Downes v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Downes v Minister for Home Affairs [2020] FCA 54

Review of: Application for Judicial Review of the Administrative Appeals Tribunal decision, delivered on 27 March 2019 by Member M Kennedy
File number: SAD 98 of 2019
Judge: CHARLESWORTH J
Date of judgment: 5 February 2020
Catchwords:

MIGRATION – judicial review of decision of Administrative Appeals Tribunal affirming a decision not to revoke the cancellation of a visa – Tribunal bound by a direction issued under s 499 of the Migration Act 1958 (Cth) to consider the best interests of minor children in Australia – non-citizen’s partner having four children from prior relationships – children residing in state care – Tribunal aware of the existence of the children and other limited information concerning their circumstances – interests of children not advanced in submissions in support of the non-citizen’s case on the review – whether Tribunal erred by failing to determine whether revocation of the cancellation of the visa was in the best interests of the children – whether any such error was jurisdictional having regard to the paucity of evidence about the children’s circumstances

MIGRATION – whether Tribunal committed jurisdictional error by misapplying a direction issued under s 499 of the Migration Act 1958 (Cth) in relation to the strength and nature of a non-citizen’s ties to Australia

Legislation: Migration Act 1958 (Cth) ss 474, 476A, 499, 500, 501, 501CA
Cases cited:

AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503

Craig v South Australia (1995) 184 CLR 163

EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20

FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990

Hong v Minister for Immigration and Border Protection & Anor [2019] HCATrans 230

Hong v Minister for Immigration and Border Protection [2019] FCAFC 55

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123

Minister for Home Affairs v Buadromo [2018] FCAFC 151; 362 ALR 48

Minister for Immigration and Border Protection v DRP17 [2018] FCAFC 198

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

Paerau v Minister for Immigration and Border Protection (2014) 219 FCR 504

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203

Date of hearing: 4 September 2019
Date of last submissions: 20 December 2019
Registry: South Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 84
Counsel for the Applicant: Mr H Glenister
Solicitor for the Applicant: Cathal Smith Legal Pty Ltd
Counsel for the First Respondent: Mr Johnson
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice
Table of Corrections
25 February Paragraph 1, line four, replace “including acts of sexual assault and violence” with “including acts of violence”

ORDERS

SAD 98 of 2019
BETWEEN:

AARON DOWNES

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First…

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Details
Case
[2020] FCA 54
Decision Date

CaseChat Overview and Summary

Downes v Minister for Home Affairs involved the father of three children, each from different relationships, seeking judicial review of a decision made by the Administrative Appeals Tribunal (AAT) to affirm a decision not to revoke the cancellation of his visa. The AAT was directed under section 499 of the Migration Act 1958 (Cth) to consider the best interests of minor children in Australia, including the children from prior relationships residing in state care. The legal issues in the case revolved around whether the AAT erred in not determining whether the revocation of the visa cancellation was in the best interests of the children, and if this error was jurisdictional given the limited evidence about the children’s circumstances. Additionally, the case examined whether the AAT misapplied a direction concerning the strength and nature of ties to Australia.

The court found that the AAT misunderstood a direction issued under section 499, specifically clause 14.2(1) which deals with the strength, nature, and duration of ties to Australia. The AAT thought it needed to give less weight to how long the non-citizen had resided in Australia if there had been limited positive contribution to the Australian community. However, clause 14.2(1) provides that where there was positive contribution to the Australian community, there should be an increase in the weight given to ‘how long the non-citizen has resided in Australia’. The AAT’s error in understanding this clause led to a failure to form a state of satisfaction as to whether there was another reason why the visa cancellation decision should be revoked, which is a jurisdictional error. Moreover, a failure to comply with a lawful direction made under section 499 can constitute jurisdictional error.

The court allowed the application for judicial review and quashed the AAT’s decision. It also issued a writ of mandamus directing the AAT to determine the applicant’s application for review according to law. This ensures that the AAT considers the matter afresh, correctly applying the law and considering the best interests of the children based on an accurate understanding of the statutory directions.

Orders

Orders of the court

1. The application is allowed.

2. A writ of certiorari issue directed to the second respondent, quashing its decision made on 27 March 2019.

3. A writ of mandamus issue directed to the second respondent requiring it determine the applicant’s application for review under s 500(1)(ba) of the Migration Act 1958 (Cth) according to law.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Under Pt C, the three primary considerations informing the exercise of the discretion to revoke the mandatory cancellation of a visa are the protection of the Australian community from criminal and other serious conduct, the best interests of minor children in Australia and the expectations of the Australian community. In relation to minor children, [13.2] requires:13.2 Best interests of minor children in Australia affected by the decision(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.(4)In considering the best interests of the child, the following factors must be considered where relevant:a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;e)Whether there are other persons who already fulfil a parental role in relation to the child;f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; andh)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct. Mr Downes is the natural father of three children: a daughter from a previous relationship with Ms A, a son from a previous relationship with Ms B and a daughter from his current relationship with Ms C. They are referred to in the reasons of the Tribunal as Child A, Child B and Child C respectively. Each of them is given consideration in the Tribunal’s reasons and there is no suggestion that the Tribunal misapplied [13.2] of Direction 79 in respect of any one of them. The Tribunal considered it to be in the best interests of each of Child A, Child B and Child C that the cancellation decision be revoked. However, little weight was given to the best interests of Child A or Child B. The Tribunal did not consider that there would be any tangible effect on those children arising from the deportation of Mr Downes because he did not have any meaningful contact or existing relationship with them.

Ratio Decidendi

Legal Principle Established

Paragraph [14.2] of Direction 79 provides:14.2 Strength, nature and duration of ties(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:i.less weight should be given where the non-citizen began offending soon after arriving in Australia; andii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely). The principles to which [14.2(1)] refers are, relevantly:6.3 Principles…(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.…(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused. The parties are not in dispute as to the proper construction of [14.2]. The agreed position is that the consideration in [14.2(a)] (length of time residing in Australia) is subject to the requirement that it be afforded less weight where the non-citizen began offending soon after arriving in Australia but the consideration in [14.2(b)] (strength, nature and duration of ties) is subject to no such requirement. That construction is consistent with authority and with the ordinary meaning of the text of Direction 79 as a whole, including the principles stated in [6.3]. As Thawley J said in FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990, a decision-maker may fall into jurisdictional error if it proceeds on the misapprehension of [14.2]:59The Tribunal’s language, read fairly in accordance with the principles earlier identified, indicates that the Tribunal misunderstood cl 14.2(1). The Tribunal thought that paragraph (a)(ii) required it to give less weight to how long a non-citizen had resided in Australia if there had been limited positive contribution to the Australian community. Paragraph (a)(ii) does not operate in that way. It provides that, where there was positive contribution to the Australian community, there should be an increase in the weight given to ‘how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child’. Paragraph (a)(ii) did not require a decrease in the weight to be given to the length of residence where a positive contribution was limited or absent.…63The Tribunal was required to form a state of satisfaction as to whether there was ‘another reason why’ the visa cancellation decision should be revoked reasonably and on a correct understanding of the law: Suleiman at [30] (Colvin J), citing: Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [54]; Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [33] and Graham v Minister for Immigration and Border Protection [2017] HCA 33 at [57]. By reason of the error identified at [0] above, it failed to do so. I note also that a failure to comply with a lawful direction made under s 499 can constitute jurisdictional error: Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112 at [34]-[35] (Mortimer J); FKP18 v Minister for Immigration and Border Protection [2018] FCA 1555 at [34] (Kenny J).