Murphy v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Murphy v Minister for Home Affairs [2018] FCA 1924

File number: VID 513 of 2018
Judge: MORTIMER J
Date of judgment: 4 December 2018
Catchwords: MIGRATION – application for review of decision of Administrative Appeals Tribunal to refuse to overturn delegate’s decision not to revoke the mandatory cancellation of applicant’s visa under s 501 of the Migration Act 1958 (Cth) due to applicant’s criminal offending – whether Tribunal erred in drawing an inference concerning the risk to the Australian community posed by applicant – whether Tribunal’s conclusion on risk posed by applicant open on the evidence – findings made by Tribunal open on the evidence – application dismissed
Legislation: Migration Act 1958 (Cth), ss 501(3A), 501(5), 501(6), 501(7), 501CA
Cases cited:

Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1

Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321

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

Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Date of hearing: 1 November 2018
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 43
Counsel for the Applicant: Mr N Poynder
Solicitor for the Applicant: Erskine Rodan & Associates
Counsel for the First Respondent: Mr W Mosley
Solicitor for the First Respondent: Clayton Utz
Counsel for the Second Respondent: The Second Respondent filed a submitting appearance save as to costs

ORDERS

VID 513 of 2018
BETWEEN:

JASON MURPHY

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

MORTIMER J

DATE OF ORDER:

4 DECEMBER 2018

THE COURT ORDERS THAT:

1.The application for review is dismissed.

2.The applicant pay the first respondent’s costs of the application to be fixed in a lump sum.

3.If the parties agree on a lump sum figure in relation to the first respondent’s costs of the application, they are to file a joint minute of proposed orders on or before 4 pm on 18 December 2018.

4.In the absence of any joint minute of proposed orders, pursuant to paragraph 3 of these orders:

(a)on or before 4 pm on 7 January 2019, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016.

(b)on or before 4 pm on 14 January 2019, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

5.In the absence of any agreement having been reached on or before 21 January 2019, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER…

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Details
Case
[2018] FCA 1924
Decision Date

CaseChat Overview and Summary

In Murphy v Minister for Home Affairs, the Federal Court of Australia considered an application for judicial review of a decision by the Administrative Appeals Tribunal (AAT) to refuse to revoke the mandatory cancellation of the applicant’s visa under section 501 of the Migration Act 1958 (Cth). The applicant, Murphy, sought to have the cancellation of his visa revoked on the basis that it was unjust and unreasonable. The primary legal issues before the court were whether the AAT had erred in drawing an inference concerning the risk posed by the applicant to the Australian community and whether the AAT's conclusion on the risk posed by the applicant was open on the evidence.

The court found that the AAT had not erred in its assessment of the risk posed by the applicant. It concluded that the AAT's findings were supported by the evidence and were not unreasonable. The court held that the AAT had appropriately considered the principles and guidelines provided in Direction 65, which the Minister had issued under section 499 of the Migration Act. The primary considerations outlined in Direction 65, such as the protection of the Australian community, the expectations of the Australian community, and the best interests of minor children in Australia, were properly applied by the AAT. The court found that the AAT had not failed to take into account relevant considerations, nor had it erred in its reasoning or made findings that were open on the evidence.

Consequently, the application for judicial review was dismissed. The court ordered that the applicant pay the first respondent’s costs of the application to be fixed in a lump sum, with specific timelines provided for the parties to agree on the amount or for the matter to be referred to a Registrar for determination if no agreement was reached.

Orders

Orders of the court

1. The application for review is dismissed.

2. The applicant pay the first respondent’s costs of the application to be fixed in a lump sum.

3. If the parties agree on a lump sum figure in relation to the first respondent’s costs of the application, they are to file a joint minute of proposed orders on or before 4 pm on 18 December 2018.

4. In the absence of any joint minute of proposed orders, pursuant to paragraph 3 of these orders:

(a) on or before 4 pm on 7 January 2019, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS) dated 25 October 2016.

(b) on or before 4 pm on 14 January 2019, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

5. In the absence of any agreement having been reached on or before 21 January 2019, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

Background

Background to the litigation

For the reasons set out below, the application for judicial review will be dismissed.BACKGROUND AND RELEVANT LEGISLATIVE PROVISIONS Since 2014, cancellation of a visa held by a non-citizen who falls within the terms of s 501(3A) of the Migration Act 1958 (Cth) has been mandatory. In substance, s 501(3A)(a) and (b) provide what might be described as a “two strikes” process before that mandatory cancellation occurs. Relevantly to the applicant’s situation, the first “strike” (s 501(3A)(a)) is that a person has a “substantial criminal record” which is a concept defined in s 501(7):(7) For the purposes of the character test, a person has a substantial criminal record if:(a)the person has been sentenced to death; or(b)the person has been sentenced to imprisonment for life; or(c)the person has been sentenced to a term of imprisonment of 12 months or more; or(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or(f) the person has:(i)been found by a court to not be fit to plead, in relation to an offence; and(ii)the court has nonetheless found that on the evidence available the person committed the offence; and(iii)as a result, the person has been detained in a facility or institution. The second “strike” (s 501(3A)(b)) is that, having such a record, a person is at the time the occasion for the exercise of the power in s 501(3A) arises, “serving a sentence of imprisonment on a full-time basis in a custodial institution”, for an offence against a law of the Commonwealth, a State or a Territory. Cancellation is mandatory, and without the procedural fairness for which other parts of the Migration Act provide in relation to other cancellation decisions (s 501(5)). Instead, the remedy for a person whose visa is cancelled in this way is to seek to have the cancellation revoked. Relevantly to the applicant’s circumstances, this is the process for which s 501CA provides. The revocation power is contained in s 501CA(4) and is expressed in the following terms:(4) The Minister may revoke the original decision if:(a) the person makes representations in accordance with the invitation; and(b) the Minister is satisfied:(i)that the person passes the character test (as defined by section 501); or(ii)that there is another reason why the original decision should be revoked. In most situations, the ameliorating effect of s 501CA(4)(b)(i) will not be available to a person, because – again, relevantly to Mr Murphy’s situation – there is no doubt that the person does not pass the character test in s 501(6) because the person does indeed have a “substantial criminal record”. This ameliorating effect might be available in the rare case where there has been some mistake or miscalculation about a person’s criminal record. Usually, people in the situation of the applicant have to rely on the second ameliorating aspect of this power: namely whether there is “another reason” why the cancellation decision should be revoked.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Again relevantly to the applicant’s circumstances and his judicial review application, in assessing whether there is “another reason” why the cancellation decision should be revoked, the Tribunal on review, like the delegate before it, is bound to take into account the guidelines promulgated by the Minister under s 499 of the Migration Act about the exercise of the revocation power. The version of these ministerial directions applicable to the Tribunal’s decision was what is called “Direction 65”. I have described various aspects of this direction in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, and its terms need not be set out in detail in these reasons, because they form only the background to the applicant’s ground of review.The applicant’s visa cancellation and the Tribunal’s review decision The visa cancellation occurred on 2 February 2017. It followed the applicant’s conviction and sentence on 18 November 2016 for, on the Tribunal’s calculation, sixteen offences, to which the applicant entered a guilty plea. He was sentenced to eight months’ imprisonment as an aggregate sentence for thirteen of the charges. This triggered what I have described above as the “second strike” aspect of s 501(3A), the applicant having at that time a substantial criminal record within the terms of s 501(7), having received a sentence of twelve months’ imprisonment in 2010, another of six months’ imprisonment, suspended, in 2011 plus a large number of other convictions, all of which are set out in two schedules attached to the Tribunal’s reasons and which the applicant accepted constituted an accurate record of his criminal history. On 2 January 2018, a delegate of the Minister refused to revoke the cancellation and the applicant applied to the Tribunal for review of that decision. The Tribunal’s decision was handed down on 28 March 2018. It is a carefully considered and thorough decision. The Tribunal sets out the material factual background, the legislative provisions, and the terms and effect of Direction 65 (at [10]-[16]). Reflecting the terms of Direction 65, the Tribunal said:10.Direction no. 65 has two sections, and three specific parts. Section 1 is a preliminary section. It contains a Preamble that(i) details the objectives of the relevant MigAct58 provisions,(ii)provides a statement of “general guidance” for decision makers exercising relevant MigAct58 powers, and(iii)sets out “principles” described as providing “a framework within which decision-makers should approach” their particular statutory tasks.11.The general guidance part of the Direction no. 65 Preamble declares commitment to protection of the Australian community from “harm as the result of criminal activity ... by non-citizens”. It describes the “principles” as being of “critical importance” in furthering that objective. It declares that the principles “reflect community values and standards” to be taken into account in “determining whether the risk of future harm from a non-citizen is unacceptable”: cl 6.2(1).12. The principles stated in Direction no. 65(a)characterise a non-citizens’ lawful presence in Australia as a “privilege” (a not entirely accurate description – see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [26])(b) assert an expectation of law abiding respectful conduct by non-citizens(c)contemplate a range of tolerance for “criminal or other serious conduct” by non-citizens, influenced by the nature of the conduct, the period of time the non-citizen has lived in Australia and the extent to which they have “been participating in, and contributing to, the Australian community”;(d)recognise the relevance of the extent and nature of a non-citizen’s positive contribution to the Australian community; and(e)recognise the relevance of any adverse impact of visa cancellation on a noncitizen’s Australian resident minor children and other family members.13.An expressly stated principle of community expectation is that a visa should be cancelled if the holder has committed “serious crimes”. Other parts of the principles contemplate some permissible tolerance of criminal conduct. The degree of tolerance is stated to be “low” where the visa holder’s Australian community presence has been “only for a short period of time”. It is permissibly, but imprecisely, higher, where the person has lived in Australia since an early age, or for most of their life. The extent of the permissible tolerance range, and the calibration of any particular non-citizen’s conduct or risk within that range, will depend on impressions about whether the nature and extent of the past, and apprehended future, conduct is so serious that “any risk of future similar conduct in the future is unacceptable”: cl 6.3(4).14.Section 2 of Direction no. 65 deals more specifically with the exercise of the relevant decision making power. It requires decision makers to act in a manner “informed by the principles”, take into account “the primary and other considerations relevant to the individual case”, and recognise that primary considerations “should generally” be given greater weight. Part C of Section 2 articulates the “primary” considerations, and some of the “other” considerations, to which regard must be had in response to revocation representations invited under MigAct58 s 501CA(3)(b).15. The “primary” considerations in Part C are:(a) the protection of the Australian community;(b) the expectations of the Australian community, and(c) the best interests of minor children in Australia.16.The “other” considerations specifically discussed in Part C, to the extent they are relevant to Mr Murphy’s particular circumstances, are:(a) the strength, nature and duration of his Australian ties;(b) the impact of any revocation decision on victims of his conduct; and(c)the nature and extent of any difficulties he is likely to encounter if removed from Australia as a result of the visa cancellation decision.

Ratio Decidendi

Legal Principle Established

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