Minister for Home Affairs v Bro18

Case [2024] FCAFC 27

FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v BRO18 [2024] FCAFC 27  

Appeal from: BRO18 v Minister for Home Affairs [2023] FCA 1193
File number: NSD 1266 of 2023
Judgment of: BROMWICH, DERRINGTON AND SNADEN JJ
Date of judgment: 8 March 2024
Catchwords: MIGRATION – appeal from decision of single judge of the Federal Court of Australia – where delegate of Minister for Home Affairs cancelled respondent’s visa on character grounds under s 501(2) of the Migration Act 1958 (Cth) – where Minister cannot re-exercise discretion on the same factual basis in circumstances where the Minister had earlier decided not to cancel the visa due to Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 270 CLR 430 – whether Makasa allows decision-makers to consider the same facts considered in an earlier exercise of the discretion in concluding that a person did not pass the character test – whether the error was material – scope of counterfactual analysis in assessing materiality – held: Minister’s error was not material; appeal allowed
Legislation:

Acts Interpretation Act 1901 (Cth) s 33(1)

Migration Act 1958 (Cth) s 501(2), (6)(a), (c), (7)(d)
Cases cited:

BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170

Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; 183 FCR 113

CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76

In re Davis (1947) 75 CLR 409

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 270 CLR 430

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421

Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187

Minister for Immigration and Multicultural Affairs v Gunner (1998) 84 FCR 400

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 273 CLR 506

Nguyen v Minister for Home Affairs [2019] FCAFC 128; 270 FCR 555
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 38
Date of hearing: 16 February 2024
Counsel for the Appellant: Mr P Herzfeld SC and Mr N Swan
Solicitor for the Appellant: Clayton Utz
Counsel for the Respondent: Mr O Jones
Solicitor for the Respondent: Ms A Battisson

ORDERS

NSD 1266 of 2023
BETWEEN:

MINISTER OF HOME AFFAIRS

Appellant
AND:

BRO18

Respondent

ORDER MADE BY:

BROMWICH, DERRINGTON AND SNADEN JJ

DATE OF ORDER:

8 MARCH 2024

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.Orders 2, 3, 4 and 5 of the orders made by the primary judge be set aside and, in their place, it be ordered that:

(a)the application be dismissed; and

(b)in the proceeding below, the applicant pay the respondent’s…

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Minister for Home Affairs v Bro18 [2024] FCAFC 27
Case
[2024] FCAFC 27
Decision Date

CaseChat Overview and Summary

The appeal in Minister for Home Affairs v Bro18 concerns the decision of the Federal Court of Australia to set aside a visa cancellation made by the Minister for Home Affairs on character grounds. The respondent, BRO18, a citizen of Burundi, challenged the cancellation of his visa, arguing that the Minister's error in not considering certain prior criminal convictions was material and vitiated the decision. The appeal by the Minister focuses on whether the primary judge correctly determined that the error was material enough to invalidate the cancellation.

The central legal issue before the court was whether the error made by the Minister in the 2017 decision was material, and thus jurisdictional, thereby rendering the visa cancellation invalid. This issue hinged on the interpretation of Minister for Immigration and Border Protection v Makasa [2021] HCA 1; 270 CLR 430, which establishes the conditions under which the Minister can re-exercise a discretion on the same factual basis. Specifically, the court needed to determine whether the Minister was precluded from considering the 2008 sentences in light of the 2009 decision not to cancel the visa, and whether the error in the 2017 decision was material.

In assessing the materiality of the error, the court held that the Minister's error was not material. The reasoning involved a counterfactual analysis to determine whether the 2008 sentences could have realistically been considered alongside the post-2009 sentences in forming a suspicion of BRO18 failing the character test. The court found that the principles in Makasa did not preclude the Minister from considering the 2008 sentences, thus allowing for a broader counterfactual analysis. Consequently, the error did not lead to a different outcome because there was a realistic possibility that the post-2009 sentences would have been considered regardless of the 2008 sentences. Therefore, the appeal was allowed, and the orders made by the primary judge were set aside, dismissing the application and ordering BRO18 to pay the Minister's costs.

Orders

Orders of the court

1. The appeal be allowed.

2. Orders 2, 3, 4 and 5 of the orders made by the primary judge be set aside and, in their place, it be ordered that:

(a) the application be dismissed; and

(b) in the proceeding below, the applicant pay the respondent’s costs as assessed or agreed.

3. The respondent pay the appellant’s costs of the appeal as taxed or agreed.

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

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Decision

Reasons for decision

The sole ground in the Minister’s appeal is an assertion that the primary judge erred in concluding that the error in the 2017 decision was material, so as to render it a vitiating jurisdictional error. The only issue on appeal is therefore whether the primary judge erred in finding that materiality was established by BRO18, who bore the onus to prove that the error made was jurisdictional so as to vitiate the visa cancellation decision.BRO18’s history and the Minister’s 2017 decision BRO18 is a citizen of Burundi, born in 1982. He arrived in Australia in February 2002 and was granted his current visa in 2007. On 18 December 2008, he was convicted on three offences and sentenced as follows:(a)in the District Court of Western Australia, aggravated burglary and committing an offence in a dwelling (12 months’ imprisonment) and breaching a violence restraining order in circumstances of aggravation (6 months’ imprisonment); and(b)in the Magistrates Court of Western Australia, aggravated assault occasioning bodily harm (6 months’ imprisonment). On 2 April 2009, BRO18 was notified of the Minister’s intention to consider the cancellation of his visa pursuant to s 501(2) of the Migration Act. The letter notifying him of this intention advised of reliance on the above sentences. He did not dispute that he failed the character test, and advanced other reasons as to why his visa should not be cancelled. On 31 July 2009, a delegate of the Minister decided not to cancel his visa. After the 2009 decision, BRO18 was convicted and given suspended sentences of imprisonment in the Magistrates Court of Western Australia in May 2012 (five sentences), October 2014 (one sentence) and August 2015 (three sentences), totalling 42 months’ imprisonment. A person will not pass the character test if that person has a substantial criminal record as defined by s 501(7): s 501(6)(a). Under s 501(7)(c) and s 501(7)(d) respectively, a person has a substantial criminal record for the purposes of the character test if the person has been sentenced to a term of imprisonment of 12 months or more, or has been sentenced to two or more terms of imprisonment where the total of those terms is 12 months or more. Suspended prison sentences fall within the description of a term of imprisonment for the purposes of s 501(7): see Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; 183 FCR 113 per Rares J at [9] and [12], with Moore J agreeing and Nicholas J reaching the same conclusion. It follows that BRO18’s post-2009 suspended sentences in aggregate comfortably exceeded the threshold for a substantial criminal record of 12 months’ imprisonment based upon s 501(6)(a), read with s 501(7)(d) and s 501(7A). In a letter dated 6 March 2015, BRO18 was again notified of the Minister’s intention to consider cancelling his visa. That notification was sent again in a letter dated 14 May 2015. For a time, he retained a migration agent, but that agent ceased to act. He was given a further opportunity to respond, but nothing was received from him. In 2017, further information related to the sentences was received by the Minister and provided to BRO18 for comment. On the evidence before this Court, it seems that he did not respond, but nothing turns on this.

Ratio Decidendi

Legal Principle Established

The substance of BRO18’s argument is that materiality is to be assessed by the more limited step only of removing the consideration of the 2008 sentence, which would leave no basis for the assessment of character and therefore necessarily produce a different result at the first hurdle. BRO18 asserts that it is not permissible to have regard to the post-2009 sentences because they were never considered by the Minister for the purposes of formation of the suspicion. BRO18’s argument is that the 2008 sentences must be removed from consideration, but what was not considered in the first place as to suspicion formation cannot be added to the counterfactual evaluation of materiality.Consideration The competing arguments were advanced upon the basis that the Minister was precluded from having any regard to any of the 2008 convictions, although the Minister did suggest that this was going further than Makasa decided. BRO18’s argument depends in large measure upon any consideration of any of the 2008 sentences in relation to the formation of the suspicion being precluded by Makasa. That is, his case is that those 2008 sentences were permanently removed from consideration in the formation of the suspicion once they had been deployed that way in the prior exercise of the s 501(2) power in 2009. The nature of the Makasa proscription, and the circumstances in which the power in s 501(2) may be re-exercised, is an important aspect of the assessment of the materiality of an error in the re-exercise of that the power, in order to determine whether the error made by the Minister in 2017 was jurisdictional. It was not in doubt in Makasa that the error in the consideration of the sentences previously considered in the exercise of the power was material because there was no alternative way of meeting the threshold of suspicion of the visa-holder in that case having a significant criminal record so as to fail the character test as expressed in s 501(6)(a), read with s 501(7), and no other possible basis of failing the character test was relied upon. But that is not so in the case of BRO18. It needs to be kept steadily in mind that the threshold is one of realistic possibilities. It is easier to show a realistic possibility of the post-2009 sentences being considered together with the 2008 sentence if the principles in Makasa permit this as part of the Minister’s counterfactual analysis. If the Minister was entitled to have regard to the 2008 sentence, but not to that sentence alone because of Makasa, the counterfactual analysis required to determine materiality makes the Minister’s argument stronger. That is because it can more easily be established that the error will be immaterial on the Minister’s formulation of the counterfactual, because then the question is whether any of the post-2009 offences would most likely have been considered as well as the 2008 sentence. It removes an essential plank from BRO18’s formulation of the appropriate counterfactual analysis because that requires removal of any repeated consideration of the 2008 conviction, and nothing more being considered, leading to no possibility of the same outcome. The Makasa proscription and the error in the 2017 decision