DFN22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 424
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DFN22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 424
File number: SYG 965 of 2022 Judgment of: JUDGE LAING Date of judgment: 25 May 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Administrative Appeals Tribunal affirming a decision to cancel the applicant’s Subclass 500 (Student) visa – whether the Tribunal relevantly erred by acting upon a certificate which was invalid – whether the failure to disclose material behind the certificate resulted in material error – application dismissed Legislation: Migration Act 1958 (Cth) ss 116, 362A, 375A, 438
Migration Regulations 1994 (Cth)
Cases cited: Chi Cong Le v Minister for Immigration and Border Protection [2019] FCAFC 178; (2019) 272 FCR 1
HBMH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 275
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737
WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463
Division: Division 2 General Federal Law Number of paragraphs: 30 Date of last submissions: 12 May 2023 Date of hearing: 28 April 2023 Place: Sydney Counsel for the Applicant: Ms E Dunlop, pro bono publico Counsel for the Respondents: Mr N Swan Solicitors for the Respondents: Mills Oakley ORDERS
SYG 965 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DFN22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULUTRAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE LAING
DATE OF ORDER:
25 MAY 2023
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LAING:
INTRODUCTION
Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate (Delegate) of the first respondent (Minister) to cancel the applicant’s Subclass 500 (Student) visa.
BACKGROUND
The applicant is a citizen of Mongolia, who arrived in Australia in 2017 as a primary holder of a student visa. On 28 March 2018, the applicant was subsequently granted a further student visa as a member of his (then) wife’s family unit. His (then) wife was the primary applicant for that visa.
On 10 January 2018, the applicant was convicted of Common assault (DV). In May 2018, he was convicted of two further offences: Common assault (DV) and Shoplifting value <=$2000.
By letter sent by email dated 21 November 2018, the applicant was provided with a Notice of Intention to Consider Cancellation (NOICC) of his student visa under s 116 of the Migration Act 1958 (Cth) (Act).
On 3 December 2018, the Delegate decided to cancel the applicant’s visa. The applicant applied to the Tribunal for review of that decision.
On 6 June 2022, the Tribunal affirmed the Delegate’s decision.
THE TRIBUNAL’S DECISION
The Tribunal observed that it had “advised the applicant of the existence of a s 375A Certificate” (Certificate), which was said to relate to internal methods of investigation. The Tribunal noted that it had indicated that it considered the Certificate to be valid for the reasons outlined in the Certificate. The Tribunal stated that the “applicant did not raise concerns” in response (at [5]-[8]).
At [9], the Tribunal set out the relevant provisions under the Act and the Migration Regulations 1994 (Cth) (Regulations) as follows:
Section 116 – Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: …
(g) a prescribed ground for cancelling a visa applies to the holder…
Reg 2.43 Grounds for cancellation of visa
(1)For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following: …
(oa) in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any).
At [11], the Tribunal observed that it had discussed with the applicant information that had become available to the Department in relation to the three offences upon which the NOICC had been based.
The Tribunal was satisfied that a ground for cancellation existed under s 116(1)(g) of the Act, by reference to the above described offences of Common Assault (DV) and Shoplifting. The Tribunal noted that the applicant “was not disputing that the ground for cancellation exist[ed] but [was] contending that the visa should not be cancelled on discretionary grounds” (at [15]-[18]).
The Tribunal then proceeded to consider whether the visa should be cancelled. The Tribunal considered:
(a)The purpose of the applicant’s travel to and stay in Australia, and whether the applicant had a compelling need to remain. The Tribunal did not consider that the applicant had a compelling need to remain in Australia. In this regard, the Tribunal observed that the applicant had been the secondary visa holder of a student visa. That visa would have expired on 12 May 2021. The applicant was divorced from his wife, the primary holder, and was no longer a member of her family unit. His former wife had returned to Mongolia, where their children lived. Whilst the applicant had made a protection visa application on the basis of his profession as a police officer in Mongolia, that application had been refused and review had been unsuccessful (at [21]-[30]).
(b)The extent of compliance with visa conditions. The Tribunal accepted that there was no evidence that the applicant had not complied with the conditions of his student visa and gave this some weight against cancellation (at [32]-[34]).
(c)The degree of hardship that may be caused. The Tribunal accepted that cancellation may involve some emotional, psychological and financial hardships including by reference to the applicant’s detention and removal from Australia. The Tribunal gave this some weight against cancellation. However, the Tribunal found that this needed to be considered within the context of the fact that the visa would have expired on 12 May 2021 and the applicant no longer met the requirements of being a member of the primary holder’s family unit (at [35]-[38]).
(d)The circumstances in which the ground for cancellation arose. The Tribunal observed that the ground for cancellation arose as a result of the applicant being convicted of common assault twice and shoplifting. The Tribunal gave some weight to the applicant’s letters of support and evidence of efforts towards rehabilitation. However, the Tribunal considered that the applicant’s offending was not beyond his control and that “[v]iolence is not acceptable and its impact on victims cannot be underestimated”. The Tribunal was concerned that the applicant was convicted of a second offence of Common Assault (DV) about four months after his first conviction for that offence. The Tribunal gave this consideration significant weight in favour of cancellation (at [39]-[42]).
(e)Past and present behaviour towards the Department. The Tribunal found the applicant’s explanations for not responding to the NOICC letter unpersuasive and considered that this suggested an indifference to, or lack of respect for, migration laws and processes. The Tribunal also observed that the applicant had provided incorrect information that he had not been convicted of any offences in his student visa application, which was considered to be a serious matter. The Tribunal gave this weight in favour of cancellation (at [43]-[47]).
(f)Any consequential cancellations under s 140. The Tribunal observed that there were no consequential cancellations and therefore gave this consideration neutral weight (at [48]-[49]).
(g)Mandatory legal consequences of cancellation. The Tribunal observed that as a result of cancellation the applicant may be an unlawful non-citizen liable for detention (potentially indefinitely) and removal, whose ability to apply for further visas was limited. The applicant would also be subject to public interest criterion 4013 for three years. The Tribunal gave this consideration neutral weight, noting that it had considered hardship under another heading and that “those consequences are intended legislative consequences” (at [50]-[55]).
(h)International obligations – non-refoulement. The Tribunal observed that the applicant’s protection visa application, based upon his role as a police officer, had been unsuccessful. The applicant’s evidence also referred to a claim of persecution based upon religion. In respect of the latter claim, the Tribunal observed that it was possible for the applicant to apply for Ministerial intervention to, amongst other things, enable the applicant to lodge another protection visa application. The Department may also undertake an International Treaties Obligations Assessment prior to removal. By reference to WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; (2021) 285 FCR 463, the Tribunal considered that it was open to it to conclude that a person faces a low risk of being returned to a country where they face a real chance of Convention-related harm, based on statements of executive policy that Australia will not do so and in the absence of evidence to the contrary (at [56]-[64]).
(i)The best interests of any affected children. The Tribunal observed that the applicant had two children who lived with their mother in Mongolia. As they were not in Australia, Departmental guidelines indicated that Australia’s obligations under the Convention on the Rights of the Child did not apply. In any event, the Tribunal had regard to their interests. The applicant had submitted that he had promised his children that he would bring them to Australia. The Tribunal considered it speculative that he would be able to do so, even if the visa were not cancelled. Further, the Tribunal considered that it may be in their best interests that he return to Mongolia, where they may be reunited. The Tribunal was not satisfied that the interests of a former partner in Australia or her children were affected, given the applicant’s evidence that they did not have a current relationship. The Tribunal therefore gave neutral weight to these considerations.
The Tribunal then weighed this evidence as follows (at [76]-[77]):
76.The Tribunal has carefully considered the material before it individually and cumulatively. There are limited aspects in the applicant’s favour, essentially relating to his own circumstances. On balance, the Tribunal is satisfied that the evidence weighs heavily in favour of cancellation. The applicant has been convicted of offences that involve his former wife. He was a secondary applicant on her visa. She is no longer in Australia and the visa would have expired in May 2021. His two minor children are in Mongolia with their mother.
77.On balance, the Tribunal considers that the matters in favour of cancellation outweigh the other aspects in favour of the applicant.
The Tribunal concluded that the visa should be cancelled. Accordingly, the Tribunal affirmed the Delegate’s decision (at [78]-[79]).
PROCEEDINGS BEFORE THIS COURT
The applicant commenced proceedings in this Court by an application filed on 4 July 2022. The applicant ultimately relied upon an amended application filed on 31 March 2023, which advanced the following ground:
1.The Second Respondent committed jurisdictional error by acting upon a certificate purportedly issued under s 375A of the Migration Act 1958 (the Certificate) which was invalid.
Particulars
•The Certificate was invalid on its face, in that it incorrectly identified the documents behind the Certificate as an "Employment Verification Check".
•The Certificate was invalid on its face, in that it did not disclose a basis that could reasonably make disclosure of the information behind the Certificate contrary to the public interest.
•The failure to disclose the documents behind the Certificate to the applicant materially affected the opportunity for the Applicant to make submissions affecting an issue in the review.
The Minister conceded that the Certificate was invalid. The question was therefore whether the failure to disclose material behind the Certificate resulted in material error, in the sense considered in cases such as MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 (MZAPC).
Ms Dunlop, who assisted the applicant on a pro bono basis, submitted that it did. It was submitted that the material behind the Certificate was clearly adverse to the applicant. The material contained a series of communications regarding the applicant’s criminal record (spanning 29 pages). In addition to the three convictions that were the subject of the NOICC, the communications additionally included reference to:
(a)an apprehended violence order served on 12 January 2018;
(b)two charges (without record of any conviction) on 27 September 2018 for the following property offences (Property Offences):
(i)destroy or damage property >$5,000 & <=$15,000; and
(ii)“Enter inclosed land not presc premises w/o law”;
(c)convictions on 13 November 2018 for the following driving offences (Driving Offences):
(i)drive with low range PCA – 1st off – fine $400;
(ii)negligent driving (no death or grievous bodily harm) – fine $300; and
(iii)drive with low range PCA – 1st off – fine $500; and
(d)what appears to have been revised sentences for the shoplifting and one of the common assault offences. Whilst bonds were previously issued, these sentences appear to have been revised to community correction and alcohol rehabilitation orders.
It was submitted that this case could be distinguished from cases such as Chi Cong Le v Minister for Immigration and Border Protection [2019] FCAFC 178; (2019) 272 FCR 1, in which it was stated that “[t]here cannot be any denial of procedural fairness, at least in these circumstances, in not being given an opportunity to comment on adverse material that, rightly or wrongly, was considered irrelevant and therefore not taken into account”: [41]. In that case, the Court was not persuaded that the Tribunal had read the documents, let alone taken them into account, contrary to what appeared on the face of the Tribunal’s reasons. In contrast, it was submitted that in the present case there was ample evidence that the Tribunal considered and took the documents into account. The evidence that was relied upon was included at:
(a)page 9 of a document annexing a transcript of the Tribunal hearing (Transcript), where the Tribunal informed the applicant that it had “looked at the Certificate and the information subject to the Certificate”: and
(b)[76] of the Tribunal’s decision, at which the Tribunal stated that it had “carefully considered the material before it individually and cumulatively”.
Whilst Ms Dunlop acknowledged that a different conclusion had been reached on the facts of MZAPC, she observed that the section of the Act at issue in that case was s 438. Important to the reasoning in that case was the discretion given at s 438(3)(a)-(b) for the Tribunal to take the material into account and disclose the information. Section 375A of the Act contained no such procedural complexities. In the context of s 375A, it was submitted that the Tribunal’s statement that it had “carefully considered the material before it individually and cumulatively” was sufficient to raise an inference the Tribunal had regard to the information behind the Certificate.
It was submitted that, had the Tribunal not acted upon the Certificate, then the applicant would have been entitled to access the documents under s 362A of the Act and make representations in relation to them. It was submitted, by reference to Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737, that it was unnecessary for the applicant to demonstrate exactly how he would have made use of this opportunity (per Kiefel CJ, Keane and Gleeson JJ at [33]). However, it was submitted that the applicdant may have been able to provide some context regarding the additional convictions and charges that were referred to in the materials that were the subject of the Certificate. The denial of the opportunity to do so was submitted to have resulted in material error.
There is some force to the applicant’s submissions. The Tribunal did, in two parts of the evidence, indicate generally that it had regard to the material under consideration. However, as was submitted by Mr Swan for the Minister, this must be considered against the following evidence:
(a)No reference was made in the Tribunal’s decision to the Property Offences or the Driving Offences.
(b)Whilst the apprehended violence order was referenced, this was also referred to in the Delegate’s decision.
(c)When the Tribunal discussed with the applicant his sentences for the common assault and shoplifting offences that were the subject of the NOICC, the Tribunal appears to have been under the impression that the sentences referred to in that document were applicable and did not appear to have been aware of the revised sentences that were referred to in the Certificate material.
This evidence indicates that the Tribunal did not have as careful regard to the material behind the Certificate as it had (generally) indicated.
Whilst it is possible that the Tribunal thought it was constrained from referring to the material that was the subject of the Certificate, what was said at the Tribunal hearing tends against such an inference being drawn. At page 10 of the Transcript, the Tribunal informed the applicant that if there was “any adverse information in those documents [it] would raise that with [the applicant] because [it was] required in terms of fairness to do so”. I therefore do not consider that the evidence sufficiently supports an inference being drawn that the Tribunal considered itself prohibited from disclosing any adverse information that was contained in the underlying documents that were the subject of the Certificate. The Tribunal’s reasoning does not indicate any real consciousness of that information beyond the information that had been disclosed to the applicant.
Even if the Tribunal were aware of the additional charges and convictions, there is no evidence that this material had any effect upon its reasoning. Where no reference is made to a matter in a decision, the Court may infer that it was not considered to be material: see HBMH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 275 at [64] and the cases referred to therein. The additional criminal matters, whilst potentially relevant, were not necessarily such that an inference is compelled that they may have influenced the Tribunal’s decision. No conviction was recorded for the Property Offences, and the Driving Offences appear to have resulted in relatively low fines when compared with the balance of the applicant’s record. The Tribunal’s decision also indicates that its focus was particularly on the offences involving violence, rather than any other part of the applicant’s criminal record. In these circumstances, I am not persuaded to find that the additional information contained within the underlying documents had any material effect upon the Tribunal’s decision in the absence of any express indication that it did so.
Further, as was submitted by Mr Swan, there is evidence that the applicant had some notice of the material under consideration. As noted above, the Delegate’s decision referred to the apprehended violence order against the applicant in respect of his wife. The Delegate’s decision, dated 3 December 2018, also informed the applicant that the “NSW Police Force ha[d] provided the Department with a Criminal History Report pertaining to the visa holder”. There is no reason to think that the applicant would have been unaware that the charges for the Property Offences in September, or the convictions for the Driving Offences in November, formed part of that criminal history.
The applicant made no request under s 362A of the Act at all (for the underlying documents, or any other documents). There is no indication in the materials that he was minded to do so. Rather, the applicant’s approach before the Tribunal appears to have been to have accepted the detail of his criminal record but to focus upon discretionary factors that tended against cancellation such as his efforts towards rehabilitation and hardship considerations.
Having regard to the above, I find that I am unable to conclude that there is a realistic possibility that the decision under review could have been different had the Tribunal not erred in considering the Certificate to be valid. It follows that materiality is unable to be demonstrated, with the result that the Tribunal’s decision is not affected by jurisdictional error.
Given this conclusion, it is unnecessary to determine a further dispute between the parties regarding futility.
PRO BONO COUNSEL
In the highest traditions of the bar, Ms Dunlop accepted a referral in this matter to appear for the applicant on a pro bono basis. This was in circumstances where the applicant was in detention in Western Australia, required the assistance of an interpreter and had demonstrated no understanding of the potential issues that arose in these proceedings when this matter was listed to consider his request for pro bono assistance.
Ms Dunlop’s work in this matter was of a particularly high quality. Although I have ultimately not accepted that the Tribunal’s decision was affected by jurisdictional error, the arguments that were made on the applicant’s behalf were presented with a clarity and skill that was of considerable assistance to the Court. I wish to express my appreciation for this.
CONCLUSION
For the above reasons, I have concluded that the application before the Court is unable to succeed. It must therefore be dismissed.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 25 May 2023
0
6
0