Lee v Minister for Home Affairs

Case [2019] FCA 1669

FEDERAL COURT OF AUSTRALIA

Lee v Minister for Home Affairs [2019] FCA 1669

Appeal from: Lee and Minister for Home Affairs (Migration) [2019] AATA 871
File number: NSD 846 of 2019
Judge: ABRAHAM J
Date of judgment: 11 October 2019
Catchwords: MIGRATION – application for judicial review – where a delegate of the Minister cancelled the applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) – where the delegate refused to revoke the cancellation under s 501CA(4) – where Administrative Appeals Tribunal affirmed the decision of the delegate – where certain documents not provided to applicant – whether failure to provide documents contravened s 501G(2) – application refused
Legislation:

Migration Act 1958 (Cth) ss 501(3A), 501CA(4)(b)(ii), 501G(2), 501G(2)(e), 476A, Direction No. 79

Crimes Act 1914 (Cth) s 16BA

Cases cited:

Afu v Minister for Home Affairs [2018] FCA 1311

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352

Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627

Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415; (2000) 97 FCR 387

Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1

Navoto v Minister for Home Affairs [2019] FCA 295

Navoto v Minister for Home Affairs [2019] FCAFC 135

R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106

Re Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1990 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146

SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79; (2010) 185 FCR 129

Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531

ESU17 v Minister for Home Affairs [2019] FCA 300

AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227

CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611

Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99

Date of hearing: 9 September 2019
Registry: New South Wales
Division:  General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 68
Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter
Counsel for the First Respondent: Mr G Johnson
Solicitor for the First Respondent: Clayton Utz
Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

ORDERS

NSD 846 of 2019
BETWEEN:

SANG FOO LEE

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

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Details
AGLC
Lee v Minister for Home Affairs [2019] FCA 1669
Case
[2019] FCA 1669
Decision Date

CaseChat Overview and Summary

In Lee v Minister for Home Affairs, the applicant, Lee, sought judicial review of a decision to cancel his visa under section 501(3A) of the Migration Act 1958 (Cth). The decision was made by a delegate of the Minister for Home Affairs and subsequently affirmed by the Administrative Appeals Tribunal (AAT). The applicant argued that the failure to provide certain documents to him before the cancellation decision contravened section 501G(2) of the Act. The court was required to determine whether the AAT's decision was legally sound and whether there were any procedural errors in the handling of the case, particularly in relation to the provision of documents to the applicant.

The court examined the AAT's reasoning in detail, noting that it had considered the applicant's criminal history, including a serious offence of importing a commercial quantity of heroin. The AAT found that Lee did not meet the character test required by section 501CA(4)(b)(ii) of the Act. The court reviewed the AAT's assessment of community protection and the best interests of Lee's minor child, concluding that the AAT had properly applied the relevant legal principles. The court found no error in the AAT's consideration of community expectations or its analysis of the impact on Australian business interests. It was established that the AAT had adequately considered the specific circumstances of Lee's case and had not erred in its assessment.

The court dismissed the application for review, holding that the AAT's decision was legally sound and that no procedural errors had been made. The court ordered that Lee pay the costs of the Minister for Home Affairs, to be agreed or taxed. This outcome confirms the AAT's authority in handling visa cancellation decisions and reinforces the importance of adhering to statutory requirements and procedural fairness in such matters.

Orders

Orders of the court

1. The application for review is refused.

2. The applicant to pay the costs of the first respondent to be agreed or taxed.

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

For the reasons below, the application for review is dismissed. The Tribunal’s decision The Tribunal set out the applicant’s criminal history, noting the most serious offence being the conviction on 18 September 2015 for importing a commercial quantity of heroin. Given the applicant’s criminal record, the Tribunal found, as the applicant had conceded, that he did not pass the character test. As such, in accordance with s 501CA(4)(b)(ii) of the Migration Act, the Tribunal had regard to whether there was “another reason” why the original cancellation decision should be revoked. In determining whether there was another reason why the cancellation decision should be revoked the Tribunal had regard to the considerations in Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79). Amongst other things, Direction 79 sets out the principles that decision-makers should consider when deciding whether to exercise the discretion to revoke mandatory cancellation decisions, including “primary” and “other” considerations to be taken into account. Protection of the community: the Tribunal placed weight on the significance of the applicant’s criminal offending, notwithstanding it accepted he had not committed a range of crimes over a period of time. It emphasised the detrimental impact drug importation has on the community and noted that “even a single significant offence can constitute a substantial criminal record”. The Tribunal placed weight on the fact that the applicant had initially denied the importing charges. The Tribunal also placed weight on the fact that the applicant, as he claimed, became involved in the criminal enterprise due to threats being made against him in the context of a serious gambling problem. The Tribunal accepted the applicant had been a compliant prisoner but noted that while in prison the applicant had not completed any courses specifically directed to gambling or alcohol addiction. It also noted that, despite gambling $20,000 to $30,000 and drinking two bottles of brandy per day, the applicant had not appreciated that he had either a gambling issue or an alcohol problem. The Tribunal accepted the applicant’s remorse for his offending, but it did not accept that in all of the circumstances his risk of reoffending was negligible, and it considered that the risk of harm to the Australian community if the applicant offended again, was considerable. The Tribunal used these findings as the basis for its conclusion that the protection of the Australian community weighed strongly against revocation. Best interests of the minor child: the Tribunal accepted the applicant had a 10 year old daughter with whom he had established some connection, albeit mainly by electronic means. The Tribunal had evidence from his daughter and his “sworn sister” who was caring for her. The Tribunal noted the applicant’s evidence that he intended to apply for custody, but said there was little evidence of any steps taken in that regard. Nor did the Tribunal accept the applicant’s claim that his daughter would become an orphan if he was unable to look after her. Nonetheless, the Tribunal accepted the applicant’s evidence as to his relationship with his daughter and that he wished to play a meaningful role in her upbringing. The Tribunal found that the best interests of the child favoured revocation.

Ratio Decidendi

Legal Principle Established

These grounds are not established. Ground 5: the Tribunal erred in its consideration of the expectations of the Australian community The applicant’s submission was that the Tribunal erred in finding the expectations of the Australian community would be against revocation as he committed the offence under duress and he believed the community would in fact give him a second chance due to his ties to Australia. In oral submissions, the respondent referred to a number of authorities and noted that while there is some discordance between them as to the correct approach to be taken in determining the expectations of the Australian community, the Tribunal had considered the applicant’s submissions on this issue “in quite some detail” and had not fallen into error simply by paying close regard to the nature of the applicant’s criminal offending. This ground is, in reality, a merits argument. In any event, the reasons reflect that the Tribunal considered the arguments raised by the applicant which are raised by this ground; that the community would have been more lenient to him for the reasons he specifies. I note the observation of Bromwich J in Afu v Minister for Home Affairs [2018] FCA 1311 at [85]:The applicant’s argument misconceives the representative nature of the Tribunal’s function and, for that matter, the same function when the exercise of the revocation power is being considered by the Minister or his delegate. The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 reproduced above. The Tribunal was required to give effect to those norms, which is precisely what it did. There is no error, legal or factual, in what the Tribunal did, let alone the requisite jurisdictional error. The references to Direction 65 apply equally to Direction 79. The Tribunal considered the applicant’s submissions concerning his specific circumstances, and conducted the requisite assessment. No error has been established.Ground 6: no impact on Australian business interests The applicant submitted there is an inconsistency between the Tribunal’s finding at paragraph [84] that there was no evidence before it concerning any impact on Australian business interests and the finding at paragraph [87] that the applicant’s wife’s future business opportunities may be adversely affected if the visa remains cancelled. The applicant submitted that the findings are inconsistent and that this purported contradiction is an error. There is no relevant inconsistency. The impact on Australian business interests is required to be taken into account, but that relates to present or actual interests. Nonetheless the impact on the applicant’s wife was taken into account, which was different from present business interests. The applicant’s wife’s evidence was that she wished to establish a business and without the applicant’s assistance she considered she could not realise that. The two statements complained about address different issues.