Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 769
•8 July 2021
FEDERAL COURT OF AUSTRALIA
Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 769
File number: VID 62 of 2021 Judgment of: MOSHINSKY J Date of judgment: 8 July 2021 Catchwords: MIGRATION – mandatory cancellation of visa – request for revocation of cancellation decision – where delegate decided not to revoke cancellation decision – where Administrative Appeals Tribunal affirmed delegate’s decision – whether Tribunal fell into error by preferring its own view of risk of recidivism to the evidence of psychologist – application dismissed Legislation: Migration Act 1958 (Cth), ss 501, 501CA Cases cited: Minister for Home Affairs v Omar (2019) 272 FCR 589
Navoto v Minister for Home Affairs [2019] FCAFC 135
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 29 Date of hearing: 24 June 2021 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Counsel for the First Respondent: Mr M Hosking Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The second respondent did not appear save as to costs ORDERS
VID 62 of 2021 BETWEEN: TRUNG KIEN NGUYEN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
MOSHINSKY J
DATE OF ORDER:
8 JULY 2021
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.
THE COURT DIRECTS THAT:
3.Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the first respondent’s costs.
4.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.
REASONS FOR JUDGMENT
MOSHINSKY J:
Introduction
The applicant, who is a citizen of Vietnam, seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 6 January 2021. The Tribunal decided to affirm a decision of a delegate of the first respondent (the Minister) under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the mandatory cancellation of the applicant’s visa.
For the reasons that follow, I have decided that the application for judicial review is to be dismissed.
Background facts
In brief outline, the background to the proceeding is as follows. The following summary is drawn largely from the outline of submissions prepared by the Minister. There does not appear to be any dispute about these background facts.
The applicant is a citizen of Vietnam. He arrived in Australia in May 2010.
The applicant lived in Vietnam with his Australian citizen de facto partner for some years before moving to Australia in May 2010. They married the day after the applicant arrived in Australia. The applicant was granted a temporary partner visa in 2011 and a permanent partner visa in 2014. In late 2015, the applicant and his wife separated. They subsequently divorced.
In July 2018, as a result of a shoulder injury, the applicant was placed on WorkCover payments. He claimed that, around this time, he gambled heavily and borrowed money from loan sharks at high interest rates. He claimed that, when he was unable to repay these loans, his creditors suggested that he become involved in a cannabis growing enterprise, which he did in October 2018.
In January 2019, search warrants were executed at three properties, and the applicant was arrested at one of the properties.
In October 2019, the applicant was convicted of:
(a)cultivating a commercial quantity of cannabis, for which he received a sentence of 32 months’ imprisonment with a non-parole period of 22 months; and
(b)theft of electricity related to the bypassing of electricity meters, for which he received a sentence of 12 months’ imprisonment, 10 months of which was to be served concurrently with his other sentence.
This amounted to a total effective sentence of 34 months’ imprisonment, with a non-parole period of 22 months. The applicant was sentenced on the basis that his role in the cannabis growing enterprise was “as a form of supervisor”, and to “assist in the [cannabis growing] process and to shield [the] principals in [the enterprise] from detection”.
On 9 January 2020, a delegate of the Minister decided to cancel the applicant’s visa under s 501(3A) of the Migration Act.
The applicant requested that the cancellation decision be revoked and made representations in support of that request.
On 15 October 2020, a delegate of the Minister decided under s 501CA(4) not to revoke the cancellation decision.
The applicant applied to the Tribunal for review of that decision.
On 21 and 22 December 2020, the applicant attended a hearing before the Tribunal. The applicant was represented by a lawyer.
The evidence relied on by the applicant before the Tribunal included a report prepared by a psychologist, Dr Debra Bennett (the Bennett Report). Dr Bennett assessed the applicant’s risk of future offending using the “Level of Service Inventory – Revised” assessment tool. Dr Bennett stated her conclusion of her assessment using that tool as follows:
[The applicant] scored in the lowest category of “Low Risk/Needs.” This category is assigned approximately 11.7% chance of recidivism.
Dr Bennett gave oral evidence at the hearing. She adopted her report and was cross-examined.
On 6 January 2021, the Tribunal decided to affirm the delegate’s decision.
The application for judicial review
On 10 February 2021, the applicant filed an originating application seeking judicial review of the Tribunal’s decision. The applicant was, at that time, represented by a lawyer. The originating application contained the following grounds:
1.In affirming the decision of the First Respondent, the Second Respondent failed to decide the Applicant's application according to law.
2.Particulars
a.The Applicant’s partner visa was mandatorily cancelled by the First Respondent Minister, on 9 January 2020 under s501(3A) of the Migration Act 1958 (Cth) (the Act) (the Cancellation).
b.On 15 October 2020, a delegate of the Minister decided not to revoke the Cancellation.
c.On review in the Administrative Appeals Tribunal, the Second Respondent Tribunal affirmed the decision of the First Respondent.
d.In submissions and oral evidence put before the Second Respondent, the Applicant argued that there is “another reason” why the First Respondent’s decision should be revoked, in accordance with s501CA(4)(b)(ii).
e.In assessing whether there is another reason why a visa cancelation decision should be revoked, guidance is provided by Direction No. 79 (the Direction) under s499 of the Act, which provides principles and “a framework within which decision-makers should approach their task of deciding whether to exercise the discretion ... to revoke a mandatory cancellation under section 501CA”.
f.Clause 6.2 of the Direction states relevantly as follows:
6.2 General Guidance
The principles below are of critical importance ... to determining whether the risk of future harm, ... is unacceptable.
g.Part C of the Direction “identifies the considerations ... in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa.”
h.In particular, Part C lists as primary considerations:
a) Protection of the Australian community from criminal or other serious conduct.
i. Clause 13.1 of the Direction states relevantly, that:
(1)When considering protection of the Australian community, decision-makers should have regard ... to the expectation that [non-citizens] are, and have been, law abiding.. and will not cause or threaten harm to individuals in the Australian community ...
(2)Decision-makers should also give consideration to:
b)The risk to the Australian community should the noncitizen commit further offences ...
j.The Applicant provided expert evidence which strongly supported the contention that the Applicant was at the lowest risk of recidivism, and therefore presented a low risk to the Australian community of future offending.
k.In her expert evidence for the Applicant, Dr Debra Bennett scored [the Applicant] in the lowest category of “Low Risk / Needs.” This category is assigned approximately 11.7% chance of recidivism.
l.Despite the clear scientific evidence provided by Dr Bennett, the Second Respondent stated:
“Some aspects of Dr Bennett’s evidence bordered on advocacy. This is particularly so when she sought to attribute a lesser role to the Applicant in the cannabis enterprise than was determined by the Court.”
m. The Tribunal further stated:
“The Tribunal places little weight on Dr Bennett’s risk assessment because it is grounded in her own conclusions about the Applicant’s criminal culpability ...”
n.It is submitted the Second Respondent Tribunal fell into error by preferring its own view of the Applicant’s risk of recidivism over the scientific findings of a psychological expert with extensive experience with Victoria Police as a behaviour analyst and profiler.
o.In disregarding Dr Bennett’s evidence, the Respondent Tribunal failed to take account of a relevant consideration towards the disposal of the Applicant’s application.
Shortly before the hearing of proceeding, the applicant’s lawyer filed a notice of ceasing to act. In correspondence with the parties during the week before the hearing, my chambers enquired whether the applicant sought an adjournment of the hearing. The applicant indicated that he did not seek an adjournment.
The hearing of the proceeding took place by video-conference (using Microsoft Teams) due to the restrictions in place relating to the COVID-19 pandemic. The applicant appeared for himself, with the assistance of an interpreter. At the outset of the hearing, I raised with the applicant that his lawyer had recently ceased to act and asked whether he sought an adjournment of the hearing. He said that he did not seek an adjournment.
The applicant made brief oral submissions at the hearing of the proceeding. An outline of submissions had not been filed by or on behalf of the applicant.
The Minister relied on an outline of submissions dated 10 June 2021. During a break in the hearing, this document was interpreted for the applicant. The Minister’s counsel also made brief oral submissions, which were responsive to the applicant’s oral submissions.
Consideration
The applicant contends, in summary, that the Tribunal fell into jurisdictional error by preferring its own view of the applicant’s risk of recidivism to the evidence given by a psychologist, Dr Bennett. The applicant contends that, by disregarding Dr Bennett’s evidence, the Tribunal failed to take account of a relevant consideration.
The principles relevant to this ground are well established. Although the representations made by an applicant in support of the revocation of the cancellation of their visa are a mandatory relevant consideration for the Tribunal, they are a mandatory relevant consideration as a whole and not as to the individual statements contained in the representations: Minister for Home Affairs v Omar (2019) 272 FCR 589 (Omar) at [34(e), (g)]. The Tribunal must consider substantial, clearly articulated arguments advanced by an applicant as demonstrating a reason why the mandatory cancellation of their visa should be revoked (Navoto v Minister for Home Affairs [2019] FCAFC 135 (Navoto) at [85]) as well as other “matters of sufficient importance in the representations”, assessed by the standard that, if the Tribunal had not taken those matters into account, it would have failed to take into account the representations as a whole (Navoto at [86]). In order to be said to have considered an argument or other matter in the representations, the Tribunal must have given it active intellectual consideration or meaningful consideration: Omar at [36]-[37]; Navoto at [87]. Determining whether the Tribunal in fact considered an argument or other matter depends on an analysis of all the circumstances of the case, including the manner in which the argument or representation was raised, and the structure, tone and content of the Tribunal’s reasons: Omar at [34(g)]; Navoto at [89].
In my view, the Tribunal in the present case gave meaningful consideration to the Bennett Report, and to Dr Bennett’s oral evidence. I note, in particular, the following:
(a)the Tribunal expressly stated that it had considered the Bennett Report (at [55]), and summarised its contents in some detail (at [55]-[56]);
(b)the Tribunal also summarised Dr Bennett’s oral evidence in some detail (at [57]);
(c)the Tribunal explained why it placed little weight on Dr Bennett’s assessment of the risk of the applicant reoffending (at [70]); and
(d)the Tribunal referred in other parts of its decision record to relevant aspects of Dr Bennett’s evidence (see [99], [124]).
Thus, I do not accept that the Tribunal fell into jurisdictional error by failing to take account of a relevant consideration or by failing to give meaningful consideration to Dr Bennett’s evidence.
The applicant’s contention, in effect, challenges the weight that the Tribunal gave to particular evidence, namely the Bennett Report. But the weight to be given to particular evidence is quintessentially a matter for the Tribunal. The applicant’s contention is tantamount to an invitation to the Court to engage in impermissible merits review.
The matters raised by the applicant in oral submissions did not take the matter any further. They were largely concerned with the merits of the applicant’s request for revocation of the cancellation decision. To the extent that the applicant submitted that the Tribunal had failed to have regard to his evidence, I reject that contention. The Tribunal at [33] gave detailed consideration to the applicant’s evidence.
Accordingly, the application is to be dismissed. There is no apparent reason why costs should not follow the event. I will therefore also order that the applicant pay the Minister’s costs of the proceeding, to be fixed by way of a lump sum.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Moshinsky. Associate:
Dated: 8 July 2021
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