Shinde v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 670
Federal Circuit and Family Court of Australia
(DIVISION 2)
Shinde v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 670
File number(s): MLG 2903 of 2021
MLG 328 of 2022Judgment of: DEPUTY CHIEF JUDGE MERCURI Date of judgment: 19 August 2022 Catchwords: MIGRATION LAW – related applications for judicial review – decisions of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs under sections 133C and 133F of the Migration Act 1958 (Cth) – where the Minister found that the applicant was a risk to the health or safety of an individual or individuals – allegations that the applicant had engaged in family violence – whether the Minister acted unreasonably in making credit findings in circumstances where that finding was contrary to previous findings made by the Administrative Appeals Tribunal – where the Tribunal, but not the Minister, had the benefit of observing and hearing evidence from the applicant – whether it was unreasonable, or irrational or illogical for the Minister to draw inferences that the applicant caused injuries based on photographs – whether the best interests of the applicant’s children should have been considered by the Minister as part of the ‘public interest’ consideration in section 133C – jurisdictional error established – writ of certiorari issued – order for costs. Legislation: Migration Act 1958 (Cth), ss 116, 133C, 133F, 189, 477
Convention on the Rights of the Child
Migration Regulations 1994, cl 820.221
Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
Aneesv Minister for Immigration and Border Protection [2020] FCAFC 28
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Division: Division 2 General Federal Law Number of paragraphs: 105 Date of last submission/s: 19 July 2022 Date of hearing: 19 July 2022 Place: Melbourne Counsel for the Applicant: Mr A Aleksov Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the Respondent: Mr T Goodwin Solicitor for the Respondent: Australian Government Solicitor ORDERS
MLG 2903 of 2021
MLG 328 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: KARTAVYA HARISHCHANDRA SHINDE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
order made by:
DEPUTY CHIEF JUDGE MERCURI
DATE OF ORDER:
19 August 2022
THE COURT ORDERS BY CONSENT THAT:
1.The applicant’s application in MLG2903/2021 for an order for extension of time pursuant to section 477(2) of the Migration Act 1958 (Cth) be granted.
AND THE COURT FURTHER ORDERS THAT:
2.The decision of the Minister made on 14 April 2021 be quashed.
3.The Minister pay the applicant’s costs in a sum to be fixed if not agreed.
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
DEPUTY CHIEF JUDGE MERCURI:
Introduction
Before the court are two applications brought by the applicant for judicial review. At the joint request of the parties, these applications were heard together.
In MLG2903/2021, the applicant seeks judicial review of the respondent’s decision dated 14 April 2021 to cancel the applicant’s Bridging B (subclass 020) visa (‘subclass 020 visa’) pursuant to section 133C(3) of the Migration Act 1958 (Cth) (‘the Act’) (‘cancellation decision’).
In MLG328/2022, the applicant seeks judicial review of the respondent’s decision dated 17 December 2021, pursuant to section 133F(4) of the Act, not to revoke the cancellation decision (‘non-revocation decision’).
The applicant filed his application for judicial review of the cancellation decision 117 days out of time and sought an extension of time in relation to that application. The respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’), consented to that extension of time being granted.
Background
There is a long procedural history to this matter.
The applicant is a citizen of India. On 19 May 2018, he married an Australian citizen and the applicant and his wife now have two children. The older child was born on 3 January 2019 and the younger child was born on 18 September 2020.
On 13 December 2018, the applicant applied for a Partner (subclass 820/801) visa, which was supported by his wife.[1] On 16 December 2019, the applicant was granted a Bridging (subclass 020) visa.[2]
[1] Affidavit of Ms Carina Ford filed on 15 February 2022 at paragraph [2].
[2] Affidavit of Ms Carina Ford filed on 15 February 2022 at paragraph [3].
On 29 January 2020, the applicant departed Australia for India with his mother and his older child.[3] The applicant’s wife remained in Australia at that time, pregnant with their younger child. The applicant’s wife then joined him in India on or around 16 February 2020.[4]
[3] Affidavit of Ms Carina Ford filed on 15 February 2022 at paragraph [4].
[4] Affidavit of Ms Carina Ford filed on 15 February 2022 at paragraph [5].
The applicant’s wife and older child then departed India, returning to Australia on or around 2 March 2020.[5]
[5] Affidavit of Ms Carina Ford filed on 15 February 2022 at paragraph [6].
It is not in dispute that the applicant’s wife suffered injuries in late February 2020 whilst in India and just prior to her return to Australia, although the central factual issue in dispute is the source of those injuries. It is also common ground that the applicant’s wife attended upon a hospital in India shortly after sustaining these injuries and received treatment, including stitches to a number of wounds. The applicant’s wife asserts that these injuries were caused by the applicant. The applicant denies this and asserts that the injuries were self-inflicted.
Upon arrival at Melbourne airport, the applicant’s wife was interviewed by the Australian Federal Police.[6] The applicant’s wife told the police that the applicant had stabbed her whilst in India.
[6] Minister’s decision record dated 14 April 2021 at page 46 of the court book, paragraph [7].
Shortly thereafter, on 5 March 2020, the police made an application for an intervention order on behalf of the applicant’s wife and child against the applicant. An application was also made for an arrest warrant in the event that the applicant returned to Australia, which was granted.
On 12 March 2020, the applicant returned to Australia from India.[7] Upon his arrival at Melbourne Airport, he was served with the arrest warrant and the application for the intervention order.[8] He was also issued with a Notice of Intention to Consider Cancellation (‘NOICC’) of his subclass 020 visa in reliance upon section 116(1)(e)(ii) of the Act. Later that day, a delegate of the Minister cancelled the applicant’s subclass 020 visa and he was detained under section 189(1) of the Act.
[7] Affidavit of Ms Carina Ford filed on 15 February 2022 at paragraph [8].
[8] Minister’s decision record dated 14 April 2021 at page 46 of the court book, paragraph [7].
On 13 March 2020, the applicant made an application for judicial review of the delegate’s decision of 12 March 2020, cancelling his subclass 020 visa. An injunction was granted in the Federal Court preventing the applicant’s removal from Australia and on 9 July 2020, her Honour Judge Riley made orders setting aside the cancellation decision of 12 March 2020, with the respondent to pay the applicant’s costs in a fixed sum.[9]
[9] Shinde v Minister for Immigration [2020] FCCA 1873.
Later on 9 July 2020, the applicant, who was still in detention at the time, was provided with another NOICC in respect to his subclass 020 visa. His subclass 020 visa was then again cancelled on the same day by a delegate of the Minister under section 116(1)(e)(ii) of the Act (‘July 2020 cancellation decision’).[10]
[10] Affidavit of Ms Carina Ford filed on 15 February 2022 at paragraph [12].
The applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the July 2020 cancellation decision.
On 3 August 2020, by its decision, the Tribunal set aside the July 2020 cancellation decision and substituted it with the decision to not cancel the applicant’s subclass 020 visa (‘Tribunal decision’).[11] Following the Tribunal’s decision, the applicant was released from immigration detention.[12]
[11] Affidavit of Ms Carina Ford filed on 15 February 2022 at paragraph [14].
[12] Minister’s decision record dated 14 April 2021 at page 38 of the court book, paragraph [17].
On 4 September 2020, the Department of Home Affairs (‘Department’) wrote to the applicant regarding his application for a partner (Temporary) (class UK) (subclass 820) visa.[13] He was advised that the Department had received unfavourable information which did not support his visa application. Relevantly, he was advised that the Department had received information that he currently had two family violence interim intervention orders (‘IVO’) against him, with his sponsor and child being the protected persons in each case. He was further advised that as a result, he may not satisfy the requirements of clause 820.221(3) of the Migration Regulations 1994.
[13] Court book at page 245.
Relevantly, by that correspondence, the applicant was invited to provide comment in relation to that information before a decision would be made in relation to his application.
Current proceedings in this court
Cancellation of subclass 020 visa on 14 April 2021
On 14 April 2021, the Minister intervened and personally cancelled the applicant’s subclass 020 visa under section 133C(3) of the Act, which is the decision subject of the proceedings in MLG2903/2021.[14] The applicant was not notified of the Minister’s cancellation of his visa until 11 June 2021, almost two months later.[15] The applicant was then detained under section 189(1) of the Act and has been in immigration detention in Melbourne since this date.
[14] Affidavit of Ms Carina Ford filed on 15 February 2022 at paragraph [15].
[15] Affidavit of Ms Carina Ford filed on 15 February 2022 at paragraph [16].
In the Minister’s decision record of his April 2021 cancellation decision, he noted at paragraph [5] that he had considered the Victorian Family Violence Protection Act 2008, and in particular, the definition of family violence in that legislation. At paragraph [6] he said:
6.I consider that any behaviour towards a family member that constitutes family violence represents a risk to the safety of the individual who is the victim of the violence. I therefore consider, that where a person has been found to engage in conduct classified as family violence, their presence in Australia may be, or might be, a risk to the safety of an individual.
In relation to the incidents in India, the Minister then said he considered the allegations of family violence as outlined in the Tribunal decision. It therefore appears that the Minister had the Tribunal decision before him. The Minister also said at paragraph [8] of his decision that he had considered the applicant’s response to those allegations.
At paragraph [9], the Minister then went on to say:
9.I consider that the version of events varies significantly between Mr Shinde and [the applicant’s wife]. I accept that there is sufficient information and evidence that [the applicant’s wife] suffered injuries resulting in her hospitalisation. I have considered the nature, location and severity of the injuries sustained by [the applicant’s wife] were likely the result of another individual and not self-inflicted. I accept that no charges were laid against Mr Shinde by Indian officials, however I do not consider that this means Mr Shinde did not commit family violence. I do not accept Mr Shinde’s recollection of events and find that there is a high probability that the events in India occurred as described by [the applicant’s wife].
The Minister then sets out the further information to which he had regard at paragraphs [10] to [11], including the fact that interim family violence intervention orders were granted in Australia for the protection of the applicant’s wife and statements had been made by the police officer who supported the mother in obtaining an IVO and a statement by an Advanced Child Protection Practitioner from the Department of Health and Human Services.
At paragraph [12], the Minister then said:
12.I consider the above evidence, from external impartial agencies further supports [the applicant’s wife’s] version of events that Mr Shinde has physically harmed her resulting in her injuries and subsequent hospitalisation and that Australian authorities considered Mr Shinde posed a risk to her safety, such that he should be prevented from committing family violence against her, contacting or communicating with her.
The Minister then concluded at paragraph [13]:
13.Having considered all of the above information, I have concluded that Mr Shinde’s conduct constitutes family violence representing a risk to the safety of [the applicant’s wife] and her children, causing significant physical and psychological harm. It follows, I am satisfied that Mr Shinde’s presence in Australia is or may be, or would or might be, a risk to: the health or safety of individuals, namely [the applicant’s wife] and her children.
The Minister then went on to consider the public interest requirements at paragraphs [14] to [19], concluding that he was satisfied that it was in the public interest to cancel the applicant’s visa insofar as doing so is consistent with the government’s priorities as outlined in the National Plan to Reduce Violence Against Women and their Children 2010-2021 (‘National Plan’).
At paragraph [15] of his decision record, the Minister outlined the principles of the National Plan. Having determined that the applicant had engaged in various forms of family violence, the Minister found that it would be in the public interest to cancel the applicant’s visa where such doing so would be consistent with the National Plan and its object of holding perpetrators of family violence to account. At paragraph [18], the Minister further determined that it would be in the public interest to cancel the applicant’s visa, insofar as this would be consistent with the public’s expectation that a person who has failed to follow the law should cease to have the privilege of holding a visa and remaining in Australia.
At paragraph [20], the Minister recognised that the power to cancel a visa under section 133C(3) of the Act is discretionary and went on to outline the various additional considerations which he took into account, both in favour of, and weighing against, exercising his discretion to cancel the applicant’s visa. Those considerations are set out in detail at paragraphs [21] to [54] of the Minister’s reasons.
Of particular relevance, at paragraphs [27] to [39], the Minister gave consideration to the best interests of the applicant’s children and concluded that this factor weighed to some degree towards a decision not to cancel the applicant’s visa. Ultimately, the Minister concluded, however, that whilst there were some factors which weighed against the cancellation of the applicant’s visa, he was ‘not satisfied that these factors outweigh Mr Shinde’s behaviour towards his partner and the acts of family violence he has committed and the significant risk that Mr Shinde poses to the safety of individuals, [the applicant’s wife] and her daughters’.[16]
[16] Minister’s decision record dated 14 April 2021 at page 55 of the court book, paragraph [55].
The Minister therefore cancelled the applicant’s visa under section 133C(3).[17]
[17] Minister’s decision record dated 14 April 2021 at page 56 of the court book, paragraph [57].
As noted, on 11 June 2021, the applicant was provided with a ‘Notice of visa cancellation under section 133C(3) of the Migration Act 1958 and Invitation to make representations regarding the revocation of the cancellation decision’.[18] The applicant was invited to make any representation that he wished to make in relation to the possible revocation of the cancellation decision, within the specified time frame.
[18] Court book at page 57.
Applicant’s submissions dated 9 July 2021, 12 July 2021 and 23 August 2021
On 9 July 2021, the applicant, through his legal representative, filed written submissions in support of his request for a revocation of the cancellation decision.[19] In those submissions, among other things, the applicant’s representative submitted that the evidence before the Minister did not support a conclusion that the applicant had engaged in family violence. This is particularly so, it was submitted, in circumstances where the applicant denied that he had engaged in family violence as alleged and that the IVOs were made on the basis of his consent without admission.[20]
[19] Court book at page 256 and following.
[20] Court book at page 262 at paragraph [25] and following.
The applicant’s representative also submitted, among other things, that it was not possible for the applicant to prove that the allegations of family violence are false in circumstances where no charges have been laid against him in respect of those matters, either in India or in Australia.[21]
[21] Court book at page 264 at paragraph [35] and following.
Moreover, it was submitted for the applicant that he has initiated proceedings under the Family Law Act 1975 (Cth) in which he seeks parenting orders permitting him to spend time with his children and the issue of whether the applicant is a ‘risk’ to the health and safety of his former wife and children remains a live issue in those proceedings.[22] In circumstances where no court has made a finding that the applicant poses a risk to the children and/or their mother it would not be in the children’s best interests for the applicant’s visa to be/remain cancelled. In support of this last point, the applicant’s representative points to and relies upon the Convention on the Rights of the Child.
[22] Court book at page 266 at paragraph [47] and following; court book at page 269 at paragraph [63] and following.
The applicant, through his representative also claims that it was unsafe for the Minister to base his decision on the untested claims by the applicant’s wife in circumstances where she had communicated with the applicant via the WhatsApp messaging system, in which she had threatened to undermine the applicant’s visa, among other things, if he did not book a return flight to Australia immediately.[23]
[23] Court book at page 269 at paragraph [66] and following.
For each of these reasons, it was submitted for the applicant that the grounds for cancellation simply did not exist.[24]
[24] Court book at page 270 at paragraph [70] and following.
On 12 July 2021 and 23 August 2021, the applicant’s representative provided further statements in support of the applicant’s application for a revocation of the cancellation decision.[25]
[25] Court book at pages 277 to 283.
On 10 November 2021, the applicant filed an application for extension of time in which to seek judicial review of the Minister’s cancellation decision in this court, having filed 117 days out of time. As stated, the Minister has consented to this application being filed out of time.
On 17 December 2021, the Minister decided not to revoke the cancellation decision under section 133F(4) of the Act, and that decision was notified to the applicant on 17 January 2022.
Non-revocation of cancellation decision on 17 December 2021
Although not required to provide written reasons, the Minister did provide a statement of reasons for his decision not to revoke the cancellation of the applicant’s bridging visa.[26]
[26] Court book at pages 299 to 307.
The Minister was satisfied that the applicant had made representations in accordance with the invitation that was issued to him on 11 June 2021.[27] The Minister then turned to consider whether a ground for cancellation, namely, the ground in section 116(1)(e)(ii) of the Act, exists.
[27] Minister’s decision record dated 17 December 2021 at paragraph [9].
In the Minister’s reasons for the non-revocation decision, at paragraph [10] and following, the Minister said:
10.I have considered the Victorian Family Violence Protection Act 2008, which defines family violence as behaviour by a person towards a family member of that person if that behaviour is physically or sexually abusive; … or in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person. The following behaviour may constitute family violence …
11.I consider that any behaviour towards a family member that constitutes family violence represents a risk to the safety of the individual who is the victim of the violence. I therefore consider, that where a person has been found to engage in conduct classified as family violence, their presence in Australia may be, or might be, a risk to the safety of an individual.
At paragraph [15] and following of the Minister’s statement of reasons, he addresses the events in India. Relevantly, he said:
15.… I considered that the version of events varied significantly between Mr Shinde and [the applicant’s wife]. I did not accept Mr Shinde’s recollection of event’s (sic) and found that I was satisfied the events in India occurred as described by [the applicant’s wife].
The Minister then sets out the evidence provided by various witnesses in support of the applicant’s case that he did not engage in the conduct alleged in India.
Relevantly, at paragraph [17], the Minister then goes on to say:
17.I accepted in my 14 April 2021 cancellation decision that no charges were laid against Mr Shinde by Indian officials … I consider that the information before the Department including photographs of the injuries sustained by [the applicant’s wife] continues to indicate there is a high probability that the events in India occurred as described by [the applicant’s wife] and Mr Shinde has committed acts of family violence and poses a risk to [the applicant’s wife] and her children.
Further, at paragraph [18], the Minister acknowledges that there are no criminal charges or convictions in Australia or India against the applicant. However, he goes on to say that this is not determinative and ‘where there is information a visa holder has likely committed acts of family violence, the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals. I do not accept that this requires an individual to have a criminal charge or conviction’.
At paragraph [19], the Minister went on to say that he did not consider that ‘the injuries [the applicant’s wife] sustained were self-inflicted. … I continue to be satisfied that the injuries [the applicant’s wife] sustained were likely the result of another individual and not self-inflicted and Mr Shinde committed family violence’.
At paragraph [32], the Minister maintained his previous finding that the injuries sustained by the applicant’s wife were not self-inflicted and were instead likely caused by the applicant’s acts of family violence. In reaching this conclusion, the Minister emphasised the significance of the FVIO in place, as well as the evidence from ‘external sources’ which indicated that the applicant had no understanding of the impact of domestic violence and was a risk to his wife and children.
The Minister was ultimately satisfied that the ground for cancellation of the applicant’s visa under section 116(1)(e)(ii) of the Act existed, and on this basis, declined to revoke his previous cancellation decision of 14 April 2021.[28]
[28] Minister’s decision record dated 17 December 2021 at paragraph [37].
Statutory context
Before I address each of the grounds of review, I will briefly address the statutory context in which the Minister’s decisions were made.
Cancellation decision
As noted, the cancellation decision of 14 April 2021 was made by the Minister under section 133C(3) of the Act. Relevantly, this provision provides:
133C Minister’s personal powers to cancel visas on section 116 grounds
(3) The Minister may cancel a visa held by a person if:
(a)the Minister is satisfied that a ground for cancelling the visa under section 116 exists; and
(b)the Minister is satisfied that it would be in the public interest to cancel the visa.
Moreover, section 133C(4) of the Act states that ‘the rules of natural justice, and the procedures set out in Subdivisions E and F, do not apply to a decision under subsection (3)’.
The Minister’s cancellation decision was purportedly made in reliance upon section 116(1)(e)(ii) of the Act, namely, that he considered that the applicant’s presence in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals.
Non-revocation decision
The Minister’s non-revocation decision of 17 December 2021 was made under section 133F(4) of the Act. Relevantly, that section provides:
133FCancellation under subsection 133A(3) or 133C(3) - Minister may revoke cancellation in certain circumstances
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the person satisfies the Minister that the ground for cancelling the visa referred to in subsection 133A(3) or 133C(3) (as the case requires) does not exist.
The Full Court of the Federal Court has recently considered the principles which apply to an application for judicial review of a decision of the Minister under section 133C of the Act in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1 (‘Djokovic’). As noted by the Full Court of the Federal Court at paragraph [20] of that decision, the issue on judicial review is not the fact of whether the applicant is a risk to the health and safety of a person in this case, but the state of satisfaction of that fact for the purposes of section 133C(3). Relevantly, at paragraph [21], the Full Court went on to say:
21.The satisfaction of the Minister is not an unreviewable personal state of mind. The law is clear as to what is required. If, upon review by a court, the satisfaction is found to have been reached unreasonably or was not capable of having been reached on proper material or lawful grounds, it will be taken not to be a lawful satisfaction for the purpose of the statute. … That is, the lawful satisfaction is a jurisdictional precondition, a form of jurisdictional fact, for the exercise of the power or discretion.
Further, at paragraph [27], the Full Court noted:
27.Justice Gummow in Eshtu, after referring to Gibbs J in Buck v Bavone, said the following at [137]:
… where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question.
And at paragraph [29], the Full Court further noted:
29.As a statutory jurisdictional condition or jurisdictional fact … the satisfaction that the presence of a visa holder may for the purposes of s 116(1)(e) be a relevant risk must be reached on a legally reasonable basis and the discretionary power exercised in accordance with legal reasonableness.
Importantly, at paragraph [34], the Full Court, after noting that not all lapses in logic or reasonableness will result in a finding of jurisdictional error, stated:
34.… As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.
No issue is taken with the general statement of the law as contained in Djokovic. The issue is the application of the statements of principles to the facts in this case.
Proposed orders
The applicant primarily seeks orders that the cancellation decision be quashed with costs. In the alternative, the applicant seeks that the non-revocation decision be quashed with costs.
The Minister seeks orders that both applications for judicial review be dismissed with costs.
Grounds of review
Cancellation decision
By his amended application filed on 22 July 2022, the applicant raises three grounds of review with respect of the cancellation decision (MLG2903/2021), namely:
3. The Minister acted unreasonably in making findings going to credit to the opposite of the Administrative Appeals Tribunal, in circumstances where he was at a disadvantage to the Tribunal. Given this was strictly a set aside decision (set aside and cancel), ABT17 seems to apply.
3A. The Minister relied on the photographs of the complainant’s wounds in a manner which was not lawfully open having regard to the limited probative value of those photographs.
5. The Minister wrongly failed to consider the Part C matters on the “public interest”, given they obviously bore on that question (applying Anees [2020] FCAFC 28).
Non-revocation decision
By his amended application filed on 22 July 2022, the applicant raises two grounds of review with respect of the non-revocation decision (MLG328/2022):
1. The Minister acted unreasonably in making findings going to credit to the opposite of the Administrative Appeals Tribunal, in circumstances where he was at a disadvantage to the Tribunal. Given this was strictly a set aside decision (set aside and cancel), ABT17 seems to apply.
3A. The Minister relied on the photographs of the complainant’s wounds in a manner which was not lawfully open having regard to the limited probative value of those photographs.
Cancellation decision
First ground
The first ground in both the MLG2903/2021 and in MLG328/2022 raise the same complaint, namely that the Minister acted unreasonably in making findings as to credit in circumstances where that finding was contrary to the findings made by the Tribunal where the Tribunal had the benefit of observing and hearing evidence directly from the applicant.
It is common ground that whether a decision has been made within the bounds of legal reasonableness will be determined by reference to the relevant statute, its terms, scope and purpose. The personal power given to the Minister in section 133C(3) is a non-compellable, discretionary power. It is also a power that the Minister may exercise without affording the applicant natural justice, although if he does so, the applicant must then be invited to make submissions in relation to the possible revocation of the initial decision, that power being limited to a revocation if satisfied that the grounds for cancellation did not exist.
However, accepting the principles recently confirmed in Djokovic about the nature of the Minister’s power, it nevertheless must be exercised within the bounds of legal reasonableness. In this case, the question of whether the applicant had committed family violence in the February 2020 incident was critical to the determination of whether the grounds for cancellation existed.
In this context, the key issue before the Tribunal was the question of credibility. This is particularly so given the difference between the claims made by the applicant’s wife and the evidence given by the applicant and his supporting witnesses in relation to the circumstances in which the applicant’s wife suffered the various injuries in February 2020.
As is evident from the summary set out above, the Tribunal, with the benefit of hearing directly from the applicant and two of his witnesses, albeit by telephone,[29] accepted the applicant’s evidence and found that the applicant had not engaged in family violence as alleged. It was submitted that in circumstances where the Minister did not have the benefit of directly hearing from the applicant, his conclusion, without further inquiry, that there was a high probability that the applicant had committed family violence was unreasonable in the Li sense.[30]
[29] Tribunal decision record dated 5 August 2020 at paragraph [5].
[30] See Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
In response, the Minister submits that whilst the assessment of credit is a matter in respect of which reasonable minds might differ, the Minister’s conclusions were reasonably open to it and therefore there is no jurisdictional error.
In support of this ground, the applicant relies upon the decision in ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (‘ABT17’). That case involved a review of a delegate’s decision under Part 7AA of the Migration Act by the Immigration Assessment Authority (‘the Authority’). It was held in that case that the Authority had acted unreasonably in rejecting the account given by the applicant on the basis of an audio recorded interview in circumstances where the delegate had had the benefit of not only hearing, but also observing the applicant giving his evidence and had accepted the applicant’s account. The Authority had access to the audio recording of the applicant’s interview with the delegate and made adverse findings based on its assessment of the manner in which the applicant gave evidence.
In the joint judgment of Kiefel CJ, Bell, Gageler and Keane JJ, the plurality observed that in reviewing a referred decision, the Authority is required to perform its review within the bounds of reasonableness. In ABT17, the issue was whether the Authority had acted beyond the bounds of reasonableness in concluding that that applicant’s evidence was not credible on the basis of the audio recording of the applicant’s evidence, in circumstances where the delegate, who had the benefit of hearing and observing the applicant give evidence, concluded that he was credible. This is particularly so where the Authority had concerns about the manner in which the applicant had given his evidence before the delegate.
The court concluded that if the Authority was inclined not to accept the delegate’s conclusion as to credibility, which was open to it, it had ought to have invited the applicant to an interview at which the Authority could observe the applicant and make its own credibility findings. In not doing so, it was held that the Authority had acted unreasonably.
At paragraph [21] of their joint judgment, the plurality said:
21.Answering the question therefore requires an examination of the decision-making pathways reasonably open to the Authority in reviewing the decision of a delegate to determine for itself whether the criteria for the grant of a protection visa have been met where the review material that it is obliged to consider in making that determination leaves out information that was available to and required to be considered by the delegate.
The joint judgment then further notes:
23.To the extent that the credibility of the referred applicant might bear on whether the Authority is to be satisfied that the criteria for the grant of a protection visa have been met and to the extent that his or her appearance in an interview with the delegate might bear on his or her credibility, it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate’s findings of fact and refers to the evidence on which those findings were based. Taking into account any such description or impression of the referred applicant’s appearance, it would ordinarily then be open to the Authority to reach an assessment of the referred applicant’s credibility without any need for the Authority’s assessment of credibility to coincide with the delegate’s assessment of credibility.
24.The Minister is therefore correct to say that the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate.
25.However, the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case.
These comments equally apply to the present matter. I do not accept the Minister’s submission that the different nature of the decision-making process in ABT17 means that the principles on which that decision is based would not equally apply here.[31] There are clearly differences, as ABT17 involved a review under Part 7AA of the Act, whereas the present proceeding involves a decision by the Minister under section 133C(3) of that Act. However, whilst there is no obligation on the Minister to consider whether to exercise his discretion under section 133C, having decided to consider whether to exercise that discretion, the Minister must do so within the bounds of reasonableness.
[31] Respondent’s Written Submissions filed on 13 July 2022 at paragraph [54] and following.
In this case, the central issue is whether the Minister has the requisite state of satisfaction as to the risk posed by the applicant. As noted by the Minister, there is a significant difference between the evidence given by the applicant, and indeed witnesses who were allegedly present at the time of the alleged assault, on the one hand, and the applicant’s wife evidence on the other.
The applicant’s credibility was clearly at issue both before the Tribunal and in the Minister’s consideration as to whether or not the ground in section 116(1)(e)(ii) applies.
In the context of considering a review application, the Tribunal invited the applicant to give evidence and present arguments at a hearing. That hearing, as noted by counsel for the applicant, proceeded over two days.[32] The Tribunal member had the benefit of observing the applicant in the giving of his evidence. Ultimately, having observed the applicant and having heard by telephone the evidence of two of the applicant’s witnesses, the Tribunal said:
38.The Tribunal had the benefit of taking oral evidence from the applicant by video link and from his sister and friend in India by telephone. …
39.The Tribunal spent most of the second hearing examining each of these witnesses. The Tribunal heard the evidence of the applicant first to preserve the integrity of his evidence and then separately heard the evidence of each witness by telephone.
40.The written material provided by each of the witnesses, including the applicant, set out a consistent narrative of the applicant’s wife self-harming on 28 February 2020 and then accusing the applicant, without foundation according to the narrative, of perpetrating family violence against her.
41.The Tribunal closely questioned the applicant and witnesses about what happened in India on 28 and 29 February 2020. In particular, the Tribunal focussed on the narrative threads that were not included in the material provided by the applicant and witnesses and paid careful attention to the spontaneity and consistency of the responses of the applicant and the witnesses in this regard, while making allowances for cultural context and the trauma of the events involved.
42.The Tribunal found the evidence of the applicant and the witnesses in relation to the version of events put forward by the applicant to be spontaneous, credible and consistent and found the totality of their evidence provided a compelling narrative. The Tribunal accepts that evidence in relation to what happened in India on 28 and 29 February 2020 as set out in these reasons.[33] (emphasis added)
[32] Court transcript at page 16.
[33] Tribunal decision record dated 5 August 2020 at paragraphs [38] to [42].
Having reached this conclusion, it went on to find that the ground for cancellation under section 116(1)(e)(ii) of the Act did not arise.
The Minister in this case did not invite the applicant to a hearing at which he could test for himself the credibility of the applicant’s claims. Nor is there any suggestion that the Minister watched or listened to any recording of the applicant’s evidence before the Tribunal in considering the issue of credibility. It is not readily apparent upon what basis the Minister came to a contrary conclusion on this central issue.
I accept that the Minister is not under an obligation to provide reasons for his decision under section 133C of the Act. In this case, however, he has provided written reasons, reasons which are relatively comprehensive. In relation to the question of credibility, the Minister has not explained how he says he reconciled his rejection of the applicant’s credibility in circumstances where he did not have the benefit of seeing him give evidence, either directly or indirectly. The unreasonableness of this is emphasised when regard is had to the fact that the hearing before the Tribunal occurred over the course of two days and in circumstances where it is apparent from the Tribunal’s reasons that it went to such lengths, not only to consider the issue of credit, but also to explain the reasons for concluding that the applicant’s case was ‘spontaneous, credible and consistent’.[34]
[34] Tribunal decision record dated 5 August 2020 at paragraph [42].
In coming to a contrary conclusion, without taking any steps to either hear directly from the applicant, or at the very least, listen to or view the interviews before the Tribunal, the Minister acted in a legally unreasonable manner.
It was also submitted for the Minister that he was ‘entitled to evaluate the material for himself in determining whether a s 116 ground existed ’.[35] I agree with this proposition. However, it is the manner in which the Minister assessed the applicant’s credibility that is of concern in this case, in circumstances where there was material before him about the manner in which the Tribunal had weighed and considered the applicant’s evidence.
[35] Respondent’s Written Submissions filed on 13 July 2022 at paragraph [56].
The position may have been different had the Tribunal not addressed the issue of credibility in as much detail or had the Minister reviewed, at the very least, the transcript of the proceedings before the Tribunal. However, the Minister did not do so.
The Minister’s decision is therefore affected by jurisdictional error.
Second ground
The second ground of review in relation to the cancellation decision is that it was unreasonable, or irrational or illogical for the Minister to draw an inference that the applicant’s wife’s injuries were not self-inflicted based on the photographs at Attachment M of the reasons for decision.[36] Put another way, it is argued that the photographs lack probative value.
[36] Court book at pages 237 and following.
At paragraph [9] of the reasons for the Minister’s cancellation decision, having noted that there was a significant difference between the version of events put forward by the applicant and his wife as to how she sustained injuries on 28 February 2020 in India, the Minister went on to say:
9.… I have considered the nature, location and severity of the injuries sustained by [the applicant’s wife] were likely the result of another individual and not self-inflicted.
The Minister then went on to find that ‘there was a high probability that the events in India occurred as described by [the applicant’s wife]’.
The applicant says that when one looked at the photographs, it was apparent that the injuries suffered by the applicant’s wife could indeed have been self-inflicted when regard is had to the location of each of them.[37] I agree with this submission. The photographs depict wounds which have required stitches. Indeed, some of the wounds required numerous stitches. Whilst it may be said that it was open to the Minister to conclude, having regard to the number and severity (in terms of size) that it is unlikely that they were self-inflicted, and this may well have been a matter in respect of which reasonable minds might differ, the photographs themselves could not have been probative as to the identity of the person who inflicted the wounds.
[37] Applicant’s Written Submissions filed on 30 June 2022 at paragraph [21] and following.
Counsel for the Minister says in response that, in circumstances where the applicant’s version of what occurred in February 2020 was that the applicant’s wife had inflicted the wounds on herself, having come to the view that the wounds were not self-inflicted, it was then open to the Minister to reject the applicant’s account on that basis.[38] I do not accept this submission.
[38] Court transcript at page 36.
The photographs are not probative of the applicant having inflicted the wounds. As submitted for the applicant, at best, the photographs are neutral on the central issue of who caused the injuries suffered by the applicant. They do not, with respect, provide a probative basis for the conclusions reached by the Minister.
For each of these reasons, the second ground of review is also made out.
Third ground
The third ground of review in relation to the cancellation decision asserts that the Minister erred in failing to have regard to the best interests of the children as part of the ‘public interest’ considerations. In support of that ground, the applicant relies upon the decision of the Full Court of the Federal Court in Aneesv Minister for Immigration and Border Protection [2020] FCAFC 28 (‘Anees’).
It is submitted for the applicant that in considering the ‘public interest’ requirement under section 133C(1)(e) of the Act, the Minister should have, but failed to, consider the impact on the applicant’s children if his visa were to be cancelled.[39]
[39] Applicant’s Written Submissions filed on 30 June 2022 at paragraph [25] and following.
It is submitted for the Minister that the reasoning in Anees does not apply to this case on the basis that the analysis in that case was fact specific.[40] Moreover, it was submitted that the interests of the applicant’s children is a personal interest and is not in the nature of a fact relevant to the ‘public interest’ consideration relevant to the exercise of the Minister’s discretion. It was therefore appropriate that these matters were considered as part of the ‘other considerations’ rather than as part of the public interest consideration per se.
[40] Respondent’s Written Submissions filed on 13 July 2022 at paragraph [62] and following.
Having concluded that the first and second grounds have been made out, it is not strictly necessary for me to determine this ground. However, as the parties argued it fully before me, it is appropriate that I make a ruling on the matter.
It is apparent from the Minister’s reasons that in considering the public interest, he considered the National Plan to Reduce Violence Against Women and their Children 2010-2021. It is also apparent from the Minister’s reasons that he did not consider, as part of the public interest assessment, the impact on the children of the cancellation of their father’s visa. On this basis, the Minister concluded that it was in the public interest to cancel the applicant’s visa.
Under the heading ‘Other considerations’ the Minister then went on to consider the applicant’s personal circumstances and whether there were other factors which would support a decision not to cancel the visa.[41] It was in this context that the Minister had regard to the best interests of the applicant’s children.
[41] Court book at page 51.
Section 133C does not identify the matters which form part of the ‘public interest’ considerations. The applicant has not established that the Minister’s failure to consider the best interests of the children as part of the ‘public interest consideration’ results in his decision being affected by jurisdictional error. The impact of the cancellation of his visa on his children is clearly a relevant consideration to which the Minister ought to have regard in determining whether to exercise his discretion, which he did. The fact that it was not done as part of the ‘public interest’ assessment does not give rise to a jurisdictional error.
The reasoning in Anees does not assist the applicant in this case. In that case, the issue before the court was whether the Tribunal had considered certain evidence in the context of determining whether there was a risk that the applicant would re-offend. The Court concluded that it had not done so.[42]
[42] See Anees [2020] FCAFC 28 at [24]-[25] and [47]-[48].
For this reason, the third ground of review in relation to the cancellation decision is not made out.
Non-revocation decision
Having reached the conclusion that the Minister’s cancellation decision is affected by jurisdictional error, it is not necessary, strictly speaking, to determine the application in relation to the non-revocation decision. However, for completeness and for the same reasons set out in relation to first two grounds relied upon in relation to the cancellation decision, the non-revocation decision is also affected by jurisdictional error.
Conclusion
For each of these reasons, the applicant’s applications are granted with costs to be fixed if not agreed.
I therefore make the orders set out at the commencement of these reasons.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Deputy Chief Judge Mercuri. Deputy Associate:
Dated: 19 August 2022
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