DTM20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor
[2021] FedCFamC2G 160
•19 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DTM20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2021] FedCFamC2G 160
File number(s): BRG 447 of 2020 Judgment of: JUDGE EGAN Date of judgment: 19 October 2021 Catchwords: MIGRATION – Cancellation of bridging visa because applicant had failed to file an application for review of the protection visa decision prior to the grant of the bridging visa – no error established on the part of the Tribunal – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 48A(1), 48B(1) and (2), 116(1)(aa).
Migration Regulations 1994 (Cth) Sch 2, cl 050.212(3A)
Cases cited: DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor [2019] FCCA 2951.
MZAPC v Minister for Immigration and Border Protections [2021] HCA 17.
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332Division: Division 2 General Federal Law Number of paragraphs: 29 Date of last submission/s: 13 October 2021 Date of hearing: 13 October 2021 Applicant: The Applicant appearing in person on his own behalf Solicitor for the First Respondent: Ms C. Allen of Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
BRG 447 of 2020 BETWEEN: DTM20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTUAL AFFAIRS
First Respondent
ADMINISTRATIVE APPELAS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
19 OCTOBER 2021
IT IS ORDERED THAT:
1.The Originating Application for Review filed on 12 August 2020 be dismissed.
2.The Applicant pay the First Respondent’s costs of and incidental to the Application for Review, fixed in the amount of $6, 500.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review 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 EGAN:
Introduction
The applicant is a citizen of Sri Lanka, who arrived in Australia on 10 October 2012 as an unauthorised maritime arrival.
On 3 March 2016, the applicant lodged an application for a Safe Haven Enterprise (Subclass 790) Visa (SHEV).
On 23 September 2016, a delegate of the Minister refused to grant the visa to the applicant. The matter was referred to the Immigration Assessment Authority (‘the Authority’) for review of the decision of the delegate.
On 9 November 2016, the Authority affirmed the decision of the delegate.
On 1 May 2019, the applicant applied for a Bridging Visa E (Class WE) (Subclass 050) visa on the basis that he had sought judicial review of the decision of the Authority. The visa was granted to the applicant on 13 May 2019.
On 21 November 2019, the applicant was sent a notice of intention to consider cancellation (‘NOICC’) of the visa on the basis that the applicant had not made an application for review at the time of the grant of the Bridging visa as required under cl. 050.212(3A)(b)(i) of the Migration Regulations 1994 (Cth) (‘the Regulations’). [1]
[1] Court Book (CB) p 27 – 30.
Clause 050.212(3A) of the Regulations relevantly provided as follows:
“050.212
(1) …
…
(3A) An applicant meets the requirements of this subclause if:
(a) the applicant has made, in Australia, a valid application for a substantive visa of a kind that can be granted if the applicant is in Australia; and
(b) either:
(i)the applicant has applied for judicial review of a decision to refuse to grant the visa and the judicial proceedings (including any proceedings on appeal) have not been completed; or
(ii)the Minister has applied for judicial review of a decision in relation to a refusal to grant the applicant's substantive visa, and the judicial review proceedings (including any proceedings on appeal) have not been completed.”
On 26 November 2019, a representative of the applicant provided a response to the NOICC. [2]
[2] CB p 35.
On 6 December 2019, a delegate of the Minister cancelled the visa under s. 116(1)(aa) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that the applicant did not satisfy cl. 050.212(3A)(b)(i) of the Regulations. [3]
[3] CB p 51 – 58.
Section 116(1)(aa) of the Act relevantly provided 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:
(a) …
(aa) the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist.”
On 16 December 2019, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for review of the delegate’s decision.
On 17 July 2020, the Tribunal affirmed the delegate’s decision to cancel the applicant’s visa.
Decision of Tribunal
At [9] of its reasons, when referring to the High Court proceedings filed on behalf of the applicant, the Tribunal stated that “ … this appeal was against the department’s decision not to refer a section 48B request to the Minister.” Section 48B(1) and (2) relevantly provided as follows:
“Section 48B Minister may determine that section 48A does not apply to non-citizen
(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.
(2) The power under subsection (1) may only be exercised by the Minister personally.”
The application filed by the applicant in the High Court Registry was not the filing of an application for judicial review of the refusal by the Authority to grant a protection visa to the applicant. Rather, the application filed in the High Court Registry was an application for review of the Department’s decision not to refer a s. 48B request to the Minister. At [22] – [23] of its reasons, the Tribunal said as follows:
“[22] In the applicant's case, he had lodged an application in the High Court for the review of a departmental decision not to refer a s.48B request to the Minister.
[23] The applicant therefore did not meet the requirements of clause 050.212(3A)(b)(i). …
The Tribunal has considered the past and present behaviour of the visa holder towards the department”
The operation of s. 48B of the Act was conditioned upon the non-operation of s. 48A of the Act. Section 48A(1) of the Act relevantly provided as follows:
“Section 48A No further applications for protection visa after refusal or cancellation
(1) Subject to section 48B, a non‑citizen who, while in the migration zone, has made:
(a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or
(b)applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);
may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non‑citizen is in the migration zone.”
The High Court proceedings commenced by the applicant did not constitute an application for review as countenanced by, and required by, cl. 050.212(3A)(b)(i) of Schedule 2 to the Regulations. The Tribunal, at [23] of its reasons, had clearly found that the applicant had not met the requirements of that clause. Such finding was open to it.
Grounds for Review
At the hearing before the Court, the applicant relied upon the Originating Application for Review, the grounds of which were as follows:
“Grounds of application
1. The Administrative Appeals Tribunal (hereinafter referred as ‘the Tribunal’) made a jurisdictional error by affirming the decision made on 6 December 2019 by the delegate of the Minister (First Respondent) under section 116 of the Migration Act 1958 (the Act).
Particulars
a. The cancellation of the Bridging visa E was made under section 116 of the Act on 6 December 2019.
b. The Minister (First Respondent) may cancel a visa under section 116 of the Act if the Minister is satisfied that certain grounds specified in that provision are made out;
c. The Tribunal failed to decide whether grounds for cancelling the Bridging visa E was made out, if so, whether the Bridging visa E should be cancelled under section 116 of the Act; and
d. In the applicant's case the Bridging visa E was granted because of a particular fact or circumstances that did exist and continued to exist at the time of granting the said Bridging visa E.
2. The Tribunal failed to consider the vital facts and the integer of the applicant's claims in seeking protection in Australia.
Particulars
a. The applicant's arrival to Australia and the past behaviour are relevant.
b. The applicant came to Australia due to the persecution including arrest, torture in detention he faced in Sri Lanka;
c. The applicant always complied with the conditions of his bridging visa E and been truthful to the Department of Home Affairs (formerly Department of Immigration and Border Protection);
d. The Tribunal failed to consider that the applicant’s presence in Australia is not a risk or may be, or would be a risk in the health, safety or good order of the Australian community or a segment of the Australian community under (section 116(1)(e)(i) or the health or safety of any individual or individuals under (section 116(1)(e)(ii); and
e. The Tribunal failed to look into whether any international obligations such as the UN Convention Against Torture (CAT) would be breached as a result of the cancellation of the Bridging visa E.
3. The Tribunal failed to afford an adequate hearing in violation of the Procedural Fairness Rule.
Particulars
a. The Tribunal hearing was conducted on 16 July 2020 over the telephone for a short time;
b. During the time of the hearing there was COVID-19 pandemic in Queensland and the applicant was in stress;
c. The Tribunal instead of proceeding during the pandemic due to COVID-19 postponed the hearing until such time the COVID-19 pandemic settled down for the applicant to be able to participate in the hearing fully devoid of stress; and
d. The Tribunal thereby failed to grant an adequate opportunity and proceed with the hearing on 16 July 2020 and made a decision on 17 July 2020 the next day affirming the decision of the delegate of the Minister (First Respondent) cancelling the applicant's Bridging visa E. at {[paragraph 36] by the Tribunal Member Ann Duffield.”
Consideration of Grounds of Review
At [5] – [11] inclusive of its reasons, when considering whether a ground for cancellation of the Bridging Visa existed or not, the Tribunal said as follows:
“CONSIDERATION OF CLAIMS AND EVIDENCE
[5] Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(aa). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
s. 116(1)(aa) – Fact or Circumstance for visa grant did not exist
[6] A visa may be cancelled under s.116(1)(aa) if the Minister is satisfied that the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist.
[7] The applicant was granted a Bridging Visa E on 13 May 2019 on the basis that the delegate understood that the applicant had applied for judicial review of a decision to refuse the grant a substantive visa. However, in November 2019 the department identified that this was not the case and wrote to the applicant notifying him of its intention to cancel the visa.
[8] The applicant responded and maintained that he had, in fact, a judicial review at the High Court and cited the case Plaintiff S56/2019 which was dismissed on 22 May 2019. The applicant then filed an Application for Leave to Appeal from the whole of the Order and Judgement on 19 June 2019.
[9] However, this appeal was against the departments decision not to refer a s.48B request to the Minister. There was, therefore, no appeal for a review of the refusal to grant a visa as required under clause 050.212(3A)(b)(i). The visa was therefore granted incorrectly as the particular fact or circumstances for the grant of the visa did not exist.
[10] The applicant currently holds a Bridging Visa E, in relation to this review, number 8269553759229 granted on 10 January 2020 and still in effect.
[11] For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(aa) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.”
The Tribunal, at [12] – [31] of its reasons, considered whether or not it ought to exercise its discretion to overturn the decision of the Department to cancel the applicant’s bridging visa. In that regard, the Tribunal found, at [31] of its reasons, that the cancellation of the applicant’s visa would not breach Australia’s international non-refoulement obligations. The Tribunal had had regard to the applicant’s ties to the community and his church, as well as to the fact that he had been supported by close friends who had given him financial and emotional support.
It was noted by the Tribunal that the Authority had affirmed the decision of the delegate not to grant to the applicant a SHEV on 23 September 2016. [4] That decision was made on the basis that the applicant did not meet the relevant criteria for refugee protection or complementary protection under either ss. 36(2)(a) or 36(2)(aa) of the Act.
[4] [13] of the reasons of the Tribunal.
At [31] of its reasons, the Tribunal found as follows:
“[31] As he has been found not to engage Australia's protection obligations the Tribunal is not satisfied that the cancellation of the applicant's visa would breach Australia's international obligations, particularly its non-refoulement obligations.
The Tribunal has taken into considered whether, if it's a permanent visa, whether the former visa holder has strong family, business or other ties in Australia”
None of the grounds of review particularise any basis for this Court granting the Originating Application for Review.
Each of the grounds of review fail to articulate, in a meaningful way, a claim able to be responsive to the Tribunal’s decision to affirm the decision of the Department to cancel the applicant’s bridging visa. Each of the grounds are so vague and without particularity as to warrant their respective dismissal. [5]
[5] DUN16 v Minister for Immigration & Anor and DUO16 v Minister for Immigration & Anor [2019]
More particularly, though:
(a)Ground 1(c) asserted that the Tribunal had failed to decide whether grounds for cancelling the bridging visa had been made out, and whether the bridging visa should be cancelled under s. 116 of the Act. The Tribunal found at [22] – [23] of its reasons that there were clear grounds for cancellation of the visa by reason of the applicant’s non-compliance with cl. 050.212(3A)(b)(i). There is no merit to such ground.
(b)Ground 2 goes to matters relevant to a consideration of whether or not the applicant was a refugee, or whether the applicant ought to be given complementary protection. Those questions were not before the Tribunal, as they had already been dealt with by the Immigration Assessment Authority in its decision dated 9 November 2016. There is no merit to such ground.
(c)Ground 3 asserted procedural unfairness. The onus was on the applicant to adduce evidence of any alleged unfairness. The applicant failed to do so. In MZAPC v Minister for Immigration and Border Protections [2021] HCA 17, Kiefel CJ, Gageler, Keane and Gleeson JJ upheld the principle articulated in SZMTA that an applicant bears the onus of proving that a breach of procedural fairness was material to the outcome of an administrative decision, at [60], as follows:
“[60] Accordingly, the decisions on which the appellant relies provide no support for the shift in onus for which he contends. Where materiality of a breach of an express or implied condition of a conferral of statutory decision-making authority is in issue in an application for judicial review of a decision on the ground of jurisdictional error, the onus of proving by admissible evidence on the balance of probabilities historical facts necessary to satisfy the court that the decision could realistically have been different had the breach not occurred lies unwaveringly on the plaintiff.”
There is no evidence on the face of the record that the applicant was denied procedural fairness. In such circumstances, the ground of review has not been made out and is without merit.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Tribunal be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Originating Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Dated: 19 October 2021
FCCA 2951 at [4] – [9].
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