GCLV v Minister for Home Affairs
[2019] FCA 845
•7 June 2019
FEDERAL COURT OF AUSTRALIA
GCLV v Minister for Home Affairs [2019] FCA 845
Appeal from: Application for review: GCLV and Minister for Home Affairs (Migration) [2018] AATA 4460 File number: NSD 2396 of 2018 Judge: BROMWICH J Date of judgment: 7 June 2019 Catchwords: MIGRATION – application for review of a decision of the Administrative Appeals Tribunal – where mandatory visa cancellation made pursuant to s 501(3A) of the Migration Act 1958 (Cth) – consideration of Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – whether Tribunal committed jurisdictional error in failing to consider non-refoulement obligations – whether Tribunal committed jurisdictional error in reliance on custody records as periods of imprisonment – held: application dismissed with costs Legislation: Migration Act 1958 (Cth) ss 501(3A), 501CA, 501CA(3), 501CA(4), 501E(2)(a)
Ministerial Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
Ministerial Direction No. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b)
Cases cited: Ali v Minister for Immigration and Border Protection [2018] FCA 650
Navoto v Minister for Home Affairs [2019] FCA 295
Date of hearing: 31 May 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 24 Counsel for the Applicant: Mr J Gormly Solicitor for the Applicant: Labour Pains Legal Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: MinterEllison Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
NSD 2396 of 2018 BETWEEN: GCLV
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMWICH J
DATE OF ORDER:
7 JUNE 2019
THE COURT ORDERS THAT:
1.The amended application be dismissed.
2.The applicant pay the first respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMWICH J:
In the period immediately prior to coming to Australia in 1983 from El Salvador on a humanitarian visa, the applicant had been imprisoned on political grounds and tortured. He was 22 years of age when he came here, and is now 58. He lived in the Australian community on a Class BF transitional (permanent) visa from 1994 until 27 September 2017, when that visa was cancelled while he was in prison on a shoplifting conviction. Upon completing his non-parole period on 3 January 2018, he was taken into immigration detention, where he remains.
He applied for a protection visa, but that application was found to be invalid because he did not pay the requisite $35 fee. He was told that he could make a further protection visa application, but has not yet done so. The visa cancelation decision remaining on foot is not an impediment to him making a further application for a protection visa: see s 501E(2)(a) of the Migration Act 1958 (Cth).
The visa cancellation decision made by a delegate of the Minister under s 501(3A) of the Migration Act was mandatory by reason of the applicant failing the character test, arising out of his conviction and imprisonment for 12 months on the shoplifting charge, with a nine month non-parole period. The magnitude of that sentence was due to a very lengthy criminal history, of mostly less serious offences, as detailed below. On appeal, the conviction and head sentence were confirmed, but the non-parole period was reduced to six months.
The Minister gave written notice of the visa cancellation decision, and invited the applicant to make representations as to whether that decision should be revoked, in accordance with s 501CA(3) of the Migration Act. The applicant responded to that invitation by requesting that the visa cancellation decision be revoked under s 501CA(4), and made representations in support of that request. The Minister, including via a delegate, has a discretion to revoke the visa cancellation decision under that provision if such representations are made, and the Minister is satisfied that the applicant passes the character test or there is another reason why that decision should be revoked.
In his representations, the applicant expressly acknowledged that he failed the character test, but advanced other reasons why the visa cancellation decision should nonetheless be revoked. The Minister had an obligation to consider or take into account matters of sufficient importance in the representations: Navoto v Minister for Home Affairs [2019] FCA 295 at [31]-[47].
A delegate of the Minister was not satisfied that there was another reason to revoke the visa cancellation decision. A merits review application to the Administrative Appeals Tribunal failed, and the delegate’s decision was affirmed. By an amended application for judicial review, the applicant seeks to have the Tribunal’s decision set aside and be re-determined.
Two jurisdictional errors are asserted by the applicant in an amended application for judicial review. It is convenient to reproduce the text of those judicial review grounds verbatim, rather than endeavour to summarise their effect:
1.The Tribunal constructively failed to exercise to its jurisdiction because it failed to carry out its statutory task of review.
Particulars
The Tribunal misunderstood its task in concluding that its obligation to consider international non-refoulement obligations could be substituted by a future application for a protection visa considered in accordance with Direction No. 75, and that the Tribunal could thereby avoid consideration of serious and substantive representations made to it that the applicant was a person to whom Australia owed non-refoulement obligations.
2.The Tribunal’s assessment of the nature and seriousness of the applicant’s criminal offending, to the extent it relied on Movement Records maintained by the NSW Department of Corrective Services as a record of imprisonment upon conviction, was unreasonable in that it lacked an evident and intelligible justification.
Particulars
The Movement Records were not and did not purport to be “a record of periods in imprisonment as a result of [the applicant’s] offences” and included the following periods the applicant spent in custody and remand, not pursuant to a sentence of imprisonment:
6.7.1993 – 20.7.1993
2.3.1995 – 23.4.1995
23.4.2002 – 25.04.2002
13.3.2009 – 21.05.2009
28.1.2015 – 19.3[.]201521.5.2015 – 4.6.2015
Ground 1
The applicant ultimately advanced his argument upon the express basis that the reasoning in all cases involving non-revocation decisions by the Minister, or by the Minister’s Parliamentary Secretary, as opposed to those by a delegate reviewed by the Tribunal, were distinguishable because of the binding effect on the latter of Direction 65 (Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA) did not apply to them. His argument on this ground turned on the meaning to be given to the relevant part of Direction 65, with the reference in the pleaded ground to Direction 75 (Direction No. 75 – Refusal of Protection visas relying on section 36(1C) and section 36(2C)(b)) largely falling away.
This ground of review turns on the part of the Tribunal’s reasons dealing with what were treated as non-refoulement obligation claims made by the applicant and the terms of the relevant portion of Direction 65. In order to evaluate the applicant’s arguments, it is necessary to reproduce [14(1)(a)] of Direction 65 and [66] to [72] of the Tribunal’s reasons:
(1)Paragraph 14(1)(a) Direction 65 is as follows:
14. Other Considerations – revocation requests
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
…
14.1 International non-refoulement obligations
…
(2)Paragraphs 66 to 72 of the Tribunal’s reasons are as follows (footnotes omitted):
Paragraph 14.1(1) of the Direction articulates Australia’s non-refoulement obligations in accordance with international human rights treaties and, in particular, the “obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm”. The Direction, at paragraphs 14.1(2) and (4), also states:
(2) The existence of a non-refoulement obligation does not preclude non‑revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
…
(4) Where a non-citizen makes claims which may give rise to international non‑refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
Relying on paragraph 14.1(4), the Minister provided written submissions that it is unnecessary for the decision-maker (in this matter, the Tribunal) to make a determination in relation to international non-refoulement obligations where the applicant can make a valid application for another visa.
The applicant lodged an application for a protection visa on 18 January 2018. Unfortunately, the applicant was notified by the Department in a letter dated 18 January 2018 that this application is invalid because he did not pay the base application charge of $35. I note that the Department has advised the applicant that he may make a new application for a protection visa.
The applicant has made various claims regarding non-refoulement obligations. These include that he was incarcerated and tortured as a “political prisoner” in El Salvador for approximately two years prior to coming to Australia and he will be “persecuted” if he is deported to El Salvador.
I accept these claims by the applicant. However, in considering non‑refoulement obligations, I have regard to the decision made on 10 May 2018 by Flick J in Ali v Minister for Immigration and Border Protection [[2018] FCA 650].
In view of Direction No. 75 – Refusal of protection visas relying on section 36(1C) and section 36(2C)(b) (Direction No. 75) made by the Minister under section 499 of the Act on 5 September 2017, Flick J held [at 30] that:
To the extent that an application may be made at some point of time in the future for a Protection visa, that being an application which may well be expected given the fact that the visa cancelled by the delegate was a Global Special Humanitarian visa and the submission already made as to non-refoulement, that would be an application to be resolved if and when it was made and resolved in accordance with Direction No 75.
Consequently, I find in the circumstances of this matter, where it is open for the applicant to reapply for a protection visa, that any potential claims by the applicant in relation to non-refoulement should be addressed in accordance with Direction No. 75 if or when he reapplies for a protection visa.
The applicant’s argument, which involved a substantial departure from the thrust of his initial written submissions, comes down to an ostensibly simple proposition. It is that [14.1(4)] of Direction 65, in the context of the obligation in [14(1)(a)] to take into account (when relevant) Australia’s international non-refoulement obligations, should be read beneficially. He submits that such a beneficial reading would enable Australia’s non-refoulement obligations to be taken into account in the exercise of the discretion to revoke a visa cancellation decision, regardless of whether the applicant could make a separate application for a protection visa. He submits that is the purpose of [14.1] in the context of the [14(1)(a)] obligation. This argument does not turn upon any consideration of Direction 75.
The applicant disavows any suggestion that the Tribunal taking non-refoulement claims into account must necessarily lead to revocation taking place. But he does maintain that there is a meaningful distinction to be drawn between making a “final” determination as to whether non-refoulement obligations are owed to him (which [14.1(4)] of Direction 65 expressly directs is unnecessary), and merely making an assessment of his non-refoulement claims. The applicant therefore submits that the Tribunal, at [69] and [70] (reproduced at [9(2)] above), by:
(1)referring to his claims regarding non-refoulement obligations, including a summary of those claims and accepting those claims;
(2)but adopting the views of Flick J in Ali v Minister for Immigration and Border Protection [2018] FCA 650 to the effect that those claims could be addressed in a separate protection visa application assessed in accordance with Direction 75,
thereby failed to assess his non-refoulement claims and thereby fell into jurisdictional error. It was not disputed that his claims of fearing harm were assessed by the Tribunal as part of the impediments he would face upon his return.
In the context of the exercise of a s 501CA(4) visa cancellation revocation discretion, contrary to the applicant’s submissions, there is no meaningful distinction between making a so-called “final” determination as to whether non-refoulement obligations are owed to the applicant and making an assessment of his non-refoulement claims. Either Australia has non-refoulement obligations in relation to the applicant, or it does not. The live issue is whether [14(1)(a)] of Direction 65, in the context of [14.1], permits or requires the applicant’s claims in relation to non-refoulement obligations to be considered by the Tribunal in the sense of being taken into account in assessing his revocation request.
There is no room for the applicant’s asserted beneficial reading of [14.1(4)] of Direction 65. What is required is a literal reading. The applicant was clearly able to make a valid application for another visa, relevantly a protection visa, if the visa cancellation decision was not revoked, as happened. All that was absent from his prior protection visa application to make it valid was the payment of a fee of $35. In those circumstances, in compliance with the express terms of [14.1(4)] of Direction 65, it was expressly not necessary for the Tribunal to determine whether non-refoulement obligations were owed to the applicant for the purpose of determining whether the visa cancellation decision should be revoked.
Ground 1 must therefore fail.
Ground 2
This ground takes issue with the way in which the Tribunal calculated the aggregate period of time the applicant had spent in prison as a result of a large number of offences committed in the almost 30 year period from September 1986 to January 2017. The Tribunal annexed to the reasons a table of court appearances and sentences imposed and summarised those offences in its reasons as follows, including the most recent conviction and sentence giving rise to the visa cancellation decision (at [26]-[28], omitting a footnote):
The applicant has an extensive criminal record dating from September 1986 to November 2017. His National Police Certificate dated 7 December 2017 shows that, during this period, he appeared before Courts on 56 occasions and was convicted in relation to 103 separate offences.
The applicant’s offences, as described in his National Police Certificate, are set out in Annexure A to this decision and include convictions for:
•stealing / shoplifting / larceny / receive or dispose of stolen property;
•goods in personal custody / goods in personal custody reasonably suspected of being stolen;
•possess prohibited drug / possess or attempt to possess prescribed restricted substance / bring or introduce proscribed poison into place of detention;
•self-administer or attempt to self-administer prohibited drug;
•possess prohibited drug (cannabis) / supply prohibited drug (cannabis) / possess prohibited drug (heroin);
•unregistered driving / unlicensed driving / negligent driving / driving in a dangerous manner;
•common assault / assault with intent to rob with striking; and
•enter enclosed land not prescribed premises without lawful excuse.
On 4 July 2017, the applicant appeared in the Burwood Local Court and was convicted of the offence “Shoplifting value <=$2000-t2” and sentenced to 12 months imprisonment with a non-parole period of four months with conditions. This order was confirmed in the Downing Centre District Court on 20 September 2017 and the applicant was sentenced to 12 months imprisonment with a non-parole period of nine months with conditions. The order was varied in the Downing Centre District Court on 23 November 2017 and the applicant was sentenced to 12 months imprisonment with a non-parole period of six months.
The Tribunal then relied upon records from the New South Wales Department of Corrective Services to work out how much time in prison had resulted from the various convictions and sentences. The Tribunal said of those records as follows (at [29], emphasis added, footnote omitted):
The applicant’s Conviction, Sentences and Appeals Record maintained by the NSW Department of Corrective Services shows he has spent the following extended periods in imprisonment as a result of his offences:
•23 May 1990 – 22 February 1991;
•22 February 1992 – 20 April 1992;
•6 July 1993 – 30 November 1994;
•2 March 1995 – 5 October 1995;
•21 August 1996 – 2 September 1997;
•25 August 2000 – 24 February 2001;
•23 April 2002 – 21 September 2003;
•2 October 2004 – 26 March 2005;
•9 July 2005 – 7 September 2005;
•24 November 2005 – 23 February 2006;
•13 March 2009 – 23 April 2009;
•18 June 2009 – 2 July 2009;
•6 October 2009 – 19 October 2009;
•30 November 2009 – 21 May 2010;
•29 January 2011 – 27 July 2011;
•28 January 2015 – 19 March 2015;
•21 May 2015 – 4 June 2015; and
•4 July 2017 – 3 January 2018.
These periods total approximately eight years from May 1990 to January 2018.
The Tribunal then assessed the nature and seriousness of the applicant’s conduct to date, and the risk to the Australian community should he commit further offences or engage in other serious conduct, as required by [13.1] of Direction 65. The Tribunal made the following assessment (at [31]-[33] and [35]-[36], omitting footnotes, emphasis added):
The applicant’s criminal record, set out at Annexure A and summarised at paragraphs 26 to 28 above, shows a pattern of repeated criminal offending by the applicant in Australia over a period of more than 30 years. As outlined in paragraph 29 above, the applicant’s offences have resulted in him being incarcerated on 18 occasions for an accumulated (total) period of approximately eight years.
The applicant’s criminal offending includes two violence-related incidents, the offence of common assault and the offence of assault with intent to rob with striking. His record, however, mostly reflects a repeated pattern of stealing items to sell and fund his drug use.
The applicant’s visa was mandatorily cancelled because of his conviction of shoplifting on 4 July 2017, which resulted in the applicant being sentenced to 12 months imprisonment. A New South Wales Police Fact Sheet described the offence in which the applicant and an associate stealing bottles of perfume from Chemist Warehouse to the value of $2,047.48. The offence was captured on CCTV and the applicant and his associate were later charged with the offence.
…
I note the Magistrate, in sentencing the applicant to 12 months imprisonment, considered the mitigating circumstances of the applicant’s situation and his “poor” prospects of rehabilitation.
The applicant did not dispute his criminal record at the Tribunal hearing and accepted that his offending mostly related to stealing items to fund his alcohol, drug and gambling addictions. However, some of his evidence was not consistent with his criminal record in the National Police Certificate dated 7 December 2017. For example, an undated written statement filed by the applicant with his application for a protection visa lodged on 18 January 2018 noted his “last offence was 5 years over 5 years ago [sic]” and his “only offence that has involved violence” was his offence of common assault. Despite his National Police Certificate showing criminal offences in 2012, 2013, 2015 and 2016, the applicant reiterated at the Tribunal hearing that he had not offended in the past five years.
After referring to certain errors made by the applicant in recording his convictions, the warnings that he had been given, and the representations made in response to the warnings by which the Tribunal found that he was aware that further criminal convictions may result in the cancellation of his visa, the Tribunal concluded as follows (at [42]-[43]):
Considering the relevant factors set out in paragraph 13.1.1 of the Direction, I find that:
•The applicant’s record of criminal offences in Australia includes repeated serious offences relating to drug offences and theft.
•The applicant has been sentenced to terms of imprisonment on numerous occasions. This indicates the objective seriousness of the applicant’s offending because sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.
•There has been a cumulative effect due to the applicant’s repeated offending and he has continued to offend despite repeated warnings from the judicial system.
•The applicant received written warnings from the Department in 2003, 2006, 2007 and 2011 that any further offending would result in the cancellation of his visa.
I am satisfied that the frequency and cumulative effect of the applicant’s criminal offending over a period of 30 years is a matter of extremely serious concern. I find that the nature and seriousness of his offending weighs heavily against him.
The applicant relies upon a comparison of the Court sentence records and the Corrective Services detention records to identify six periods in custody, totalling some eight months, which cannot, on the face of those records, be attributed to a sentence that was imposed by a court. He therefore submits that the Tribunal has proceeded upon the basis that, rather than having served prison terms totalling approximately eight years (being the references in bold in the passages of the Tribunal’s reasons reproduced above at [16] and [17]), he has served aggregate prison terms that are eight months less than the Tribunal’s calculations, and therefore closer to an aggregate of seven years. He submits that the Tribunal should understand what the records before it were actually saying, that this misunderstanding led to a belief that the aggregate criminal sentences were longer than they really were, and that this could have made a material difference to the Tribunal’s decision.
It may be assumed for present purposes that the asserted error in calculation has in fact taken place, despite that assumption being of doubtful reliability as ordinarily criminal courts endeavour to bring time spent in custody to account in imposing prison sentences, such as by backdating sentences. Of course, that is not possible if a person is remanded in custody for an offence which does not result in a conviction, but there is nothing to indicate that this circumstance applied to the applicant. However, upon that assumption being correct without any qualification, the Tribunal should have said “approximately seven years” instead of “approximately eight years” in the passages of the Tribunal’s reasons reproduced above at [16] and [17]. However, I cannot accept that this would have amounted to anything more than a factual error, and an insubstantial one at that. I cannot see how it could possibly have made any material difference to the outcome. That is so for the following reasons.
First, the Tribunal did not proceed upon an absolute figure of eight years, but rather an approximate figure. In context, the Tribunal’s concern was that a large number of relatively less serious offences had produced an aggregate sentence that was much longer than otherwise might have been expected for such convictions. It was an issue of an order of magnitude. In context there was no material difference between “approximately seven years” instead of “approximately eight years”.
Secondly, while the phrase “approximately eight years” was recorded twice, the Tribunal’s findings at [42] and [43], reproduced at [18] above, do not rely upon any particular aggregate duration, but rather more generally upon the cumulative effect. There is no sound reason to think that the result could have been any different if the earlier references had instead been to “approximately seven years”. In particular, the conclusions at [42] and [43] would not have changed.
This ground of review must therefore also fail.
Conclusion
As both grounds of review have failed, the amended application must be dismissed. There is no reason why costs should not follow the outcome.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich . Associate:
Dated: 7 June 2019
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