Fattah v Minister for Home Affairs
[2018] FCCA 2010
•6 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FATTAH v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 2010 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – cancellation of Subclass 050 (Bridging (General)) visa – whether the Tribunal committed jurisdictional error in finding that a ground for cancellation was established – whether the Tribunal’s findings lacked an evident and intelligible justification – whether the Tribunal constructively failed to exercise its discretion – no jurisdictional error made out –amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 116, 476 Migration Regulations 1994 (Cth), r. 2.43 |
| Cases cited: Cheryala v Minister for Immigration and Border Protection [2018] FCAFC 43 |
| Applicant: | SHARIF MOHAMMAD ABDUL FATTAH |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 105 of 2018 |
| Judgment of: | Judge Street |
| Hearing date: | 6 July 2018 |
| Date of Last Submission: | 6 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 6 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms R Graycar |
| Solicitors for the Applicant: | Prince Lawyers |
| Counsel for the Respondents: | Mr T Liu |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Grant leave to the applicant to rely upon the amended application filed in Court and the Court dispenses with the need for the electronic filing of the same.
The amended application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 105 of 2018
| SHARIF MOHAMMAD ABDUL FATTAH |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 18 December 2017 affirming a decision of the delegate to cancel the applicant’s Subclass 050 (Bridging (General)) visa.
The applicant came from New Zealand to Australia, most recently, on 15 January 2016 to practice medicine and has lived in New Zealand since 14 September 1996 and has been a medical practitioner since 1982. The applicant was the holder of a Subclass TY444 visa which was cancelled on 16 October 2017 after he had been charged with multiple counts of sexual intercourse without consent and assault with acts of indecency. The applicant was granted a Bridging visa E on 8 November 2017. That bridging visa was cancelled on 30 November 2017.
The Tribunal
The applicant lodged an application for review to the Tribunal on 1 December 2017. By letter dated 5 December 2017, the applicant was invited to attended a hearing before the Tribunal on 8 December 2017. The applicant attended on that date to give evidence and put submissions and was represented by his migration agent and also had four witnesses attend that hearing.
The delegate cancelled the visa because the delegate was satisfied the ground exists in accordance with r 2.43(1)(p)(ii) of the Migration Regulations 1994 (Cth) (“the Regulations”). That provision is, relevantly, as follows:
(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:
(p) in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa—that the Minister is satisfied that the holder:
(ii) has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country; or
The Tribunal identified that the issue in the present case was whether the ground for cancellation is made out and, if so, whether the visa should be cancelled. The Tribunal identified the background circumstances and summarised the evidence. The Tribunal also referred to the submissions made by the applicant’s migration agent representative at the Tribunal hearing and referred to the proposition regarding the grounds of cancellation, which Ms Kinsor stated that:
There is no dispute there are charges against the applicant but there is a dispute as to whether the ground for cancellation arises. In respect of r.2.43(1)(p), whether there is a temporal limitation in that whether it applies to charges at any point in history or whether it applies to charges that arise during the time the person holds the Bridging E Visa.
The Tribunal summarised the evidence of the witnesses that was given orally. The Tribunal summarised the written submissions. The Tribunal correctly identified the requirements of the Act under s 116 in terms of the question of whether or not the ground for cancellation existed. The Tribunal correctly identified the relevant provision and found the applicant has been charged with offences against the law of the State of New South Wales. The Tribunal concluded that having considered the context and purpose of the regulation, the Tribunal was satisfied the wording is clear and unambiguous. The Tribunal was correct to do so.
The Tribunal was satisfied that the ground for cancellation in s 116(1)(g) of the Act existed and then turned to consider and expressly acknowledged that this does not require mandatory cancellation and that the Tribunal must turn to consider whether the power to cancel a visa should be exercised. The Tribunal correctly identified the Direction that had to be taken into account and correctly identified the primary considerations and the secondary considerations. It is clear from paragraph 35 of the Tribunal’s reasons that the Tribunal correctly understood the Direction in relation to the weighing exercise, in respect of the primary considerations being given greater weight than the secondary considerations.
The Tribunal turned to the submissions that were advanced and referred to the strict bail conditions, which it was said the applicant had complied with so far and that he had personal and financial support of a large number of witnesses. The Tribunal referred to placing some weight on the applicant’s evidence in that regard but found the strict bail conditions indicate the serious nature of the charges against him. The Tribunal referred to having considered the evidence presented in the applicant’s case including these particular circumstances, the seriousness of the charges against him and the risk to the Australian community in making a decision.
The Tribunal referred to the submissions that were advanced in relation to assessing the risk to the Australian community and the presumption of innocence. The Tribunal identified that the Department had relied upon the criminal charges in cancelling the visa, which was clearly a reference to the provision that was engaged and the ground of cancellation identified in the reasons. It was in the context of explaining that decision that the Tribunal referred to the provisions being clear in relation to cancellation. I do not understand paragraph 41 as to mean the Tribunal misunderstood its task in the weighing exercise required in accordance with the Direction and that alleged misunderstanding would be contrary to a fair reading of the reasons as a whole. Nor was the Tribunal deflected from doing so, as is apparent from the reasoning of the Tribunal engaging in that weighing process.
The Tribunal also referred to taking into account the evidence by the witnesses who attended the hearing and the statutory declarations in support of the applicant. The Tribunal expressly referred to accepting the witnesses are long-term friends and colleagues who hold the applicant in high regard professionally and personally. It was in that context that the Tribunal referred to those witnesses’ statements being of limited weight in favour of the applicant because all witnesses were of the same gender, similar age and background to the applicant and, for this reason, they would not have been able to comment on relevant aspects of his character. The Tribunal’s reasons in this regard, on a fair reading, are referring to the background identified of being long-term friends and colleagues in relation to professional activity of the applicant. It was open to the Tribunal to refer to this background in relation to the applicant’s character evidence and the finding is not irrational, illogical or unreasonable.
The Tribunal considered other information that was provided in relation to the impact on the applicant and the circumstances of cancellation. The Tribunal was not satisfied that the applicant’s claims outweigh the primary consideration, to which the Tribunal had earlier referred, in deciding whether to cancel the visa given that the prescribed grounds under the Direction were ones that the policy supported being applied.
The Tribunal expressly referred to having considered the applicant’s non‑compliance and the submissions and arguments made in his case. The Tribunal was satisfied that the applicant is a possible risk to the Australian community and, as a result of the Tribunal’s reasons, referred to weighing all the circumstances and affirmed the decision under review concluding that the visa should be cancelled.
Before this Court
The grounds in the amended application are as follows:
1. The Administrative Appeals Tribunal (AAT) committed an error of law amounting to a jurisdictional error in finding that the ground of cancellation was established.
Particulars
Contrary to the conclusion of the AAT, the ground of cancellation arising under s116(1)(g) of the Migration Act 1958 (the Act), and sub-regulation 2.43(1)(p) of the Migration Regulations 1994 (the Regulations) is limited to circumstances in which charges are laid against a non-citizen at a time when the non-citizen holds a Bridging E visa.
2. The AAT’s discretionary decision to affirm the cancellation was unreasonable in that it lacked an evident and intelligible justification and its findings were illogical or irrational.
Particulars
a) The AAT failed to identify a risk posed by the review applicant.
b) The AAT gave limited weight to the testimony of witnesses and found the witnesses to be unable to comment upon “relevant aspects of his character” because the witnesses were of the same gender and similar age and background to the applicant.
3. The AAT’s discretion to cancel the review applicant’s visa miscarried in a manner amounting to a constructive failure to exercise jurisdiction because the Tribunal considered its discretion to be fettered, finding that visa cancellation “is appropriate once a person has been charged with an offence” against a law of the State of New South Wales.
Ground 1
Ms Graycar, on behalf of the applicant, submitted that r 2.43(1)(p)(ii) of the Regulations should be read as requiring the applicant to have been the subject of the charge while the holder of the relevant visa. The ordinary and actual meaning of the provision does not support that construction. The reference “has been charged” has no temporal limitation and there is no reason to read one in. I accept the first respondent’s submission that this Court would, in substance, be reading in the word “is” or reading in the words “when the holder of a bridging visa” to accept the construction advanced by Ms Graycar.
I do not accept the submission that the context of the provision and the words found in r 2.43(1)(OA) of the Regulations advance the construction argument pressed by Ms Graycar in the present case. The purpose of the provision is clearly protective for Australian society. To read the provision in the way contended by Ms Graycar is contrary to that object and the plain words of the provision.
Documents were handed up in relation to the explanatory memorandum. They do not assist, ultimately, in determining the question. I do not consider there to be any ambiguity in the language of the provision. The Tribunal were correct to find the ground for cancellation existed in the circumstances of the present case. Further, to the extent that reference was made to the Direction, the Direction is not secondary to material that assists in the construction of the Regulation.
Further, I find that this Court is bound by what was said by the Full Court of the Federal Court in Cheryala v Minister for Immigration and Border Protection [2018] FCAFC 43.
Ms Graycar sought to distinguish that case on the basis that the Court was not dealing directly with the issue that arises in the present case. Nonetheless, the Court said relevantly at [41] and [42]:
The final feature relied upon, namely that reg 2.43(1)(p)(ii) is not constrained by any time limit gives rise to further concern. As drafted, the regulation applies to any “charge” in respect to an “offence” at any period of time. Without any limitation as to time, the “charge” which could lead to a person’s visa being cancelled could well relate to conduct, either within Australia or overseas, of considerable antiquity.
The potential width of conduct which could fall within reg 2.43(1)(p)(ii), it may be noted, stands in stark contrast to the identification of conduct of relevance to other provisions within the Migration Act, including (for example) statutory references to:
a “substantial criminal record” (e.g., s 501(6)(a)); and
a person having been “convicted of an offence” in particular circumstances or of a particular kind (e.g., s 501(6)(aa) and (ab)).
The selection of one criteria rather than another as the occasion for an exercise of statutory power has thus been a deliberate choice made by the Commonwealth Legislature, at least in respect to s 501, as to the most apposite criteria of relevance to the particular class of decision under consideration. Subject to the manner in which a criteria is defined and that criteria being proportionate to the object and purpose of the Act and the statutory power pursuant to which the criteria is prescribed, it initially remains a matter for the Commonwealth Legislature to select one or other of the criteria elsewhere employed or, indeed, to prescribe a particular criteria peculiarly apposite to the decision to be made.
I regard the statements identified by the Court in paragraphs [41] and [42] as identifying the absence of a time constraint which is, I find entirely consistent with the reasoning adopted by the Tribunal. No jurisdictional error as alleged in ground 1 is made out.
Ground 2
In relation to ground 2, Ms Graycar submitted that the Tribunal had not properly identified the nature of the risk. The Tribunal clearly identified the nature of the risk, that is, the nature of the risk of the applicant to the Australian community. That was a risk taken into account and it was open to the Tribunal to take it into account.
I do not accept the submissions advanced that the Tribunal failed to properly identify the nature of the risk. The submission that it was not reasonable to make a finding in relation to there being such a risk is without substance. The applicant had been the subject of serious charges with strict bail conditions identified by the Tribunal which was taken into account by the Tribunal in its reasons. The Tribunal’s reasons in respect of the nature of the risk bring to the Australian community were not irrational, illogical or otherwise unreasonable. Ground 2(a) fails to make out any jurisdictional error.
In relation to ground 2(b), Ms Graycar submitted that the reasons of the Tribunal in referring to the applicant’s gender, age and background had a potential racist overtone. No such overtone on a fair reading arises in the Tribunal’s reasons. The Tribunal was referring to the witnesses’ background as being long‑term friends and colleagues. It was open to the Tribunal in the context of its reasons to take into account what weight should be given to those witnesses’ comments as to character in circumstances of being long‑term friends and colleagues.
Moreover, it is apparent on the evidence before the Court that the Tribunal had referred to the position that there had been bail provided for the applicant and each of the witnesses were persons who had provided bail amounts for the applicant. It was open to the Tribunal in those circumstances to form the view that those witnesses’ evidence in relation to the applicant’s character should be given limited weight.
Ms Graycar sought to emphasise that there was another person who had not attended as a witness, in respect of which the Tribunal referred to giving some weight to that character evidence.
That does not support any irrationality or unreasonableness in the reasoning of the Tribunal. The reasoning of the Tribunal in respect of character evidence was not unreasonable or irrational and does not give rise to any jurisdictional error. No jurisdictional error is made out by ground 2(b).
Ground 3
In relation to ground 3, Ms Graycar submitted, by reference to paragraph 41, that the Tribunal had misunderstood the nature of the Direction and had fettered itself and applied an approach that the visa must be cancelled because of the existence of criminal charges.
A fair reading of the Tribunal’s reasons does not support any such construction. On a fair reading of the Tribunal’s reasons, for logical and rational reasons summarised above, the Tribunal understood its task and understood the nature of the primary and secondary considerations identified in the Direction. It was open to the Tribunal to reason in the way it did and the decision cannot be said to be unreasonable. No jurisdictional error is made out by ground 3.
Conclusion
As the amended application fails to make out any jurisdictional error, the amended application is dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 9 August 2018
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