CUV18 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

CUV18 v Minister for Home Affairs [2018] FCA 2009

File number: NSD 910 of 2018
Judge: JAGOT J
Date of judgment: 14 December 2018
Catchwords: MIGRATION – whether Tribunal applied wrong part of Ministerial direction – whether erroneous references in Tribunal’s reasons mere typographical errors – Tribunal applied wrong part of Ministerial direction – Tribunal’s consideration miscarried due to material differences in parts of Ministerial direction – no power to amend reasons to change erroneous references – Tribunal’s consideration miscarried by reference to speculative possibilities of other avenues being open to the applicant to avoid returning to his country of origin – application allowed  
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) s 43AA(1)

Migration Act 1958 (Cth) ss 5(9), 195A, 198(6), 417, 499(1), 499(2A), 501(3A) and 501CA(4)

Cases cited:

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

AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105; (2016) 243 FCR 451

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456

Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280

Collins v Military Rehabilitation and Compensation Commission [2005] FCA 1862; (2005) 147 FCR 570

Comcare v Moon [2003] FCA 569; (2003) 75 ALD 160

Commissioner of Police (NSW) v Industrial Relations Commission(NSW) [2009] NSWCA 198; (2009) 185 IR 458

Evans v Marmont (1997) 42 NSWLR 70

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1

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

NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1

Pokharel v Minister for Immigration and Border Protection [2016] FCAFC 34

R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322

R v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327

Re Murray and Repatriation Commission (1998) 52 ALD 117

SZIFI v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 63; (2007) 238 ALR 611

Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146

Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589

Date of hearing: 3 December 2018
Date of last submissions: 7 December 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 52
Counsel for the Applicant: Ms E Bathurst
Solicitor for the Applicant: Human Rights for All
Counsel for the First Respondent: Mr JB Kay Hoyle
Solicitor for the First Respondent: Clayton Utz
Counsel for the Second Respondent: The Second Respondent submitted save as to costs

ORDERS

NSD 910 of 2018
BETWEEN:

CUV18

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

JAGOT…

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Details
Case
[2018] FCA 2009
Decision Date

CaseChat Overview and Summary

The case of CUV18 v Minister for Home Affairs involved the applicant, an Iranian citizen, who had his visa cancelled due to failing the character test under the Migration Act. The applicant sought judicial review of the Administrative Appeals Tribunal's (AAT) decision to affirm the decision not to revoke the cancellation of his spouse visa. The central issues before the court were whether the AAT applied the wrong part of the Ministerial direction and whether the AAT's consideration miscarried due to material differences in parts of the direction.

The court found that the AAT applied the wrong part of the Ministerial direction, which led to a miscarriage of justice. The AAT's reasons contained material differences in references to the correct part of the direction, and the court held that the Tribunal's consideration miscarried by referring to speculative possibilities of other avenues being open to the applicant. The court also found that the erroneous references in the Tribunal's reasons were not mere typographical errors, but rather indicated a failure to properly apply the relevant part of the Ministerial direction.

Consequently, the court quashed the AAT's decision and remitted the matter back to the AAT for determination in accordance with law. The court also ordered the Minister to pay the applicant's costs of the application as agreed or taxed. This case highlights the importance of correctly applying statutory directions and ensuring that decision-makers consider the correct legal framework when making decisions under the Migration Act.

Orders

Orders of the court

1. The decision of the Administrative Appeals Tribunal not to revoke the mandatory cancellation of the applicant’s Class BS Subclass 801 Spouse (Residence) visa be quashed.

2. The matter be remitted to the Administrative Appeals Tribunal for determination of the application for review in accordance with law.

3. The first respondent pay the applicant’s costs of the application as agreed or taxed.

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

Background

Background to the litigation

In my view, the applicant has established the first and the third of these categories of error, with the consequence that the Tribunal’s decision is a nullity and must be quashed.Background The applicant is a citizen of Iran. On 28 August 2006, whilst offshore, he was granted a TO-300 (Prospective Marriage) visa sponsored by his wife. On 16 November 2006 he arrived in Australia. On 19 December 2007 the applicant’s daughter was born. On 4 January 2008, the applicant was granted a UK-820 (Temporary Spouse) visa and thereafter on 22 June 2009 the applicant was granted a Class BS Subclass 801 Spouse (Residence) visa. The applicant and his wife later separated. The applicant accepted that he failed the “character test” in s 501(3A) of the Act which meant that his visa had to be cancelled. The written submissions for the applicant said:11.Most significantly, on 15 March 2015, the Applicant was sentenced to a term of imprisonment of four years and six months, with a non-parole period of two years and six months for offences arising out of him causing a fire in his unit on 9 December 2011 whilst attempting to manufacture drugs. He was also convicted on that day of other offences as a result of being found in November 2013 of having a crude laboratory to feed his drug habit.12. …this led to the mandatory cancellation of the Applicant’s visa under s.501(3A) of the Migration Act on 9 May 2016 i.e. the Original Decision. On that same day the Applicant was invited to make representations regarding the cancellation of his visa which he did on 20 May 2016. 13.Thereafter, on 18 October 2016, a delegate of the Minister determined not to revoke [the mandatory cancellation of] the Applicants visa under s.501CA(4) of the Migration Act. On 23 November 2016 the applicant applied for a Class XA Subclass 866 (Protection) visa. He said that as a member of the Baha’i faith and due to the public reporting of his crimes he has a genuine fear of persecution in Iran. On 2 June 2017 the applicant applied to the Tribunal for review of the delegate’s decision not to revoke the cancellation of his spouse visa. On 6 September 2017 the applicant’s application for a protection visa was refused by a delegate of the Minister. On 18 September 2017 the applicant applied to the Tribunal for review of that decision. On 30 October 2017 the Tribunal heard that application and reserved its decision. On 28 November 2017 the Tribunal heard the application for review of the decision not to revoke the cancellation of the applicant’s spouse visa. On 12 February 2018 the Tribunal decided to affirm the decision not to grant the applicant a protection visa. On 5 April 2018 the applicant applied to the Federal Circuit Court for judicial review of this decision. On 23 April 2018 the Tribunal decided to affirm the decision not to revoke the cancellation of the applicant’s spouse visa. On 25 May 2018 the applicant applied to this Court for judicial review of that decision. These reasons concern that application.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As a result of this conclusion, it is unnecessary to consider the other two categories of alleged jurisdictional error but I will do so briefly.Ground 4: failure to consider consequences of decision In that part of its reasons dealing with Australia’s international non-refoulement obligations, the Tribunal said:52.The applicant is a member of the Baha’i faith and fears persecution if returned to Iran. Whilst this may be accepted, there are other avenues available to the applicant including Ministerial discretion.53.Whilst living in Iran the applicant had employment and was able to engage in the community.54.Whilst this consideration is, on balance, in the applicant’s favour, it must be weighed against the primary considerations and be balanced with the other considerations. It was submitted for the applicant that the Tribunal fell into the same kind of error discussed in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1. In NBMZ at [128], Buchanan J explained that an applicant “is entitled to have his application to this Court determined by reference to the legal consequences for him of the decision which was in fact made about his visa application”. In the circumstances of NBMZ, Buchanan J continued in these terms:129.As will become apparent from the terms of the Minister’s decision, the speculative possibilities that this Court was asked to entertain are not ones to which any reference was made in the Minister’s reasons for decision. In any event, they are not relevant to the present application. 130.The applicant’s present position is that he must be removed from Australia as soon as reasonably practicable (subject to his continuing protection under Article 33 of the Refugees Convention). Until he can be removed the applicant must be detained. Because there is no known prospect of finding a country to which he may be removed the applicant’s detention will be, so far as is known, indefinite. Those matters are the direct consequence of the decision to refuse the applicant a visa. 131.The Minister did not, at the time of refusal, grant the applicant a visa under s 195A as he might have done. I do not think it is permissible to speculate, much less to proceed upon any form of assumption, that the Minister might change his mind or take a different course at some future time. Such possibilities or assumptions have no relevance to the applicant’s present position. In Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [84], the Full Court said that:The fundamental principle that NBMZ confirms is that, in making a decision under the Migration Act, the Minister is bound to take into account the legal consequences of a decision because these consequences are part of the legal framework in which the decision is made. Indeed, in making any decision in exercise of a statutory power, the legal framework in which that decision is made must be taken into account. That framework includes the direct and immediate statutorily prescribed consequences of the decision in contemplation. Another expression of this fundamental proposition is the well-established principle that a broad statutory discretion is nonetheless limited by the subject matter, scope and purpose of the Act that creates it. …

Ratio Decidendi

Legal Principle Established

The Tribunal said in its reasons:3.A decision by a delegate of the respondent not to revoke the mandatory cancellation in the exercise of discretion was made in October 2016.4.The issue is whether the mandatory cancellation of the applicant’s visa should remain. That is, whether discretion should be exercised in the applicant’s favour notwithstanding the fact that the applicant fails to meet the character test under the Migration Act 1958 (Cth) because of his criminal record.5.Discretion may be exercised to not cancel the applicant’s visa and that discretion is to be exercised in accordance with Direction 65 made under s 499 of the Act.…21.It is Part C of Direction 65 which is applicable in this case.22.Part C requires a decision-maker to have regard to three primary considerations as well as other considerations.23.The primary considerations are:-(a)Protection of the Australian community from criminal or other serious conduct;(b)The best interests of minor children in Australia; and(c)The expectations of the Australian community (Part C, cl 13(2)).…28.There is no question here that the applicant does not pass the character test referred to in s 501. Notwithstanding this, Direction 65 allows for the non-revocation of the applicant’s visa in light of the considerations contained in Direction 65.29.I turn now to the considerations under Direction 65.PRIMARY CONSIDERATIONS(a)Protection of the Australian community from criminal or other serious conduct30.Australia is committed to protecting the Australian community from harm as a result of criminal activity (cl 9.1(1)). It is necessary to give consideration to the nature and seriousness of a non-citizen’s conduct and to the risk to the Australian community should the non-citizen commit further offences (cl 9.1(2)).31.In assessing the nature and seriousness of the conduct, one is to look at, amongst other things, the sentence imposed by the courts (cl 9.1.1(e)) and the frequency of offending (cl 9.1.1(f)).32.Here, the sentences imposed were for substantial gaol terms on two occasions. I would regard the applicant’s conduct as being serous in terms of offending. The first major offence involving the fire on 9 December 2011 when the applicant’s wife and child were in the premises was a serious matter. Notwithstanding that offence, the applicant was found again to have a clandestine laboratory for making drugs in November 2013. He also breached bail conditions following the December 2011 offence.33.This is not a case where there has been a sole offence. There are, in addition to the fire and later laboratory offences, other offences to which I have referred.34.It is true that the applicant says he had become dependent on drugs and that he has undertaken rehabilitation. However, the gravity of the offences cannot be ignored.35.The applicant has not been in the community at large since around March 2015. His second prison sentence – as a result of being found of having a crude laboratory for making drugs – occurred after the earlier conviction for starting a fire associated with his earlier drug-making laboratory in a residential unit. For a second time, the applicant put people at risk. The applicant did not learn from the fire incident despite undergoing some rehabilitation.36.In considering whether the person represents an unacceptable risk, regard is to be had to the principle that the Australian community tolerance for any risk of further harm becomes lower as the seriousness of the potential harm increases (cl 9.1.2(1)).37.Regard is to be had to (a) the nature of the harm and (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct (cl 9.1.2(2)(b)).38.What is relevant here is the information and evidence of the risk and evidence of rehabilitation.39.In the present matter, the applicant has had a long period of offending and has put others in danger. His conduct has offended community standards by his drug-taking despite coming before the courts. Even after causing a fire and being charged, his offending persisted and this was so despite undertaking rehabilitation programs.40.The Australian community can be said to tolerate some risk. Here, however, the applicant continued to re-offend after coming to the attention of authorities. He has participated in rehabilitation programmes and has engaged in the “Getting Smart Programme” while in prison. The applicant has engaged in other programmes in prison and whilst in detention.41.In my view, given that the applicant has been in custody or detention for some time, there is a risk that the applicant could revert to old patterns and that this is a risk which must be taken into consideration. I say this knowing that the applicant believes that he has put all of that behind him. He has a collection of favourable references which I have considered.42.In summary though, I regard this first primary consideration to weigh strongly against the applicant.43.I now come to the next primary consideration.