Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080
Review of:
Bainbridge and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 4184
File number(s):
WAD 337 of 2023
Judgment of:
MCDONALD J
Date of judgment:
18 September 2024
Catchwords:
MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – non-revocation of visa cancellation – failure to satisfy character test – Tribunal bound by Ministerial Direction 99 issued under s 499 of the Migration Act 1958 (Cth) to consider best interests of minor child affected by decision – identification of minor children affected by decision – whether Tribunal erred by failing to determine whether revocation of visa cancellation was in best interests of applicant’s niece and nephew – whether error material
MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal – non-revocation of visa cancellation – failure to satisfy character test – where applicant self-represented – where applicant questioned about potential breaches of law during cross-examination – whether Tribunal should have informed applicant of privilege against self-incrimination – whether Tribunal failed to afford applicant procedural fairness – whether error material
Administrative and Constitutional Law and Human Rights
Number of paragraphs:
128
Date of hearing:
5 September 2024
Counsel for the Applicant:
Dr J D Donnelly
Solicitor for the Applicant:
Zarifi Lawyers
Counsel…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080
Case
[2024] FCA 1080
Decision Date
CaseChat Overview and Summary
In the case of Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs, the applicant, Mr. Bainbridge, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) not to revoke a visa cancellation. The key issues before the court were whether the AAT erred in not considering the best interests of minor children affected by the decision, and whether the AAT failed to inform Mr. Bainbridge of his privilege against self-incrimination, thereby denying him procedural fairness. The court found that while the AAT was bound by Ministerial Direction 99 to consider the best interests of minor children, there was insufficient evidence to determine whether the children were affected by the decision. Regarding the privilege against self-incrimination, the court determined that the failure to inform Mr. Bainbridge of his rights could constitute a denial of procedural fairness if he was unaware of these rights at the time of the hearing. However, Mr. Bainbridge did not provide evidence to support this claim, and the court concluded that the errors identified, while relevant, were not material to the outcome of the case. The court quashed the AAT's decision and ordered the Minister to reconsider Mr. Bainbridge's application in accordance with the law.
Orders
Orders of the court
1. A writ of certiorari issue to the second respondent, quashing the decision dated 19 December 2023.
2. A writ of mandamus issue to the second respondent, requiring it to determine the applicant’s application for review of the decision of the delegate of the first respondent dated 25 September 2023 in accordance with the law.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
As in relation to ground 1, on the question of materiality in relation to ground 3, this is perhaps a borderline case; it is highly likely that the Tribunal’s decision would have been the same. For the reasons I have explained, though, I consider that there is a realistic possibility that the Tribunal’s decision could have been different, as a matter of reasonable conjecture within the parameters set by the historical facts, had the Tribunal informed Mr Bainbridge of his privilege against self-incrimination in connection with his previous drug use.Further observations about proof of facts necessary to establish materiality in this context It may well be that the failure of the Tribunal to inform an unrepresented party about their privilege against self-incrimination will only amount to a denial of procedural fairness (or a material denial of procedural fairness) if the person did not, in fact, have an adequate awareness or understanding of the privilege at the time when they were questioned. If the person was already aware of, and adequately understood, their rights at the time when they appeared before the Tribunal, there would seem to be no practical injustice arising from the failure of the Tribunal to explain them. It should, of course, be borne in mind that the reality may often involve some nuance: even if a person has a general awareness that a privilege against self-incrimination exists under the law of Australia, it does not follow that they will necessarily call that general awareness to mind in context of a tribunal hearing, or appreciate that they are entitled to decline to answer questions about specific topics under oath. It is the applicant in judicial review proceedings who bears the onus of establishing the facts necessary to demonstrate jurisdictional error (including breach of the rules of procedural fairness): MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at 524 [39] (Keifel CJ, Gageler, Keane and Gleeson JJ); LPDT at 615 [10]-[12] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). It may be, therefore, that it will usually be incumbent on a person in the position of Mr Bainbridge to adduce evidence in judicial review proceedings sufficient to establish that he was not aware of his rights or the nature of the privilege against self-incrimination at the relevant point in time, or at least that he did not make an advertent decision to give evidence that might incriminate him with an appreciation that he was not required to do so. Mr Bainbridge did not lead any evidence of that kind in the present proceedings. On the other hand, the other decisions which have considered the privilege against self-incrimination in this context seem to have proceeded on the basis that it may at least be assumed that any failure to explain the privilege to a self-represented litigant will generally mean that the litigant has lost an opportunity to choose to invoke the privilege, of which they might have availed themselves had it been explained to them.
Evidence
Evidence Before The Court
It follows that evidence that a person filled in or furnished a passenger card containing information that was false or misleading is evidence tending to incriminate the person in the commission of an offence.The evidence before the Tribunal in relation to passenger cards Photocopies of two passenger cards relating to Mr Bainbridge, one dated 2 June 2012 and one dated 24 May 2013, formed Attachment M to the material before the Minister’s delegate. Each of the passenger cards included the question, “If you are NOT an Australian citizen: … Do you have any criminal conviction/s?” The delegate’s reasons (at [29]-[30]) included the following passages relating to the passenger cards:Furthermore, I find that Mr BAINBRIDGE had provided false or misleading information to the Department, when he failed [to] disclose his prior criminal offending on his most recent incoming passenger cards dated 24 May 2013 and 2 June 2012 Attachment M.Mr BAINBRIDGE explained that his niece passed away unexpectedly on 15 May 2012 and he and his family had to rush back to New Zealand with her body for burial. Mr BAINBRIDGE contended that his ‘headspace wasn’t good at the time’ so he failed to provide the correct information of his criminal convictions on the incoming passenger card. I am prepared to accept that he was grieving and had overlooked the declaration to the Department on his arrival on 2 June 2012, after the funeral; but it does not explain why he did not declare his criminal offending on his most recent arrival of 24 May 2013. I find that Mr BAINBRIDGE had intentionally provided incorrect information to the Department to contravene the immigration system which is designed to protect the border. I find Mr BAINBRIDGE’s failure to declare his convictions on his incoming passenger card adds to the seriousness of his conduct overall. During the hearing before the Tribunal, Mr Bainbridge was cross-examined by counsel for the Minister in relation to the topic of whether he had provided false and misleading information on the passenger cards. The cross-examination on this topic was as follows:Q:… You’ve completed two incoming passenger cards. Is that correct? A:Yes, I have.Q:You’ve provided false and misleading information on those cards? Would you accept that? A:Yes.Q:At page 80 - - -?A:Well, yes.Q:- - - of the bundle, we have your incoming passenger card dated 2 June 2012. So this is at the G document bundle?A:Yes.Q:That’s your name and signature on the card there?A:Yes.Q:The question you were asked in June 2012 was, ‘Do you have’ – sorry, ‘By signing that form, you declare the information on it was true and correct.’ Is that accurate?A:Yes.Q:You were asked, ‘Do you have any criminal convictions?’ You’ve marked ‘no’ on the form. Is that correct so far?A:(No audible response.)Q:In fact, in 2012, you had 19 convictions at that time. Would you accept that?A:Yes.Q:If I can take you to page 79 of the G documents. Again, if you can just confirm for the tribunal that’s your name and signature on the passenger card dated 20 May 2013?A:It is.Q:‘By signing that form, you declare the information was true and correct.’ Is that correct?A:Yes.Q:At that time, you also had 19 convictions, didn’t you?A:Yes, I think I did.Q:Sorry, if I can just make sure I get those numbers correct. Yes. Yes, at 2012 and 2013. In both times. Okay. Jumping back to the card in 2012, you completed that form on 2 June 2012, and just a few months prior to that, you were convicted of four offences on 16 March 2012, weren’t you?A:In New Zealand?Q:No, in Australia?A:In Australia.Q:If I can take you to page – if I can jump back to that page 212 of the history of court?A:Yes.Q:And specifically, page 216 and 215. So on 16 March 2012, you were convicted of those four offences. Three months later, you fill in the incoming passenger card and you mark ‘no’. Is that an accurate description of the timeline there?A:That is.Q:At the time you fill in that form - - -?A:Yes.Q:- - - you knew you’d had those convictions, didn’t you?A:At the time I filled in those forms?Q:Yes?A:I wasn’t thinking about convictions at the time. I had just buried my niece and I just wanted to get home, so I wasn’t thinking about convictions or anything like that. I was – I was grieving when I filled those out, so - - -Q:Your niece passed away in 2012? Is that correct?A:Yes.
Decision
Reasons for decision
CHILDREN J
The Ministerial Direction which bound the Tribunal in the present case was Direction 99. Clause 6 of Direction 99 states that a decision-maker “must take into account the considerations identified in sections 8 and 9, where relevant to the decision”. Clause 8 of Direction 99 relevantly provides that, in making a decision under s 501CA(4) of the Migration Act, there are five considerations that are “primary considerations”. The fourth of those is “the best interests of minor children in Australia”. Clause 8.4 provides:8.4 Best interests of minor children in Australia affected by the decision(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.(4) In considering the best interests of the child, the following factors must be considered where relevant:a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;e) whether there are other persons who already fulfil a parental role in relation to the child;f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct. Two relevant observations may be made about cl 8.4. First, cl 8.4(1) refers to “a child affected by the decision”. It uses imperative language (“must”) and requires that decision-makers make a determination about whether non-revocation under s 501CA is, or is not, in the best interests of each child who meets that description. The question of whether cl 8.4 must be considered in relation to a particular child depends on whether that child is under the age of 18 years and is a child “affected by the decision”.