EIX18 v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2024] FedCFamC2G 706

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

EIX18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 706  

File number: PEG 167 of 2023
Judgment of: JUDGE LADHAMS
Date of judgment: 8 August 2024
Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal affirming a decision to cancel the applicant’s bridging visa – where the applicant seeks to also challenge the delegate’s decision under the ancillary or original jurisdiction of the Court – whether the Court has jurisdiction to review the delegate’s decision – the Court does not have jurisdiction to review the delegate’s decision – whether the Tribunal constructively failed to exercise its jurisdiction, or denied the applicant procedural fairness by misconstruing the evidence – whether the Tribunal denied the applicant procedural fairness – whether the Tribunal decision and reasoning was unreasonable – whether the Tribunal asked itself the wrong question or took into account an irrelevant consideration – no jurisdictional error in the Tribunal decision – application dismissed.
Legislation:

Constitution s 75

Migration Act 1958 (Cth) ss 48B, 116, 119, 123, 124, 195A, 417, 474, 476, 476A, 477, 501, 501CA

Migration Regulations 1994 (Cth) reg 2.43, Sch 2, cll 050.212, 050.512

Cases cited:

BJO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 281 FCR 594; [2020] FCAFC 189

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1; [1979] FCA 21

EIX18 v Minister for Immigration [2020] FCCA 619

HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121; [2019] FCAFC 202

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29

Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317

Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

Pearson v Minister for Home Affairs (2022) 295 FCR 177; [2022] FCAFC 203

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 96 ALJR 497; [2022] HCA 17

Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 408 ALR 503; [2023] FCAFC 10

VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117

Verma v Minister for Immigration and Border Protection (2018) 262 FCR 514; [2018] FCAFC 87

Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22; [2015] HCA 51

XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 256; [2022] FCAFC 6

Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344; [2004] FCAFC 248

Division: Division 2 General Federal Law
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AGLC
EIX18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 706
Case
[2024] FedCFamC2G 706
Decision Date

CaseChat Overview and Summary

The applicant, a non-citizen who entered Australia as an unauthorised maritime arrival, sought judicial review of a decision by the Administrative Appeals Tribunal affirming the cancellation of his bridging visa. The Tribunal's decision followed the Minister's delegate's decision to cancel the applicant's visa under the Migration Act. The applicant argued that the Tribunal constructively failed to exercise its jurisdiction or denied him procedural fairness by misconstruing the evidence. The applicant also claimed that the Tribunal decision and reasoning were unreasonable and that it had asked itself the wrong question or taken into account irrelevant considerations.

The court considered whether it had jurisdiction to review the delegate's decision, which it concluded it did not. The court noted that section 476(2)(a) of the Migration Act explicitly excludes the court's jurisdiction to review primary decisions, such as the delegate's decision in this case. The applicant's reliance on cases where the Federal Court exercised jurisdiction under section 476A of the Migration Act was found to be misplaced, as those cases involved different statutory contexts. The court found that the statutory regimes in the cited cases operated differently from the one in this case, where the delegate made a mandatory decision to cancel the applicant's visa.

The court further found that the Tribunal had not constructively failed to exercise its jurisdiction or denied the applicant procedural fairness by misconstruing the evidence. The Tribunal's reasons showed that it had considered the evidence properly and did not rely on the misconstrued evidence in reaching its conclusions. The court also determined that the Tribunal's decision and reasoning were not unreasonable and that it had not asked itself the wrong question or taken into account irrelevant considerations. The Tribunal's assessment of the applicant's risk of reoffending was based on the evidence before it, including the sentencing remarks, and was a valid consideration in its decision-making process.

The application for judicial review was dismissed, and the decision of the Administrative Appeals Tribunal affirming the cancellation of the applicant's bridging visa was upheld. The court found that the Tribunal had exercised its jurisdiction correctly and had made a lawful and reasonable decision based on the evidence before it. The court did not order any further action, as the applicant's challenge to the Tribunal's decision was unsuccessful.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The application for judicial review is therefore dismissed.FACTUAL BACKGROUND AND VISA CANCELLATION DECISION The applicant’s arrival in Australia, grants of bridging visas and protection visa application The applicant is a non-citizen who entered Australia as an unauthorised maritime arrival on 29 June 2013. Following his arrival, he was granted a number of bridging visas which permitted him to remain in the community. On 21 April 2017 the applicant applied for a protection visa, which was refused by a delegate of the Minister on 10 October 2017. The Authority affirmed the delegate’s decision on 19 July 2018. The applicant sought judicial review of the Authority decision and, on 19 November 2018, the applicant applied for a further bridging visa. The applicant was granted the bridging visa on the basis that he satisfied cl 050.212(3A) in Sch 2 to the Migration Regulations 1994 (Cth) (Regulations) in circumstances where he made a valid application for a substantive visa that can be granted in Australia and had applied for judicial review of a decision refusing to grant the visa, with such judicial review proceedings having not been completed. On 19 March 2020 the applicant’s judicial review application was dismissed: EIX18 v Minister for Immigration [2020] FCCA 619. The applicant’s charge and conviction for an offence In early May 2019 the applicant was charged with the offence of ‘sexual penetration without consent’, with the date of the offence being 14 April 2019. Following a guilty plea, the applicant was convicted of this offence on 19 March 2020 and sentenced to a term of imprisonment of three years and nine months.The cancellation of the applicant’s bridging visa and review by the Tribunal On 9 May 2019, just days after the applicant was charged with the offence, the applicant was given a notice of intention to consider cancelling a visa in respect of his bridging visa. The document in evidence before the Court shows that the applicant signed the notice to acknowledge that he had received it at 10:42am on 9 May 2019. Also on 9 May 2019 a delegate of the Minister made a decision to cancel the applicant’s bridging visa under s 116(1)(g) of the Migration Act. The decision record records that: (a)the applicant received the notice of intention to consider cancelling his visa at 10:42am, which is consistent with the time recorded on his acknowledgement of receiving the notice;(b)an interview with the delegate commenced at 10:52am; and (c)the delegate made the decision at 11.00am. On 20 June 2023 the Department notified the applicant of the decision to cancel his bridging visa. The notification letter records that a notice of cancellation letter dated 9 May 2019 had been given to the applicant by hand, but the Department had assessed the applicant’s case and found that he had not been correctly notified of the decision to cancel his bridging visa. On 21 June 2023 the applicant applied to the Tribunal for merits review of the delegate’s decision to cancel his visa. The applicant was represented by a lawyer throughout the review.

Evidence

Evidence Before The Court

It is, however, relevant to have regard to what the Tribunal said in its reasons the significance attached to. The applicant’s submissions in relation to the materiality of the Tribunal’s misunderstanding of the evidence on this aspect of its credibility findings are premised on the understanding that the Tribunal placed heightened significance on the applicant’s evidence that he was drunk on the night of the sexual penetration without consent because of its misunderstanding that he the applicant had been approved for refugee status. This is not an accurate reading of the Tribunal reasons. The Tribunal did not say expressly in its reasons that the applicant being approved for refugee status gave heightened significance to his evidence that he was drunk on the night of the sexual penetration without consent. Rather, the Tribunal said that it gave heightened significance to the question posed by the Tribunal. It was the applicant’s answer to the Tribunal’s question, the additional evidence that he gave at a second hearing convened by the Tribunal, and the inconsistencies that the Tribunal perceived between that evidence and the information before it in relation to the evidence relevant to the sentencing of the applicant that caused the Tribunal to make the findings it did at [55] of its reasons, namely:The Tribunal prefers to give significantly greater weight to the judge’s sentencing remarks than, for instance, the opinion of his remediation assesses and the WA parole board findings that he is unlikely to reoffend. In saying this the Tribunal does not wish in any way to diminish the professional standing of the assessors. However, the applicant has claimed to the whole world that he is truly remorseful for his actions. Yet under the recent circumstances elaborated above (post incarceration) the Tribunal remains unconvinced of that claim and gives it little positive weight. On the contrary, the Tribunal gives the important consideration of whether the applicant will reoffend maximum weight in favour of cancellation. I accept the Minister’s submission that the Tribunal’s misunderstanding of the applicant having been granted refugee status was, when considered in the context of its reasoning at [42]-[50] of its reasons, of no bearing on the conclusions reached by the Tribunal in respect of the applicant claiming to have been drunk at the time of his offending behaviour. Nor did it have any bearing on the Tribunal’s finding at [55]. When the Tribunal’s reasons are read fairly and as a whole, the applicant has not identified anything in the Tribunal’s reasons to indicate that the Tribunal’s misunderstanding that the applicant had been approved for refugee status was taken into account by the Tribunal in assessing the applicant’s credibility, or otherwise impacted on that assessment, in particular in relation to its assessment of the impact of the applicant’s evidence that he was drunk on the night of the sexual penetration without consent.

Decision

Reasons for decision

The starting point for considering the Court’s jurisdiction is s 476 of the Migration Act, which relevantly provides:(1)Subject to this section, the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. (2)The Federal Circuit and Family Court of Australia (Division 2) has no jurisdiction in relation to the following decisions: (a)a primary decision; ……(4)In this section:primary decision means a privative clause decision or purported privative clause decision:(a)that is reviewable under Part 5 or Part 7 or section 500 (whether or not it has been reviewed); … It is apparent from this that the Court does not have original jurisdiction to review the delegate’s decision. The applicant’s argument is to the effect that s 476(2)(a) of the Migration Act does not preclude the Court from having ancillary jurisdiction to review the delegate’s decision. I do not accept that argument. It is not consistent with the plain words of s 476(2)(a) of the Migration Act which state that the Court does not have jurisdiction to review a primary decision. Further, none of the authorities relied upon by the applicant, when considered in their proper factual and statutory context, stand for the proposition that this Court has ancillary jurisdiction to review the delegate’s decision to cancel the applicant’s bridging visa. There are two important features of each of XJLR, Pearson and Tapiki that show they are not directly applicable in this case. The first is that in each of the cases the Federal Court was exercising jurisdiction under s 476A of the Migration Act, which relevantly provides:(1)Despite any other law, including section 39B of the Judiciary Act 1903 in section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:…(b)the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or……(2)Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution. I note that the wording of the relevant parts of ss 476 and 476A of the Migration Act is quite different and that s 476A(1) expressly limits the Federal Court’s original jurisdiction, whereas s 476(2)(a), which denies this Court jurisdiction to review a primary decision, does not expressly distinguish between the Court’s original jurisdiction or other jurisdiction. Second, the statutory regime under consideration in the three cases referred to by the applicant operates quite differently to the relevant statutory regime in the present case. Each of the three Federal Court cases involved a situation in which a delegate of the Minister had made a mandatory decision under s 501(3A) of the Migration Act to cancel the respective applicant’s visa, the applicant sought revocation of the cancellation decision under s 501CA of the Migration Act, and the Court was considering a decision in respect of the refusal to revoke the mandatory cancellation of the applicant’s visa.

Ratio Decidendi

Legal Principle Established

Ground 1 of the amended application reads:The decision of the first respondent on 9 May 2023 purporting to cancel the applicant’s Bridging E (subclass 050) visa granted on 19 November 2018 (BVE) was vitiated by jurisdictional error in that the jurisdictional precondition at s 124(2) of the Migration Act1958 (Cth) of the first respondent’s power to cancel under s 116 of the Migration Act was not fulfilled, because the first respondent failed to give the applicant the invitation to comment at interview contemplated by s 121, or required the comment at interview within an unreasonably short period of time.Particulars 1.1The first respondent gave the applicant a written notice of intention to cancel on 9 May 2019 at 10:42 am inviting the applicant to comment at an interview commencing at 10:52 am, and proceeded to cancel the BVE not later than 11 am.1.2The first respondent knew that the applicant required an interpreter (and in fact arranged for one), and knew that the notice of intention to consider cancellation was a 4-page, double-column, small script and densely-worded document that was practically impossible for the applicant to comprehend in 10 minutes. It is immediately apparent that the applicant by this ground is seeking review of the delegate’s decision, rather than the Tribunal decision. A question arises as to whether the Court has jurisdiction to conduct a review of the delegate’s decision and both parties addressed this in their submissions.Applicant’s submissionsThe Court’s jurisdiction In addressing jurisdiction in his first written submissions, the applicant focused on his argument that the Court has ancillary jurisdiction to review the delegate’s decision. The applicant submitted that under s 476 of the Migration Act, the judicial review jurisdiction of this Court is assimilated to that of the High Court under s 75(v) of the Commonwealth Constitution. The applicant submitted that where a Chapter III Court’s original jurisdiction to review decision is engaged, the ancillary jurisdiction reaches to collateral review, and cited in support of this proposition the cases of XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 256; [2022] FCAFC 6 (XJLR) at [79]-[87] (Rares J) and [95]-[96] (Yates J); Pearson v Minister for Home Affairs (2022) 295 FCR 177; [2022] FCAFC 203 (Pearson) at [57]; and Tapiki v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 408 ALR 503; [2023] FCAFC 10 (Tapiki) at [13]. In reply written submissions, the applicant advanced a submission that the Court had original jurisdiction to review the conduct preparatory to the delegate’s decision. He submitted that the High Court held in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 (SZSSJ) that this Court had original jurisdiction to make declarations that visa applicants had been denied procedural fairness where the decision the subject of the declaration fell within the carve out of original jurisdiction under s 476(2)(d) of the Migration Act. The delegate’s conduct of giving just 10 minutes notice of an interview at which the delegate would consider cancellation of the applicant’s visa could be properly understood as a privative clause decision within the meaning of s 474(3)(h), being conduct preparatory to the making of a decision, including the taking of evidence of the holding of an inquiry or investigation. The applicant submitted that, on the authority of SZSSJ, this Court has original jurisdiction.