interests…14.4 Impact on victims(1)Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.14.5 Extent of impediments if removed(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:a) The non-citizen’s age and health;b) Whether there are substantial language or cultural barriers; andc) Any social, medical and/or economic support available to them in that country.Tribunal reasons