Smith v Minister for Immigration, Citizenship and Multicultural Affairs

Case [2024] FCA 652

FEDERAL COURT OF AUSTRALIA

Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652

Review of: Smith and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 3570
File number: NSD 1350 of 2023
Judgment of: SHARIFF J
Date of judgment: 20 June 2024 
Catchwords: MIGRATION – application for judicial review of decision of the Administrative Appeals Tribunal to affirm decision of delegate of the Minister not to revoke cancellation of the applicant’s visa under 501CA(4) of the Migration Act 1958 (Cth) – where delegate had found that applicant did not pass character test on ground in s 501(6)(a) – where Tribunal additionally found that applicant did not pass character test on grounds in ss 501(6)(c), (d)(i) and (d)(ii) – whether Tribunal exceeded jurisdiction by asking itself “wider question” – whether Tribunal denied applicant procedural fairness by asking itself “wider question” – whether Tribunal failed to deal with, or give proper, genuine and realistic consideration to, one of applicant’s claims – consideration of whether Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 should not be followed – consideration of materiality – held that Tribunal did not exceed jurisdiction as it was required to remake the decision standing in the shoes of the delegate – CPJ16 not followed – held that Tribunal denied applicant procedural fairness by relying upon additional grounds on which the applicant failed the character test but that that error was not material – held that Tribunal did not fail to give proper consideration to one of the applicant’s claims – application dismissed with costs
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 39(1), 43(1)

Migration Act 1958 (Cth) ss 303(1), 303(1)(f), 303(1)(h), 360(1), 425(1), 500(1)(ba), 500(6H), 500(6J), 501, 501(1), 501(3A), 501(3A)(a)(i), 501(6), 501(6)(a), 501(6)(c), 501(6)(d), 501(6)(d)(i), 501(6)(d)(ii), 501(6H), 501(6J), 501(7)(c), 501CA(3)(b), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)

Migration Amendment (Aggregate Sentences) Act 2023 (Cth)

Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501(CA)
Cases cited:

Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172; (2021) 287 FCR 294

BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; (2020) 283 FCR 97

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250

GBV18 v Minister for Home Affairs [2020] FCAFC 17; (2020) 274 FCR 202

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123

HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422

Korat v Minister for Immigration, Citizenship and Multicultural Affairs [2024]…

Continue reading Smith v Minister for Immigration, Citizenship and Multicultu...

Sign in free to access the full text

Details
AGLC
Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652
Case
[2024] FCA 652
Decision Date

CaseChat Overview and Summary

In the case of Smith v Minister for Immigration, Citizenship and Multicultural Affairs, the applicant, Mr Smith, sought judicial review of the Administrative Appeals Tribunal's (AAT) decision to affirm the Minister's delegate's decision not to revoke the cancellation of his visa under section 501CA(4) of the Migration Act 1958 (Cth). The delegate had found that Mr Smith did not pass the character test on the ground in section 501(6)(a) of the Act, and the AAT additionally found that Mr Smith did not pass the character test on grounds in sections 501(6)(c), (d)(i) and (d)(ii). The central legal issues before the court were whether the AAT exceeded its jurisdiction by asking itself a "wider question" and whether it denied Mr Smith procedural fairness by relying upon additional grounds on which he failed the character test. Additionally, the court considered whether the AAT failed to give proper consideration to one of Mr Smith's claims.

The court held that the AAT did not exceed its jurisdiction, as it was required to remake the decision standing in the shoes of the delegate. The court did not follow the decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033. However, the court found that the AAT denied Mr Smith procedural fairness by relying upon additional grounds on which he failed the character test. Nonetheless, the court held that this error was not material. The AAT also did not fail to give proper consideration to one of Mr Smith's claims.

The court dismissed the application for judicial review and ordered that the applicant pay the first respondent's costs as agreed or taxed. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The application for judicial review be dismissed.

2. The applicant pay the first respondent’s costs as agreed or taxed.

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

It was not in dispute before me that:(a)the applicant’s visa was originally cancelled on 25 October 2022 under s 501(3A) on the basis that the applicant did not pass the character test as he had been sentenced to a term of imprisonment of 12 months or more and therefore had a “substantial criminal record” within the meaning of s 501(7)(c) (Original Cancellation Decision); (b)the applicant was invited to make representations under s 501CA(3)(b) on the basis that he had failed the character test as set out in (a) above, and the applicant took up that opportunity by making such representations on 31 October 2022;(c)the delegate decided not to revoke the original decision including because the applicant had not passed the character test as required under s 501CA(4)(b)(i) on the basis that the applicant had a “substantial criminal record” within the meaning of s 501(7)(c) (the Non-Revocation Decision). It will be apparent from the above that in respect of both the Original Cancellation Decision and the Non-Revocation Decision, the respective decision-makers were satisfied that the applicant had failed the character test because he had a “substantial criminal record” within the meaning of s 501(7)(c). On review, the Tribunal also concluded that the applicant did not pass the character test. The Tribunal stated at AAT [44]-[45]:Character TestIn this circumstance, I am required to address the same two questions the internal-review delegate addressed under section 501CA(4)(b). The first question that I must address is whether Mr Smith passes the “character test”, which, I note, is a wider question than whether he failed the character test for having been sentenced to a term of imprisonment of 12 months or more [see section 501CA(4)(b)(i)]. As of today, Mr Smith does not pass the character test given the aggregate sentence of imprisonment of 14 months, but he also fails that test on other grounds in my opinion; e.g., that he is not “of good character” as of my decision today, and that there is a risk that he would commit a criminal offence or harass, molest, intimidate or stalk another person if he were allowed to remain in Australia [see section 501(6)(c), (d)(i) and (d)(ii) respectively. On Mr Smith’s future risk, see below at [58]ff].Accordingly, I answer the first question in the same way as the delegate: Mr Smith does not pass the character test.(Footnotes inserted in square brackets; emphasis added). As is apparent from the above extract, the Tribunal was satisfied that the applicant failed the character test on the basis that the delegate had found, namely, that he had been sentenced to a term of imprisonment of 12 months or more. However, the Tribunal considered that the question before it was “wider” and that the applicant “also” failed that test on other grounds. B.1 The parties’ submissions The applicant contended that it was impermissible for the Tribunal to ask itself the “wider question” of whether the applicant did not pass the character test by operation of ss 501(6)(c), (d)(i) and (d)(ii) of the Act. It was contended that the Tribunal should have confined its review to the question of whether the applicant did not pass the character test by operation of s 501(6)(a), being the ground on which the Minister’s delegate decided the question for the purpose of the Non-Revocation Decision.

Ratio Decidendi

Legal Principle Established

In my view, Rares J conflated the separate but related questions as to the scope of the review and a denial of procedural fairness, and drew more from Shi than that for which the decision stands. Insofar as the scope of the review was concerned, Rares J identified that the Minister had submitted that the Tribunal was to make the “correct and preferable decision” (at [51]), but does not appear, in the critical parts of his Honour’s reasons at [56]-[71], to have dealt squarely with the proposition drawn from Frugtniet at [14]-[15] that the Tribunal was required to ask itself the same question raised by the statute that the delegate was required to address. The emphasis on answering the same question raised by the statute to which I have referred raises an important distinction between the Tribunal attending to its statutory task of answering that question, as opposed to answering that question in the way that the delegate has. In Frugtniet, Kiefel CJ, Keane and Nettle JJ stated at [15]:As Kiefel J observed in Shi, identifying the question raised by the statute for consideration will usually determine the facts that may be taken into account in connection with the decision. The issue is one of relevance, to be determined by reference to the elements of the question necessary to be addressed in reaching a decision.(Emphasis added). It is the statutory question that determines the facts that may be taken into account in connection with the decision. That is so because the role of the Tribunal is to determine the correct or preferable decision that attends to the statutory question. As Bowen CJ and Deane J stated in Drake at 589:The function of the Tribunal is, as we have said, an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative discretion in a given case or, where a decision has been lawfully made in pursuance of a permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal.The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. (Emphasis added). Thus, the decision under review is the one that the statute requires to be made. This is what Kiefel J made plain in Shi at [133] where her Honour stated that:… it is not possible to apply s 43(1) to the facts of any case without determining, first of all, what is the decision under review. It may therefore be appreciated that the decision, and the statutory question it answers, should be identified with some precision, for it marks the boundaries of the review.