Nepal v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 610
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Nepal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 610
File number(s): MLG 322 of 2023 Judgment of: JUDGE VASTA Date of judgment: 13 June 2023 Catchwords: MIGRATION – review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed Legislation: Migration Act 1985 (Cth): s 116
Migration Regulations 1994 (Cth): reg 2.43
Cases cited: Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 Division: Division 2 General Federal Law Number of paragraphs: 73 Date of last submission/s: 13 June 2023 Date of hearing: 13 June 2023 Place: Brisbane Counsel for the Applicant: Mr Sharify Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the First Respondent: Mr Barrington Solicitor for the First Respondent: The Australian Government Solicitor ORDERS
MLG 322 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SAROJ NEPAL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE VASTA
DATE OF ORDER:
13 JUNE 2023
THE COURT ORDERS THAT:
1.The application filed on 28 February 2023 be dismissed.
2.The Applicant to pay the First Respondent’s cost of and incidental to the application fixed in the sum of $5,400.
IT IS NOTED THAT:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
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
(Ex Tempore)JUDGE VASTA
On 24 January 2023, the Administrative Appeals Tribunal (“AAT”) affirmed a decision to cancel the student visa of the applicant, Saroj Nepal. On 28 February 2023, the applicant asked this Court to review that decision.
The background to the matter is that the applicant is a citizen of Nepal. He came to Australia, and was in Australia, on a dependent student visa; that is, his wife was the person to whom the visa was granted and the applicant was a dependent upon her visa. The visa was granted on 27 July 2020 and it was due to expire on 14 March 2023.
On 9 March 2022, the applicant was charged with offences of “unlawful assault”, “make threat to kill”, “false imprisonment”, “recklessly cause injury”, “assault”, and two charges of “assault with a weapon”. Those offences were committed against his wife, the person who had the student visa upon which the applicant was the dependent.
The applicant was convicted of those offences and was sentenced to 11 months imprisonment. He was provided with a notice of intention to consider cancellation under s. 116 of the Migration Act 1958 (Cth) (“the Act”). The delegate cancelled the applicant’s visa on 11 May 2022. On 19 May 2022, the applicant applied to the AAT for a review of that decision.
The AAT went through the process of the consideration of the cancellation pursuant to s. 116.
It is trite to say that such a cancellation is a two-stage process. Firstly, the decision maker has to be satisfied that there is in existence a ground for cancellation. If a ground for cancellation is found, cancellation is not mandatory, but, rather, is discretionary. The Act does not give any fetters to the exercise of that discretion. However, one may think that there is a requirement that the discretion be exercised reasonably.
There are a number of factors that the procedure manual requests decision makers to consider. If, in the end, the matters are weighed up and the decision is that the visa should be cancelled, then it will be cancelled. If the discretionary factors weigh against cancellation, it will not be cancelled.
The AAT started looking to see whether the visa should be cancelled under section 116(1)(e):
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(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 …
In this matter the AAT looked at the record from the Broadmeadows Magistrates Court of Victoria and the brief supplied by Victoria Police. What it illustrated was that, on 8 March 2022 at about 10 pm, the applicant and the victim had an argument about money; that the applicant wanted more money to purchase alcohol; that he grabbed the victim’s neck; that she managed to flee; and, that she ran outside their home, but he dragged her back causing her clothes to rip.
The information before the AAT was that the applicant locked the victim inside the home but that she locked herself in the toilet and held the door shut. The applicant banged on the door. The victim ended up opening the door and the applicant lit a lighter and attempted to burn her. He sprayed the room with insect repellent in an attempt to make the air unbreathable. He struck her in the head with a bottle and struck her across the side of her head and into her mouth. He told her, “Tonight I’m going to kill you”.
He closed the bathroom door with the victim still inside. He started a fire in the kitchen area by lighting some material. He dragged the victim out of the bathroom. The victim believed that he was trying to rip her clothes off to burn them. He struck her on the head with a bottle, he used a mop handle to hit her multiple times.
The room started to fill with smoke and so the applicant opened the front door to let some of the smoke out and the victim used that opportunity to run away, getting to the police and saying as her first words to the police, “My husband was trying to kill me”.
The AAT put those matters to the applicant and he said that he would provide a written response. The written response was that the ground of cancellation was not made out because the applicant was not at risk to individuals or the community; that the event was out of character; it was a one-off incident; it was a first offence; there was no pattern in his behaviour; he was drinking at the time; he suffered from depression; he has now done a drug and alcohol program; he is on medication for his depression; he has family in the community, namely a sister and a brother in law as well as support of friends; and, he would commence studying in Australia once released from prison.
The applicant also provided a report from a psychologist by the name of Warren Simmons. Mr Simmons referred to the applicant’s alcohol history. The applicant had said to Mr Simmons that all the allegations were not correct and that the applicant had only accepted that he and his wife had a disagreement, but he did not assault her.
The report said that the applicant appeared to be suffering from depression for some time and he also suffered from hypothyroidism for which he is given medication. The psychologist said that this was a first offence and it was not part of a pattern of behaviour. He said that the applicant was experiencing depressive symptoms, and that the offence occurred in the context of alcohol consumption.
The report noted that the offence was directed towards an intimate partner and not the wider community and, now that that relationship has ended, there is a low risk of reoffending. The report said that the applicant is not without risk, but the applicant’s experiences with the criminal justice system and the Department of Home Affairs served to underline to him that he needs to have more appropriate patterns of behaviour in the future.
The written submission also spoke of the fact that this matter was concluded in the Magistrates Court as opposed to the County Court, which was an indicator that the matters were not considered as serious as needing to be heard in the County Court.
The submission referred to the opinion of the psychologist as to the low risk of recidivism. There was also a statement by a friend of the applicant, a person I have called IS, which indicated that the applicant “feels a great deal of shame due to his conduct” and wishes, in hindsight, that the offence did not happen. The statement attests to the good character of the applicant.
Post hearing, the applicant made another submission saying that there should be little weight attributed to the brief because there were no formal sentencing remarks to which the AAT had regard. The applicant submitted that the police brief may not truly reflect the facts upon which the applicant was sentenced.
An email was also submitted which contained a question sent by the solicitor to the psychologist and the reply made by the psychologist. Of this the AAT said:
The psychologist provided an email in which it is indicated that it is never possible to state that someone who has a disclosable outcome is at no risk of reoffending. A submission provided on the applicant’s behalf after the hearing indicates that the risk of the applicant offending is low.
The AAT weighed up all of that evidence. The fact that the applicant was convicted of a physical attack of sufficient seriousness that it required the applicant to spend 11 months in prison caused the AAT to come to the conclusion, at paragraph 31 of their reasons, that:
The Tribunal considers on the basis of the quite serious assault and other harmful activity perpetrated by the applicant leading to the convictions together with the assessment by the applicant psychologist that there is a low risk and that the applicant is not without risk, readily leads the Tribunal to the view that the applicant is or may or might be a risk to the victim of the assault and to the community generally.
For those reasons, the AAT was satisfied that the ground for cancellation existed.
The AAT then looked at the matters that it should take into account when looking at the exercise of discretion. Those matters, the AAT said, included the purpose of the visa holder’s travel to, and stay in, Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose; whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department of Home Affairs; whether there are any other persons in Australia whose visas would or may be cancelled because of this; whether there are mandatory legal consequences to the decision; whether there would be any non-refoulment obligations breached; whether the person would become an unlawful non-citizen; and, whether Australia had obligations under relevant international agreements that would be breached.
The AAT said that, in looking at these matters, it accepted that the applicant had a diagnosis of depression; that alcohol was potentially a contributing factor to the offences; and, the applicant had now ceased using alcohol. The AAT was not satisfied that these factors indicated that there should be no personal responsibility for the serious attack.
The AAT concluded that they did not accept that the conduct of the applicant, leading to the offending behaviour, was totally beyond the applicant’s control.
The AAT was prepared to make some allowances due to the depression, alcohol consumption, and the applicant’s own personal matters (such as the dementia of his sister), but was not satisfied that those were extenuating circumstances beyond the applicant’s control that justified or excused the violent behaviour that led to the convictions or absolved the applicant of responsibility.
The AAT noted that the applicant is no longer in a relationship with his wife and the AAT noted that the wife is the primary visa holder. This meant that the fact, or circumstances, that led to the visa being granted in the first place, now no longer exist.
The AAT noted that the applicant no longer meets the secondary criteria for the grant of the visa as being a member of the same family unit as the primary visa holder. The AAT noted that this means that a ground under s. 116(1)(a) is also made out.
The AAT said that the fact that there would appear to be another ground for cancellation under s. 116(1)(a), could be a significant adverse discretionary factor as to whether the visa would be cancelled.
The AAT also noted that the visa could also be cancelled under section 116(1)(g); that is, that the prescribed grounds for cancellation (which are set out in regulation 2.43 of the Migration Regulations 1994 (“the Regulations”), provide that a ground for cancellation is that the holder of the visa has been convicted of an offence against the law of the Commonwealth, a State, or Territory, whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed.
At paragraph 43 the AAT said:
The fact that there would appear to be this second ground on which the visa could be cancelled is an additional significant discretionary factor as to why the Tribunal should not exercise its discretion to cancel the visa. …
The AAT then looked at the applicant’s study history in that he did once have a visa of his own, but his enrolments in subjects were cancelled. The applicant said that that was because of issues with funds and that his parents passed away during these times that the courses were cancelled. The AAT did not see these matters as being adverse discretionary factors.
The AAT looked at hardship. They accepted that there may be some hardship in that the applicant had been in Australia for a long time and that he would have to return to Nepal. The AAT accepted there may be some hardship to family members in Australia and hardship to the applicant as a result of not being able to progress with intended study in Australia.
The AAT accepted hardship to the applicant if the visa remained cancelled in terms of limitations on his ability to apply for many other visas on shore. The AAT accepted that, if the visa remained cancelled, the applicant would be liable to immigration detention because he was an unlawful non-citizen. The AAT noted that the applicant had finished his criminal sentence in January 2023 and had been removed to immigration detention.
There were no children in Australia whose interests would be affected by the cancellation.
The applicant indicated that he intended eventually to return to Nepal and there were no other matters regarding what is happening in Nepal that would cause the AAT to believe that the applicant could not go back to Nepal.
At paragraph 53, the AAT said:
Significantly adverse to the applicant in considering discretionary factors is the fact that there are two other key grounds on which the applicant’s visa could have been cancelled, namely that he is no longer in a relationship with the primary visa holder and the criminal convictions would themselves be grounds on which the applicant’s visa could be cancelled.
At paragraph 55, the AAT said:
The Tribunal takes into account in the applicant’s favour exercising the discretion that the criminal matters were held in a court that did not consider overly serious offences. The Tribunal takes into account in the applicant’s favour his claimed remorse, treatment for the use of alcohol, his sister’s dementia and the fact that this is the only conviction held by the applicant.
In paragraph 56 the AAT said:
Balancing all discretionary factors, the Tribunal readily considers that matters in favour of exercising the discretion to cancel the visa significantly outweigh matters against exercising the discretion.
For those reasons the AAT affirmed the decision to cancel the applicant’s visa.
The hearing today had two grounds of application. The first ground was that:
In exercising its discretion under s116(1)(e) of the Act, the Second Respondent (Tribunal) erred by taking into account an irrelevant consideration.
The second ground was that:
The Tribunal failed to genuinely consider the psychologist’s opinion that it was impossible to state anyone had no risk of criminal offending.
Because the decision is a two-stage process, it seems to me that I should look at ground 2 first because this goes to whether or not the decision that the cancellation ground had been made out was infected by jurisdictional error.
As I had said before, the psychologist gave some further information to the AAT post hearing. It must be remembered that the psychologist, up to that point, had already given a report and that report had said that the applicant was at a low risk of reoffending, but not without risk, though his experiences with the criminal justice system and the Department of Home Affairs served to underline to the applicant that he needed to have more appropriate patterns of behaviour in the future.
At CB 147, what is reproduced is an email from the solicitor of the applicant to the psychologist. It reads:
I refer to the above and report prepared on 9 December 2022.
In your report, you noted that Mr Nepal is at “…a low level of offending again” and he is “…not without risk”.
Can you confirm, would you ever be in a position to state that a patient who has a disclosable criminal outcome, is at “no risk” of reoffending?
The psychologist wrote back on 23 December 2022 saying:
Thank you for your email. It is never possible to state that someone who has a disclosable outcome is at no risk of offending. In fact, it is technically impossible to state that anyone cannot commit an offence as the possibility exists, not matter how slim it is.
The applicant complains that the AAT did not consider this statement. The applicant concedes that the AAT quoted the first sentence of the statement, but did not quote the second sentence. The applicant submits that the second sentence puts the “colour” on the first sentence; that being, that in looking at the two sentences together, the psychologist would never be able to say that any person is not at risk of committing an offence which informs the statement that “it is never possible to state that someone who has a disclosable outcome is at no risk of offending”.
The applicant claims that, because the AAT reproduced the first sentence and did not reproduce the second sentence, it is that the AAT, in effect, read the first sentence and stopped reading any further.
It would seem to me that that is not something that can be discerned from the reasons. It is not necessary for the AAT to reproduce every word that is submitted to it for the AAT to show that it has taken the matter into consideration. It would seem to me to be absurd to think that the AAT has simply stopped reading after reading the first sentence.
The alternate submission is that the AAT read the second sentence and then just ignored it. Again, that seems to me to be somewhat of a large bow to draw; that being, because the second sentence really is of very little weight in that it does not really say anything other than what common sense tells us: that it is impossible to state that anyone cannot commit an offence as the possibility exists even if it is an extremely slim possibility.
The aspect of this opinion is that it is looking at someone who has a disclosable outcome: that being, someone who has committed an offence in the past. The psychologist is saying it is never possible to state that someone who has committed an offence in the past will not commit the same offence in the future. Again, that is common sense. The fact that the psychologist says “it is technically impossible to state that anyone cannot commit an offence as the possibility exists, not matter how slim it is”, really does not add anything to that first sentence.
Of course, what the psychologist has said has to be added onto the statement that the psychologist had already made about what he perceived to be the low risk of reoffending (which was in the report given to the AAT).
The submission by the applicant is that the AAT truly needed to state that the psychologist was saying that “whilst it is impossible to say that someone will never commit an offence, the applicant’s rating of low risk is as low an opinion as the psychologist could possibly make”. And therefore, the risk of recidivism was far less than that which the AAT was considering.
I do not agree with that submission. It seems to me that the AAT has looked at this whole aspect of recidivism and taken it into account when looking at all of the other circumstances. It is, again, trite to say that the AAT does not compartmentalise this aspect as to how serious the matter is, compare it to what the chances of recidivism are, and come to a decision by adding the disparate parts together. Instead, the AAT looks at the whole of the matter to decide whether or not there is a risk to the Australian community and to any individuals.
To my mind that is exactly what the AAT did, in paragraph 31, when the AAT said that it:
… considers on the basis of the quite serious assault and other harmful activity perpetrated by the applicant leading to the convictions together with the assessment by the applicant psychologist that there is a low risk and that the applicant is not without risk, readily leads the Tribunal to the view that the applicant is or may or might be a risk to the victim of the assault and to the community generally.
It seems to me that the AAT has considered the statements of the psychologist and applied them in the exact manner as the applicant had claimed they should be applied, and has come to a conclusion; albeit a conclusion with which the applicant does not agree.
Therefore, it cannot be said that the AAT did not consider what the psychologist wrote in his email. For those reasons, ground 2 fails.
That means that I have come to a conclusion that the decision that there were grounds for cancellation is not one that is infected by jurisdictional error. The next question I have to answer is the whether the discretion was exercised in a manner that illustrated jurisdictional error.
The AAT has looked at the matters that weigh in favour for cancellation and against cancellation, as they have recorded in their reasons. The matters that the AAT talk of as being the two significant matters are the facts that the applicant could have had his visa cancelled on two other grounds; that is, under s. 116(1)(a) in that the circumstances for his visa no longer exists (because he is no longer the partner/dependent of the visa holder), and, under s. 116(1)(g) in that he has been convicted of offences against a Commonwealth or State or Territory law.
The applicant claims that the fact of the conviction of these offences is an irrelevant consideration. It seems to me that there is some disquiet about the way in which the AAT has looked at the matters of the conviction. This is because the same factual matters that are considered in whether the applicant is a danger (s. 116(1)(e)) are also the same factual matters that are considered in whether the applicant has been convicted ( s. 116(1)(g)).
There is no doubt to my mind, in any event, that the AAT can look at whether there are any other grounds for cancellation in looking at the matters that it can take into account in exercising the discretion. It is also obvious to me that (e) and (g) are two separate and totally different considerations.
The fact that the applicant has committed these actions against his wife and that has been proven to be so would be sufficient to find the ground in (e) to be made out. The fact that the applicant is convicted of those matters is a totally different kettle of fish. There is a very big difference between what a person is convicted of and what it is that a person has done.
Where the unease comes into it is that, in looking at the actions of the applicant, there has been quite a deal of reliance on the fact that these were actions of which the applicant had been convicted. These were said by the AAT to be actions that were serious and that resulted in penalties of 11 months imprisonment which, from the Victorian Magistrates Court, is quite a hefty sentence for someone who has no criminal history, had problems with alcohol, depression, and all of the other mitigating factors.
Whilst it is that the AAT found that (e) had been made out, part of the making out of (e) was a reliance upon the fact of convictions and sentence and punishment. To then use those same matters, that have founded the ground of cancellation, as reasons for the discretion to be exercised against the applicant does, at first blush, seem to be a double counting.
Obviously, there is a difference between (e) and (g) and it cannot be said that there is any form of prohibition in looking at other reasons why a visa can be cancelled in the exercise of the discretion.
The argument of the applicant is that, in this case, there was a double counting such that the circumstances of the conviction had already been looked at and taken into consideration in finding the ground for cancellation as having been satisfied. For them to be used again, the applicant says is irrelevant.
When I posed to the applicant that, for him to be saying that the considerations were irrelevant, it meant that such was prohibited, the applicant said that he would not go that far and that he had not found any authority that correlated irrelevant considerations with prohibitions. The respondent was able to point to authority to counter that submission, that being Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 at paragraph 9 where Basten JA said:
The term “relevant considerations” is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 per Mason J, it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be “mandatory consideration”. Further, a matter traditionally described as an “irrelevant consideration” is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.
During the course of argument, I postulated that, whilst I could not see that there was prohibition against the consideration of the fact that the applicant had convictions, it would seem to me that would be a matter that would have very little weight, or substance, in looking at the discretion because those matters had already been taken into account in looking at the finding that the ground for cancellation existed in this matter.
The applicant submitted that whilst what I had said may be considered correct, the fact is that the AAT found that it was a significant circumstance that weighed in favour of cancellation.
I do have some sympathy for the applicant in such a situation, but it does not seem to me that I could come to the conclusion that it was prohibited for the AAT to consider subsection (g) simply because the AAT had already used the fact of convictions and the punishment to confirm that the ground for cancellation had already been made out.
Even on what I had said about giving the matter little weight, it still means that the consideration was not a matter where there was prohibition on doing so, but it meant that there should be a tempering of how it was that the information was used.
But even having come to that conclusion, brings this aspect into the realm of merits review because either the AAT can take it into consideration or it cannot. If it can take it into consideration, how it takes it into consideration, or what weight it gives, is a matter for the AAT, as long as the eventual conclusion of taking it into account is not one which is not open on the evidence. The weight that is given cannot amount to a jurisdictional error.
For that reason, I cannot find that the consideration of subsection (g) was an irrelevant consideration. Having come to that conclusion, ground 1 does not illustrate any jurisdictional error.
Having found no jurisdictional error on either grounds, I dismiss the application with costs fixed in the sum of $5400.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 13 June 2023
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