Bui v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 49
•29 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bui v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 49
File number(s): SYG 251 of 2019 Judgment of: JUDGE GIVEN Date of judgment: 29 January 2024 Catchwords: MIGRATION – Applicant initially charged with certain indictable drug offences – Notice of Intention to Consider Cancellation issued in respect of initial charges – visa cancelled by delegate – where charges later changed to charge of concealing serious indictable offence to which applicant pleaded guilty – whether error by Tribunal in reaching state of satisfaction that grounds existed to cancel visa based on different charge – whether error in failing to consider PAM3 Legislation: Crimes Act 1900 (NSW) s 316
Migration Act 1958 (Cth) ss 48, 116, 476, 501
Cases cited: BHP Billiton Direct Reduced Iron Pty Ltd v Duffus, Deputy Commissioner of Taxation (2007) 99 ALD 149
COT15 v Minister for Immigration and Border Protection (No 1) (2015) 236 FCR 148
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43
Gong v Minister for Immigration and Border Protection (2016) 309 FLR 151
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120
Minister for Immigration and Border Protection v Sabhwarwal [2018] FCAFC 160
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Xie v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 641
Division: Division 2 General Federal Law Number of paragraphs: 106 Date of hearing: 15 June 2023 Place: Sydney Counsel for the Applicant: Mr B Zipser Solicitor for the Applicant: Andy Pham Lawyers Counsel for the Respondents: Mr N Swan Solicitor for the Respondents: Sparke Helmore ORDERS
SYG 251 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: XUAN THIEN BUI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
29 JANUARY 2024
THE COURT ORDERS THAT:
1.The application filed on 6 February 2019, as amended, is dismissed.
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 GIVEN:
Before the Court is an application made pursuant to s 476(1) of the Migration Act 1958 (Cth) (Act), for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 8 January 2019 (Court Book (CB) 69 to 78), which affirmed a decision of a delegate of the first respondent (delegate) to cancel the applicant’s Partner (Subclass 820) visa (visa), pursuant to s 116 of the Act.
BACKGROUND
The following background and summary of the Tribunal’s decision are primarily derived from the respective written submissions of the parties and, unless otherwise indicated, do not appear to be in dispute.
The applicant is a citizen of Vietnam, who first arrived in Australia in August 2014 as the holder of a student visa (CB 8). On 15 December 2016, he was granted the visa on the basis of his marriage to a particular person (Ms Q) (CB 8).
On 14 June 2018, the applicant was arrested by NSW Police and charged with “Cultivate prohibited plant >= large commercial quantity” and “Use/consume/waste etc electricity without authority” (CB 5 to 6).
On 3 July 2018, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) under s 116 of the Act (CB 1 to 4).
On 19 July 2018, the applicant sent a submission to the delegate in response to the NOICC (CB 8 to 14).
On 23 July 2018, the delegate made a decision to cancel the applicant’s visa, pursuant to s 116 of the Act (CB 20 to 32).
On 27 July 2018, the applicant sought review of the delegate’s decision by application to the Tribunal (CB 33 to 34).
In his criminal matter, on 12 October 2018, the applicant and NSW Police Prosecutor entered into a statement of agreed facts. That document indicated that the offence for which the applicant had been charged had been withdrawn and replaced with a charge of “Conceal serious indictable offence” in contravention of s 316 of the Crimes Act 1900 (NSW) (concealment charge).
On 22 October 2018, the applicant provided a submission to the Tribunal (CB 43 to 49).
On 21 November 2018, at the hearing of the criminal proceedings, the applicant pleaded guilty to the concealment charge (concealment offence), for which he was sentenced to a Community Correction Order for 9 months (Correction Order) (CB 55 and 57).
On 29 December 2018, the applicant provided a further submission to the Tribunal, which was (in essence) repetitive of the 22 October 2018 submission (CB 54 to 55).
On 3 January 2019, the applicant attended a hearing of the Tribunal at which he gave evidence and presented arguments with the assistance of an interpreter in the Vietnamese language. The applicant was also represented at hearing by his migration agent (CB 62 to 64).
On 8 January 2019, the Tribunal affirmed the delegate’s decision (CB 69 to 78).
The decision of the Tribunal
The Tribunal summarised the background to the review and the relevant law (CB 70 at [1] to [6] and 71 at [11]). The Tribunal was satisfied that the presence of the applicant in Australia may be a risk to the safety or good order of the Australian community and that therefore, that the grounds for cancellation contained in s 116(1)(e) existed (CB 74 at [25]).
The Tribunal observed that the two original charges had been withdrawn and, in their place, the applicant had been charged with the concealment charge (CB 72 at [17]). It noted that the applicant had pleaded guilty to the concealment charge, summarised the Statement of Agreed Facts, and observed that the applicant had been sentenced to the Correction Order (CB 72 at [17] to [18]). The Tribunal summarised the applicant’s evidence to it about the circumstances of the concealment offence (CB 73 [19]).
The Tribunal found the applicant’s evidence to be unpersuasive and deliberately evasive (CB 73 at [20] to [22]). The Tribunal did not accept the applicant’s claim that it was while in prison that he had learned the difference between right and wrong, and that he now wanted to help other people who are the victims of criminals (CB 73 at [23]). The Tribunal found it to be of “considerable concern” that, despite his guilty plea and conviction of the concealment offence, the applicant maintained to the Tribunal that he was simply “at the wrong place at the wrong time” and that he had pleaded guilty as a matter of convenience. The Tribunal was not satisfied that the applicant was remorseful for his conduct, nor that he had an appreciation that his conduct in committing the concealment offence was contrary to law. The Tribunal was not satisfied that the applicant fully appreciated his obligations as a member of the community (CB 74 at [24]).
The Tribunal then turned to consider the exercise of its discretion (CB 74 at [26]). The Tribunal observed that the applicant was in Australia as the holder of a Partner visa, and that he had been fulfilling the purpose of that visa (CB 74 at [27] to [29]). It accepted that cancellation of his visa would result in his application for a permanent partner visa being refused, and that he would be subject to s 48 of the Act, although he would nonetheless be able to apply for further visas (CB 74 at [27]).
The Tribunal accepted that the applicant had a young child with Ms Q (CB 75 at [31]) and that if the visa was cancelled, and another visa not granted, the applicant may be required to leave Australia, with the result that he may be separated from Ms Q and their child (if they did not go to Vietnam with him) (CB 74 at [31] to [32] and 75 [37]).
The Tribunal accepted that cancellation of the visa would cause considerable hardship to the applicant’s family (CB 76 at [38]) but not that it would result in the applicant being permanently separated from them because he could apply for a future visa from Vietnam and significantly that, in any event there was no certainty that the applicant would have been granted a permanent visa to stay in Australia even if visa cancellation did not occur (CB 75 at [32]). The Tribunal was also not satisfied that Ms Q and the child could not travel to Vietnam with the applicant at least for some period or that, if the family were to stay in Vietnam, they would suffer significant hardship (CB 75 at [33]). It also did not accept that the applicant being unable to achieve a standard of living at “Australian standards” while in Vietnam would constitute hardship (CB 75 at [34]).
The Tribunal accepted that the applicant may be detained in immigration detention if his visa was to be cancelled, but observed that there was no suggestion this detention would be indefinite (CB 76 at [42]). It did not accept that Australia’s non-refoulement obligations would be breached by cancellation of the applicant’s visa and/or his removal (CB 77 at [43]).
The Tribunal accepted that it was in the best interests of the applicant’s son to be with both parents. However, given that separation was likely to be temporary (because Ms Q and the child could travel to Vietnam, or because the applicant may be eligible to return to Australia on another visa), the best interests of the son would not be adversely affected to any “significant degree” (CB 77 at [45] to [47]).
The Tribunal accepted that there were strong reasons why the visa should not be cancelled, in particular, the applicant’s strong family ties in Australia.
However, the Tribunal considered that the applicant had committed a serious offence, and had not shown a genuine appreciation of his conduct nor any remorse for it, and that the applicant had failed to take reasonable steps to disassociate himself from that situation. The Tribunal found that the circumstances in which the ground for cancellation arose, and the nature of the applicant’s conduct, outweighed the other considerations. Accordingly, the Tribunal exercised its discretion to cancel the visa (CB 77 to 78 at [49] to [54]).
Application to this Court
By an application to show cause filed with this Court on 6 February 2019, the applicant commenced the instant proceedings in which he has been represented since that time.
On 27 February 2019, a Registrar of the Court made orders which, inter alia, granted leave to the applicant to file and serve an amended application by 10 May 2019. The applicant did not avail himself of that grant of leave. On 24 July 2019, orders were made by consent by a Registrar, listing the matter for a callover on a date to be administratively advised to the parties.
The proceedings remained in the central migration docket until when, on 7 December 2022, they were placed into my docket. On that day, I made fresh procedural orders listing the matter for hearing on 18 April 2023, granting leave to the applicant to file and serve any amended application and setting a timetable for the filing and service of written submissions by the parties, 14 and 7 days (respectively) before the hearing date (December Orders).
Due to the unavailability of Counsel for the Minister, the matter was later relisted to 15 June 2023. Two sets of submissions were filed for the applicant on each of 5 June 2023 and 6 June 2023, and outside the grant of leave provided by the December Orders. As a result, on 6 June 2023, I made orders by consent extending the time for the filing of the Minister’s submissions to 13 June 2023. The Minister’s written submissions were thereafter filed in accordance with that order. On 14 June 2023, being the day before the hearing, a proposed Amended Application dated 6 June 2023 was circulated for the applicant, annexed to an Affidavit of Andy Pham affirmed on 14 June 2023.
The proceedings came before me for hearing on 15 June 2023. At hearing, I granted leave to the applicant to rely on the proposed Amended Application dated 6 June 2023 (Amended Application) and the amended written submissions filed for him on 6 June 2023, on the basis that the applicant pay the first respondent’s costs thrown away occasioned by that amendment. In accordance with the orders made at hearing granting leave, the Amended Application was duly filed on 16 June 2023.
At hearing, the parties were each represented by their respective Counsel, whose written and oral submissions have assisted the Court in the preparation of these reasons for judgment.
The following Affidavits were read for the applicant without objection:
(a)Affidavit of Kate Briscoe affirmed 13 May 2019 annexing a transcript prepared by Ms Briscoe of the English language dialogue from the Tribunal hearing held on 3 January 2019 (transcript Affidavit);
(b)Affidavit of the applicant’s solicitor, Andy Pham, affirmed 14 June 2023 (first Pham Affidavit); and
(c)Affidavit of Andy Pham, affirmed 14 June 2023 and attaching extracted parts of PAM3 (second Pham Affidavit).
The Court Book (prepared for the first respondent) was tendered at hearing and marked Exhibit “1A”.
GROUNDS OF REVIEW
The grounds of the Amended Application have the effect of amending grounds 1, 2 and 3 of the originating application, abandoning ground 4 and inserting an additional sixth ground. The grounds are lengthy, several with multiple particulars. They can be summarised as follows:
(a)ground 1 – the applicant was denied procedural fairness by the Tribunal’s finding at [25] (CB 74) that grounds for cancellation existed for the purposes of s 116(1)(e) of the Act in circumstances where the charges particularised in the NOICC were different to the concealment charge extant at the time of the Tribunal’s decision, and the applicant had not been invited to comment on “that step”.
(b)ground 2 – the Tribunal erred at [25] (CB 74) by finding that grounds for cancellation existed, which conclusion was illogical, unreasonable or irrational, and the Tribunal did not have regard to PAM3 in order to decide whether to apply government policy;
(c)ground 3 – the Tribunal erred in the exercise of its discretion to cancel the applicant’s visa by including, as part of that assessment, that the applicant may be able to apply for another visa in future and thereby return to Australia;
(d)ground 4 – not pressed;
(e)ground 5 – the Tribunal erred by its finding at [47] (CB 77) that the best interests of the child would not be adversely affected to any significant degree by cancellation; and
(f)ground 6 – the Tribunal erred in the exercise of its discretion to cancel the applicant’s visa by its finding at [52] (CB 78) that the applicant had committed a serious offence, its reliance on the applicant’s alleged lack of remorse, and by finding that the applicant had failed to take reasonable steps to disassociate himself from the situation which led to the charges and conviction.
As both grounds 1 and 2 turn upon what is said to be a failure to apply PAM3, and ground 2 is the more substantial of those grounds, it is convenient to address ground 2 first. The first respondent addressed grounds 1 and 2 together in written submissions.
Ground 2
By this ground the applicant says the Tribunal erred by finding that grounds existed for cancellation pursuant to s 116(1)(e) of the Act because:
(a)the matters on which the Tribunal relied in finding that the ground for cancellation pursuant to s 116(1)(e) existed, did not support such finding. As such, the Tribunal’s finding is said to be illogical, unreasonable or irrational; and
(b)the Tribunal failed to have regard to government policy in PAM3 in order to decide whether to apply the government policy.
It was accepted by each of the parties that the threshold for the state of satisfaction to be reached in s 116(e), namely that the applicant “may be” or “might be” a risk to the safety or good order of the Australian community, is a relatively low one: see Gong v Minister for Immigration and Border Protection (2016) 309 FLR 151 at [41] per Judge Smith.
The applicant says that the Tribunal’s reasoning process (specifically at [23] to [25] and [51] of the decision) falls entirely short of that threshold and fails to identify and/or explain the link between the applicant’s presence in Australia and its conclusions in respect of s 116(e).
In advancing this ground the applicant says that the totality of the Tribunal’s adverse findings against the applicant to ground the conclusion at [25] are that:
(a)the applicant committed a crime in circumstances where he knew, or believed, that the owner of the house in which some cannabis plants were being grown, had committed an offence and failed “to bring that information to the attention of a member of the NSW Police Force or other appropriate authority”;
(b)the Tribunal was “not satisfied that the applicant has any remorse for his conduct or appreciation of those elements of his conduct that were contrary to the law” (CB 74 at [24]; and
(c)the Tribunal was not satisfied the applicant fully appreciates his obligations as a member of the community, including the obligation to abide by the law (CB 74 at [24]).
collectively defined by the applicant as “the adverse findings”.
In submissions, the applicant sought to make seven distinct points in support of this ground.
In respect of the finding extracted at [38](a) above, the applicant was keen to point out that the offence does not involve “moral wrongdoing”, and is comparatively “less serious” than the range of offences in New South Wales for which a person can be imprisoned. The applicant also says that the finding summarised at [38(b)] above regarding the applicant’s lack of remorse, was not a positive one, and that the language used by the Tribunal detailed at [38(c)] above as “vague” and “imprecise”.
The applicant next says it is not evident how the Tribunal’s adverse findings led to its conclusion at [25] of the decision that the applicant “is or may be, or would or might be, a risk to” the safety or good order of the Australian community or a segment of the Australian community. While it does not appear that the applicant seeks to make a distinction between the use of the terms “may” and “might”, it is worthwhile to observe in the interests of clarity that the Tribunal’s use of the expression “may” be a risk, rather than “might” be, was because the applicant was in the migration zone at the time of cancellation: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic) at [36] per Allsop CJ, Besanko and O’Callaghan JJ.
The third submission took issue with what is said to be a scant, if not entirely lacking, expression of connection between the Tribunal’s adverse findings and its conclusions about the risk to safety and risk to good order that the applicant’s presence in Australia might have.
The fourth submission was to the effect that there was no logical or rational link between:
(a)findings that “the applicant has been convicted of an offence” and “the applicant appears to have little appreciation of the significance of his conduct”; and
(b)a conclusion that the presence of the applicant may be a risk to safety or good order of the Australian community.
Fifth, the applicant says that it was not in dispute that the Tribunal had PAM3 before it, and that while it follows from El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 (El Ess) at [45] per Gray J and Xie v Minister for Immigration and Multicultural Affairs (2000) 61 ALD 641 at [28] to [29] per Weinberg J (citing El Ess) that the Tribunal is not bound to apply PAM3, it must consider it where applicable, citing also COT15 v Minister for Immigration and Border Protection (No 1) (2015) 236 FCR 148 at [12] per North, Collier and Flick JJ.
The applicant says that it is clear from the Tribunal’s reasons at [26] to [50] that, by contrast, the Tribunal did not have regard to parts of PAM3 which required it to draw connections between the nature of the offence and how it is said that the offending poses a risk to the health, safety and good order of the Australian community.
The applicant says that no paragraph of the Tribunal’s reasons makes such a connection and that, in circumstances where PAM3 says that government policy is that “property offences are not likely to pose a risk to ... safety or good order” and it is not appropriate that s 116(1)(e) be considered in respect of “low-level crimes”, no paragraph of the Tribunal’s reasons explains why and how the crime committed by the applicant establishes the relevant risk.
The applicant says that the Tribunal was bound (in the Peko-Wallsend sense) to have regard to relevant paragraphs of PAM3, following which it could elect to not apply them provided it had a satisfactory basis for doing so. In the absence of which the applicant says that the Court should conclude from the Tribunal’s reasons that it did not have regard to relevant paragraphs of the PAM3 in reaching its finding at [25].
Next, the applicant sought to distinguish the facts of Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120 per Banks-Smith J, in which the Court dismissed a similar argument to that which the applicant contends for by ground 2. In Leota, the Court found the following at [62] to [63]:
Dealing in dangerous drugs constitutes serious criminal conduct. Dealing in methylamphetamine, including in commercial quantities, facilitates the spread of dangerous drugs into the community. Such drugs are included within the statutory definition of ‘dangerous’ drugs for a reason (Drugs Misuse Act 1986 (Qld): sch 1 and 2 of Drugs Misuse Regulation 1987 (Qld)). They impact not only on those who use them but on the broader community. So much is to my mind obvious and notorious. The Tribunal specifically brought to Mr Leota’s attention his police records for the purpose of the hearing before it. Mr Leota acknowledged in his submissions ‘the wider community issue of drugs and its impacts on its victims’. Whilst Mr Leota emphasises that all 38 drug-related offences of which he was convicted were dealt with at the same time by the Court and were part of what could be seen as comprising a ‘first offence’, such submission ignores Mr Leota’s willingness to repeat his conduct on many separate occasions and on different dates.
Having regard to the nature and seriousness of Mr Leota’s offending, it seems to me that the Tribunal was entitled to rely on his status as a dealer in dangerous drugs as the source of risk to the good order of the Australian community. I accept that ‘risk’ has an element of futurity to it such that reliance on past offending alone may not be sufficient, depending on the circumstances, to justify cancellation of a visa. However, in the case of a person with convictions for dealing in dangerous drugs on a large number of occasions and in commercial quantities, it was open for the Tribunal member to be satisfied that there was a risk that there may be further criminal conduct or non-observance of the law and so risk to the good order of the Australian community. To my mind the fact that the Tribunal had regard to such matters is implicit in its finding at [17] and its express reference to the applicant’s presence in Australia ‘as a dealer in dangerous drugs’.
The applicant says that his case is “far removed” from the facts of Leota and that the aforementioned reasons indicate a clear deficiency in the Tribunal’s reasons in the instant case.
Lastly, the applicant submits that it is “appropriate and instructive” to compare the cancellation power in s 116(e) with s 501(2) of the Act, saying that for there to be harmony between ss 116(1)(e) and 501, a decision-maker under s 116(1)(e) must clearly identify how the presence of the visa holder in Australia may be “a risk to...safety or good order of the Australian community”.
The first respondent simply says there is nothing irrational, illogical or unreasonable in the Tribunal’s finding that there may be a risk to the safety or good order of the Australian community from the continued presence of the applicant in Australia, such that the ground for cancellation in s 116(1)(e) existed.
As noted already, the first respondent acknowledges that the threshold for satisfaction that there are grounds for cancellation is not a high one, citing Gong (supra) at [41] per Judge Smith for the proposition that s 116(1)(e) is engaged where the Tribunal is satisfied that a visa holder’s presence “may be a risk” to certain matters means that there does not have to be “any direct, solid or certain foundation” before the power to cancel a visa can arise.
The first respondent points to the Tribunal having summarised the circumstances leading to the Applicant’s conviction at [7], [17] and [19] of the reasons for decision as providing a sufficiently logical basis for its state of satisfaction that grounds for cancellation existed.
Consideration
By this ground the applicant alleges the Tribunal’s finding at [25] that grounds for cancellation of the visa existed, pursuant to s 116(1)(e) of the Act, was illogical, irrational or unreasonable. It is also alleged to be invalid on the basis that the Tribunal allegedly failed to take into account the PAM3 Policy Document.
The ground is not made out and is, in essence, a veiled attempt at merits review reflected by the rhetorical question asked at [30] of the applicant’s written submissions:
as to how the AAT could be satisfied that “the presence of [the applicant] in Australia is or may be, or would or might be, a risk to: (i) the health, safety or good order of the Australian community or a segment of the Australian community; or (ii) the health or safety of an individual or individuals.
The Tribunal explained how it was so satisfied. The key to that satisfaction at [21] to [23] regarding the ultimate concealment charge (to which the applicant pleaded guilty). The applicant has now sought to somehow marginalise or diminish the concealment charge, including by submissions to the effect that the offence does not involve “moral wrongdoing”, although the concept of moral wrongdoing is not part of the requirements of s 116 of the Act. Further, references to PAM3 in relation to “property offences” seems inapposite. The concealment charge was not a property offence, nor was the matter the applicant was concealing a property offence.
When the original charges were extant, submissions were made for the applicant to the delegate acknowledging on his behalf of the seriousness of them: see CB 10 at [17] and CB 11 at [26] and [27]. The Tribunal decision records at [15] that the applied argued (emphasis added):
that since the serious charges against him would be withdrawn, the cancellation should be set aside. The applicant’s representative states that the cancellation of his visa constitutes a ‘denial of justice and human rights’ and is contrary to the principles of the presumption of innocence.
The latter sentence appears to contextualise this summary as being the written submission sent by the applicant’s representative to the Tribunal (CB 43 to 50) where it was said (CB 45) (emphasis added):
The Department has also stated, “While I acknowledge that the visa holder denies the charges he is facing, my role is not to determine guilt or innocence, my role is to consider whether the visa may pose a risk to the health of the Australian community. Given the visa holder has allegedly been involved in the cultivation and supply of a drug which is known to have potential adverse impacts on the health of those who use the drug, I am satisfied that risk exists”. Again, the client will no longer be charged with cultivation hence the risks stated by the Department no longer exists and cannot be attributable to him.
The suggestion that, because the applicant was not the person who was involved in the cultivation and supply of a drug, means there are no risks which can be attributed to him was met by the Tribunal’s finding that the concealment with which the applicant was charged and convicted required that he knew or believed that a serious offence had been committed, that he had information that may be of assistance to police and failed to bring that information to their attention. The offence the subject of the concealment charge requires that the crime in question be a “serious indictable offence”. In those circumstances it was open to the Tribunal to find, as it did, that the applicant had made a decision to not engage with the authorities and not report the serious crime, a crime which the applicant had himself acknowledged was serious (see [57] above).
The fact that the initial charges were withdrawn, and substituted, means only that. Efforts by the applicant to now suggest that the charge to which he pleaded guilty was “significantly downgraded”[1] from the initial charges, does not affect the Tribunal’s quite logical reasoning in reaching a state of satisfaction that the concealment charge also gave rise to grounds for cancellation. Even if, against some measure, the charge to which the applicant pleaded guilty can/should be considered as being lesser than the initial charges does not mean there was no longer a basis upon which the Tribunal could be satisfied that there were grounds for cancellation, noting and applying the many cautions and caveats which were correctly acknowledged by it at [4] to [11] of the decision.
[1] Applicant written submissions at [26], albeit being a description used in submission pertaining to ground 1
The submissions to the effect that the Tribunal failed to draw a logical connection between the concealment charge and potential risk to the safety and good order of the Australian community are rejected in light of the findings above. It was a matter of common sense, much like in Leota,[2] that a person who has knowledge of the commission of a crime (which they know to be serious), and knowledge that the information they possess may be of assistance to police, yet fails to bring that information to the attention of authorities, may undermine the safety and/or good order of the Australian community because each aspect of safety and security depend to a degree on law adherence, and enforcement. Rather than providing a basis to impugn the decision in the instant case, the reasoning in Leota as extracted at [48] above, is apposite and further reinforces the logicality of the Tribunal’s decision.
[2] See also Djokovic v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2022) 397 ALR 1 at [39] per Allsop CJ, Besanko and O’Callaghan JJ (citing Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane (2021) 395 ALR 403 at [17] to [21])
As the parties acknowledge, the Tribunal is not bound to apply the policy in PAM3, much less is it required to reference PAM3 throughout its decision as a checklist. I am not satisfied that the Tribunal’s reasoning reflects a failure on the part of the Tribunal to take the PAM3 Policy document into account (in the Peko-Wallsend sense, or any other). The matters which the Tribunal did consider in reaching the requisite state of satisfaction that grounds for cancellation existed were substantively in line with the PAM3 Policy.
Ground 2 is not made out.
Ground 1
The applicant says that the grounds for cancellation under s 116(1)(e) of the Act as particularised in the NOICC, detailed that the applicant had been allegedly involved with activities relating to cultivating cannabis and charged with an offence of cultivating cannabis. The applicant says this is because the charge was markedly different from the bases on which the Tribunal found (at [25]) that the ground for cancellation in s 116(1)(e) existed. The essence of this limb of the ground has already been addressed in relation to ground 2 above.
The true essence of this ground is its second limb by which, relying on the above-mentioned change in circumstances, the applicant says he was denied procedural fairness because the Tribunal did not apply government policy in PAM3. The applicant says that where there is an intention to depart from said policy, procedural fairness principles required that he be given an opportunity to comment on that step, citing BHP Billiton Direct Reduced Iron Pty Ltd v Duffus, Deputy Commissioner of Taxation (2007) 99 ALD 149 at [103] per French J where his Honour said:
Questions of procedural fairness may require the taxpayer to be heard against an unexpected departure from policy with consequences unfavourable to the taxpayer and against which there is no statutory protection.
In advancing this contention, the applicant acknowledged that the Tribunal is not bound to apply the policy in PAM3. However, by reference to the transcript Affidavit, jurisdictional error is said to arise from the fact that, at hearing, the Tribunal did not raise the matter of its departure from policy with the applicant and consequently did not give him the opportunity to comment upon it.
The first respondent, relying upon El Ess at [45] per Gray J, submitted that the guidelines contained in PAM3 “cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account” and that it remains for the Tribunal to assess for itself whether the test in s 116 is met.
Consideration
I accept the first respondent’s submission set out above in reliance on El-Ess. For the reasons already given in respect of ground 2, there does not appear to be any failure on the part of the Tribunal to consider PAM3.
It is somewhat difficult to discern the manner in which the Tribunal is said to have failed to apply the government policy contained in PAM3 by reason of the fact that there was a change in the charges which applied to the applicant at the time of the issuance of the NOICC in comparison to the time of the Tribunal’s decision. The applicant says the charges were “significantly downgraded”[3]. However, as already discussed, while accepting that the charges were for a different offence, the fact that there had been a change does not mean that the Tribunal could not subsequently and independently have been satisfied that the subject matter of the concealment charge, and the applicant’s acknowledge culpability, no longer gave rise to a basis to cancel his visa. To say otherwise, in the face of the Tribunal’s findings and reasons, is simply to cavil with the Tribunal’s decision.
[3] Applicant’s written submissions at [26]
The applicant was aware that the issue for the Tribunal, as it had been for the delegate, was whether there were grounds for cancellation of his visa pursuant to s 116 of the Act. That the factual matrix, including the change in charges since the time of the NOICC had altered, did not mean that the Tribunal’s state of satisfaction and conclusion was not open to it, nor does it evidence a failure to consider or apply PAM3. Having concluded that there was not a departure from government policy, I am therefore not satisfied that there was any error constituted by a failure to invite the applicant to comment on said departure which gave rise to a denial of procedural fairness to the applicant.
Ground 1 must fail.
Ground 3
By this ground the applicant says the Tribunal erred in the exercise of its discretion to cancel the applicant’s visa by improperly including, as part of that assessment, that the applicant may be able to apply for another visa in future and thereby return to Australia.
This was said to be:
(a)despite the fact that the possibility of the applicant obtaining another visa to return to Australia was speculative given that the Tribunal neither identified the classes of said visa/s, nor considered the likelihood or otherwise that the applicant might satisfy the criteria for the grant of them (CB 74 at [27], CB 75 at [32] and CB 77 at [47]). The applicant says that it is an error for the Tribunal to act on such speculation;
(b)in circumstances where the Tribunal said:
If the applicant’s relationship with his wife is genuine, the applicant may be eligible to obtain a Partner visa in the future and be reunited with his wife and child, albeit there will be a period of separation.[4]
(c)in circumstances where whether the applicant might be able to obtain a partner visa in the future is also speculative (including the public interest criteria for a partner visa).
[4] CB 77 at [45]
Crucially, the applicant says that the fact the Tribunal overlooked Public Interest Criterion (PIC) 4013, failed to expressly refer to it or its effect, and certain aspects within paragraphs [27], [32], [45] and [47] of the decision demonstrate the Tribunal’s unawareness of PIC 4013. The applicant submits it is unclear from the Tribunal’s reasoning at [42] whether the Tribunal was aware of PIC 4013. Accordingly, the Court is urged to infer from the lack of express reference to it, that the Tribunal overlooked PIC 4013, and thereafter to conclude that doing so constitutes jurisdictional error.
The Tribunal is also said to have failed to distinguish between temporary and permanent visas. The applicant says it was of little assistance to him and his family if he could only obtain a temporary visa to return to Australia for a short time. The Tribunal is said to have failed to take “this obvious and significant factor” into account.
The applicant describes the Tribunal’s reasoning process as “perverse” being a species of irrationality and illogicality.
The first respondent asserts that the allegation in respect of PIC 4013 is baseless and because the Tribunal’s decision at [32] and [42] captures the essence of PIC 4013, in the absence of an express reference which the first respondent says was not necessary. Further, the first respondent submitted that the applicant’s submissions ignore the potential for PIC 4013 in circumstances where the Minister is satisfied that there are “compassionate or compelling circumstances” that affect the interests of an Australian citizen: see PIC 4013(1)(b)).
As to the applicant’s complaint that the Tribunal’s referred to “some” visas, rather than “many” visas, the first respondent says this is mere semantics and an attempt to read the Tribunal’s reasons with an eye finely attuned to error.
The first respondent submitted that there was nothing to indicate that the Tribunal’s reasoning in respect of the possibility of the applicant applying for a visa offshore was “perverse” as alleged, and that the reasons were ones that a reasonable and rational Tribunal could have reached.
Consideration
The context in which the Tribunal made findings about the availability of visas for which the applicant may apply in future was in response to the issue of the applicant’s separation from Ms Q and their child, being part of the Tribunal’s consideration of Australia’s international obligations, particularly the best interests of the child. The applicant had told the Tribunal that if he was required to leave Australia, it was his preference that Ms Q and the child remain in order that the child might have the benefits of the lifestyle to which he was accustomed in Australia (CB 77 at [45]).
The reasoning of the Tribunal which this ground seeks to attack said no more than if it was the applicant’s preference that the child remain in Australia, any separation would not necessarily be permanent, having regard to the ability of Ms Q and the child to visit the applicant overseas, and the possibility that in future the applicant could also return to Australia, be that temporarily or permanently, depending on the type of any visa he might obtain.
It is tolerably clear that when, at [47], the Tribunal said the applicant “may be subject to an exclusion period in relation to some future visa application” sensibly read, that expression captures the broad effect of PIC 4013 which involves an “exclusion period”. Further, at [42] the Tribunal said that the applicant may be subject to an exclusion period in relation to some future visa application. The applicant has not pointed to any other possible interpretation of these statements by the Tribunal to plausibly exclude it being a reference to PIC 4013.
To the extent that it was said to be a matter of moment that the Tribunal referred to “some”, rather than “many”, visas being the subject of an exclusion period, I agree this is a pernickety approach to the Tribunal’s reasons. Read with a requisite beneficial construction[5] this does not support an interpretation of the Tribunal’s reasons as being ignorant of PIC 4013 or its effect.
[5] XFKR v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2020) 280 FCR 535 at [27] per Perry, Banks-Smith and Anderson JJ
To the extent that at [51] of its decision the Tribunal made reference to the separation between the applicant and his child as being temporary, I am equally unpersuaded that there is any significance to this which results in error. Having canvassed the possibilities not only that eventually the applicant might be able to return to Australia, but also that Ms Q and their child could go to visit him, the description of the separation as temporary was not inaccurate. The Tribunal can reasonably be taken as saying that to the extent it was possible for there to be visits between the family members (how and wheresoever that might occur), that periods of separation would be punctuated by times together. As such, those periods of separation could reasonably be described as temporary. In any event, the decision of [51] was summarising reasons which weighed against the cancellation of the visa, albeit the Tribunal ultimately considered them to be outweighed.
I am not satisfied that ground 3 is made out.
Ground 5
Ground 5 takes issue with the Tribunal’s finding at [47] of its reasons for decision (repeated at [51]). Namely, that (emphasis added):
The Tribunal is prepared to accept that the best interests of the child require the presence of both parents, but in the circumstances of this case, where any separation is likely to be temporary either because the applicant’s partner and child will accompany or visit the applicant in Vietnam or because the applicant may be eligible to return to Australia on another visa, the Tribunal does not consider that the best interests of the child would be adversely affected to any significant degree by the cancellation.
Having accepted that the “the best interests of the child require the presence of both parents”, and in light of PIC 4013, the applicant says that the only way for this to occur following cancellation was if Ms Q and the child relocated to Vietnam for a period of time.
By reason of the operation of PIC 4013, and any subsequent visa application process, the applicant says the length of that period could range between 3 to 6 years. As such, the applicant submitted that the Tribunal’s finding at [47] (extracted above at [85]), is affected by jurisdictional error, as it is internally contradictory, overlooks matters to which the Tribunal is required to have regard (namely, PIC 4013) and is ultimately “perverse”. The applicant says that this is because:
(a)the Tribunal’s finding at [46] stating that the child would receive continued support from Ms Q’s mother irrespective of the applicant’s visa status is “wrong”;
(b)the Tribunal had accepted the Australian standard of living as “better” than that of Vietnam ([36]);
(c)the Tribunal’s accepted at [44] and [45], that there would be a temporary period of separation between the applicant and his child; and
(d)having accepted that upon cancellation the applicant would likely return to Vietnam, the Tribunal failed to consider matters relevant to the “best interests of the child” such as the respective employment prospects of the applicant and Ms Q in Vietnam, as well as prospective childcare arrangements in circumstances where the applicant and Ms Q would both need to work.
The first respondent says that the applicant’s submissions do not disclose jurisdictional error, but rather “strongly disagree” with the Tribunal’s conclusion, citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [124] per Crennan and Bell JJ and Minister for Immigration and Border Protection v Sabhwarwal [2018] FCAFC 160 at [45] per Perram, Murphy and Lee JJ
The first respondent further submitted that:
(a)again there is no basis upon which to contend the Tribunal ignored PIC 4013, and noted that the applicant is not precluded from returning to Australia within the 3-year period referred to therein;
(b)reference to a 6-year time period was merely speculative and invites the Court to undertake impermissible merits review;
(c)the applicant has misunderstood the core of [46] of the Tribunal’s decision, namely that the child would receive the “necessary care and support” regardless of his location; and
(d)the applicant’s submissions ignore the Tribunal’s findings about the applicant and his family living in Vietnam, namely that they would not suffer significant hardship or adverse health effects and that the applicant would be able to re-establish himself there.
Consideration
There is some overlap between this ground and ground 3, to which extent I refer to the findings in respect of that ground above.
I again agree with the characterisation of this ground as another attempt at impermissible merits review. It is clear the applicant does not agree with the Tribunal’s findings, however that is insufficient to ground error. Further, the submissions of the applicant misconstrue the Tribunal’s findings. It is incorrect to say that, having accepted the best interests of the child would be served by the presence of both parents, the only way to achieve this was a for a relocation by Ms Q and the child to Vietnam for a period of time. By the “presence of both parents” it can be inferred, and I do, that the Tribunal was meaning the presence of both parents in the child’s life and not separated on a permanent basis. Given the findings which followed that any such separation was likely to be temporary because of an array of possibilities for reunion (CB 77 to 78 [47] and [51]), those findings are not inconsistent.
Further, while it is true that if the applicant applied for a visa to which PIC 4013 applied, this might result in the application of a relevant exclusion period, there was still the possibility that:
(a)the applicant might apply for a visa to which PIC 4013 does not apply; and/or
(b)that he could seek a waiver of the effect of PIC 4013 from the Minister on the basis of compassionate and compelling circumstances, should such circumstances present themselves.
There is also considerable force and significance to the Tribunal’s observation at [32] that even if the applicant’s visa was not cancelled, the applicant would have ultimately been granted a permanent visa in Australia.
I agree with the submission of the first respondent that the is nothing to reconcile between paragraphs [44], [45] and [47] of the Tribunal’s reasons for decision because it ultimately found that, despite a period of separation, the child’s best interests would not be adversely affected to any significant degree.
Ground 5 is not made out.
Ground 6
The final ground alleges that the Tribunal erred at [52] of its decision where, after weighing the reasons for not cancelling the applicant’s visa (at [51)], it was satisfied that the visa should be cancelled for the following reasons, each of which is said by the applicant to be “problematic” ([52]):
(a)by the concealment offence, the applicant had committed a serious offence;
(b)the Tribunal was not satisfied that the applicant has shown a genuine appreciation of his conduct or any remorse for the concealment; and
(c)the applicant had failed to take reasonable steps to disassociate himself from the situation which led to the charges and the conviction.
In respect of the finding referred to at [96(a)], the applicant submitted that the concealment offence was, objectively “not serious” and that the Tribunal’s finding to the contrary is indicative of jurisdictional error within the context of the Act and particularly Direction 65. Further, the applicant says that the relationship between the Tribunal’s findings at [96(b)] and [96(c)] above and the cancellation power is “unclear”, especially in circumstances where the reason (and its relevance) was unexplained, and did not form part of a broader finding, for example, that the applicant may commit a further offence in the future. The relevance or appropriateness of these reasons are said to be so unclear, that the Tribunal either took into account an irrelevant consideration (again said to be in the Peko-Wallsend sense), or that these particular aspects of [52] lacked an evident and intelligible justification, rendering them legally unreasonable.
Additionally, by his written submissions, the applicant contends that the Tribunal utilised the cancellation power to “punish” him for his lack of remorse. The first respondent says such a reading of the Tribunal’s reasons renders this allegation as entirely baseless.
In respect of the balance of the ground the first respondent submitted the applicant’s complaint about the reason identified at [96(a)] above, again merely disagrees with the Tribunal’s reasons and constitutes an invitation for impermissible merits review.
Insofar as the applicant relies on Direction 65 (which is applicable to a decision under s 501 of the Act), the Minister also notes its inapplicability where the present decision was made pursuant to s 116 of the Act. Additionally, the first respondent submitted the Tribunal’s finding that the applicant failed to show an appreciation for the nature of his conduct or any remorse for it, was relevant to the circumstances and legitimately considered in the exercise of discretion. The Tribunal’s reference to the applicant’s failure to disassociate himself from the situation as being unclear is rejected by the first respondent. The first respondent says the finding relates to the Tribunal’s concerns about the applicant’s version of events given that he said he found the situation (which he failed to report) to be “odd” and “suspicious”, yet he ultimately did nothing about it (CB 73 at [19] to [22] and CB 74 at [24]).
Consideration
Turning first to the suggestion that the Tribunal’s decision to cancel the visa was to punish the applicant for his lack of remorse, I agree with the submission of the first respondent that there is nothing upon which such an allegation can be sustained. Further, when one reflects on the nature of that allegation it is a serious one which could involve shades spanning from bias (whether actual or apprehended) or possibly even malfeasance. Absent proper particularisation, let alone evidence, such a serious suggestion cannot be borne out and I reject it.
For the reasons already outlined at [54] to [62] above in respect of ground 2, the applicant’s submission that the offence was “objectively not serious” cannot be accepted. In truth, that simply is the applicant’s own subjective view that the offence is not serious. The applicant’s view in that regard is precisely what which led the Tribunal to be concerned about his lack of remorse. Given that the offence in question goes to the failure of a person with knowledge of a “serious indictable offence” to fail to report it to authorities, it was open to the Tribunal to be perturbed by the applicant’s lack of remorse in the context of the matters of which it was required to be satisfied. It was not illogical nor, as the applicant now says “problematic”, for the Tribunal to be concerned that if the applicant did not report the serious crime on this occasion, that he might fail to do so on future occasions. The lack of remorse was relevant in that context, particularly given the applicant’s own acknowledgement to the delegate that the crimes which were the subject of his concealment, were in fact serious.
Further, the failure of the applicant to disassociate himself with the situation remained a relevant consideration given the applicant’s own acknowledgement that he had qualms about it, which later crystallised in his recognition of the seriousness of the drug-related crime (see [57] above), and yet he demonstrated (in the Tribunal’s view) a continued lack of remorse.
The Tribunal’s findings were open to it in the circumstances of this case, and on the material available to it, which was predominantly the applicant’s own evidence. Ground 6 does not give rise the error/s alleged.
CONCLUSION
The applicant has failed to establish jurisdictional error by any of the grounds pressed in the Amended Application. Absent a jurisdictional error the decision is a privative clause decision and the applicant, as amended, must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 29 January 2024
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