Ferdous v Minister for Home Affairs
[2019] FCCA 1862
•28 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FERDOUS v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1862 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – cancellation of a higher education sector visa – criminal charge of assault – charge not yet heard – evidence relating to the charge disputed – Tribunal finding that the applicant posed a risk to his former girlfriend – Tribunal finding that the criminal charges outweighed personal factors – whether the Tribunal failed to apply a proper test in the exercise of discretion and whether the Tribunal decision was legally unreasonable considered – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.116, 359A, 363, 370, 371, 378, 501, 501CA |
| Cases cited: ARG15 v Minister for Immigration [2016] FCAFC 174; 250 FCR 109 Tuala v Minister for Home Affairs [2019] FCA 345 X7 v Australian Crime Commission (2013) 248 CLR 92 |
| Applicant: | FERIAL FERDOUS |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2189 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 4 June 2019 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Godwin |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr D Delaney |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari shall issue, removing the record of the Administrative Appeals Tribunal decision made on 4 July 2018 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Administrative Appeals Tribunal to redetermine the review application before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2189 of 2018
| FERIAL FERDOUS |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant, Mr Ferdous, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 4 July 2018. The Tribunal affirmed a decision of a delegate of the Minister (delegate) to cancel Mr Ferdous’ higher education sector visa.
The following statement of background facts is derived from the submissions of the parties.
Mr Ferdous held a student visa. He had nearly completed a Diploma in engineering and was enrolled to commence a Bachelor course in July 2018. In December 2017 there were two incidents between Mr Ferdous and his then girlfriend which led to Mr Ferdous being charged with offences. It appears that an apprehended violence order (AVO) was obtained by the police at the same time in relation to contact between Mr Ferdous and his girlfriend.[1]
[1] The Tribunal directed under s.378(1) of the Migration Act 1958 (Cth) (Migration Act) in relation to its review that information that would identify Mr Ferdous’ former girlfriend not be published. Consistently with that direction, in these reasons, Mr Ferdous’ former girlfriend is identified by the letter “S”
Mr Ferdous is a citizen of Bangladesh, who held a student (Subclass 573) visa. On 18 December 2017, he was charged with “Common assault (dv) T2” and “Assault occasioning actual bodily harm (dv) T2”.[2]
[2] Relevant Documents (RD) 14
On 6 February 2018, Mr Ferdous was issued with a Notice of Intention to Consider Cancellation (NOICC) of his visa under s.116(1)(e) of the Migration Act.[3]
[3] RD 30
On 20 February 2018, Mr Ferdous provided a statement from himself and from S in response to the NOICC. Those statements relevantly disputed the account of the events as alleged by the police. Mr Ferdous also made representations on the consequences that may follow and hardship he may suffer if his visa were to be cancelled.[4]
[4] RD 41
On 23 February 2018, the delegate cancelled Mr Ferdous’ visa under s.116(1)(e) of the Migration Act. On 5 March 2018, Mr Ferdous sought review of the delegate’s decision by the Tribunal.[5]
[5] RD 48-60
On 6 April 2018, Mr Ferdous was invited to comment on information in accordance with s.359A of the Migration Act (natural justice letter).[6] The natural justice letter contained a summary of the police facts sheet. On 12 April 2018, Mr Ferdous responded to the natural justice letter, relevantly stating that the final resolution of the charges would be of critical importance to his case before the Tribunal. Mr Ferdous informed the Tribunal that the criminal proceeding had been adjourned until 19 June 2018 for hearing.[7]
[6] RD 67
[7] RD 72
On 16 April 2018, Mr Ferdous was invited to attend a hearing before the Tribunal on 26 June 2018 to give evidence and present arguments.[8]
[8] RD 75
On 19 June 2018, Mr Ferdous provided further evidence to the Tribunal,[9] including an affidavit of S, statutory declarations of his friends Ms Jayshree and Gitanjali Bastakoti regarding their evidence to the police, a decision of the Tribunal, differently constituted, made on 9 April 2018, remitting the refusal to grant Mr Ferdous a bridging visa to the Minister’s Department for reconsideration, a decision made by a delegate not to refuse the bridging visa application under s.501(1) of the Migration Act, and an interim AVO issued against Mr Ferdous. Mr Ferdous also stated that his criminal proceeding had been further adjourned until 23 November 2018. Mr Ferdous requested the Tribunal to take evidence from S.
[9] RD 79
On 26 June 2018, Mr Ferdous attended a hearing before the Tribunal with the assistance of his migration agent. The Tribunal also received evidence from S.[10]
[10] RD 106
On 29 June 2018, Mr Ferdous provided a medical report completed by Dr Emily Benson relating to treatment she provided on 18 December 2017.[11] In that report, Dr Benson recorded S’ conditions and noted she had suggested that “previous episodes of abuse may have occurred”. On 2 July 2018, Mr Ferdous’ migration agent provided an unsigned statutory declaration of S to the Tribunal, which relevantly disputed Dr Benson’s observation.[12]
[11] RD 113
[12] RD 125
On 3 July 2018, Mr Ferdous’ migration agent provided evidence of his enrolment and further submissions to the Tribunal.[13] Mr Ferdous submitted that the cancellation of his visa would result in him being detained until his criminal case was heard in November 2018, and that if he were to depart Australia before then, his ability to defend the charges could be restricted.
[13] RD 131
Tribunal decision
On 4 July 2018, the Tribunal affirmed the decision under review.[14]
[14] RD 141
The Tribunal noted the relevant case law which governed its exercise of discretion under s.116(1)(e) of the Migration Act.[15] The Tribunal noted the evidence before it, including the content of the natural justice letter, the various statements provided to the Tribunal, and the oral evidence of Mr Ferdous and S.[16]
[15] [4]-[7]
[16] [8]-[17]
The Tribunal noted that Dr Benson’s report contradicted Mr Ferdous’ evidence that there had never been any violence or abuse in their relationship.[17] The Tribunal found Mr Ferdous’ evidence, that the information recorded by the police was obtained on the basis of the false claims made by S’ friends, to be problematic. The Tribunal found that those claims were, in some respects, consistent with Mr Fedous’ own evidence. Further, despite the withdrawal of the claims by all witnesses, and S’ own evidence, the charges against Mr Ferdous had not been dropped.[18]
[17] [17]
[18] [18]
The Tribunal found that the AVO remained in place, which indicated that Mr Ferdous may be a risk to S. The Tribunal also found that Mr Ferdous was not able to recall his bail conditions. While the Tribunal acknowledged Mr Ferdous’ evidence that S obtained independent legal advice when preparing her affidavit, it was concerned that Mr Ferdous had been discussing S’ evidence with her prior to his trial.[19]
[19] [19]-[20]
The Tribunal accepted that Mr Ferdous and S no longer lived together, and that S may not benefit from giving evidence that her injuries were not caused by Mr Ferdous. Nevertheless, the Tribunal placed weight on the fact that there had been physical contact during the incident, which resulted in S sustaining bruising. The Tribunal noted the circumstances surrounding S sustaining a broken nose were unclear. The Tribunal was not satisfied that the parties led entirely separate lives, as Mr Ferdous had been discussing S’ evidence with her. As such, the Tribunal found that the presence of Mr Ferdous may be a risk to the safety of S.[20]
[20] [21]-[23]
Having found that a discretionary ground of cancellation existed, the Tribunal referred to the factors in the Procedures Advice Manual in assessing whether Mr Ferdous’ visa should be cancelled. The Tribunal accepted that the purpose for Mr Ferdous’ travel and stay in Australia was to undertake tertiary studies and that his ongoing study required him to remain in Australia.[21] The Tribunal also accepted that the cancellation of Mr Ferdous’ visa may cause financial, psychological and emotional distress to him and his parents. However, the Tribunal found that there was no evidence before it to suggest that Mr Ferdous would not be able to complete his studies elsewhere, or that his parents had no money to fund his future studies. The Tribunal did not accept that without the visa, Mr Ferdous could not obtain a Bachelor degree.[22]
[21] [24]
[22] [26]-[28]
The Tribunal also noted the consequences of cancelling Mr Ferdous’ visa. The Tribunal found there was no suggestion that he would be detained indefinitely. Further, any detention would not have any meaningful adverse effect on Mr Ferdous’ ability to communicate with his criminal lawyers.[23] The Tribunal also noted that some factors (for instance, whether any children would be affected by the cancellation) did not apply to Mr Ferdous’ circumstances.[24]
[23] [32]-[33]
[24] [25], [30]-[31], [34]
Ultimately, the Tribunal found that the nature of the charges and the alleged conduct outweighed the reasons against cancellation.[25]
[25] [35]-[38]
The current proceedings
These proceedings began with a show cause application lodged on 7 August 2018. At the trial on 4 June 2019, I gave leave for Mr Ferdous to file and rely upon an amended application which contains the following grounds:
1. The Tribunal erred by not considering in the exercise of its discretion the nature and degree of the risk which the applicant posed.
Particulars
The Tribunal failed to apply a proper test of the degree of risk that would engage the operation of the paragraph.
2. The Tribunal’s decision was legally unreasonable.
Particulars
(a) The Tribunal was “concerned” that the Applicant had discussed the criminal proceedings with the alleged victim, although there was not legal reason why he should not have done so.
(b) The Tribunal should have waited for the criminal proceedings to take their course before making a finding that would necessarily have a negative impact on the Applicant’s ability to defend those proceedings.
I have before me as evidence the book of relevant documents lodged on 5 November 2018.
At the trial of this matter, Mr Ferdous was represented by counsel, instructed by Parish Patience Immigration Lawyers. Although that firm issued two Notices of Intention to Withdraw on 17 December 2018 and 18 March 2019, they did not do so.
Consideration
The issues in this case are important and the resolution of them is finely balanced. There are two issues. The first is whether the Tribunal fell into error in considering the degree of risk that would engage the operation of s.116(1)(e) of the Migration Act.
The second issue is one of legal unreasonableness in circumstances where the Tribunal dealt with matters the subject of pending criminal proceedings before those proceedings had occurred, apparently interrogated Mr Ferdous about the relevant facts and appeared to draw an adverse inference from the fact that Mr Ferdous had discussed the criminal proceedings with S (who appeared as a witness in support of him at the hearing conducted by the Tribunal).
Ground 1 – did the Tribunal err in its interpretation of s.116(1)(e) of the Migration Act?
Mr Ferdous’ contentions
The issue identified in the first ground in the amended application is the manner of the Tribunal’s exercise of discretion.
The ground which enables cancellation is very broad. All the Tribunal need be satisfied of is that the visa holder is or may be a risk (no matter how small) to the safety of another person in Australia. The difference between “is a risk” and “may be a risk” is not one of degree; rather it is a difference in time. “Is a risk” means now; “may be a risk” means in the future.
In this case the Tribunal has found that Mr Ferdous may be a risk to an individual, rather than that he is a risk.
The reasoning of the Tribunal is based upon its assessment that Mr Ferdous has been charged with seriously harming S and has an AVO against him. While the Tribunal finds that Mr Ferdous may be a risk to a person or persons, it does not specify or quantify what that risk is. Mr Ferdous submits that this is a reviewable error.
Although the Tribunal’s discretion is unconfined it is well established that it must be exercised in conformity with the subject matter and purpose of the legislation.
Mr Ferdous submits that the subject matter, scope and purpose of the legislation mandate that a relevant matter that would have to be taken into account in exercising the discretion is a specification of the risk and its magnitude.
The issue of whether the Minister when cancelling visas under s.501 must take into account the existence of risk and if so, quantify it, has been the subject of numerous Federal Court decisions.
Mortimer J in Tanielu v Minister for Immigration[26] reasoned that as all the matters which triggered the s.501 cancellation power were of a protective character, this meant that the subject matter, scope and purpose of that section imputed the necessity of identifying risk and assessing its degree in the exercise of the discretion.
[26] (2014) 225 FCR 424
Subsequently, the Full Federal Court in Moana v Minister for Immigration[27] concluded that while the existence of risk to the Australian community had to be taken into account in exercising the discretion,[28] there was no requirement that risk be assessed in a quantified way.
[27] (2015) 230 FCR 367
[28] ibid Rangiah J at [57]-[60] (North J agreeing)
Mr Ferdous submits that the cancellation power in s.116(1)(e) is expressly conditioned by the requirement that a risk be found to exist now or in the future. He submits that s.116(1)(e) makes the assessment of risk an integral part of the discretionary exercise.[29] The subject matter, scope and purpose of s.116(1)(e) indicates that there must be an identification of what that risk is and an assessment of its relative size and likelihood so as properly weigh it against competing discretionary factors. Mr Ferdous submits that the reasoning of Mortimer J in Tanielu should be applied to it.
[29]the Full Federal Court in BSJ16 v Minister for Immigration [2017] FCAFC 78; (2017) 252 FCR 82 at [28]-[29] distinguished Moana in respect of revocation decisions because absence of “risk” was not identified as a precondition to the revocation
In this case Mr Ferdous had provided a large amount of material which addressed this issue. In particular, the person who was allegedly at risk denied that she feared harm from him. Further the objective circumstances were that Mr Ferdous and S were no longer in a relationship and now lived in different parts of the country. Additionally, the AVO remained in force, which further diminished the risk.
The Tribunal made no specification of the risk nor did it assess the degree of risk in exercising its discretion. It simply found that there may be a risk. Mr Ferdous submits that it did not lawfully exercise its discretion.
The Minister’s contentions
The Minister accepts s.116(1)(e) of the Migration Act mandates a two stage process, the first of which involves the decision maker reaching a state of satisfaction concerning the existence of a risk to the “health, safety or good order of the Australian community”, or in the case of s.116(1)(e)(ii), a particular person or persons within the Australian community, and the second of which involves the exercise of a discretion.[30]
[30] Gong v Minister for Immigration & Anor [2016] FCCA 561 at [19]
The Minister accepts, further, that in determining the considerations that the decision-maker must have regard to in exercising its discretion, the Court is to have regard to the subject matter, scope and purpose of the Migration Act.[31] The Minister accepts, finally, that s.116(1)(e) requires an assessment of present or future risk.
[31] Minister for Immigration v Peko-Wallsend (1986) 162 CLR 24, 39-40
However, the Minister contends that the Court should reject Mr Ferdous’ further submission that, in exercising the discretion, it is inevitably necessary for the Tribunal to quantify or specify the risk to the community which Mr Ferdous poses, merely because the risk to be assessed is a present or future one. As Rangiah J, with whom North J agreed, found in Moana at [71] and [72], in relation to the analogous discretion under s.501(2):
… It is one thing to conclude…that the Minister must consider the risk of harm, but it is a step removed to decide that the statute contains an implication that the Minister must evaluate the risk of harm in a particular way.
… In a particular case…the Minister may take the view the seriousness of the [past] offence or conduct means that any risk is intolerable. It follows that in exercising the discretion…the Minister is not bound to engage in an evaluation of the likelihood of a person engaging in future conduct which may cause harm.
While Mr Ferdous prefers the earlier decision of Tanielu concerning s.501(2) of the Migration Act, the Full Federal Court in Moana declined to follow that decision, and the approach has been repeated in Full Federal Court decisions since, including, but not limited to, decisions concerning the operation of s.501CA(4).[32]
[32] see BSJ16; Folau v Minister for Immigration [2017] FCAFC 214; (2017) 256 FCR 455 (at [31]-[32]), and see also Maere v Minister for Home Affairs [2018] FCA 1694; Tuala v Minister for Home Affairs [2019] FCA 345
The Minister submits that the Court should follow the approach taken in Moana and cases that follow it.
Resolution
Section 116(1)(e) is in the following terms:
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:
(i) the health, safety or good order of the Australian community or a segment of the Australian community; or
(ii) the health or safety of an individual or individuals; …
In Tanielu at [101]-[102] and [104], in dealing with s.501 of the Migration Act, Mortimer J stated:
First, in decision-making which has a clear protective purpose, and which therefore involves an assessment of how a person may behave in the future, and whether that behaviour involves a risk of harm or a risk of repetition of prior conduct that has been impugned in one way or another, it is an inherent and indispensable part of any such assessment that the likelihood of a person engaging in such conduct in the future is considered. There is no reason to suppose any qualitatively different approach is to be taken in administrative decision-making where the exercise of a power is intended by Parliament to be protective of the safety and welfare of others.
Second, where a decision-maker chooses, as the Minister chose in the present case, to examine whether there is an “unacceptable risk” to the Australian community if a person remains in Australia, in order lawfully to determine the nature and magnitude of that risk, certain matters need to be considered. The term “unacceptable risk” is not without content in Australian law, and that content has some general features which can be derived from authorities such as those to which I have referred. One feature, the one upon which the applicant fastens in his third ground of review, is that the likelihood of a person engaging in conduct in the future which may cause harm needs to be assessed. The authorities to which I have referred make it clear that an assessment of likelihood of conduct occurring, or recurring, is assumed to be an integral part of determining risk.
…
I accept the applicant’s submissions that an examination of the likelihood of a person engaging in future conduct which may cause harm is an essential part of any assessment of the risk that person poses to the Australian community. Even if risk of harm to the Australian community is not a relevant consideration, where the Minister chooses to consider that matter, and to do so by asking whether the risk is “unacceptable”, there are minimum components which Australian law recognises as integral to deciding if a risk of harm is “unacceptable”. One of those is the likelihood a person will engage in the conduct capable of causing harm.
Jessup J in Moana at [7]-[10] stated:
In my respectful view, the judgment in Tanielu misstated the law and should not be followed. In Peko-Wallsend, Mason J did not say that, where the discretion to be exercised was unconfined by the terms of the statute, it was in all cases imperative for the decision-maker to identify, from the subject matter, scope and purpose of the relevant provision, the considerations that were, implicitly, to be taken into account. What his Honour said, in the concluding sentence in the passage set out in para 4 above, was that, where the discretion was unconfined in this way, the court would not find that the decision-maker was bound to take a particular matter into account unless an implication to that effect was to be found in the subject matter, scope and purpose of the relevant statute. That is to say, only if it were apparent from the subject matter, scope and purpose of the Act that the power in question ought not to be exercised without taking a particular consideration into account would a court hold that the power could not be so exercised.
The effect of the judgment in Tanielu, in my respectful view, was to turn this negative stipulation into a positive requirement, applicable in all cases in which there was no explicit setting out of the considerations which were required to be taken into account as part of the valid exercise of a discretionary power which is, in terms, unconfined. This does not represent the law as articulated by Mason J in Peko-Wallsend.
Moreover, it is not as though s 501(2) of the Act is utterly devoid of indications as to the considerations which ought to inform the exercise of the discretion for which it provides, such as, for example, a provision which said no more than that the Minister was empowered to cancel any visa at any time. The subsection is within a category of provisions, regularly found in legislation, which specify preconditions to the taking of an executive step, and thereby provide the context in which the discretion arises. For example, a power given to a local council to remove for disposal an unregistered vehicle left standing by the kerb for more than a month could be exercised on no other ground than that there was such a vehicle by the kerb. Likewise, in my view, the power to cancel a visa under s 501(2) of the Act might validly be exercised upon the Minister taking into account no consideration other than that set out in the subsection, namely, that, in circumstances where the Minister reasonably suspected that the person did not pass the character test, the person did not satisfy the Minister that he or she did pass that test.
This is not to hold that, in addition to the visa holder’s failure to satisfy the Minister that he or she did pass the character test, the discretion for which s 501(2) provides is not a real or useful one. There must be a decision made in the particular case. There may always be particular circumstances to which the Minister might validly give attention before exercising the power. But it is to hold that the power may be validly exercised in a situation in which, having turned his or her mind to the facts of the case, the Minister chooses not to take into account any consideration other than the fact that the visa holder does not pass the character test. There is, in my view, nothing in the subsection, or elsewhere in the Act, that has the effect that the power may not be validly exercised unless the Minister takes account of the risk posed to the Australian community of the visa remaining uncancelled.
Rangiah J at [49], [57], [63] and [71]-[72] stated:
The Minister engages in only one exercise of power under s 501(2). That exercise of power involves two stages: firstly, considering the threshold question of whether the Minister reasonably suspects that the person does not pass the character test and whether the person has satisfied the Minister that he or she passes the test; and secondly, considering the exercise of the discretion. The Minister submits that in the absence of the specification of any considerations relevant to the exercise of the discretion, it is for the Minister to determine the matters which he or she regards as relevant. That argument assumes that the threshold question is entirely divorced from the exercise of the discretion. However, my opinion is that the Minister’s consideration of the character test necessarily informs his consideration of the discretion. It is the relationship between the threshold question and the discretion in the exercise of a single power that leads me to conclude that risk to the Australian community is a mandatory relevant consideration.
…
The discretion under s 501(2) is not enlivened unless the threshold test is met. In some cases, the Minister will be required to consider whether there is a significant risk that the person would represent a danger to the Australian community of a type specified in paragraph (d) of s 501(6). If the discretion is then to be enlivened, the Minister must form a reasonable suspicion that there is a significant risk that person represents such a danger and must fail to be satisfied by the person that he or she does not. As Parliament required the Minister to evaluate the danger, or risk, to the Australian community at the threshold stage it seems unlikely that Parliament intended that the Minister should then be at liberty to ignore that risk when exercising the discretion. What seems more likely is that Parliament intended that, having taken that risk into consideration at the threshold stage, the Minister must also consider it in exercising the discretion. Similarly, it is unlikely that Parliament intended that the Minister must consider under paragraph (a) of s 501(6) whether the person has a substantial criminal record, but be free to choose whether to take into account that criminal record when exercising the discretion. It is unlikely that Parliament intended to require that the Minister must, for the purposes of paragraph (c), consider whether the person is not of good character having regard to the person’s past and present criminal conduct or general conduct or both, but not also require the Minister to have regard to that conduct when exercising the discretion. A similar conclusion may be reached concerning each of the other paragraphs of s 501(6)(including paragraphs (e), (f), (g) and (h) which were added by the Amendment Act).
…
In support of the premise of his argument the Minister referred to cases concerning ss 501(3) and 501A in which it has been said that a person may commit a crime of such a serious nature as to found a satisfaction that it is in the national interest to cancel his or her visa: Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [79] per Gaudron J; Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400 at 409 per Heerey, Lindgren and Emmett JJ; Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at [86] per French, O’Loughlin and Whitlam JJ. The Minister argues that the effect of these cases is to demonstrate that the discretion under s 501(2) may properly be exercised by reference to the expectations of the Australian community, rather than protection of the Australian community: cf Djalic at [72], [74]. This argument assumes that there is a neat distinction between the expectations of the Australian community and its protection. I doubt that there is a clear distinction. If a crime is considered to be of such a nature that the expectation of the Australian community is that the person who has committed it should not remain in Australia, it is likely that at least part of the underlying rationale is the need to protect the community from a person who could commit such a crime and to deter others from committing such a crime.
…
If the Minister is to be held to be bound to examine the likelihood of a person engaging in future conduct which may cause harm in every exercise of the discretion under s 501(2), then an implication to that effect must appear from the subject matter, scope and purpose of the Act. It is not enough to argue that principles concerning other statutory provisions with a protective purpose must apply analogously to s 501(2). It is one thing to conclude, as I have, that the Minister must consider the risk of harm, but it is a step removed to decide that the statute contains an implication that the Minister must evaluate the risk of harm in a particular way.
The cases concerning s 501A relied on by the Minister (see para [63]) establish that the seriousness of an offence may, of itself, lead the Minister to conclude that a visa should be cancelled in the national interest. I consider that the seriousness of an offence or other relevant past conduct may also lead the Minister to conclude that a visa should be cancelled in the discretion under s 501(2)without evaluating the likelihood that the visa holder will reoffend or engage in harmful conduct. It is implicit in s 501 that Parliament considers that a person who does not pass the character test poses a risk of harm of some kind, although that does not lead to a presumption that the discretion should be exercised in a particular way. In a particular case, however, the Minister may take the view the seriousness of the offence or conduct means that any risk is intolerable. It follows that in exercising the discretion in s 501(2), the Minister is not bound to engage in an evaluation of the likelihood of a person engaging in future conduct which may cause harm.
North J agreed with the reasons of Rangiah J.
In this case we are dealing with different legislation but the principles discussed in Tanielu and Moana are in my view the same. A duty to articulate the degree of risk that Mr Ferdous posed to the safety of his former partner must appear from the scope, subject matter and purpose of the section (here s.116(1)(e)). In my view, such a duty does not arise from that section and I should follow the Full Federal Court in Moana in rejecting Mr Ferdous’ contention.
I accept the Minister’s contention that the section mandates a two stage process. The first stage requires the decision-maker to reach a state of satisfaction concerning the existence of a relevant risk. The second stage involves the exercise of a discretion in which it may be necessary, depending upon the circumstances, to weigh the degree of risk against other competing factors. That is what the Tribunal did in this case. I reject the first ground of review.
Ground 2 – was the Tribunal’s decision legally unreasonable?
Mr Ferdous’ contentions – particular (a)
Mr Ferdous contends that the Tribunal had before it material from both him and S which asserted that he was innocent of the charges and that S held no fears of him. The Tribunal disbelieved their evidence. One of the things it relied upon was the fact that “the applicant thought it appropriate to discuss the witness evidence with the affected victim during his trial”.
Mr Ferdous submits that this was not a relevant matter. There had been no trial. There was no legal or moral reason why Mr Ferdous should not have spoken to his former girlfriend about the incident. In DAO16 v Minister for Immigration,[33] the Full Federal Court stated:
While findings as to credit are generally matters for the administrative decision maker, this does not mean that such findings as to credit are beyond scrutiny on judicial review. The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae. In each case it is necessary to analyse in detail what the decision-maker has decided.
Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis. ...
(citations omitted)
[33] (2018) 258 FCR 175 at [30]
Lee J further observed in CKC16 v Minister for Immigration:[34]
In the light of these principles, references to a litany of cases which each turn on their own facts is not a useful exercise. It suffices to note that unwarranted assumptions or factual errors made by a Tribunal, regarding matters which are then relevant to the formation of a view on credibility, can demonstrate error. Equally, error may be found where a process of reasoning is undertaken by material reference to a false premise, which then causes a person’s credibility to be assessed as wanting. See, for example, SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470; (2009) 181 FCR 113 at 126 [37]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at 648-649 [132]-[133].
[34] [2018] FCA 1260 at [15]
Mr Ferdous submits that the Tribunal’s assessment of the veracity of his evidence has been tainted by the unwarranted assumption that he was not permitted to speak with S about the incident. He submits that, in the circumstances, the Court cannot be satisfied that the assessment of his evidence would have been the same without the Tribunal making this assumption.
In SZTFQ v Minister for Immigration,[35] Lee J observed that:
It is [often] not realistic to put the various aspects of the appellant’s evidence into hermetically sealed boxes or to approach the reasoning of the Tribunal member on the basis that this is how the evidence was approached. The assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all of the evidence. As the Full Court (Hill, Sundberg and Stone JJ) observed in VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117 at [79] “an assessment of credibility is not necessarily linear”. Put another way, as Gleeson CJ commented in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 89, “[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.”
To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 at 23 [81]:
...decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker's disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person's credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person's entire evidence in a new light.
[35] [2017] FCA 562 at [44]-[45]
Mr Ferdous’ contentions - particular (b)
Mr Ferdous submits that the Tribunal acted unreasonably in proceeding to hear and determine the application while the criminal charges were pending.
The matters upon which the cancellation decision rested were the events the subject of the proceedings before the Local Court. Those proceedings were listed for hearing on 19 June 2018 so the Tribunal sensibly listed its hearing of the review on 26 June 2018. However, the Local Court did not hear the matter on 19 June 2018 and it was relisted on 23 November 2018. However the Tribunal proceeded with the 26 June 2018 hearing. Mr Ferdous was questioned by the Tribunal as was S.
Unlike the delegate, the Tribunal had powers to summons witnesses and documents in the performance of its function. There was a substantial overlap between the evidence which related to the cancellation decision and the evidence that the Local Court would hear.
Mr Ferdous submits that he was entitled to have his evidence and the evidence against him weighed by the Local Court, without the pending charge alone being the basis for his potential removal from Australia. He submits that he should not feel compelled to disclose evidence about pending criminal charges in Tribunal proceedings.
Deane J noted in Hammond v Commonwealth of Australia[36] at 206:
...it is fundamental to the administration of criminal justice that a person who is the subject of pending criminal proceedings in a court of law should not be subjected to having his part in the matters involved in those criminal proceedings made the subject of a parallel inquisitorial inquiry by an administrative tribunal with powers to compel the giving of evidence and the production of documents which largely correspond (and, to some extent, exceed) the powers of the criminal court.
[36] [1982] HCA 42; (1982) 152 CLR 188
Hayne and Bell JJ (with Keifel J, as her Honour then was, agreeing) in X7 v Australian Crime Commission[37] held at [71] that it is undesirable to require a person to answer questions about a pending charge:
Requiring the accused to answer questions about the subject matter of a pending charge prejudices the accused in his or her defence of the pending charge (whatever answer is given). Even if the answer cannot be used in any way at the trial, any admission made in the examination will hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case. And what would otherwise be a wholly accusatorial process, in which the accused may choose to offer no account of events, but simply test the sufficiency of the prosecution evidence, is radically altered. An alteration of that kind is not made by a statute cast in general terms. If an alteration of that kind is to be made, it must be made by express words or necessary intendment.
[37] (2013) 248 CLR 92
Their Honours went on to state at [105]:
The notion of an accused person's "right to silence" encompasses more than the rights that the accused has at trial. It includes the rights (more accurately described as privileges)...which that person has between the laying of charges and the commencement of the trial.
(footnotes omitted)
Where the issue to be decided in criminal proceedings is precisely the same as that to be decided in the Tribunal’s proceedings, Davies J in Re Taxation Appeals (No.163) v Commissioner of Taxation[38] observed at [12] that :
... It is ... strongly arguable that the investigation of that issue by this Tribunal, including the examination and cross-examination of witnesses and the production of documents, while the same issue is being considered in the committal proceedings, would be a contempt of court as prejudicing the committal proceedings and the subsequent conduct of the trial.
[38] [1987] AATA 202; (1987) 12 ALD 102
In an earlier decision in Re Lane and Conservator of Wildlife[39] at N430 Davies J stated:
It is, I think, unnecessary for me to come to any final view as to whether or not, if there is a conviction, the Court of Petty Sessions will have power to order forfeiture on the subject plants and it is, I think, undesirable that I should say anything upon that matter. That is an issue to be determined by the Court of Petty Sessions. Had I thought that it was necessary to come to a view on that point, I may have considered it proper to adjourn the proceedings of this Administrative Tribunal until the court had dealt with the matter before it. An Administrative Tribunal should not act in such a manner as to prejudice the conduct of proceedings which are on foot before a court of law: see State of Victoria and Another v Building Construction Employees’ and Builders Labourers’ Federation [1982] HCA 31; (1982) 56 ALJR 506; 41 ALR 71).
[39] (1984) 5 ALN 429
Perram J explained in Cassaniti v Tax Agents’ Board of New South Wales at [34]:[40]
Granted then that the Court has jurisdiction to entertain the contempt argument against the Board, what are the relevant principles? Five propositions should, I think, be accepted. First, the existence of a parallel administrative inquiry is capable of constituting a contempt of criminal proceedings: McGuinness v Attorney-General (Vic) [1940] HCA 6; (1940) 63 CLR 73 at 85; Victoria v Australian Building Constructions Employees’ and Builders Labourers’ Federation [1982] HCA 31 ; (1982) 152 CLR 25 (“BLF”) at 54 and 72; Hammond v Commonwealth [1982] HCA 42; (1982) 152 CLR 188 at 206. Secondly, whether it does so depends upon whether there is a real risk that the pursuit of the administrative investigation will prejudice, undermine or interfere with the conduct of those criminal proceedings: Attorney-General v Times Newspapers Ltd [1974] AC 273 at 299; BLF at 96. Thirdly, where the person facing prosecution is required to answer questions by such an inquiry this risk is particularly acute because of the capacity of such questions to undermine the accused person’s right against self-incrimination. Fourthly, that risk will also be more pronounced where the identity of the prosecutor and the investigating body are the same or where they are connected in some way: Hammond at 207. Fifthly, a risk may well be shown where a person other than the accused is to be examined by the administrative inquiry: Watson v Commissioner of Taxation [1999] FCA 1796; (1999) 96 FCR 48 at 59-60 [54]- [56].
[40] [2009] FCA 619
Mr Ferdous submits that for the above reasons the Tribunal should have deferred the hearing and its decision pending the resolution of the criminal proceedings. Its failure to do so is said to have been manifestly unreasonable.
The Minister’s contentions – Ground 2(a)
The Minister contends that findings as to credibility are the function of the primary decision-maker par excellence.[41] However, the Minister accepts that findings of credibility can be the subject of successful challenge, including on the basis that the findings were unreasonable in the relevant sense.[42] Determining whether credibility findings are so irrational, illogical or unreasonable so as to be infected with jurisdictional error requires an examination of the facts of the case and of the Tribunal decision.[43]
[41] Re Minister for Immigration; Ex parte Durairajasingham [2000] HCA 1 at [67]; (2000) 168 ALR 407 at 423 per McHugh J
[42] ARG15 v Minister for Immigration [2016] FCAFC 174; 250 FCR 109 at 130 [83]
[43] DAO16 v Minister for Immigration [2018] FCAFC 2; 353 ALR 641 at 649–650 [30]
The Minister submits that here, the Court should reject Mr Ferdous’ claim that an illogical finding has been made. Contrary to Mr Ferdous’ submissions, the Tribunal’s concern expressed at [20], “it is concerning that the applicant thought it appropriate to discuss the witness evidence with the alleged victim during his trial”, was not a concern, in a vacuum, that there was something morally or legally wrong, or impermissible, in Mr Ferdous discussing the evidence that would be given at his criminal trial with his former de facto partner.
Rather, when the findings of the Tribunal are read in context, that comment is said to have been an observation made in the context of the Tribunal’s assessment of the threshold matter for it to determine under s.116(1)(e)(ii), being whether Mr Ferdous’ presence posed a risk to the health or safety of S. In that regard, the Tribunal concluded that, in part because of those discussions concerning the evidence to be given at trial, it could not accept that there was little contact between them.[44] This finding (among others) meant that the Tribunal found the presence of Mr Ferdous in Australia may be a risk to the safety of an individual or individuals.[45]
[44] see [22]
[45] see [23]
There is said to be nothing in illogical, irrational, or unreasonable in that form of reasoning.
The Minister’s contentions - Ground 2(b)
The Minister accepts the uncontroversial propositions that the onus of proof in criminal proceedings rests on the prosecution, that the prosecution cannot compel an accused to assist it, and that if there is to be an alteration of those principles by statute, it must be made “clearly by express words or by necessary intendment”.[46] The Minister accepts, also, that the Tribunal has powers to summons witnesses and documents,[47] and that there is a substantial overlap between the evidence relating to the cancellation decision and the evidence the Local Court would hear.
[46] see e.g. X7 v Australian Crime Commission at [124]-[125] (Hayne and Bell JJ), and see also at [147], [159] (Kiefel J), Lee v R (2014) 253 CLR 455, [46]; R v Leach [2018] QCA 131
[47] section 363(3) of the Migration Act
The Minister invites the Court to reject Mr Ferdous’ contention, on the basis of those matters, that he should not have felt compelled to disclose evidence about pending criminal charges and so the Tribunal acted in a legally unreasonable manner in proceeding to hear and determine the matter while criminal charges were pending.
First, the Minister submits that ss.370(2) and 371(3) of the Migration Act expressly preserve the availability of the privilege against self-incrimination to a person summonsed and to any witness so that it is not the case that the Tribunal’s powers have “the capacity…to undermine the accused person’s right against self-incrimination”.[48]
[48] cf. the recitation of principle at [34] of Cassaniti v Tax Agents’ Board of New South Wales (2009) 179 FCR 1 relied upon at [29] of Mr Ferdous’ submissions
Secondly, and more fundamentally, the Minister submits it is not the case that the issue to be decided in the criminal proceedings was precisely the same as that which the Tribunal determined. The Tribunal did not determine guilt or innocence: the statutory criteria that the Tribunal was required to consider are entirely different. For this reason, there is said to be nothing in s.116(1)(e) of the Migration Act that somehow affects the proposition that the accused has (in effect) a right to silence.[49]
[49] Gong at [45]
The Minister submits that that being the case, the Tribunal’s decision to hear the matter was not legally unreasonable.
Resolution
The Tribunal reasoned as follows in its decision at [18]-[23]:
The Tribunal acknowledges that the applicant denies having committed any offences and he has pleaded not guilty. The Tribunal acknowledges the applicant's and [S’s] evidence that the information recorded by the police was obtained on the basis of the false claims made by friends and such information is not true. The Tribunal finds these claims problematic, firstly because the police report contains quite specific and detailed descriptions of events at least some of which appear to be consistent with the applicant's and [S’s] own evidence - such as the holding of the torch and the pushing of the hand resulting in bruising - and the Tribunal does not accept that the friends had entirely fabricated other aspects of the evidence. Secondly, and more problematically in the Tribunal's view, is the fact that the matter remains unresolved before the courts. Despite the claimed withdrawal of the claims by all witnesses and [S’s] own affidavit evidence, there is no suggestion that the charges have been dropped or that there is any intention to drop the charges.
It is also significant, in the Tribunal's view, that there remains an AVO in place. The AVO prohibits the applicant from assaulting, threatening, harassing, stalking, intimidating [S] or destroying or damaging her property. The Tribunal acknowledges the applicant's evidence that he has complied with the Order and intends to continue to do so in the future. The fact that the AVO was issued, and remains in place, indicates that an assessment has been made that the applicant may be a risk to [S] and that a formal order was required to protect [S] and prevent harmful conduct.
It is of some concern to the Tribunal that the applicant appears unaware of his bail conditions. These would have been explained to the applicant when the bail was granted and the applicant's inability to recall bail conditions may suggest his lack of interest in compliance. It is also of concern to the Tribunal that the applicant has discussed his criminal case, including the evidence, with [S], who is the alleged victim in the proceedings. Although [S] denied this in her evidence to the Tribunal, the applicant himself confirmed that he did discuss the matter with [S]. The Tribunal acknowledges the applicant's evidence that [S] obtained independent legal advice when preparing her affidavit, nevertheless, it is concerning that the applicant thought it appropriate to discuss the witness evidence with the alleged victim during his trial.
The applicant denies that he has committed any violence towards [S] and the alleged victim, as well as a number of others, provided statements to the Tribunal. The Tribunal has considered that evidence. Despite it, the Tribunal is also mindful that the police report indicates that as a result of the incidents, [S] had bruising to her face and arm and a broken nose. The applicant concedes this information while denying the injuries were caused by his conduct.
The Tribunal accepts the applicant's evidence that his relationship with [S] has ended and that they no longer live together, even though they maintain some contact. The Tribunal accepts that there may be no benefit to [S] in offering her evidence that the incident did not involve violence and that the injuries were not caused by the applicant. However, the Tribunal has also had regard to the fact that a formal AVO has been issued and remains in place, that the charges have not been withdrawn and that the criminal matter remains on foot with no suggestion of the charges being withdrawn. The Tribunal places weight on the parties' evidence that during the incident, there appears to have been physical contact which resulted in [S] sustaining bruising, the applicant admits to having 'pushed' her arm and having tried to forcefully remove his phone from [S]. [S] also suffered from a broken nose or displaced cartilage and the evidence in relation to this injury is confused. The police report refers to [S] falling down the stairs. The applicant's and [S’s] evidence is that she probably fell in the corridor and [S] told the Tribunal she was too drunk to remember what happened (which may suggest that anything could have happened). The combination of these factors causes the Tribunal to conclude that the presence of the applicant in Australia may be a risk to [S]. While the Tribunal acknowledges the applicant's and [S’s] evidence that they are no longer in a relationship, live in different areas and have little contact, the Tribunal has formed the view that there is a fair amount of contact between the applicant and [S], given the consistency of their evidence about the events in question and the applicant's evidence to the Tribunal that they did discuss such evidence. [T]he Tribunal does not accept the parties lead entirely separate lives, as they suggest.
The Tribunal is satisfied that the presence of the visa holder in Australia may be a risk to the safety of an individual or individuals. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(e) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.
In my view, on balance, the decision of the Tribunal has been shown to be unreasonable in a legal sense. First, proceeding to make a decision prior to the hearing of the criminal charges against Mr Ferdous necessarily involved a risk. He was entitled to the presumption of innocence.
Secondly, the alleged victim had contradicted the culpability of Mr Ferdous and gave evidence in his support to the Tribunal. Rather than accept her evidence at face value, the Tribunal at [20] turned it against Mr Ferdous, by implying that he may be in breach of his bail conditions in the case before the Tribunal. The Tribunal’s reasons in that paragraph strongly suggest that Mr Ferdous had done something improper by discussing the matter with S. There was in fact nothing in the AVO or the bail conditions that rendered Mr Ferdous’ conduct improper. S was a willing witness who had received independent legal advice before giving her evidence.
In the circumstances of this case the Tribunal in my view should have waited for the criminal trial. Having declined to wait, the Tribunal was wrong to damn Mr Ferdous for attempting to defend himself by calling in his support the one person who could state persuasively whether Mr Ferdous posed a risk to her.
That is, in my view, enough to establish legal unreasonableness. It is unnecessary to consider particular (b) of Ground 2, other than to say that although it was unwise for the Tribunal to proceed in advance of the criminal trial, it was not a contempt of court to do so. The authorities relied on by Mr Ferdous concern the exercise of executive power to compel a witness to give evidence which may incriminate them. Mr Ferdous chose to given evidence to the Tribunal about the facts the subject of the criminal charges. Further, although s.371 of the Migration Act creates an offence if a sworn witness refuses to answer a question, subsection (3) preserves the rule against self incrimination.
Conclusion
Mr Ferdous has succeeded in establishing that the decision of the Tribunal is affected by jurisdictional error. He should receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 28 August 2019
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