Minister for Home Affairs v Stowers

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FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v Stowers [2020] FCA 407

Review of: Application for judicial review: Stowers and Minister for Home Affairs (Migration) [2019] AATA 3640 (19 September 2019)
File number: NSD 1762 of 2019
Judge: YATES J
Date of judgment: 27 March 2020
Catchwords: MIGRATION – application for judicial review of decision by Administrative Appeals Tribunal to revoke decision to cancel the respondent’s visa cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) - whether Tribunal failed to take into account mandatory considerations required by Ministerial Direction 79 – application granted
Legislation: Acts Interpretation Act 1901 (Cth) s 25D
Administrative Appeals Tribunal Act 1975 (Cth) s 43(1)
Migration Act 1958 (Cth) ss 499, 501(3A), 501(6)(a), 501CA(4)
Cases cited:

Collector of Customs v Pozzolanic (1993) 43 FCR 280

Malek Fahd Islamic School Limited v Minister for Education and Training (No 2) [2017] FCA 1377

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

Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145; 190 FCR 248

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259

McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609

VKTT v Minister for Immigration and Border Protection [2019] FCA 1018

Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141

Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174; 265 FCR 177

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; 74 AAR 545
Date of hearing: 11 March 2020
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 83
Counsel for the Applicant: Ms R Graycar
Solicitor for the Applicant: Australian Government Solicitor
Counsel for the First Respondent: Mr G Johnson

ORDERS

NSD 1762 of 2019
BETWEEN:

MINISTER FOR HOME AFFAIRS

Applicant
AND:

JUNIOR STOWERS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

YATES J

DATE OF ORDER:

27 MARCH 2020

THE COURT ORDERS THAT:

1.A writ of certiorari issue to quash the decision of the second respondent dated 19 September 2019.

2.The matter be remitted to the second respondent, differently constituted, for determination according to law.

3.The first respondent pay the applicant’s costs.

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


REASONS FOR JUDGMENT

YATES J:

INTRODUCTION

  1. The first respondent, Junior Stowers (the respondent), is the holder of a Class TY Subclass 444 Special Category (Temporary) visa.  He is a citizen of New Zealand who arrived in Australia on 16 September 2005, at the age of 19.

  2. On 23 December 2016, his visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) because a delegate of the applicant, the Minister for Home Affairs (the Minister), was satisfied that the respondent did not pass the character test in that he had a substantial criminal record…

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Details
Case
[2020] FCA 407
Decision Date

CaseChat Overview and Summary

The case of Minister for Home Affairs v Stowers involved a judicial review of a decision made by the Administrative Appeals Tribunal (AAT) to revoke a visa cancellation. The respondent, who had a substantial criminal record, had his visa initially cancelled under section 501(3A) of the Migration Act 1958 (Cth). The central issue before the court was whether the AAT erred in failing to consider certain mandatory considerations as required by Ministerial Direction 79. The Minister argued that the AAT had not appropriately taken into account several factors including the severity of the respondent's criminal history, the impact of the respondent's conduct on his children, and the nature of his relationships with family members.

The court examined the AAT's reasoning and noted that while the Tribunal had considered various factors, it did not adhere to the specific mandatory considerations outlined in Direction 79. Notably, the AAT did not view the respondent's 2016 offences as 'very serious' as mandated by the Direction but instead characterised them as 'serious'. This deviation from the prescribed considerations was critical because the Tribunal's failure to follow the Direction constituted a jurisdictional error. The court held that the Tribunal's approach in downplaying the severity of the respondent's crimes contravened the clear instructions set out in the Direction, thereby impacting the legitimacy of the decision-making process.

Consequently, the court granted the Minister's application for judicial review, quashed the AAT's decision, and remitted the matter to the AAT for reconsideration. The court also ordered the respondent to pay the Minister's costs. This decision underscores the importance of adhering to statutory and policy mandates in administrative decision-making to ensure consistency and fairness in the application of the law.

Orders

Orders of the court

1. A writ of certiorari issue to quash the decision of the second respondent dated 19 September 2019.

2. The matter be remitted to the second respondent, differently constituted, for determination according to law.

3. The first respondent pay the applicant’s costs.

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 Minister now seeks judicial review of the Tribunal’s decision.THE TRIBUNAL’S DECISION: OVERVIEW The Minister may revoke a cancellation decision if satisfied that the person passes the character test or that there is another reason why the cancellation decision should be revoked. Before the Tribunal, the respondent accepted that he had a substantial criminal record within the meaning of s 501(6)(a) of the Act and did not pass the character test. Therefore, the question before the Tribunal was whether it was satisfied that there was another reason why the cancellation decision should be revoked. In its Decision Record, the Tribunal set out the relevant legislation and policy applicable to the respondent’s case, including the requirements of Direction 79 made pursuant to s 499 of the Act. The Tribunal noted that it was required to take into account (to the extent that they were relevant) three primary considerations which, generally, should be given greater weight than other considerations (with any one or more of those considerations given more weight than any other primary consideration). The primary considerations are: (a)Protection of the Australian community; (b)Best interests of minor children in Australia; and (c)Expectations of the Australian community. The Tribunal noted other considerations that were potentially relevant to its review: Australia’s international non-refoulement obligations; the strength, nature and duration of the respondent’s ties to Australia; the impact of non-revocation of the cancellation decision on Australian business interests; the impact of non-revocation of the cancellation decision on the Australian community, including victims of the respondent’s criminal offending and their family members; and the extent of impediments faced by the respondent should he be removed from Australia. After referring to the respondent’s extensive criminal record (which need not be repeated here), the Tribunal noted that the respondent’s former partner, present partner, aunt and various other people with whom he had had contact in recent times, had given evidence to the Tribunal which was supportive of the respondent; of his determination to reform; of the genuineness of his attempts in recent times to reform; and of the respondent’s positive law-abiding attitude to the future. The Tribunal remarked:35.It is relevant to state that there is a distinct advantage in being present to hear and see witnesses give evidence. This advantage is particularly keen in the present matter where judgements must be made about facts based upon evidence given by individuals. I had such an advantage in this matter and I am thoroughly satisfied that the Applicant was both genuine and determined in his desire to be a law-abiding citizen in the future. That is, of course, not an end to the matter by any means and related issues will be discussed in more detail when assessing considerations required by the Tribunal in this case. As to protection of the Australian community, the Tribunal found: 43.The Applicant has, in the past, committed offences of violence which relate to vulnerable people. These are properly regarded as serious. It is, however, also relevant to consider the actual sentences which have been imposed. Those sentences demonstrate a moderate level of seriousness of offending. It is the Tribunal’s view that the Applicant has committed offences with an increasing level of seriousness, however, that is ameliorated, to some extent, by the fact that although there were incidents in immigration detention, the views expressed by many who have had more recent contact with the Applicant, and taking into account the psychologists’ views, the Tribunal is prepared to accept that the Applicant has made substantial changes to his attitude to offending during his period of custody and detention. Although it is never possible to predict the likelihood of re-offending with any certainty, on the objective facts, the Tribunal was prepared to accept that the Applicant represents a relatively low risk to the Australian community in the future. This view, which the Tribunal has formed, is based upon those many and varied witnesses called on behalf of the Applicant who gave evidence favourable to his growth and maturity and his change in attitude to offending. It is the Tribunal’s own view, having seen the Applicant give evidence, that he is both genuine in his desire to change and that, in fact, he has demonstrated a palpable change in attitude and behaviour making it less likely that he is someone who will commit criminal offences in the future. The Tribunal concludes that he is at relatively low risk to the Australian community in the future.

Ratio Decidendi

Legal Principle Established

In this connection, the Minister submits that the Tribunal failed to deal with the following matters in its reasons: (a)there had been long periods of absence or limited meaningful contact and there was an apprehended violence order, as well as an investigation by the Department of Family and Community Services, which were clearly in evidence and were the subject of extensive submissions by the Minister (para 13.2(4)(a));(b)the extent to which the respondent was likely to play a positive parental role (para 13.2(4)(b)); (c)the impact of the respondent’s conduct and whether it would have a negative effect on the children (para 13.2(4)(c)); (d)the effect of separation of the children including whether there were other ways to maintain their contact. Although the Tribunal stated that a long distance relationship was “far less satisfactory”, the Minister had submitted that the Tribunal ought to consider the limited contact that the respondent had had with his children (in particular, the two younger children) and also the evidence of his partner that she had considered moving to New Zealand to be with the respondent (para 13.2(4)(d)); and (e)whether there are other persons who already fulfil a parental role in relation to the children (para 13.2(4)(e)). Consideration The Tribunal was obliged to follow Direction 79 when exercising its discretion to determine whether to revoke the cancellation decision. I am satisfied that, in coming to its decision, the Tribunal did not follow the direction given in para 13.1.1(1)(b). That direction required the Tribunal to view the 2016 offences, and the 2011 offence against the respondent’s former partner, very seriously. I can only think that the words “very seriously” were chosen advisedly in drafting Direction 79. These words are not some flourish of the pen. There was no discretion reposed in the Tribunal to view the offences in some lesser or different light. But this is what the Tribunal did. First, the Tribunal referred to the 2016 offences as “serious”, not “very serious”. The respondent submitted that the omission of the word “very” in the Tribunal’s characterisation of the respondent’s offending should not lead to the conclusion that its decision, in this regard, is affected by jurisdictional error. The respondent called in aid the caution expressed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 that the reasons of an administrative decision-maker are meant to inform and are not to be scrutinised by over-zealous judicial review seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. As the Full Court of this Court said in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287, such reasons should not be construed minutely and finally with an eye keenly attuned to the perception of error; see also McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616 – 617, and the cases there cited.