Chen v Minister for Immigration and Border Protection

Case [2017] FCA 46

FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration and Border Protection [2017] FCA 46

File number: NSD 1473 of 2016
Judge: BURLEY J
Date of judgment: 3 February 2017
Catchwords: MIGRATION – cancellation of visa on character grounds where substantial criminal record – affirmation by Administrative Appeals Tribunal of decision not to revoke cancellation decision under s 501CA of the Migration Act 1958 (Cth) – whether Tribunal misconstrued the basis of its discretion – whether Tribunal took into account relevant considerations under Ministerial Direction 65 – whether Tribunal breached requirements of natural justice and procedural fairness
Legislation: Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
Cases cited:

Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513

Baker v Minister for Immigration and Citizenship [2012] FCAFC 145

Berney v Minister for Immigration and Border Protection [2016] FCA 1544

Brown v Minister for Immigration and Border Protection [2015] FCAFC 141; (2015) 235 FCR 88

BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Moana v Minister for Immigration and Border Protection [2015] FCAFC 54; (2015) 230 FCR 367

Picard v Minister for Immigration and Border Protection [2015] FCA 1430

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63

Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424

Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112

Date of hearing: 12 December 2016
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 81
Counsel for the Applicant: Mr L J Karp
Solicitor for the Applicant: Australian United Lawyers
Solicitor for the First Respondent: Mr K Eskerie of Sparke Helmore Lawyers
Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs

ORDERS

NSD 1473 of 2016
BETWEEN:

KE YANG CHEN

Applicant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

BURLEY J

DATE OF ORDER:

3 FEBRUARY 2017

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

1         INTRODUCTION

[1]

2         THE TRIBUNAL’S DECISION

[7]

3         THE APPLICATION FOR REVIEW

[21]

4         THE LEGISLATIVE SCHEME

[23]

4.1      The Act

[23]

4.2      The Direction

[30]

4.3      The Legal Basis for review

[38]

5         THE GROUNDS OF REVIEW

[39]

5.1 Tribunal misconstrued basis of discretion pursuant to s 501CA(4) of the Act(ground 1)

[39]

5.1.1    Consideration

[42]

5.2      Failure to take into account relevant considerations (ground 3)

[50]

5.3      Failure to assess the likelihood of engaging in further criminal or other serious conduct (ground 4)

[56]

5.3.1    Consideration

[58]

5.4      Denial of natural justice or procedural fairness (ground 5)

[70]

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Details
AGLC
Chen v Minister for Immigration and Border Protection [2017] FCA 46
Case
[2017] FCA 46
Decision Date

CaseChat Overview and Summary

In Chen v Minister for Immigration and Border Protection, the applicant sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) affirming the Minister's decision not to revoke a visa cancellation under section 501CA of the Migration Act 1958 (Cth). The applicant, who had been convicted of multiple offences including dealing with identity information to commit indictable offences, making equipment to make false documents, possessing false documents to obtain financial advantage, and possessing prohibited drugs, argued that the AAT misconstrued the basis of its discretion and failed to consider relevant factors under Ministerial Direction 65 (Direction). The applicant also contended that the AAT breached natural justice and procedural fairness by not considering certain mitigating circumstances.

The court examined whether the AAT misconstrued the basis of its discretion and failed to consider relevant factors under the Direction. The Direction outlines the primary considerations for revoking the mandatory cancellation of a non-citizen's visa, including the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and expectations of the Australian community. The AAT had noted that the primary considerations for revocation were relevant and considered the evidence before it, concluding that the applicant's criminal conduct and the risk he posed to the Australian community outweighed any mitigating factors.

The court found that the AAT properly exercised its discretion under the Direction and did not misconstrue the basis of its discretion. The AAT considered the relevant factors, including the nature and seriousness of the applicant's criminal conduct and the risk he posed to the Australian community. The AAT also noted that certain factors, such as the best interests of minor children and international non-refoulement obligations, were not relevant in this case. The court concluded that the AAT had appropriately balanced the relevant considerations and did not breach natural justice or procedural fairness.

The Federal Court dismissed the application and ordered the applicant to pay the Minister's costs. The court found that the AAT's decision was lawful and that the applicant's arguments did not establish a sufficient ground for judicial review. The applicant's visa cancellation remained in effect, and the Minister's decision not to revoke the cancellation was affirmed.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the first respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The present proceeding arises from an application for review of the decision of the Tribunal brought by the applicant pursuant to s 476A of the Act. That section relevantly confers original jurisdiction upon this Court where a privative clause decision has been made by the Tribunal on review under s 500 of the Act.2. THE TRIBUNAL’S DECISION The Tribunal noted that the statutory context for the decision of the Delegate arose from failure on the part of the applicant to pass the character test. This gave rise to the question as to whether there was “another reason” why the decision to cancel the applicant’s visa should be revoked (s 501CA(4)(b)(ii) of the Act). The Tribunal recorded that the reason why the applicant had failed the character test was because he was convicted in the NSW District Court of the following offences and was sentenced to an aggregate 3 year term of imprisonment with a non-parole period of 18 months:·deal with identity information to commit etc indictable offence (4 counts);·make, possess etc, equipment etc to make false documents (2 counts);·possess false document to obtain financial advantage (2 counts);·possess prohibited drugs (1 count);·deal with identity information to commit indicatable offences. The Tribunal noted that the power to revoke the decision is discretionary and must be carried out in accordance with Direction no. 65 (Direction) which was made by the Minister on 22 December 2014 pursuant to s 499 of the Act. It then proceeded to summarise the relevant considerations applicable under the Direction. In this regard, the Tribunal referred to Part C of the Direction, which identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. The Tribunal referred to the three “primary considerations” listed in cl 13(2) of the Directive being:(a)protection of the Australian community from criminal or other serious conduct;(b)the best interests of minor children in Australia;(c)expectations of the Australian community. The Tribunal also referred to the other considerations that must be taken into account, where relevant, which are listed in cl 14, being:(a)international non-refoulement obligations;(b)strength, nature and duration of ties;(c)impact on Australian business interests;(d)impact on victims;(e)extent of impediments if removed. The Tribunal noted that the considerations listed above which are not relevant in the current case were; the best interests of minor children, international non-refoulement obligations and impact on Australian business interests. It then proceeded to consider the balance of these considerations in the context of the evidence before it. In relation to the “protection of the Australian community”, the Tribunal noted the applicant’s claim that he had been drawn into the criminal activity for which he was imprisoned, six or nine months after meeting a forger, Mr Stephen Zhong, because the applicant was poor and depressed because of his failed second marriage. People who had copied details of other people’s credit and Medicare cards and driver licenses would meet the applicant, give him money and the information, often including photocopies of cards, which he in turn would give to Mr Zhong. Later, he would give the cards produced by Mr Zhong back to the customer. The applicant received $50 or $100 a time. He was one of many people doing this work for Mr Zhong.

Ratio Decidendi

Legal Principle Established

Part C of the Direction is most directly relevant to the present case, and relevantly provides as follows:Primary considerations – revocation requests(1)Under subsection 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c)) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.(2)In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:a)Protection of the Australian community from criminal or other serious conduct;b) The best interests of minor children in Australia;c) Expectations of the Australian community.13.1 Protection of the Australian community(1)When considering protection of the Australian community, decision­ makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non­citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.(2)Decision-makers should also give consideration to:a)The nature and seriousness of the non-citizen's conduct to date; andb)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.13.1.1 The nature and seriousness of the conduct(1)In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;c)The sentence imposed by the courts for a crime or crimes;d)The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;e)The cumulative effect of repeated offending;f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);h)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;13.1.2The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; andb)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).