Rascovici v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Case [2021] FCA 1191

FEDERAL COURT OF AUSTRALIA

Rascovici v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1191  

Appeal from: Application for an extension of time to appeal: Rascovici and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1640
File number(s): VID 203 of 2021
Judgment of: KERR J
Date of judgment: 21 September 2021
Catchwords: MIGRATION – application for an extension of time to appeal – whether the Tribunal erred in taking previously considered criminal history into account in the sense identified by the High Court in Minister for Immigration and Border Protection v Makasa [2021] HCA 1 – insufficient merit in proposed grounds of appeal – leave for an extension of time refused
Legislation:

Migration Act 1958 (Cth)

Direction No 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA 

Cases cited:

Hunter Valley Developments Pty Ltd (1984) 3 FCR 344

Minster for Immigration and Border Protection v Makasa [2021] HCA 1

Division: General Division
Registry: Victoria
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 45
Date of hearing: 21 September 2021
Counsel for the Applicant: Mr N C Dour
Counsel for the First Respondent: Mr J Barrington
Solicitor for the First Respondent: Sparke Helmore Lawyers

ORDERS

VID 203 of 2021
BETWEEN:

CRISTIAN RASCOVICI

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

KERR J

DATE OF ORDER:

21 SEPTEMBER 2021

THE COURT ORDERS THAT:

1.The Applicant’s application for an extension of time to appeal filed 13 September 2021 be dismissed.

2.The Applicant pay the First Respondent’s costs as agreed or in default of agreement, as assessed.

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


REASONS FOR JUDGMENT
(Revised from the transcript)

KERR J:

  1. Cristian Rascovici (the Applicant) is a citizen of Romania. He came to Australia in 2006 at the age of 25 as the spouse of an Australian citizen. They had been married three years earlier. His wife sponsored his migration to Australia.

  2. Unfortunately not long after the Applicant’s arrival he began to acquire a not-insignificant criminal history.

  3. In 2013 a delegate of the Minister gave formal consideration to whether a partner visa the Applicant was then seeking should be refused on character grounds. It is common ground that the delegate of the Minister who had responsibility for that decision was persuaded not to adopt that course. Instead the Applicant was granted the visa he was seeking. However, it is uncontentious that on 6 March 2014 in notifying the Applicant of that decision, the delegate advised Mr Rascovici as follows:

    9.…On this occasion, a delegate of the Minister has decided not to exercise their discretion to refuse your visa application under subsection 501(1) of the Act. However you are warned that if you engage in any further conduct that might bring you within…

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Details
AGLC
Rascovici v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1191
Case
[2021] FCA 1191
Decision Date

CaseChat Overview and Summary

In the case of Rascovici v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the applicant, Mr Rascovici, sought an extension of time to appeal a decision of the Administrative Appeals Tribunal (the Tribunal) that had affirmed the decision of a delegate of the Minister not to revoke the cancellation of the Applicant's visa under section 501CA of the Migration Act 1958 (Cth). The Applicant's visa had been cancelled based on his failure to pass the character test, specifically due to his criminal history. The Tribunal had taken into account the Applicant's criminal history from 2006 to 2014, which had already been considered by the Minister in a previous decision under section 501(1) of the Act. The central legal issue in the case was whether the Tribunal erred in taking into account the Applicant's prior criminal history in assessing the risk he posed to the Australian community. The Applicant argued that the Tribunal should not have considered his earlier criminal conduct because it had already been the subject of a decision under section 501(1) of the Act, which had resulted in a decision not to refuse to grant him a visa.

The Federal Court considered the principles established by the High Court in Minister for Immigration and Border Protection v Makasa, which held that a decision-maker cannot revisit the same circumstances that were considered in a previous decision. The Court found that the Tribunal's consideration of the Applicant's criminal history from 2006 to 2014 was erroneous as it had already been the subject of a decision under section 501(1) of the Act. The Court concluded that the Tribunal had asked itself the wrong question by considering these prior criminal matters in the context of a cancellation decision under section 501CA of the Act. Additionally, the Court noted that the Applicant's proposed grounds of appeal lacked sufficient merit, as the error identified did not change the outcome of the decision. Consequently, the Court dismissed the Applicant's application for an extension of time to appeal and ordered the Applicant to pay the Minister's costs.

Orders

Orders of the court

1. The Applicant’s application for an extension of time to appeal filed 13 September 2021 be dismissed.

2. The Applicant pay the First Respondent’s costs as agreed or in default of agreement, as assessed.

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

That submission is developed in Mr Dour’s written submissions at [31]–[41] as follows:31. The Applicant was given a ‘warning’ about his conduct in 2014. As such, a decision was made under s 501(1) of the Act by a delegate of the First Respondent not to refuse to grant a visa based on the Applicant’s character as at that time (the s 501(1) decision). 32. The s 501(1) decision would fall, it is submitted, within what the High Court described as the ‘second stage’ of analysis of s 501, having regard to the Applicant’s criminal history between 2006 and 2014 and the natural meaning of a ‘warning’, after having determined the first stage of a reasonable suspicion that the visa holder does not pass the character test. 33. The consequence of the s 501(1) decision, it is submitted, is that for the purposes of s 501 of the Act the exercise of power has been spent in respect of the Applicant’s previous criminal history between 2006 and 2014 and is subject to the Minister making a decision under s 501A. It is submitted that those facts cannot be subject to a re-exercise of power in assessing whether to cancel or revoke a cancellation of a visa under s 501CA of the Act. The High Court held that s 501A of the Act must be read as manifesting a legislative intention to exclude re-exercise by the Minister or a delegate of the more general power conferred by s 501(2) of the Act, similarly 501A must be read as manifesting a legislative intention to exclude re-exercise by the Minister or a delegate of s 501(1) of the Act by way of s 501CA of the Act. 34. Derrington J had occasion to consider the effect of Makasa on subsequent facts taken into account by a decision maker in Zyambo. His Honour interpreted Makasa such that new matters, taken with some or all of prior circumstances, could give rise to a new foundation for the exercise of power, but the Minister may not rely on precisely the same circumstances on the second occasion.35. However, Burley J declined to follow Zyambo in the case XLJR. Burley J held that regard was required to be had to the underlying policy and purpose of the different sections of the Act and that the power conferred by s 501(3A) cannot be re-exercised in respect of a conviction after a decision has been made to exercise the power by reference to that same conviction. The decision is subject to a notice of appeal. 36. Middleton J decided not to express a view as to which of Zyambo or XJLR was to be preferred as it was unnecessary for his Honour to deal with the issue in the case of PYDZ.37. It is submitted that the approach of Burley J should be preferred. Considerations of policy and purpose are even stronger where a power was exercised in favour of an applicant not to refuse a visa having regard to his previous criminal conduct but then subsequently be able to rely on those matters to decided not to revoke the cancellation of that visa. Whatever might be the motive behind the ‘warning’, as a matter of the law the consequence of the exercise of discretion under s 501(1) is to spend the power in respect of consideration of matters underlying its exercise. 38. Further, Zyambo was a case where the prior circumstances where used as a basis for cancellation but in each case that cancellation was revoked (not by the Tribunal). That is very different to a positive decision not to refuse the visa pursuant to s 501(1) having regard to the merits weighing against the exercise of discretion to refuse the visa. 39. As was stated by Dowsett J in Minister for Immigration and Multicultural and Indigenous Affairs v Watson: “Similarly, if a decision to refrain from cancelling a visa could be revisited, the visa-holder would, notwithstanding such favourable determination, remain at risk of future cancellation upon the same factual basis as grounded the original decision. That would be an unsatisfactory basis for continued residence in this country. Neither outcome is consistent with the strict regulatory regime established by the Act. If it were possible to limit the time within which, or the circumstances in which, a decision might be revisited, the position might be otherwise. However, as far as I can see, there is no way of doing so.” 40. The Court in Watson held that the Minister does not have power to revoke a decision under s 501(1) of the Act. The Tribunal cannot do indirectly what the Minister cannot do directly. Thus the Tribunal cannot take into account factors which did not cause the exercise of discretion to refuse to grant the visa as a basis for subsequently cancelling a visa. 41. The Tribunal’s decision is manifest with consideration of the Applicant’s criminal history between 2006 and 2014. This is apparent in its summary of the Applicant’s offences (CB964 [48]) and in assessing the Applicant’s likelihood of reoffending having regard to the protection of the Australian community. The Tribunal has therefore committed an error of law in asking itself the wrong question and that error is material.(footnotes omitted)

Ratio Decidendi

Legal Principle Established

On 1 May 2019 the Applicant was notified that his visa had been cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) based on his alleged failure to pass the character test. The terms of that notice did not advert to his earlier offending: it relied exclusively on the offending the Applicant had been convicted of in 2019 which it referred to in the following terms:On 29 March 2019 you were convicted of Burglary (4 counts), Theft (4 counts), Obtain Property By Deception (24 counts), Deal Property Suspected Proceed of Crime, Aggravated Burglary – Person Present, Theft-From Shop (Shopsteal), Handle Stolen Goods (Course of Conduct), Theft of a Motor Vehicle (2 counts), Possess Controlled Weapon Without Excuse (4 counts), and Possesss GHB, Possess Drug of Dependence (not named) and sentenced to an aggregate terms of 20 months imprisonment. The Applicant was advised that he was entitled to make representations seeking revocation of the cancellation decision on one of two basis; that he did pass the character test, or alternatively that there was another reason why the original decision should nonetheless be revoked. The Applicant has not and has never sought to contest that he passes the character test. Instead he advanced representations as to why it might be concluded that “another reason” for the revocation of the cancellation decision was available. On 13 March 2020, having considered the Applicant’s representations, a delegate of the Minister decided not to revoke the original decision. The Applicant, as he was entitled, thereupon applied for a review of that decision in the Administrative Appeals Tribunal (the Tribunal). Following a hearing at which the Applicant and the Minister were each legally represented, the Tribunal delivered reasons explaining why it had decided to affirm the decision under review on 4 June 2020. The Applicant did not take timely steps in the aftermath of that decision as would have permitted him to seek judicial review of the Tribunal’s decision as of right. Instead, some nine months later, on 22 April 2021, the Applicant filed an affidavit in which he deposed to the effect that want of funds and resources, his lack of access to legal advice, his limited computer and internet skills, and poor English had meant that he had not earlier understood that he might have grounds for an appeal. However, more recently, having had the assistance of a fellow detainee he had become of the understanding that the decision of the High Court in Minster for Immigration and Border Protection v Makasa [2021] HCA 1 (Makasa) meant that the Tribunal had made several serious errors. Those errors had caused him to suffer a miscarriage of justice. On 13 September 2021, now represented by pro-bono counsel, the Applicant filed an amended application for an extension of time to appeal. In his amended application he gave notice of the two grounds he proposed to advance in the appeal. Those are as follows:1. The First Respondent, by its delegate the Second Respondent, committed an error of law in asking itself the wrong question in applying s 501CA of the Migration Act 1958 (Cth) (the Act) by having regard to the Applicant’s criminal history between 2006 and 2014 in the manner in which it did in circumstances where that criminal history was the subject of a decision made by the First Respondent under s 501(1) of the Act such that the Second Respondent erred in taking such previously considered circumstances into account in the sense identified by the High Court in Minister for Immigration and Border Protection v Makasa, [2021] HCA 1. 2. The First Respondent, by its delegate the Second Respondent, committed a jurisdictional error in that it took into account an irrelevant consideration, alternatively, unreasonably and/or illogically considered and placed undue weight on, the authenticity of a letter by one Mr Dejan Culibrk procured by the Applicant’s wife regarding the stability of the Applicant’s work as being of “significant concern” to the Second Respondent in the assessment of the Applicant’s risk to the Australian community in circumstances where the Applicant was not aware of the provenance of the letter and was truthful at the hearing and the Second Respondent was considering the Applicant’s responses against a previous history of criminal conduct which included dishonesty offences.