Minister for Home Affairs v HSKJ

Case [2018] FCAFC 217

FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v HSKJ [2018] FCAFC 217

Appeal from: HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
File number(s): WAD 332 of 2018
Judge(s): GREENWOOD, MCKERRACHER AND BURLEY JJ
Date of judgment: 4 December 2018
Catchwords:

MIGRATION – appeal from the Federal Court – where the primary judge ordered that the Tribunal’s decision affirming the non-revocation of cancellation be set aside – cancellation of visa under s 501 of Migration Act 1958 (Cth) – whether Tribunal incorrectly applied Ministerial Direction 65 – whether Ministerial Direction 65 can permissibly create a general hierarchy of considerations as between “primary” and “other” considerations - appeal allowed

MIGRATION – notice of contention – whether the Tribunal had failed to consider impact of revocation on the respondent’s sister – notice of contention upheld

Legislation: Migration Act 1958 (Cth) ss 430, 476A, 499, 501, 501CA
Cases cited:

HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013

Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; (2015) 150 ALD 34

Williams v Minister for Immigration and Border Protection [2014] FCA 674; (2014) 226 FCR 112

Date of hearing: 8 November 2018
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 58
Counsel for the Appellant: Mr S Lloyd SC with Mr D Hume
Solicitor for the Appellant: Australian Government Solicitor
Counsel for the First Respondent: Mr M Crowley
Solicitor for the First Respondent: Cathal Smith Legal Pty Ltd
Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

ORDERS

WAD 332 of 2018
BETWEEN:

MINISTER FOR HOME AFFAIRS

Appellant
AND:

HSKJ

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGES:

GREENWOOD, MCKERRACHER AND BURLEY JJ

DATE OF ORDER:

4 DECEMBER 2018

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The Notice of Contention is upheld.

3.The orders of the primary judge not be disturbed, save as to costs.

4.The First Respondent pay the Appellant’s costs of the hearing before the primary judge and the costs of the appeal up until 30 October 2018, being the filing date of the Notice of Contention, to be assessed if not agreed.

5.The Appellant pay three quarters of the First Respondent’s costs of the Notice of Contention, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

THE COURT:

1.               INTRODUCTION

  1. The respondent is a citizen of Iraq who came to Australia in 2010 and was granted a Class XB Subclass 200 (Refugee) visa

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Minister for Home Affairs v HSKJ [2018] FCAFC 217
Case
[2018] FCAFC 217
Decision Date

CaseChat Overview and Summary

The case of Minister for Home Affairs v HSKJ involves an appeal from the Federal Court regarding the non-revocation of a visa cancellation under section 501 of the Migration Act 1958 (Cth). The appeal was against a decision of the Tribunal affirming the non-revocation of the cancellation. The central legal issue was whether the Tribunal had incorrectly applied Ministerial Direction 65 in its decision-making process, specifically regarding the hierarchy of considerations between "primary" and "other" factors. Additionally, the court needed to determine if the Tribunal had failed to consider the impact of the revocation on the respondent's sister as required by the notice of contention.

The court found that the Tribunal had indeed erred in its application of Ministerial Direction 65, which provides guidance on considerations for revoking a visa cancellation. The primary considerations include the protection of the Australian community and the expectations of the Australian community. The court held that the Tribunal had incorrectly applied these considerations, leading to an unjust outcome. Furthermore, the court upheld the notice of contention, finding that the Tribunal had failed to adequately consider the impact of the revocation on the respondent's sister, as required by the notice of contention.

In light of these findings, the appeal was allowed. The court set aside the Tribunal's decision and remitted the matter back for reconsideration. The primary judge's orders were not to be disturbed, except for the costs. The First Respondent was ordered to pay the Appellant's costs up until the filing date of the Notice of Contention, and the Appellant was to pay three quarters of the First Respondent's costs of the Notice of Contention.

Orders

Orders of the court

1. The appeal is allowed.

2. The Notice of Contention is upheld.

3. The orders of the primary judge not be disturbed, save as to costs.

4. The First Respondent pay the Appellant’s costs of the hearing before the primary judge and the costs of the appeal up until 30 October 2018, being the filing date of the Notice of Contention, to be assessed if not agreed.

5. The Appellant pay three quarters of the First Respondent’s costs of the Notice of Contention, to be assessed if not 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

Full text does not contain this section.

Decision

Reasons for decision

The Direction then expands on relevant factors for consideration in relation to each of these matters. 3. THE TRIBUNAL’S DECISION The Tribunal first determined that the respondent did not pass the character test and was liable for mandatory cancellation of his visa. It then turned to consider whether, within s 501CA(4), it was satisfied that there was “another reason” why the original decision should be revoked. In that respect the Tribunal observed at [28] that it was bound to comply with Direction 65, and went on to refer to its contents. The Tribunal next addressed the three primary considerations and the other considerations that it took into account. We gratefully adopt the learned primary judge’s succinct summary of the Tribunal’s reasons as follows:15As to protection of the Australian community, the Tribunal considered the applicant's claims in detail and concluded: (a)taking into account the nature of his offences, the sentences imposed, the comments of the sentencing judges and the specific guidance and principles of Direction 65, the nature and seriousness of the applicant's conduct is a significant consideration that weighs heavily against revocation of the decision to cancel the visa;(b)the cumulative effect of his offending over a lengthy period of time and the seriousness of his offending weighs heavily against revocation of the decision and evidences a degree of recklessness towards the well-being of the Australian community;(c)previously the applicant had expressed remorse for his actions but during the hearing he was quick to blame others, including the WA Police, and the Tribunal has serious concerns about his credibility in this regard;(d)given the applicant comes from a war-torn country it is quite conceivable that the applicant suffered from and continues to suffer from post-traumatic stress disorder and developed a drug addiction in order to manage mental anguish;(e)the applicant had undertaken various rehabilitation courses in prison and claimed that he had learnt from his mistakes and promised his mother that he would get his life together and stay away from drugs;(f)there was a letter before the Tribunal offering the applicant employment upon his release;(g)the applicant continued to offend post those courses and failed to demonstrate rehabilitation in the community whilst on bail;(h)although his mother has offered to provide a loving and supporting environment to her son, there is no evidence that he will continue to receive counselling or intervention for his mental health issues if released into the community and this is of concern in light of the link between his mental health and illicit drug use;(i)after receiving a formal warning that future offending would expose him to removal from Australia the applicant received some further 20 convictions;(j)the risk of recidivism is high; and(k)the present risk to the Australian community if the applicant engages in further criminal conduct is high and the protection of the Australian community weighs heavily in favour of refusing to revoke the cancellation of the visa. 16There was no issue raised as to the best interests of a minor child in this case.17As to expectations of the Australian community, the Tribunal concluded, amongst other things, that:(a)the Australian community would have considerable sympathy for a young Iraqi male who has endured what the applicant has endured but there are limits to just how far that generosity and sympathy will extend;(b)the expectations of the Australian community are that a non-citizen with an extensive criminal record should expect to lose his visa and forfeit the privilege of remaining in Australia;(c)the applicant has almost 30 convictions and the community would expect the applicant to be deported accordingly; and(d)the community's expectations in this regard weigh heavily against the revocation of the decision to cancel the applicant's visa.18The Tribunal then turned to paragraph 14 of Direction 65 that provides that when deciding whether to revoke a mandatory cancellation of a visa certain other considerations may be taken into account. The Tribunal identified that in this case, other considerations that may be relevant are:(a)Australia's international non-refoulement obligations as they relate to the applicant;(b)the strength, nature and duration of the applicant's ties with Australia; and(c)the extent of impediments for the applicant if he returned to Iraq.

Ratio Decidendi

Legal Principle Established

Direction 65 provides guidance in the remainder of paragraph 13 as to the relevant factors to take into account in relation to each of these primary considerations. The direction then identifies “other considerations” as follows:14. Other considerations - revocation requests(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):(a) International non-refoulement obligations;(b) Strength, nature and duration of ties;(c) Impact on Australian business interests;(d) Impact on victims;(e) Extent of impediments if removed. The Direction then expands on relevant factors for consideration in relation to each of these matters. 3. THE TRIBUNAL’S DECISION The Tribunal first determined that the respondent did not pass the character test and was liable for mandatory cancellation of his visa. It then turned to consider whether, within s 501CA(4), it was satisfied that there was “another reason” why the original decision should be revoked. In that respect the Tribunal observed at [28] that it was bound to comply with Direction 65, and went on to refer to its contents. The Tribunal next addressed the three primary considerations and the other considerations that it took into account. We gratefully adopt the learned primary judge’s succinct summary of the Tribunal’s reasons as follows:15As to protection of the Australian community, the Tribunal considered the applicant's claims in detail and concluded: (a)taking into account the nature of his offences, the sentences imposed, the comments of the sentencing judges and the specific guidance and principles of Direction 65, the nature and seriousness of the applicant's conduct is a significant consideration that weighs heavily against revocation of the decision to cancel the visa;(b)the cumulative effect of his offending over a lengthy period of time and the seriousness of his offending weighs heavily against revocation of the decision and evidences a degree of recklessness towards the well-being of the Australian community;(c)previously the applicant had expressed remorse for his actions but during the hearing he was quick to blame others, including the WA Police, and the Tribunal has serious concerns about his credibility in this regard;(d)given the applicant comes from a war-torn country it is quite conceivable that the applicant suffered from and continues to suffer from post-traumatic stress disorder and developed a drug addiction in order to manage mental anguish;(e)the applicant had undertaken various rehabilitation courses in prison and claimed that he had learnt from his mistakes and promised his mother that he would get his life together and stay away from drugs;(f)there was a letter before the Tribunal offering the applicant employment upon his release;(g)the applicant continued to offend post those courses and failed to demonstrate rehabilitation in the community whilst on bail;(h)although his mother has offered to provide a loving and supporting environment to her son, there is no evidence that he will continue to receive counselling or intervention for his mental health issues if released into the community and this is of concern in light of the link between his mental health and illicit drug use;(i)after receiving a formal warning that future offending would expose him to removal from Australia the applicant received some further 20 convictions;(j)the risk of recidivism is high; and(k)the present risk to the Australian community if the applicant engages in further criminal conduct is high and the protection of the Australian community weighs heavily in favour of refusing to revoke the cancellation of the visa. 16There was no issue raised as to the best interests of a minor child in this case.17As to expectations of the Australian community, the Tribunal concluded, amongst other things, that:(a)the Australian community would have considerable sympathy for a young Iraqi male who has endured what the applicant has endured but there are limits to just how far that generosity and sympathy will extend;(b)the expectations of the Australian community are that a non-citizen with an extensive criminal record should expect to lose his visa and forfeit the privilege of remaining in Australia;(c)the applicant has almost 30 convictions and the community would expect the applicant to be deported accordingly; and(d)the community's expectations in this regard weigh heavily against the revocation of the decision to cancel the applicant's visa.18The Tribunal then turned to paragraph 14 of Direction 65 that provides that when deciding whether to revoke a mandatory cancellation of a visa certain other considerations may be taken into account. The Tribunal identified that in this case, other considerations that may be relevant are:(a)Australia's international non-refoulement obligations as they relate to the applicant;(b)the strength, nature and duration of the applicant's ties with Australia; and(c)the extent of impediments for the applicant if he returned to Iraq.