FEDERAL COURT OF AUSTRALIA
Leone v Minister for Home Affairs [2020] FCAFC 117
Appeal from: Leone v Minister for Home Affairs [2019] FCA 1610 File number: VID 1171 of 2019 Judges: DAVIES, STEWARD AND JACKSON JJ Date of judgment: 7 July 2020 Catchwords: MIGRATION – appeal from a judgment of the Federal Court of Australia – where appellant’s visa cancelled under s. 501(3A) of the Migration Act 1958 (Cth.) following conviction for commercial drug trafficking offences – where Minister made a decision not to revoke cancellation of the visa under s. 501CA(4) – where decision of Minister affirmed by Tribunal – whether primary judge erred in dismissing an application for judicial review of the decision of the Tribunal – whether primary judge erred by not finding that the Tribunal failed to consider a submission and evidence relevant to a primary consideration of Ministerial Direction 79 – whether primary judge erred by not finding that the Tribunal failed to accord procedural fairness by not informing the appellant of an issue in the review, being the role of his past drug use in his offending – whether Tribunal fell into jurisdictional error in finding that it was not satisfied on the evidence that the Appellant’s drug taking played a significant part in his offending, when such a finding was illogical and/or irrational – whether leave to be granted for appellant to rely on new set of appeal grounds Legislation: Migration Act 1958 (Cth.) ss. 425, 499, 501, 501CA Cases cited: Metwally v. University of Wollongong [1985] HCA 28; (1985) 59 A.L.J.R. 481
Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 C.L.R. 24
Minister for Immigration and Border Protection v. Maioha (2018) 267 F.C.R. 643
Minister for Immigration and Border Protection v. SZMTA (2019) 264 C.L.R. 421
SZBEL v. Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 C.L.R. 152
Date of hearing: 27 May 2020 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 42 Counsel for the Appellant: Ms. G. Costello, S.C. with Mr. T. Farhall Solicitor for the Appellant: WLW Migration Lawyers Counsel for the Respondents: Ms. C. Symons Solicitor for the Respondents: Australian Government Solicitor ORDERS
VID 1171 of 2019 BETWEEN: FRANK LEONE
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGES:
DAVIES, STEWARD AND JACKSON JJ
DATE OF ORDER:
7 JULY 2020
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs, such costs to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
The appellant was born in Calabria in 1960. He arrived in Australia at the age of 12. Since then he has continuously lived in this country but does not hold Australian citizenship. In 2018 his Class BF Subclass C Transitional (Permanent) visa (the “visa”) was cancelled pursuant to s. 501(3A)(b) of…
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Details
- Case
- [2020] FCAFC 117
- Decision Date
CaseChat Overview and Summary
The case of Leone v Minister for Home Affairs involved the appellant, Leone, who had his visa cancelled under section 501(3A) of the Migration Act 1958 (Cth.) following a conviction for commercial drug trafficking offences. The Minister for Home Affairs declined to revoke the visa cancellation under section 501CA(4). This decision was affirmed by the Administrative Appeals Tribunal (Tribunal). Leone sought judicial review of the Tribunal’s decision. The central legal issues revolved around whether the Tribunal appropriately applied Direction No. 65 in considering the primary and other relevant factors under sections 501CA(4) and 499 of the Migration Act 1958.
The court reviewed whether the primary judge erred in dismissing Leone’s application for judicial review. Specifically, it examined whether the Tribunal failed to consider a submission and evidence pertinent to a primary consideration in Direction 65 and whether the Tribunal failed to afford procedural fairness by not informing Leone of the role of his past drug use in his offending. The court also assessed whether the Tribunal erred in finding that Leone’s drug use did not play a significant part in his offending, considering this finding to be illogical or irrational.
The court found that the primary judge did not err in dismissing the application for judicial review. It held that the Tribunal appropriately applied Direction 65 and did not overlook any critical submissions or evidence. Furthermore, the court concluded that the Tribunal's decision, while seemingly illogical or irrational, was not so flawed as to constitute a jurisdictional error. The court also held that granting leave to rely on new appeal grounds would not have altered the outcome.
In conclusion, the court dismissed the appeal and ordered Leone to pay the first respondent's costs, which are to be taxed in default of agreement. This decision underscores the importance of adhering to the procedural directives and considering relevant factors when assessing visa cancellation decisions under the Migration Act 1958.
The court reviewed whether the primary judge erred in dismissing Leone’s application for judicial review. Specifically, it examined whether the Tribunal failed to consider a submission and evidence pertinent to a primary consideration in Direction 65 and whether the Tribunal failed to afford procedural fairness by not informing Leone of the role of his past drug use in his offending. The court also assessed whether the Tribunal erred in finding that Leone’s drug use did not play a significant part in his offending, considering this finding to be illogical or irrational.
The court found that the primary judge did not err in dismissing the application for judicial review. It held that the Tribunal appropriately applied Direction 65 and did not overlook any critical submissions or evidence. Furthermore, the court concluded that the Tribunal's decision, while seemingly illogical or irrational, was not so flawed as to constitute a jurisdictional error. The court also held that granting leave to rely on new appeal grounds would not have altered the outcome.
In conclusion, the court dismissed the appeal and ordered Leone to pay the first respondent's costs, which are to be taxed in default of agreement. This decision underscores the importance of adhering to the procedural directives and considering relevant factors when assessing visa cancellation decisions under the Migration Act 1958.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs, such costs to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
We very gratefully adopt the learned primary judge’s summary of the relevant parts of Direction 65.Background Facts The learned primary judge at [12] adopted the following summary of the applicable background facts from the reasons of the Tribunal:[7]The Applicant grew up in the western suburbs of Melbourne. He left school at the end of Year 10. He worked at Toyota as a storeman and forklift driver for seven years. He worked at various jobs in cafes and a pizza restaurant and later for 17 years as a security officer/crowd controller. In the early 1990’s he purchased a café business and later operated a number of cafes, restaurants and pool halls.[8]In 1988 he commenced a relationship with Ms Tamara Sims with whom he had three daughters. He remained with Ms Sims for around 10 years but eventually the relationship ended in 1998. Ms Sims was a heroin addict and the Applicant successfully applied to the Court for sole custody of his three daughters following the end of his relationship with Ms Sims. The Applicant also had another daughter from a different relationship in 1991. That daughter has been living with her mother, although with the support of the Applicant.[9]In 1998 the Applicant commenced a relationship with Ms Dianne Galileos and together they raised the Applicant’s three daughters. In 2007 the Applicant and Ms Galileos had a [daughter together].[10]In the period prior to 1990 the Applicant had a number of relatively minor criminal convictions for unrelated offences, including driving while disqualified, using threatening words in a public place, failing to answer bail and discharging a firearm in a public place. In the period after 1990 he had several further convictions for minor offences but his principal offending was drug-related.[11]In July 1990 he was convicted of trafficking heroin and fined $700. He was charged with possession offences in 1990 but the charges were adjourned without conviction and he was placed on a good behaviour bond. He was convicted of trafficking heroin in 1992 and sentenced to 1 year and 9 months in prison with a minimum parole period of 12 months. He was convicted of possession of cannabis and failure to answer bail in 1997 and fined $4,000. He was again convicted of possession of cannabis in 2001. In April 2002 he was convicted of trafficking amphetamines and sentenced to 2 years and 6 months in prison, with 2 years of the sentence suspended for 3 years. He was again convicted of possession of cannabis in 2005 and fined $1,000.[12]On 15 December 2011 the Applicant was convicted in the County Court of Victoria on three counts of trafficking heroin, cocaine and amphetamines in commercial quantities from January to July 2009. He was sentenced to a term of imprisonment of 6 years and 3 months with a minimum parole period of 4 years and 6 months. As a result of this conviction, the Applicant’s Class BF Subclass C Transitional (Permanent) visa was subject to mandatory cancellation under s.501(3A)(b) of the Act. At the completion of his sentence the Applicant was taken into immigration detention.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The appellant’s visa was cancelled automatically because of his criminal convictions. Section 501CA authorises the Minister (and here the Tribunal) to revoke that cancellation decision if there is “another reason” to do so. It relevantly provides as follows:Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment) (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. (2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers: (a)would be the reason, or a part of the reason, for making the original decision; and (b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (3) As soon as practicable after making the original decision, the Minister must: (a)give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original decision if: (a)the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i)that the person passes the character test (as defined by section 501); or (ii)that there is another reason why the original decision should be revoked. (5)If the Minister revokes the original decision, the original decision is taken not to have been made. In this case “Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (“Direction 65”) was applied by the Tribunal for the purposes of determining whether there was “another reason” for revocation of the cancellation of the appellant’s visa. The Tribunal was obliged to apply that Direction because of s. 499 of the Act. The learned primary judge very helpfully extracted the relevant parts of Direction 65 in his Honour’s reasons for judgment at [18]-[26] as follows:[18] Paragraph 6.3 of Direction 65 provides as follows:6.3 Principles(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.…(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.[19]Paragraph 7(1)(b) of Direction 65 stipulates that, informed by the principles in paragraph 6.3 above, a decision-maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked. [20]Paragraph 8(1) stipulates that decision-makers must take into account the primary and other considerations relevant to the individual case (which, in the case of a decision whether to revoke the mandatory cancellation of a non-citizen’s visa, are articulated in Part C). Paragraph 8(3) of Direction 65 provides that both primary and other considerations may weigh in favour of, or against, whether or not to revoke a mandatory cancellation of a visa. Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations.[21]Part C of Direction 65 sets out those considerations which a decision-maker must take into account in deciding whether to revoke the mandatory cancellation of a visa under s 501CA(4). These considerations are divided into “primary considerations” and “other considerations”.[22]Paragraph 13(2) of Direction 65 provides that the following considerations are “primary considerations”: (a)protection of the Australian community from criminal or other serious conduct; (b) the best interests of minor children in Australia; and (c) expectations of the Australian community.[23]Paragraph 13.1 of Direction 65, which corresponds to the primary consideration in paragraph 13(2)(a), provides as follows:13.1 Protection of the Australian community(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.(2) Decision-makers should also give consideration to:(a)The nature and seriousness of the non-citizen’s conduct to date; and(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.…13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).[24]Paragraph 13.2 of Direction 65, which corresponds to the primary consideration in paragraph 13(2)(b), provides as follows:13.2 Best interests of minor children in Australia affected by the decision(1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.(4)In considering the best interests of the child, the following factors must be considered where relevant:(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;(e)Whether there are other persons who already fulfil a parental role in relation to the child;(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.[25]Paragraph 13.3 of Direction 65, which corresponds to the primary consideration in paragraph 13(2)(c), provides as follows:13.3 Expectations of the Australian Community(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.[26]Paragraph 14(1) of Direction 65 provides a non-exhaustive list of “other considerations” which must be taken into account by a decision-maker where relevant. These considerations include, but are not limited to: international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed.
Ratio Decidendi
Legal Principle Established
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