BLD20 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 876
Federal Circuit and Family Court of Australia
(DIVISION 2)
BLD20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 876
File number(s): SYG 815 of 2020 Judgment of: JUDGE SYMONS Date of judgment: 26 October 2022 Catchwords: MIGRATION – application for an extension of time – decision of the Administrative Appeals Tribunal to affirm cancellation of applicant’s protection visa under s 116(1)(e) of the Migration Act 1958 (Cth) – where proposed grounds challenge the exercise by the Tribunal of its discretion to cancel – where grounds lacking in merit – application refused Legislation: Migration Act 1958 (Cth) ss 116, 477, 477A Cases cited: DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475; [2020] FCAFC 127
El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 395 ALR 403; [2021] HCA 41
Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231; [2015] HCA 3
RZSN v Minister for Home Affairs [2019] FCA 1731SZRIQ v Federal Magistrates Court of Australia (2013) 139 ALD 252; [2013] FCA 1284
SZTES v Minister for Immigration and Border Protection [2015] FCA 719
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604; [2022] HCA 28
Division: Division 2 General Federal Law Number of paragraphs: 80 Date of last submission/s: 17 October 2022 Date of hearing: 17 October 2022 Place: Melbourne Applicant: In person Counsel for the Respondent: Ms R Francois Solicitor for the Respondent: Minter Ellison ORDERS
SYG 815 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BLD20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE symons
DATE OF ORDER:
26 October 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.Pursuant to s 477(2) of the Migration Act 1958 (Cth), the application for an extension of time filed on 1 April 2020 be dismissed.
3.The applicant pay the first respondent’s costs in the fixed amount of $3,606.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SYMONS:
introduction
Section 116(1)(e) of the Migration Act 1958 (Cth) (“the Act”) allows the first respondent (“the Minister”) to cancel a visa if he or she is satisfied that the presence of its holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community or the health or safety of an individual or individuals.
By an application filed on 1 April 2020, the applicant seeks judicial review of a decision of the second respondent (“the Tribunal”) dated 13 February 2020, which affirmed a decision of a delegate of the Minister to cancel the applicant’s subclass 790 (Safe Haven Enterprise) visa (“the visa”) under s 116(1)(e) of the Act. Both the delegate and the Tribunal concluded that the applicant posed a risk to the safety of a segment of the Australian community, being women.
Before the applicant can prosecute his application for judicial review, he must first satisfy the Court that it would be necessary in the interests of the administration of justice that he be granted an extension of time to do so. This is because his application was filed 13 days after the time specified in s 477(1) of the Act (being within 35 days of the date of the Tribunal’s decision).
The Minister opposes the granting of an extension of time on the basis that the applicant has not filed any affidavit explaining his delay in making his application. The Minister also contends that as the grounds of the applicant’s substantial application are lacking in particulars and the applicant has failed to file any written submissions illuminating the nature of his judicial review challenge, his case should be understood as concerned only with revisiting the merits of the Tribunal decision. In the ultimate, and for the reasons which are set out below, I have accepted this submission.
BACKGROUND
Having reviewed all of the material before me, including a Court Book (“CB”) comprising 400 pages, I adopt (with some modification) the procedural and factual background to these proceedings recorded by counsel for the Minister at paragraphs [5] to [31] of the written submissions filed on 27 August 2020.
The applicant is a 36 year old male and citizen of Iran who arrived in Australia on 17 September 2012 as an unauthorised maritime arrival (CB 28, 35). He left behind a wife and child in Iran (CB 83 [7]). At some time, probably during 2015, the Minister exercised his discretion under s 46A(2) of the Act to allow the applicant to make a valid application for the visa (CB 92).
Sometime during 2015, the applicant formed a relationship with Ms Randy (CB 379 [55]).
On 29 January 2016, the applicant lodged the application for the visa (CB 15-90).
On 3 March 2017, the applicant was granted the visa with a visa cease date of 2 March 2022 (CB 148). I note that despite this being the case, the Minister, appropriately, does not argue that any success the applicant might enjoy upon judicial review would be futile, in circumstances where there would be utility in terms of the future visa processes under the Act.
On 27 July 2018, the applicant was arrested and charged with “Sexual intercourse without consent – S1” and two counts of “Assault with act of indecency – T2” (CB 158-164). This charge was based upon an incident which had occurred on 3 December 2017 in relation to a relative stranger the applicant had met on an online dating website.
On 5 October 2018, the Department gave the applicant a Notice of Intention to Consider Cancellation (“NOITCC”) under s 116(1)(e) of the Act based upon the December 2017 incident (CB 165).
On 16 October 2018, the applicant’s solicitor wrote to the Department and requested an extension of time to respond (CB 171).
On 18 October 2018, the Refugee Advice and Casework Service (“RACS”) emailed the Department and also requested an extension of time (CB 174).
On 19 October 2018, the Department notified RACS that it would not grant an extension of time but that any submissions would be considered prior to the decision being made (CB 180). However that decision was changed upon further representations by RACS and an extension of time was granted on 22 October 2018 (CB 182).
On 30 October 2018, RACS provided a detailed response to the Department (CB 185-211).
On 21 November 2018, a delegate of the Minister cancelled the visa (CB 213-225) and on the same day, the applicant applied to the Tribunal for review of that decision (CB 226-227).
On 2 September 2019, the applicant was invited to attend a hearing on 23 October 2019 (CB 241).
On 12 September 2019, RACS, who represented the applicant throughout the Tribunal review, requested a one month adjournment of the Tribunal hearing pending the hearing of the applicant’s criminal charges, which was listed for 14 October 2019 (CB 253).
On 19 September 2019, the Tribunal granted the requested adjournment and listed the hearing for 27 November 2019 (CB 257).
On 21 October 2019, the applicant was convicted of all charges (CB 272).
On 29 October 2019, the applicant was sentenced to an aggregate term of imprisonment of four years and three months to commence on 21 July 2019 and to expire on 20 October 2023 with a non-parole period of two years and ten months (CB 272, 302-303).
On 15 November 2019, the applicant filed a Notice of Intention to Appeal (CB 305).
On 26 November 2019, RACS made detailed written submissions prior to the hearing (CB 271-308).
On 27 November 2019, the applicant, his representative from RACS and his Australian partner attended the hearing at the Tribunal (CB 321). The applicant was given until 11 December 2019 to provide further material to the Tribunal.
On 11 December 2019, RACS wrote to the Tribunal and requested a further extension of time to provide more psychological evidence about the impact of visa cancellation on the applicant’s mental health (CB 324-326).
Later that day, RACS provided an earlier report from the psychologist, Mr Attai, dated 1 September 2014 (CB 327-332).
On 16 December 2019, the Tribunal informed RACS that it would consider any report provided prior to the time it would finalise its decision, which it identified as being 18 December 2019 (CB 335).
On 17 December 2019, RACS wrote again and requested an extension of time and provided another copy of the psychologist report used for sentencing which was dated 28 October 2019 (CB 336-347).
On 23 December 2019, the Tribunal granted an extension of time to 20 January 2020 (CB 350).
On 20 January 2020, RACS provided further written submissions and a report from Mr Attai dated 13 January 2020 which concerned the applicant’s partner, Ms Randy (CB 351-360).
On 13 February 2020, the Tribunal affirmed the decision of the delegate (CB 367-388).
THE DECISION OF THE TRIBUNAL
The Tribunal identified the issue before it as whether the ground for cancellation of the applicant’s visa was made out and if so, whether the visa should be cancelled, having regard to all the relevant circumstances ([8], CB 368).
The Tribunal, in the context of setting out the background to the review application, referred to and summarised the applicant’s submissions responsive to the NOITCC ([17] CB 369-370), the applicant’s statutory declaration dated 29 October 2018 ([18] CB 370-371) and the material provided by the applicant to the Tribunal. The Tribunal referred specifically to the submissions dated 26 November 2019 and identified from this document the key points made by the applicant’s representative in support of the review application ([20] CB 371-372).
The Tribunal referred to the hearing that was conducted on 27 November 2019 and noted that it had given regard to the applicant’s mental health as outlined by his psychologist, Mr Attai. The Tribunal recorded that it was satisfied that the applicant had had a meaningful and proper opportunity to participate in the hearing and put his case in full before the Tribunal (CB 373 [21]).
The Tribunal referred to the evidence given by both the applicant and Ms Randy during the Tribunal hearing and the oral submissions made on the applicant’s behalf by his representative ([22]-[26] CB 373). The Tribunal referred to the material provided by the applicant following the hearing which had included reports prepared by Mr Attai and submissions of the applicant’s representative dated 20 January 2020 ([30]-[31] CB 374-375). The Tribunal noted that while the applicant’s representative had accepted that on the basis of the convictions, it was open to the Tribunal to find that the applicant might pose a risk to the Australian community, namely women, this risk was minimal having regard to a combination of factors that included his present incarceration (which would remove opportunity), a lack of pattern of offending, the deterrent impact of the sentence and the support available to him from Ms Randy.
Under the heading “Findings and Reasons”, the Tribunal accepted that the applicant had been convicted of the charges of sexual intercourse without consent and two counts of assault and act of indecency. The Tribunal noted that it was not open to it, despite the fact the applicant had entered a plea of not guilty, to go beyond the findings of the sentencing Court ([33]-[34] CB 375). The Tribunal characterised the offences as serious and recorded its satisfaction that the conviction and the significant sentences imposed supported a finding that the applicant may be a risk to the community or individuals such as women, as contemplated by s 116(1)(e). The Tribunal acknowledged that the standard in that section required only that the applicant may or might be a risk rather than requiring that the applicant is or would be a risk ([40] CB 377).
The Tribunal then gave separate consideration to whether, as a matter of discretion, the visa should be cancelled. In this context, the Tribunal addressed the matters identified in the Department’s Procedures Advice Manual (PAM 3) “General visa cancellation powers”.
The Tribunal found that the following considerations weighed in the applicant’s favour:
38.1The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia – the Tribunal was satisfied that the applicant’s travel and stay in Australia was consistent with the objective of the visa which he was granted. The Tribunal also gave weight to the applicant’s plans to have children with his partner, Ms Randy, which it described as “a compelling reason” ([43]-[46] CB 377);
38.2The extent of compliance with visa conditions – the Tribunal found that there was no evidence before it of non-compliance with visa conditions on the part of the applicant ([47]-[48] CB 377);
38.3The degree of hardship that may be caused (financial, psychological, emotional or other hardship) – the Tribunal accepted that the applicant was vulnerable psychologically and that he suffered from conditions that could worsen with indefinite detention. The Tribunal also accepted Mr Attai’s assessments and diagnoses of Ms Randy and acknowledged the hardship that would accrue to her in the case of cancellation ([54]-[58] CB 379);
38.4The past and present behaviour of the visa holder towards the Department – the Tribunal acknowledged that the applicant had been cooperative with the Department and responded to the NOITCC ([63]-[64] CB 380);
38.5Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation – the Tribunal gave weight in favour of the applicant on the basis that he had been assessed and found to be owed Australia’s protection and consequently there were non-refoulement obligations, although noting that such obligations would need to be considered in the context that the visa which the applicant held was a temporary visa, which would have expired on 2 March 2022, had it not been cancelled ([72]-[73] CB 381).
Against the applicant, the Tribunal considered the circumstances in which the ground of cancellation arose, noting that the sexual assault was a violent and serious offence which was not beyond the applicant’s control and had harmed his victim ([59]-[62] CB 380).
The Tribunal also considered the legal consequences of the decision (including any consequential cancellations under s 140) and the interests of Ms Randy’s 10 year old son but held that these considerations were neutral ([65]-[69] CB 380; [74]-[78] CB 382-383).
Having weighed these considerations, the Tribunal held that on balance the delegate’s decision should be affirmed ([81] CB 383).
PROCEEDINGS IN THIS COURT
On 4 June 2020, a Registrar of this Court made procedural orders including that the applicant file and serve, on or before 30 July 2020 any amended application with proper particulars of the grounds of the application, written submissions and any further affidavit or other evidence in support of the extension of time. Consistent with the procedural orders, the Minister, on 30 June 2020, filed a court book, and on 27 August 2020, filed written submissions. The applicant did not produce any material responsive to these orders (or at all). On 9 August 2022, a Registrar of this Court made further orders, including that the applicant file and serve at least 28 days before the hearing, written submissions, any amended application with proper particulars of the grounds of the application and any additional evidence on which the applicant seeks to rely. The applicant did not produce any further material and therefore relies upon his application and affidavit filed on 1 and 2 April 2020, respectively. The affidavit did not address itself to any of the matters germane to an extension of time application but instead simply attached a copy of the Tribunal decision.
The application was set down for hearing on 17 October 2022 using audio-visual technology reflecting the fact that the applicant was located in New South Wales and the judge to whom his application had been docketed was based in Victoria. On 10 October 2022 the applicant made a request that his application be heard in person. The Court informed the applicant that an in-person hearing could be accommodated on any of 14, 15 or 17 November 2022 or that it could remain listed for a virtual hearing on 17 October 2022. The applicant informed the Court on 12 October 2022 that he wished the matter to proceed on the earlier date, which it did.
At the hearing, the applicant engaged with the Court with the assistance of an interpreter in the Persian and English language. At the outset, I sought to clarify with the applicant what material he had received and/or had before him. The applicant told the Court that he had an electronic version of the Tribunal decision and a set of written submissions that he had prepared in anticipation of the hearing and which he intended to read from. The applicant did not have a copy of the Minister’s written submissions. However, as events transpired, these submissions (which had been prepared without the benefit of argument from the applicant) assumed less significance and Ms Francois addressed the Court orally by reference to the particular submissions and matters identified by the applicant on the day of the hearing. The applicant was given an opportunity to respond to these submissions.
I clarified with Ms Francois at the outset of the hearing the Minister’s attitude to both the extent of the delay (13 days) and the explanation given. Ms Francois accepted that the delay was relatively modest and although not explained (at least by reference to admissible evidence) was a consideration that in this case would not be determinative. Instead, the significant consideration would be the merits of the substantial application.
In his application filed on 1 April 2020, the applicant (or more likely his legal representative at the time), identified the following explanation for the delay:
46.1application was lodged via e lodgement on 20 March 2020 at 3.34 pm;
46.2the application made on 20 March 2020 was within 35 days;
46.3the application lodged via e lodgement was rejected on the basis that no affidavit was attached to the Migration Decision Record;
46.4payment was made on 20 March 2020 at 3.34 pm, however the payment was returned;
46.5it will not be procedurally not be fair if the extension is not granted as it was the legal representative that lodged the application.
During the hearing, the applicant acknowledged that his criminal lawyer had helped him to file the application document. However, he did not appear to have knowledge of the particular matters referred to at [46] above. The applicant also told the Court that the assistance from his lawyer had been limited to the filing of the application document and that he had, through a lack of resources and a limited command of English, otherwise found it difficult to obtain legal assistance in connection with his application. I accept that these factors compromised the ability of the applicant to comply with Court orders concerning the filing of written submissions and accordingly, when it came time for the applicant to address the Court on the merits of his case, I allowed the applicant some latitude in identifying matters that did not strictly arise from his application document.
In this regard, the application identified two grounds of review for determination in the event that the extension of time was granted, which were:
(a)procedural unfairness; and
(b)errors in the decision made, errors in paragraph 66 and 67 and paragraph 53.
EXTENSION OF TIME
It may be accepted that despite the lack of legislative prescription in relation to how the interests of the administration of justice might be satisfied for the purpose of s 477(2) of the Act, the factors which generally inform the exercise of the discretion to extend time include the following:
(a)the length of delay and whether there has been a reasonable and adequate explanation for it: SZTES v Minister for Immigration and Border Protection [2015] FCA 719 at [47] (citing SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284 at [46]-[48];
(b)whether there is any prejudice to the Minister; and
(c)whether the applicant’s proposed grounds seeking judicial review justify the extension of time.
The question of substantive merit was addressed recently by the High Court in Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604. In particular, the Court considered the question of whether the exercise of discretion in s 477A(2) of the Act (couched in identical terms to s 477(2) of the Act) might involve more than an impressionistic assessment of the merits of a proposed ground of review. Although the decision contained two separate judgments, there was agreement that the power conferred by s 477A(2) is unfettered and allows the Court to look at a myriad of facts and circumstances and that, reflecting the breadth of the discretion, it is within the Federal Court (and this Court’s) jurisdiction to have regard to the merits of a proposed application in such manner as it considers appropriate.
In endorsing this approach, the High Court rejected the view previously promulgated by a Full Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 278 FCR 475 that “the decisional process of exercising the discretion in s 477(2) neither requires nor warrants anything more than an impressionistic consideration of the proposed grounds of review”. As the majority explained, s 477(2) entrusts to the Court the function of identifying and formulating the interests of the administration of justice and how they should be weighed and assessed, including by reference to the merits of the proposed application.[1]
[1] See Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 403 ALR 604 at [19] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
The majority was also at pains to point out that the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice. In this regard, the level of satisfaction for the Court to reach was described as “not low”.
[2] Ibid at [12] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
Adopting this approach, and in circumstances where the delay in filing is relatively brief and where the Minister emphasises the merits of the substantive application above other considerations, the balance of this judgment is directed to an evaluation of the applicant’s proposed grounds of review.
Merit of proposed grounds
The applicant, in oral submissions, challenged the decision of the Tribunal by reference to six paragraphs of the Tribunal’s written statement. The Minister, also in oral submissions, responded to each of these arguments. In doing so, the Minister made the overriding submission that none of the matters raised by the applicant raised grounds that were reasonably arguable.
The first paragraph challenged by the applicant, paragraph [53] (CB 378-379) appeared under the heading “degree of hardship that may be caused (financial, psychological, emotional or other hardship)”. It reads as follows:
[53]Mr Attai provided an opinion that indefinite detention beyond the period of incarceration would very likely be detrimental to the applicant’s psychological health and prognosis with a significant increase in the risk of suicide. The Tribunal is concerned about an opinion that appears to be speculative in nature in that given that the period of incarceration is substantial (the applicant was sentenced to an aggregate term of imprisonment of 4 years, 3 months to commence on 21 July 2019 and expire on 20 October 2023 with a non-parole period of two years, 10 months – being eligible for parole on 20 May 2022), it is difficult to see how the psychologist is able to predict the likelihood of the applicant’s psychological health and well-being subsequent to serving the sentence. The Tribunal acknowledges that Mr Attai is qualified to provide the opinions that he has provided, however, the Tribunal finds it challenging to accept uncritically some of the comments made by Mr Attai.
The applicant submitted that this paragraph revealed that the Tribunal had used the report of his psychologist against him and that he had not been given a chance to defend himself in this regard.
The Minister submitted that a plain reading of [53] instead disclosed that the Tribunal did not accept one aspect of the report of Mr Attai regarding the likelihood that the applicant’s future detention would create an enhanced risk of suicide. The Minister further submitted that this paragraph ([53]) should be read with paragraph [54] in which the Tribunal had accepted that the applicant was vulnerable and that his mental health conditions would worsen in indefinite detention with this consideration given significant weight in the applicant’s favour. For this reason, the factual premise of the applicant’s first argument did not exist.
Paragraph [54] to which the Minister referred, states:
[54]On the evidence, the Tribunal accept that the applicant is vulnerable psychologically and that he suffers from conditions that could worsen with indefinite detention. The Tribunal is particularly concerned about the applicant having suicidal ideations but as noted in the material provided to the Tribunal, namely the District Court of New South Wales Advice of Court Result, the Court ordered that the psychological report of Mr Attai of 28 October 2019 be sent to Corrective Services to assist in the applicant’s treatment while in custody. The Tribunal is satisfied that it is reasonable to suggest that while in custody, the applicant’s mental and psychological well-being are given consideration. As to what could occur once released from prison, as there could be multiple variables, it is inappropriate for the Tribunal to predict or speculate about what could or would happen upon release. Currently the applicant is serving a substantial prison term and the Tribunal accepts that he suffers from mental health conditions that make him a vulnerable person. The Tribunal has empathy for the applicant and appreciates that he is in a position where he does not want to be. The Tribunal gives significant weight to the applicant’s mental health in his favour.
In relation to this first argument, while reasonable minds might differ as to whether the criticism directed at the opinion expressed by Mr Attai as to the likelihood that the applicant might be exposed to a heightened risk of suicide in the event of indefinite detention was justified, especially in circumstances where the Tribunal had accepted that Mr Attai was qualified to provide such opinions and where the opinion (as to enhanced suicide risk) had been explained as reflecting the applicant’s psychosocial and other history (refer CB 288), I consider that its impact was ameliorated by the matters recorded by the Tribunal at [54].
As that paragraph disclosed, the Tribunal, apparently independently of Mr Attai, arrived at the conclusion that the applicant was vulnerable psychologically and that he suffered from conditions that could worsen with indefinite detention. The Tribunal, as noted above and reflecting this finding, gave significant weight to the applicant’s mental health in his favour. In these circumstances, I do not consider that any error in the approach taken by the Tribunal to the opinion of Mr Attai was material. For the avoidance of doubt, I also reject the applicant’s submission that the report of Mr Attai had been used against him. While on this particular topic of longer-term suicide risk the Tribunal did not accept the view expressed by Mr Attai, there were no adverse consequences for the applicant that attended the Tribunal’s rejection of this discrete aspect of one of a number of reports authored by Mr Attai.
The second paragraph challenged by the applicant, paragraph [57] (CB 379) which also appeared under the heading “degree of hardship” states:
[57]There are adverse legal consequences including becoming unlawful, being involuntarily removed from Australia, and being barred under s 46A and s 48A from making further applications for any visas. Although those are intended legislative consequences, they do present particular hardship to the applicant given his psychological vulnerability and the position that Iran does not normally accept returnees who have been removed. However, it would be open to the applicant to request Ministerial Intervention seeking a lift of the relevant bars. The Tribunal recognises that the Minister’s powers are non-reviewable and non-compellable but that is a potential option. By saying so, the Tribunal is not underestimating the potential consequences outlined here but the Tribunal recognises that there could be other potential avenues.
I understood the applicant’s concern about this paragraph to be that the Tribunal had erred by referring to the option of Ministerial Intervention as this was an irrelevant consideration in the particular circumstances of his cancellation case which he said involved a breach of visa conditions.
The Minister submitted that to the extent that an irrelevant consideration argument had been raised by the applicant it could not succeed because nothing in the terms or scope of the statute made the factor irrelevant (referring to Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231). On any view, the Tribunal was discussing the legal consequences of its decision and the Minister’s intervention powers were relevant to that discussion.
I accept the submission of the Minister on this point. The Tribunal was surveying a range of legal consequences that might attend the cancellation of the applicant’s visa. The Tribunal duly noted the potential option of Ministerial intervention but also, appropriately, acknowledged the limits that inhered in its exercise.
The third paragraph challenged by the applicant, paragraph [60] (CB 380) appeared under the heading “circumstances in which ground of cancellation arose” and read:
[60] The Tribunal considers sexual assault to be a violent and serious offence impacting on another person. The seriousness is reflected in the custodial sentence. The Tribunal is of the view that it is reasonable to suggest that there has been a significant adverse impact on the victim whom the applicant had met via an online dating website.
The applicant challenged this paragraph on the basis that there was (he said) no evidence of a significant adverse impact on the victim of his offending.
The Minister, on the other hand, submitted that the view recorded by the Tribunal was a matter of common sense which was comprehended broadly as an example of the personal or specialised knowledge that the Tribunal was entitled to rely upon in uncontroversial matters such as this. The Minister referred the Court to the decision of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 in which the High Court had – albeit in relation to a different provision of the Act – recognised that in some cases, and particularly where there is nothing in the statutory language that prohibits this course, a decision-maker may record findings that involve the application of personal or specialised knowledge or by reference to that which is commonly known.
I accept that in this case, including where the Tribunal has failed to identify any extrinsic evidence that supports the view expressed at [60], that the inference is available that it was one that reflected information that was personal or specialised or commonly known. Again, while reasonable minds might differ as to the availability of the inference drawn by the Tribunal, I do not consider that it was a finding that could properly be characterised as irrational or legally unreasonable and is therefore not liable to be set aside.
The fourth and fifth paragraphs challenged by the applicant, paragraphs [63] and [66] (CB 380) appeared under the headings “past and present behaviour of the visa holder towards the department” and “whether there would be consequential cancellations under s 140”. They read (including [64] which puts [63] in context and [65] which puts [66] in context):
•past and present behaviour of the visa holder towards the department;
[63]The applicant has been cooperative with the Department and responded to the NOITCC.
[64] The Tribunal gives this aspect weight in the applicant’s favour.
•whether there would be consequential cancellations under s. 140;
[65] There is no evidence of any consequential cancellation.
[66] The Tribunal gives this aspect neutral weight.
past and present behaviour of the visa holder towards the department;[63] The applicant has been cooperative with the Department and rT
The applicant explained to the Court that his concern with paragraph [66] was that it was made in ignorance of paragraph [63].
The Minister submitted that the applicant’s argument appeared to reflect a misunderstanding as to what the different paragraphs were directed to. Insofar as paragraph [66] involved the Tribunal giving neutral weight to evidence of consequential cancellation, this finding was open to the Tribunal for the reasons stated at [65].
I accept that nothing arises from the applicant’s challenge to paragraph [66] read with [63]. The considerations dealt with in these paragraphs were discrete and the findings (or allocations of weight) assigned in each of them, were open to the Tribunal.
The sixth paragraph challenged by the applicant, paragraph [67] (CB 380) appeared under the heading “whether there are mandatory legal consequences….”. It read:
[67]The Tribunal has dealt with this issue under the consideration of hardship. There are adverse legal consequences including becoming unlawful, indefinite detention, being involuntarily removed from Australia, and being barred under s. 46A and s. 48A from making further applications for any visas. As mentioned, it would be open to the applicant to request Ministerial Intervention seeking a lift of the relevant bars. The Tribunal is of the view that any such request would be dealt with in accordance with established guidelines.
I also note that reflecting these findings, the Tribunal (at [69]) gave this aspect neutral weight.
The applicant said about this paragraph ([67]) that “it is not humane and not good and has adverse effect on mentality and psychological situation of person”.
The Minister acknowledged that the applicant had rightly pointed to the fact that the matters identified in [67] raised the prospect of a very deleterious outcome for an applicant whose visa was cancelled. However, as the Tribunal had already addressed these considerations (at [54) and [57]) and had concluded overall at paragraph [58] that the consideration of hardship weighed in favour of the applicant, there was no error in the Tribunal assigning the same considerations separate weight when it came to revisit them under a different heading.
I accept the submission of the Minister on this argument. Although the consideration of legal consequences is conceptually, a different consideration to that of hardship, it is clear that the Tribunal did take the former consideration into account, albeit under a different heading and did give this consideration weight in favour of the applicant in the exercise of its discretion. In circumstances where PAM 3 is not a binding document and is intended, by its own terms, to be nothing more than procedural and policy guidance to officers applying the Act and the Regulations (with the result that it does not have the character of a mandatorily relevant consideration),[3]and where, as explained above, the Tribunal did nonetheless take the consideration into account, the failure to address itself to the consideration in a manner that was in perfect alignment with the structure of the PAM did not impugn the valid exercise of the Tribunal’s discretion.[4]
[3] El Ess v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1038; (2004) 142 FCR 43 at [43]]
[4] Compare RZSN v Minister for Home Affairs [2019] FCA 1731 at [70].
The final matter raised by the applicant was the concern that the Tribunal had failed to consider the psychological impact on his partner, Ms Randy, of a decision to cancel (or affirm the cancellation) of his visa.
However, the fact is that the Tribunal did address itself to the circumstances of Ms Randy as is evident from [55] (CB 379) of the decision record. This paragraph reads:
[55]The applicant has been in a relationship with Ms Randy since 2015 and the Tribunal accepts that this relationship is genuine and that Ms Randy is highly supportive of the applicant. Mr Attai provided opinions about Ms Randy’s mental health. The Tribunal accepts Mr Attai’s assessments and diagnoses of Ms Randy, including suicidal ideations, Major Depressive Disorder, with anxious distress, severe (mood-congruent psychotic features, moderate…). The Tribunal accepts Mr Attai’s observations that a significant cause of Ms Randy’s psychopathology is the applicant’s incarceration and that she and the applicant have increasingly become emotionally dependent on one another and planned to have children. The Tribunal acknowledges the hardship in case of cancellation to Ms Randy, who despite the convictions, expressed an opinion that the applicant would not engage in such a criminal conduct. The Tribunal gives regard to the couple’s stated plans of a life together as a family and to have children. The Tribunal acknowledges Mr Randy’s sadness about the miscarriage. The Tribunal has given those aspects weight in the applicant’s favour.
DISPOSITION
For the foregoing reasons I am satisfied that none of the grounds of review sought to be raised by the applicant have merit with the result that I am not satisfied that it would be necessary in the interests of the administration of justice to extend time.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Symons. Associate:
Dated: 26 October 2022
0
9
0