NDBR v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

NDBR v Minister for Home Affairs [2019] FCA 1631

Appeal from: Application for judicial review: NDBR v Minister for Home Affairs delivered on 8 March 2019
File number: VID 354 of 2019
Judge: MOSHINSKY J
Date of judgment: 4 October 2019
Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – protection visa – where visa refused under s 501 of the Migration Act 1958 (Cth) on character grounds – whether the Tribunal’s decision affected by jurisdictional error – whether Tribunal erred by forming its own view as to the seriousness of the offence – whether the Tribunal failed to accord the applicant procedural fairness – whether the Tribunal failed to comply with Direction 79 – whether the Tribunal failed to consider relevant evidence or a submission of substance
Legislation:

Migration Act 1958 (Cth), ss 36, 197C, 198, 200, 201, 499, 501, 501CA

Criminal Code Act 1899 (Qld), s 210
Cases cited:

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

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

HZCP v Minister for Immigration and Border Protection [2018] FCA 1803

Minister for Home Affairs v HSKJ [2018] FCAFC 217

Minister for Home Affairs v Smith [2019] FCAFC 137

Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599

Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649; 5 ALD 135

Minister for Immigration and Ethnic Affairs v Gungor (1982) 42 ALR 209; 63 FLR 441

Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313

Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

Mrayhej v Minister for Immigration and Border Protection (No 2) [2015] FCA 691

Secretary to the Department of Justice and Regulation v LFF [2018] VSCA 155

Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545; [2018] FCA 594

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Vaitaiki v Minister for Immigration and Multicultural Affairs [1999] FCA 1149
Date of hearing: 13 August 2019
Date of last submissions: 24 September 2019
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 81
Counsel for the Applicant: Mr WG Gilbert SC with Mr WJ Drent
Solicitor for the Applicant: Asylum Seeker Resource Centre Inc.
Counsel for the First Respondent: Mr GA Hill
Solicitor for the First Respondent: Sparke Helmore Lawyers
Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

ORDERS

VID 354 of 2019
BETWEEN:

NDBR

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

MOSHINSKY J

DATE OF ORDER:

4 OCTOBER 2019

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs of the proceeding, to be fixed by way of a lump sum.

3.Until further order, on the ground that…

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Details
Case
[2019] FCA 1631
Decision Date

CaseChat Overview and Summary

The applicant, a citizen of Pakistan, sought judicial review of a decision of the Administrative Appeals Tribunal (AAT) which affirmed the decision of a delegate of the Minister for Home Affairs to refuse his application for a Protection (Class XA) visa under section 501 of the Migration Act 1958 (Cth). The delegate refused the visa on the basis of the applicant’s character, in particular his conviction for a sexual offence involving a child. The applicant argued that the AAT’s decision was affected by jurisdictional error because the Tribunal formed its own view as to the seriousness of the offence, failed to accord him procedural fairness, failed to comply with Direction 79, and failed to consider relevant evidence or a submission of substance. The court considered whether these arguments had merit.

The court held that the applicant’s arguments were unavailing. In relation to the alleged jurisdictional errors, the court found that the AAT did not form its own view as to the seriousness of the offence, but rather based its assessment on the evidence before it, including the sentencing remarks of the trial judge and the judge at the re-trial. The court also found that the AAT did not fail to accord the applicant procedural fairness, as it provided him with an opportunity to present evidence and make submissions. The court further found that the AAT did not fail to comply with Direction 79, as it considered the primary considerations identified in the Direction. Finally, the court found that the AAT did not fail to consider relevant evidence or a submission of substance, as it considered all the evidence and submissions that were before it.

The court dismissed the applicant’s application for judicial review and ordered that the applicant pay the Minister’s costs of the proceeding. The court also made orders in relation to the publication of its reasons for judgment and the assessment of costs.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding, to be fixed by way of a lump sum.

3. Until further order, on the ground that it is necessary to prevent prejudice to the proper administration of justice, the reasons of the Court of the date of these orders are to remain confidential to the parties to the proceeding. [This order was subsequently vacated.]

4. Within seven days, each party file and serve a short submission (or a joint submission) as to any redactions that should be made to the Court’s reasons for judgment. The Court will then publish its reasons either in whole or in a redacted form. [This order was subsequently vacated.]

THE COURT DIRECTS THAT:

5. Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

6. In the absence of any agreement:

(a) within 21 days, 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);

(b) within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c) in the absence of any agreement having been reached within a further 14 days, 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 following reasons, I have concluded that these grounds are not made out. It follows that the application is to be dismissed.Background facts The following summary of background facts is based on the material in the Court Book and the Supplementary Court Book. I note that the material before the Court also includes an affidavit of Emily Singh, a solicitor acting for the applicant, dated 25 July 2019. The affidavit annexes a copy of the transcript of the hearing before the Tribunal on 28 February 2019. The applicant, a citizen of Pakistan, arrived in Australia by boat in June 2012. He was held in immigration detention until 25 October 2012, when he was granted a bridging visa and released into the community. On 12 November 2012, the applicant applied for a Protection (Class XA) visa. On 9 September 2013, the applicant was arrested and charged with one charge of unlawfully and indecently dealing with a child under the age of 16 contrary to s 210(1)(a) of the Criminal Code Act 1899 (Qld). The incident in question occurred on 26 June 2013. The applicant submits that he was bailed immediately (see, eg, the chronology attached to his outline of submissions in this Court). However, the material does not make clear whether that was the case and the Tribunal did not make a finding to this effect. In any event, the Tribunal found that the applicant was granted bail by the Ipswich Magistrates’ Court on 14 October 2013: see the reasons of the Tribunal (the Tribunal’s reasons) at [22]-[23]. On 27 September 2013, a delegate of the Minister refused to grant the applicant a protection visa. On 10 April 2014, the applicant’s bridging visa was cancelled (apparently on the basis of the criminal charge) and he was taken into immigration detention. He has been held in immigration detention since that date. On 19 September 2014, the then Refugee Review Tribunal found that the applicant satisfied the criteria in s 36(2)(a) of the Migration Act, and remitted the matter for reconsideration with the direction that the applicant satisfied s 36(2)(a). On 6 May 2015, the applicant was found guilty by a jury in the District Court of Queensland of the offence of unlawfully and indecently dealing with a child under the age of 16. On 25 May 2015, Judge Bradley sentenced the applicant. Judge Bradley described the particulars of the offending as follows:The particulars are that you approached the 14 year old male complainant somewhere within the bookshelves in the library. Only you and he were in the vicinity. You shook hands with him and spoke to him and you touched your own crotch area at that time. You then left him, but returned a short time later.At that time, you came up behind him and pressed yourself against him, and you placed your hands around his waist. You leaned your head into his neck. He thought you were trying to kiss him. And when he moved forward, you moved forward with him. He was, however, able to break away and leave the area quite quickly. It was, therefore, a short incident, but it was persistent. And there’s no evidence that there was any real predatory behaviour on your part. I accept it was opportunistic. It did occur in a public place, but in a relatively secluded part of that public place.(Emphasis added.)

Evidence

Evidence Before The Court

On 6 May 2015, the applicant was found guilty by a jury in the District Court of Queensland of the offence of unlawfully and indecently dealing with a child under the age of 16. On 25 May 2015, Judge Bradley sentenced the applicant. Judge Bradley described the particulars of the offending as follows:The particulars are that you approached the 14 year old male complainant somewhere within the bookshelves in the library. Only you and he were in the vicinity. You shook hands with him and spoke to him and you touched your own crotch area at that time. You then left him, but returned a short time later.At that time, you came up behind him and pressed yourself against him, and you placed your hands around his waist. You leaned your head into his neck. He thought you were trying to kiss him. And when he moved forward, you moved forward with him. He was, however, able to break away and leave the area quite quickly. It was, therefore, a short incident, but it was persistent. And there’s no evidence that there was any real predatory behaviour on your part. I accept it was opportunistic. It did occur in a public place, but in a relatively secluded part of that public place.(Emphasis added.) In relation to the sentence, Judge Bradley stated:The law in Queensland is that adults who sexually abuse children must go to jail, unless there are exceptional circumstances. I do have regard to the provisions of the law in that regard and particularly the factors that I must pay attention to. In my view, there are exceptional circumstances in your case because of the 13 and a-half months that you have been back in immigration detention. If you had not served that time in detention, then the sentence that I would impose on you would be a sentence of imprisonment of nine months. The appropriate sentence, though, and the one that I will impose on you is that you be released upon you entering into an undertaking that you be of good behaviour for two years.(Emphasis added.) Judge Bradley ordered that the applicant be released on entering into a recognisance in the sum of $200 on the condition that he keep the peace and be of good behaviour for two years. He was to be imprisoned until that recognisance was entered into, and the term of imprisonment was one month. The applicant appealed against his conviction and sentence. On 1 October 2015, the Court of Appeal of the Supreme Court of Queensland set aside the conviction and ordered a re-trial. The Court of Appeal provided reasons for the decision on 13 October 2015. The judgment of Gotterson JA (with whom Philip McMurdo J and Lyons J agreed) contained further details of the circumstances of the alleged offending, based on the complainant’s evidence: see [3]-[8]. On 25 May 2016, after a re-trial, the applicant was again found guilty by a jury of the offence. In sentencing the applicant, Judge Horneman-Wren SC observed:On the last occasion that her Honour sentenced you, she described the offence of which you have been convicted as having been a short incident but a persistent one. Her Honour observed that there had been no evidence that there was no real predatory behaviour on your part. Her Honour accepted that it was opportunistic and although it occurred in a public place it was in a relatively secluded part of the library. That description that her Honour made, with respect, seems appropriate.(Emphasis added.)

Decision

Reasons for decision

On 7 December 2018, pursuant to s 501(1), a delegate of the Minister refused the application for a protection visa (the Second Refusal Decision). The applicant applied to the Tribunal for review of the Second Refusal Decision. On 28 February 2019, the Tribunal (constituted by a Deputy President) held a hearing in relation to the application for review. Both the applicant and the Minister were represented at the hearing. On 8 March 2019, the Tribunal decided to affirm the Second Refusal Decision, and provided reasons for its decision. These reasons were the subject of a corrigendum issued on 1 April 2019.The Tribunal’s reasons The Tribunal identified the issues as being whether the applicant met the character test as defined in s 501(1) and, if he did not, whether the grant of the Protection (Class XA) visa should be refused (at [4]). The Tribunal noted that the applicant conceded that he did not meet the character test. The sole issue, therefore, was whether the discretion to refuse to grant the visa under s 501(1) should be exercised (at [6]). The Tribunal set out the background facts (at [7]-[24]), then described the hearing (at [25]-[27]), and set out the legislative framework, including Direction 79 (at [28]-[39]). The Tribunal then considered the three primary considerations identified in Direction 79, namely: protection of the Australian community from criminal and other serious conduct; the best interests of minor children in Australia; and expectations of the Australian community. The Tribunal considered the first primary consideration (namely, protection of the Australian community from criminal or other serious conduct) at [41]-[83]. The Tribunal structured its reasons under the following sub-headings:(a)the nature and seriousness of the conduct;(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct;(c)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and(d)the likelihood of the non-citizen engaging in further criminal or other serious conduct. In the course of dealing with the nature and seriousness of the conduct, the Tribunal set out paragraph 11.1.1(1) of Direction 79 and noted that paragraph 11.1.1(1)(a) categorises offences of a violent and/or sexual nature as being “viewed seriously” (at [43]). The Tribunal set out passages from the sentencing remarks of Judge Bradley and Judge Horneman-Wren SC. The tribunal also set out [4]-[8] from the judgment of Gotterson JA, which contained additional detail regarding the alleged offending. The Tribunal then stated at [50]:The Tribunal notes the comments of the original trial judge and the judge at retrial that the offence involved a short incident but was persistent and that there was no evidence of predatory behaviour by the Applicant. While any sexual offence involving a child is serious, not only by community standards, but also by the standard prescribed by paragraph 11.1.1(1)(a) of Direction 79, the applicant’s offending was at the lower end of the scale of seriousness for a sexual offence involving a child.(Emphasis added.)

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.