FEDERAL COURT OF AUSTRALIA
Doan v Minister for Home Affairs [2019] FCA 1172
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Details
- Case
- [2019] FCA 1172
- Decision Date
CaseChat Overview and Summary
The case of Doan v Minister for Home Affairs involved an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) to decline the revocation of the mandatory cancellation of the applicant's visa. The applicant, a Vietnamese citizen, had been in Australia on a student visa since 2013 but never commenced his intended degree due to language barriers. He subsequently married an Australian citizen and obtained a partner visa, which was cancelled under the Migration Act 1958 (Cth) due to character concerns. The AAT assessed the risk of reoffending based on two psychologists' reports, despite concerns about their reliability, and concluded that the risk was "low" to "low to medium."
The primary legal issue was whether the AAT made a jurisdictional error in its fact finding by relying on the psychologists' reports despite its concerns about their reliability. The court had to determine if the AAT correctly assessed the risk of recidivism and whether there was a "good chance" the applicant would not be granted a permanent partner visa.
The Federal Court held that the AAT did not make a jurisdictional error in its fact finding. It was appropriate for the AAT to assess the risk of recidivism based on all the evidence before it. The court found that the AAT's inference that there was a "good chance" the applicant would not be granted a permanent partner visa was rational and based on reasonable considerations. The court noted that the AAT had considered the best interests of the applicant's children in favour of revoking the mandatory visa cancellation, even though it acknowledged the possibility of a character-based rejection of a permanent visa application.
The court upheld one ground of the judicial review application but dismissed the others. It set aside the AAT's decision and remitted the matter to the AAT for reconsideration according to law. The court considered it appropriate for the reconsideration to be conducted by a differently constituted AAT but left the decision on its composition to the AAT President. The Minister was ordered to pay the applicant's costs.
The primary legal issue was whether the AAT made a jurisdictional error in its fact finding by relying on the psychologists' reports despite its concerns about their reliability. The court had to determine if the AAT correctly assessed the risk of recidivism and whether there was a "good chance" the applicant would not be granted a permanent partner visa.
The Federal Court held that the AAT did not make a jurisdictional error in its fact finding. It was appropriate for the AAT to assess the risk of recidivism based on all the evidence before it. The court found that the AAT's inference that there was a "good chance" the applicant would not be granted a permanent partner visa was rational and based on reasonable considerations. The court noted that the AAT had considered the best interests of the applicant's children in favour of revoking the mandatory visa cancellation, even though it acknowledged the possibility of a character-based rejection of a permanent visa application.
The court upheld one ground of the judicial review application but dismissed the others. It set aside the AAT's decision and remitted the matter to the AAT for reconsideration according to law. The court considered it appropriate for the reconsideration to be conducted by a differently constituted AAT but left the decision on its composition to the AAT President. The Minister was ordered to pay the applicant's costs.
Orders
Orders of the court
1. The decision dated 18 February 2019 of the Administrative Appeals Tribunal is set aside.
2. The applicant’s application for review is remitted to the Administrative Appeals Tribunal for reconsideration according to law.
3. The first respondent pay the applicant’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
This judicial review proceeding raises important questions as to the scope of judicial review of fact finding by the Administrative Appeals Tribunal (AAT). The proceeding relates to a decision of the AAT which is reported as Doan and Minister for Home Affairs [2019] AATA 169. Summary of background facts The applicant is a 35 year old citizen of Vietnam who first arrived in Australia on 31 December 2013 on a student visa. It is undisputed that, at that time, the applicant intended to enrol in a Master’s degree in Australia but, at the suggestion of the education institution subsequently proposed to enrol in a Bachelor of Business Management. However, because he could not successfully complete the pre-requisite English-language courses he never began that degree. As will shortly emerge, there is an issue whether the applicant completed a Master’s degree in Vietnam before he came to Australia. In February 2015, the applicant married an Australian citizen who already had a daughter from a previous relationship. The daughter is now six years old. The couple also have a daughter together who is now aged three. On 21 January 2016, the applicant pleaded guilty and was convicted of supply of a prohibited drug (cannabis), knowingly taking part in cultivation of a commercial quantity of a prohibited drug (cannabis), and having goods in personal custody suspected of being stolen (which was taken into account). For the first two offences, the applicant received two concurrent terms of imprisonment of 24 months, with a non-parole period of 16 months. The terms of imprisonment commenced on 3 July 2015, when the applicant was first held on remand. In July 2016 (i.e. after his convictions), the applicant was granted a bridging visa E and then, on 8 December 2016, he was granted a class UK, Subclass 820 Partner visa (partner visa) based on his marriage. He was told in a Departmental letter dated 14 July 2016 that he may not satisfy s 501 of the Migration Act 1958 (Cth) (Act) for character reasons but that his application for a bridging visa would not be refused for that reason on that occasion. The applicant was released from prison on 2 March 2016 (in circumstances where there appears to have been a misunderstanding about the length of the non-parole period), and was taken into immigration detention from then until July 2016. His release from immigration detention in July 2016 coincided with the grant to him of a bridging visa. The applicant returned to prison on 15 November 2017 because it was found that he had breached the reporting conditions of his parole. Shortly after the Parole Authority rescinded the revocation of the applicant’s parole on 9 January 2018, the applicant was taken again into immigration detention. It should be noted that shortly before the applicant was released from immigration detention in July 2016, he claimed to have been raped by two men at Villawood Detention Centre. This claim was not disputed by the Minister. On 30 November 2018, the applicant’s partner visa was automatically cancelled pursuant to s 501(3A) of the Act. He sought revocation of that decision and made supporting representations.
Evidence
Evidence Before The Court
I am not persuaded that the AAT fell into jurisdictional error in relation to this matter. The AAT was correct to state that it was a matter for it to assess and determine the risk of recidivism based on all the evidence and material before it, as opposed to the unknown evidence and material which was taken into account by the Departmental visa decision-makers. Ground 3 is rejected. (d) Ground 4: whether probative evidence to support the AAT’s finding that there was a “good chance” the applicant would not be granted a permanent partner visa This ground should also be rejected. First, I accept the Minister’s submission that the AAT drew an available inference from the nature of the applicant’s visa which was mandatorily cancelled, namely that it was a temporary partner visa. Given its temporary nature, the applicant would have to be considered for a permanent partner visa, which necessarily would involve a character assessment. Having already failed the character test (namely on the present occasion), it was rational to infer that there was at least some chance that character concerns may mean the applicant would be unable to obtain a permanent partner visa. The degree of that chance necessarily involved some conjecture, but it was conjecture founded in rational considerations and of the kind that reasonable minds might differ on. In assessing the primary consideration of the best interests of the two children, it was open to the AAT to reason as it did, namely that even if the mandatory visa cancellation was revoked there was a good chance that the applicant would not be granted a permanent partner visa based on his character. Secondly, and in any event, it is difficult to see the materiality of any error on the AAT’s part as alleged by the applicant. The AAT made clear several times that it considered that the best interests of the applicant’s children weighed heavily in favour of revocation of the mandatory visa cancellation (see T[138], [143] and [146]). This conclusion was reached notwithstanding the AAT’s view that it was “tempered somewhat” by the prospect that an application for a permanent partner visa may be rejected on character grounds (see T[145]). I do not think that anything of significance turns on the different language used by the AAT in T[136] (“good chance”) and that used in T[145] (“may still be rejected”). In its overall conclusions, the AAT stated at T[250] that the primary consideration of the best interests of the applicant’s two children “weighs significantly in favour of revocation of the cancellation decision”. Conclusion For these reasons, ground 2 of the amended originating application is upheld, but the other grounds are dismissed. The AAT’s decision dated 18 February 2019 will be set aside and the applicant’s application for review will be remitted to the AAT for reconsideration according to law. The applicant submitted that the reconsideration should be conducted by a differently constituted AAT. Having regard to the nature of the jurisdictional error which has been identified, I consider that there is considerable force in that submission but the Court prefers to leave the issue of the constitution of the AAT to its President. Costs will follow the event.
Decision
Reasons for decision
Secondly, and in any event, it is difficult to see the materiality of any error on the AAT’s part as alleged by the applicant. The AAT made clear several times that it considered that the best interests of the applicant’s children weighed heavily in favour of revocation of the mandatory visa cancellation (see T[138], [143] and [146]). This conclusion was reached notwithstanding the AAT’s view that it was “tempered somewhat” by the prospect that an application for a permanent partner visa may be rejected on character grounds (see T[145]). I do not think that anything of significance turns on the different language used by the AAT in T[136] (“good chance”) and that used in T[145] (“may still be rejected”). In its overall conclusions, the AAT stated at T[250] that the primary consideration of the best interests of the applicant’s two children “weighs significantly in favour of revocation of the cancellation decision”. Conclusion For these reasons, ground 2 of the amended originating application is upheld, but the other grounds are dismissed. The AAT’s decision dated 18 February 2019 will be set aside and the applicant’s application for review will be remitted to the AAT for reconsideration according to law. The applicant submitted that the reconsideration should be conducted by a differently constituted AAT. Having regard to the nature of the jurisdictional error which has been identified, I consider that there is considerable force in that submission but the Court prefers to leave the issue of the constitution of the AAT to its President. Costs will follow the event.
Ratio Decidendi
Legal Principle Established
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