CBM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2019] FCA 1832
•28 October 2019
FEDERAL COURT OF AUSTRALIA
CBM19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1832
Review of: ZKYX and Minister for Home Affairs [2019] AATA 1414 File number: QUD 413 of 2019 Judge: LOGAN J Date of judgment: 28 October 2019 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision to refuse the applicant’s visa on character grounds – where the applicant applied for a Bridging visa while his Protection visa application was being considered – where the application for a Bridging visa was refused on character grounds – where the applicant had been sentenced to 12 months’ imprisonment wholly suspended – whether the applicant could have a substantial criminal record as defined in s 501(7)(c) of the Migration Act 1958 (Cth) when his prison sentence was wholly suspended – whether the Tribunal’s decision was unreasonable because it did not treat the applicant’s case like allegedly similar cases – whether the Tribunal erred in referring to the applicant’s unsuccessful Protection visa application – whether the Tribunal committed a jurisdictional error by not accepting allegedly similar AAT cases with which the applicant tried to provide it at the hearing – whether the Tribunal failed to make an obvious inquiry – whether the Tribunal erred in undertaking an assessment of the future risk the applicant presented Legislation: Migration Act 1958 (Cth) ss 500, 501 Cases cited: Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113
Cheung v Administrative Appeals Tribunal (2009) 176 FCR 20
DNCW and Minister for Immigration and Citizenship [2010] AATA 610
HBDV and Minister for Home Affairs [2018] AATA 4409
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Border Protection v SZIAI (2009) 83 ALJR 1123
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Pinder and Minister for Home Affairs [2019] AATA 1398
R (on the application of Gallaher Group Ltd and Ors) v Competition and Markets Authority [2019] AC 96
Singh (Migration) [2017] AATA 850
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
Date of hearing: 28 October 2019 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 33 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Counsel for the Respondents: Mr B McGlade Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
QUD 413 of 2019 BETWEEN: CBM19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
28 OCTOBER 2019
THE COURT ORDERS THAT:
1.The application for judicial review be dismissed.
2.The applicant pay the first respondent’s costs, of and incidental to the application, 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
(REVISED FROM TRANSCRIPT)LOGAN J:
The applicant is a citizen of India. He came to Australia lawfully on 21 December 2016 on the basis of a Student visa. Initially, he studied a course in business but transferred later to study mechanical engineering. In the course of his studies, he was taken into custody as a result of the alleged commission by him of particular criminal offences.
On 30 November 2018, the applicant was sentenced in the District Court of Queensland (District Court) upon pleas of guilty by him as follows: two charges of sexual assault – imprisonment for 12 months on each charge, to be served concurrently; charges of possessing child exploitation material and doing an indecent act – imprisonment for three months on each charge, to be served concurrently with each other, and also concurrently with the sentence in respect of the two counts of sexual assault. These sentences were wholly suspended by the District Court judge. It will be necessary later in these reasons for judgment in the course of dealing with a submission made by the applicant to refer to the consequence, if any, of the order suspending the applicant’s sentences.
On 4 January 2019, the applicant made an application under the Migration Act 1958 (Cth) (the Act) for the class of visa known as a Protection (Class XA) visa. In connection with that application he made a further application for a Bridging (Class WE) visa on 7 January 2019. On 25 March 2019, the applicant’s Bridging visa application was refused by a delegate of the Minister. On 28 March 2019, the applicant applied for a review by the Administrative Appeals Tribunal (Tribunal) of the Minister’s delegate’s refusal of his Bridging visa application. In the meantime, on 6 March 2019, a delegate of the Minister had decided to refuse the applicant’s application for the grant of a Protection visa. That decision was also the subject of an application for review by the Tribunal.
On 23 April 2019, the Tribunal, separately constituted, affirmed the Minister’s delegate’s decision not to grant the applicant a Protection visa. That Tribunal decision has become the subject of a judicial review application filed in the Federal Circuit Court by the applicant. On 5 June 2019, the Tribunal (Senior Member BJ Illingworth) decided to affirm the Minister’s delegate’s decision to refuse the applicant a Bridging Visa for reasons delivered on 26 June 2019. It is that Tribunal decision which is the subject of the present judicial review application by the applicant.
The following are the grounds of review:
1. The respondent’s decision on 5th JUNE 2019 be quashed.
2. The respondent decision was unreasonable.
3. The respondent took into account irrelevant considerations.
4. The respondent’s decision involved an error of law.
5.The respondent in making the decision did not comply with rules of natural justice and I the applicant was denied procedural fairness.
6. The respondent failed to take into account relevant considerations.
7.The Section 501(6), 501(6)a and section 501(7) was misinterpreted and misapplied and was not considered properly which states:
The character test is defined in s 501(6)(a) of the Act. A person does not pass the character test if he or she has a ‘substantial criminal record’ as defined in s 501(7) of the Act which provides that, for the purposes of the character test, a person has a substantial criminal record if:
(a) The person has been sentenced to death; or
(b) The person has been sentenced to imprisonment for life; or
(c)The person has been sentenced to a term of imprisonment of 12 months or more;
8. Primary considerations were given no or lesser weight.
9. Paragraph 6.3(4) of the ministerial direction 79 was given no weight.
10.The Decision was in breach of the ministerial direction no 79 as Australia’s Non Refoulement International Obligations.
11.The Decision was in breach of the ministerial direction no 79 breach of paragraph 12..1 (Extent of Impediments if removed) was overlooked.
12. My Risk to the Australian community was projection not fact.
“Based on the fact and the report stating me as an “low risk” and changes of me reoffending were next to none” still I was looked a risk and threat to the community.
13.By taking in consideration all the above grounds stated above and using the sole applicant self represented. I highly believe that these grounds are reasonable to believe that this migration litigation has reasonable prospect for success.
[emphasis in original, sic]
It will be readily apparent that many of the grounds of review as pleaded are wanting in particularity. The Minister was undoubtedly correct, in earlier written submissions filed on the proceedings, to highlight this deficiency. Nonetheless, the particular bases of the applicant’s grievances became apparent in the course of his oral submissions. It is in the interests of justice that his application be determined on the basis of his particularising in his oral submissions those particular grievances in respect of otherwise generally stated grounds of review. As it transpired a number of grounds, as pleaded, once developed in oral submissions and understood, were different ways of making like points.
The Tribunal identified, at [17], that the issues for it were:
(a)Whether the applicant passes the character test as defined in section 501(6) of the Act; and
(b)If he does not pass the character test whether the discretion in section 501(1) of the Act should be exercised to refuse to grant the applicant the visa.
It is convenient first to consider ground 7 of the applicant’s grounds of review, because it is that ground which takes issue with the construction of s 501 of the Act, which led to the Tribunal’s satisfaction that the applicant did not pass the character test. Sections 501(6), (7) and (7A) provide:
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention; or
(ii)during an escape by the person from immigration detention; or
(iii)after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(ab) the person has been convicted of an offence against section 197A; or
(b) the Minister reasonably suspects:
(i)that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
(ii)that the group, organisation or person has been or is involved in criminal conduct; or
(ba)the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:
(i)an offence under one or more of sections 233A to 234A (people smuggling);
(ii) an offence of trafficking in persons;
(iii)the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;
whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii)harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or
(e) a court in Australia or a foreign country has:
(i)convicted the person of one or more sexually based offences involving a child; or
(ii)found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or
(f)the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:
(i) the crime of genocide;
(ii) a crime against humanity;
(iii) a war crime;
(iv) a crime involving torture or slavery;
(v) a crime that is otherwise of serious international concern; or
(g)the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or
(h)an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.
Otherwise, the person passes the character test.
Substantial criminal record
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f) the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
Concurrent sentences
(7A)For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example:A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.
[emphasis in original]
The applicant’s submission was that the effect of the District Court’s order suspending the sentences imposed was that he had not, in terms of s 501(7)(c), been sentenced to a term of imprisonment for 12 months or more. This, he submitted, required that he actually have served a term in jail of that length. Uninformed by authority, the applicant’s submission is hardly an unreasonable one in relation to how one might construe s 501(7)(c). Indeed, it illustrates a particular thoughtfulness which permeated each of the submissions that the applicant made.
The difficulty for the applicant in relation to the construction of s 501(7)(c) for which he contended is, as the Minister highlighted in his submissions, that the point is resolved against him by a judgment of a Full Court of this Court, Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 (Brown’s case). The long and the short of it is, having regard to Brown’s case, that a suspended sentence is, if a sentence to a term of 12 months or more, nonetheless a sentence for the purposes of s 501(7)(c): see in particular Rares J, at [11], and Nicholas J, at [114], with each of whom Moore J agreed. I am bound by Brown’s case to hold that the Tribunal made no error, having regard to the sentences imposed on the applicant, even though they were suspended wholly, in concluding that he had a substantial criminal record. I turn now to ground 2, the allegation of unreasonableness.
In part, this ground was constituted by an emphatic disagreement by the applicant with the conclusions reached by the Tribunal. In itself, though, such emphatic disagreement, though it can be a legitimate description used particularly by a person without legal training, does not amount to a jurisdictional error of unreasonableness.
The other basis, though, upon which the applicant alleged that the Tribunal’s decision was unreasonable was that there were other cases – similar cases, he submitted – where people with particular backgrounds in what one might term “sex offending” had nonetheless either received visas or had visa cancellation decisions revoked. He particularly referred in this regard to DNCW and Minister for Immigration and Citizenship [2010] AATA 610 (DNCW), HBDV and Minister for Home Affairs [2018] AATA 4409 (HBDV) and Pinder and Minister for Home Affairs [2019] AATA 1398.
It may be that a failure on the part of an administrator to treat like cases in a like way if unexplained could constitute arbitrariness, perhaps irrationality, and perhaps unreasonableness. This possibility was discussed in a recent judgment of the United Kingdom’s Supreme Court, R (on the application of Gallaher Group Ltd and Ors) v Competition and Markets Authority [2019] AC 96. It is though, unnecessary to reach any conclusion on that subject, but rather to assume in the applicant’s favour that such conduct could amount to unreasonableness. The difficulty for the applicant in relation to the unreasonableness ground as developed in this way is that none of the cases to which he referred was, except at the most general level of abstraction, identical to his, or even similar.
It is true that the offending conduct in each of them included offences of a sexual nature, but the particular background to the offences concerned, as well as the personal circumstances of each of the applicants, in those cases was different. Each of them, as for that matter the present case did, turned on its own particular facts. So, whilst I can understand how the applicant feels, genuinely, a sense of grievance, because there are examples of persons with particular sex offending backgrounds either being granted visas or having visa cancellation decisions revoked, the case is not one, if there is a principle of consistency leading to unreasonableness or irrationality, where like earlier cases meant that his particular case was decided either irrationally or unreasonably.
Indeed, it is possible, to my direct recollection and involvement, to find another example of a case of a person with a particular sex offending background who was, as a result of a Tribunal decision, granted a bridging visa: see Singh (Migration) [2017] AATA 850 (Singh). Once again though, Singh also turned on very particular facts as to not just the applicant’s background but also the very short-term nature of the likely length of the bridging visa, given his settled disposition to return to country of nationality, and also very particular evidence which impacted on a risk assessment.
Ground 3 as developed took issue with the Tribunal’s adverting to the existence of the applicant’s Protection visa application, the fate of that separate visa application and the subject of refoulement, in other words return to country of nationality. The applicant’s point was that the Tribunal should have focused upon character and risk and that it was just not relevant to refer to anything relating to his separate visa application. The difficulty about that submission is that the relevant ministerial direction, Direction 79, which was binding on the Tribunal, obliged the Tribunal to advert to the existence or otherwise of a protection obligation. So the subject was hardly an irrelevant consideration in the sense described by Sir Anthony Mason in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
The Tribunal adopted the course of noting the existence of the requirement in the Ministerial Direction, at [12.1], and noting further that the applicant had not presented any fresh evidence to the Tribunal in relation to this particular consideration. The Tribunal therefore concluded, at [71], that there was nothing before it which enlivened any basis upon which it may be appropriate to reassess non-refoulement obligations. Having done that, Tribunal noted that the Tribunal as differently constituted had dealt with the question and found there were no such obligations.
The Tribunal was, in my view, entitled to adopt this course, once it had concluded that there was no further evidence adduced on the subject. As Bennett J observed in Cheung v Administrative Appeals Tribunal (2009) 176 FCR 20, at [49], generally speaking there should not be re-litigation without reason of the same issues before the Tribunal where the re-litigation is of the same facts and issues already decided.
Ground 4 alleged an error of law but, as the applicant came to acknowledge in his oral submissions, this was merely a way of describing other grounds of review.
Ground 5 alleged a denial of natural justice or procedural fairness. As developed in oral submissions, and based not on affidavit evidence as to what happened in the Tribunal or a transcript, the applicant alleged that the Tribunal member had declined to receive from him copies of earlier Tribunal cases. Those earlier Tribunal cases were apparently DNCW and HBDV, which I referred to earlier.
It was put, somewhat faintly, with respect, on behalf of the Minister that the effect of s 500(6H) and s 500(6J) of the Act was that a Tribunal was obliged not to have regard to such cases as tendered, or sought to be tendered, at the hearing because they were “information”. In Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 (Uelese) the High Court emphasised the importance of context in construing what constitutes “information”, the reception of which is prohibited by s 500(6H) of the Act or analogously s 500(6J). That case concerned answers which an applicant’s partner came to give in the course of cross-examination by the Minister before the Tribunal. Those answers were held, on the true construction in context of s 500(6H), to stand outside the prohibition.
This case is even further removed from Uelese, in that what was sought to be tendered entailed no factual content in support of the visa claim, only content in terms of an argument as to consistency in decision-making. Assuming in the applicant’s favour that he did indeed seek to tender these decisions in the course of submissions, the Senior Member concerned was in error in not receiving them.
It does not follow from this that the error was material in the sense described by the High Court in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123. The applicant also submitted, in response to a question from me, that he had nonetheless made the point to the Tribunal at the hearing that there were earlier cases where persons with particular sex offending backgrounds had received visas or had visa cancellation decisions revoked. So the point itself was one which he was able to, and did, make to the Tribunal. Further, as I have already indicated, the cases upon which he sought to rely and hand up to the Tribunal did not, do not and could not, on analysis, lead to a conclusion that earlier like cases to his own had been decided favourably. So, even if the applicant had evidenced this alleged denial of procedural fairness, the error concerned would not be a material one.
Ground 6 is also difficult to understand on its face. As developed in oral submissions, at one stage it appeared as if the applicant was contending that the Tribunal should have made its own inquiries as to his character, although he did seem later in oral submissions to resile from this and instead to contend that the Tribunal had not made it plain what it was going to do.
In the ordinary course, the core function of the Tribunal is that of review, in other words, sitting in place of the primary decision-maker, here the Minister’s delegate, and approaching the matter afresh on the material before it to reach its own conclusion: see Minister for Immigration and Border Protection v SZIAI (2009) 83 ALJR 1123. There can be singular circumstances, and the present case was not one, where a failure on the part of the Tribunal to make an obvious inquiry easily answered can amount to a failure to discharge its statutory review function. In the ordinary course, though, it is up to an applicant to place before the Tribunal such material as he or she can to support the outcome for which he or she contends, albeit that there is no formal onus of proof in a review proceeding.
Ground 7 I have already dealt with.
Ground 8 is a variant, as it transpired in oral submissions, of the applicant’s argument that the Tribunal should have focused on character and not had regard to the existence of his Protection visa application and its fate. For reasons I have already given, ground 8, as developed in that way, has no merit.
Ground 9, as it became apparent in oral submissions, was a variant on the applicant’s consistency argument in terms of like earlier cases where visas were granted, notwithstanding sex offending backgrounds dictating that he should have received a bridging visa. For reasons which I have already given, there is no merit in this ground. The same may be said of ground 11, having regard to the way in which it was developed in oral submissions.
Ground 10, as developed in oral submissions, was a variant of the applicant’s contention that the Tribunal should not have referred to his Protection visa application and the subject of refoulement. For reasons which I have already given, ground 11 has no merit.
Ground 12, as developed in oral submissions, entailed a submission on the part of the applicant that the Tribunal should have been certain or definite in deciding he was a risk. That is what the applicant explained he meant by “projection not fact”. The error which he alleged was that the Tribunal engaged in a process of projection rather than certainty. But there was no error on the part of the Tribunal in engaging in a process of risk assessment. Necessarily that entailed some conjecture or projection as to the nature and extent of the risk which the applicant presented in terms of reoffending or similar conduct over the period to which the visa would relate. Of course if the Tribunal had approached its task on the basis that, given the applicant’s past commission of offences, that meant, automatically, that he should not be granted a visa, then it would have fettered its discretion unreasonably. This is not what the Tribunal did. The Tribunal’s reasons reveal a very close consideration, not just of the applicant’s past, acknowledged by his plea of guilty to the offending conduct, but of his oral evidence before the Tribunal in which he sought to explain away both the plea of guilty and the offending conduct itself.
It was not at all unreasonable against the background described by the Tribunal in its reasons for the Tribunal to conclude that the applicant’s lack of acknowledgment of his past offending conduct grounded an unacceptable risk.
If there is a criticism to be made of the Senior Member’s reasons it is that there is no overt acknowledgment of the timeframe against which the risk assessment fell to be measured. What I mean by that is that this was a Bridging visa application which necessarily would have seen the termination of the visa upon the hearing and determination of the Federal Circuit Court judicial review application. When that would have occurred was not certain and the absence of such certainty is not apparent from the Tribunal’s reasons. But one must be careful not narrowly to scrutinise the reasons of a Tribunal narrowly and with an eye for error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Especially one must be careful not to do this when it is not informed by any particular ground of review. And I remind myself that the Tribunal’s reasons disclose on their face that the Senior Member was well aware that he was dealing with a Bridging visa application and that there was an existing Federal Circuit Court judicial review application.
It only comes to this: however one approaches each of the grounds of review, as developed in oral submissions, they have no merit. It necessarily follows that the application must be dismissed.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate:
Dated: 7 November 2019
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