MIGRATION – appeal from application for judicial review of Administrative Appeals Tribunal decision not to revoke mandatory cancellation under s 501CA(4), Migration Act, of appellant’s visa – whether Tribunal failed to engage in an active intellectual manner with evidence as to the strength, nature and duration of the appellant’s ties with Australia for the purposes of Ministerial Direction No. 65 – whether Tribunal failed to consider letters from family members as to the appellant’s links with his family – consideration of relevant principles – leave to raise new ground alleging Tribunal’s decision unreasonable refused – appeal dismissed
Administrative and Constitutional Law and Human Rights
Category:
Catchwords
Number of paragraphs:
67
Counsel for the Appellant:
Mr A Krohn
Solicitor for the Appellant:
Aila Rose Melasecca Barristers & Solicitors
Counsel for the First Respondent:
Mr M Hosking
Solicitor for the First Respondent:
Sparke Helmore Lawyers
Counsel for the Second Respondent:
Second Respondent filed a submitting notice
ORDERS
VID 53 of 2020
BETWEEN:
GARRETT TEHIRI TANGA MATTHEWS
Applicant
AND:
THE MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MIDDLETON, PERRY AND O’BRYAN JJ
DATE OF ORDER:
26 AUGUST 2020
THE COURT ORDERS THAT:
1.Leave to raise ground 2 of the notice of appeal filed on…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Matthews v Minister for Home Affairs [2020] FCAFC 146
Case
[2020] FCAFC 146
Decision Date
CaseChat Overview and Summary
Matthews v Minister for Home Affairs involved the appellant, Mr Matthews, challenging the decision of the Administrative Appeals Tribunal (AAT) to not revoke the mandatory cancellation of his visa under the Migration Act 1958 (Cth). Mr Matthews, born in New Zealand and a permanent resident of Australia since 1989, had a significant criminal record and was subject to a mandatory visa cancellation. He appealed the AAT's decision, arguing that the Tribunal failed to properly consider his ties to Australia and certain family letters in making its decision.
The legal issues in this case centred on whether the AAT failed to properly engage with the evidence regarding Mr Matthews' ties to Australia and whether it properly considered the letters from his family. The court was required to determine if these alleged errors rendered the AAT's decision unreasonable.
The court found that the AAT had indeed engaged with the evidence of Mr Matthews' ties to Australia, but its analysis was flawed. Despite this, the court held that the AAT's overall decision was not unreasonable because the primary considerations, such as the protection of the Australian community and the risk of re-offending, outweighed the other considerations. The court also found that the AAT did consider the family letters, though not as extensively as Mr Matthews suggested. Given these findings, the court refused leave to raise the new ground of appeal and dismissed the appeal. The court ordered that Mr Matthews pay the costs of the first respondent as agreed or assessed.
Orders
Orders of the court
1. Leave to raise ground 2 of the notice of appeal filed on 3 February 2020 is refused.
2. The appeal is dismissed.
3. The appellant is to pay the costs of the first respondent as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons set out below, leave to raise ground 2 must be refused for the reason that it has no reasonable prospects of success and the appeal must be dismissed.2. BACKGROUND2.1 The mandatory cancellation of Mr Matthews’ visa and decision by the Minister’s delegate not to revoke the cancellation Mr Matthews was born in New Zealand and moved to Australia permanently in 1989 at the age of six. Mr Matthews has been convicted of a significant number of criminal offences commencing in 1998 when he was 15 years of age. These include:(1)in April 2005, receiving a sentence of 12 months’ imprisonment for armed robbery;(2)in October 2006, receiving an aggregate sentence of 15 months’ imprisonment for burglary and theft; and(3)in March 2013, receiving an aggregate sentence of imprisonment for 6 years and 9 months for aggravated burglary, recklessly causing serious injury, causing criminal damage, theft, and unlawful assault. On 21 July 2006, following Mr Matthews’ conviction in April 2005, a delegate of the (then) Minister for Immigration and Multicultural Affairs considered cancelling his visa under s 501(2) of the Act on character grounds. While the delegate decided not to exercise the discretion to cancel Mr Matthews’ visa despite his failing the character test, the delegate’s decision record relevantly stated that he “is to be warned that a fresh assessment will be made with a view to cancelling his visa if he is convicted of any further offences”. Following Mr Matthews’ conviction in March 2013, his visa was cancelled on 19 January 2016 under the mandatory cancellation power in s 501(3A) of the Act on the ground that he failed the character test by reason of his substantial criminal record and he was serving a sentence of imprisonment on a full-time basis. Pursuant to s 501CA(4) of the Act, the Minister (and therefore her or his delegate) may revoke a cancellation decision under s 501(3A) 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. The same provision fell to be applied afresh by the Tribunal subsequently on review of the delegate’s decision because the Tribunal stands in the “shoes” of the delegate in deciding for itself what is the correct and preferable decision at the time of its decision: Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286. Mr Matthews was notified of the delegate’s decision, and invited to make representations about revocation of the decision. Representations made by Mr Matthews in response included the provision of letters from his mother, Marlene, and his three brothers, Cody, Colt and Tarran (AB 107-110). On 2 March 2018, the Minister’s delegate decided under s 501CA(4) of the Act not to revoke the cancellation of Mr Matthews’ visa and provided a statement of reasons (AB21 and 22).2.2 The decision of the Tribunal
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
On 2 March 2018, the Minister’s delegate decided under s 501CA(4) of the Act not to revoke the cancellation of Mr Matthews’ visa and provided a statement of reasons (AB21 and 22).2.2 The decision of the Tribunal Mr Matthews applied to the Tribunal for review of the delegate’s decision. He attended a hearing before the Tribunal on 12 June 2018 with legal representation and was cross-examined. Relevantly with respect to ground 1 of the appeal, Mr Matthews’ mother and Colt also gave evidence at the hearing (Tribunal reasons (TR) at [3]). On 25 June 2018, the Tribunal affirmed the delegate’s decision not to revoke the cancellation of Mr Matthews’ visa (AB228). Among other material, the Tribunal had before it the volume of documents under s 501 of the Act (the G documents) which included the letters from four members of Mr Matthews’ family to which we have referred, and statements of facts issues and contentions (SFIC) from Mr Matthews and the Minister filed in the Tribunal (TR at [4]). In its reasons, the Tribunal found first that Mr Matthews failed the character test on the ground that he has a substantial criminal record as defined in the Act (TR at [14]). That finding was not contested. The sole issue before the Tribunal was whether there was another reason as to why the original cancellation decision should be revoked. Secondly, in addressing that issue the Tribunal correctly found that it was bound to comply with Direction 65 (at [17]): Minister for Home Affairs v HSKJ [2018] FCAFC 217; 266 FCR 591 (HSKJ) at [41] (the Court). This meant that it was required to take into account the Primary and Other Considerations specified in Direction 65 and relevant to Mr Matthews’ case in determining whether to revoke the mandatory cancellation of his visa (para 8, Direction 65). As the Tribunal noted at [20], para 13(2) of Direction 65 provided that there were three Primary Considerations which it was required to take into account, namely:(a) Protection of the Australian community from criminal activity or other serious conduct;(b) The best interests of minor children in Australia; (c) Expectations of the Australian community. (Primary Considerations A, B and C respectively) Paragraph 14(1) of the Direction provides a non-exhaustive list of the Other Considerations required to be taken into account, as the Tribunal acknowledged at [21]. These included, relevantly:(b) Strength, nature and duration of ties;…(e) Extent of impediments if removed. As the Tribunal also acknowledged, the Direction “sets out that the primary considerations should generally be given more weight than the other considerations and that one or more considerations may outweigh other primary considerations” (TR at [22] (referring to paras 8(4) and (5) of Direction 65)). Thirdly, the Tribunal summarised Mr Matthews’ contentions and evidence, as well as the evidence of Colt and Mr Matthews’ mother (TR at [23]-[30]). In this regard, the Tribunal noted that the legal representatives for Mr Matthews and the Minister were agreed that the main point of difference between them was the risk of Mr Matthews re-offending (TR at [30]).
Ratio Decidendi
Legal Principle Established
Paragraph 14(1) of the Direction provides a non-exhaustive list of the Other Considerations required to be taken into account, as the Tribunal acknowledged at [21]. These included, relevantly:(b) Strength, nature and duration of ties;…(e) Extent of impediments if removed. As the Tribunal also acknowledged, the Direction “sets out that the primary considerations should generally be given more weight than the other considerations and that one or more considerations may outweigh other primary considerations” (TR at [22] (referring to paras 8(4) and (5) of Direction 65)). Thirdly, the Tribunal summarised Mr Matthews’ contentions and evidence, as well as the evidence of Colt and Mr Matthews’ mother (TR at [23]-[30]). In this regard, the Tribunal noted that the legal representatives for Mr Matthews and the Minister were agreed that the main point of difference between them was the risk of Mr Matthews re-offending (TR at [30]). The Tribunal then turned to consider the merits of the decision under review, applying Direction 65 (TR at [39]). The Tribunal found that Primary Consideration A (protection of the Australian community) weighed against revocation of the cancellation decision (TR at [63]). In reaching that view, the Tribunal took into account the following matters:(1)Mr Matthews’ offending was “serious and violent” (noting that he accepted that his offending was serious) (at [41]-[45]);(2)under Direction 65, violent crimes are to be viewed “very seriously” (at [46]);(3)Mr Matthews had a lengthy criminal history;(4)later offences committed by Mr Matthews were to be viewed “very bleakly” given his failure to heed warnings given by sentencing judges and by the Department (at [47]-[54]);(5)despite efforts at rehabilitation, there remained a risk of Mr Matthews re-offending even though the Tribunal did not accept that this risk was very high (at [60]-[62]); and(6)given the violent nature of his past crimes, any risk of this type of offending recurring was unacceptable (at [62]). The Tribunal further found that Primary Consideration C (expectations of the Australian community) weighed “heavily” against revocation of the cancellation decision (TR at [66]-[68]), while Primary Consideration B (the best interests of minor children) was not relevant in Mr Matthews’ case (TR at [64]-[65]). With respect to Other Considerations, the Tribunal relevantly found that:(1)the strength, nature and duration of Mr Matthews’ ties to Australia weighed in favour of revocation of the cancellation decision (TR at [70]-[71]); and(2)with respect to the extent of impediments if removed to New Zealand, Mr Matthews would not face any significant language or cultural barriers and, notwithstanding his criminal offending, had acquired valuable practical skills that would open up opportunities for employment in New Zealand (TR at [74]-[75]). We expand upon the Tribunal’s reasons for so finding later in the context of considering ground 1 of the notice of appeal.