BWI20 v Minister for Home Affairs
[2020] FCCA 2475
•4 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BWI20 v MINISTER FOR HOME AFFAIRS & ANOR | [2020] FCCA 2475 |
| Catchwords: MIGRATION – Application for judicial review – Bridging General (subclass 050) visa – Administrative Appeals Tribunal– no matters of principle – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.116(1)(g) Migration Regulations 1994 (Cth), reg.2.43(p)(i) |
| Cases cited: ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 |
| Applicant: | BWI20 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 942 of 2020 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 6 August 2020 |
| Date of Last Submission: | 6 August 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 4 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kenneally |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Barrington |
| Solicitors for the First Respondent: | Mills Oakley Lawyers Pty Ltd |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 942 of 2020
| BWI20 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 14 January 2020 which affirmed a decision of a delegate of the Minister to cancel the applicant’s Bridging General (subclass 050) visa (‘the bridging visa’). The applicant’s bridging visa was cancelled as a result of two criminal convictions in Melbourne, Australia; one for a sexual assault and one for an indecent act with a child under 16.
The applicant’s bridging visa had been granted pending the determination of proceedings seeking judicial review of a decision of the Immigration Assessment Authority which affirmed a delegate’s decision to refuse the applicant’s application for a Safe Haven Enterprise visa (‘protection visa’). The applicant’s judicial review proceedings challenging the Immigration Assessment Authority’s decision in relation to the protection visa are listed for hearing next month before another Judge of this court.
Background
The applicant is a Sri Lankan national who arrived as an unauthorised maritime arrival in Australia in November 2012. He applied for and was refused a protection visa. The applicant was granted the bridging visa on 11 July 2018 (while his protection visa application was under review).
On 10 September 2019, the applicant was given notice that there were grounds for cancellation of his bridging visa, and the bridging visa was subsequently cancelled on 30 September 2019 by a delegate of the Minister. On 1 October 2019, the applicant applied for review of the delegate’s decision. On 14 January 2020, the Tribunal affirmed the delegate’s decision to cancel the applicant’s bridging visa.
A summary of the applicant’s offences is set out in the Victoria Police Preliminary Brief (at CB p.136) as follows::
(a)on 20 November 2016, the applicant boarded a train and sat next to a 21 year old female. He began stroking her knee with his fingers. The victim quickly stood up and moved past the applicant, and he grabbed her on the buttocks with his right hand. This forms the basis of the charge of sexual assault; and
(b)on 16 February 2017, the applicant boarded a bus and sat next to a 14 year old school girl. About five minutes later, the applicant put his hand under the victim’s left leg and started rubbing her leg. The victim tried to move away, but the applicant put his hand under her leg again and rubbed her leg. He then got off the bus. This forms the basis of the charge of indecent act with a child under 16 years.
The applicant was sentenced to undertake 100 hours of community service with conditions including not using drugs and alcohol, completing offender specific programs and supervision.
The Tribunal’s decision
The Tribunal was satisfied that a ground for cancellation existed under s.116(1)(g) of the Migration Act 1958 (Cth) (‘the Act’) and reg.2.43(p)(i) of the Migration Regulations 1994 (Cth) (‘the Regulations’): see paragraph [21]. The Tribunal considered the evidence given by the applicant, saying (at paragraph [49]):
49. The applicant told the Tribunal that he was experiencing problems with alcohol at the time of the offences, which the Tribunal accepts. The applicant told the Tribunal that he does not have any memory of the offending, and as such, accepted the allegations against him.
The Tribunal considered each of the items listed in the mandatory considerations set out in Ministerial Direction No.63, finding that:
(a)the best interest of his grandchildren weighed in favour of the applicant: see CB p.161 at paragraph [35];
(b)the impact of a decision to cancel the visa on the family unit weighed against cancellation: see CB p.162 at paragraph [42];
(c)the degree of hardship weighed against cancellation: see CB p.162 at paragraph [46];
(d)the circumstances in which the ground for cancellation arose weighed strongly in favour of cancellation: see CB p.163 at paragraph [50];
(e)the possible consequences weighed against cancellation: see CB p.163 at paragraph [53]); and
(f)the benefit the applicant would obtain from completing his community corrections order weighed against cancellation: see (CB p.163 at paragraph [56]).
Ultimately, the Tribunal concluded that the circumstances of the offending outweighed the other factors, and affirmed the decision under review saying (at paragraph [57]-[59]):
57. Overall the Tribunal considers that the applicant’s visa should be cancelled. It has considered the government’s low tolerance of criminal behaviour and the best interests of all relevant children as set out in the primary considerations and the circumstances of the offending. The Tribunal considers that this is not a situation where the applicant has been convicted of a single offence on a single occasion which might, in different circumstances, warrant that his visa should not be cancelled. The circumstances of the offences could be said to constitute to a pattern of behaviour, which is of serious concern, particularly given that the most recent victim was a 14-year-old girl.
58. These factors outweigh the impact on his family unit, his inability to work whilst his visa is cancelled, his outstanding Community Corrections Order from which he may benefit, and the uncertain period of detention and its impact on him, which are the main factors which might otherwise indicate that his visa should not be cancelled.
59. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
Ground of Review
The applicant sets out one ground of review in the Amended Application filed on 21 July 2020, as follows:
1. The second respondent denied the applicant procedural fairness and/or failed to provide the applicant a real and meaningful hearing pursuant to s 360 of the Act and/or failed to complete its statutory task by failing to consider the applicant’s clearly articulated argument that he would not commit further offences.
Particulars
a. The applicant’s visa was cancelled due to criminal offences committed on 20 November2016 and 16 February 2017.
b. The applicant, when interviewed by a delegate of the Minister on 30 September 2019, said that the offending would not happen again (CB 14 – 15, 20).
c. The applicant’s promise was supported by the following integral facts:
i. the applicant was in the community from 16 February 2017 to 30 September2019;
ii. the applicant had complied with his Community Corrections Order imposed on2 July 2019;
iii. the applicant had sought treatment for alcohol addiction; and
iv. the applicant would be subject to the Community Corrections Order if the visa was reinstated.
d. The second respondent was satisfied that the discretion to cancel the visa should be exercised because the applicant’s offending was serious and could “constitute a pattern of behaviour” (CB 163, [57]).
e. The second respondent failed to consider the applicant’s submission that he would not re-offend, and/or the underlying facts in support of that submission.
The applicant argued that the Tribunal failed to consider the applicant’s submission made to the delegate where he said ‘I didn’t know the consequences. I promise it won’t happen again. I took alcohol and didn’t know what happened’: see CB p.20. It was argued that this was supported by four factors:
a)the applicant has not offended again;
b)the evidence in a report from the applicant’s General Practitioner that he had been treated for alcoholism and depression since 2017;
c)the applicant had complied with the Community Corrections Order until his Bridging Visa was cancelled; and
d)the applicant would continue to be subject to the Community Corrections Order if granted a bridging visa.
The argument was not expressly put in these terms in the written submissions to the Tribunal, and the applicant did not place into evidence the transcript of the hearing before the Tribunal. It was argued that the importance of the argument was highlighted as it stood against the finding of the Tribunal (at paragraph [57]) that the offences constituted a pattern of behaviour. All of these factors led to the argument that the Tribunal ought to have considered whether the applicant was at risk of re-offending.
That a Tribunal is required to deal with claims that clearly emerge from the materials is well settled principle: see ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; and AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89.
It is also well settled that a Tribunal must have regard to all of the significant evidence within the materials: see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 per Robertson J; Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (‘MZYTS’); Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174. Whilst a decision maker does not have to refer to every piece of evidence, and can prefer some evidence over other evidence, the Full Court in MZYTS pointed out (at [49]-[50]):
49. The court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69].
50. ... In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.
Whilst a decision maker referring to a lengthy document indicates consideration of its contents, this does not determine the issue, as some parts may be of such significance so as to require specific reference or discussion: see generally BUD17 v Minister for Home Affairs [2018] FCAFC 140 (‘BUD17’) at paragraph [62]. Similarly a statement in the reasons that the decision maker has considered ‘all relevant matters’ or ‘all other evidence’ will often fall short of an adequate reference to or engagement with important evidence: see Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149.
The legal consequences flowing from a finding that a Tribunal failed to consider a document, or a critical part of a document will, as the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at paragraph [77] ‘depend on the circumstances of the case and the nature of the document’, noting the statement of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40, that there is not error where the factor was so insignificant that failure to take it into account could not have materially affected the decision’. In order to carry out this task, it is necessary, as the Full Court set out in BUD17 at paragraph [65], to consider:
(1) the cogency of the evidentiary material; and
(2) the place of that material in the assessment of the review applicant’s claims.
The material relied upon by counsel for the applicant (being the ‘promise’ of the applicant not to re-offend) whilst relevant, was hardly cogent or compelling in light of his claim to have no memory of the offending (see paragraph [49] of the Tribunal’s decision, set out above) despite the offending being sexualised conduct directed toward a young woman and a girl unknown to him, and in public. When placed in context, it is unsurprising that the Tribunal focussed upon more objective facts and circumstances:
a)the Tribunal noted that the applicant had been complying with the Community Corrections Order: see paragraph [54]). Implicit in compliance with the Community Corrections Order is the proposition that the applicant had not offended again; and
b)that the Applicant would ‘benefit if he were able to complete the remainder of the Community Corrections Order’: see paragraph [54].
When taken as a whole it does not appear that the applicant’s statement that he would not reoffend was of such significance that the failure to specifically mention it is evidence of a failure to consider the evidence nor failure to consider some form of integer in the case.
The Tribunal noted that it had read and had regard to the report from the applicant’s doctor: see paragraph [18]. When considering the matter as a whole in the circumstances of this particular case, I am not persuaded that the doctor’s report required more specific discussion in the decision.
In the circumstances, I am not persuaded that the applicant has established this ground for review.
Conclusion
As the ground for judicial review has not been made out, I dismiss the application.
It was agreed costs should follow the event at the scale fee of $7,467.00. I make orders accordingly.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 4 September 2020
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