BPBR v Minister for Immigration and Multicultural Affairs

Case [2024] FCA 1289

FEDERAL COURT OF AUSTRALIA

BPBR v Minister for Immigration and Multicultural Affairs [2024] FCA 1289

Review of: BPBR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] AATA 1002
File number(s): NSD 710 of 2024
Judgment of: RAPER J
Date of judgment: 8 November 2024
Catchwords: MIGRATION LAW – application for judicial review of the Administrative Appeal Tribunal to affirm a decision of the Minister’s delegate to cancel the applicant’s Class BB Subclass 155 Five Year Resident Return (Permanent) visa on the basis that was reasonably suspected that she did not pass the character test – whether the Tribunal denied the applicant procedural fairness by not putting to the applicant or her representative that the Tribunal might find that there was a real chance she may reoffend – whether the Tribunal erred in failing to consider the consequences for the applicant and her unborn child in the event of the cancellation of her visa – whether the Tribunal erred in determining that there were no minor children’s interests requiring consideration – Application dismissed
Legislation:

Federal Courtof Australia Act 1976 (Cth) ss 37AA, 37AE, 37AG(1)(a), 37AG(1)(c)

Migration Act 1958 (Cth) ss 189, 499, 501, 501(2), 501(6), 501(6)(a), 501(7)

Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA
Cases cited:

BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111; 298 FCR 609

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; 240 FCR 29

DSLB v Comcare [2023] FCA 1222

DYY18 v Minister for Home Affairs [2019] FCA 1901

Ezegbe v Minister for Immigration and Border Protection [2019] FCA 216; 164 ALD 139

Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651

Hong v Minister for Immigration and Border Protection [2019]; FCAFC 55; 269 FCR 47

JNMK v Minister for Home Affairs [2019] FCA 1758; 168 ALD 206

Kalm v Administrative Appeals Tribunal [2013] FCA 890; 215 FCR 221

Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069; 148 ALD 507

Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326

Smith v Minister for Home Affairs [2019] FCA 45

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2006] HCA 63; 228 CLR 152

SZRLY v Minister for Immigration and Citizenship [2012] FCA 1459
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 63
Date of hearing: 29 October 2024
Counsel for the applicant: Mr B Mostafa and Mr S Kikkert
Solicitors for the applicant: Emigration Services
Counsel for the first respondent: Ms R Francois and Dr Y Wong
Solicitors for the first respondent: Clayton Utz
Counsel for the second respondent: The second respondent filed a submitting notice save as to costs

 

ORDERS

NSD 710…

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Details
AGLC
BPBR v Minister for Immigration and Multicultural Affairs [2024] FCA 1289
Case
[2024] FCA 1289
Decision Date

CaseChat Overview and Summary

In the matter of BPBR v Minister for Immigration and Multicultural Affairs, the Federal Court of Australia was called upon to review the decision of the Administrative Appeal Tribunal (AAT) in affirming the Minister’s delegate’s decision to cancel the applicant’s Class BB Subclass 155 Five Year Resident Return (Permanent) visa on the basis that it was reasonably suspected she did not pass the character test. The applicant sought judicial review on the grounds that the Tribunal denied her procedural fairness, failed to consider the consequences for her and her unborn child in the event of visa cancellation, and erred in determining that there were no minor children’s interests requiring consideration. The court found that the applicant’s claims did not hold merit, and dismissed the application.

The central legal issues the court had to decide were whether the Tribunal denied the applicant procedural fairness by not sufficiently identifying and notifying her of the risk of reoffending, whether the Tribunal failed to consider the consequences for the applicant and her unborn child in the event of visa cancellation, and whether the Tribunal erred in determining that there were no minor children’s interests requiring consideration. The applicant argued that the Tribunal did not provide a sufficiently granular level of detail regarding the risk of reoffending, which she claimed amounted to a denial of procedural fairness. She further contended that the Tribunal did not adequately consider the impact of the visa cancellation on her and her unborn child, and that it erred in concluding that no minor children’s interests required consideration.

The court found that the applicant was on notice of the issues to be determined by the Tribunal and had conceded that her attempt to claim she was not willingly involved in her offending might be seen as not taking responsibility for her actions, which could be a basis for why she was at risk of reoffending. The court held that the Tribunal did not deny the applicant procedural fairness by failing to identify and notify her of the risk of reoffending at a sufficiently granular level, as the applicant was aware of the issues to be determined. Additionally, the court found that the Tribunal did not err in failing to consider the consequences for the applicant and her unborn child in the event of visa cancellation, as the applicant did not provide evidence to suggest that the Tribunal had failed to consider these factors. Lastly, the court determined that the Tribunal did not err in concluding that there were no minor children’s interests requiring consideration, as the applicant did not provide evidence to suggest otherwise.

In conclusion, the court dismissed the application for judicial review, finding no error in the Tribunal’s decision. The court also made a pseudonym order to protect the applicant’s safety and ordered the applicant to pay the Minister’s costs as agreed or assessed. The orders of the court include changing the name of the first respondent to Minister for Immigration and Multicultural Affairs, dismissing the application, ordering the applicant to pay the first respondent’s costs as agreed or assessed, and prohibiting the publication or disclosure of any information tending to reveal the identity of the applicant for a period of seven years.

Orders

Orders of the court

1. The name of the first respondent be changed to Minister for Immigration and Multicultural Affairs.

2. The application be dismissed.

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

4. Pursuant to s 37AF(1)(a) of the Federal Court of Australia Act 1976 (Cth), on the ground that it is necessary to protect her safety, any information tending to reveal the identity of the applicant not be published or otherwise disclosed for a period of 7 years.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am satisfied that the pseudonym order is necessary in the circumstances to protect the safety of the applicant for the period sought, given the delegate and the Tribunal have recognised that the applicant was a victim of domestic violence which included threatening behaviour. The Tribunal also found that during her marriage to GN, she was subjected to violent and controlling behaviour. The Tribunal also accepted that as a result of GN’s behaviour deteriorating the applicant formulated a plan to move away from him and blocked all contact with GN, including changing her phone number and closing social media accounts. Despite, these attempts being made by the applicant to avoid contact with her former husband, the undisputed evidence before the Tribunal revealed that threats were made against the applicant and her family by GN, by contact GN had made with her family in Albania. The Tribunal found that the applicant was scared of GN and his criminal associates.Conclusion For the foregoing reasons, the application must be dismissed, a pseudonym order will be made and the applicant is ordered to pay the Minister’s costs as agreed or assessed.

Ratio Decidendi

Legal Principle Established

As a consequence of this conviction, the applicant’s Class BB Subclass 155 Five Year Resident Return (Permanent) visa was cancelled on the basis that the Minister’s delegate determined that she was reasonably suspected not to pass the “character test” contained in s 501(2) of the MigrationAct 1958 (Cth). The applicant sought review of this decision before the Administrative Appeals Tribunal. On 26 April 2024, the Tribunal reaffirmed the delegate’s decision to cancel her visa: BPBR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] AATA 1002 (AAT). In these proceedings, the applicant seeks to review the Tribunal’s decision. There are three issues for determination. The applicant claims that the Tribunal’s decision ought to be quashed on three bases (two grounds of review were not pressed at hearing): First, whether the Tribunal denied her procedural fairness in finding that there was “a real chance that the applicant will be drawn back into the influence of the criminals she once associated with and will commit further offences” (AAT[106]) by failing to put this to her or where it was purportedly not open on the known material that this issue was a live one. Secondly, whether the Tribunal failed to consider the consequences for the applicant and her unborn child in the event that the Tribunal decided to cancel her visa. Thirdly, whether the Tribunal erred in proceeding on the basis (AAT[109]) that there were no minor children whose interests had to be considered when considering the best interests of minor children in Australia. For the reasons which follow, the applicant’s application must be dismissed. I can discern no error in the Tribunal’s reasons. The Tribunal did not deny the applicant procedural fairness The first issue concerns whether the Tribunal denied the applicant procedural fairness in finding that there was “a real chance that the applicant will be drawn back into the influence of the criminals she once associated with and will commit further offences” (AAT[106]) by failing to put this to her and/or where it was purportedly not open on the known material that this issue was a live one. The applicant concedes that she was on notice as to the question of the likely risk of her further offending was an issue to be determined by the Tribunal in the context of its review of the delegate’s decision. The applicant also conceded that she knew that her attempt to say that she was not “willingly involved” in her offending (and therefore her claim of duress) may be rejected. In addition, the applicant conceded, at hearing, that she knew that her allegation of duress might be seen as her not taking responsibility for what she had done and therefore be a basis for why she was at risk of reoffending. The gravamen of the applicant’s complaint of a denial of procedural fairness was that she said that the Tribunal had failed, at a “sufficiently granular” level, to identify and notify her at the hearing of a relevant “issue”, which was described as an “affirmative finding of risk of falling back [under] the influence of people she’s no longer associated with”. It was submitted that the rejection of her evidence does not naturally lead to a conclusion, that in the circumstances of this case, that there was a real risk that she would fall back under the influence of the persons with whom she associated at the time of the relevant offending and thereby be led to commit further offending.