CJD23 v Minister for Immigration, Citizenship and Multicultural Affairs

Case •

[2023] FCA 1218

•

12 October 2023

FEDERAL COURT OF AUSTRALIA

CJD23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1218  

Appeal from: Decision of the Administrative Appeals Tribunal dated 21 November 2022
File number(s): NSD 665 of 2023
Judgment of: JACKMAN J
Date of judgment: 12 October 2023
Catchwords: MIGRATION – application for extension of time to seek review of a decision of the Administrative Appeals Tribunal (Tribunal) refusing to revoke the cancellation of the applicant’s visa – where there is sufficient explanation for the operative delay – merits of the applicant’s case for judicial review – whether the Tribunal made a finding of fact for which there was no evidence in incorrectly stating that the New South Wales Court of Criminal Appeal had increased the applicant’s sentence on appeal – that finding was not a critical step in the Tribunal’s reasoning – whether the Tribunal failed to consider persecutory harm in circumstances where there will likely be a separate application for a protection visa – whether there was a failure to consider the likelihood of the applicant engaging in further criminal conduct – application dismissed
Legislation: Migration Act 1958 (Cth) ss 197C, 476A, 477A, 499, 501, 501CA
Cases cited:

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497

Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162

SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 35
Date of hearing: 4 October 2023
Counsel for the Applicant: Ms K Hooper
Solicitor for the Applicant: Kinslor Prince Lawyers
Counsel for the First Respondent: Ms R Francois
Solicitor for the First Respondent: Sparke Helmore Lawyers
Counsel for the Second Respondent: The Second Respondent entered a submitting appearance

ORDERS

NSD 665 of 2023
BETWEEN:

CJD23

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JACKMAN J

DATE OF ORDER:

12 OCTOBER 2023

THE COURT ORDERS THAT:

1.The amended application dated 17 August 2023 be dismissed.

2.The applicant pay the respondents’ costs.

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


REASONS FOR JUDGMENT

JACKMAN J:

  1. By application filed on 4 July 2023 and amended on 17 August 2023, the applicant seeks an extension of time pursuant to s 477A(2) of the Migration Act 1958 (Cth) (the Act) to apply for review pursuant to s 476A of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 21 November 2022. The Tribunal affirmed a decision of a delegate of the first respondent (the Minister) not to revoke the cancellation of the applicant’s Global Special Humanitarian (Class XB) (Subclass 202) visa (the Visa) pursuant to s 501CA(4) of the Act.

  2. The hearing before the Tribunal commenced on 2 November 2022, and closing addresses were made on 4 November 2022. The Tribunal published a short-form decision on 21 November 2022. Reasons for the Tribunal’s decision were provided on 14 March 2023. The applicant accepts that the time within which to seek review of the Tribunal’s decision expired 35 days after the date of the Tribunal’s orders, namely on 26 December 2022. However, the applicant submits, and I accept, that it would not have been possible to formulate grounds of jurisdictional error and certify that those grounds had reasonable prospects of success, or indeed to obtain legal advice on any proposed grounds, without the reasons for decision. Accordingly, the applicants submits, and I accept, that the relevant period of delay as a matter of substance is the delay commencing 35 days from 14 March 2023, being the delay from 19 April 2023 until the present application was filed on 4 July 2023, a period of two and a half months.

  3. The applicant submits that the prejudice to the applicant if time is not extended is substantial, whereas there is no prejudice to the Minister occasioned by the delay. The delay is explained in affidavits made by the applicant and his brother, by reference to the facts that the applicant had engaged an immigration adviser, who was wrongly thought by them to be a qualified lawyer, and when the Tribunal gave its decision, that adviser did not tell the applicant that he could challenge the Tribunal’s decision in court. The applicant was not aware that challenging the Tribunal decision in court was an option for him, and he was not told that if he wanted to challenge the decision then he would have to file an application within 35 days of being notified of the Tribunal’s decision.

  4. During the hearing before the Tribunal, the applicant conveyed that he would shortly lodge an application for a protection visa. An affidavit made by a solicitor for the Minister establishes that on 6 November 2022, the applicant lodged an application for a Protection (Subclass 866) visa (Protection Visa), but on 30 June 2023, the applicant’s current legal representative sent an email to the Minister’s Department stating that the applicant wished to withdraw his application for the Protection Visa, and attached the appropriate form requesting that that visa application be withdrawn. As I have indicated above, the present application for an extension of time was filed on 4 July 2023. The applicant was cross-examined at the hearing before me and accepted that:

    (a)if losing this case meant that he would go back to Iraq unless he applied for a Protection Visa, then he would apply for the Protection Visa if that was his only option; and

    (b)if it was the case that he would either spend an indefinite amount of time in detention, never knowing when he would be released, or apply for a Protection Visa, then he would apply for the Protection Visa (T9.1-20).

    The Minister submits that the effect of that evidence is that the applicant will reapply for the Protection Visa if he should be unsuccessful in these proceedings (T33.30-35), and I accept that that finding is appropriate on the balance of probabilities.

  5. I accept that there would be substantial consequences for the applicant (and no tangible prejudice to the Minister) if time were not to be extended, even though some of those consequences may conceivably be ameliorated by the applicant reviving his application for the Protection Visa. In that event, the application for a Protection Visa would be of a different kind from the present application, and would be subject to different considerations. I accept that there is a sufficient explanation for the operative delay of about two and a half months. The question in deciding whether to grant an extension of time thus turns on whether the applicant’s case for judicial review has sufficient merit to justify an extension.

    The Tribunal’s Reasons for its Decision

  6. The Tribunal began by referring to the applicant as a 29 year old, born in Iraq in February 1994, and having first arrived in Australia in October 2008: [1].

  7. The Tribunal referred to the Visa having been mandatorily cancelled by the Minister pursuant to s 501(3A) of the Act on 28 November 2018 as a result of the imposition of a custodial term of more than 12 months, and set out the applicant’s criminal history in Australia in reverse chronological order as follows at [2]:

    (a)on 5 May 2017, the New South Wales Court of Criminal Appeal imposed a sentence of six years and eight months with a non-parole period of four years and four months for the applicant’s conviction on a charge of causing grievous bodily harm to a person with intent;

    (b)on 30 September 2016, the Parramatta District Court sentenced the applicant to a term of 80 months (ie six years and eight months) imprisonment with a non-parole period with conditions of three years on the charge of causing grievous bodily harm to a person with intent;

    (c)on 24 January 2015, the Liverpool Local Court fined the applicant $500 on a charge of possessing a prohibited drug;

    (d)on 28 October 2015, the Waverley Local Court fined the applicant $200 on charges of a driver stating a false name or home address and not turning left from a slip lane from a multi-lane road, and imposed a bond for 12 months on a charge of driving a motor vehicle while the driver’s licence was suspended (being a second offence);

    (e)on 10 December 2013, the Liverpool Local Court fined the applicant $800 and disqualified him from driving for 12 months on a charge of driving a motor vehicle while his licence was suspended; and

    (f)on 28 May 2013, the Liverpool Local Court imposed a two-year bond on a charge of affray.

  8. The Tribunal found that the applicant therefore had a “substantial criminal record” (as defined in s 501(7) of the Act by reference to the person having been sentenced to a term of imprisonment of 12 months or more), and thus failed the character test as defined by s 501, and as a result could not rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of the Visa to be revoked: [12]-[15]. The Tribunal then considered whether there was “another reason why the original decision should be revoked” within the meaning of subpara (ii) of that provision.

  9. The Tribunal noted that in considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal was bound by s 499(2A) of the Act to comply with any directions made pursuant to the Act, relevantly Direction No. 90 (the Direction): [16]. The Tribunal then set out the four Primary Considerations and the four Other Considerations in the Direction: [18]-[20].

  10. In relation to Primary Consideration 1, being the protection of the Australian community from criminal or other serious conduct, the Tribunal began by considering the nature and seriousness of the applicant’s conduct to date, as required by para 8.1(2) of the Direction. The Tribunal referred to the applicant’s criminal history and the fact that the applicant had committed violent offences including affray and causing grievous bodily harm with intent: [27]. The Tribunal then said the following at [29]:

    In relation to paragraph 8.1.1(1)(c) of the Direction and in consideration of the principle that a sentence requiring a term of imprisonment is the last resort within the sentencing hierarchy, the sentence imposed on the Applicant of 80 months can only be viewed as serious in the extreme. Then to have that sentence appealed by the Crown with the Court of Criminal Appeal setting aside the original sentence and substituting it with a longer sentence and non-parole period leaves no room for any other conclusion than that the Applicant’s crime was so abhorrent so as to justify this increase in sentence and non-parole period.

  11. The Tribunal then referred to the applicant’s offending as frequent, referring to seven offences within a two-year period with an increasing seriousness of offences culminating in the offence that saw him serve a lengthy gaol term: [30]. The Tribunal then referred to the cumulative effects of the applicant’s sequence of offences, and found that the progressive nature of the applicant’s offending history demonstrated a lack of deterrence that any of his past court ordered penalties had had on him: [31]-[32]. The Tribunal then expressed the opinion that the applicant’s unlawful conduct in Australia could readily be characterised as “very serious”: [33].

  12. The Tribunal then considered the risk to the Australian community should the applicant commit further offences or engage in other serious conduct, as required by para 8.1.2(1) of the Direction. The Tribunal found that given the applicant’s criminal history to date, if he were to re-offend then individual victims or the Australian community could conceivably suffer catastrophic physical, psychological and other material harm: [36]. The Tribunal found that if the applicant were to re-offend, the nature of the harm to individuals or the Australian community would be very serious: [40].

  13. As to the likelihood of the applicant engaging in further criminal or other serious conduct (para 8.1.2(2)(b)), the Tribunal made the following findings. The report of a psychologist who assessed the applicant at the Villawood Detention Centre dealt with various symptoms which the applicant presented with, but fell short in relation to the issue of recidivism: [41]. The report, based on the one-off assessment, made it clear that there was a requirement that the applicant engage in therapy focused on adaptive stress reduction strategies and long-term trauma counselling, but the report did not deal with a sound clinically based risk of re-offending assessment: [41]. The applicant also provided a further report by a different psychologist, stating that the applicant required on-going treatment over a period of at least 12 months, and recommended a treatment plan which required the applicant to adhere to all treatment and included cognitive behaviour treatment focused on reducing anxiety and emotional regulation: [42]. The only mention in the report on the issue of the risk of recidivism was that the risk would “reduce with ongoing intervention”: [43]. The Tribunal referred to the applicant’s evidence at the hearing before it to the effect that he had not engaged in the recommended treatment for the various conditions which contributed to his offending, and rejected the applicant’s proposition that he could not have engaged in the treatment recommended to him at the Detention Centre: [44]. The Tribunal referred also to the applicant’s evidence that he had been irregularly taking the daily medication that had been prescribed to the point of ceasing to take it altogether, giving as a reason that his daily use of cannabis affected his mindset: [45]. The Tribunal found that there was a real risk that the applicant would re-offend, based on the lack of sound clinical evidence to the contrary together with the applicant’s lack of engagement with any or all of the psychological treatments recommended to him: [46]. The Tribunal said that there did not appear to be a strong proactive move on the part of the applicant to engage in treatment of any kind except for short courses such as those undertaken when he was incarcerated: [46]. The Tribunal later said that the applicant’s recidivist risk was “high”: [48(c)].

  14. The Tribunal’s conclusion in relation to Primary Consideration 1 was that that consideration carried a heavy weight against revocation of the mandatory cancellation of the Visa: [49].

  15. The Tribunal then noted that there was nothing in the present case to indicate any relevance of the second and third Primary Considerations, pertaining to family violence and the best interests of minor children in Australia.

  16. Turning to Primary Consideration 4, being the expectations of the Australian community, the Tribunal referred to the applicant’s criminal history showing that he had clearly breached the Australian community’s expectations and that the Australian community would expect that the Australian Government would not allow the applicant to remain in Australia: [55]. However, in dealing with factors which might modify the Australian community’s expectations, the Tribunal referred to the applicant’s employment history since the age of 18, the fact that the applicant had spent a large part of his life in Australia, and to the seriousness of the applicant’s conduct which led to the mandatory cancellation and the potential harm if it were to be repeated: [58]-[61]. The Tribunal expressed the view that the Australian community’s expectations may be slightly modified given the four years or so that the applicant was working and contributing to the community and that he had been in Australia since he was fifteen years old: [62]. The Tribunal then said that Primary Consideration 4 carried a slight weight in favour of revocation of the mandatory cancellation of the Visa: [63].

  17. The Tribunal then turned to the Other Considerations contained in para 9 of the Direction, pointing out that they were non-exhaustive: [64].

  18. As to international non-refoulement obligations (para 9(1)(a)), the Tribunal referred to the applicant’s position that, due to his conversion to Christianity with an apostate status, he faced persecution should he return to Iraq and, therefore, he is a person to whom Australia owes non-refoulement obligations: [65]. The Tribunal referred to the applicant having confirmed that he had a Protection Visa application ready to lodge in the week of the hearing: [66]. The Tribunal referred to the High Court’s decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497 (Plaintiff M1), and summarised the majority reasoning as being that, where an applicant can lodge an application for a Protection Visa, Australia’s international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration and, to the extent that these considerations were given effect in the Act, one available outcome is to defer the assessment in respect of the obligation to the Protection Visa process: [68]. The Tribunal said that that was the appropriate course, particularly in light of the fact that the applicant had most likely lodged a Protection Visa application since the hearing before the Tribunal: [69].

  19. The Tribunal then dealt with the extent of impediments if removed (para 9(1)(b)): [70]. The Tribunal referred to the applicant being 29 years of age and in good health physically, with issues relating to mental health and drug use which he required treatment for, but there was no evidence that the treatment he required was not available to him in Iraq: [70]. The Tribunal referred to Arabic being his mother tongue, and assumed that the applicant was very familiar with all aspects of the culture in Iraq from having lived in Iraq and then in Australia with his family and within the Iraqi community: [71]. The Tribunal then referred to the applicant’s mother giving evidence that she would return to Iraq with him should he be required to leave Australia, and the evidence of his sister that she would provide him with the financial support and resources he would require in Iraq: [72]. The Tribunal acknowledged that in the short-term the applicant may encounter some impediment until such time as he is able to establish himself in the community, and thus accorded this consideration a slight level of weight in favour of revocation: [73].

  20. The next Other Consideration was the impact on victims (para 9(1)(c)), but the Tribunal found that that was not relevant for the purposes of this matter: [75].

  21. The final Other Consideration concerned links to the Australian community, relevantly the strength, nature and duration of ties to Australia (para 9(1)(d)).

  22. The Tribunal referred to the applicant’s immediate family consisting of his mother, sister and brothers, who were all resident in Australia: [78]. The Tribunal referred to the evidence from the applicant’s immediate family being that his circumstances had caused a great deal of suffering among his family, but his sister gave evidence that they would be able to maintain contact by email and telephone should he be required to return to Iraq: [79]. Further, the Tribunal referred to the applicant’s mother having various medical and mental health issues as a result of his position, and that his mother had stated that she would return to Iraq with him should he be required to leave Australia: [79]. The Tribunal referred to the applicant having been in Australia since October 2008 and not having left since then, and referred to the applicant’s work history over about four years which ceased when he went to prison and then immigration detention: [80]. The Tribunal also referred to a number of statutory declarations from friends of the applicant, and referred also to the applicant’s extended family in Australia, and said that those people would be disappointed not to see the mandatory cancellation of the applicant’s Visa revoked: [81]. The Tribunal concluded that the applicant’s links to the Australian community carried a moderate level of weight in favour of revocation of the mandatory cancellation of his Visa: [83].

  1. By way of conclusion, the Tribunal said that Primary Consideration 1 carried a heavy level of weight against revocation, and Primary Consideration 4 carried a slight weight in favour of revocation: [86]. As to the Other Considerations, the extent of impediments if removed carried a slight level of weight in favour of revocation, and links to the Australian community carried a moderate level of weight in favour of revocation: [84]. The Tribunal expressed the view that the combined weights allocated to the relevant Primary Consideration and Other Considerations were sufficient to outweigh any weight in favour of revocation, such that the applicant’s visa status to remain in Australia should not be restored: [87]. Consequently, the Tribunal found that there was not “another reason” as to why the mandatory cancellation decision should be revoked for the purposes of s 501CA(4)(b)(ii) of the Act, and the decision under review was affirmed: [88]-[89].

  2. I turn now to the four grounds of review set out in the draft proposed amended originating application for review of a migration decision.

    Ground 1: Finding of fact for which there was no evidence

  3. Ground 1 contends that the Tribunal made a finding of fact for which there was no evidence, being that the New South Wales Court of Criminal Appeal had increased the applicant’s sentence on appeal for the offence of causing grievous bodily harm with intent. The applicant points to the reasoning of the Tribunal at [29], which I have extracted above, in which the Tribunal said that the Court of Criminal Appeal had substituted for the original sentence a longer sentence and non-parole period. In fact, the Court of Criminal Appeal did not lengthen the sentence, which remained a sentence of 80 months (being 6 years and 8 months) but did lengthen the non-parole period. The applicant refers also to the Tribunal’s reasoning that the applicant’s crime was “so abhorrent so as to justify only this increase in sentence and in non-parole period”. The applicant submitted that the Tribunal thereby made a critical finding of fact on a mandatory relevant consideration for which there was no evidence, referring to SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 at [19] (Mansfield, Selway and Bennett JJ) and Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162 at [29]-[30] (Burley J).

  4. While I accept that the Tribunal made a mistake in saying that the Court of Criminal Appeal had lengthened the original sentence of 80 months, I do not regard that finding as a critical step in the Tribunal’s reasoning or in its ultimate conclusion in relation to the nature and seriousness of the applicant’s conduct. At [29], the Tribunal referred to the sentence imposed by the District Court of 80 months as “serious in the extreme”, and said by way of conclusion about the nature and seriousness of the applicant’s conduct at [33] that the applicant’s unlawful conduct in Australia can readily be characterised as “very serious”. The use of the expression “very serious” at [33] reflects the expression “serious in the extreme” at [29], which was clearly a reference to the original sentence imposed by the District Court. The adjective “abhorrent”, which the Tribunal used by reference to the sentence imposed by the Court of Criminal Appeal, was not repeated in the Tribunal’s conclusion in relation to the nature and seriousness of the applicant’s conduct. Even if the adjective “abhorrent” was prompted by the Tribunal’s misconception that the Court of Criminal Appeal had lengthened the original sentence, that misconception could not be said to be a critical step in the Tribunal’s conclusion as to the seriousness of the applicant’s conduct. Counsel for the applicant accepted that there was ample evidence for the finding that the applicant’s criminal conduct was “serious in the extreme”: T13.38-14.1.

  5. For completeness, I note that counsel for the applicant expressly disavowed in her oral address any reliance on illogicality or irrationality as a basis for Ground 1: T15.25-31, 16.15-29.

    Grounds 2 and 3: Failure to consider persecutory harm

  6. Ground 2 contends that the Tribunal constructively failed to exercise its jurisdiction by failing to give proper, genuine and realistic consideration to the representations made about probable harm to be suffered by the applicant’s mother upon her return to Iraq with the applicant.  Ground 3 contends that the Tribunal constructively failed to exercise its jurisdiction to give proper, genuine and realistic consideration to representations made by the applicant about the probable harm to be suffered by him upon his return to Iraq. Both grounds focus on evidence and representations made to the Tribunal to the effect that both the applicant’s mother and the applicant himself were at risk of death due to religious discrimination if they were to return to Iraq, by reason of their Christian beliefs. I note that the applicant also relies upon the evidence before the Tribunal indicating that the applicant’s mother experiences significant physical and mental health conditions for which she receives treatment, however these were expressly taken into account by the Tribunal at [79], and counsel for the applicant accepted that there was no evidence before the Tribunal as to the lack of availability of medical treatment for the applicant’s mother in Iraq: T19.24-25. There is therefore no basis for Ground 2 in relation to the applicant’s mother’s physical and mental health.

  7. The applicant’s mother is an Australian citizen. However, the Tribunal accepted at [72] and [79] that, if the applicant is required to leave Australia and return to Iraq, then she would return to Iraq with him, despite what she perceives to be a risk to her life in doing so.

  8. Dealing then with the alleged failure to consider the evidence and representations made to the Tribunal concerning the risk of death to the applicant’s mother and to the applicant himself due to their Christian beliefs. I have referred above to the Tribunal’s reliance on the High Court’s decision in Plaintiff M1, particularly at [9] and [30], in deciding to defer the assessment of Australia’s international non-refoulement obligations to the extent that they are given effect in the Act. No challenge is made to the Tribunal’s reasoning in that regard: T18.21-22. However, the applicant places reliance on the observation made by the majority in Plaintiff M1 at [39] to the effect that where the cancelled visa is not a protection visa and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being “another reason” why the cancellation decision should be revoked.

  9. In the present case, I do not think that there is any real merit in the contention that such a course would be necessary. I have referred above to the applicant’s evidence as to the likelihood that he will reapply for a Protection Visa in the event that he is unsuccessful in these proceedings. While character grounds may be relevant in such an application, the Minister (or his delegate) must assess and make findings about the risk of persecution on religious grounds (and specifically of Christians) in Iraq. If those findings are in favour of the applicant, then he will never be returned to Iraq, by reason of s 197C of the Act. There would then be no occasion for the applicant’s mother to return to Iraq. The applicant will either be granted the Protection Visa, or will remain in indefinite detention. The Minister submits, and I accept, that it is not possible for the applicant to be returned to Iraq in persecutory circumstances.

  10. Accordingly, I do not regard Grounds 2 and 3 as having any real merit.

    Ground 4: Failure to consider the likelihood of the applicant engaging in further criminal conduct

  11. Ground 4 contends that the Tribunal failed to apply the Direction by failing to consider in accordance with para 8.1.2(2)(b) the likelihood of the applicant engaging in further criminal conduct, taking into account “information and evidence on the risk of the [applicant] re-offending and “evidence of rehabilitation achieved by the time of the decision”. The applicant refers to evidence that the applicant had completed various courses, the applicant’s statements concerning his remorse and acknowledgement of guilt, his psychologist’s reference to expressions of remorse and shame, and a letter from an Arabic youth coordinator.

  12. I do not think there is any merit in this ground. The Tribunal referred to the two reports by psychologists tendered by the applicant, the first of which did not deal with a sound clinically based risk of re-offending assessment (see [41] of the Tribunal’s reasons), and the second was to the effect that the risk of recidivism would be reduced by the recommended treatment, but that treatment had not been undertaken (see [43]-[44] of the Tribunal’s reasons). The Tribunal did take into account that the applicant had undertaken some courses which it described as short (at [46]), but placed decisive weight on the lack of sound clinical evidence that there was not a real risk of the applicant re-offending, and the applicant’s lack of engagement with the psychological treatments recommended to him, as the Tribunal was plainly entitled to do. Accordingly, I did not see any merit in this ground.

    Conclusion

  13. Accordingly, in my view, there are insufficient merits in the application to justify an extension of time, and the application should be dismissed with costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackman.

Associate:

Dated:       12 October 2023

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