Nahona v Minister for Immigration, Citizenship and Multicultural Affairs (No 2)
[2023] FedCFamC2G 1194
•14 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nahona v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2023] FedCFamC2G 1194
File number(s): PEG 254 of 2023 Judgment of: JUDGE GIVEN Date of judgment: 14 December 2023 Catchwords: MIGRATION – Cancellation of visa during immigration clearance of long term Australian resident on basis that his membership of an Outlaw Motorcycle Gang and presence in Australia may be a risk to the safety of the Australian community – whether decision legally unreasonable – whether fifteen minute period in which applicant invited to respond to Notice of Intention to Consider Cancellation was reasonable for the purposes of s 121(3)(b) of Migration Act 1958 (Cth) Legislation: Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA) Schedule 2
Migration Act 1958 (Cth) ss 116, 119, 121, 189, 501
Federal Court Rules 2011 (Cth) r 1.16
Cases cited: Bankstown Municipal Council v Fripp (1919) 26 CLR 385 at 403
Buck v Bavone (1976) 135 CLR 110
CKL21 v Minister for Home Affairs (2022) 293 FCR 634
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21
Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (2010) 195 FCR 318
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602
Minister for Immigration and Border Protection v Srouji (2014) 139 ALD 267
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Nahona v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1033
Newall v Minister for Immigration and Multicultural Affairs [1999] FCA 1624
Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80
Zhao v Minister for Immigration [2002] FCA 748
Division: Division 2 General Federal Law Number of paragraphs: 105 Date of hearing: 28 November 2023 Place: Sydney Counsel for the Applicant: Mr M Albert Solicitor for the Applicant: Lewenberg & Lewenberg Counsel for the Respondent: Ms R Francois Solicitor for the Respondent: Australian Government Solicitor ORDERS
PEG 254 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: PETER TEKOU NAHONA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
14 DECEMBER 2023
THE COURT ORDERS THAT:
1.The application made on 30 October 2023, as amended, is dismissed.
2.The applicant must pay the respondent’s costs and disbursements of, and incidental to, the proceedings, as agreed or taxed in accordance with the Federal Court Rules 2011 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
Before the Court is an application for judicial review of a decision of a delegate of the respondent (Minister) made at Perth International Airport on 28 October 2023, to cancel the applicant’s class TY – 444 visa (visa), pursuant to s 116(1)(e)(i) of the Migration Act 1958 (Cth) (Act). The basis for that cancellation was that his membership of the “Mighty Mongrel Mob” Motorcycle Club (club) and his presence in Australia may pose a risk to the safety of the Australian community.
The matter first came before me on the evening of 30 October 2023, for hearing of an urgent interlocutory application (interlocutory hearing) to restrain the applicant’s removal from Australia consequent upon the cancellation of his visa: see Nahona v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1033 (interlocutory judgment).
BACKGROUND
As was noted in the interlocutory judgment, and is often the case in urgent hearings for injunctive relief, the material before the Court was somewhat limited. Accordingly, it is preferable to recount the background to the matter again, with the benefit of more fulsomely provided evidence. Unless otherwise indicated, this background has been taken from the written submissions of the parties and material in the Court Book (CB) and does not appear to be in dispute.
The applicant, who is (currently) a 56 year old citizen of New Zealand, first arrived in Australia on 12 January 1990 (CB 113). He has resided in Australia since that time, initially in New South Wales and later (and predominantly) in Western Australia.
In or around late October 2023, the applicant travelled from Australia to New Zealand, apparently to visit family and, on return, landed in Perth at or about 3:00pm on Saturday, 28 October 2023 on Air New Zealand flight NZ173 (CB 5).
Following the applicant’s arrival in Perth on 28 October 2023, the following occurred:
(a)between about 3:20pm and 4:10pm his baggage was searched (CB 48);
(b)at or about 4:20pm to 4:30pm a formal interview commenced between the applicant and the delegate (initial interview) (CB 48, CB 62, and page 5[1] of the Affidavit of Jonathon Papalia sworn on 17 November 2023 (Papalia Affidavit) Annexure “JP-1” thereto). At the initial interview, the applicant:
[1] The Affidavit has two sets of pagination. The first is of the Affidavit itself which commences on page 1 of the Affidavit and continues throughout to page 41. The second is the internal page numbering applied to the transcript only. Any reference in these reasons for judgment to the annexures of the Papalia Affidavit will use the former, being the consistent numbering of the Affidavit itself, located in the bottom, outer right-hand corner of each page.
(i)confirmed having told officers of the Australian Border Force (ABF) that he is a member of a “motor cycle gang”;[2]
[2] Papalia Affidavit at 7.23 to 7.24
(ii)said that while he does not belong to an Australian chapter of the club, he has many connections to members in Australia;[3]
[3] Papalia Affidavit at 11.29
(iii)explained that he prefers to stay home than to socialise with club members in Australia,[4] but later explained that photographs which could be found on his phone included ones of him wearing “club colours” which were taken at his house in Perth within the previous three to four months[5] (possibly also further in time[6]) with members of the Australian club[7] who had attended for a couple of beers[8] and who were also wearing “club colours”;[9]
[4] Papalia Affidavit at 11.35 to 11.36
[5] Papalia Affidavit at 23.01 to 23.29
[6] Papalia Affidavit at 23.31
[7] Papalia Affidavit at 23.43 to 23.50
[8] Papalia Affidavit at 23.43 to 23.44 and 24.13
[9] Papalia Affidavit at 23.41
(iv)accepted that a photo extracted from his Facebook page, seemingly uploaded to Facebook on 6 October 2023 (CB 10 (extracted larger at CB 57)), in which he is sitting on a motorcycle and wearing a t-shirt with club insignia, was taken at his house in Australia.[10] The applicant concedes that this photograph was before the delegate.[11]
[10] Papalia Affidavit at 24.24 to 24.37.
[11] Hearing transcript 28 November 2023 T8.44 to T8.46
(c)the initial interview was temporarily suspended at 4:48pm and again at 5:10pm (CB 67);
(d)at or about 5:49pm, the initial interview recommenced for a final time (CB 61);
(e)at or about 5:55pm, the applicant was provided with a written Notice of Intention to Consider Cancellation of his visa (NOICC) pursuant to s 119 of the Act (CB 70 to 87) and asked to countersign it to signify the time at which he received it;[12]
[12] Papalia Affidavit at 27.43 to 27.45 and CB 61
(f)the initial interview was concluded at 5:56pm[13] upon the applicant having been given the NOICC, and being invited to participate in an interview to give comments pursuant to s 121(1)(b) of the Act, which was to occur at “ten past 6”;[14]
[13] Papalia Affidavit at 28.19
[14] Papalia Affidavit at 27.06 and CB 61
(g)at 6:13pm the s 121(1)(b) interview (NOICC interview) commenced[15] whereupon the applicant was invited to make comments about the potential cancellation of his visa, which he did, including that:
[15] Papalia Affidavit at 28.21
(i)to him, his family “come before the Gang”[16]; and
(ii)he knows he can pull away from “the Gang”[17] but it is not an easy thing to walk away from,[18] it is the life he chose[19] and he doesn’t want his family to be hurt.[20] The applicant later clarified that reference as not referring to physical harm to his family if he was to leave the club, but rather that it would hurt his wife, presumably being a reference to her feelings.[21] The applicant reiterated that it is:
hard to get away from the gangs…it always has been, with any gang.[22]
(h)at or about 8:00pm the applicant’s visa was cancelled[23] a fact about which he was informed at or about 8:31;[24]
(i)at or about 8:34pm the applicant was detained on the basis that he was a suspected unlawful non-citizen;[25]
(j)at or about 8:36pm the applicant was offered the opportunity to contact the consular office of New Zealand, which he declined;[26] and
(k)at or about 11:08pm the applicant was transferred from the airport in Perth to an immigration detention facility (CB 49).
[16] Papalia Affidavit at 28.32
[17] Papalia Affidavit at 28.47
[18] Papalia Affidavit at 28.48 to 28.49
[19] Papalia Affidavit at 28.49
[20] Papalia Affidavit at 28.49 to 29.01
[21] Papalia Affidavit at 28.32 to 29.33
[22] Papalia Affidavit at 29.27 to 29.28
[23] CB 83 at [12]
[24] CB 49 and Papalia Affidavit at 31.21 to 31.22
[25] CB 49 and Cf Papalia Affidavit at 31.45 to 31.46
[26] CB 49 and 69 and Papalia Affidavit at 32.4 to 32.8
A checklist document in the Court Book entitled “Client monitoring sheet” records, inter alia, that between 4:25pm and 9:30pm the applicant was regularly offered meals, water and toilet access (CB 50).
The events which followed the applicant being taken into immigration detention, are relevantly documented in the interlocutory judgment. At the conclusion of the interlocutory hearing on 30 October 2023, orders were made for the preparation of the matter for an expedited final hearing (October Orders). A brief extension was granted to the applicant to file Affidavit material when his solicitors had difficulty gaining access to him in immigration detention. On 22 November 2023, I made orders in Chambers directing that the applicant be brought from an immigration detention facility to the Court in Perth, to appear via videolink, upon the Court being notified that the Minister required the applicant for cross-examination in respect of his Affidavit which had, by then, been filed. The Court also changed the time of the hearing (initially listed at 10:15am AEDT) to 1:00pm (AEDT)/10:00am (AWST) to ensure that the hearing time was not unfairly early to the applicant to both attend and to give evidence.
At hearing before me, each of the parties was represented by their respective Counsel who appeared in person in the Court in Sydney. The applicant appeared from the Court in Perth by videolink. Each of the parties filed written submissions in accordance with the Court’s orders and detailed oral submissions were made by the respective Counsel at hearing. I have been assisted by those submissions.
EVIDENCE
At the commencement of the hearing, Counsel for the applicant confirmed that the applicant’s Affidavit would not be read. The applicant was therefore not required for cross examination.
For the respondent was read the Papalia Affidavit. Following objection, Annexure “JP-2” thereto was not pressed. Objection was also taken to Annexure “JP-3” which the Court allowed on the basis that it is a business record. The applicant was invited, if he so wished, to file additional evidence if he contended that the document did not accurately reflect his criminal antecedents. That opportunity was not taken up. Mr Papalia was also not required for cross-examination.
Objection was also taken to the Court Book on the basis that its content might include documents which were not before the delegate. For the applicant it was submitted that the Court Book should be based only on what was before the delegate at the time the decision was made and:
not things that have been found since by a department officer and put on a file or things found before and not put before the delegate. It’s not a case of googling around for things that might be helpful and putting them on the file.[27]
[27] Hearing transcript 28 November 2023 T10.42 to 44
As is common in migration proceedings in this, and other Courts, the Court Book (as is reflected by its index) contains the documents which relevantly formed the Department of Home Affairs’ file in relation to the decision made. That is out of fairness to the applicant so that he might know what material is relevantly on the salient file. The Court Book was filed on 3 November 2023, being only a few days after the interlocutory hearing and judgment. Accordingly, while it can be accepted that not every document in the Court Book was necessarily before the delegate at the time the decision was made, the suggestion that the respondent in some way went searching for material to bolster said file is serious and appears unfounded. The parties and the Court are readily able to discern, by reference to the delegate’s reasons for decision the material upon which it was based, including where relevant by reference to the Court Book/
Counsel for the applicant acknowledged that, by the time of the hearing, the applicant’s representatives had been in possession of the Court Book for several weeks. Despite this, no objection was taken prior to the hearing, nor were any enquiries seemingly made of the Minister’s solicitors to clarify the provenance of its contents, or whether all material in the Court Book had been before the delegate. When asked if these matters had been raised with the Minister’s representatives, Counsel for the applicant accepted they had not been, saying he was apparently unable to obtain the email address of Counsel for the Minister. In circumstances where the applicant’s Counsel was not instructed on a direct access basis, such an enquiry would ordinarily take place at the solicitor-level, and there is no suggestion that the applicant’s solicitors were unable to contact the Australian Government Solicitor. Despite the solicitor for the respondent being present in Court, and able to give evidence about how the Court Book had been prepared in relation to the suggestion by the applicant extracted at [12] above, that was not an opportunity the applicant chose to explore.
The Court Book was ultimately allowed, tendered and marked Exhibit “1R” on the understanding that it reflected the relevant contents of the Department of Home Affairs file as at the date it was filed. In addition, during the hearing I had my Associate access the URL link which is on CB 90 and print the 1-page colour Australian Criminal Intelligence Commission (ACIC) document to which that link leads, for the representatives. That document depicts the club “colours”/insignia of various motorcycle clubs and is entitled “Australian Outlaw Motorcycle Gangs Identification Chart”. A copy of that document has been placed with the papers and will be marked “MFI-1” should regard need to be had to it for any future purpose.
THE DELEGATE’S DECISION
Section 116(1) of the Act provides as follows:
116 Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a) the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or
(aa) the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or
(b) its holder has not complied with a condition of the visa; or
(c) another person required to comply with a condition of the visa has not complied with that condition; or
(d) if its holder has not entered Australia or has so entered but has not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or
(e) the presence of its holder in Australia is or may be, or would or might be, a risk to:
(i) the health, safety or good order of the Australian community or a segment of the Australian community; or
(ii) the health or safety of an individual or individuals; or
(f) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or
(fa) in the case of a student visa:
(i) its holder is not, or is likely not to be, a genuine student; or
(ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or
(g) a prescribed ground for cancelling a visa applies to the holder.
The delegate’s decision is recorded in a prescribed form (CB 75 to 87). Relevant features of the form are:
(a)[6] – box ticking to record whether the delegate is satisfied that there are or are not grounds for cancellation pursuant to s 116 and, if so, on which specific basis. The delegate selected the box corresponding firstly with the existence of grounds, and, thereafter, a box corresponding with s 116(1)(e)(i) of the Act;
(b)[7] – a section in which to set out details of the evidence and findings about why the delegate is satisfied grounds for cancellation do exist. In this box the delegate has included “Refer to Attachment ‘B’”;
(c)[8] – a section in which to set out reasons why the visa holder says their visa should not be cancelled. In this box the delegate detailed various statements which were given by the applicant during the NOICC interview referred to at [6(g)(f)] above; and
(d)[9] – a section in which to set out delegate’s assessment of the reasons the visa should not be cancelled.
Importantly, Attachment B to the delegate’s decision (see [17(b)] above) is where the statement of the reasons for the decision to cancel the applicant’s visa. Attachment B is a document which, but for its letterhead, substantively takes only an A4 page. No criticism is made by the applicant as to the brevity of the decision, in and of itself. By Attachment B, the delegate set out the applicant’s acknowledgements at interview that (CB 79):
(a)he “is a member of the ‘Mighty Mongrel Mob’ Motorcycle Club Wanganui Chapter New Zealand and that his current rank is Member”[28];
(b)stated that he has three tattoos which represent the club and depict images of the bulldog associated with the club insignia; and
(c)evidence in the applicant’s baggage was said to “confirm that he is a fully patched member of ‘Mighty Mongrel Mob’ Motorcycle Club (MMM)”.
[28] CB 79
The delegate set out the details of the items from the baggage examination referred to at [6(a)] and [18] above, including:[29]
Items of interest to ABF located in the visa holder’s baggage were:
3 x rings, 4 x shirts, 1 x leather jacket, 5 x bandana’s all of which depicts ‘Mighty Mongrel Mob’ Club insignia.
Other items of interest ABF located on the visa holder’s mobile device consisted of:
•Numerous photos of fully patched ‘Mighty Mongrel Mob’ members, which the visa holder confirmed, were taken in 2023 at his residence in Carramar, Western Australia.
•Photos of the visa holder wearing clothing with ‘Mighty Mongrel Mob’ insignia.
[29] CB 79
The delegate then said:[30]
Numerous law enforcement and international intelligence agencies including the ‘Australian Criminal Intelligence Commission’ (ACIC) classify The ‘Mighty Mongrel Mob’ Motorcycle Club as an organized crime syndicate. The club's activities in Australia have traditionally included drug trafficking, prostitution, armed robbery, arms trafficking and murder-for-hire.
[30] CB 79
After setting out various matters which, by reference to the transcript annexed to the Papalia Affidavit were raised by the applicant at the NOICC interview, the balance of the decision is as follows:[31]
I acknowledge the visa holder’s above statements; however, his membership of an internationally recognised organised crime syndicate, ‘Mighty Mongrel Mob’ Motorcycle Club and his presence in Australia may pose a risk to the safety of the Australian community.
Therefore, I am satisfied a ground exists to cancel the visa holder’s visa under Section 116(l)(e)(i) of the Act which states: (e) the presence of its holder in Australia is or may be, or would or might be, a risk to: (i) the health, safety or good order of the Australian community or a segment of the Australian community.
[31] CB 79 to 80
While it can be acknowledged that in the ‘box ticking’ exercise earlier in the form (see [17(a)] above) the delegate had specified the grounds for cancellation arose under s 116(1)(e)(i) of the Act, the applicant highlights that the reasons for decision reflect an even narrower basis. That is because while the full scope of s 116(1)(e)(i) of the Act is set out in the final paragraph of the reasons for decision, the basis for deciding to cancel the applicant’s visa was specifically that his membership of the club and presence in Australia may pose a risk to the safety of the Australian community. This excludes from the decision any basis pertaining to health and/or good order of the Australian community, and also is not directed to a particular segment of the Australian community. The finding that the applicant’s membership of the club and presence in Australia “may” be a risk, rather than “might” be, is simply because the applicant was in the migration zone at the time of cancellation: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 (Djokovic) at [36] per Allsop CJ, Besanko and O’Callaghan JJ.
GROUNDS OF APPLICATION
As recorded by the interlocutory judgment, these proceedings were commenced by the making of an oral application for judicial review. On 13 November 2023, an Amended Application was filed with the Court in accordance with the October Orders.
By that Amended Application the applicant makes an application for a writ of habeas corpus and seeks judicial review of the delegate’s decision, advancing the following grounds of review (errors in original):
1.The delegate’s decision was infected by jurisdictional error in that it was legally unreasonable including because:
a.there was no logical connection between the activities of a club in Australia bearing the same name of a club to which the applicant belonged outside Australia; and/or
b.even if there was such a connection, it was a disproportionate basis to cancel the visa of this Applicant given his history; and/or
c.the assessment of risk to safety in the Australian community was illogical.
2.The delegate’s decision was infected by jurisdictional error in that the invitation to the interview which led to it was in breach of s 121(3)(b) of the Migration Act 1958 (Cth) because it did not specify a time that was reasonable.
Ground 1
By reference to the particulars to ground 1, the applicant firstly contends that there is the absence of a logical connection between “a club bearing the same name and its purported activities in Australia” as compared with the chapter of the club, to which the applicant readily acknowledges belonging, in New Zealand.
By ground 1(a) the applicant says that there was a lack of any rational connection between the supposed activities of Australian chapters of the club as compared with the complete absence of material as to any activities of a similarly named club in New Zealand. The applicant says that he was candid about having “strong family associations with the club in New Zealand”. The irrationality is said to come from both the absence of any material about “the New Zealand club”, the absence of any true rational connection between the applicant “and the Australian activities described very colourfully and emphasised” by Counsel for the Minister, combined with the applicant’s criminal record.[32]
[32] Hearing transcript 28 November 2023 T19.1 to 9
The applicant sought to emphasise the part of the delegate’s reasons which referred to “the club’s activities in Australia” to say that, in the absence of evidence to suggest that the applicant has been involved in any of those activities (drug trafficking, prostitution, armed robbery, arms trafficking or murder-for-hire), that there was therefore nothing to rationally support the delegate’s conclusion.
By ground 1(b) the applicant contends, as an independent basis leading to the same conclusion of legal unreasonableness, that there was a disproportionality between the carrying of T-shirts and clothing and having tattoos, and the applicant losing access to his lifestyle and family built over thirty years in Australia. The applicant says there is “a gross disproportion between those matters”[33] sufficient to satisfy the Court that the delegate’s cancellation decision is legally unreasonable.
[33] Hearing transcript 28 November 2023 T14.46
In respect of ground 1(c) the applicant says that taking the material at its absolute highest, there was no evidence that he had ever impacted the whole of the Australian community, or even part of the Australian community. The applicant says that the highest at which any risk can be said to exist is based on very old offences, most recently only driving offences which, “on no view”, impacted the Australian community as a whole. Reliance was again placed on CKL21 v Minister for Home Affairs (2022) 293 FCR 634 (CKL21) per Moshinsky, O’Bryan and Cheeseman JJ.[34]
[34] Hearing transcript 28 November 2023 T25.11 to 25.18
Consideration
It is well established that the satisfaction of a decision-maker about the existence (in particular) of a jurisdictional fact, must be reasonably formed: Bankstown Municipal Council v Fripp (1919) 26 CLR 385 at 403 per Isaacs and Rich JJ and Buck v Bavone (1976) 135 CLR 110 at 118 to 119 per Gibbs J. As was discussed in detail in Djokovic (supra) at [21] per Allsop, Besanko and O’Callaghan JJ, the delegate was required to reach a state of satisfaction as to one or more of the matters prescribed by s 116 of the Act. Thereafter, she also needed to reach a state of satisfaction in the exercise of her discretion to cancel the visa.
Ground 1 particularises three matters which are said to be facets of legal unreasonableness in the delegate having reached the state of satisfaction as to the basis to cancel the applicant’s visa.
Before addressing those in turn, it is important to understand the delegate’s findings (see [22] above), as much to understand the basis for cancellation of the applicant’s visa as what was not the basis for the delegate’s satisfaction of the matters in s 116(1)(e)(i) of the Act. The state of satisfaction was reached because of the applicant’s membership of the club, being a fact which the applicant candidly acknowledged and (what would be) his presence in Australia.
The delegate’s state of satisfaction was not reached because of items contained in the applicant’s luggage or mobile telephone, albeit these were matters which gave rise to the basis for the initial interview as being of concern to the ABF. Similarly, and contrary to what is contended for the applicant, the delegate’s state of satisfaction was also not reached because the applicant was carrying T-shirts, nor because he has tattoos (depicting the club insignia or otherwise).
The applicant conceded to the delegate that photographs on his mobile telephone would confirm him as being a fully patched member of the club[35] and attending social functions with club members, all of whom (including the applicant) were wearing club garb, which functions (the applicant explained[36]) took place in Australia. To the extent that issue was taken by the applicant as to whether the photographs which are in the Court Book (CB 11 to 47) were before the delegate, the applicant described to the delegate that there were such photos on his mobile telephone, which acknowledgement formed part of the basis for the decision (see [19] above). Assuming that the delegate did not have those photographs before her (either in the interview room, or at all) the applicant did not ask to which photographs the delegate was referring nor ask to see any photographs before being prepared to make admissions as to their content and what they depicted. The photographs which are in the Court Book at CB 11 to 47 do correspond with those which the applicant described.
[35] CB 79
[36] Papalia Affidavit at 23.01 to 23.29
The delegate did not reach her state of satisfaction based on the applicant’s criminal record. While at the injunction hearing before me on 30 October 2023 it was suggested that the applicant’s criminal antecedents extended to a single, historic drink-driving matter, material since placed before the Court indicates it to be more extensive than that. The Court can accept that the applicant’s criminal record[37] does not include offences which intersect with the criminal activities attributed to the club in Australia (see [20] above). Whatever those offences may be, and despite the fact that the applicant had also failed to declare his previous criminal convictions on his incoming passenger card (CB 5 and 55) neither the applicant’s criminal antecedents, nor his false declaration in respect of them, were a factor in the delegate’s reasons for decision.
[37] Annexure JP-3 to the Papalia Affidavit
The delegate did not rely on any mistaken understanding as to of which club the applicant was a member. The applicant conceded that he was a member of the club.[38] The delegate appears to have properly understood that the applicant was a member of the Wanganui Chapter of the club in New Zealand, and said so.[39]
[38] CB 79
[39] CB 79
Rather, the very specific basis for the delegate’s state of satisfaction was that the applicant’s:
membership of an internationally recognised organised crime syndicate, ‘Mighty Mongrel Mob’ Motorcycle Club and his presence in Australia may pose a risk to the safety of the Australian community.
Ground 1(a)
There has been no dispute by the applicant to the veracity of the information relied on by the delegate, namely that the club is an internationally recognised crime syndicate. The attack is instead directed to whether, and to what degree, the applicant could be considered to be involved in the club’s criminal activities. The material before the delegate, being the applicant’s own concessions, was that he and his friends (who were also club members) socialise while wearing their club colours and drinking beer in his backyard. However, as anodyne as that particular activity might seem, it is still a meeting between members of a crime syndicate which as an organisation is, undisputedly, involved in criminal activity in Australia.
The Minister points to the recently enacted Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA) (CLA) which exists to prevent such activities (in public at least). The Explanatory Memorandum to that Bill provided:
The Bill will disrupt and restrict communication and networking between offenders; criminalise the display of insignia of identified criminal organisations; and disrupt the ability of members of identified organisations to gather in public places.
The Bill will introduce an unlawful consorting scheme to disrupt and restrict the capacity of offenders to engage in criminal conduct, by criminalising association and communication between offenders.
The Bill also introduces reforms targeting criminal organisations and their members. A prohibited insignia scheme will criminalise the display of insignia of identified organisations in public places and will empower police to modify or remove publicly displayed insignia.[40]
[40] Explanatory Memorandum Criminal Law (Unlawful Consorting and Prohibited Insignia) Bill 2021 at p 1
The club is included in Schedule 2 to the CLA as being an “identified organisation”, which is relevant to the proscription in other parts of the CLA of its insignia being displayed in public (or visible from a public place). This also adds momentum to the understanding of the significance attributed to items bearing the club insignia.
There is nothing to indicate that the above material regarding the CLA was before the delegate. However, it did not need to be. There is no specialist knowledge in criminology required to know that outlaw motorcycle gangs (OMCG) pose a risk to public safety. The very title speaks volumes. The applicant referred to the club as a “Gang” a number of times before and during his initial interview (see for example [6(b)(i)] and [6(g)] above). Further, the delegate was guided in her initial interviews by a document entitled “OMCG LINKS CHECKLIST” (CB 54 to 56) which appears to prompt inquiry into relevant matters which include:[41]
(a)whether the visa holder admits to having OMCG links;
(b)checking their social media accounts including Facebook; and
(c)whether they have OMCG tattoos, attire and photos.
[41] CB 56
The delegate did not suggest, nor can she be taken to have misunderstood, that the applicant had himself been involved in any of the specified criminal activities which were attributed to the club. This is a not a case where the applicant’s personal offending forms the basis for decision, and the delegate made no such finding. Rather, the delegate concluded that the applicant, being a member of the club per se, and being present in Australia was sufficient as to pose a potential risk to the safety the Australian community. I find this to be neither fanciful, nor to require additional evidence: see Djokovic (supra) at [82] per Allsop CJ, Besanko and O’Callaghan JJ. It is common sense that the presence of members of a criminal organisation/syndicate which is, undisputedly, involved in serious crimes as were described by the delegate, being present in Australia, renders the organisation itself present in Australia.
The delegate was saying no more about the applicant than that his presence as a member of the club contributes to the existence of the club in Australia and the presence of the club in Australia may pose a risk to the safety of the Australian community. The delegate made no distinction between the club in New Zealand and the club in Australia based on the classification of the club (as a whole) as an organised crime syndicate.[42] To the extent it can be understood as one club with chapters in different locations, this does not require any specialist knowledge.
[42] CB 79
The logical connection between the applicant’s membership of a chapter of the club in New Zealand, and the club’s activities in Australia, was the general classification of the club as an organised crime syndicate by international law enforcement agencies, including by the ACIC. Therefore, the quite precise basis for the delegate’s finding, namely that the mere fact of the applicant’s membership of the club, coupled with his presence in Australia, was a conclusion available on the material before her and grounded the requisite state of satisfaction reached. Accordingly, ground 1(a) of the amended application is not made out.
Ground 1(b)
By ground 1(b) the applicant alleges a “gross disproportionality” between the contents of the applicant’s luggage and his having tattoos featuring the club’s insignia, contrasted with the outcome of the delegate’s decision by reference to its practical effects for the applicant, namely that having been in Australia so long he has family, a home and a job here.
As has already been detailed, the delegate did not reach a state of satisfaction in respect of
s 116 of the Act on the basis that the applicant’s luggage contained club paraphernalia and clothing. The T-shirts and other club items found in the applicant’s baggage were relevant indicia of the applicant’s membership of, and participation in, the club, which he readily conceded and discussed at the initial interview (see for example [6(b)(b)(iii)] and [6(b)(iv)] above).The suggestion that the delegate’s state of satisfaction was unreasonable because it was based on club colours in the applicant’s luggage, and that he has tattoos which include the club’s signature bulldog insignia, seeks to misconstrue and/or minimise the basis of the decision and also ignores that these indicia were relevant to the inquiry as to whether a person has connections to an OMCG (see [41] above).
In terms of the assertion of disproportionality, I agree with the submissions of the Minister that proportionality (or lack thereof) is not a separate species of unreasonableness.
In reality, the applicant appears to be contending for an ‘outcome-focused’ analysis which has been refined and explained in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 and Djokovic (supra) per Allsop CJ, Besanko and O’Callaghan JJ at [29] to [30] in which the Court said:
[29] As a statutory jurisdictional condition or jurisdictional fact (cf Aronson et al op cit at [5.500]), the satisfaction that the presence of a visa holder may for the purposes of s 116(1)(e) be a relevant risk must be reached on a legally reasonable basis and the discretionary power exercised in accordance with legal reasonableness: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 139 ALD 181; [2013] HCA 18 (Li) at [26]–[29], [63] and [88]. At one level such is to take the matter, for the lawfulness of a jurisdictional state of satisfaction, no further than the cases to which we have referred above. The state of satisfaction is a jurisdictional precondition or jurisdictional fact and should be distinguished from the exercise of discretion for which the state of satisfaction is a precondition: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; 266 ALR 367; 115 ALD 248; [2010] HCA 16 (SZMDS) at [39]–[40].
[30] As Allsop CJ said in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; 329 ALR 491; [2016] FCAFC 11 (Stretton) at [3], [5] and [6], the above statements of principle in Li drew upon and drew together a number of well-known expressions and bodies of principle in giving explanatory (not definitional) content to the concept of legal unreasonableness. Further, as the Court (Allsop CJ, Robertson and Mortimer JJ) said in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; 308 ALR 280; 139 ALD 50; [2014] FCAFC 1 at [44], the Court in Li identified two different contexts in which the concept of legal unreasonableness has developed: a conclusion after the identification of jurisdictional error of a recognised specie and an “outcome focused” conclusion without any specific jurisdictional error being identified.
In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [30], French CJ observed that:
Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider “they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.” In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute.
As the Minister properly contends, Djokovic at [29] to [30] sets out that which is lawfully required for the requisite state of satisfaction to be achieved under s 116 of the Act, and there is not (emanating either from Djokovic or the cases which relevantly precede it), a separate requirement or precondition of proportionality. That does not negative principles of legal reasonableness which recognise that even a decision-maker who acts within the confines matters which they ought consider, may have nevertheless come to a conclusion so unreasonable that no reasonable decision-maker could ever have reached it: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 234 per Lord Greene MR.
Within the boundaries of an ‘outcome-focused’ assessment of legal unreasonableness, Courts have long recognised the existence of an area of “decisional freedom” within which reasonable minds may differ in conclusions about the correct or preferable decision and, as such, do not give rise to error: see Li (supra) at [28] per French CJ and Stretton (supra) at [7] per Allsop CJ.
Generally (and similar to Djokovic (supra)) the applicant’s contentions in this case are directed to identifiable aspects of unreasonableness, namely a lack of logical connection between matters to ground the delegate’s requisite state of satisfaction and illogical reasoning central to that state of satisfaction: see Djokovic (supra) at [31] per Allsop CJ, Besanko and O’Callaghan JJ. However, by ground 1(b) the applicant also appears to contend that the outcome of the delegate’s decision was so overwhelmingly wrong, that it must be characterised as unlawful.
The applicant’s visa was cancelled while he was in immigration clearance. Frequently, though likely not exclusively, when such a scenario arises the person whose visa is cancelled is not a person who has resided in Australia for more than 30 years. While not seeking to marginalise the potential consequences or disappointments (be they touristic, familial, social, professional, commercial or sporting) which might attend a cancellation and refusal of entry to a person who is not ordinarily resident in Australia, the Court acknowledges that the present applicant’s situation is different. By reference to his length of residence in Australia and his family ties here, the applicant’s personal circumstances and stakes are more akin to those of a persons whose visa is cancelled on character grounds while resident in Australia.
As the then Chief Justice so poignantly said in Stretton (supra) at [15], in relation to the power to remove a non-citizen from Australia by reason of the cancellation of their visa:
The exercise of that power in relation to a non-citizen who has been in this country for many years, with strong and deep social, family and human roots here is bound to be complex and difficult.
So it is in the present case.
While ss 116 and 501 of the Act are different in terms, there are commonalities in their scope, policy and the purpose of the powers they contain, in particular the protection of the Australian community. That protection may come at the cost of hardship to the present applicant, much as it did in Stretton: see Stretton (supra) at [16] and [17] per Allsop CJ.
In written submissions, the following was said for the applicant:
It was irrational to cancel the visa of a law-abiding resident of Australia for 33 years and grandfather of seven Australian citizen children because he has tattoos and clothes associated with a club outside Australia of which he is a member.
However, and as addressed at [33] to [36] and [42] to [44] above, the delegate did not reach her decision on that basis.
It can well be understood that the outcome of the delegate’s decision will feel subjectively harsh to the applicant. The Court acknowledges it will likely result in considerable hardship to him and to his family. However, it is well established that this Court cannot look to what it considers reasonable for itself, and then conclude that any contrary outcome constitutes error. The role of the Court is strictly supervisory. Even if I would have made a different decision were I the delegate, it would be an error for me to overturn her decision simply because I disagree with it: see Stretton (supra) at [92] per Wigney J and at [12], where Allsop CJ said very clearly:
rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.
To the extent that the applicant might be seeking to impugn the entirety of the delegate’s decision on the basis of the outcome and the practical consequences to the applicant, that must be rejected.
By reference to the matters addressed above, the decision of the delegate is one in respect of which reasonable minds may differ. However, it is not offensive to logic. Rather, it falls within the area of decisional freedom which attended a decision of this type by reference to s 116 of the Act and in the circumstances of the present case. In the instant case, the cancellation of the applicant’s visa by reason of the delegate being satisfied that his membership of the club and presence in Australia may pose a risk to the Australian community may feel disproportionate to the applicant. However, by reference to the scope and purpose of the statutory power, which in the case of s 116 of the Act includes protection of the Australian community, it is not.
If the applicant is seeking to challenge the exercise of the delegate’s discretion, it must be observed that the delegate also took into account all available countervailing factors some of which were objectively discernible, and others of which had been raised expressly by the applicant. These included:[43]
[43] CB 81 at Q9
(a)his family connections in Australia including:
(i)he wanted to be with his wife;
(ii)the presence of his grandchildren; and
(iii)that his children would be “devastated”.
(b)his desire to stay and work in Australia;
(c)that he had been in Australia since 1990;
(d)there being no evidence of non-compliance by the applicant with visa conditions;
(e)an acknowledgement of psychological and emotional hardship that the visa cancellation might cause him; and
(f)an acknowledgement of significant financial loss that cancellation may cause.
Having made an assessment of the countervailing factors, the delegate concluded that those factors cumulatively, did not outweigh the risk to the safety of the Australian community by reason of the applicant’s presence in Australia together with his membership of the club.[44]
[44] CB 79 and 81 at Q9
Emphasis was placed by the applicant on the statement of French CJ in Li (supra) when his Honour said (emphasis added):
A distinction may arguably be drawn between rationality and reasonableness on the basis that not every rational decision is reasonable. It is not necessary for present purposes to undertake a general consideration of that distinction which might be thought to invite a kind of proportionality analysis to bridge a propounded gap between the two concepts. Be that as it may, a disproportionate exercise of an administrative discretion, taking a sledgehammer to crack a nut, may be characterised as irrational and also as unreasonable simply on the basis that it exceeds what, on any view, is necessary for the purpose it serves.
In Stretton at first instance,[45] the primary Judge had found that the decision maker had (emphasis added):
[taken] a sledgehammer to crack a nut”. His exercise of the discretion conferred on him was, in the circumstances, in excess of what, on any view, was necessary for the purpose it served.
[45] Stretton v Minister for Immigration and Border Protection (No 2) [2015] FCA 559
The Full Federal Court rejected that reasoning and found that the term “necessary”, gleaned from Li was neither within the language of the relevant statute[46] nor the decision-maker’s reasons for decision. Much as occurred in Stretton (see in particular at [75] per Griffiths J), the delegate in the instant case factored in not only the purpose served by s 116 in protecting the Australian community, but also matters which were personal to the applicant and weighed against cancellation.
[46] In that case, s 501 of the Act
The outcome in the instant case is one which, despite the undoubted hardship it will cause the applicant, being something the delegate expressly acknowledged and for which the Court expresses its sympathy, was within the range of possible lawful outcomes based on the material which was before the delegate by reference to s 116 of the Act: see Djokovic (supra) at [34] per Allsop CJ, Besanko and O’Callaghan JJ.
Accordingly, ground 1(b) is not made out.
Ground 1(c)
The last aspect of ground 1 is particularised as being that the assessment of risk to the Australian community was illogical. This particular seems to proceed on a slight mischaracterisation of the delegate’s reasons. There was no suggestion by the delegate that the applicant personally poses a risk to the Australian community “as a whole”. Rather, and again, it was the applicant’s membership of the club, coupled with his presence in Australia which was found to potentially pose a risk: see Newall v Minister for Immigration and Multicultural Affairs [1999] FCA 1624 at [30] per Branson J, citing Tien v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80 at 93 to 94 per Goldberg J.
To the extent that submissions of the applicant used the term “the Australian community as a whole”[47] (emphasis added), that is not an expression which appears in s 116 of the Act, albeit by reference to s 501(6) of the Act the Full Federal Court has implied that it could be interpreted as such : see Moana v Minister for Immigration and Border Protection (2015) 230 FCR 367 at [55] per North, Jessup and Rangiah JJ. The applicant contends that the language of s 116 contains within it a hierarchy of groups being (for the purposes of s 116(1)(e)(i) of the Act), the Australian community or a segment of the Australian community, with the latter being lesser. While it can be accepted that the Australian community must be broader than a segment thereof, I do not accept that because the delegate specified that the risk was to the Australian community that this required any increased threshold for her state of satisfaction. Depending on the facts and circumstances of a particular case, it may be that various segments of the Australian community may be affected, or that it is not possible to discern with specificity, which groups might be affected. In a case such as this one, where the risk identified was that the club engaged in an array of criminal activity, the delegate can reasonably be taken as saying that there are potential risks to safety for the community in general. In so doing, there was no higher threshold to be reached in terms of satisfaction.
[47] Hearing transcript 28 November 2023 at T17.04, T17.29, T17.38, T20.16, T20.25, T24.29, T25.18, T26.01 and 56.46
To the extent that the applicant relied on CKL21 in support of this particular, as was said in the interlocutory judgment, CKL21 is distinguishable and of little analogous assistance in the instant case.[48] Aside from the fact that the ground for cancellation is not pursuant to s 501 nor based on the applicant’s criminal record,[49] the fact that in CKL21 a decision to cancel was found to be legally unreasonable even though the applicant had been convicted of murder is also not salient given the matters already addressed at [42] above.
[48] See interlocutory judgment at [37] to [40]
[49] See interlocutory judgment at [39]
The delegate was not required to be satisfied that every part of the Australian community might be imperilled by the presence of the applicant in Australia given his membership of the club. It was the applicant who provided the information which grounded the delegate’s findings. It was he who gave details of his membership of the club, and willingly explained his social interactions with club members in Australia, including by explaining the content of photographs which could be found on his mobile telephone. It was sufficient, and logical, for the delegate in the present case to be satisfied that the presence of the applicant in Australia, being a fully patched member of the club in New Zealand, may pose a risk to the safety of the Australian community.
The applicant has failed to establish any error as contended for by ground 1.
Ground 2
By ground 2, the applicant says that he was not given a reasonable period in which to comment at interview, as required by s 121(3) of the Act.
Section 121 of the Act relevantly provides as follows in respect of an invitation to comment on possible visa cancellation under s 119 of the Act (emphasis added):
(1) An invitation under paragraph 119(1)(b) or 120(2)(c) is to specify whether the response to the invitation may be given:
(a) in writing; or
(b) at an interview between the holder and an officer; or
(c) by telephone.
(2) Subject to subsection (4), if the invitation is to respond otherwise than at an interview, the response is to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) Subject to subsection (5), if the invitation is to respond at an interview, the interview is to take place:
(a) at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period.
It was not in dispute that there is no prescribed period in the present case and that, as such, the period was simply required to be reasonable.
In support of this ground the applicant relies on Zhao v Minister for Immigration [2002] FCA 748 at [76] to [78] per Kenny J where her Honour said (emphasis added):
[77] As Burchett J remarked in Zhang Jia Qing v The Minister for Immigration and Multicultural Affairs (unreported decision, delivered 5 November 1997) at p15, "the specification of a reasonable place and a period for a visa holder's response to the invitation referred to in s121 must take account of the circumstances". His Honour held that, in the circumstances of that case, it was not reasonable to require the applicant to respond "when and where he had been kept for so long without eating, and after he had indicated ... that he was feeling unwell". The decision was upheld on appeal, although the Full Court did not consider this aspect of his Honour's decision: see Minister for Immigration and Multicultural Affairs v Zhang (1999) 53 ALD 261 at 273-274 per French and North JJ.
[78] Absent s474 considerations, what is a reasonable period for the purposes of s121(3)(b) of the Act would fall to be considered in light of all the circumstances of the case as they existed when the time of the interview is fixed. These circumstances may include the nature of the cancellation grounds that the decision-maker is considering, the personal attributes of the visa holder (ie, age, facility in the English language, physical infirmity or well-being), the presence of an interpreter or lawyer, the visa holder's familiarity with the matters of concern to the decision-maker, the circumstances in which the decision falls to be made, and the availability of matters corroborative of the applicant. Regard would also be taken of the statutory context and purpose of s121(3)(b) of the Act.
The applicant says the following matters should lead the Court to conclude that, in all the circumstances of this case, the period between the invitation to comment and the interview at which the opportunity to do so occurred (being 15 minutes) was unreasonable having regard to:
(a)the degree of surprise attaching to the situation, by reason of the applicant having never been stopped re-entering Australia on “11 previous occasions”;[50]
(b)that the applicant was suddenly being asked to engage with a legislative regime in respect of which he had no previous interaction;[51]
(c)his having just disembarked from an international flight “in the evening”;[52]
(d)his health including that the applicant is “not young and not healthy with both hypertension and a lung condition of note”;[53] and
(e)having no access to a lawyer.[54]
[50] Hearing transcript 28 November 2023 T29.33 to T29.40 and T31.5 to T31.07
[51] Hearing transcript 28 November 2023 T30.38 to T30.44
[52] Applicant’s written submissions at [22] and Transcript 28 November 2023 T29.40 to T29.42
[53] Applicant’s written submissions at [22]
[54] Hearing transcript 28 November 2023 T29.43, T30.21 to T30.24 and T31.01
Consideration
Whether the applicant was given a reasonable time to respond at any interview as required by s 121(3)(b) of the Act is an objective assessment for the Court: see Minister for Immigration and Border Protection v Srouji (2014) 139 ALD 267 at [22] per Jagot J.
Relevant to such an assessment will include that the statutory scheme within which s 121 falls does not contemplate that a person is to remain in immigration clearance for a lengthy period of time, and a consideration of the various circumstances which surround an invitation to respond at interview, such as those described by Kenny J in Zhaou (supra) must be weighed within that overall statutory context: see Srouji (supra) at [24] per Jagot J.
In Srouji (supra), the Court was confronted with the following circumstances, and concluded that when weighed objectively and in the aforementioned context, the applicant was not denied procedural fairness (error in original):
The issue is whether the period of time Mr Srouji was given to respond to the invitation to comment on the notice of proposed cancellation was a reasonable period. The period of 20 minutes to respond was not unreasonable given that Mr Srouji had dealt with the interview, had asked for and had been offered rest breaks, was not in any apparent physical distress and, of course, was in immigration clearance at the airport under a statutory regime having the manifest intention that no one should remain in immigration clearance, their immigration status undetermined, for any lengthy period.[55]
[55] Srouji (supra) at [24] per Jagot J
In the present case I am not satisfied there was any procedural unfairness to the applicant by reason of the time period given to him to respond at interview to the NOICC.
To the extent that emphasis was placed on the degree of surprise caused to the applicant in circumstances where he is said to not have previously encountered any difficulties during immigration clearance (however such difficulties might be described), I accept the submission of the Minister that such a concern does not arise on the materials as having been expressed by the applicant. So, to the extent it is now being proffered as a relevant factor, it was not voiced by the applicant during any of his interview phases and, more specially, not at the NOICC interview.
This contention is also premised on a matter of which there is no evidence. Namely, there is nothing to demonstrate to the Court that the applicant has never encountered any issues, delays, inspections or questioning while in immigration clearance. It can be accepted that the process of being stopped and questioned during immigration clearance may be discombobulating. However, a subjectively held expectation on the part of the applicant (if indeed he held one) that one he would proceed unhindered through immigration clearance does not, in my view, give rise to any procedural unfairness (either general or specific) in the circumstances of this case.
I also accept the submission of the Minister that the applicant was on notice while in immigration clearance, at least from the time of his first interview with the delegate (if not beforehand when his luggage was being inspected and his phone had been taken from him for examination), that there was an issue as to whether he would be cleared to enter Australia despite holding a visa to do so: see Srouji (supra) at [28] per Jagot J. That is likely moreso if one accepts the claim made for the applicant that this was in fact the first time he had ever experienced any such snafu while in immigration clearance. If that be so, then the anomalous nature of his circumstances clearly put him on notice that there was an issue which may prevent his entry to Australia. That matter became patent when, almost immediately after the commencement of the initial interview at 4:30pm,[56] having discussed medical matters to which I will return shortly, the following exchange took place (emphasis added):
Also, the voice recording of this interview is being taken to determine if you are eligible to be immigration cleared in accordance with s 166 of the Migration Act 1958. And to ensure that there is an accurate record of the interview.[57]
[56] Papalia Affidavit at 5.05
[57] Papalia Affidavit at 6.35 to 6.38 (see also 7.21 to 7.24)
There was also no specific obligation at that stage of interview to require that the applicant be told that the purpose of the initial interview with the delegate was to determine whether to issue him with a NOICC: see Srouji (supra) at [28] per Jagot J, citing Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (2010) 195 FCR 318 at [38] per Keane CJ, Lander and Foster JJ.
The applicant’s initial interview with the delegate commenced with a discussion about his physical health including whether he had any medical conditions and/or was taking any medication which might affect the interview or to which he would require access during the interview. The applicant said that he had high blood pressure and had medication in his “bags outside”.[58] There is nothing to suggest that the applicant required, or if he did so that he did not have access to, that medication during the interviews. Nor is any such contention made. There is also no suggestion advanced that the applicant’s blood pressure issues affected him during the interviews. The applicant also confirmed to the delegate that he was not under the influence of any alcohol or drugs.[59] As noted at [7] above, the applicant was regularly offered meals, water and toilet access (CB 50).
[58] Papalia Affidavit at 5.27 to 5.29
[59] Papalia Affidavit at 6.23 to 6.24
There is no evidence before me that the applicant at any time asked for a lawyer, nor did he indicate in any way that he was anything other than content to participate in the initial interview, or the NOICC interview. The same checklist which records the applicant as having been offered, but declining consular access (CB 49), has a box for recording details of “Other external request e.g. lawyer” which has been struck through by hand from which I infer no such request was made. Even accepting that the relevant interviews took place on a Saturday afternoon/evening, during which it might be difficult to secure the services of a lawyer, the fact remains (and does not appear to be in dispute) that the applicant did not request access to a lawyer either before or after the NOICC interview: Cf Srouji (supra) at [29] per Jagot J.
While submissions made for the applicant at hearing were that he “he had just disembarked from an international flight in the evening with the natural effects that come from that”, I infer from his arrival time (see [5] above), the time stamps on photographs in the Court Book of the baggage inspection (circa 3:46pm onwards),[60] the initial interview commencement time of 4:30pm[61] and the NOICC commencement time of 5:49pm, that the applicant in actuality arrived in Perth in what can be generously described as the late afternoon. Precise details of the applicant’s departure time from New Zealand do not appear to be before me, but I take judicial notice of the fact that the flight time is not (relative to many international, long-haul flights to Australia) especially lengthy and depending on from whence in New Zealand one departs, no more than 7 to 10 hours to Perth.
[60] CB 9 and 6 to 8
[61] See [63] above
I am satisfied that in the full context of the interviews in which the applicant took part,[62] the applicant’s circumstances and the overall statutory context, the 15-minute notice period for the NOICC, was reasonable.
[62] Including the initial interview which preceded the NOICC interview (being the relevant interview for the invitation to respond is issued pursuant to s 121(3)(b) of the Act)
In reaching that conclusion I have taken into account:
(a)that the applicant is not of advanced age;
(b)that the applicant is an English language speaker who did not require an interpreter;
(c)that his self-reported medical conditions were not an issue for the purposes of his participating in interview;
(d)the relatively civilised time of day being late afternoon/early evening;
(e)the length of journey in advance of his disembarkation in Perth (likely less than 10 hours);
(f)that at no time did he ask for the opportunity to speak with a lawyer; and
(g)that he had been offered food, water and toilet breaks and that the interview had also had pauses.
I also take into account that the applicant did not appear from the transcript to be under, nor did he express being under, any medical or physical distress. He was also cooperative and seemingly content to participate in the NOICC interview itself and the interview which preceded it.
Also taken into account is that, while the applicant may not have been specifically well-versed in the statutory regime upon which he was being asked to comment, he was aware of his own personal circumstances and how it was that those were said to give rise to a possible basis for cancellation of his visa. The applicant had also been on notice for more than an hour that he was not immigration cleared and that he was being interviewed initially in that context. He was also then aware, by reason of having had the NOICC read to him by the delegate about the context in which he was then being given time to comment.
In all the circumstances of this case the period in which the applicant was invited to comment on the NOICC, issued pursuant to s 119 of the Act, was reasonable for the purposes of
s 121(3)(b) of the Act.
Accordingly, ground 2 is not made out.
Additional issue - habeas corpus
Among the prayers for relief sought by the amended application, the applicant applied for a writ of habeas corpus. At hearing, the basis for this was said to be that if the applicant were successful in establishing jurisdictional error in the cancellation of his visa, and if it were quashed, this would render his detention unlawful and susceptible to habeas corpus, citing McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602 at [241] to [242] per Mortimer J (as her Honour then was). That principle is not in doubt.
However, firstly the applicant has not succeeded in establishing jurisdictional error. As such, he remains an unlawful non-citizen within the meaning of s 189 of the Act. Accordingly, the application for such relief is refused.
Secondly, as a practical matter, even if the outcome had been different for the applicant today, it is this Court’s experience that the applicant would ordinarily be released immediately from immigration detention, as he should be in such a circumstance. It would generally only be if, despite the cancellation decision being quashed, the Minister by his Department and/or its officers declined to release the applicant, that such an application would be warranted. The issue in the case is, regrettably for the applicant, moot.
FINAL ORDERS
In the absence of a jurisdictional error the application, as amended, must be dismissed. I will so order, together with an order that the applicant pay the Minster’s costs of the proceedings as agreed or taxed.
At the conclusion of the hearing, I presaged with Counsel for the respective parties that I would hear from them at the conclusion of judgment delivery as to the way forward in the event that the applicant was unsuccessful, and that the Court would take into account the applicant’s views in such an eventuality. That is because of the somewhat unusual nature of this case and that it is almost Christmas. It was, no doubt, the applicant’s greatest wish that today he would receive the writs he sought thereby securing his release from immigration detention and returning to his family in Perth.
The applicant is entitled to appeal from my orders and these reasons for judgment.
There are practical realities to his doing so, including that he may wish to engage legal representatives at a time when they, and the Courts, are not working at full capacity. The Court has indicated to the parties a willingness to accommodate a regime including continuation of the injunction preventing the applicant’s removal to New Zealand, and also potentially a stay of my orders today to enable the applicant to properly take advice and prepare any appeal to the Federal Court of Australia, noting of course that there is a default suspension of the reckoning of time provided by r 1.16(5) of the Federal Court Rules 2011 (Cth).
Of course, if that is a course the applicant wishes to pursue, then by seeking an extended period in which to appeal and continue the injunction, he will in essence be electing to remain in immigration detention. As already expressed, the Court has the utmost sympathy for the applicant’s predicament, especially at this time of year.
I will hear from the parties as to their suggested ways forward.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 14 December 2023
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