Miglani v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FCA 1304
•13 November 2024
FEDERAL COURT OF AUSTRALIA
Miglani v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1304
Review of: Miglani and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2719 File number: VID 781 of 2023 Judgment of: SNADEN J Date of judgment: 13 November 2024 Catchwords: MIGRATION – application for judicial review of decision of Administrative Appeals Tribunal affirming Minister’s decision to refuse visa application – where applicant convicted of sexual assault and false imprisonment – where charge of sexual assault involving a minor – where applicant does not pass ‘character test’ pursuant to Migration Act 1958 (Cth) – whether tribunal failed to consider applicant’s rehabilitation and time spent without reoffending following conviction – whether tribunal’s reasoning regarding applicant’s lack of remorse was irrational – whether tribunal failed to consider applicant’s ties to Australia – whether tribunal attributed weight to irrelevant considerations – application dismissed. Legislation: Migration Act 1958 (Cth) ss 476A, 499, 500, 501 Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109
Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 58 Date of hearing: 31 July 2024 Counsel for the Applicant: Mr C Lees Counsel for the First Respondent: Mr A Yuile Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Applicant: The Second Respondent filed a submitting notice, save as to costs ORDERS
VID 781 of 2023 BETWEEN: SUNNY MIGLANI
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
13 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The amended originating application be dismissed.
2.The applicant pay the first respondent’s costs of the proceeding, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SNADEN J:
The applicant, Mr Miglani, is Indian. He came to Australia in April 2018 as the holder of a student visa that was granted to him, as a dependant of his wife, pursuant to provisions of the Migration Act 1958 (Cth) (the “Act”).
In 2021, Mr Miglani was convicted of two charges of sexual assault (one of which involved a 16-year-old girl) and one charge of false imprisonment. Thereafter, he was listed as a registered sex offender in Victoria. Mr Miglani’s student visa was then cancelled and on 10 August 2021, he applied under the Act for a Bridging E (Class WE) visa (the “Visa Application”).
In 2022, Mr Miglani was charged with having breached several conditions that attached to his status as a sex offender. He was convicted and was sentenced to one month’s imprisonment. Following his release from prison, Mr Miglani was placed into immigration detention.
On 19 May 2023, a delegate of the first respondent (the “Minister”) refused Mr Miglani’s Visa Application under s 501(1) of the Act on the basis that he did not pass the character test (the “Delegate’s Decision”). In the course of doing so, the delegate considered whether there were discretionary reasons not to reject that application, including some whose consideration was made compulsory by ministerial direction.
Mr Miglani then applied to the second respondent (the “Tribunal”) for a review of the Delegate’s Decision. By a decision dated 23 August 2023, the Tribunal affirmed the Delegate’s Decision (the “Tribunal’s Decision”).
By amended originating application dated 20 December 2023 (the “Application”), Mr Miglani now moves this court for prerogative relief to set aside the Tribunal’s Decision and to require that it be redetermined.
For the following reasons, the Application must and will be dismissed, with the usual order as to costs.
THE STATUTORY FRAMEWORK
The Tribunal has jurisdiction to hear applications for the review of decisions made by the Minister (or his or her delegate) under s 501 of the Act: s 500 of the Act. This court has jurisdiction to hear applications for review of decisions made by the Tribunal under s 500 of the Act: s 476A of the Act.
Section 501 of the Act relevantly provides (and provided) as follows:
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate – natural justice applies
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
…
Character test
(6) For the purposes of this section, a person does not pass the character test if:
…
(e) a court in Australia or a foreign country has:
(i)convicted the person of one or more sexually based offences involving a child; or
(ii)found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction;
…
Section 499 of the Act empowers the Minister to issue directions related to the exercise of, amongst others, the power conferred by s 501(1). It relevantly provides (and provided) as follows:
499 Minister may give directions
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
…
(2)Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A) A person or body must comply with a direction under subsection (1).
…
Relevantly, the Minister exercised that power by issuing Direction No. 99, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction 99”).
Direction 99 relevantly provided as follows:
5.2 Principles
The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501…
(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.
…
Part 2 Making a decision
6. Making a decision
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
…
8. Primary considerations
In making a decision under section 501(1) [of the Act] … the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia;
(5)expectations of the Australian community.
8.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or 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 Australia community.
(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.
…
8.1.2The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
…
(2)In assessing the risk that may be posed by the non-citizen 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:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
…
8.3 The strength, nature and duration of ties to Australia
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
…
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
…
THE TRIBUNAL’S DECISION
After identifying the documentary material that was before it, the Tribunal’s Decision helpfully outlined by way of background the circumstances that attended Mr Miglani’s offending. It is useful to replicate those paragraphs here, in full (emphasis original):
In regard to the first incident on 11 March 2019, the facts of the offending which led to a charge of one count of Sexual Assault, were as follows. The first victim, who will be called Ms FV, was a regular customer at the service station where Mr Miglani worked. On that day she rode her bicycle to the service station. [Mr Miglani] was on shift duty. He invited her to an area of the service station which he told her was not covered by closed-circuit tv cameras. He offered her chocolate bars. He then hugged and kissed her. In her statement to police, she said she felt ‘extremely uncomfortable’. He then pulled away and then came back towards her, hugging and kissing her again and bringing his hand over her chest and breasts, holding it there. When she got up to leave, she said he offered her ‘more free items, cigarettes or anything I wanted’.
Ms FV was aged 16 at the time, which means she was a child for the purposes of the law. Mr Miglani disputed her age in written submissions prepared by his previous legal representatives before the hearing, and maintained this dispute in his oral submissions. He noted that one of the police officers who interviewed him speculated that she was ‘aged 18 or 19’. Mr Miglani said there was no corroborative evidence that Ms FV was a child at the time.
In regard to the second incident on 8 May 2019, which led to a charge of one count of Sexual Assault and one count of False Imprisonment (common law), the facts of the offending were as follows. The Second victim, who will be called Ms SV, attended the same service station where Mr Miglani was working. He offered Ms SV free cigarettes and led her into a staff-only room of the premises. He grabbed and rubbed her buttocks without her consent and said, ‘You want fuck?’ twice, before attempting to keep her in the room, by blocking her from leaving. She was released after a short physical struggle. Afterwards, he told Ms SV to ‘tell no one’.
As mentioned above, following the disposition of [Mr Miglani’s] three offences by the Magistrates’ Court, Mr Miglani appealed to the County Court, not on the three convictions but on the sentence imposed. The County Court set aside the Magistrates’ Court’s orders and reconvicted [Mr Miglani], imposed a [community corrections order] for 30 months and placing him on the register of sex offenders.
[Mr Miglani] committed nine further offences in relation to breaches of his obligations as a registered sex offender. He also breached his [community corrections order]. He was back before the Magistrates’ Court in June 2022 and pleaded guilty to the non-compliance offences, receiving an aggregate sentence of one months’ imprisonment. On completion of his prison sentence he was taken into immigration detention under s 189 of the Act.
The Tribunal found that Mr Miglani did not pass the character test as defined by s 501(6) of the Act. That finding is not controversial.
Having so found, the Tribunal proceeded to consider whether there were discretionary considerations that bore upon the Visa Application. In that regard, it correctly recognised the significance of Direction 99, which required that it take account of various considerations in making its decision. That is the course upon which it purported to proceed.
First, the Tribunal considered the protection of the Australian community from criminal and other serious conduct. Mr Miglani’s criminal convictions were of a sexual nature, and one of them involved a child. The nature and seriousness of his offending, is, for present purposes, uncontroversial.
As to the risk to the Australian community should Mr Miglani commit further offences or engage in other serious conduct, the Tribunal reasoned as follows (at [37]–[64]) (emphasis and errors original, references omitted):
Paragraph 8.1.2(2) of [Direction 99] requires the Tribunal to have regard to, cumulatively, the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct and the likelihood of that.
There would be a risk to the Australian community if Mr Miglani resumed offending in the same manner. [The Minister] asked Mr Miglani what happened on 11 March 2019. He responded, ‘I don’t remember exactly. It was four years ago. My hand touched her. I am remorseful, I admit that.’
[The Minister] asked [Mr Miglani] what happened when he touched Ms FV. He responded;
I did two jobs at that time. I remember I touched her. Cannot recall. Mental health has deteriorated since I came to the detention centre. I pleaded guilty based on the touching, not based on her police statement.
Mr Miglani denied offering Ms FV chocolate bars and drinks. [The Minister] noted it was raining on the day in question and he took Ms FV behind the counter. He responded, ‘I do not remember.’ [The Minister] then said, ‘You hugged and kissed her on the cheek, pulled away, kissed again. Put your hand over her chest and breasts. Is that what happened?’
Mr Miglani responded, ’I do not remember. I was doing two jobs. I remember I touched her but not what happened. I had lack of sleep.’
[The Minister] then took Mr Miglani to the second and third offences committed on 8 May 2019 and asked what his recollection of that offending was. He responded, ’I have told you earlier. I do not remember. I touched her by hand. Don’t have any recollection.’
[The Minister] then referred to Ms SV’s statement which said Mr Miglani offered her free cigarettes but to get them, she would have to go to the unlit back room. She said [Mr Miglani] touched her back and her backside and suggested whether she wanted sex. When she tried to leave, he held the door and prevented her. Ms SV yelled and said she was scared. She wrestled with Mr Miglani and forced the door open. She said [Mr Miglani] said to her ‘Tell nobody. Say nothing about this.’ [The Minister] asked [Mr Miglani] if that is what happened.
He responded, ‘As I said, I got the statement four years later. I have sent a video showing she waved bye as she left.’ The Tribunal then asked him directly whether he was saying none of this happened. Mr Miglani responded, ‘No. It did not happen. She left.’
The Tribunal then said to [Mr Miglani], ‘You admitted you touched her. This is your opportunity to say what happened.’ He replied, ‘I touched her. Then she left. That’s all I remember.’
Mr Miglani said he did not remember asking Ms SV to go to the back room with the promise of cigarettes.
[The Minister] asked [Mr Miglani] as to whether there was an explanation as to why he offended. He responded:
I was working tirelessly at the time. Language barrier. Remorseful. I know I was out of line. I have lived in the community. The County Court said I was not a threat to the community.
[The Minister] asked what relevance the language barrier was, given he lured his victims into part of the premises not covered by cameras and, in the second case, into a private staff room. He replied, “I come from a different culture. Worked hard. Deprived of sleep. Remorseful. Feel very sorry for how the victims felt. Will never do it again.”
[The Minister] took Mr Miglani to a statement his then migration agent lodged with the Tribunal on 15 November 2022 on behalf of Mr Miglani in relation to the Tribunal proceedings about the cancellation of his student visa. The relevant passage was:
Please find my responses below for the specific questions raised by the honourable member:
5.1 Whether you pleaded guilty to or were found guilty after a contested hearing of the three charges you were convicted of on 24 June 2021:
I had pleaded guilty to all charges, but only on insistence of my previous solicitor/lawyer. I always wanted to deny them and fight the allegations.
Mr Miglani was taken to another passage in his statement where he wrote:
Both of the incidents involved summary offences, but the police/other party primarily depicting me as a sexual predator. It has been very unfortunate that during the entire investigation, the entire focus was on my character and the police failed to examine and interrogate the body language and intentions of the opposite party and it is obvious, how I was trapped with all these false allegations and portraying me as a sexual predator, which is very hurting. Despite of the fact that, I have intensive work experience in the past and intensive travel without any criminal record. The police even charged me with the offence of false imprisonment, which I deny until date because there was never any use of physical force, there was no evidence of scratches on the other body’s, and even during the investigation the other party failed to prove that she was forced into the backyard.
This statement had an electronic signature but was not dated. Mr Miglani said;
I never gave this statement to my lawyer. If I signed it, I would have dated it. I don’t know who made this statement. I would have dated it.
[The Minister] took Mr Miglani to a report by Mr Jeffrey Cummins, psychologist, dated 3 March 2021. Mr Cummins examined Mr Miglani on 11 February 2021 in relation to a plea hearing he was shortly to have in the Magistrates’ Court. [The Minister] noted that Mr Cummins wrote:
I assess his current risk of committing a further sexual offence as being Low. Nonetheless, at interview he had a tendency to blame the victims and he stated that they presented as being overly friendly towards him. In my opinion, he still had difficulty adequately and realistically processing issues to do with victim empathy.
Mr Miglani said he had done a ‘Better Lives’ course as part of his [community corrections order] following his County Court appeal. He said this involved discussing offending in a group, which he found quite shameful. He said ‘It has brought a positive change in my life. I learned a big lesson in my life from this.’
[The Minister] read to [Mr Miglani] a paragraph in Mr Cummins’ report:
On the basis of Mr Miglani’s comments at interview, he has already “learnt his lesson” from being arrested and charged with the offending. However, it is significant that at interview he admitted when he was initially interviewed by police on 10/4/2019 he was given a warning and told he could be charged but he then reoffended on a later date.
Mr Miglani responded, ‘I didn’t say that. This is just his opinion. To be honest, I don’t remember whether I did say that then.’
Before the Tribunal was a report from Mr Bernard Healey, clinical psychologist, who assessed Mr Miglani on 15 August 2022. Mr Healey noted that after being assessed using criminogenic tools relating to risk of committing further sexual offences in July 2021, Mr Miglani was assessed to be a ‘low to moderate risk’ of sex offending, and a ‘low risk’ of sexual violence.
The Tribunal formed a generally unsatisfactory view of [Mr Miglani’s] credibility and truthfulness in his evidence. It is not plausible that while he admits on the one hand he had never been in trouble with the police in his life, he could not remember the details of his offending against Ms FV and Ms SV. These would be significant events in his life. It also sits badly with the fact that as recently as November 2022 his migration agent provided a detailed personal statement of Mr Miglani to the Tribunal in earlier proceedings, which did go into the details of what occurred on 11 March and 8 May 2019.
The Tribunal does not accept Mr Miglani’s disavowal of this statement on the basis that it was signed but not dated. There is no one else in whose interests the migration agent would have forwarded such a statement.
I also note that [Mr Miglani] continued, in that statement, to deny the charge of false imprisonment, and yet his own roommate, Mr Whitcombe said in evidence:
I imagine [Mr Miglani] misinterpreted the friendliness of the victims as something more than it was. He doesn’t strike me as a predator. I don’t think it was premeditated. In the second case there was some attempt to restrain the victim – I expect that is down to panic. Out of character from what I’ve observed …
For Mr Whitcombe to make an observation about the false imprisonment charge relating to Ms SV, it seems highly likely that this is because Mr Miglani had told him further details about the offence.
In regard to whether he was warned after his first police interview about future conduct, and then went onto offend two months later, I prefer the report of Mr Cummins to the vague evidence of Mr Miglani. I also consider that, having been so warned and going on to offend, is an ingredient which contributes to risk of reoffending.
Overall, I found [Mr Miglani’s] inability to grapple with his offending and his inconsistencies in responses, coupled with the large number of non-compliance offences of which he pleaded guilty, lead to a conclusion that he is – at least – a moderate risk of reoffending.
[The Minister] drew the Tribunal’s attention to a decision of SM Furnell in Re: Anderson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 205, at [94]:
As for insight, I see it as coupled with remorse. While a person truly remorseful for certain conduct might be less likely to repeat it this only applies where the person has insight into the conduct concerned. In this matter, I accept that the Applicant is remorseful about the situation he, Mika and their children are in. Mika states that the Applicant calls her every day to apologise. I do not consider this remorse to be a material risk mitigation factor, however, as the Applicant’s insight into what he did seems limited.
While care should be taken comparing the circumstances of different applicants, I generally agree with the learned Senior Member’s conclusions about the link between insight and remorse. I found that when Mr Miglani spoke about remorse, it was almost like he was just parroting a word; he did not open up to the Tribunal about how his two victims might have felt, nor even when prompted, why he committed the offences. His vagueness about the offending contributes to a view that he does not fully accept his offending.
Later, the Tribunal addressed paragraph 8.3 of Direction 99. It began its assessment by considering the circumstances of Mr Miglani’s wife. The Tribunal reasoned as follows:
[Mr Miglani] told the Tribunal he has one sibling, a brother who resides in India. His parents also reside in India, though they have recently been granted visitor visas and intend to come to Australia at the end of August. Mr Miglani said that his parents have had ‘discussions’ with [his wife’s] family and part of the purpose of their visit is whether they can support reconciliation between [Mr Miglani] and his wife. Other evidence before the Tribunal is that [Mr Miglani’s wife] intends to institute divorce proceedings as soon as the twelve-month separation period has elapsed.
While I accept that Mr Miglani holds out a plaintive hope about his marriage, there are no signs that [his wife] wishes to rekindle the relationship.
The Tribunal then moved to consider submissions advanced by Mr Miglani as to other, social ties to Australia. The Tribunal reasoned as follows (emphasis original, references omitted):
Mr Miglani also said he had a large number of friends in Australia, some of whom he has known from childhood in India. Mr Karminder Singh gave evidence. He spoke about his various business ventures and said he would be willing to offer Mr Miglani work in Australia.
[The Minister] noted that Mr Karminder Singh wrote in his statement that the ‘whole mishappening regarding the sexual misconduct and inappropriate behaviour has been very unfortunate, still it is unbelievable due to his genuine character.’ He was asked what he knew of [Mr Miglani’s] offending. He responded, ’Sexual misconduct within his family. With his wife, I believe.’
[The Minister] asked Mr Karminder Singh whether Mr Miglani had admitted his guilt to him. He responded, “No. He said something happened and he wants to come out from it. He is very remorseful about what happened.”
Mr Jatinder Singh also gave evidence. When asked what he knew about the offending, he said, ‘He must’ve made a mistake. I’ve met his wife. She’s a beautiful woman. Must have been some mistake.’
In answer to a direct question from the Tribunal as to whether Mr Miglani had told him what he was accused of, Mr Jatinder Singh said, ‘Not really. I told him to get legal advice.’
The Tribunal makes no criticism of either witness, who voluntarily appeared in support of [Mr Miglani]. However, it was clear that neither Mr Karminder Singh nor Mr Jatinder Singh knew about the offending because Mr Miglani had not told them. In fact, Mr Karminder Singh wrongly thought it was conduct between [Mr Miglani] and his wife.
This significantly affects the weight the Tribunal can attribute to their evidence. In fact, two other statutory declarations made in support of Mr Miglani use exactly the same wording about ‘mishappening’ that Mr Karminder Singh used in his statement. This inclines me to the view that [Mr Miglani] suggested the wording. It is oblique, and does not indicate that the writer knew of the nature of the offending. Similarly, another person wrote in a statutory declaration that there had been an ‘unfortunate event’. It does contribute to an impression that [Mr Miglani] has been less than frank with those friends and acquaintances that he asked to provide statements of support.
Ultimately, the Tribunal was moved to conclude that its discretion to reject the Visa Application should be exercised. The Tribunal reasoned:
The Tribunal, in weighing all the relevant considerations, has decided that the discretion to refuse to grant the visa should be exercised. The conduct of [Mr Miglani] in his evidence during the hearing leads to significant questions of credibility. Despite pleading guilty at the Magistrates’ Court to three charges (including one involving a child), and only appealing to the County Court in relation to the sentence imposed, Mr Miglani presented as a man largely in denial and, when not in denial, prevaricating or minimising his criminal conduct. He does not show insight into his offending, which amplifies the possibility that he might reoffend in the community.
Having found that Mr Miglani fails the character test by operation of law, I am also satisfied that the discretion to refuse to grant the visa should be exercised.
THE PRESENT APPLICATION
By the present Application, Mr Miglani seeks the usual array of prerogative relief to set the Tribunal’s Decision aside, and to require that the application for review of the Delegate’s Decision be determined afresh and according to law.
In order that Mr Miglani might attract relief of those kinds, he must first demonstrate that the Tribunal’s Decision is a product of jurisdictional error.
To that end, the Application identifies seven bases upon which Mr Miglani seeks to meet that challenge. They are additional to the five that were initially identified, all of which now stand abandoned. It is convenient to replicate the seven grounds in their entirety (renumbered so as to reflect the submissions that the parties advanced):
[1].The [Tribunal’s Decision] failed to adequately consider [Mr Miglani’s] plea of guilt to the offences, as evidence of [Mr Miglani’s] low risk of re-offending, as required by [paragraph] 8.1.2(2)(b)(i) of [Direction 99];
[2].The [Tribunal’s Decision] failed to have consideration of the evidence of [Mr Miglani’s] rehabilitation, including pursuant to a community corrections order made by the County Court of Victoria, as required pursuant to [paragraph] 8.1.2(2)(b)(ii) [of Direction 99];
[3].The [Tribunal’s Decision] failed to adequately consider and give weight to the time [Mr Miglani] had spent in the community, without reoffending, following his convictions, as required pursuant to [paragraph] 8.1.2(2)(b)(ii) [of Direction 99];
[4].The [Tribunal’s Decision] was irrational in that it found that [Mr Miglani’s] failure to remember all details of the offending, which occurred over four years prior, demonstrated a lack of remorse and thus a heightened risk of re-offending;
[5].The [Tribunal’s Decision] failed to have consideration of the strength, nature and durations of [Mr Miglani’s] ties to Australia, as required by [paragraph] 8.3 of [Direction 99], in that:
a.[t]he [Tribunal’s Decision] failed to properly consider [Mr Miglani’s] ties to his wife, who has a right to reside in Australia; and
b.[t]he [Tribunal’s Decision] failed to properly consider [Mr Miglani’s] social ties in Australia.
[6]. The [Tribunal’s Decision] considered irrelevant considerations in finding that:
a.[Mr Miglani’s] wife’s decision to file for divorce following [Mr Miglani] being placed in immigration detention was grounds to disregard [Mr Miglani’s] family ties in Australia; and
b.[Mr Miglani’s] failure to be completely candid and forthcoming with his friends was grounds to disregard [Mr Miglani’s] social ties to Australia.
[7]. The [Tribunal’s Decision] was irrational in that:
a.the [Tribunal’s Decision] relied upon the decision by [Mr Miglani’s] wife following [Mr Miglani] being placed in immigration detention as grounds to dismiss [Mr Miglani’s] family ties to Australia in the event that he were to be granted a visa to remain in Australia; and
b.the [Tribunal’s Decision] dismissed [Mr Miglani’s] social ties in Australia on the grounds that [Mr Miglani] was found to have not been completely candid and forthcoming about the circumstances of his offending to his friends within Australia.
This matter proceeded to trial in an orthodox way. In advance of the hearing, the parties filed helpful written submissions addressing the grounds pressed by the Application. By his own written submissions, Mr Miglani abandoned ground 1.
Two days prior to the hearing, Mr Miglani foreshadowed an adjournment application, which he said was necessary to permit an application for special leave to appeal, which had been filed a week earlier (and that related to his sexual assault convictions, or at least one of them), to progress to hearing and determination in the High Court.
At the hearing on 31 July 2024, counsel appearing pro bono pressed the adjournment application. That application was heard and determined, and oral reasons for rejecting it were given at the time. The hearing otherwise progressed in the usual way. Mr Miglani observed the hearing and was assisted in that regard by a taxpayer-funded interpreter.
With that summary stated, it is convenient to address each of Mr Miglani’s remaining grounds of challenge.
GROUNDS 2 AND 3: FAILURE TO CONSIDER POST-CONVICTION BEHAVIOUR
By his written outline of submissions, Mr Miglani contended (references omitted):
The Tribunal failed to note or acknowledge that [Mr Miglani] had plead guilty to all charges pertaining to both incident one and incident two in its examination of the risk posed by [Mr Miglani], an important factor in the rehabilitative processes. Even if [Mr Miglani] did not demonstrate remorse, the Tribunal was still required to consider [Mr Miglani’s] plea of guilty as part of the rehabilitative process, and how such pleas of guilt impacted [Mr Miglani’s] risk of reoffending.
The Tribunal failed to expressly mention that [Mr Miglani] has spent over three years and two months without re-offending in relation to any sexual assault offences. The Tribunal failed to expressly acknowledge this time spend [sic] without re-offending, as required pursuant to [paragraph] 8.1.2(2)(b)(ii) of [Direction 99].
Insofar as concerns the fact that Mr Miglani pled guilty to the charges that had been laid against him (both in respect of the incidents of sexual assault and also his having breached conditions associated with his sex offender status), the point can be swiftly addressed.
Direction 99 mandates consideration of any evidence that an applicant stands rehabilitated from his or her criminal past. Evidence of a guilty plea or pleas is not, in terms, made a mandatory consideration.
In any event, it cannot seriously be doubted that the Tribunal made its decision conscious that Mr Miglani has pled guilty to the charges laid against him. A finding to the contrary can only be made by process of inference. In the right circumstances, such an inference can be drawn from the failure of a decision maker expressly to refer to a matter in its reasons: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [68] (McHugh, Gummow and Hayne JJ). But an inference of that kind should not too readily be drawn and the applicant bears the onus: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, [46]-[47] (French, Sackville and Hely JJ), Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, [44]-[46] (Griffiths, White and Bromwich JJ), Minister for Home Affairs v Buadromo (2018) 267 FCR 320, [49] (Besanko, Barker and Bromwich JJ).
Here, the Tribunal expressly acknowledged that Mr Miglani had pled guilty. That it did not do so expressly in the context of rehabilitation does not matter. There is no warrant to infer that it made its decision ignorant of that reality.
A similar observation may be made in respect of Mr Miglani’s “time in the community”. There can be no doubt whatsoever that the Tribunal made its decision conscious of the relevant chronology (including as to when the offences occurred and the passage of time that had transpired since). Again, there is no warrant for inferring that it made its decision ignorant of the reality that Mr Miglani now says went unconsidered.
But there is an additional problem. Direction 99 refers to time spent in the community since the most recent offence. In the present case, there wasn’t any. Mr Miglani pled guilty to breaching register conditions, was taken into custody, served his time and, upon release, went straight into immigration detention.
Mr Miglani submits that the reference to his “most recent offence” in paragraph 8.1.2(2) of Direction 99 must be understood as a reference to offending of a particular kind, rather than offending per se. Specifically, he says that it should be understood as a reference to the second of the two instances of sexual offending to which he pled guilty to in 2021 (which transpired in May 2019).
I do not accept that submission. The circumstances of which paragraph 8.1.2(2) requires that account be taken concern the likelihood that an applicant might commit “further offences”. Direction 99 does not discriminate between different species of offending. So to observe is not to doubt that a decision maker could validly have taken into consideration in this case the fact that several years had transpired since Mr Miglani had sexually assaulted anybody (a truth of which it was surely cognisant in any event); but nothing in Direction 99 required that it should do so.
Neither of grounds 2 and 3 is made good.
GROUND 4: IRRATIONAL REASONING REGARDING LACK OF REMORSE
Mr Miglani maintains that it was not open to the Tribunal to reason, from his inability or failure to recall in detail the specifics of his offending in 2019, that he lacked remorse or otherwise presented with a heightened risk of reoffending.
The Tribunal is not authorised by the Act to exercise its powers in ways that involve extreme illogicality or unreasonableness. For a decision to be affected by jurisdictional error in the form of unreasonable or irrational reasoning, it is insufficient that a decision maker is led to favour a conclusion about which reasonable minds might differ: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [131] (Crennan and Bell JJ), ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109, [47] (Griffiths, Perry and Bromwich JJ).
The test is stringent. It is not enough that a finding might be the subject of emphatic disagreement; it has to be so far outside the realms of what a reasonable decision maker might contemplate as appropriate as to exhibit extreme irrationality.
Insofar as concerns ground 4, Mr Miglani cannot clear that hurdle.
The Minister’s written outline of submissions correctly identified as follows:
Even read in isolation, there is nothing irrational about the Tribunal’s conclusion…:
(a)The Tribunal was referring to oral evidence of [Mr Miglani] reproduced at [the Tribunal’s Decision] [38]-[46]. There, [Mr Miglani] responded to questions not about minor details, but about the critical parts of the offences – what he had done and what his victims had done in response. At [57] [of the Tribunal’s Decision] the Tribunal stated its view that it was not plausible these fundamental events would not have been recalled by [Mr Miglani]. As the Tribunal noted (though it was not reproduced in [Mr Miglani’s submissions]), these were significant life events. On [Mr Miglani’s] evidence, this was his only offending and these were events that led to significant criminal consequences.
(b)Further, at the end of [57] [of the Tribunal’s Decision] (also not mentioned by [Mr Miglani]), the Tribunal referred to a detailed personal statement from [Mr Miglani] setting out details of his offending. [Mr Miglani’s] non-responses to the Tribunal orally were in stark contrast to that statement. They certainly support a conclusion that [Mr Miglani] was not being truthful in his evidence.
Even assuming that it might wrongly have done so (which, to be clear, I do only for the sake of argument), it was open to the Tribunal to reason that Mr Miglani’s remorse and insight could be measured by reference to his level of recall of the events that transpired. It was not unreasonable or irrational to a point bespeaking jurisdictional error for the Tribunal to have proceeded on that basis. Ground 4 is not made out.
GROUND 5: FAILURE TO CONSIDER TIES TO AUSTRALIA
Ground 5 is put in two ways (bifurcated by subparagraphs (a) and (b)).
Ground 5(a) concerns Mr Miglani’s ties to his wife, which he advanced as a relevant consideration guiding the Tribunal’s assessment of the strength, nature and duration of his ties to Australia. That ground was not the subject of written or oral submissions and appears no longer to be pressed.
In any event, it is plain from the Tribunal’s reasons (see above [18]) that the Tribunal in fact did take account of Mr Miglani’s marriage and the extent to which it might bear upon its discretion to refuse the Visa Application.
Ground 5(b) concerns Mr Miglani’s friends. Mr Miglani presented 11 written character references in support of his Visa Application. Although it could be clearer, Mr Miglani seems to suggest that the Tribunal failed to consider what at least some of them had said. During oral submissions, counsel for Mr Miglani submitted that none of the character references had been appropriately considered in the Tribunal’s Decision:
[The Tribunal] said that they discounted [the 11 written character references] on the basis that they didn’t know about the offending. They didn’t say, “We give it less weight,” or, “We think that in some ways the ties were lessened as a result.” Any rational assessment still requires that some consideration of those ties and weight to those ties needs to be given under [Direction 99].
Again, the failure alleged can only be established by inference. Here, there is no occasion to infer that the Tribunal was unaware that there were 11 statements advanced to prove what Mr Miglani maintained were his strong social ties to Australia. Those statements formed part of the “G documents” that were before the Tribunal, to which express mention was made (see above, [13]). Additionally, the Tribunal was aware not only that references had been submitted from people other than those from whom Mr Miglani called oral evidence but also of the content of what they had said (see above, [19]).
Again, then, there can be no occasion here to infer any want of consideration of the matters of which Mr Miglani says the Tribunal failed to take account.
Ground 5 is not made out.
GROUNDS 6 AND 7: CONSIDERATION OF IRRELEVANT MATTERS
Ground 6 is put in two ways (“(a)” and “(b)”). Each charges the Tribunal with having wrongly considered irrelevant matters en route to the making of its decision. Ground 7 is related, in that it posits, presumably in the alternative, that the consideration of those matters was attended by irrationality in a degree sufficient to warrant the grant of prerogative relief. I shall deal with the former contention first.
Mr Miglani submits that the Tribunal ought not to have considered—indeed, that the proper exercise of its jurisdiction required that it refrain from considering—the evidence before it about his wife’s intention, actual or perceived, to end their marriage. That, he says, was an irrelevant consideration and the account that the Tribunal took of it suffices to constitute its decision as a product of jurisdictional error.
That proposition is wrong and I reject it. The evidence about Mr Miglani’s wife’s intentions was capable of informing the strength of Mr Miglani’s ties to Australia (or, more precisely, the impact of a decision to refuse him a visa upon members of his immediate family). Indeed, I consider it to have been plainly germane to that issue. Had it been that Mr Miglani’s marriage was stronger than the Tribunal considered that it was (having regard to the evidence to which it referred), that would very plainly have been a factor that might inform its assessment of the strength of Mr Miglani’s community ties and the impact of visa refusal upon members of his family. The opposite must also be so.
It was open to the Tribunal to consider that evidence if it wished to. Doing so did not involve any prohibited consideration of an irrelevant matter, nor bespeak any jurisdictional error of the kind alleged.
Similarly, Mr Miglani says that his “failure to be completely candid and forthcoming with his friends” about his offending was a circumstance of which the Tribunal could not properly take account in considering the Visa Application.
Again, that submission is unsustainable. The extent to which it might assist may be debated (in a merits-only sense); but it cannot be said that Mr Miglani’s apparent failure to be candid with his friends—people whom he put forward to establish his close ties to Australia—was a matter falling beyond what the Tribunal was permitted to consider in the context of paragraph 8.1.3 of Direction 99.
Ground 6 is not made out. For equivalent reasons, nor is ground 7. Whatever might be said of the wisdom attaching to the Tribunal’s consideration of the matters to which that ground refers, it cannot be said that that consideration bespoke any extreme want of rationality that might suffice to establish jurisdictional error. On the contrary, it was open to the Tribunal to take account of the matters of which it took account, and to reason from them (or partially from them) the conclusions at which Mr Miglani takes aim. There was no irrationality as alleged and, as with ground 6, ground 7 is not made out.
DISPOSITION
None of the seven bases advanced by Mr Miglani by way of challenge to the Tribunal’s Decision is made out. The Application must, and will, be dismissed. Mr Miglani should pay the Minister’s costs. There shall be orders to those effects.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden. Associate:
Dated: 13 November 2024
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