Andrwas v Minister for Home Affairs
[2018] FCA 1996
•29 November 2018
FEDERAL COURT OF AUSTRALIA
Andrwas v Minister for Home Affairs [2018] FCA 1996
File number: NSD 1247 of 2018 Judge: RARES J Date of judgment: 29 November 2018 Legislation: Migration Act 1958 (Cth) ss 36, 65, 499, 501, 501CA
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
International Covenant on Civil and Political Rights
Refugees Convention
Cases cited: BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
ETA067 v Republic of Nauru (2018) 360 ALR 228
Nigam v Minister for Immigration and Border Protection (2017) 254 FCR 295
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Uelese v Minister for Immigration and Border Protection (2015)256 CLR 203
Date of hearing: 29 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 70 Counsel for the Applicant: Ms S M Kelly Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Ms L A Coleman Solicitor for the First Respondent: MinterEllison Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1247 of 2018 BETWEEN: ISSA ANDRWAS
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
29 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The applicant have leave to file a further amended originating application for review of a migration decision.
2.The further amended originating application be dismissed.
3.The applicant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
RARES J:
This is an application to review the decision of the Administrative Appeals Tribunal given on 2 July 2018 not to revoke the decision of a delegate of the Minister made on 9 April 2018, to cancel the applicant’s class BB subclass 155 (five year resident return) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth). The matter has been very ably argued by counsel on both sides.
The applicant is a citizen of Jordan. There was no issue before the Tribunal, which heard witnesses and argument over three days, that he failed the character test because he had a substantial criminal record involving numerous offences for which he had been sentenced for terms greater than 1 years’ imprisonment. He had an extensive criminal history in Australia involving a great number of offences for fraud and deception committed between 2002 and 2016. He had been convicted and sentenced most recently, on 15 December 2016, on six counts of dishonestly obtaining a financial advantage by deception and related offences, as well as escaping from lawful custody, for which he received a head sentence of three years and three months’ imprisonment with a one year and 10 month non-parole period with conditions.
The issues
Essentially, the further amended application raised five grounds that the applicant pressed as to why the Tribunal had made a jurisdictional error in deciding not to exercise its discretion to revoke the delegate’s decision, namely that:
(1)it failed to comply with an obligation under Ministerial Direction No. 65 (Direction 65) made pursuant to s 499(1) of the Act to consider, as a mandatory consideration, the impact of the cancellation on Australia’s business interests by reason that the material before the Tribunal included the fact that the applicant had a qualification, and had in the past worked, as a welder, which was, at one stage, a skill in short supply (the welding qualification issue);
(2)it failed to decide positively under cll 13(2)(b) and 13.2 of Direction 65 whether or not the revocation of cancellation would be in the best interests of the applicant’s 16‑year‑old daughter (the positive decision issue);
(3)it failed to give appropriate weight to the statement in its reasons that the other two primary considerations in Direction 65 did not outweigh the primary consideration that the revocation of the cancellation was in the best interest of the applicant’s 16-year-old daughter and or it did not weigh all of the considerations in favour of revocation against those to the contrary (the weighing issue);
(4)it constructively failed to exercise its statutory function by placing little weight on the five-year period of the applicant’s residence in Australia before his first offending, because it found that its doing so was in accordance with cl 14.2(1)(a)(i) of Direction 65, when it was not in accordance with that provision (the cl 14.2 issue); and
(5)it misapprehended the distinction between s 501CA(4) and the criteria for granting a protection visa under s 36(2)(a) and (aa), and so failed to have regard to the totality of Australia’s non-refoulement obligations in respect of the applicant in arriving at its decision (the non-refoulement issue).
Direction 65
Relevantly, cl 6 of Direction 65 informed the decision-maker that the objective of the Act was to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Clause 6.1(3) provided that, where the decision-maker was considering the exercise of the discretion under s 501CA(4), he, she or it:
…must consider whether to revoke the cancellation given the specific circumstances of the case. (emphasis added)
Clause 6.2 described matters of general guidance, including the Government’s commitment to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Clause 6.3 identified the principles that decision-makers had to apply, including: Australia’s sovereign right to determine whether non-citizens, who were of character concern, should be allowed to remain in Australia; the expectations of the Australian community that the Government can, and should, cancel visas if non-citizens committed serious crimes in Australia or elsewhere; and that in circumstances where the non-citizen had committed a serious crime, that person should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
Section 2 of Direction 65 identified how the discretion should be exercised and how relevant considerations should be taken into account, relevantly providing in cl 7(1)(a) that a decision‑maker had to take into account the considerations in Part C for the purposes of exercising the discretion under s 501CA(4). Clause 8(1) required decision-makers to:
…take into account the primary and other considerations relevant to the individual case. (emphasis added)
Here, the relevant considerations in Part C and cl 8(3), provided that both primary and other considerations may weigh in favour of or against whether or not to revoke a mandatory cancellation of a visa, while cl 8(4) provided that primary considerations generally should be given greater weight than other ones and cl 8(5) provided that one or more primary considerations may outweigh other primary considerations. Part C provided that where the discretion to consider revocation was enlivened, the decision-maker had to consider whether to revoke the cancellation “given the specific circumstances of the case” (cl 13(1)) and that in that consideration, there were three primary considerations; namely, first, protection of the Australian community from criminal or other serious conduct (the protection consideration), secondly, the best interests of minor children (the best interests consideration), and thirdly, the expectations of the Australian community (the expectations consideration) (cl 13(2)).
Each of those primary considerations was elaborated in the remaining provisions of cl 13. Relevantly, cl 13.2(1) provided, in respect of the best interests consideration, that:
Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child. (emphasis added)
However, cl 13.2(2) said that the consideration applied only if the child was, or would be, under 18 years of age at the time when the decision to revoke or not revoke the mandatory cancellation decision was expected to be made. Clause 13.2(4) set out a number of factors that had to be considered, where relevant, including: the nature and duration of the relationship between the child and non-citizen; the extent to which the non-citizen was likely to play a positive parental role in the future, taking into account the length of time until the child turned 18; and, the likely effect of any separation of the non-citizen on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways.
Clause 14 in Part C, headed “Other considerations – revocation requests”, included, in cl 14(1), that other considerations had to be taken into account where relevant, and these included, but were not limited to, first, international non-refoulement obligations, secondly, the strength, nature and duration of ties, thirdly, the impact on Australia’s business interests, and, fourthly, the extent of impediments if the non-citizen were removed. Clause 14.1 dealt with international non-refoulement obligations, noting that these were an obligation not forcibly to return, deport or expel a person to a place where they will be at risk of specific types of harm, and that the Act had reflected Australia’s interpretation of those obligations. It stated that, where relevant, decision-makers needed to follow the tests enunciated in the Act, bearing in mind that s 5 defined such obligations as including non-refoulement obligations under the Refugees Convention as amended by the 1967 Protocol, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights and its Second Optional Protocol.
Clause 14.1(2) stated that the existence of a non-refoulement obligation did not preclude non‑revocation of the mandatory cancellation of a non-citizen’s visa, adding:
This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
And cl 14.1(3) expressly noted that claims that could give rise to international non-refoulement obligations were open to be raised by the non-citizen under s 501CA. But cl 14.1(4) provided that, where a non-citizen made claims that might give rise to international non-refoulement obligations and the non-citizen would be able to make a valid application for another visa if the mandatory cancellation were not revoked, it was not necessary for the decision-maker to determine whether the non-refoulement obligations were owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
Where the cancellation was of a protection visa, cll 14.1(5) and (6) provided that the decision‑maker should seek an assessment of Australia’s international treaty obligations, commonly known as an ITOA, and carefully weigh any of those obligations against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not to reinstate the visa. Clause 14.2(1)(a) provided:
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:
iless weight should be given where the non-citizen began offending soon after arriving in Australia; and
iiMore weight should be given to time the non-citizen has spent contributing positively to the Australian community.
Clause 14.3 provided that the impact on Australian business interests, if cancellation of a non‑citizen’s visa were not revoked, ought be considered in the context that the decision-maker should note that any employment link would generally only be given weight where the non‑revocation would significantly compromise the delivery of a major project or an important service in Australia, and cl 14.5 provided that:
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; and
c) Any social, medical and/or economic support available to them in that country.
The proceeding in the Tribunal
On 9 January 2017, a delegate cancelled the applicant’s visa under s 501(3A) on character grounds and invited the applicant to make representations to the Minister to have the cancellation revoked under s 501CA. The applicant made such representations and provided a considerable deal of material to the delegate to consider along with other matters contained in his extensive migration file that was before both the delegate and the Tribunal.
The Tribunal set out the requirements of the relevant statutory provisions to which it had to have regard including those aspects of Direction 65 that bore on the exercise of its functions and powers, such as Part C. The Tribunal structured its reasons following through the scheme of addressing each of the three mandatory, primary considerations in cl 13, as well as, relevantly, the consideration, under cl 14.1(2), of non-refoulement obligations under cl 14.1 and the extent of impediments to the applicant, were he removed, under cl 14.5.
The Tribunal, first, discussed the protection consideration at some length, by considering the applicant’s extensive criminal history that ranged over a period of more than 13 years, and as a result of which, since 2002 he had spent about seven years and three months in prison. It set out a number of his most significant offences, including:
·two significant offences of stealing property worth in total over $100,000 for which he was convicted and sentenced in 2005;
·another series of offences for which he was convicted and sentenced in March 2009, including committing an offence while having a previous conviction, entering a building or land with intent to commit an indictable offence, “destroy or damage property” and “receive property – theft”; and
·his convictions and sentence in November 2014 by the District Court of New South Wales on 10 counts of dishonestly obtaining benefits and two counts of knowingly dealing with the proceeds of crime.
The 2014 convictions concerned numerous instances of the applicant engaging in credit card skimming and fraud, involving the significant aggravating factor, as found by the sentencing judge, that those offences had been committed while he was on bail. The Tribunal also found that his last convictions in 2016 on six more offences of using cloned credit cards were the same character as those in 2014. The “cloning” involved using information skimmed surreptitiously from another person’s credit card in a way that enabled the applicant to fabricate a new card and use the information he had taken from a genuine holder’s card to obtain money for his own purposes from it. Once again, the sentencing judge had regard to the aggravating factor that the applicant had committed those further crimes while on conditional liberty for similar offences. Each of the sentencing judges noted, as the Tribunal explained, that the applicant had given a history of his having serious gambling and substance abuse addictions which motivated his offending.
The Tribunal found (at [26]) that, having regard to the circumstances of his criminal behaviour and the compounding nature of the offences over many years, his conduct should be viewed very seriously, and although the offences did not involve violence or any sexual aspect, the significant extent of that criminal offending was, in its view:
…alarming; coupled with the fact that the applicant frequently committed offences while he was on bail for other similar offences.
It found that the nature and the seriousness of his criminal conduct should be viewed very seriously. It then considered the risk to the community should the applicant commit further offences or engage in other serious conduct, noting that the main contributing factor was his drug and gambling addictions which he had acknowledged in his sentencing hearings on a number of occasions. The Tribunal said that in considering the risk of reoffending, it was (at [29]):
…very concerned that the applicant has frequently committed offences while on bail for similar offences, and that he had committed significant offences only a short period after receiving warnings from the Department regarding the risk to his visa if he were to continue to offend.
The warnings to which the Tribunal referred were decisions that the Department had made and communicated to the applicant when it told him of the risk of his visa being cancelled should he continue to engage in criminal offending. The Tribunal rejected the applicant’s submission that he had not understood the seriousness of each of his conduct and of the possibility of visa cancellation. It gave reasons for that rejection, about which no complaint is made.
The Tribunal then considered the character and employment evidence which the applicant called or tendered from witnesses or friends, and it assessed the strength of the evidence and the witnesses’ references. In an earlier part of his career, the applicant had been a skilled welder. However, no attention was paid in the course of the Tribunal’s reasons to that skill, and this factor is the source of the welding qualification issue.
The Tribunal took into account that since entering custody on remand in November 2015, the applicant had not been involved in any institutional misconduct, both while in prison or immigration detention, and that he had displayed insight into his offending behaviour by addressing his illicit substance abuse, and had undertaken courses to address that behaviour.
One of his referees was a former employer who gave evidence to the Tribunal personally. He said that he would have no hesitation in offering the applicant a position again as a carpet cleaner with his company when he was released from gaol. The Tribunal found that those matters reflected positively on him. It noted that, on balance, having regard to all of the evidence before it, particularly the applicant’s extensive criminal record, that (at [61]):
…there is a significant risk that the applicant will engage in further criminal or other serious conduct of the nature of which he has been involved in the past; posing a significant risk of substantial harm to the Australian community. The repeated and persistent nature of the applicant’s criminal offending and the obvious lack of deterrence by imprisonment, threat of visa cancellation and the threat of deportation back to Jordan weighs very heavily against the exercise of discretion to revoke the cancellation of the applicant’s visa. (emphasis added)
The Tribunal found that the applicant’s behaviour had demonstrated a lack of insight and remorse into his criminal offending and gave it little comfort when considering his risk of future reoffending. It found that he had had many “serious wake-up calls”, through multiple periods of incarceration and previous warnings about the cancellation of his visa, but had continued to reoffend, often while on bail for previous offences. The Tribunal was not convinced that the applicant had adequately addressed his drug and gambling addictions which were the main contributing factors to his offending behaviour and concluded that for all of the reasons it had expressed (at [62]):
…the risk to the Australian community weighs heavily in favour of a decision that the applicant’s visa be cancelled. (emphasis added)
Turning secondly to the best interests consideration, the Tribunal set out cl 13.2 of Direction 65 that required it to make a determination as to whether the cancellation was or was not in the best interests of minor children. It referred to the evidence in support of non-revocation given by the applicant’s ex-wife and by his 16-year-old daughter and his 20-year-old son, both of whom were Australian citizens. Both his children gave evidence that they wished the applicant to remain. The Tribunal correctly noted that, for the purposes of the best interests consideration, it could only have regard to the interests of his 16-year-old daughter and proceeded to evaluate the various impacts on her which cancellation might have, including assessing his ex-wife’s and son’s evidence about those impacts.
Crucially, the Tribunal said at [71]-[72]:
Having regard to the evidence, I accept that the best interests of the applicant’s daughter may be served by the cancellation decision being revoked. This would allow for the possibility of face-to-face contact with her father during the remainder of her minor years and would allow him to be physically present in her life during the period that she transitions into womanhood. However, I give this consideration limited weight because the applicant has had a limited relationship with his daughter over the years. This is predominantly due to the fact that the applicant has spent a significant amount of her life in prison or detention. Another reason why this consideration should be given less weight is because the applicant’s daughter will be turning 18 in just over a year, limiting the extent to which the applicant will play a parental role in the future.
On balance, I consider that this primary consideration is not outweighed by the other primary considerations such as the expectations and protection of the Australian community. (emphasis added)
The positive decision issue arises because of the expression at the beginning of [71] of its reasons that the Tribunal accepted “the best interests of the applicant’s daughter may be served by the cancellation decision being revoked” (emphasis added).
The applicant argued in his written submissions that at [72], the Tribunal had treated the best interests consideration as outweighing the others. However, in the course of argument, his counsel accepted that there was a typographical error in [72] so that it should be understood to have said that the best interests consideration did not outweigh the other two primary considerations.
Thirdly, the Tribunal looked at the expectations consideration, setting out the criteria in cl 13.3(1) of Direction 65. It said that clearly the applicant had not met the expectation that he would obey the laws of Australia, and that over the 21 years he had spent in Australia, he had spent more than seven years in prison together with additional time in immigration detention, and that his offending behaviour commenced only five years after his arrival here. It said at [76]-[77]:
The serious nature and extent of the applicant’s criminal history demonstrates a prolonged disregard for Australian laws and for the impact his conduct has on the Australian community. Having twice received further opportunities to remain in the Australian community despite his offending, and having now offended again, the community would now expect that the applicant would be denied the opportunity to remain in Australia. He would no doubt have exhausted the trust and patience of the Australian community who would now expect that it is no longer appropriate for it to bear the cost of the resources expended in criminal justice and corrections involved in responding to the applicant’s offending.
This primary consideration weighs strongly in favour of not revoking the applicant’s visa cancellation. (emphasis added)
The Tribunal then turned to the other relevant considerations in cl 14 of Direction 65. It found that the applicant had strong family ties to Australia. It accepted the evidence of his children and ex-wife as to the emotional impact on the children were he to be removed from Australia. It found that a large number of friends and community members had willingly attended the Tribunal to give evidence in his support. It accepted that they may be impacted by his removal to Jordan and that he had a significant number of family members who resided here who were also affected by the decision, although, on the evidence, the Tribunal did not know the extent of that effect.
The Tribunal found (at [84]):
As already stated the applicant arrived in Australia 21 years ago and has resided continuously in Australia since that date. The applicant was convicted of his first criminal offences approximately 5 years after his arrival in Australia. In accordance with subparagraph 14.2(1)(a)(i) of the Direction, I place little weight on the time that the applicant has been a resident in Australia. (emphasis added)
The emphasised passage above is the source of the weighing issue.
The Tribunal found that, other than working for approximately 10 years in Australia and possibly paying taxes during that time, it had very limited evidence of the applicant’s positive contributions to the community and, therefore, found that (at [86]):
…this consideration favours the applicant however; it is significantly outweighed by the relevant primary considerations. (emphasis added)
The Tribunal then said that it was unnecessary to determine whether Australia owed non‑refoulement obligations in respect of the applicant because he was able to make a valid application for a protection visa, later. It found that, in the course of the proceedings in the Tribunal, the applicant had accepted that international non-refoulement obligations were not a relevant consideration in the proceedings before it, adding (at [88]):
It is accepted by the applicant that his claims made in regards to his safety and welfare upon returning to Jordan as a result of political unrest, his faith and an alleged blood feud are to be considered as impediments if removed. (emphasis added)
That is the source of the non-refoulement issue. The Tribunal then considered the extent of impediments if removed, saying at [89]-[93]:
Extent of impediments if removed
The applicant is in his early 40s and arrived in Australia 21 years ago. He has spent most of his early life in Jordan. There is no substantive language or cultural barrier to the applicant returning to Jordan.
The applicant claims to have significant concerns about returning to Jordan. I have had regard to the potential impediments if the applicant were to be removed, particularly:
(i) Difficulties the applicant would face as a Christian in a predominantly Muslim country;
(ii) The applicant not having served in the military;
(iii) The applicant’s current lack of employment (prospects) or accommodation in Jordan;
(iv) The applicant’s limited family in Jordan who could offer him support;
(v) The applicant’s need for medical treatment and mental health issues;
(vi) The potential danger faced by the applicant as a result of a “blood feud”. However, there is no evidence to support the details of such a blood feud nor is there any evidence suggesting that the applicant is subject to any risk; and
(vii) Political unrest in Jordan.
I have had regard to numerous news clippings and the country information provided in these proceedings. The nature and extent of the above impediments are not established on the evidence to be of a significant nature.
There is evidence before me that the applicant is affected by health conditions which require medical treatment. These include an eye injury sustained while in detention, treatment of a hernia and most significantly, the continued treatment of his diagnosed mental health condition. I accept that it may be more difficult for the applicant to obtain treatment for his mental health condition in Jordan. However, having regard to the report of the Department of Home Affairs, entitled Jordan: Cl180507163736778 - Mental Health Services - Drug Rehabilitation Services, it appears that mental health treatment is available if the applicant wishes to seek such treatment. Although I do accept that the applicant would have to re-establish a relationship with a medical provider and mental health specialist and I accept that the level of care available in Jordan may not be equal to that offered in Australia.
For the above reasons, I accept that the applicant will face a period of adjustment in Jordan and face certain impediments. This factor favours the revocation of the cancellation of the applicant’s visa, however it is significantly outweighed by the primary considerations of the risk to the Australian community and the community’s expectations. (emphasis added)
The Tribunal then concluded (at [94]) that for all of the reasons it had given, it was satisfied that the decision not to revoke the cancellation of the applicant’s visa was the correct decision and affirmed it.
The applicant’s submissions – the welding qualification issue
The applicant argued that the documents before the Tribunal included a submission by his solicitor and migration agent on 21 January 2015 for the purposes of an earlier delegate (i.e. not the one who cancelled the visa) considering whether, at that stage, the automatic cancellation of his visa for the offending for which he was sentenced in 2014 should be revoked under s 501CA(4). That submission stated that the applicant was a trained and experienced welder with wide experience in construction and civil engineering projects in Australia. The submission said:
Whilst not currently involved or engaged in any significant Australian infrastructure projects, his particular skill sets remain in chronic short supply. (emphasis added)
The Minister’s delegate decided on 27 February 2015 to revoke the earlier automatic visa cancellation, noting, in the letter informing the applicant of that decision, that this did not mean that his case could not be reconsidered again on character grounds in the event of further criminal offending. The applicant argued that because the submission was part of the matters considered by the delegate for the 27 February 2015 decision and was in the material before the Tribunal, it had failed to consider, in accordance with the requirement in cl 14.3(1), the impact of the non-revocation of his visa on the supply of persons capable of being welders in Australia.
The welding qualification issue – consideration
In my opinion, that submission must be rejected. In his statement of facts, issues and contentions for the Tribunal hearing, the applicant did not raise any issue about his welding qualifications, nor is there any material before me to suggest that he urged upon the Tribunal his welding qualifications as being a matter that fell for consideration in its deliberations. Indeed, the applicant relied in the Tribunal on the offer of the carpet-cleaning employment were he to have his visa restored, as it found. On the material before me and what appears to have been before the Tribunal, there was no evidence before it calling for it to consider whether cancellation of the visa would significantly compromise the delivery of any project, let alone a major project or delivery of any important service in Australia, for the purposes of cl 14.3(1) of Direction 65. I reject the ground of review based on the welding qualification issue.
The cl 14.2 issue – the applicant’s submissions
The applicant argued that by using the phrasing “in accordance with subparagraph 14.2(1)(a)(i) of the Direction” as a preface to its attribution of little weight to the time that the applicant had been resident in Australia before he began offending, the Tribunal had applied the wrong test. That was because, he contended, nothing in cl 14.2(1)(a)(i) required little or any particular weight to be placed on the applicant’s residence in Australia.
The cl 14.2 issue – consideration
In my opinion, the applicant’s construction of the Tribunal’s reasons on the cl 14.2 issue is a strained one. It does not accord due regard to the fact that the Tribunal was expressing its reasons for placing little weight on the time that the applicant had been resident in Australia in relation to the time at which he first came to be convicted of his offences, namely about five years after his arrival.
The reasons of an administrative decision-maker should not be read with an eye finely tuned to the perception of error. As French CJ, Bell, Keane and Gordon JJ said in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 195-196 [59]-[60]:
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [(1996) 185 CLR 259 at 272], Brennan CJ, Toohey, McHugh and Gummow JJ approved the statement of the Full Court of the Federal Court (Neaves, French and Cooper JJ) in Collector of Customs v Pozzolanic Enterprises Pty Ltd [(1993) 43 FCR 280 at 287] that “[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”. The statement of the Delegate on which the plaintiff relied follows the statement in the previous paragraph of the basis of the Delegate’s decision: “Weighing all these factors I am not satisfied that there are compelling reasons for giving special consideration to granting you and your family a [Subclass 202] visa.” That statement does not reveal error [Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 615-618 [66]-[73]].
The Delegate's letter must be read fairly as a whole… (emphasis added)
Clause 14.2(1)(a)(i) in Direction 65 simply suggested that less weight should be given where the non-citizen began offending soon after arriving in Australia in the consideration of how long he had been in Australia, so far as it bore on whether the visa ought be cancelled or not. By using the words “in accordance with”, the Tribunal was doing no more than indicating that, having regard to cl 14.2(1)(a)(i), it had weighed the applicant’s period of residence before the first offending began and had given it less weight because the offending had commenced relatively soon after his arrival.
I reject the ground of review based on the cl 14.2 issue.
The positive decision and weighing issues – the applicant’s submissions
The applicant argued that the way in which the Tribunal expressed its findings on the best interests consideration revealed error in two ways, one of which independently was the foundation of his argument on the positive decision issue, and the other tied into his argument on the weighing issue.
He contended that because cl 13.2(1) required a decision-maker to make a determination about whether revocation is or is not in the best interests of the child, the Tribunal had fallen into error by its indefinite finding that it accepted that the best interests of the 16-year-old daughter “may be served by the cancellation being revoked”. He submitted that this amounted to an uncommitted observation, as opposed to a definite finding, as to whether or not her best interests would be affected one way or the other. The applicant argued that such a reading of the Tribunal’s reasons was supported by its immediately following sentence which referred to allowing a possibility of face-to-face contact between father and daughter were he to remain in Australia. He contended ultimately that (see [29] above), in [72], the Tribunal simply had treated whatever its conclusion may have been about her best interests as being outweighed by the other two primary considerations.
The applicant argued that the weighing issue arose, first, because the way in which the Tribunal expressed itself in [71] and [72] effectively had eliminated from further consideration whatever it had found about the best interests of the daughter. He argued that its finding on that question was ambiguous and had eschewed being more definite by concluding that the best interests consideration was, in any event, outweighed by the other two primary (viz: the protection and expectations) considerations. Secondly, the applicant argued that the Tribunal only weighed separately each of the considerations, being, the strength, nature and duration of the applicant’s ties in [86], and the extent of impediments to the applicant if he were removed in [93] of its reasons. He contended that it found that each of those considerations, separately, had been outweighed by the combination of the protection and expectations considerations. He argued that, in substance, by weighing separately the three considerations (namely, the best interests, ties and impediments considerations) that it had found told to some extent in favour of revocation of the cancellation, the Tribunal had not considered and weighed each of those three positive considerations together against the two that favoured affirming the decision to cancel.
The positive decision and weighing issues – consideration
The Tribunal’s phrasing in [71] and [72] was infelicitous and, on one reading, could suggest ambiguity so as to give a foundation to the applicant’s argument that contrary to cl 13.2(1), it had not made a determination one way or another about the daughter’s best interests.
In Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at 222 [67], French CJ, Kiefel, Bell and Keane JJ discussed an analogue of the best interests consideration in respect of the best interests of minor children. They said that:
It is not necessary here to seek to chart the boundaries of the Tribunal’s obligation to inquire after the best interests of the children of an applicant for review. There may be cases, hopefully rare, where the evidence presented by the parties does not alert the Tribunal that minor children in Australia may be affected by the decision. There may also be cases where the evidence is such that the only determination which can be made in obedience to cl 9.3(1) of Direction 55 is that cancellation is neutral so far as the best interests of any minor child are concerned. In this regard, it is to be noted that cl 9.3(1) requires a “determination about whether cancellation is, or is not, in the best interests of the child”… Sometimes the best decision “about” whether cancellation is, or is not, in the best interests of the child may be that it is neither. (italic emphasis in original; bold emphasis added)
However, they found (at [68]) that it was not necessary to canvass the possibilities further in that case. In Nigam v Minister for Immigration and Border Protection (2017) 254 FCR 295 at 308 [58], Siopis, Griffiths and Charlesworth JJ discussed a statement by the Tribunal that it accepted that a child “may very well have a natural affection” for the appellant. They found that that statement had to be read in the context of all of the findings, and was not to be understood as speculation, or a non-finding, about the child’s views. They concluded that the phrase “may very well have”, read in context, was an indication of the weight to be afforded to the child’s natural affection for her father, and that her desire to have the father present, was diminished in all of the circumstances.
It is necessary to read an administrative decision-maker’s reasons fairly and as a whole for the purposes of determining whether or not he or she has performed the relevant statutory task or committed a jurisdictional error of the kinds suggested here, namely failing to make a positive determination about what was in the child’s best interests and or then weighing such a positive determination (with others) against other negative considerations in an overall balancing process: Plaintiff M64/2015258 CLR at 195-196 [59]-[60].
I am of opinion that it is necessary to consider the weighing issue at the same time as the positive determination issue because the way in which the Tribunal expressed itself in [71] and [72] of its decision clearly involved it weighing the best interests of the daughter against the other two primary considerations, the last of which it had not by then set out in its own reasons.
There is some force in the applicant’s criticisms about how the Tribunal expressed its reasons. On the other hand, read fairly, when the Tribunal evaluated the best interests of the child in [71] and [72], it was considering matters as a whole, at least so far as the three primary considerations were concerned. And its consideration of the protection and expectations considerations, for the reasons it cogently explained, demonstrated that it saw those as weighing “heavily” and “strongly” in favour of not revoking the cancellation. Indeed, during its discussions of those two considerations, at [61] and [76], the Tribunal used even stronger adjectives to describe the very significant weight that it placed on the risk to the Australian community of the applicant in the future engaging again in criminal conduct, the need to protect the community from that risk, and the expectations of the community that a person who had his serious history of criminal offending, coupled with his two previous chances following the delegates’ two decisions to revoke the cancellation of his visa because of his prior offending, as factors that, in its view, turned the scales decisively against him. Similarly, the Tribunal concluded in [86] and [93], that the protection and expectations primary considerations “significantly outweighed” what might be said in the applicant’s favour from the strength, nature and duration of his ties to Australia and the extent of the impediments to him, were he removed.
Reading the Tribunal’s reasons fairly and as a whole, I am of opinion that, although the Tribunal could have expressed those reasons better, especially in [71] and [72], what it did was to explain its overall (final) conclusion that the decision to cancel the visa should be affirmed by reference to its consideration of all of the factors that it addressed. It explained the weight that it had ascribed to each positive and negative consideration as it went through each of them, but, in the context, that ultimate decision was one that it had arrived at and was now explaining after it had considered separately and cumulatively all of the matters that it was required to consider. The mere omission from the Tribunal’s reasons of an express statement that it had weighed the factors favouring revocation cumulatively does not, of itself demonstrate that it did not consider those factors together: ETA067 v Republic of Nauru (2018) 360 ALR 228 at 231 [13]-[14], per Bell, Keane and Gordon JJ.
It would have been preferable had the Tribunal, in fact, said that it had looked at each of the considerations not only individually but also cumulatively. But reading the decision fairly and as a whole, I am of opinion that the Tribunal had weighed all of the considerations both individually and together but found decisive that the protection and expectations considerations together outweighed all the considerations favouring revocation of the decision to cancel the applicant’s visa. That is because its findings of the weight that it gave to the protection and expectations considerations were based on what the Tribunal characterised as a very serious, persistent history of offending over 16 years, the risk of further offending and what it found in [76], namely, that the community would expect that the visa remain cancelled.
For these reasons I reject the grounds raising each of the positive decision and weighing issues.
The non-refoulement issue
In the applicant’s statement of facts, issues and contentions in the Tribunal, his solicitor said that:
While it may be unnecessary to determine whether non-refoulement obligations are owed because the Applicant is able to make a valid application for a Protection visa, consideration should be given generally to the risk of harm faced by the Applicant upon return to his home country.
The decision-maker [viz: the delegate] has accepted that the Applicant would face hardship upon return to his home country due to his religion, political beliefs and blood feud, yet the decision-maker gave no weight to his fact.
Alternatively, the risk of harm to the Applicant may be considered under the limb of “Extent of impediments if removed” [under cl 14.5(1)]. (emphasis added)
During the course of argument before me, counsel for the applicant sought to expand his case under the umbrella of the non-refoulement issue as raised in this final ground of review, so that it would comprehend a challenge to first, the validity of cl 14.1(2) and (4) as being contrary to provisions of the Act, and secondly, the adequacy of the reasons that the Tribunal gave on the extent of impediments if the applicant were removed in [90]-[91].
As the argument developed, it became apparent, and the Minister emphasised, that these were not matters that the final ground of review as expressed had raised, or that the Minister was in a position to meet.
I refused leave to the applicant to rely on those matters, first, because the challenge to the validity of cl 14.1(2) and (4) of Direction 65 was a substantive new matter that required particular articulation in a ground of review, and was not within the final ground as articulated in the further amended application. Secondly, I considered that it was not in the interests of justice to allow that challenge now to be raised because it would require an adjournment, a reformulation of the grounds of review and, further, at least written submissions, if not a hearing. Thirdly, I was of opinion that in any event, to allow the applicant to do so would require a factual examination as to whether or not the Tribunal gave adequate reasons for its findings in [90] and [91], which would require the formulation of another ground of challenge that had not previously been pleaded, and would require extensive reference to material, some of which may not now be in the application book, including the transcript of the whole of the three day hearing before the Tribunal, and possibly the parties’ written submissions.
In those circumstances, it was not appropriate, in my opinion, to grant leave to amend in the interests of justice, the more so because the applicant’s statement of facts, issues and contentions invited the Tribunal, as it found, to consider any non-refoulement obligations as part of any impediments to him, were he to be returned to Jordan. The Tribunal said it had proceeded to consider, under the rubric of cl 14.5(1), the extent of impediments were he returned. The absence of an express challenge in the current further amended grounds to the way in which the Tribunal did address what the applicant had invited it to do was a further reason why I did not allow an amendment at the stage of counsel’s submissions in reply.
The non-refoulement issue – the applicant’s submissions
The applicant argued that, in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456 at 467-468 [48]‑[49], Bromberg and Mortimer JJ had held that the consideration of non-refoulement obligations was quite different for the purposes of the exercise of each of the revocation power in s 501CA(4) and the separate power to grant a visa in s 65, and in particular by reference to the considerations for the grant of a protection visa in s 36(2)(a) and (aa). That was because, as their Honours explained, the revocation power was a discretionary power, whereas if the Minister were satisfied as to the existence of a real chance that the applicant would suffer significant or substantial harm for the purposes of granting a protection visa under s 36(2)(a) or (aa) if returned to his or her country, the Minister had to grant that visa. Their Honours reasoned that since 2014, the Act has defined the factors that can be taken into account in considering whether to grant a protection visa, either under the Refugees Convention or for complementary protection reasons. They held that those factors do not extend as widely as the range of Australia’s non-refoulement obligations, as defined in s 5 of the Act, that arise under treaties to which Australia is a State party in public international law. That is to say that the range of matters by reference to which an applicant must satisfy the Minister that he or she is entitled to a protection visa, and having done so, subject to character assessments, will be entitled to the grant of that visa are narrower than what might be the wider non-refoulement obligations that the Minister or decision-maker could, or should, have open to him or her for the purposes of considering whether an existing visa ought be cancelled or restored. As Bromberg and Mortimer JJ said (248 FCR at 468 [49]):
the nature and quality of the risks which can permissibly be considered are much broader, and are not restricted to the risks comprehended by s 36(2)(a) and (aa). In the process for the exercise of the s 501CA(4) discretion, the Minister or his delegate is able to give greater weight to a small risk, if on the material the decision-maker reasonably determines that is justified. Such is the nature of a discretionary power. It is quite distinct from the task in s 65.
The applicant built on their Honour’s reasoning to argue that, in substance, the Tribunal had not weighed, from the perspective of Australia’s non-refoulement obligations, the considerations that it had in [90] of its reasons identified as impediments were the applicant to be returned to Jordan.
The non-refoulement issue - consideration
The applicant’s statement of facts, issues and contentions emphasised principally as the impediments and risk of harm that he would face, were he removed, difficulties in obtaining appropriate treatment for his medical and mental health conditions, the lack of readily available work, the paucity of his personal contacts and the unfamiliar environment in his home country as being the factors that the Tribunal should consider under cl 14.5.
The Tribunal said it was weighing the considerations set out in [90] as another non-primary consideration. In that regard, non-refoulement obligations themselves, equally, were not primary considerations under cl 14 of Direction 65. The Tribunal explained that the reason it had not gone further in dealing with the blood feud claim was because there was no evidence to support the details of such a feud or to suggest that the applicant was subject to any risk from it. The Tribunal also gave detailed reasons as to why it rejected the claim that the applicant’s needs for medical treatment and his mental health issues supported a decision to cancel the revocation of his visa.
It found (at [93]) that he would face a period of adjustment in Jordan and certain impediments. Reading the Tribunal’s reasons fairly, the impediments to which it referred there can be seen to be those set out in [90], such as his current lack of employment prospects or accommodation, his limited family in Jordan who could offer him support, political unrest in Jordan, difficulties he would face as a Christian in a predominantly Muslim country, and not having served in the military. But those concerns of the applicant appear to have been based, so far as the Tribunal’s reasons reveal, only on news clippings and country information.
There is nothing in the material before me to suggest that the Tribunal did not give appropriate weight to what the applicant had put to it in support of the impediments that he might face were he removed. It weighed as a factor in his favour the difficulties that he would face, including the period of adjustment he would face were he returned to Jordan, and ultimately concluded that those impediments were “significantly outweighed” by the protection and expectations considerations.
Read as a whole with the rest of the Tribunal’s reasons, I am not satisfied that the ground based on the non-refoulement issue is established.
Conclusion
For the reasons above, the application should be dismissed with costs.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 11 December 2018
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