MIGRATION – appeal from single judge of the Court allowing an application for judicial review of the decision of the Assistant Minister, acting personally, not to revoke the decision to cancel the then applicant’s visa on character grounds – Assistant Minister not satisfied that there was another reason why the original decision should be revoked – whether failure on the part of the Assistant Minister to have regard to a mandatory relevant consideration – whether failure on the part of the Assistant Minister to consider two particular representations: that the respondent would have nowhere to live and no money if required to return to New Zealand and that the respondent was a victim of domestic violence
Viane vMinister for Immigration and Border Protection [2018] FCAFC 116
Date of hearing:
9 November 2018
Date of last submissions:
19 November 2018
Registry:
New South Wales
Division:
General Division
National Practice Area:
Administrative and Constitutional Law and Human Rights
Category:
Catchwords
Number of paragraphs:
71
Counsel for the Appellant:
Mr G Kennett SC with Mr G Johnson
Solicitor for the Appellant:
Mills Oakley
Counsel for the Respondent:
Mr B Zipser
Solicitor for the Respondent:
Salvos Legal
ORDERS
NSD 1344 of 2018
BETWEEN:
MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Appellant
AND:
REBECCA REWA MAIOHA
Respondent
JUDGES:
RARES, FLICK AND ROBERTSON JJ
DATE OF ORDER:
5 DECEMBER 2018
THE COURT ORDERS…
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
Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216
Case
[2018] FCAFC 216
Decision Date
CaseChat Overview and Summary
In the case of Minister for Immigration and Border Protection v Maioha, the respondent challenged the Assistant Minister's decision not to revoke the cancellation of her visa on character grounds. The primary judge found that the Assistant Minister made a jurisdictional error by failing to properly consider the respondent's representations regarding her financial hardship and accommodation if returned to New Zealand. The Minister appealed this decision to the Federal Court of Australia, contending that the primary judge misconstrued the concept of mandatory relevant considerations and that the Minister had, in fact, considered the respondent's submissions.
The court was tasked with determining whether the Assistant Minister failed to consider mandatory relevant considerations when deciding not to revoke the visa cancellation. The central legal issue was whether the Minister was required to give proper consideration to the respondent's claims of financial hardship and accommodation issues, and if this constituted a jurisdictional error. The Minister argued that the respondent's assertions were not elevated to mandatory relevant considerations, whereas the respondent contended that the failure to consider these representations constituted a jurisdictional error. The court also needed to address the tension between different Full Court decisions on what constitutes a mandatory relevant consideration in the context of visa cancellation decisions.
The court found that the primary judge's reasoning was not strictly based on the concept of mandatory relevant considerations but rather on the need for the Minister to engage actively with the respondent's critical and relevant submissions. The court allowed the appeal, holding that the primary judge's approach was flawed and that the Minister had, in fact, considered the respondent's submissions regarding her financial situation and accommodation. The court concluded that the Minister's decision was not vitiated by a jurisdictional error and set aside the orders made by the primary judge. Instead, the court dismissed the respondent's application for review, with costs to be paid by the respondent to the Minister.
Orders
Orders of the court
1. The appeal is allowed.
2. The notice of contention is dismissed.
3. The orders made by the primary judge on 6 July 2018 are set aside.
4. In place of those orders, order that the further amended originating application for review of a migration decision dated 12 December 2017 be dismissed, with costs.
5. The respondent pay the appellant’s costs, as agreed or taxed.
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 respondent relied on a notice of contention which originally contained two grounds. The second ground was not pressed. It was contended that the judgment of the primary judge should be affirmed, as follows:1. The Respondent contended before the primary judge that:a)The Appellant, in the course of making the decision on 17 July 2017 not to revoke the cancellation of the Respondent’s visa (“the Non-Revocation Decision”), failed to give proper and genuine consideration to the Respondent’s representation that she was a victim of domestic violence, and this was a reason why the decision to cancel the Respondent’s visa should be revoked.b) This was a jurisdictional error in the Non-Revocation Decision.The submissions of the parties The Minister submitted that there was no dispute that the respondent did not pass the character test. The question for the Minister was whether there was “another reason” why the original decision should be revoked. As to ground 1, the Minister submitted the fundamental error was that the primary judge treated the respondent’s submissions that she would have nowhere to live and no money if returned to New Zealand as a mandatory relevant consideration. It could be accepted that the representations advanced by an applicant “as a whole” were a mandatory relevant consideration, as it was in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 at [55]-[56], but information advanced by an applicant to the Minister under s 501CA(4) which might be considered by the Court to be critical and relevant was not elevated in itself into a mandatory relevant consideration. In this matter, the Minister submitted, the respondent’s assertion that she would have nowhere to live and no money was among a number of particular assertions advanced by the respondent articulating her fears concerning hardship she might suffer if returned to New Zealand. The Minister submitted that a person in the respondent’s position would have all kinds of fears, some validly held, some perhaps not. The respondent was entitled to advance those fears to the Minister. However, it was entirely another step to characterise each expressed fear of an applicant for revocation under s 501CA(4) as a mandatory relevant consideration. As to ground 2, the Minister submitted that if he was required to give proper, genuine and realistic consideration to the respondent’s representation that she would have nowhere to live and no money, he did so and the primary judge erred in finding to the contrary. One of the impediments which the Minister acknowledged, at [43] of his revocation decision, as needing (and receiving) consideration was “maintaining basic living standards”. The submission that the respondent would have nowhere to live and no money was expressly noted at [45]. This was an aspect of the “hardships” which, the Minister concluded at [49], would not be insurmountable. The Minister submitted that he was entitled to recognise New Zealand’s similar culture, language and health system standards. The Minister submitted that he did not require evidence to rely on a broad proposition as to the benefits available in New Zealand. The Minister referred to McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 at [37]. The Minister submitted he was entitled to proceed on the understanding that New Zealand had similar culture, language and health standards to Australia. Financial hardship was only an impediment to the respondent establishing herself in New Zealand to the extent that it would be worse there than in Australia.
Ratio Decidendi
Legal Principle Established
The respondent submitted that the Minister did not refer to this representation. The respondent submitted the question was whether this involved a jurisdictional error. On application of the reasoning process in cases such as Goundar, Viane and Buadromo, the respondent submitted the answer was “Yes”. ConsiderationThe appeal In relation to mandatory relevant considerations there is perhaps a tension in the reasoning between Minister for Home Affairs v Buadromo [2018] FCAFC 151 and Hay v Minister for Home Affairs [2018] FCAFC 149, Hooton v Minister for Home Affairs [2018] FCAFC 142 and Viane vMinister for Immigration and Border Protection [2018] FCAFC 116. Buadromo did not consider Viane, perhaps because of the way the case was argued. In Viane it was held that the representations the Minister failed to consider concerned the hardship the appellant’s partner would suffer if she had to relocate to Samoa and that those representations were substantial and significant such that the Minister’s failure to consider them should be characterised as jurisdictional error: see the judgment at [2] per Reeves J, at [31]-[32] per Rangiah J and at [75] per Colvin J. In Hooton, the Full Court considered whether risk to the Australian community was a mandatory relevant consideration where the Minister made a decision under s 501CA(4). The Full Court followed BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78; 252 FCR 82 and distinguished the cases decided under s 501(2). The Full Court held, at [58], that at least in the absence of representations in response to an invitation under s 501CA(3) raising the point as a significant issue, risk to the Australian community is not such a mandatory relevant consideration. The Full Court referred to Foster v Minister for Customs and Justice [2000] HCA 38; 200 CLR 442; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 per McHugh, Gummow and Hayne JJ at [73]-[74] and also NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; 220 FCR 44 at [165]-[168]. Even if the Minister is obliged to consider a particular matter the question arises whether the Minister is under an obligation to evaluate that matter in a particular way: see BSJ16 at [43]-[44] and Folau v Minister for Immigration and Border Protection [2017] FCAFC 214; 158 ALD 394 at [32] and [62]. In the present appeal, it is not clear that the primary judge did proceed by reference to mandatory relevant considerations as such, although ground 1 of the notice of appeal proceeds on that basis. The reasoning of the primary judge was that the Minister made a jurisdictional error in failing to engage in an active intellectual way with the respondent’s critical and relevant submissions as to her financial situation and accommodation if returned to New Zealand. This is not the language of mandatory relevant consideration as traditionally understood: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-41 per Mason J.