Bhatti v Minister for Immigration
[2021] FCCA 20
•14 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BHATTI v MINISTER FOR IMMIGRATION & ANOR | [2021] FCCA 20 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Regional Sponsored Migration Scheme (subclass 187) visa – cancellation – whether there was a reasonable apprehension of bias – whether the Tribunal created for itself a false dichotomy – whether there was a failure to take into account a relevant consideration – PAM3 on s109 cancellations – best interests of the child – the children in this case being the applicant’s brother’s children. |
| Legislation: Migration Act 1958, ss.107, 108, 109, 499 Migration Regulations 1994, reg.2.41 |
| Cases cited: COT15 v Minister for Immigration and Border Protection (No 1) (2015) 236 FCR 148; (2015) 328 ALR 653; [2015] FCAFC 190 Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141 Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47; [2019] FCAFC 55 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; (2018) 359 ALR 1; 92 ALJR 780; [2018] HCA 34 Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 10 ALN N109; (1986) 66 ALR 299; (1986) 60 ALJR 560; [1986] HCA 40 Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248; (2010) 119 ALD 26; (2010) 274 ALR 438; [2010] FCAFC 145 Minister for Immigration Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189; (1994) 33 ALD 13; (1994) 19 AAR 266 |
| Applicant: | NARPAL SINGH BHATTI |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1356 of 2020 |
| Judgment of: | Judge Riley |
| Hearing date: | 28 October 2020 |
| Date of last submission: | 28 October 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 14 January 2021 |
REPRESENTATION
| Counsel for the applicant: | Angel Aleksov |
| Solicitors for the applicant: | Carina Ford Immigration Lawyers |
| Counsel for the first respondent: | Vince Murano |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Clayton Utz |
ORDERS
The application filed on 24 April 2020 and amended on 19 October 2020 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1356 of 2020
| NARPAL SINGH BHATTI |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s Subclass 187 – Regional Sponsored Migration Scheme visa.
Background
The applicant explained the background to the matter in paragraph 5 of his written submissions filed on 19 October 2020 as follows:
To briefly summarise the facts, the applicant claimed to have worked as a hairdresser at his brother’s hairdressing business. During a site [visit] of the salon, staff told the Departmental officer that the applicant had not worked as a hairdresser at the salon (although working at the salon, he had a different role). The applicant did not deny that he had done limited hairdressing work at the salon but claimed that his hairdressing work was done in the “mobile” service offered by the business and that the salon staff did not know about the mobile service. The applicant’s brother – the owner of the business – gave corroborative evidence to this effect.
The Minister summarised the background in his written submissions filed on 26 October 2020 as follows:
4.On 12 March 2015, Purple Allium Pty Ltd (Nominator), lodged a nomination application listing the Applicant as the nominee for a position as hairdresser.3 The Applicant’s brother was the owner of the Nominator.4
5.On 16 March 2015, the Applicant, a 33 year-old citizen of India,5 applied for a Visa linked with the nomination lodged by the Nominator.6 On the application form, he [stated]: (1) his nominated occupation was a hairdresser; and (2) he had been employed by Mirrors Hair Studio (Studio) as a hairdresser from 15 April 2014 to 15 March 2015.
6.On 16 October 2015, officers from the Minister’s department (Department) visited the Studio (Site Visit). Staff present said the Applicant had worked there since April 2014 but never as a hairdresser. His duties included cleaning, making coffee, helping his brother organise pay, fetching goods on an ad-hoc basis and sometimes shampooing hair.7
7.Despite the Site Visit, on 16 February 2016: (1) the nomination was approved;8 and (2) the Applicant was granted the Visa.9
8.Subsequent to the Applicant being granted the Visa, it came to the Department’s attention that: (1) on 10 February 2016, an ABN was registered by the Nominator for the business name Mirrors Hair Mobile Service (Mobile Service); and (2) on incoming passenger cards, the Applicant stated his occupation as “stock checker” (on 6 May 2017) and truck driver (on 4 April 2018 and 30 April 2019). In addition, on 15 May 2017, an officer from the Department made a telephone call to the Studio and was informed that: (1) the business had changed hands around October 2016; and (2) the Applicant worked there once but not as a hairdresser.10
9.On 5 July 2019, the Department sent to the Applicant a notice of intention to consider cancellation of his Visa under s 109.11 The notice stated, among other things, that the Applicant appeared not to have complied with s 101(b) because he had included incorrect answers in his Visa application in respect of him having worked as a hairdresser for Purple Allium Pty Ltd trading as the Studio.12
10.On 15 October 2019, the Applicant’s Visa was cancelled under s 109.13
11.On 18 October 2019, the Applicant applied to the Tribunal for review.14 He provided supporting documents including written submissions dated 17 July 2019 (Submissions).15
12.On 11 March 2020, the Applicant appeared at a hearing before the Tribunal and gave evidence with the assistance of an interpreter. The Applicant’s representative attended the hearing, and his brother and brother’s wife gave evidence.16
3CB 22.
4CB 22 – CB23.
5CB 256, [21] and CB 21.
6CB 23 – CB 24.
7CB 22 – CB 23 and CB 242 – CB 245.
8CB 37.
9CB 38.
10CB 38 – CB 39.
11CB 20 – CB 30.
12CB 26.
13CB 31 – CB 46
14CB 106 – CB 157.
15CB 106 – CB 119; CB 102 – CB 105; the representative intended for those submissions to be provided in response to the notice of intention to consider cancellation but had sent them to the wrong email address.
16CB 228 – CB 229.
The Tribunal’s decision
In his written submissions, the Minister summarised the Tribunal’s reasons for decision as follows:
13.On 30 March 2020, the Tribunal affirmed the delegate’s decision.17 In doing so, it:
17CB 252 – CB 268.
13.1summarised the following evidence the Applicant provided at the hearing:
13.1.1.in April 2014, he commenced working part-time as a hairdresser with the Nominator trading as the Studio – as of July 2014, he commenced working there full-time and was employed by the Nominator until October 2016;18
18[24].
13.1.2.in response to the Tribunal noting that his Visa application said he had worked as a hairdresser at the Studio from 15 April 2014 to 15 March 2015, the Applicant said that between July 2014 and October 2016, he also worked as a mobile hairdresser for the Mobile Service;19
19 [25] – [26].
13.1.3.in response to the Tribunal noting that the ABN for the Mobile Service was registered on 10 February 2016, the Applicant said his brother had not been aware of the need to register the business name;20
20[27].
13.1.4.when the Tribunal asked whether Studio staff questioned during the Site Visit were not telling the truth, the Applicant said they “did not know anything about the mobile hairdressing services” and did “not know about ‘walk-in’ customers”;21
21[29] – [30].
13.1.5.when the Tribunal noted that the Applicant’s oral evidence was inconsistent with the Submissions which said he had not worked as a hairdresser at the Studio, he said: (1) he cut hair for “walk-in customers” at the Studio on “very rare” occasions; and (2) between July 2014 and October 2016, he did not “spend any time” as a hairdresser at the Studio;22 and
22[31] – [34].
13.1.6.when the Tribunal noted the Applicant had, in the Submissions, conceded that he had provided incorrect information in his Visa application form but not intentionally, he said he did not think he had done so;23
23[35] – [36].
13.2summarised the following evidence the Applicant’s brother provided at the hearing:
13.2.1the Nominator purchased the Studio in April 2014 and sold it in October 2016 – he holds no qualification as a hairdresser but bought the Studio for his wife who: (1) is a beautician; and (2) never worked at the Studio;24
24[45] – [50].
13.2.2.the Applicant commenced full-time work as a hairdresser at the Studio in July 2014 and continued to work in that occupation until October 2016 – the Applicant also assisted “with advertising and marketing and performing other duties”;25
25[51].
13.2.3while working at both the Studio and Mobile Service, the Applicant spent about 70% of his time as a hairdresser – however, it was only in February 2016 that he realised he needed to register an ABN for the Mobile Service;26 and
26[52] – [54].
13.2.4in respect of the information provided by Studio staff during the Site Visit, he said “his brother was working as a hairdresser at the salon mainly in the mobile services”, “[t]he other employees were not aware as to what happened at the salon after they left” and “[h]is brother was staying at the salon after the other employees left”;27
27[56] – [57].
13.3.summarised evidence the Applicant’s brother’s wife provided at the hearing, being that she had completed a beautician course in India in 2010 – however, she has never worked as a hairdresser and never worked at the Studio;28
28[60] – [61].
13.4.based on the evidence, found that the Applicant had not complied with s 101(b) because, despite what was stated in his Visa application, he had not worked as a hairdresser at the Studio between 15 April 2014 and 15 March 2015;29
29[67] – [79]; esp, [78].
13.5.in considering whether to cancel the Visa, the Tribunal had regard to the factors prescribed by reg 2.41 as follows:
13.5.1.it: (1) found the correct information was that the Applicant did not work as a hairdresser at the Studio from 15 April 2014 to 15 March 2015;30 and (2) was satisfied the decision to grant the Visa was based partially on incorrect information;31
13.5.2.it found: (1) the Applicant made a deliberate decision not to inform the Department that he had not worked as a hairdresser at the Studio; and (2) “it is evident that the primary reason for purchasing the hairdressing salon by [the Applicant’s brother] was to secure the immigration outcome for his borther”;32
13.5.3.it accepted the Applicant would rather live in Australia than in India but placed limited weight on this;33
13.5.4.it found: (1) the fact the Applicant “provided inconsistent information to the Tribunal cannot be given weight in his favour”;34 (2) there was no information regarding any other non-compliance by the Applicant;35 and (3) the passage of time since the non-compliance has not “unduly prejudiced the [A]pplicant in any way”;36
13.5.5.it (1) considered the Applicant’s Visa could have been cancelled under s 137(q) (presumably, intended to be a reference to s 137Q) “as he did not work at the nominating business for the period of 2 years”;37 (2) placed limited weight on contributions the Applicant had made to the Australian community;38 and (3) in respect of any other issues, found that the Applicant and his family may stay together in India;39and
13.6after considering “all the circumstances” of the Applicant “and his family both individually and cumulatively” affirmed the delegate’s decision.40
30[83].
31[85].
32[86] – [90].
33[91] – [94].
34[95] – [96].
35[97].
36[98] – [99].
37[100].
38[101] – [102].
39[103].
40[104] – [106].
Legislation
Section 107 of the Migration Act 1958 (“the Act”) provided that:
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)giving particulars of the possible non-compliance; and
(b)stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non-compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non-compliance – show cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non-compliance:
(A)give reasons for the non-compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)stating that the Minister will consider cancelling the visa:
(i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response – when that notice is given; or
(ii) if the holder gives the Minister a written response within that period – when the response is given; or
(iii) otherwise – at the end of that period; and
(d)setting out the effect of sections 108, 109, 111 and 112; and
(e)informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)requiring the holder:
(i) to tell the Minister the address at which the holder is living; and
(ii) if the holder changes address before the Minister notifies the holder of the Minister’s decision on whether there was non-compliance by the holder – to tell the Minister the changed address.
…
Section 108 of the Act provided that:
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non-compliance by the visa holder in the way described in the notice.
Section 109 of the Act provided that:
(1)The Minister, after:
(a)deciding under section 108 that there was non-compliance by the holder of a visa; and
(b)considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c)having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
Regulation 2.41 of the Migration Regulations 1994 (“the Regulations”) provided that:
Whether to cancel visa – incorrect information or bogus document (Act, s 109(1)(c))
For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:
(a)the correct information;
(b)the content of the genuine document (if any);
(c)whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
(d)the circumstances in which the non-compliance occurred;
(e)the present circumstances of the visa holder;
(f)the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g)any other instances of non-compliance by the visa holder known to the Minister;
(h)the time that has elapsed since the non-compliance;
(j)any breaches of the law since the non-compliance and the seriousness of those breaches;
(k)any contributions made by the holder to the community.
Ground 1
The first ground of review in the application filed on 24 April 2020 and amended on 19 October 2020 is:
The decision of the second respondent is affected by a reasonable apprehension of bias.
Particulars
(a)The applicant’s key argument was that the salon staff were not in a position to know about the applicant’s work for the mobile business, and therefore, their evidence to the Departmental officer – although not challenged – was not probative. A key issue in the review, then, was whether the applicant’s narrative should be accepted, despite the evidence of the salon staff.
(b)The second respondent dealt with this issue in the hearing upon first having created an analytical paradigm for itself, admitting only of binary options – either the salon staff were “lying” or the applicant was “lying”. This was an improper “narrowing” of the issue. It disabled the second respondent from dealing with the argument being put, which was that neither the applicant nor the salon staff were lying, all were truthful, but there was an information deficit that meant the evidence of the salon staff was not the end of the matter.
The test for a reasonable apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question the Tribunal is required to decide.
The applicant argued that a reasonable apprehension of bias arose in this case primarily from the fact that the Tribunal created for itself, during the hearing before it, a false dichotomy between whether the applicant was lying when he said that he cut hair for Purple Allium Pty Ltd, or whether the staff of the salon were lying when they said he did not.
The applicant’s point was that the dichotomy was false, because no one was lying. He said that the staff simply did not know that the applicant cut the hair of:
a)walk-in clients at Purple Allium’s salon after the staff had left for the day; and/or
b)clients of a mobile hairdressing business that was connected with Purple Allium for part of the relevant time, although it did not have an ABN at all relevant times.
It is true that, during the Tribunal hearing, the Tribunal set up a false dichotomy between the applicant telling the truth and the staff telling the truth. However, this needs to be seen in the context described below.
The applicant’s brother bought Mirrors Hair Studio on 4 March 2014.
The applicant said in his visa application dated 16 March 2015 that he had worked as a hairdresser for Mirrors Hair Studio, the trading name of Purple Allium, from 15 April 2014 until 15 March 2015.
On 5 October 2015, the applicant said in a Form 80 that he had commenced working at Mirrors Hair Studio in Joondalup in April 2014, and his duties included cutting, trimming, shaping, bleaching dyeing, and tinting hair, and also scheduling appointments.
On 16 October 2015, during a site visit to Mirrors Hair Studio, staff told departmental officers that the applicant:
a)was not a hairdresser;
b)attended the business between 20 and 24 hours per week; and
c)did cleaning, making coffee, assisted with organising staff pay and sometimes shampooed clients’ hair.
The applicant said in a statutory declaration dated 24 November 2015 that:
a)he had worked full-time as a hairdresser for Purple Allium since his visa was granted on 27 June 2014, and that his hours were divided between Mirrors Hair Studio and Mirrors Hair Mobile Service; and
b)he also did some banking and processing of staff pay.
On 18 January 2016, the department sent Purple Allium a procedural fairness letter regarding the site visit.
On 10 February 2016, Purple Allium registered the business, Mirrors Hair Mobile Service.
Purple Allium responded to the procedural fairness letter on 13 February 2016, saying that:
a)it had two businesses, Mirrors Hair Studio Joondalup and Mirrors Mobile Hair Service;
b)the applicant was the hairdresser for the mobile business; and
c)the staff at the studio were unaware of the mobile business.
On 16 February 2016, Purple Allium was granted its nomination application and the applicant was granted his visa.
In October 2016, the applicant’s brother sold his hairdressing business. Consequently, the applicant did not complete the required two years employment after his visa was granted.
In his incoming passenger card dated 6 May 2017, the applicant said his occupation was stock checker.
In his incoming passenger cards dated 4 April 2018 and 30 April 2019, the applicant said his occupation was truck driver.
On 5 July 2019, the department sent the applicant a notice of intention to consider cancellation. The applicant did not respond to that notice. However, his agent tried to send a submission on 17 July 2019 to the department but sent it to an incorrect email address. The department did not receive the submission. In the submission, the agent said that:
[The applicant] acknowledges that he recorded his employment as a hairdresser which was true for the work that he did through the mobile service but not for the Joondalup salon where he stood in more for his brother and carried out the day to day management and other tasks to ensure the smooth operation of the salon. Minor tasks such as washing of hair were done to assist the hairdressers employed there.
On 15 October 2019, the applicant’s visa was cancelled.
On 18 October 2019, the applicant applied for review by the Tribunal. The agent sent a copy of the submission dated 17 July 2019 to the Tribunal.
The Tribunal conducted a hearing on 11 March 2020. The Tribunal told the applicant that there were three issues:
a)whether the notice of intention to cancel was valid;
b)whether there was non-compliance, in that the applicant did not work as a hairdresser for a particular business for a particular period of time; and
c)if there was non-compliance, whether the discretion to cancel the visa should be exercised.
The applicant told the Tribunal that:
a)he had studied hairdressing and salon management in Australia;
b)he started working for Mirrors Hair Studio in April 2014;
c)he worked there as a hairdresser, cutting hair, until July 2014, when he started working in the mobile service;
d)he worked for the mobile business from July 2014 until it was registered on 19 February 2016;
e)his brother did not previously know the mobile business had to be registered, but all of the proceeds of the mobile business went to Purple Allium;
f)the applicant stopped working for Purple Allium in October 2016 when his brother sold the business;
g)the applicant worked part-time for the mobile business from April to July 2014;
h)from July 2014 until October 2016, he worked 20 to 25 hours per week from Monday to Friday at the Mirrors Hair Studio and on weekends for the Mirrors Mobile Hair Service.
The Tribunal then put to the applicant what the department had recorded the staff as saying at the site visit, and asked the applicant who was not telling the truth, him, the staff or the department. The applicant replied that the staff sometimes left at 2.30pm, and were not aware that he cut the hair of walk-in clients at Mirrors Hair Studio. The Tribunal and the applicant clarified that they were not talking about the mobile service at this point.
The Tribunal then read out to the applicant his written submission, which was to the effect that he acknowledged that he did not work as a hairdresser at the Mirrors Hair Studio but only in the mobile service.
The applicant maintained that what he had told the Tribunal was true, namely, that he did hairdressing for very rare walk-ins at the Mirrors Hair Studio. He said that he cut hair for two or three hours per week. He then said that he did not spend any time cutting hair at the Mirrors Hair Studio after July 2014.
It can be seen that, when the Tribunal asked the applicant who was lying, the Tribunal was doing no more than giving the applicant an opportunity to explain an apparent inconsistency in the evidence. It may have been excessive to use the word “lying”, when the Tribunal could instead have asked if someone’s evidence was inaccurate or incomplete. However, I do not consider that this single instance of the use of strong language could have given rise to a reasonable apprehension of bias.
The applicant said that the Tribunal’s tone was a mixture of incredulity, frustration with the applicant personally, condescension, dismissiveness, and passive aggressiveness. In my view, overall, the Tribunal’s tone was unremarkable. There may have been some minor lapses, but nothing that, alone or in combination with the other matters alleged, could have given rise to a reasonable apprehension of bias.
The applicant made three further points on the apprehended bias issue which he conceded were not strong. The first was that the Tribunal challenged the applicant about making an affirmation rather than swearing an oath, given that he claimed to be Sikh. The Tribunal, in a reasonable tone, asked the applicant to explain that. The applicant explained that his religion’s 26th commandment was that one should not trust a person who swore an oath, because people should tell the truth without taking an oath. The Tribunal thanked the applicant for his explanation. The Tribunal’s questions in this connection were within reasonable bounds. This matter, neither alone nor in combination with the other matters alleged, could have given rise to a reasonable apprehension of bias.
The applicant’s second further point was that the Tribunal challenged the applicant about cutting hair, which it was said Sikhs were forbidden to do. What actually happened is that the Tribunal asked the applicant why he had changed his career from hair dressing to driving trucks. The applicant replied that he had been baptised as a Sikh in 2018, and from then on was not allowed to cut his own hair or cut another person’s hair. The Tribunal asked the applicant if he had known that Sikh’s were not allowed to cut hair. He said that he did, but that, until he was baptised, he did not follow that rule. As can be seen, the applicant broached the topic of cutting other people’s hair. The Tribunal explored it a little, but did not dwell on it. In relation to this issue, the Tribunal remained well within acceptable bounds. This matter, neither alone nor in combination with the other matters identified, could have given rise to a reasonable apprehension of bias.
The applicant’s third further point was that the Tribunal attacked the applicant’s brother’s bona fides in buying the business, and had an incredulous tone in parts of his evidence. The Tribunal, fairly, asked the applicant’s brother why he, a taxi driver, had bought a hairdressing business. The applicant’s brother said he had bought it for his wife, who had trained in India as a beautician. He confirmed that his wife had never worked in the hair dressing business for the two years that he owned it. He said that was because she had a baby. The Tribunal put to the applicant’s brother that he had bought the hairdressing business so that he could sponsor his brother, the applicant. The applicant’s brother denied that. The Tribunal questioned the applicant’s brother about the applicant’s working hours. The applicant’s brother’s evidence differed somewhat from the applicant’s. The Tribunal certainly pressed the applicant’s brother, and certainly conveyed doubts about the truthfulness of his evidence. However, the Tribunal’s questioning of the applicant’s brother, both in content and tone, were within acceptable bounds. The Tribunal’s questioning of the applicant’s brother, neither alone nor in combination with the other matters alleged, could have given rise to a reasonable apprehension of bias.
All in all, it does not seem to me that the Tribunal’s conduct of the hearing in this case could have given rise to a reasonable apprehension of bias.
It is also worth recording that the applicant’s counsel in this court accepted that the grounds for cancellation of the applicant’s visa were made out, because the applicant conceded in his adviser’s submission to the Tribunal that the applicant had not worked full-time as a hairdresser in the nominated business, being the Mirrors Hair Studio. The applicant’s counsel told the court that the sole issue for the Tribunal was whether to exercise its discretion in favour of not cancelling the visa.
Although the applicant’s counsel told the court that was the position, the concession was not made clear to the Tribunal in the applicant’s oral evidence or by his agent who was present at the Tribunal hearing. That is why many of the points the applicant takes issue with now were addressed in the Tribunal hearing. In other words, the Tribunal needed to determine whether grounds for cancellation existed, because the applicant did not clearly concede that point at the Tribunal stage, although he now has.
The applicant submitted to this court that the Tribunal’s insistence on its analytic paradigm, being the false dichotomy, was devastating to the applicant’s prospects of success. However, that is simply not borne out by what transpired at the Tribunal hearing. The Tribunal simply, and properly, put to the applicant what it perceived to be a difficulty with his evidence. The Tribunal listened to and understood the response. That cannot fairly be described as the Tribunal insisting on its analytical paradigm. As stated above, it did not give rise to a reasonable apprehension of bias.
Ground 2
The second ground of review in the application is:
The second respondent failed to consider government policy regarding the best interests of children being treated as a primary consideration.
Particulars
(a)See the applicant’s written submissions.
The applicant’s written submissions on this ground were as follows:
23.As set out in the affidavit of Carina Ford dated 19 October 2020, specially Exhibit “CF-5”, Australian government policy is that the best interests of the applicant’s children should be a primary consideration.
24.At CB 77.3, there was a clearly articulated claim that the applicant “Mr Bhatti has close relationships with his family in Australia and spends a great deal of time with them. He attends family functions and participates fully in the life of his brother’s children, taking one of them to school, activities and outings. They do some of this together.”
25.This was evidence that the best interests of the applicant’s brother’s children, being children in Australia, might be affectedly by the decision to cancel the applicant’s visa.
26.The Tribunal was not bound to apply government policy. However, the Tribunal was bound – as a mandatory relevant consideration – to have regard to that policy.[1] The Tribunal could have decided, having considered the policy, not to treat the best interests of affected children as a primary consideration, assuming there was some good reason to do so. Or it might have complied with the policy. Given the nature of this policy, it is hard to imagine why the Tribunal would not comply with the policy and treat as a primary consideration, the best interests of the applicant’s brother’s children.
27.The Tribunal does not mention this evidence all. It certainly does not mention the government policy on the topic, nor the Convention on the Rights of the Child in any way. The absence of any mention of the best interests of the applicant’s children and that matter being treated as a primary consideration supports an inference that the Tribunal did not have regard to the policy.
28.On the strength of Gray, that is a failure to consider a mandatory relevant consideration and amounts to jurisdictional error.
1.Minister for Immigration v Gray (1994) 50 FCR 189, 208 (French and Drummond JJ).
The applicant’s submissions do not set out in full the passage quoted from in paragraph 24 of his submissions. The passage was on the last page of the submission sent on the applicant’s behalf to the Tribunal. The passage in full said:
Mr Bhatti has close relationships with his family in Australia and spends a great deal of time with them. He attends family functions and participates fully in the life of his brother’s children, taking one of them to school, activities and outings. They do some of this together as a family. This closeness to family and his participation in community work has helped him to re-establish a positive outlook on life and given him the incentive to strive towards a fruitful life for himself and his family. (Words omitted in the applicant’s submissions in bold.)
This passage was under the heading, Why Visa should not be cancelled. Most of that section of the submission addressed the applicant’s depression and how he had sought to overcome it. In that context, he mentioned looking after his brother’s children while his brother and sister-in-law worked. However, the thrust of the submission was that the applicant’s involvement with his brother’s family was primarily for the applicant’s own benefit, and to a lesser extent, for the benefit of his brother and sister-in-law, rather than for the children themselves.
There was certainly no mention in the submission of the best interests of the applicant’s brother’s children, or the Convention on the Rights of the Child, or how the cancellation of the visa might impact on the applicant’s brother’s children. Rather, the passage concerned the applicant’s present circumstances, which are one of the mandatory considerations pursuant to reg.2.41 of the Regulations.
Having said that, two different versions of the relevant parts of PAM3 were provided to the court. The applicant’s version, exhibited to the affidavit affirmed by Carina Ford on 19 October 2020, relevantly said:
It is policy that delegates also consider the following four matters, even if not specifically raised by the visa holder in response to the s107 notice:
The Minister’s version, exhibited to the affidavit affirmed by Jackson Clyde Macaulay on 26 October 2020, relevantly said:
It is policy that delegates also consider the following matters, where relevant …
The applicant’s version required the child’s best interests to be considered whether the applicant raised them or not. The Minister’s version only required a child’s best interests to be considered where relevant.
It seems to me that the applicant’s version would be applicable in this case because the footer on the applicant’s version suggests that it was in effect from 2017 until 2020, whereas the footer on the Minister’s version suggests it was in operation from 2006 until 2016. In the present case, the cancellation occurred on 15 October 2019 and the Tribunal’s decision was dated 30 March 2020, making the later, applicant’s version of PAM3 applicable.
The applicant’s version of PAM3 said in relation to the best interests of the child:
Matters that should be taken into account
It is policy that delegates also consider the following four matters, even if not specifically raised by the visa holder in response to the s107 notice:
…
·Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, for example:
oif there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children – refer to:
oAustralia’s international obligations and
oPAM3: Act – Compliance and Case Resolution – Case resolution – Guiding principles – Treatment of children
…
·Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
The applicant accepted that the Tribunal was not bound by the policy and was not bound to apply it, but argued that the Tribunal was bound to consider it and do with it whatever it thought appropriate. The applicant argued that the court should infer that the Tribunal was not even aware of the policy, or, if it was, did not consider it.
The Minister’s first argument was that the way the point about the applicant’s brother’s children was presented to the Tribunal did not raise issues of the children’s best interests but focussed on the applicant’s present circumstances. As such, the Minister said that the Tribunal dealt with the case as it was presented, and did not need to expressly address the best interests of the applicant’s brother’s children.
However, as noted above, the applicant’s version of PAM3, which was applicable to this case, said that the Tribunal should consider the best interests of any affected children whether the applicant had raised the point or not.
The Minister then argued that the Tribunal was aware of the policy. In this regard, the Minister pointed to the first sentence of paragraph 23 and the second sentence of paragraph 82 of the Tribunal’s reasons for decision. For completeness, the relevant and surrounding passages from the Tribunal’s reasons for decision are as follows:
42.The Tribunal explained that the cancellation power contained in s.109 is discretionary and that, even if the Tribunal finds that there was non-compliance in the way described in the s.107 notice, the Tribunal has discretion not to cancel the applicant’s visa. In doing so the Tribunal is required to consider the circumstances prescribed in r.2.41 and should also have regard to any lawful government policy.
43.The Tribunal noted that the applicant’s representative in her written submissions of 17 July 2019 provided submissions and supporting documentary evidence addressing r.2.41 and government policy. The Tribunal summarised those submissions to the applicant and asked if there is anything else he would like to bring to the Tribunal’s attention.
…
81.In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·the correct information
·the content of the genuine document (if any)
·whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
·the circumstances in which the non-compliance occurred
·the present circumstances of the visa holder
·the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
·any other instances of non-compliance by the visa holder known to the Minister
·the time that has elapsed since the non-compliance
·any breaches of the law since the non-compliance and the seriousness of those breaches
·any contribution made by the holder to the community.
82.While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
(emphasis added)
It seems to me from these references that it can be readily inferred that the Tribunal was aware of the policy relating to the best interests of any affected children. That is because the Tribunal referred expressly to the part of PAM3 which deals with general visa cancellation powers, and identified some of the matters it deals with, namely, the consequences of cancelling the visa, international obligations and any other relevant matters.
The whole section of PAM3 dealing with the matters that the Tribunal should take into account is as follows:
Matters that should be taken into account
It is policy that delegates also consider the following four matters, even if not specifically raised by the visa holder in response to the s107 notice:
·Whether there are persons in Australia whose visas would, or may, be cancelled under s140 – refer to Act, s140 – Consequential cancellation
·Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, for example:
oif there are children in Australia whose interests could be affected by the cancellation, or who would themselves be affected by consequential cancellation, delegates are obliged to treat as a primary consideration the best interests of the children – refer to:
oAustralia’s international obligations and
oPAM3: Act – Compliance and Case Resolution – Case resolution – Guiding principles – Treatment of children
owhether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations – that is, removing a person to a country where they face persecution, death, torture, cruel, inhuman or degrading treatment or punishment – refer to Australia’s international obligations
·Whether there are mandatory legal consequences to a cancellation decision – as three examples:
owhether indefinite detention is a likely consequence of the cancellation decision, if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations and
owhether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening (for example, s46A, s46B, s48, s91E, s91K and s91P), and
owhether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and is liable to be detained under s189, and liable for removal under s198.
·Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).
It beggars belief that the Tribunal could have been aware that it could take into account matters such as the consequences of cancelling the visa, international obligations and any other relevant matters, but not the best interests of affected children. Consequently, I infer that the Tribunal was aware of that part of the policy, contrary to the applicant’s submissions.
The applicant’s argument was that the Tribunal needed to be not only aware of the relevant part of the policy, but it was also obliged to consider it. The applicant said the Tribunal did not consider the relevant part of the policy. The Minister said the Tribunal did consider the relevant part of the policy, but conceded that the Tribunal did not expressly address it in its reasons for decision. The Minister drew a distinction between considering a matter, and dealing with it in a statement of reasons. The Minister submitted that the Tribunal could consider a matter, and decide that it was of such little consequence that it did not need to be mentioned in the reasons for decision.
The Minister relied on Kumar v Minister for Immigration and Border Protection (2020) 274 FCR 646; [2020] FCAFC 16, which concerned the requirement to consider the matters specified in Direction 53, which, by s.499 of the Act, are mandatory considerations. Derrington and Thawley JJ said that:
83.In Direction 53, where it provides that the decision-maker “must have regard to” the factors mentioned, the phrase – read in context – means that the decision-maker should turn his or her attention to each factor during the decision-making process and consider whether and how it should be brought to bear in reaching the decision. As Colvin J explained in Jan at [26]:
[T]he Tribunal must advert to [the factors] for the purpose of considering whether they should be brought to bear, but if the Tribunal forms the view that they are not significant in the particular case then they can be put to one side based upon that assessment. The Tribunal is not obliged to go down and check off each one irrespective of the circumstances and bring it to account in its reasons.
The word “advert” is there being used to indicate that the matter should be considered in the decision-making process: whether it should be adverted to in the statement of reasons is a different question. See also: Takhi v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 2051 at [23] (Perry J); Bala at [17]
…
86.It is not the number of factors for and against a decision which is necessarily important, although it might be that this is considered by the decision-maker to be relevant in the particular circumstances. If a matter is not considered to be relevant to an applicant’s circumstances, or to be sufficiently material to the application, then it does not need to be given weight. In such a situation, the decision maker has had regard to the factor in determining, after genuine consideration, that the factor was not sufficiently relevant or material. (Minister’s emphasis)
87.As is addressed further below, the decision-maker does not have an obligation under s 368 of the Act to refer to an immaterial matter in the reasons for decision. On the other hand, it is desirable to state that consideration has been given to the factors which the relevant statute requires be considered. As the Full Court said in Salahuddin at [22]:
… Where the context in which a decision is to be made requires that consideration be given having regard to specified matters, it forever remains the preferred course for any administrator to expressly refer to such matters. To do so largely removes any room for argument and provides assurance to the parties – especially the frequently unrepresented claimant – that a case has been properly considered. A failure to do so exposes such a decision-making process to a perhaps well-justified perception on the part of a claimant that his decision has not been made in accordance with law. Any such failure also fails to perhaps explain to a reviewing court as fully as would otherwise have been desirable the process of reasoning applied to the facts. The importance to a claimant, in particular, that his claims have been considered in accordance with law, cannot be under-stated. …
Reasons for decision
88.The making of the decision is separate from the giving of a written statement for the decision under s 368 of the Act. The written statement serves as a record of the reasons and provides evidence of the mental process engaged in by the Tribunal: He at [79].
89.… In ETA067 v The Republic of Nauru [2018] HCA 46 at [13]-[14], the High Court stated (emphasis in original, citations omitted):
[13] The absence of an express reference to evidence in a tribunal’s reasons does not necessarily mean that the evidence (or an issue raised by it) was not considered by that tribunal. That is especially so when regard is had to the content of the obligation to give reasons, which, here, included referring to the findings on any ‘material questions of fact’ and setting out the evidence on which the findings are based. There was no obligation on the Tribunal to refer in its reasons to every piece of evidence presented to it.
[14] Further, there is a distinction between an omission indicating that a tribunal did not consider evidence (or an issue raised by it) to be material to an applicant’s claims, and an omission indicating that a tribunal failed to consider a matter that is material: including one that is an essential integer to an applicant’s claim or that would be dispositive of the review.
(Minister’s emphasis)
...
91.The applicant bears the onus of establishing from a failure to refer to a matter in the written statement, that the inference should be drawn that the matter was overlooked: SZGUR at [67] (Gummow J); SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25]. (Minister’s emphasis)
…
93.The context against which the reasons of the Tribunal should be examined includes the course of the decision making process. The appropriate inference to draw might be informed by what occurred during the decision-making process, including the evidence and submissions put forward by an applicant before the delegate and the Tribunal on review and the prominence or importance of the particular matter said to have been overlooked. (Minister’s emphasis)
…
Findings
96.Direction 53 requires that, in reaching the state of satisfaction in cl 572.223(1)(a), the decision maker “have regard to” the factors referred to in the manner earlier described. It does not impose a jurisdictional obligation to make a finding in respect of each factor irrespective of its materiality to the particular case. Less still is there an obligation, after forming the view that a factor was not material to the particular case, to express that conclusion in the statement of reasons. Section 368 includes an obligation to set out findings material to the decision, not findings that were immaterial. (Emphasis added)
Direction 53 is different to PAM3, because Direction 53 contains mandatory relevant considerations by virtue of s.499 of the Act. However, for this stage of the argument, that distinction is not relevant, because the Minister’s argument is that the Tribunal considered the best interests of the applicant’s brother’s children, even though the Tribunal did not expressly mention their best interests in its reasons for decision.
I note that it is for the applicant to establish that the Tribunal did not consider the best interests of the applicant’s children. I also note the distinction between considering a matter and referring to it in reasons for decision.
In this case, the Tribunal was aware of the policy that it should consider the best interests of affected children. The Tribunal said at paragraph 91 of its reasons for decision that the applicant was living with his brother and his brother’s family, which in context, must be taken to include the brother’s children. The Tribunal accepted in paragraph 93 of its reasons for decision that the applicant has established ties with his family in Australia, which, in context, must be taken to include his brother’s children. The Tribunal referred during the hearing before it and in its reasons for decision to the submissions from the applicant’s agent, which referred to the interactions between the applicant and his brother’s children. The Tribunal was aware of that evidence, and appears to have accepted it.
While PAM3 required the Tribunal to consider the best interests of the applicant’s brother’s children whether the applicant raised that issue or not, the Tribunal only needed to consider that issue in the light of the evidence provided to it. In the present case, the evidence was scant, but apparently accepted in its entirety by the Tribunal.
In all the circumstances of this case, I would infer that the Tribunal considered the issue of the best interests of the applicant’s brother’s children, but formed the view that they were of so little significance that they did not warrant a mention in the reasons for decision. That conclusion is strengthened by the fact that such a view was entirely reasonable. Frankly, it is fanciful that the best interests of the applicant’s brother’s children, as far as they were known to the Tribunal, could have weighed in any significant way in the applicant’s favour. The applicant’s brother’s children have two parents with whom they live, and who seem to be well able to support them. There was no suggestion that the children are not well cared for by their own parents.
That leads to the Minister’s next argument, which was that, even if the Tribunal had failed to consider the best interests of the applicant’s brother’s children, it was immaterial, in the sense that it would not have made a difference to the outcome. For this argument, the Minister relied on Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47; [2019] FCAFC 55, where Bromwich and Wheelahan JJ said at [72] that:
Even if the Falun Gong point was in fact made, in the sense that it was maintained before the Tribunal despite the indications to the contrary referred to above, by reason of its objective inadequacies we are not satisfied that it was material to the Tribunal’s decision: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 at [29]-[30], [40] and [72]; see also Wei v Minister for Immigration and Border Protection [2015] HCA 51; 257 CLR 22 at [23].
In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; (2018) 359 ALR 1; 92 ALJR 780; [2018] HCA 34, Kiefel CJ, Gageler and Keane JJ said at [30]:
Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome”, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made. (citations omitted)
While I hesitate to assess materiality, because it comes close to considering the merits of the case, it seems to me that it can comfortably be said in the present case that, if the Tribunal did fail to consider the best interests of the applicant’s brother’s children, it could not have made a difference to the outcome.
For completeness, I will also address the applicant’s principal argument, which was based on Minister for Immigration Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189; (1994) 33 ALD 13; (1994) 19 AAR 266, where French and Drummond JJ said:
a)at page 205:
It is right to say that the Tribunal, which operates as part of a continuum of administrative decision-making, is not bound by governmental policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review:
“If the original decision maker has properly paid
regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.” - Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420.
b)at page 206:
The proposition that government policy cannot bind the Tribunal does not imply that the policy can be ignored. It is reasonable to associate with the legislative intent that is taken to inform the construction of a wide statutory power, an acceptance of the likelihood that policies or guidelines will be developed by the Executive at either or both Ministerial or departmental levels to govern its application. As Bowen CJ and Deane J observed in Drake (at 420):
“… the consistent exercise of discretionary administrative power in the absence of legislative guidelines will, in itself, almost inevitably lead to the formulation of some general policy or rules relating to the exercise of the relevant power.”
This is particularly so in the case of a power which involves high volume decision-making or which may, in any event, because of its subject matter, be expected to attract policy guidelines. Certain classes of immigration decision are necessarily high volume, such as those relating to the grant of visas and entry permits. The exercise of the power to deport involves a direct interference with individual liberty. Common concepts of justice suggest that, while each case is to be considered on its individual merits, like cases will generally be treated similarly. The imputed legislative contemplation of such policies for that purpose must be limited to those which are consistent with the general purposes and requirements, express or implied, of the legislation in question. They cannot be expressed to fetter the exercise of the relevant discretion. Recognition of legislative contemplation that policy guidelines will be made is consistent with the requirement that each case is considered on its merits. But within that framework, the existence and content of lawful policy may properly be regarded as a relevant factor which, because it is properly contemplated by the legislature, must be taken into account by the Tribunal. In the case of the power to deport non-citizens convicted of criminal offences, the existence and content of a lawful criminal deportation policy is a matter the Tribunal is bound to take into account and to give such weight as it thinks proper having regard to all the circumstances of the case. … (emphasis added)
c)at page 207:
… The notion that the Tribunal may be bound to take into account applicable Ministerial policy as a relevant factor is fundamental to the approach enunciated by Brennan J in Re Drake (No 2) (1979) 2 ALD 634, the decision on the rehearing which followed the judgment of the Full court in Drake v Minister for Immigration and Ethnic Affairs. At 645, his Honour, then President of the Tribunal, set out what he regarded as appropriate practice on the part of the Tribunal in relation to the review of a Ministerial discretion subject to a Ministerial policy:
“When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.
The general practice will require the Tribunal to determine whether the policy is lawful, not in order to supervise the exercise by the Minister of his discretion, but in order to determine whether the policy is appropriate for application by the Tribunal in making its own decision on review.”
d)at page 208:
The question arises whether a misapplication or misconstruction of the Ministerial policy by the Tribunal gives rise to error which is reviewable on appeal to this Court as an error of law. It must be accepted, as counsel for the Minister submitted, that Ministerial policy is not to be construed and applied with the nicety of a statute. Policies are not statutory instruments. They prescribe guidelines in general, and not always very precise, language. To apply them with statutory nicety is to misunderstand their function. On the other hand, where the existence and content of such a policy is to be regarded as a relevant fact which the Tribunal is bound to consider, a serious misconstruction of its terms or misunderstanding of its purposes in the course of decision-making may constitute a failure to take into account a relevant factor and for that reason may result in an improper exercise of the statutory power. If a decision-maker, not bound to apply policy, purports to apply it as a proper basis for disposing of the case in hand but misconstrues or misunderstands it so that what is applied is not the policy but something else, then there may be reviewable error. In a limiting case a policy may be so broadly stated as to cover all considerations properly brought to bear on the exercise of the discretion. In such a case misconstruction of the policy may reduce to misconstruction of the statute or misunderstanding of the purpose. In so saying, the Court accepts that the limits within which its jurisdiction to review decisions of the Tribunal is conferred require that it be exercised with restraint. In particular, the Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts. The reasons for its decision are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287.
The Minister submitted that the policy in this case was not a mandatory relevant consideration in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 10 ALN N109; (1986) 66 ALR 299; (1986) 60 ALJR 560; [1986] HCA 40 and so did not have to be considered at all. The Minister in support of that contention relied on COT15 v Minister for Immigration and Border Protection (No 1) (2015) 236 FCR 148; (2015) 328 ALR 653; [2015] FCAFC 190, where North, Collier and Flick JJ said that:
28.Regulation 2.41(e) stipulates a circumstance which is a mandatory consideration by operation of s 109(1)(c) of the Act. The Tribunal must consider the “present circumstances of the visa holder”. The primary judge concluded that the regulation referred to the physical, economic, emotional, and relationship circumstances of an applicant. It did not extend to whether Australia owed non-refoulement obligations to the visa applicant. That construction of the text of the regulation is correct. The reference to the present circumstances of the visa holder is not apt to refer to obligations which Australia owes to other countries under treaty. That construction is consistent with the matter as treated by PAM3. PAM3 deals with considerations which must be taken into account under reg 2.41 in [15.2] and then in [15.3] it deals separately with considerations which should be taken into account by the decision maker, where relevant, when determining whether to cancel a visa. Australia’s international obligations are discussed in this latter paragraph. PAM3 thus recognises that Australia’s international obligations are not a matter which must be addressed under reg 2.41, and, in particular, those obligations do not fall within the description of the visa holder’s current circumstances under reg 2.41(e). (emphasis added)
[Emphasis added.]
29.Then, counsel for the appellant contended that, properly read, PAM3 made Australia’s non-refoulement obligations a mandatory consideration. He argued that [15.3] expressly listed matters that “should” be taken into account. “Should”, he said, was used in the sense of “must”. …
30.That submission misconstrues PAM3. Clause 15.2 lists matters which “must” be taken into account. Clause 15.3 which follows immediately after cl 15.2 lists matters which “should” be taken into account. The document draws a clear distinction between the two categories. Clauses 76 and 78 are part of a section headed “Australia’s International Obligations”. This section explains the nature of the obligations but does not define the role of the decision maker. That is done in cl 15.3. The relevant part of cl 15.3 ends with the guidance “see Australia’s international obligations…” That guidance directs the reader to the section in which cl 76 and 78 appear and which are designed to describe the content of the obligations referred to in the earlier clauses.
31.The appellant faced two further obstacles in relation to his reliance on PAM3. The first obstacle is the judgment in El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43 (El Ess) in which Gray J held at [45]:
In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 (2000) 61 ALD 641 at [28] – [29] and Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 at [15] – [16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account.
[Emphasis added.]
COT15 is a recent, unanimous Full Court decision on the application of PAM3 to a cancellation of a visa under s.109 of the Act. As such, it would appear to be binding on this court, rather than Gray, which is a much older decision and does not concern the particular policy in issue in the present case. COT15 is to the effect that the matters mentioned in paragraph 15.3 of PAM3 are not mandatory relevant considerations.
However, the applicant argued that the passages cited above from COT15 are obiter. The Minister, without notice of the point, did not express a concluded view on that issue.
I do not accept that the passages cited above from COT15 are obiter. It is true that there were two distinct and entirely separate planks to the court’s decision in COT15 that there was no jurisdictional error, one concerning the grounds of appeal, the other concerning the notice of contention. However, it cannot be said that one plank was obiter any more than the other plank was obiter. Both planks were careful and considered responses to arguments put to the court.
The applicant noted that the court in COT15 did not refer to Gray, and suggested that COT15 was per incuriam. My understanding of the law in this connection is that I am obliged to follow COT15, even if it is per incuriam, and I do so. It is for the Full Court of the Federal Court to resolve this issue, if need be.
In any event, as noted in COT15, PAM3 said that, in relation to cancellations under s.109 of the Act, certain factors must be taken into account, being the factors enumerated in the regulations, and other factors should be taken into account. The issue of a child’s best interests fell into the latter category.
The word must signifies an absolute obligation. The word should signifies a recommendation. That alone is sufficient to indicate that the child’s best interests are not a mandatory consideration. It is also a matter that distinguishes this case from Gray, as the policy in that case said that certain factors will be taken into account. Will is more akin to must than should.
The Minister also argued that, as a matter of statutory construction, in the present case, and unlike in Gray, the legislation prescribed the relevant considerations. The relevant considerations are stated in s.109(b) of the Act to be any response to the notice to consider cancellation and in s.109(c) of the Act to be any prescribed circumstances. The circumstances prescribed for s.109(c) of the Act are set out in reg.2.41 of the Regulations. That regulation does not include the best interests of the applicant’s brother’s children, or any catch all that enables the Tribunal to consider any other matters that it deems relevant. I accept that the legislation in this case distinguishes this matter from Gray, and means that the best interests of the applicant’s brother’s children were not a mandatory relevant consideration.
The Minister also noted the unanimous decision of the Full Court of the Federal Court in Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248; (2010) 119 ALD 26; (2010) 274 ALR 438; [2010] FCAFC 145 at [68] where it was said that:
There are 10 criteria specified in reg 2.41. The list of factors set out in reg 2.41 is not an exhaustive statement of the factors that the Minister might properly consider to be relevant in any given case. That list contains all of the mandatory criteria and, therefore, constitutes a comprehensive statement of those considerations which must be taken into account.
Khadgi would also seem to mean that Gray has been overtaken by subsequent authority, at least in relation to s.109 cancellations. That passage from Khadgi was cited with approval in COT15 at [35] and [36].
The Minister also submitted that Gray had been overtaken by legislation, in the form of s.499 of the Act. That section relevantly provides that:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
…
(2A)A person or body must comply with a direction under subsection (1).
(3)The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given.
…
By s.499 of the Act, the Minister may direct decision makers to consider certain factors when making decisions. The direction must be laid before each House of the Parliament. In Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141 at [35], Tracey J said:
[Gray] pre-dated the enactment of s 499 of the Act. The relevant government policy on criminal deportation had been explained in Parliamentary statements made by Ministers. It may well be that the introduction of the scheme of ministerial directions under s 499 has displaced any common law requirements which might have bound decision-makers to take into account government policy.
I consider that statement, although expressed somewhat tentatively, because it was not necessary in Hodgson to determine the issue, to be correct. That is, I accept that Gray has been overtaken by s.499 of the Act. PAM3 is not a direction pursuant to s.499 of the Act. It does not impose mandatory relevant considerations.
The Minister also argued that PAM3 did not impose mandatory relevant considerations because, unlike the policy in Gray, PAM3 has not been laid before the Parliament[2]. The applicant argued that could not be relevant, because the laying of the policy before Parliament would have a reverse-engineering effect, and change the interpretation of the legislation after the event.
[2] The affidavit of Jackson Clyde Macaulay affirmed on 26 October 2020.
That may be so. In Gray, French and Drummond noted at page 203 that the policy was set out in a statement made to the Parliament on 4 March 1983 by the then Minister for Immigration, but that circumstance was not critical to the decision.
In any event, for the reasons discussed above, I am not persuaded that PAM3 imposed any mandatory considerations.
Conclusion
As neither of the applicant’s grounds has been made out, the application will be dismissed with costs.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 14 January 2021
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