QSVS v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

QSVS v Minister for Home Affairs [2018] FCAFC 124

Appeal from: QSVS v Minister for Home Affairs [2018] FCA 524
File number: NSD 731 of 2018
Judges: COLLIER, BARKER AND DAVIES JJ
Date of judgment: 9 August 2018
Catchwords: MIGRATION – appeal from Federal Court of Australia – where appellant’s protection (class XA) visa cancelled on character grounds pursuant to s 501(3A) of the Migration Act 1958 (Cth) – where primary judge dismissed application for judicial review of Administrative Appeals Tribunal’s decision – where Tribunal affirmed Minister’s delegate’s decision not to revoke visa cancellation under s 501CA(4) – whether primary judge erred in findings regarding the Tribunal’s reliance on an International Treaties Obligation Assessment – no jurisdictional error demonstrated – where appellant sought to raise additional grounds not contained in grounds of appeal – leave refused – appeal dismissed
Legislation: Migration Act 1958 (Cth) ss 366D, 499, 501, 501(3A), 501(6), 501(7), 501CA(4), 501CA(4)(b)(ii)
Date of hearing: 7 August 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 71
Counsel for the Appellant: Mr R Abbas
Solicitor for the Appellant: R&J Lawyers Pty Ltd
Counsel for the First Respondent: Mr A Markus
Solicitor for the First Respondent: Australian Government Solicitor

ORDERS

NSD 731 of 2018
BETWEEN:

QSVS

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGES:

COLLIER, BARKER AND DAVIES JJ

DATE OF ORDER:

9 AUGUST 2018

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent, to be assessed if not agreed.

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


REASONS FOR JUDGMENT

THE COURT:

  1. The appellant appeals from a judgment and orders of a judge of this Court dismissing his application for judicial review of a decision of the Administrative Appeals Tribunal made 18 December 2017.  See QSVS v Minister for Home Affairs [2018] FCA 524.

  2. By its decision, the Tribunal affirmed the decision made by a delegate of the Minister for Home Affairs made 22 September 2017 under s 501CA(4) of the Migration Act 1958 (Cth), refusing to revoke the mandatory cancellation of the appellant’s protection (class XA) visa which decision was made under s 501(3A) of the Act by another delegate of the Minister on 27 April 2016.

    FACTUAL BACKGROUND

  3. The circumstances in which the appeal arises are as follows.

  4. The appellant is a citizen of Nigeria, born in 1974.   He has two wives, seven children and one step daughter.

  5. On 17 June 2005, the appellant was convicted of trafficking 360 grams of a Class A drug (cocaine) to England and sentenced to five years’ imprisonment in the United Kingdom (UK). He was deported to Nigeria on 2 June 2007.

  6. On 26 May 2009, the appellant arrived in Australia with one of his wives and six of his seven children on tourist (subclass 676) visas.

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Details
Case
[2018] FCAFC 124
Decision Date

CaseChat Overview and Summary

In QSVS v Minister for Home Affairs, the appellant, a person with a substantial criminal record, challenged the cancellation of his protection (class XA) visa on character grounds under section 501(3A) of the Migration Act 1958 (Cth). The Federal Circuit and Family Court of Australia dismissed the appellant's application for judicial review of the Administrative Appeals Tribunal's decision to affirm the Minister's delegate's decision not to revoke the visa cancellation under section 501CA(4) of the Act. The central legal issue was whether the primary judge erred in his findings concerning the Tribunal's reliance on an International Treaties Obligation Assessment when affirming the Minister's decision. The appellant argued that the Tribunal failed to consider all the integers of his claims, particularly the best interests of his children and potential hardship if returned to Nigeria, and that he was denied procedural fairness due to the lack of an interpreter during the Tribunal hearing.

The court held that the primary judge did not err in his assessment of the Tribunal's decision. The Tribunal had considered the primary considerations outlined in Direction No 65, including the protection of the Australian community and the best interests of the appellant's children, and found that the best interests of the children would be served by revoking the visa cancellation decision, but the other primary considerations strongly favoured affirming the decision. The court further found that the Tribunal adequately considered the appellant's likelihood of reoffending, and that the appellant's claim of procedural unfairness due to the lack of an interpreter was without merit. The court also refused to allow the appellant to raise new grounds of appeal that were not presented to the primary judge, including the contention that the Tribunal breached section 366D of the Act by allowing cross-examination of the appellant.

The appeal was dismissed, and the appellant was ordered to pay the costs of the first respondent, to be assessed if not agreed. This ruling underscores the importance of adhering to procedural fairness and the necessity for all grounds of appeal to be raised at the earliest opportunity in judicial review proceedings.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the costs of the first respondent, to be assessed if not agreed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Any cancellation decision made under s 501(3A) of the Act may be revoked pursuant to s 501CA(4) of the Act, which provides:(4) The Minister may revoke the original decision if:(a) the person makes representations in accordance with the invitation; and(b) the Minister is satisfied:(i) that the person passes the character test (as defined by section 501); or(ii) that there is another reason why the original decision should be revoked.THE TRIBUNAL’S DECISION It was not in dispute before the Tribunal that the appellant had a “substantial criminal record” for the purposes of s 501. As a result, the question was whether, under s 501CA(4)(b)(ii), the Tribunal could be satisfied that there is another reason why the original decision should be revoked. In considering that issue, the Tribunal had regard to Direction No 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65), which was made under s 499 of the Act on 22 December 2014. The Tribunal noted, at [18] of its decision record, that, under Part C of Direction 65, the primary considerations it had to have regard to were:·protection of the Australian community from criminal or other serious conduct;·the best interests of minor children in Australia;·expectations of the Australian community. The Tribunal proceeded to deal with the primary considerations at [21]-[28], [29]-[39] and [40]-[41], respectively, finding that while the best interests of all of the appellant’s children in Australia would be served by the revocation of the decision to cancel the appellant’s visa, the other two primary considerations strongly favoured the decision under review being affirmed. In particular, at [28] of its decision record, the Tribunal said the appellant was not deterred from his first sentence of imprisonment from engaging in further similar conduct in Australia. The Tribunal said it was satisfied that the appellant represented a high risk of committing further offences, which were likely to be of similar seriousness, although other offences could be involved. It said these considerations weighed heavily against the appellant. The Tribunal then turned to “other considerations”, relevantly including any non-refoulement obligations that may be owed to the appellant, and the extent of any impediments which the appellant may face if moved to Nigeria: at [43]-[46] and [49], respectively. In substance accepting the outcome of the ITOA, the Tribunal concluded that these considerations did not assist the appellant.THE PRIMARY JUDGE’S REASONS On the judicial review application before the primary judge, two grounds of review were advanced. The first ground alleged that the Tribunal failed to consider all the integers of the appellant’s claims in that it failed to give any, or any real, consideration to the best interests of the appellant’s children, and/or whether the appellant would face hardship, prejudice or other difficulty if he were returned to Nigeria. The second ground alleged that the appellant was denied procedural fairness in that he sought the assistance of an interpreter, but the Tribunal “insisted on proceeding without an interpreter”.

Ratio Decidendi

Legal Principle Established

Having regard to its merits, leave to raise this ground should now be refused.DID THE PRIMARY JUDGE ERR BY FAILING TO FIND THAT THE TRIBUNAL GAVE NO REAL CONSIDERATION TO THE APPELLANT’S LETTER DATED 15 NOVEMBER 2017 AND ASSESSMENT OF HIS RISK OF REOFFENDING? This was not a ground of review before the primary judge and it does not appear explicitly or implicitly in the grounds of appeal set out in the notice of appeal in this appeal. Leave is required to raise any new ground of appeal not argued below. In the circumstances, the matter not having previously been raised, we would refuse leave to develop this ground. If the appellant had wished to agitate this ground, he should first have done so in the proceedings before the primary judge. We would note, in any event, by reference to [28] of the Tribunal’s decision record to which we have referred above, that the Tribunal expressly dealt with the question of the appellant’s likelihood to reoffend, and found against him in that regard.DID THE PRIMARY JUDGE ERR BY FAILING TO FIND THAT THE APPELLANT WAS DENIED PROCEDURAL FAIRNESS WHEN HE WAS REQUIRED TO PROCEED IN THE TRIBUNAL WITHOUT THE SERVICES OF AN INTERPRETER? This issue also is not a ground of the appeal to this Court and leave to raise it now is required. So far as the merits of this proposed ground are concerned, the primary judge rejected this ground of review for a number of reasons. First, he noted that in his application to the Tribunal dated 28 September 2017, the appellant indicated he did not need an interpreter. Further, the transcript indicated that, in the Tribunal, the appellant said he needed an interpreter but did not wish to use the interpreter who had been provided. He agreed that he spoke adequate English but sometimes has to ask a speaker to slow down. He accepted the proposition put by the Tribunal that the Tribunal should see how far it and the appellant could proceed without an interpreter. The primary judge also observed that the transcript did not show that the appellant had language difficulties. The judge said the entire transcript did not disclose that the appellant did not understand the proceedings. Questions, when not understood, were clarified. The appellant did not say during the course of the hearing that he did not understand the proceedings or that he was handicapped by the fact that English was not his first language. The judge took into account the fact that the appellant was self-represented. We do not consider the judge erred in regarding this ground. Having regard to its merits, leave to raise the ground now should be refused.SECTION 366D OF THE ACT In reply submissions the appellant raised for the first time the contention that the Tribunal, in breach of s 366D of the Act, allowed cross‑examination of the appellant. The contention has no merit and leave to rely on this contention as a new ground is also refused.CONCLUSION AND ORDERS For the reasons we have given above, the appeal should be dismissed.