SKDF v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FCA 433
•13 April 2022
FEDERAL COURT OF AUSTRALIA
SKDF v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 433
Appeal from: Application for an extension of time: SKDF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 5043 File number: NSD 95 of 2022 Judgment of: LEE J Date of judgment: 13 April 2022 Date of publication of reasons: 22 April 2022 Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – where the Tribunal affirmed a decision of a delegate of the first respondent to refuse a request to revoke the cancellation of the applicant’s visa – where no meaningful submissions made as to error – where no error on the part of the Tribunal otherwise identifiable – application dismissed Legislation:
1 Migration Act 1958 (Cth) ss 477A(2), 499, 501(6), 501(7), 501CA(4), 501(3A)
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 25 Date of hearing: 13 April 2022 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The second respondent entered a submitting appearance save as to costs ORDERS
NSD 95 of 2022 BETWEEN: SKDF
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
LEE J
DATE OF ORDER:
13 APRIL 2022
THE COURT ORDERS THAT:
1.Pursuant to s 477A(2) of the Migration Act 1958 (Cth), the time for the applicant to file his application be extended up to and including 11 February 2022.
2.The draft originating application annexed to the applicant’s affidavit filed on 11 February 2022 be treated as the applicant’s originating application.
3.The originating application be dismissed with costs.
4.Any appeal from Order 3 be filed 28 days after the publication of the revised reasons for judgment in this matter.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from the transcript)LEE J:
A INTRODUCTION AND BACKGROUND
Before the Court is an application under s 477A(2) of the Migration Act 1958 (Cth) (Act) for an extension of time to seek review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 December 2021. By that decision, the Tribunal affirmed a decision of a delegate of the first respondent (Minister) made on 7 October 2021 under s 501CA(4) of the Act refusing to revoke the cancellation of the applicant’s Class TY subclass 444 Special Category (Temporary) visa pursuant to s 501CA(4) of the Act.
The applicant is a citizen of New Zealand who was born on 14 May 1998. He first arrived in Australia on 7 June 2011 (at the age of 13). In June 2018, the applicant was convicted of Robbery in Company and sentenced by the District Court of New South Wales to two years and seven months’ imprisonment, commencing on 8 November 2017 with a non-parole period that concluded in May 2019. That conviction related to an incident that occurred in June 2017. The evidence concerning that incident was that the applicant and two co-offenders surrounded the victim at Hornsby Inn and tried to take his bag which contained his personal belongings. During the struggle, one of the co-offenders punched the victim in his jaw, causing him to let go of his bag to avoid a further attack. One of the other co-offenders also punched the victim in his groin area.
On 4 December 2018, the applicant was given notice that his visa had been cancelled under s 501(3A) of the Act. On 24 December 2018, the applicant requested revocation of the cancellation of his visa and made representations about revoking the decision to cancel the visa. Between these dates, the applicant was convicted of two counts of Wound person with intent to cause grievous bodily harm and sentenced by the NSW District Court to nine years’ imprisonment commencing on 8 November 2018 with a non-parole period concluding on 7 November 2024. It is important to note, however, that these convictions were overturned on appeal in July 2021 and a verdict of acquittal in relation to those convictions was entered by the Court of Criminal Appeal of New South Wales.
B THE TRIBUNAL’S REASONS
The Tribunal’s decision is in the conventional form, familiar to those that have had, on occasion, to review such reasons. It sets out the relevant background and evidence of the applicant and its witnesses, and the applicant’s offending history. Annexure B to those reasons sets out the extent of the criminal offending which commences in January 2015, when the applicant was a minor, at which time he appeared in Bidura Children’s Court on two occasions in relation to fifteen offences primarily relating to property damage, graffiti and shoplifting. Other convictions which did not lead to custodial sentences are set out in that offending history. The Tribunal found that the applicant did not pass the character test on the basis of his “substantial criminal record”, under ss 501(6)(a) and 501(7)(c) of the Act, before turning to consider whether there was “some other reason” why it should exercise the power under s 501CA(4) to revoke the visa cancellation decision.
In the light of the later custodial convictions, the Tribunal noted that it was not in dispute that the applicant did not pass the character test. Hence, the Tribunal moved to the next stage of the inquiry as to whether there was another reason why the decision should be revoked. In doing so, the Tribunal was guided by Ministerial Direction 90, being a direction by the Minister under s 499 of the Act (Direction 90), which provides:
8. Primary considerations
In making a decision under section 501(1), 501(2) or 501CA(4), the following are
primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
In considering “Primary Consideration 1”, being the protection of the Australian Community, the Tribunal found that:
(1)having regard to all matters, the applicant’s offending must be regarded as very serious ([67]–[75]);
(2)the applicant was sentenced to a significant term of imprisonment of two years and seven months ([77]);
(3)the applicant had been a serial offender, despite his relative youth, and the severity of his offending had escalated and involved premeditated criminal conduct in collaboration with others ([80]);
(4)the cumulative effect of the applicant’s behaviour had been to be a repeat offender with increasingly worrying and serious consequences ([82]); and
(5)the applicant made a false declaration on an incoming passenger card on 10 November 2016 and his explanation was inconsistent and unsatisfactory ([84]).
On the basis of these findings, the Tribunal concluded that the considerations relating to the protection of the Australian community “weigh very heavily against revocation of the cancellation of the applicant’s visa”: see [88].
Turning to “Primary Consideration 2”, the Tribunal noted (at [103]–[104]) that there was no evidence of family violence, and considered the issue to be neutral.
In considering “Primary Consideration 3”, being “the best interests of minor children in Australia”, the Tribunal found (at [109]–[110]):
109. The Applicant has had some historic interaction with Child B and Child C. He has not met Child D. He has met Child A on a few occasions. For the last 4 years such contact he has had with any child, has been mostly electronic. He has never been a primary carer or major financial contributor.
110. In summary, assuming that the Applicant were to stop his anti-social ways, he may be of some minor benefit to some of the children. This is putting things at their highest from his perspective.
However, putting the matters at their highest, the Tribunal concluded that “Primary Consideration 3” only weighed “slightly” in favour of revocation: see [111].
Turning to “Primary Consideration 4”, the expectations of the Australian community, the Tribunal had regard to (at [118]):
(a)the Applicant’s criminal record as set out above and in Annexure B;
(b)the Applicant’s lengthy association with anti-social and criminal groups; and
(c)the Applicant had been a burden on the Australian community since at least 2014. He has been gainfully employed and paying taxes only for brief periods. For most of the time he has been in this country, he has been unemployed or imposing on the criminal justice system.
Unsurprisingly, in these circumstances, the Tribunal considered that “Primary Consideration 4” weighed heavily against revocation: at [119].
In respect of the “Other Considerations” under Direction 90, the Tribunal relevantly found:
(1)Extent of impediments if removed: The applicant had no health problems and would experience no substantial linguistic or cultural barriers if he returned to New Zealand ([124]–[125]). He had some relatives in New Zealand. There was no doubt he would suffer some difficulties adjusting to life as an adult in New Zealand. The Tribunal found this consideration weighed moderately in favour of revocation ([126]–[130]).
(2)Links to the Australian community: Whether the applicant could make any positive contribution to his family depended entirely on whether he was able to put his criminal history and associations behind him, and he would also need to change his attitude to work: at [137]. Aside from his family, there was very little evidence of ties to the Australian community other than a lengthy association with a cohort of anti-social, criminal youths. This consideration weighed moderately in favour of revocation: at [138]–[139].
In summary, the Tribunal directed itself to weigh up all of the primary and other considerations, and summarised the matters as follows (at [144]–[149]):
144. Primary consideration 1 weighs heavily against revocation.
145. Primary consideration 2 is neutral.
146.Primary consideration 3 weighs slightly in favour of revocation.
147. Primary consideration 4 weighs heavily against revocation.
148. Other considerations, a [international non-refoulement obligations], c [impact on victims], and e [the impact on Australian business interests] are neutral.
149. Other considerations b and d moderately favour revocation.
Accordingly, the Tribunal concluded (at [150]) that the proper application of the Direction favours the Tribunal not exercising the discretion to revoke the cancellation of the applicant’s Visa, and did not find that there was “another reason” pursuant to s 501CA(4)(b)(ii) of the Act to revoke the original decision.
C GROUNDS OF APPLICATION
Shortly before the hearing, the parties provided agreed short minutes of order to my Associate which resolves the interlocutory application; that is, an order that, pursuant to s 477A(2) of the Act, the time for the applicant to file his application be extended up to and including 11 February 2022. Upon the commencement of the hearing, I made an order granting the extension of time and, having done so, I further ordered that the draft originating application annexed to the applicant’s affidavit filed on 11 February 2022 be treated as the applicant’s originating application.
Under the heading “grounds of application,” the originating application provides the following:
1. the tribunal should have not consider the offence that was overturn on my appeal
2.the member were reading evidence from a psychology report from 2018
(Errors in original).
As noted above, the offence referred to in the first proposed ground was the subject to a successful appeal. A fair review of the Tribunal’s reasons reveals that, although the relevant material did contain the judgment of the New South Wales Court of Criminal Appeal of July 2021, when dealing with the nature and seriousness of the conduct considered by the Tribunal, it appropriately had regard to the applicant’s conviction in the District Court of New South Wales in Newcastle for robbery in company for which he was sentenced, the underlying facts of those offences and the sentencing remarks, and subsequent behaviour relating to the provision of false or misleading information to the Department by failing to declare his prior criminal history on his incoming passenger card on his last entry to Australia in November 2016. Unsurprisingly, the Tribunal noted (at [21]):
On 10 January 2016, the Applicant completed an incoming passenger card in which he stated that he did not have any criminal convictions. This was clearly wrong at the time this card was completed. In the Applicant’s response to the documents produced by the Respondent he said, “I didn’t know I had to provide information about my criminal history when entering Australia, I thought it would have appeared when they scanned my passport”. In his evidence, he gave a totally different account. He said that his mother had filled in the card and he had just signed it.
(Citations omitted, italics in original).
When turning to the issue of recent adverse conduct, the Tribunal noted the following (at [39]–[40]):
39. New South Wales Correctional Services records indicate that on 22 June 2020, the Applicant refused to cooperate in a urine test for drug analysis.
40. New South Wales Correctional Services records dated 3 July 2020 state:
“Inmate was recently classified GLB due to ongoing poor attitude, refusal to work and general non-compliance with centre routine. Inmate now continues to be non compliant with centre routine and is causing issues with the regimented structured day routine of this centre. Inmate has been removed from the main area of the centre is now housed in the MPU on a section 78A order, inmate will remain housed in this location until removed to centre of classification.”
(Citations omitted, italics in original).
It is quite clear from reading the Tribunal’s reasons that it did not, as alleged, “consider” the offences that were overturned on appeal (in the sense of taking that alleged offending into account in any material way), notwithstanding the reference made to them. Put another way, there is no indication that irrelevant considerations impacted upon the Tribunal’s exercise of its discretion.
As to the second proposed ground, it is said that the Tribunal considered a psychology report from 2018. In reading the Tribunal’s reasons, it is a little hard to understand what is meant by this contention. In the context of considering the risk to the Australian community, there was consideration given as to remorse and rehabilitation. The Tribunal states (at [32]):
On 11 May 2018, the Applicant was given a psychological evaluation at the request of his then solicitor in relation to the criminal charges that were the subject of subsequent sentencing on 8 June 2018.
A lengthy quotation was then taken from the report. As the Minister submits, the psychology report was not legally or factually irrelevant to the Tribunal’s exercise of its discretion. It had regard to it, and it was entitled to do so. The suggestion that the member reading evidence from the psychological report in 2018 is indicative of some form of legal error is one which is not made out.
It follows that the application must be dismissed with costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. Associate:
Dated: 22 April 2022
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