CRNL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Case [2023] FCA 252

FEDERAL COURT OF AUSTRALIA

CRNL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 252  

Review of: Application for extension of time: CRNL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2382
File number: WAD 12 of 2022
Judgment of: FEUTRILL J
Date of judgment: 23 March 2023
Catchwords: MIGRATION – application for an extension of time and judicial review of an Administrative Appeal Tribunal decision – where Administrative Appeal Tribunal affirmed delegate’s decision not to revoke the mandatory cancellation of the applicant’s visa – failure to take into account mandatory other considerations - failure to give active intellectual consideration to mandatory other considerations - turns on its own facts - no jurisdictional error
Legislation:

Constitution ss 75(v), 77(i)

Administrative Appeals Tribunal Act 1975 (Cth) s 43C

Federal CourtRules 2011 (Cth) r 31.23

Migration Act 1958 (Cth) ss 13, 14, 15, 189, 198, 474, 476A(1)(b), 477A(2), 496, 499, 499(2A), 500(1)(ba), 501(3A), 501(5), 501(6)(a), 501(7)(c), 501CA(3), 501CA(4)

Migration Regulations1994 (Cth) reg 2.52

Direction 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA cll 9.2, 9.3 and 9.4.1  
Cases cited:

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

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352

Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163

FKV17 v Minister for Home Affairs [2022] FCAFC 93; (2022) 402 ALR 492

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225; (2018) 267 FCR 628

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123

Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531

Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140

Milne v Minister for Immigration and Citizenship [2010] FCA 495; (2010) 52 AAR 1

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; (2018) 267 FCR 643

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585

Navoto v Minister for Home Affairs [2019] FCAFC 135

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

Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476

Pokrywka v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1287

Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82

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AGLC
CRNL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 252
Case
[2023] FCA 252
Decision Date

CaseChat Overview and Summary

In the matter of CRNL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the court considered an application for judicial review of a decision by the Administrative Appeal Tribunal (AAT) that affirmed a delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant, a New Zealand citizen with multiple convictions for assault and breaching restraining orders, argued that the Tribunal erred in not taking into account the mandatory "other considerations" or failing to give active intellectual consideration to these factors. The court was tasked with determining whether the Tribunal's decision contained any errors that warranted judicial review.

The court held that the Tribunal correctly identified its obligation to apply Direction 90 and to consider both primary and other considerations. The Tribunal had made observations about the weight attributed to each consideration, both primary and other, and evaluated these factors to determine whether there was another reason for revoking the visa cancellation decision. The court found that the Tribunal's reasons, when considered as a whole, demonstrated that it had taken into account the relevant "other considerations" as required. Additionally, the court concluded that the Tribunal had engaged in a genuine evaluation and weighing of the competing factors, rather than a mere mathematical or arithmetic calculation.

Accordingly, the court dismissed the application for judicial review and related writs, affirming the AAT's decision. The court also granted an extension of time for the applicant to apply for judicial review and ordered that the applicant pay the first respondent's costs of the application, to be determined by a Registrar if the parties could not agree on a lump sum.

Orders

Orders of the court

1. The name of the first respondent is amended to read ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

2. The time within which the applicant had to apply for judicial review of the applicable migration decision is extended to 12 January 2022.

3. The application for judicial review of the applicable migration decision is dismissed.

4. The applicant is to pay the first respondent’s costs of the application for an extension of time and for judicial review to be fixed on a lump sum basis.

5. On or before 6 April 2023, the parties are to file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.

6. In the absence of any agreement being reached, the determination of an appropriate lump sum figure for the first respondent’s costs is referred to a Registrar for disposition.

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

Background

Background to the litigation

For the reasons set out below, leave to extend the time within which the applicant had to apply for judicial review is granted, but I am not satisfied that the Tribunal made errors of the nature that the applicant asserts. Accordingly, the application for judicial review and for writs of mandamus and certiorari to issue is dismissed. Factual Background The applicant was born in 1982 and is a citizen of New Zealand. He arrived in Australia in 2004 and was granted a Class TY Subclass 444 – Special Category (Temporary) visa in February 2007. Thereafter, the applicant did not obtain Australian citizenship. The applicant has two biological children and two step-children, however, the applicant considers himself to be the father of his step-children and is by all accounts a devoted and loving father. The applicant’s eldest child, who is now an adult, resides in New Zealand with his mother who is a former partner of the applicant. The applicant’s children who reside in Australia are all under the age of 18. The applicant’s de facto partner and immediate family, including his mother, step-father and four siblings reside in Western Australia along with numerous extended family members. Evidence was provided to the Tribunal by the applicant’s mother, who was called as a witness, to the effect that she is undergoing treatment for cancer and requires the assistance of the applicant to help her with the daily management of her small business. During his time in Australia, the applicant has had relatively regular employment in a number of roles including as a labourer and small business owner and has gained tertiary level trade qualifications. The applicant has been convicted of a number of assault related offences including serious offences relating to domestic violence, breaches of family violence restraining orders and deprivation of liberty that were committed against a number of former intimate partners and the applicant’s current partner. On two occasions, the applicant’s assault convictions resulted in terms of imprisonment. First, on 16 July 2013, the applicant was sentenced to a term of imprisonment of 15 months on charges of threats to injure, endanger or harm any person; and threat(s) to destroy, damage, endanger or harm property; wilfully and unlawfully destroy or damage property; deprivation of liberty, and common assault in circumstances of aggravation. The conduct occurred in relation to an alleged dispute with a former partner. Second, on 16 November 2020, the applicant was convicted of six counts of breaching a family violence restraining order. The applicant was sentenced to seven months imprisonment for each count, to be served concurrently. On the same date, the applicant was also convicted of breaching the terms of a previous imprisonment order imposed on 30 April 2020, in which he was convicted of common assault and sentenced to a seven months suspended sentence. As a result of the breach, the applicant was ordered to serve the seven month sentence concurrently with the sentence already imposed.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 501CA(3) of the Act makes provision for a procedure by which the decision to cancel a visa under s 501(3A) (referred to as the original decision) may be revoked. As soon as practicable after making the original decision the Minister must: (a) give the person a written notice that sets out the original decision and particulars of certain information the Minister considers would be the reason, or part of the reason, for making the original decision (referred to as relevant information); and (b) ‘invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’. Regulation 2.52 of the Migration Regulations1994 (Cth) makes provision for the manner in which representations are to be made to the Minister. Section 501CA(4) of the Act provides that the Minister may revoke the original decision if: (a)the person makes representations in accordance with the invitation; and(b)the Minister is satisfied that:(i)the person passes the character test; or(ii)there is another reason why the original decision should be revoked. Section 496 of the Act makes provision for the Minister to delegate to a person any of the Minister’s powers under the Act. A delegate is, in the exercise of a delegated power, subject to the directions of the Minister. Section 499 of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act. The Minister has issued a number of directions regarding the exercise of a delegate’s power under s 501CA(4) of the Act. The applicable direction in this case was Direction 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90). Under s 499(2A), the delegate was required to comply with Direction 90. The Tribunal in the exercise of its ‘review’ function under s 500(1)(ba) of the Act, was also obliged to comply with Direction 90. In so doing, the delegate and the Tribunal were obliged, when considering if there were another reason to revoke the original decision, to take into account the primary considerations and, where relevant, the other considerations described in Direction 90. Section 474 of the Act provides that a privative clause decision: is final and conclusive; must not be challenged, appealed against, reviewed, quashed or called in question in any court; and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. The effect of s 474 is to exclude a court from reviewing and granting relief for any error a decision-maker has made in respect of a privative clause decision. A decision of the Minister or a delegate refusing to revoke a mandatory cancellation of a visa is a privative clause decision. However, where a delegate of the Minister has made such a decision, the former visa-holder has a right to apply to the Tribunal for a ‘review’ of that decision under s 500(1)(ba) of the Act. A decision of the Tribunal under s 500(1)(ba) is also a privative clause decision to which s 474 of the Act applies.

Ratio Decidendi

Legal Principle Established

The first passage in the quote from the Tribunal's reasons above is the last paragraph (RFD para [112]) in which the Tribunal was dealing with the other considerations. The next heading 'Findings: Other Considerations' deals with the Tribunal's conclusions, in a summary way, on the various other considerations the subject of the Tribunal's discussion in paras [92] - [112]. Although the paragraph is not numbered, logically, it is a separate paragraph following para [112] and preceding para [113]. Consideration Insofar as the first limb of the applicant’s grounds is concerned, he submitted that para [113] of the Tribunal’s reasons, where it is said that the Tribunal is ‘required to weigh all of the Considerations in accordance with the Direction’, sets out the primary considerations and none of the ‘other considerations’. Therefore, in terms, para [113] contains no weighing of the ‘other considerations’. The applicant’s submission has some force when para [113] is read in isolation and literally. However, in context and having regard to the reasons of the Tribunal as a whole, in my view, the Tribunal has not failed to take into account the ‘other considerations’. The Tribunal correctly identified that it was required to apply Direction 90. Further, that it was required to consider both primary and other considerations. The Tribunal considered all the primary considerations and made observations about the weight attributed to each consideration as it was considered. The Tribunal considered the other considerations and, likewise, made observations about the weight attributed to them and the direction in which the factor pointed for the purpose of the ultimate question of whether there was ‘another reason’ for revoking the decision to cancel the applicant’s visa. Reading the Tribunal’s reasons without an eye keenly attuned to error means that the un-numbered paragraph that precedes para [113] should be read with para [113]. The word ‘now’ in para [113] provides a link between the summary of the ‘other considerations’ in the un-numbered paragraph and the primary considerations set out in para [113]. Paragraph [114] should also be read with the un-numbered paragraph and [113] such that the word ‘therefore’ in [114] captures an evaluation of the factors recorded in the un-numbered paragraph and [113]. It follows that I do not consider that the Tribunal’s reasons, when considered as a whole, reveal a failure to take into account the relevant ‘other considerations’ as is required by Direction 90. As to the second limb and the contention that the Tribunal failed to give active intellectual consideration to the task of balancing the competing factors (primary and other considerations), the applicant placed emphasis on the use of the word ‘therefore’ in [114]. Also, that the un-numbered paragraph and [113] listed various factors and weight and the ‘therefore’ in [114] suggests that the Tribunal engaged in some sort of mathematical or arithmetic calculation rather than a genuine evaluation and weighing of the competing factors.