Kautoga v Minister For Immigration and Anor (No.2)

[2015] FCCA 1679

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUTOGA v MINISTER FOR IMMIGRATION & ANOR (NO.2) [2015] FCCA 1679

Catchwords:
MIGRATION – Migration Review Tribunal – Temporary Work (Long Stay Activity) visa – irrelevant consideration – where the applicant had been charged with a serious offence – where the Tribunal took into account the applicant’s criminal charges in assessing the circumstances in which the ground for cancellation arose – jurisdictional error – application allowed.

Legislation:  

Migration Act 1958 ss.116, 476

Kovalev v Minister for Immigration & Multicultural Affairs [1999] FCA 557
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Applicant: RATU PIO TIKOVAKAYALEWA KAUTOGA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1092 of 2015

Judgment of: Judge Street

Hearing date: 17 June 2015

Date of Last Submission: 17 June 2015

Delivered at: Sydney

Delivered on: 17 June 2015

REPRESENTATION

Counsel for the Applicant: Mr N. Poynder

Counsel for the Respondent: Mr M.J. Smith

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. A writ of certiorari shall issue removing the record of the Migration Review Tribunal decision made on 23 March 2015 into this Court for the purpose of quashing it.

2. A writ of mandamus shall issue requiring the Migration Review Tribunal to re-determine the review application before it according to law.

3. The first respondent pay the applicant’s costs fixed in the sum of $6825.

Pursuant to r.16.05(2)(e) of the Federal Circuit Court Rules 2001 (Cth), Orders 1 and 2 of the Orders entered on 17 June 2015 are amended to correct the Orders by substituting in Orders 1 and 2 “Migration Review Tribunal” in place of “Refugee Review Tribunal”.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1092 of 2015

RATU PIO TOKVAKAYALEWA KAUTOGA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court's jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal affirming a decision to cancel the applicant's Subclass 401 (Temporary Work (Long Stay Activity)) visa.  The decision was made on 23 March 2015 in respect to a decision which the delegate refused on 2 July 2014.

2. The ground of the amended application is as follows:

   The decision of the second respondent was affected by jurisdictional error, in that the matters relied upon by the second respondent at [36] of its decision record, namely that the applicant had been charged with criminal offences, were in the circumstances of the present case irrelevant considerations.

3. This is a case where the Minister consented to the issue of writs on the basis of a note as follows:

   The First Respondent concedes that the decision of the Second Respondent is affected by jurisdictional error and that the matters relied upon by the Second Respondent at [36] of its decision record, namely that the First Applicant has been charged with criminal offences, were in the circumstances of the present case irrelevant considerations.

4. The Court in exercising its powers to make any order by consent is exercising the judicial power of the Commonwealth and must be satisfied that it is appropriate to make the order; see Kovalev v Minister for Immigration & Multicultural Affairs [1999] FCA 557.

5. In this case the Tribunal found a breach of condition 8107 and found it was not necessary to determine whether there was a breach of condition 8303.  The delegate had found a breach of condition of 8303 and 8107.  It was in those circumstances the Tribunal turned to the consideration of the discretion and specifically, the relevant matters to which the Tribunal would have regard, including but not limited to the matters identified within the Department's Procedures Advice Manual, (PAM3), under the heading General Visa Cancellation Powers. 

6. It is apparent that by reference to that manual, the Tribunal turned to a number of subheadings, including the subheading Circumstances in which ground of cancellation arose.

7. What the Tribunal said under that subheading is as follows: 

   36. The applicant’s visa was cancelled by the Department because the delegate was not satisfied the applicant had complied with condition 8303 after he was charged with four criminal offences. The Tribunal notes the former representative’s argument that the applicant has not been convicted of the charges and should be accorded the presumption of innocence. Although the Tribunal did not consider it necessary to determine whether the applicant had breached condition 8303 as it had found that the applicant breached condition 8107, it has nevertheless considered the circumstances which led to the cancellation and has had regard to the fact is that the applicant has been charged by the NSW police with four criminal offences, which the Tribunal considers to be very serious, as reflected by the strict bail conditions imposed.

8. There is no doubt that had the Tribunal taken into account the laying of criminal charges in respect of serious offences in determining whether there was a breach of condition 8107, that would have been a jurisdictional error.

9. Mr Poynder sought to advance the argument that the laying of criminal charges in respect of a serious offence should be regarded as a circumstance that is irrelevant to the exercise of discretion within the meaning of Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at [40], and that what should have been considered as to discretionary matters should have been confined to the circumstances in which the breach of condition 8107 arose.

10. The subject matter, scope and purpose of the Migration Act is clearly to protect the Australian public and the Minister, correctly in my view, maintained that the charging of a serious criminal offence was capable of being a relevant circumstance to which the Minister might have regard in the exercise of discretion under s.116 of the Migration Act. That proposition is, in my opinion, correct. The relevance of that matter to the exercise of the discretion does not sit neatly with the error conceded by the Minister. The court was not satisfied that the error conceded was correct or that the orders with the proposed notation were appropriate orders in light of the relevance of the laying of serious charges to the discretion under s.116.

11. The Court provided the parties with an opportunity to reformulate the proposed note in respect of the suggested consent orders to determine whether there was an order that was appropriate, and the parties came up with a further note:

    In considering its discretion under section 116 of The Migration Act 1958 (Cth), the applicant’s criminal charges should not have been treated as “circumstances in which the ground for cancellation arose”, as the MRT did at [36].

    The MRT at [36] treated the applicant’s criminal charges as being “circumstances in which the ground for cancellation arose” on the basis that the ground for cancellation relied upon by the delegate was enlivened by the criminal charges.

    This reflected a misunderstanding of the PAM3.When considering “the circumstances in which the ground for cancellation arose” the MRT should only have considered the circumstances which led to the ground for cancellation relied upon by the MRT, to which the criminal charges had no relevance.

12. The revised note still refers to the criminal charges as having no relevance which is a proposition that is wrong in relation to the general discretion under s.116. That note clearly identified that there was a misunderstanding of the Tribunal in relation to PAM3 in having regard to the breach of condition 8303, as if that was the ground of cancellation to which the circumstances in which the ground of cancellation arose in the PAM3 were directed.

13. I accept Mr Poynder's submission that the circumstances in which the ground of cancellation arose are directed to the ground of cancellation found by the Tribunal, not the ground of cancellation found by the delegate.  The ground of cancellation found by the Tribunal was a breach of condition 8107.

14. The Tribunal, under a heading, Any other relevant matters raised by the visa holder, returned to the breach of condition 8303 in para. 45:

    45. The Tribunal has also considered the former representative’s submission that the ground on which the Department relied to cancel the applicant’s visa was baseless and that the applicant, having been granted bail by the magistrate, demonstrated that he was not a threat to the community. Firstly the Tribunal notes that the Court, in considering whether to grant bail, determined that there was an unacceptable risk but that risk could be mitigated by imposing strict conditions. The Tribunal does not accept that the applicant, having been granted bail, was not considered to be a threat to the community and this is reflected in the strict bail conditions imposed on him, which suggests that the courts did consider that there was a risk but sought to mitigate that risk by imposing very strict bail conditions. Secondly, the Tribunal does not accept that the applicant’s reliance on condition 8303 to cancel the applicant’s visa was baseless. The fact is that the applicant was charged with serious criminal offences by the NSW police and while the Tribunal did not itself determine whether 8303 had been breached, it considers that it was open for the delegate on the evidence to find that the applicant had breached 8303.

15. In circumstances where the Tribunal had not found a breach of condition 8303, to take into account the delegate's reasoning about the breach of condition 8303 under PAM3 as being the circumstances in which ground cancellation arose, was an illogical consideration. It appears that the Tribunal took into account the same illogical consideration as to the finding of the delegate being open in respect of a breach of condition 8303 under the heading, Any other relevant matters raised by the visa holder. The Tribunal did not itself make any such finding of breach of condition 8303. In my opinion these illogical considerations manifest irrational reasoning on a material issue as to the exercise of the discretion under s.116 of the Migration Act.

16. The applicant has been charged with three serious offences and it was open to the Tribunal to consider and determine whether there was a breach of condition 8303. There was material before the Tribunal concerning the facts alleged in respect of the alleged offences and the identification of the accused, but no reference was made to this material nor any findings made concerning the alleged conduct. The Tribunal having determined that it was not necessary to assess whether there was a breach of condition 8303, then took into account the delegate's finding of breach in the exercise of the discretion under s.116. Taking into account the delegate’s finding of breach in these circumstances was an illogical consideration for the reasons identified and constitutes in my opinion irrational reasoning on a material issue in the exercise of the discretion under s.116 that constitutes a jurisdictional error.

17. I should add, in relation to condition 8303, that the laying of charges does not of itself prove any fact constituting violence within condition 8303 and that the mere existence of the laying of serious offence charges cannot of itself give rise to a breach of condition 8303.  It is a matter for the Tribunal to make findings on the balance of probabilities where an issue under condition 8303 arises or to make findings in respect of conduct where an issue arises relevant to the discretion that is taken into account. 

18. Where a breach of a condition within s.116 of the Migration Act has been made out of a kind in respect of which a discretion arises, as in the present case, it would be open to the Tribunal as a relevant matter to take into account as a general discretionary consideration that a person has been charged with serious criminal offences. Equally in those circumstances it would be open to the Tribunal to take into account as a relevant matter under s.116 where a general discretion arises findings made by the Tribunal as to conduct by reason of which the Tribunal finds that that person is a danger to the public. It is however irrational reasoning in the exercise of the discretion that may arise under s.116 to make no findings about particular conduct and then purport to take into account findings as to conduct made by the delegate.

I certify that the preceding eighteen (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  3 July 2015