CGG15 v Minister for Immigration

[2016] FCCA 219

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGG15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 219

Catchwords:
MIGRATION – Subclass 050 bridging visa – cancellation of bridging visa – applicant charged with serious criminal offences – Ministerial Direction No.63 – whether the Tribunal failed to consider or comply with Direction – whether Tribunal’s decision was based on a finding of fact for which there was no evidence – Tribunal failed to consider all of the circumstances in which the ground for cancellation arose – jurisdictional error – writs issued.

Legislation:

Crimes Act 1900 (NSW), s.61(1)

Migration Act 1958 (Cth), ss.116(1)(g), 359AA, 499

Migration Regulations 1994 (Cth), reg.2.43(1)(p)

ACH15 v Minister for Immigration & Border Protection [2015] FCCA 1250; (2015) 259 FLR 384
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32, (2004) 207 ALR 12
Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363
SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 995
SZFWB v Minister for Immigration and Citizenship [2007] FCA 167
SZMWQ v Minister for Immigration & Citizenship [2010] FCAFC 97; (2010) 187 FCR 109
Uelese v Minister for Immigration & Border Protection [2015] HCA 15; (2015) 89 ALJR 498

Applicant: CGG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2943 of 2015

Judgment of: Judge Smith

Hearing date: 1 February 2016

Date of Last Submission: 1 February 2016

Delivered at: Sydney

Delivered on: 10 February 2016

REPRESENTATION

Counsel for the Applicant: Mr S. Tully

Solicitors for the Applicant: Baker & McKenzie

Counsel for the First Respondent: Mr B. O’Donnell

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. A writ of certiorari issue directed to the Administrative Appeals Tribunal (“Tribunal”) quashing the decision of the Tribunal dated 25 September 2015.

2. A writ of mandamus issue directed to the Tribunal requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 2 September 2015 according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2943 of 2015

CGG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant is a citizen of Iran who has applied for a protection visa in order to remain in Australia. On 16 July 2015 he was granted a Class WE subclass 050 bridging visa pending the determination of that application.

2. The Minister has the power to cancel a visa if he or she is satisfied that a prescribed ground for cancelling a visa applies to the holder of the visa: Migration Act1958 (Cth) sub-s.116(1)(g). Sub-regulation 2.43(1)(p) of the Migration Regulations 1994 (Cth) prescribed the following grounds for cancellation in respect of a subclass 050 bridging visa:

   … the Minister is satisfied that the holder:

   (i)     has been convicted of an offence against the law of the Commonwealth, a State, a Territory or another country (other than if the conviction resulted in the holders last substantive VISA being cancelled under subparagraph (oa)); or

   (ii)has been charged with an offence against the law of the Commonwealth, a State, a Territory or another country; or…

3. On 21 August 2015 the applicant was arrested and charged with two offences under the Crimes Act 1900 (NSW): sexual intercourse without consent, and attempted sexual intercourse without consent. At 11:45am on 2 September 2015, a delegate of the Minister gave the applicant a notice of intention to cancel his bridging visa on the basis that he had been charged with those offences. In an interview commencing 20 minutes later, the applicant stated that the incidents in respect of which he had been charged had not taken place and that he had previously been acquitted of a charge of assault which was based upon allegations made by the alleged victim in the sexual assault charges. He also said that he was due to attend court in respect of the current charges on 20 October 2015.

4. During the interview the applicant also said that he feared for his safety in Iran and that he had been assaulted by police there and sustained injuries. He also claimed that, as a deaf person, he was forced to take public transport and that he could not survive without help from his family and that he had previously attempted suicide. He said that if his visa was cancelled he would not have access to relevant community services for deaf people, that that had been his experience when he had previously been in detention in Australia, and that he feared that the isolation from the deaf community would make his mental health worse. Finally, he said that the one concern he had was with the victim of the allegation but that he no longer wished to be in contact with her.

5. At the conclusion of the interview the delegate decided to cancel the applicant’s visa. The applicant applied to the Administrative Appeals Tribunal for review of that decision.

6. In support of his application the applicant sent the Tribunal a statement which included the following:

   My first charges were dismissed by the court and my second is still pending. All AVO and charges against me have been made by the same person, [name omitted]. I maintain that I am innocent of the above allegations and have no desire to be associated with [name omitted] anymore. I would like to request that the fact that previous allegations were unproven be taken into account in assessing my appeal.

7. The applicant attended a hearing conducted by the Tribunal on 17 September 2015. He was supported by a representative of the Deaf Society and was assisted by Auslan interpreters. There was an issue at the hearing regarding the ability of those interpreters to interpret the applicant’s evidence in light of the applicant’s Iranian background; however, there was no issue taken about this in the proceedings before the Court.

8. The hearing was adjourned to a later date in order to allow the applicant to obtain legal advice. At the adjourned hearing on 23 September 2015 the applicant was assisted by a lawyer as well as by the representative from the Deaf Society.

9. The Tribunal gave its decision on 25 September 2015 affirming the decision of the delegate to cancel the applicant’s visa.

The Tribunal’s decision

1. The Tribunal first considered whether the ground for the power to cancel the applicant’s visa had arisen. In the course of considering that issue the Tribunal referred to the notice of intention to consider cancellation given to the applicant and the applicant’s responses to that notice given an interview with the delegate. It then referred to the material provided to it, including the statement referred to above at [6]. Having done so, it noted that a particular discussion had occurred during the hearing:

   [10]In the course of the hearings, the Tribunal explained to the applicant that the Tribunal was not determining the criminal charges and that it was considering the visa cancellation. The Tribunal emphasised that the applicant need not discuss the circumstances leading to the charges or the charges as the Tribunal is required to consider whether or not he has been charged not whether he is guilty or convicted of the charges. The Tribunal indicated to the applicant that there is a s.375A certificate relating to the disclosure of certain information and explained the significance of that certificate.

2. The Tribunal next noted that, pursuant to s.359AA of the Act, it had discussed with the applicant at the hearing information contained in the New South Wales police fact sheet outlining the circumstances of the charges. The Tribunal recorded that, amongst other things, the applicant had replied during the hearings that he had been acquitted of previous charges laid against him.

3. The Tribunal concluded after “consideration of the evidence as a whole” that it was satisfied that the applicant had been charged with two offences against the laws of New South Wales and therefore that the ground for cancellation set out in sub-s.116(1)(g) of the Act existed. It then turned to consider the exercise of its discretion to cancel.

4. In this respect, the Tribunal noted that it was required to have regard to Direction No.63, “Bridging E visas – Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q)”. It is not quite accurate to say that the Tribunal was only required to “have regard to” the Direction. As the Direction was made under s.499 of the Act, the Tribunal, as a decision-maker, was required to comply with it: ACH15 v Minister for Immigration & Border Protection [2015] FCCA 1250; (2015) 259 FLR 384 (“ACH15”) and Uelese v Minister for Immigration & Border Protection [2015] HCA 15; (2015) 89 ALJR 498. In any event, the Tribunal’s reasons disclose that it understood that it must comply with the Direction and no issue was taken in this respect by the applicant. The principal issue in the proceedings is whether the Tribunal did in fact comply with the Direction.

5. The Tribunal then set out its consideration by reference to the primary and secondary considerations contained in the Direction. That reasoning, it is fair to say, was sparse. For instance, cl.6.1 of the Direction provided that the following was a primary consideration:

   6.1The Government's view that the prescribed grounds for cancellation at regulation 2.43(1)(p) and (q) should be applied rigorously

   (1)In weighing the Government's view that the prescribed grounds for cancellation at regulation 2.43(1)(p) and (q) should be applied rigorously, decision-makers should have regard to the principle that the Australian Government has a low tolerance for criminal behaviour, of any nature, by non-citizens who are in the Australian community on a temporary basis, and who do not hold a substantive visa. This is particularly the case for non-citizens who, but for the Minister granting them a visa in the public interest, would be subject to mandatory detention while their immigration status is being resolved.

6. The Tribunal’s reasoning in respect of that consideration was as follows:

   [17]The applicant has accepted that he has been charged with two offences. In submissions, the representative argued that this consideration does not relate to discretion but rather to the grounds for cancellation. The representative submitted that the applicant disputes the facts leading to the charges.

   [18]As explained in the course of the hearing, the Tribunal is not determining whether the applicant is guilty. The Tribunal has however given regard to the submissions that the applicant is disputing the facts.

7. In considering the hardship that may be experienced by the applicant if his visa were cancelled, the Tribunal said that it had carefully considered the applicant’s personal circumstances, acknowledged that he was a vulnerable person by virtue of his hearing impairment and ill health, and that his vulnerabilities meant that he faced more difficulties in detention than a detainee without them. However, it said that it was not satisfied that those circumstances would cause a degree of hardship that outweighed other considerations in the matter. It did not specify at that point, or anywhere else in its reasons, what those other considerations were.

8. One of the secondary considerations referred to in the Direction was the circumstances in which the ground to cancellation arose: sub-cl.7(1)(c). In this respect the Tribunal said:

   [25]As set out above, the applicant’s visa was cancelled because he has been charged with offences under the New South Wales Crimes Act.

9. It will be necessary to return to this paragraph in due course.

10. Another secondary consideration in the Direction was the possible consequences of cancellation: sub-cl.7(1)(d). In this respect the Tribunal said:

    [26]Cancellation of the applicant’s bridging visa means that he could remain in indefinite detention and in his case and personal circumstances this may create difficulties such as isolation, communication, and other practical issues. However, with care and acknowledgement of the applicant’s vulnerabilities, those difficulties could be addressed by those with the responsibility in the detention centre.

11. This paragraph was the focus of one of the grounds review and is also considered further below.

12. Next, the Tribunal set out the heading “Any other matter considered relevant”, a matter referred to in the Direction at sub-cl.7(1)(e). Under this heading, however, the Tribunal did not refer to anything new but rather noted that the Direction required that primary considerations should generally be given greater weight than secondary considerations. It then set out its general reasoning in respect of the exercise of its discretion:

    [28]The Tribunal has carefully considered the applicant’s circumstances. However and on balance, the Tribunal is not satisfied that those circumstances outweigh other considerations, or that they mean that the visa should not be cancelled.

    [29]Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

13. For those reasons the Tribunal affirmed the decision of the delegate.

Consideration

Ground 1: Failure to comply with Direction No.63

1. The applicant argues that the Tribunal failed to comply with Direction No.63 in four respects. The first is that, contrary to sub-cl.7(1)(c) of the Direction, it failed to consider the circumstances in which the ground for cancellation arose. His argument was that the Tribunal’s consideration in this respect was set out in [25] of its statement of reasons (see [17] above) and that that paragraph showed that it simply considered the fact that the applicant had been charged with offences under the Crimes Act.

2. Counsel for the Minister accepted that, in the absence of the first four words of [25] of the Tribunal’s reasons (“As set out above”) it would be difficult to defend the legality of the Tribunal decision. However, he argued that it was clear from other passages in the Tribunal’s reasons that it was aware of the applicant’s submissions concerning the circumstances in which the ground for cancellation arose and that it had considered them. The first four words of [25], he argued, supported this contention.

3. In my view, the Tribunal did not comply with sub-cl.7(1)(c) of the Direction and that failure was material to its decision.

4. The opening words of [25] do not incorporate, on their most natural reading, any consideration of the relevant circumstances. It is accepted that the Tribunal does not have to set out its reasons in any particular order and that it might reveal consideration of a particular matter in a different section of its reasons to where it might be expected to be found (such as under the relevant heading). However, apart from one sentence, there is no suggestion anywhere in the reasons that the Tribunal applied any thought to the circumstances relied on by the applicant. Indeed, there are suggestions that it put them to one side.

5. As noted above, the Tribunal outlined the applicant’s response to the notice of intention to cancel including his claim that he was being victimised and treated unfairly by the person making the allegations ([8]a. of the Tribunal’s reasons) and that he had been acquitted of earlier charges laid in respect of the same person ([8]b.). It also referred to the applicant’s statement given to the Tribunal in respect of the same matters. However, having done so, it immediately noted, at [10], that, at the hearings, it had:

   … explained to the applicant that the Tribunal was not determining the criminal charges and that it was considering the visa cancellation. The Tribunal emphasised that the applicant need not discuss the circumstances leading to the charges or the charges as the Tribunal is required to consider whether or not he has been charged not whether he is guilty or convicted of the charges. …

6. The Minister argued that this was a reference to the Tribunal’s efforts to ensure that the applicant was aware that he need not give evidence that might incriminate him. That may be so, but the fact that the Tribunal referred to the matter in its reasons suggests that it was proceeding on the mistaken basis that the truth of the allegations made against the applicant was irrelevant to its decision. Contrary to that suggestion was the Tribunal’s statement, at [18], that, even though it was not determining the applicant’s guilt, it had “given regard to the submissions that the applicant is disputing the facts.” However, that statement is limited to the “submissions” and the Tribunal does not explain what “regard” it gave to the applicant’s evidence, for instance, that the previous charge against him had been dismissed. For that reason, this bare assertion is not one of the matters “set out above” referred to in [25] of the reasons. I am satisfied that what the Tribunal was referring to at [25] was simply its conclusion, at [14], that the applicant had been charged with two offences under s.61(1) of the Crimes Act.

7. On that understanding of the Tribunal’s reasons, it, in response to the requirement in sub-cl.7(1)(c) of the Direction, only considered the ground for cancellation and failed to consider all of the circumstances in which the ground for cancellation arose. That failure constituted jurisdictional error.

8. The applicant next argued that the Tribunal failed to comply with the cl.6.1 of the Direction (which is set out at [14] above). That clause is not easy to understand and was the subject of detailed consideration in ACH15.

9. The applicant argued that, apart from referring to the consideration in a sub-heading, the Tribunal did not consider the government’s view at all. The Minister’s response was that, even if that was so, it could not have denied the applicant the opportunity of a successful outcome. In other words, any error was not jurisdictional.

10. The entirety of the Tribunal’s consideration of the matters in cl.6.1(1) of the Direction are in [17] and [18] of its reasons which are set out at [15] above. Those paragraphs do not engage with the Government’s view about cancellation at all. It may be that the Tribunal thought that little had to be said about that particular matter; however, it said nothing to expose that view. It may also be that the Tribunal had this consideration in mind when it said, at [24], that the applicant’s circumstances did not outweigh “other circumstances in this matter.” However, given the sparseness of the reasons, it is difficult to be confident that that is the case.

11. In my view, it is insufficient for the Tribunal simply to set out a heading that refers to a mandatory consideration without any revelation of its reasoning process. I am left with the firm suspicion that the Tribunal gave very little, if any, thought to this matter at all. However, as I have found that the Tribunal has fallen into error in another, more direct way, I do not need to come to a concluded view on that matter. Similarly, I need not consider whether any failure to consider cl.6.1(1) constituted jurisdictional error.

12. The applicant’s third argument is that, contrary to the requirement of sub-cl.7(1)(e) of the Direction, the Tribunal failed to consider whether there was any other relevant matter to be considered. That subclause provides:

    (1)In deciding whether to cancel a non-citizen’s Bridging E visa, the following secondary considerations must be taken into account:

    …

    (e)delegates may also consider any other matter they consider relevant.

13. The applicant argued that, apart from the heading “Any other matter considered relevant”, there was nothing in the Tribunal’s reasons to show that it had turned its mind to this clause.

1. Although not raised by the Minister, there are a number of immediate difficulties with this argument. First, unlike the balance of the Direction, this clause refers only to delegates rather than to decision-makers. That could possibly be a drafting oversight and, for that reason, I would not rely on it alone to dismiss the applicant’s argument. Secondly, however, the clause is expressed in permissive (“may also”) terms. Although this jars with the terms of the chapeau (“must”), a harmonious reading of the clause is that cl.7(1) sets out a number of mandatory considerations and, in (e), indicates that a decision-maker is not confined to the matters expressly set out in the Direction. Read in that way, it simply reflects the remarks of Deane J in Sean Investments Pty Ltd v MacKellar [1981] FCA 191; (1981) 38 ALR 363 at 375:

   … where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. …

2. Thus, the failure by the Tribunal to refer to any other matters does not mean that it has failed to comply with the Direction. Further, in my view, the absence of a reference to other matters leads only to the conclusion that the Tribunal considered that there were no other relevant matters. For those reasons, this argument must fail.

3. The final argument concerning the Direction is that the Tribunal failed to weigh each of the primary and secondary considerations. The argument relied on the Tribunal’s statement, at [28], that “on balance” it was not satisfied that the applicant’s circumstances outweigh other considerations. The Minister argued that the applicant was elevating form over substance and that the Tribunal was not required to state, in so many words, that it had considered a certain matter and allocated a particular weight to it.

4. As I have said, the sparseness of the Tribunal’s reasons gives rise to a suspicion that it did not properly engage with the matter before it. Paragraph 28 of its reasons does not alleviate that suspicion. That said, although I am not confident about this, I am not satisfied that the Tribunal fell into the particular error asserted in this case, namely, a failure to weigh the various considerations. It may be noted, of course, that those considerations did not include the circumstances in which the ground for cancellation arose.

Ground 2: The decision was based on a finding of fact for which there was no evidence

1. This ground relies on [26] of the Tribunal’s reasons which is set out at [19] above. The applicant argues that there was no evidence before the Tribunal to support its finding that “with care and acknowledgement of the applicant’s vulnerabilities, those difficulties could be addressed by those with the responsibility in the detention centre.” The Minister accepted that this passage was a critical part of the Tribunal’s reasons; however, he argued that it was not a finding of fact, but rather an assessment of capacity and, in any event, there was evidence to support it. That evidence was that the applicant’s own statement that, while in detention, he had been provided with sign language interpreter assistance.

2. There was no dispute between the parties that the making of a finding of fact, which is a critical step in the ultimate conclusion reached, and for which there is no evidence may constitute jurisdictional error: see SZMWQ v Minister for Immigration & Citizenship [2010] FCAFC 97; (2010) 187 FCR 109 at 144 [125]. Stated at that level of generality, that proposition is not universally accepted: see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32, (2004) 207 ALR 12 at [39] per Gummow and Hayne JJ, Gleeson CJ agreeing; SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 995 at [47]. However, it is not necessary to engage in that controversy. In my view, there was no finding of fact.

3. It will be recalled that, once it was satisfied that there was a ground for cancellation, the Tribunal was engaged in a process which required the balancing of various considerations. That process did not necessarily require any particular finding of fact. It did require the Tribunal to assess the possible impact on the applicant of a decision to cancel and, in doing so, to consider the particular circumstances of the applicant. In undertaking that assessment, the Tribunal in my view, was not making any concluded finding of fact but, rather, expressing its views of the possibilities about the impact of detention on the applicant. The hypotheses at the heart of its reasoning at [26], is that there might be some “care and acknowledgement of the applicant’s vulnerabilities” by the authorities in detention. The Tribunal did not find that there would be such care and acknowledgement.

4. The applicant accepted in argument that it was open for the Tribunal to reason from that hypothesis that the applicant’s difficulties “could be addressed”. In other words, he did not argue that the Tribunal’s reasons were irrational.

5. I conclude that, at [26], the Tribunal was doing no more than expressing an opinion about the possible impact of detention on the applicant in light of his personal circumstances. As such, the “no evidence” ground does not apply: SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 at [37].

Conclusion

1. The Tribunal’s decision was affected by jurisdictional error. Its decision ought to be quashed and it must complete its statutory task of reviewing the delegate’s decision to cancel the applicant’s visa. Writs of certiorari and mandamus will issue.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 10 February 2016