FCFY v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

FCFY v Minister for Home Affairs [2019] FCA 1222

Review of: Application for an extension of time to seek judicial review of the AAT decision delivered on 8 November 2018 by Dr L Bygrave
File number(s): NSD 852 of 2019
Judge(s): THAWLEY J
Date of judgment: 5 August 2019
Legislation:

Federal Court Rules 2011 (Cth) r 31.02

Migration Act 1958 (Cth) ss 476A, 477A, 499(1), 499(2A), 500(1), 501(3A), 501(6)(a), 501(7), 501CA(4)

Cases cited:

ActewAGL Distribution v Australian Energy Regulator (2011) 195 FCR 142

Afu v Minister for Home Affairs [2018] FCA 1311

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

BUD17 v Minister for Home Affairs [2018] FCAFC 140

BXD17 v Minister for Immigration and Border Protection [2018] FCA 765

Cross v Harbour City Ferries Pty Ltd [2017] FCA 1577

DLE16 v Minister for Home Affairs [2019] FCA 136

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Mentink v Minister for Home Affairs [2013] FCAFC 113

Parker v The Queen [2002] FCAFC133

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

Re Commonwealth of Australia; Ex Parte Marks (2000) 177 ALR 491

Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83

SZUMJ v Minister for Immigration and Border Protection [2017] FCA 1380

Date of hearing: 5 August 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: No Catchwords
Number of paragraphs: 54
Counsel for the Applicant: The Applicant appeared in person
Solicitor for the Respondents: Ms M Donald of Sparke Helmore
Table of Corrections
20 November 2019 In paragraph 4 the words “reasonably suspected” have been replaced with “was satisfied” in the third sentence; “(c);” has been inserted after “(7)” and “(b)” has been inserted after “and” in the third sentence; the words “and (b) the applicant had not satisfied the Minister that he did not pass the test” have been deleted from the last sentence.

ORDERS

NSD 852 of 2019
BETWEEN:

FCFY

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

THAWLEY J

DATE OF ORDER:

5 AUGUST 2019

THE COURT ORDERS THAT:

1.Pursuant to rules 31.02 and 1.39 of the Federal Court Rules 2011 (Cth), the applicant is granted an extension of time in which to file and serve an originating application until the date of this order.

2.The draft originating application filed on 22 May 2019 as an attachment to the application for an extension of time is taken to be an originating application filed by the applicant as required by order 1.

3.A referral certificate for legal assistance be issued under rule 4.12 in respect of the applicant.

4.The applicant is to file an amended originating application for review of a migration decision within 8 weeks.

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


REASONS FOR JUDGMENT
(Revised from transcript)

THAWLEY J:

BACKGROUND

  1. The…

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Details
Case
[2019] FCA 1222
Decision Date

CaseChat Overview and Summary

The applicant in FCFY v Minister for Home Affairs sought an extension of time to file an originating application for judicial review of a decision by the Tribunal. The Tribunal had refused to revoke the cancellation of the applicant’s visa. The primary legal issue for the court was whether the Tribunal had misunderstood its task when it exercised its discretion in carrying out the balancing exercise. The court had to determine whether the Tribunal had correctly applied the relevant provisions of Direction 65 when it balanced the applicant’s ties to Australia against the seriousness of his criminal conduct and the risk he posed to the Australian community.

The court examined the Tribunal’s reasons and found that there was an error in the Tribunal’s application of Direction 65. The court noted that the Tribunal had referred to the principle that primary considerations should generally be given greater weight than other considerations, but had failed to consider that the particular facts of the case might be such that the primary considerations should not be given greater weight. The court concluded that the Tribunal had misapplied Direction 65 when it carried out the balancing exercise, as it had excluded the possibility that the applicant’s ties to Australia could outweigh the primary considerations which weighed against revocation.

The court granted the applicant an extension of time to file an originating application for judicial review. The court found that the applicant’s application had some prospects of success and that it was in the interests of justice to grant the extension. The court ordered that the draft originating application filed on 22 May 2019 be taken to be an originating application filed by the applicant, and that a referral certificate for legal assistance be issued in respect of the applicant. The applicant was ordered to file an amended originating application for review of the migration decision within 8 weeks.

Orders

Orders of the court

1. Pursuant to rules 31.02 and 1.39 of the Federal Court Rules 2011 (Cth), the applicant is granted an extension of time in which to file and serve an originating application until the date of this order.

2. The draft originating application filed on 22 May 2019 as an attachment to the application for an extension of time is taken to be an originating application filed by the applicant as required by order 1.

3. A referral certificate for legal assistance be issued under rule 4.12 in respect of the applicant.

4. The applicant is to file an amended originating application for review of a migration decision within 8 weeks.

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

The applicant’s short oral submissions focussed on his ties to Australia and implicitly suggested that this factor should have been given greater weight.The Tribunal’s decision The Tribunal had jurisdiction by reason of s 500(1)(ba). The Tribunal was bound in performing its functions and exercising its power to comply with Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65): s 499(1) and (2A) of the Act. The Tribunal referred to the principles in [6.3] of Direction 65. It went on to consider the three “primary considerations” in Part C of Direction 65 and those of the “other considerations” which it considered relevant. The Tribunal referred to the material before it, including the written statements and oral evidence given by the applicant and his partner, written statements by family members and friends and associates and the various records and documents relating to his offences. The Tribunal summarised the applicant’s early history at T[18] to T[22]. That history is relevantly summarised at [1] to [3] above. In respect of the protection of the Australian community from criminal or other serious conduct, the Tribunal considered the nature and seriousness of the applicant’s conduct and the risk to the community should the applicant commit further offences or engage in other serious conduct. As to the nature and seriousness of the applicant’s conduct, the Tribunal’s reasons included:30.The applicant’s criminal record, which is summarised in paragraphs 23 to 28 above, shows he appeared before the Courts (adult and children’s) on 45 occasions from May 1987 to July 2017 and was convicted of more than 100 criminal offences. His record demonstrates an extensive and long-term pattern of repeated and serious offending from the age of 16 years.31.The seriousness of the applicant’s criminal behaviour is indicated by the sentences imposed by the Courts, which include periods of imprisonment in relation to 38 convictions. Between 2000 and 2017, the applicant has been incarcerated for a total period of over five years and ten months.32.The applicant’s criminal record contains repeated incidences of violence dating from May 1987, including convictions for assault occasioning actual bodily harm, assault, common assault, assault police and contravening apprehended domestic violence order. The police reports for these convictions describe the applicant’s involvement in physical fights with people known to the applicant as well as strangers. The Tribunal recorded that the applicant had received a letter dated 7 March 2012 from what was then the Department of Immigration and Citizenship stating his visa might be cancelled on character grounds because of his offending. The Tribunal also recorded the contents of a second letter to the applicant, dated 21 May 2012, which stated his visa would not be cancelled but contained a formal warning in the following terms:Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.

Ratio Decidendi

Legal Principle Established

Direction 65 includes at [8]:8. Taking the relevant considerations into account(1)Decision-makers must take into account the primary and other considerations relevant to the individual case …(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.(4)Primary considerations should generally be given greater weight than the other considerations.(5)One or more primary considerations may outweigh other primary considerations. Paragraph [76] of the Tribunal’s reasons also arguably discloses error. Paragraph 8 of Direction 65 does not state that “primary considerations should be given greater weight than the other considerations” as stated by the Tribunal. Paragraph 8(4) of Direction 65 states that the primary considerations should “generally” be given greater weight. It does not require that such considerations always be given greater weight. Direction 65 leaves open that the particular facts of a case are such that the primary considerations should not be given greater weight. As noted earlier, I understood the applicant’s submission to be that, in light of his unusually strong connection to Australia and his absence of connection with the UK, the nature of his ties to Australia ought to have been given greater weight than they were. Reading T[76] in isolation, the Tribunal arguably approached its task on the basis that it was required to give greater weight to the primary considerations when undertaking the balancing exercise it was required to undertake. This arguably erroneously excluded the possibility that the “primary considerations” should not be given greater weight in the particular circumstances. It arguably excluded the possibility that the applicant’s ties to Australia (being one of the “other considerations”) could not outweigh those primary considerations which weighed against revocation. The reasons must be read as a whole and it must be recognised that the Tribunal correctly stated at T[14]:Paragraph 8 of the Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations. In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. This tends against the view that T[76] reveals a misunderstanding of the statutory task. However, the question is whether the Tribunal understood the task correctly or misapplied Direction 65, when it came to exercise its discretion by carrying out the balancing exercise contemplated. As mentioned, an appropriate degree of hesitation is required when determining the merit of an application for judicial review at an interlocutory stage. It is one thing to refuse an application for an extension of time on the basis that the application clearly has no prospects of success but it is quite another to dismiss an application for an extension of time because there are perceived difficulties with the proposed grounds of the application.