BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
File number:
VID 740 of 2016
Judge:
MOSHINSKY J
Date of judgment:
6 October 2016
Catchwords:
MIGRATION – cancellation of visa on character grounds where substantial criminal record – request for revocation of cancellation decision under s 501CA of the Migration Act 1958 (Cth) – decision by Minister not to revoke cancellation decision – whether decision legally unreasonable due to failure to assess likelihood of re-offending – whether decision legally unreasonable due to failure to differentiate between historical violent offences and recent dishonesty offences – whether Minister had regard to an irrelevant consideration namely the punitive effect of visa cancellation
Administrative and Constitutional Law and Human Rights
Category:
Catchwords
Number of paragraphs:
78
Counsel for the Applicant:
Mr J Forsaith
Solicitor for the Applicant:
Carina Ford Immigration Lawyers
Counsel for the Respondent:
Mr G Hill
Solicitor for the Respondent:
Australian Government Solicitor
ORDERS
VID 740 of 2016
BETWEEN:
BSJ16
Applicant
AND:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
MOSHINSKY J
DATE OF ORDER:
6 OCTOBER 2016
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent’s costs of the proceeding, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MOSHINSKY J:
Introduction
The applicant was born in China.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Case
[2016] FCA 1181
Decision Date
CaseChat Overview and Summary
BSJ16 applied for judicial review of a decision by the Minister for Immigration and Border Protection not to revoke a decision to cancel his visa on character grounds. The Federal Court of Australia considered the applicant's contentions that the Minister failed to properly assess the likelihood of re-offending and distinguish between the seriousness of historical violent offences and recent dishonesty offences, and that the Minister took into account the punitive effect of visa cancellation, which was an irrelevant consideration. The Court found that the Minister assessed the likelihood of re-offending by finding there was a risk of re-offending, which was sufficient for a rational reasoning process. The Minister also assessed the more recent dishonesty offences as serious, so there was no disconnect between the assessments of the different types of offences. The Minister did not take into account the punitive effect of visa cancellation as an irrelevant consideration, as the Statement of Reasons did not reflect a view that the applicant deserved further punishment for his past offences.
The Court held that the Minister's decision was not legally unreasonable, and dismissed the application for judicial review. The Court ordered that the applicant pay the respondent's costs of the proceeding, to be taxed if not agreed.
Orders
Orders of the court
1. The application be dismissed.
2. The applicant pay the respondent’s costs of the proceeding, to be taxed if not agreed.
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
Full text does not contain this section.
Decision
Reasons for decision
On 8 April 2016, the Minister decided not to revoke the decision to cancel the applicant’s visa (the Decision). The Minister was not satisfied that the applicant passed the character test (as defined in s 501). Nor was the Minister satisfied that there was another reason why the cancellation decision should be revoked. The Minister’s reasons were set out in a statement of reasons of the same date (the Statement of Reasons). The applicant seeks judicial review of the Decision on the following grounds:(a)First, the applicant contends that the Minister failed to discharge his statutory task and/or that his decision was legally unreasonable in that:(i)the Minister failed to assess the likelihood of re-offending in circumstances where the nature of the offending was not such that it was open to find (and, in any event, the Minister made no such finding) that any risk of re-offending warranted cancellation; and/or(ii)the Minister failed, in assessing the likelihood and/or consequences of re-offending, to differentiate between the applicant’s (historical) violent offending and his (recent) dishonesty offences.(b)Secondly, the applicant contends that the Minister, in exercising his discretion, had regard to the punitive effect of visa cancellation, which was an irrelevant consideration. For the reasons that follow, none of these grounds is made out. In summary, my reasons are as follows:(a)In relation to the first limb of the first ground, by parity of reasoning with cases concerning s 501(2), the Minister in exercising the power conferred by s 501CA(4) has no duty to evaluate the risk of harm to the Australian community in any particular way or to ascribe any particular characterisation to the quality of risk. In the present case, contrary to the applicant’s submissions, the Minister did assess the likelihood of re-offending by, in effect, finding there was a risk of re-offending. This was sufficient, in my view, to support a rational and logical reasoning process.(b)In relation to the second limb of the first ground, the applicant contends that the Minister based his decision on his assessment of the seriousness of the applicant’s historical violent offending and – to the extent that he assessed it at all – an assessment of the likelihood of re-offending based (at least substantially) on the applicant’s recent dishonesty offending; and that the Minister did not grapple with this disconnect. But it is apparent from the Statement of Reasons that the Minister assessed the more recent dishonesty offences as “serious”. Therefore, I do not think the Statement of Reasons suffers from the disconnect outlined in the applicant’s submissions.(c)In relation to the second ground, the applicant contends that the Minister, in having regard to “expectations of the Australian community”, in effect took into account as a consideration for non-revocation that the applicant deserved to be punished for his past offences, and this was an irrelevant consideration. However, I do not read the Statement of Reasons as reflecting a view (whether of the Minister or one attributed to the Australian community) that the applicant deserved to be (further) punished for his offences and that, for this reason, the cancellation decision ought not be revoked.
Ratio Decidendi
Legal Principle Established
On 17 March 2015, on the basis of his 2006 convictions and sentences and in circumstances where he was serving a sentence of imprisonment on a full-time basis for the 2014 offences, the applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) by a delegate of the respondent (the Minister). The decision to cancel the applicant’s visa will be referred to in these reasons as the cancellation decision. The applicant was notified of the cancellation decision and invited to make representations to the Minister about revocation of that decision pursuant to s 501CA of the Migration Act. Section 501CA(4) provides that the Minister may revoke the cancellation decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied that the person passes the character test (as defined in s 501) or that “there is another reason why the [cancellation] decision should be revoked”. The applicant provided representations to the Minister in accordance with s 501CA. A departmental officer prepared an issues paper addressed to the Minister which set out issues for consideration in connection with the possible revocation under s 501CA of the cancellation decision (the Issues Paper). Attached to the Issues Paper were the applicant’s submissions and other relevant documents. On 8 April 2016, the Minister decided not to revoke the decision to cancel the applicant’s visa (the Decision). The Minister was not satisfied that the applicant passed the character test (as defined in s 501). Nor was the Minister satisfied that there was another reason why the cancellation decision should be revoked. The Minister’s reasons were set out in a statement of reasons of the same date (the Statement of Reasons). The applicant seeks judicial review of the Decision on the following grounds:(a)First, the applicant contends that the Minister failed to discharge his statutory task and/or that his decision was legally unreasonable in that:(i)the Minister failed to assess the likelihood of re-offending in circumstances where the nature of the offending was not such that it was open to find (and, in any event, the Minister made no such finding) that any risk of re-offending warranted cancellation; and/or(ii)the Minister failed, in assessing the likelihood and/or consequences of re-offending, to differentiate between the applicant’s (historical) violent offending and his (recent) dishonesty offences.(b)Secondly, the applicant contends that the Minister, in exercising his discretion, had regard to the punitive effect of visa cancellation, which was an irrelevant consideration. For the reasons that follow, none of these grounds is made out. In summary, my reasons are as follows:(a)In relation to the first limb of the first ground, by parity of reasoning with cases concerning s 501(2), the Minister in exercising the power conferred by s 501CA(4) has no duty to evaluate the risk of harm to the Australian community in any particular way or to ascribe any particular characterisation to the quality of risk. In the present case, contrary to the applicant’s submissions, the Minister did assess the likelihood of re-offending by, in effect, finding there was a risk of re-offending. This was sufficient, in my view, to support a rational and logical reasoning process.(b)In relation to the second limb of the first ground, the applicant contends that the Minister based his decision on his assessment of the seriousness of the applicant’s historical violent offending and – to the extent that he assessed it at all – an assessment of the likelihood of re-offending based (at least substantially) on the applicant’s recent dishonesty offending; and that the Minister did not grapple with this disconnect. But it is apparent from the Statement of Reasons that the Minister assessed the more recent dishonesty offences as “serious”. Therefore, I do not think the Statement of Reasons suffers from the disconnect outlined in the applicant’s submissions.(c)In relation to the second ground, the applicant contends that the Minister, in having regard to “expectations of the Australian community”, in effect took into account as a consideration for non-revocation that the applicant deserved to be punished for his past offences, and this was an irrelevant consideration. However, I do not read the Statement of Reasons as reflecting a view (whether of the Minister or one attributed to the Australian community) that the applicant deserved to be (further) punished for his offences and that, for this reason, the cancellation decision ought not be revoked.