HSKJ v Minister for Immigration and Border Protection

Case [2018] FCA 1013

FEDERAL COURT OF AUSTRALIA

HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013

File number: WAD 579 of 2017
Judge: BANKS-SMITH J
Date of judgment: 6 July 2018
Catchwords: MIGRATION – application to review decision of Administrative Appeals Tribunal – mandatory cancellation of visa by delegate under s 501CA of the Migration Act 1958 (Cth) – whether jurisdictional error in Tribunal treating some considerations under Direction 65 as secondary considerations – matter remitted
Legislation: Migration Act1958 (Cth) ss 476A, 501, 501CA
Cases cited:

Awa v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 63; (2002) 189 ALR 328

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 450

HSKJ and Minister for Immigration and Border Protection [2017] AATA 1802

Minister for Immigration and Ethnic Affairs vWu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Date of hearing: 29 June 2018
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 45
Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter
Counsel for the First Respondent: Mr AN Gerrard
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The second respondent filed a submitting notice

ORDERS

WAD 579 of 2017
BETWEEN:

HSKJ

Applicant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

BANKS-SMITH J

DATE OF ORDER:

6 JULY 2018

THE COURT ORDERS THAT:

1.The decision of the Administrative Appeals Tribunal dated 19 October 2017 be set aside and the matter be remitted to the Tribunal for reconsideration according to law.

2.The first respondent pay the applicant's costs of the application to be assessed if not agreed.

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


REASONS FOR JUDGMENT

BANKS-SMITH J:

  1. The applicant applies pursuant to s 476A(1)(b) of the Migration Act1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) in relation to s 501 of the Migration Act. Although initially commenced by way of a purported appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), it was common ground at the hearing that the Court has jurisdiction under s 476A of the Migration Act and the matter proceeded on that basis.

  2. The applicant is a citizen of Iraq.  He arrived in Australia in 2010 aged 20 and was granted a Class XB Subclass 200 (Refugee) visa.  He arrived in Australia with his mother and sister.  A second sister was granted a visa in the United States.

  3. Shortly after arriving in Australia, the applicant was convicted in the District Court of Western Australia of multiple aggravated burglary offences, dishonesty offences and driving offences.  He was sentenced to a total effective sentence of three years imprisonment with a non-parole period of eighteen…

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Details
AGLC
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
Case
[2018] FCA 1013
Decision Date

CaseChat Overview and Summary

HSKJ, the applicant, has sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) to dismiss his application for review of the Minister's decision to cancel his visa under section 501CA of the Migration Act 1958 (Cth). The AAT upheld the delegate's decision to cancel the applicant's visa on character grounds, finding that there were no other considerations that warranted revocation of the cancellation. The central issue before the court was whether the Tribunal erred in treating certain considerations as secondary, which is not consistent with the direction issued by the Minister. This issue was recently considered by Colvin J in Suleiman v Minister for Immigration and Border Protection, where it was held that the Tribunal had erred in its approach.

The court examined the relevant provisions of Direction 65, which outline the considerations for decision-makers when assessing visa cancellations. It noted that Direction 65 does not explicitly categorise any considerations as secondary but rather requires an evaluation of the appropriate weight to be given to both primary and other considerations. The court found that the Tribunal had misapplied the direction by treating some considerations as inherently secondary, thereby committing a jurisdictional error. The court held that the Tribunal's approach was inconsistent with the direction's requirement for an individualised assessment of the weight of each consideration. It emphasised that the Tribunal should not have presumed that other considerations are always of lesser importance.

In light of this error, the court set aside the AAT's decision and remitted the matter back to the Tribunal for reconsideration in accordance with the law. The court also ordered the Minister to pay the applicant's costs of the application, to be assessed if not agreed. The court's decision underscores the importance of adhering to the specific guidance provided in ministerial directions when making decisions affecting an individual's visa status.

Orders

Orders of the court

1. The decision of the Administrative Appeals Tribunal dated 19 October 2017 be set aside and the matter be remitted to the Tribunal for reconsideration according to law.

2. The first respondent pay the applicant's costs of the application to be assessed if not agreed.

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

At the outset, it is important to note that the issue for consideration in this matter is the use of the term 'secondary' in the exercise of weighing considerations in the context of a written direction given by the Minister, being Direction 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65). The issue was considered recently by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594. The same Tribunal Deputy President who determined the review the subject of Suleiman determined the review application in this case. In Suleiman it was held that there was jurisdictional error by the Deputy President. This application first came before me shortly after the delivery of Suleiman. As it happens, the applicant sought an adjournment on that date and in the circumstances, I granted an adjournment. The Minister's counsel was therefore in a position to properly address Suleiman at the adjourned hearing. The Tribunal's decision The Tribunal's reasons proceeded by first addressing the legislative structure and reference to Direction 65 as follows:(a)on the evidence before it as to the applicant's convictions, it is common ground that the applicant does not pass the character test and was liable for mandatory cancellation of his visa (s 501(6) and s 501(3A) of the Migration Act);(b)it was then for the Tribunal to assess whether, standing in the Minister's shoes, it should revoke the cancellation of the applicant's visa;(c)Section 501CA(4) of the Migration Act relevantly provides that the Minister (and the Tribunal) may revoke the mandatory cancelation of an applicant's visa if there is another reason why the original decision should be revoked;(d)in considering whether there is 'another reason' the Tribunal must consider Direction 65;(e)the Tribunal then recorded paragraph 6.2 of Direction 65 (General Guidance), and paragraph 6.3 (Principles);(f)paragraph 7(1) (headed 'How to exercise the discretion') requires that informed by the principles in paragraph 6.2, the Tribunal must take into account the considerations in Part C; (g)paragraph 8 (headed 'Taking the relevant considerations into account') then provides:(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 the visa.(4)Primary considerations should generally be given greater weight than the other considerations. [the Tribunal substituted 'more' for 'greater'](5)One or more primary considerations may outweigh other primary considerations.(h)paragraph 13 in Part C sets out the three primary considerations that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant's visa:(i)protection of the Australian community from criminal or other serious conduct;(ii)the best interests of minor children in Australia; and(iii)expectations of the Australian community;(i)by paragraph 13.1, in considering the protection of the Australian community as referred to in Part C the Tribunal is to have regard to the nature and seriousness of the person's conduct to date and the risk to the Australian community should the person commit further offences or engage in other serious conduct.

Ratio Decidendi

Legal Principle Established

Direction 65 refers to 'primary' and 'other considerations'. It does not describe any considerations as 'secondary'. Colvin J found that the use of the word secondary by the Tribunal indicates that the 'other considerations' are always of lesser importance (at [23]). His Honour continued (at [23]–[24]):However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.This is a different question to that posed by the Tribunal which was whether a finding as to a consideration which had been classified as a secondary consideration outweighed the primary considerations which were normally to be given greater weight.Consideration in this case As is apparent from paragraphs [96]–[98] of the Tribunal's reasons (above), the Tribunal asked itself the same question as it asked in Suleiman ('whether this finding in relation to what is an 'other' or secondary consideration outweighs the Tribunal's findings in relation to the primary considerations') and used the same language as in Suleiman of the primary considerations outweighing the secondary considerations. When asked how this Court would properly distinguish the approach of the Deputy President in this case from his approach in Suleiman, and depart from or distinguish the decision of Colvin J, counsel for the Minister submitted, in effect, that:(a)the reasons of the Tribunal are to be given a beneficial construction, consistent with the High Court decision in Minister for Immigration and Ethnic Affairs vWu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 and that rather than focus on the word 'secondary' with an eye keenly attuned to the perception of error the focus should be on the task in fact undertaken by the Tribunal;(b)the word 'secondary' can sometimes just be convenient shorthand for 'other' in the context of Tribunal hearings;(c)the real question is whether the reasons indicate that the Tribunal considered such 'other' considerations must always be afforded less weight; and(d)there is nothing to suggest the Tribunal failed to comply with Direction 65.