Swan v Minister for Home Affairs
[2019] FCCA 702
•21 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SWAN v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 702 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Bridging E (class WE) Bridging E (General) (subclass 050) visa – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 116, 499 Migration Regulations 1994 (Cth), reg. 2.43(1) Ministerial Direction No.63, Bridging E visas – Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q) |
| Cases cited: Applicant M190 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1362 |
| Applicant: | DAVID SWAN |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1944 of 2018 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 28 February 2019 |
| Date of Last Submission: | 28 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 21 March 2019 |
REPRESENTATION
| Counsel for the applicant: | Mr Krohn |
| Solicitors for the applicant: | Kerdo Legal |
| Counsel for the respondents: | Mr Grant |
| Solicitors for the respondents: | Sparke Helmore |
ORDERS
The applicant’s application for judicial review filed on 5 July 2018 as amended on 28 November 2018 be dismissed.
The applicant pay the first respondent’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1944 of 2018
| DAVID SWAN |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal dated 28 June 2018 (“the tribunal”). In its decision, the tribunal affirmed the decision of a delegate of the first respondent, the Minister for Home Affairs
(“the Minister”) to cancel the applicant’s Bridging E (class WE) Bridging E (General) (subclass 050) visa (“the visa”).
The applicant’s application for judicial review was initially filed on
5 July 2018 and amended on 28 November 2018.
This proceeding is made pursuant to section 476(1) of the Migration Act 1958 (Cth) (“the Act”). To succeed in his claim, the applicant must demonstrate jurisdictional error in the tribunal’s reasons.
Background
The factual background is not in dispute. The applicant was born in the United Kingdom and married an Italian national. Together with their daughter, the applicant and his wife came to Australia in 2014[1]. Initially, the applicant’s wife was granted a student visa and the applicant became the primary carer for their daughter.
[1] The applicant and his wife had previously travelled to Australia where they initially met.
In 2015, the applicant’s wife obtained employment and was granted a Temporary Work (Skilled) (Subsequent Entrant) (subclass 457) visa. In July 2016, she undertook further study and applied for a student visa.
Tragically in January 2017, the applicant and his wife lost their second child, a son, when he was only three months of age as a result of a heart condition. Not surprisingly, the applicant was significantly affected by the passing of his son.
On 24 April 2017, the applicant assaulted his wife and another parent at his daughter’s school. This incident resulted in the police obtaining an intervention order against the applicant and naming the applicant’s wife and daughter as protected persons.[2] The applicant was also charged with assault and other criminal offences as a result of this incident.[3] Evidence was provided to the Tribunal which suggested that the applicant suffered ‘an acute psychotic episode subsequent to the death of his infant son.’[4]
[2] Court book page 120.
[3] Court book page 113.
[4] Court book page 139.
As a result of these incidents, a delegate of the Minister cancelled the applicant’s visa pursuant to section 116 of the Act. As a consequence, the applicant was placed in detention.[5]
[5] Court book page 181.
Whilst in detention, the applicant’s student visa expired.[6] Moreover, on 27 October 2017, the applicant’s wife was granted a Temporary Business Entry (Skilled) Class UC) (subclass 457) visa.[7]
[6] Court book pages 2 and 143.
[7] Court book page 24.
On 13 November 2017, the tribunal, differently constituted, set aside the delegate’s decision to cancel the applicant’s subclass 573 Higher Education Sector visa and substituted its decision not to cancel the applicant’s visa.[8] The tribunal’s reasons for that decision are set out at pages 180 to 185 of the court book.
[8] Court book page 23.
The applicant sought a review of the delegate’s decision to cancel his visa and provided a range of documents to the tribunal, differently constituted, in support of that application. Among this material was a statutory declaration from his wife which attested to the background of the incident in April 2017, that this conduct was entirely out of character and that it was her desire that he be permitted to remain in Australia and return to living with the family.[9]
[9] Court book pages 66 to 70.
On 16 November 2017, the applicant was granted a Bridging E (class WE) Bridging E (General) (subclass 050) visa.[10]
[10] Court book pages 142 to 145.
On 21 November 2017, the applicant applied to become a dependant on his wife’s subclass 457 visa.[11] On 15 December 2017, the applicant was granted a Bridging E (class WE) Bridging E (General) (subclass 050) visa in relation to his subclass 457 visa application[12] and it is this visa which is the subject of these proceedings. The applicant’s wife’s employer agreed to extend its sponsorship to the applicant.[13]
[11] Court book pages 1 to 16.
[12] Court book pages 47 to 51.
[13] Court book page 53.
It is against this background that on 27 January 2018, the applicant was again arrested by Victoria Police and charged with contraventions of the intervention order as a result of conduct he allegedly engaged in on
25 January 2018.[14]
[14] Supplementary court book pages 33 to 34.
On 1 February 2018, the applicant was again arrested and charged by Victoria Police for further alleged contraventions by him of the intervention order.[15]
[15] Supplementary court book pages 47 to 50.
Also on 1 February 2018, the applicant’s wife’s employer withdrew its support for the applicant’s 457 dependant visa claim.[16]
[16] Court book pages 55 to 59.
The applicant was issued with a notice of intention to consider cancellation of the visa.[17] That same day, a delegate of the Minister cancelled the visa under section 116(1)(g) of the Act and the applicant was placed in detention.[18]
[17] Supplementary court book pages 1 to 4.
[18] Supplementary court book pages 5 to 16.
On 2 February 2018, the applicant applied for a review of the delegate’s decision referred to in paragraph 17 above.[19]
[19] Court book pages 60 to 62.
On 5 February 2018, the applicant’s wife also withdrew her support of the applicant as a secondary applicant to her subclass 457 visa.[20]
[20] Court book page 146.
The applicant was invited and did attend before the tribunal on
12 February 2018 to give evidence and present arguments.[21]
[21] Court book pages 147 to 150, 175 to 177.
On 28 June 2018, the tribunal affirmed the decision of the delegate to cancel the applicant’s visa under section 116 of the Act.[22]
[22] Court book pages 194 to 201.
The tribunal’s reasons
In its reasons, the tribunal noted that the Minister has the power to cancel a visa if he or she is satisfied that certain grounds specified in section 116 of the Act are made out. In this case, the relevant ground is section 116(1)(g) of the Act. If satisfied that this ground was made out, the decision maker must then consider whether to exercise is discretion to cancel the visa.[23]
[23] Court book page 195 at paragraph [6].
Relevantly, section 116(1)(g) of the Act states:
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that …
...
(g) a prescribed ground for cancelling a visa applies to the holder.
The tribunal further, and correctly, noted that the relevant ground prescribed in the Migration Regulations 1994 (Cth) (“the Regulations”) upon which the applicant’s visa might be cancelled was found in regulation 2.43(1)(p)(ii) and was satisfied on the evidence before it that that ground did exist in this case.[24]
[24] Court book pages 195 to 196 at paragraphs [8] and [9].
Relevantly, Regulation 2.43(1)(p)(ii) states:
(1)For the purposes of paragraph 116(1)(g) of the Act (which deals with the circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
…
(p)in the case of the holder of a Subclass 050 (Bridging General) Visa … that the Minister is satisfied that the holder:
(i) …
(ii)has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country; …
Importantly, the tribunal acknowledged that having been satisfied that grounds for cancellation of the visa exist, it is nonetheless required to consider whether the visa should be cancelled.[25] The Tribunal referred to Ministerial Direction No. 63 made under section 499 of the Act[26] and identified the factors, both primary and secondary, to which the tribunal must have regard in the exercise of its discretion.[27]
[25] Court book page 196 at paragraph [9].
[26] Ministerial Direction No.63, Bridging E visas – Cancellation under section 116(1)(g) – Regulation 2.43(1)(p) or (q).
[27] Court book page 196 at paragraphs [10] to [13].
The tribunal also noted that it was to have regard to the particular facts of this case, including matters raised by the applicant and the matters set out in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.[28]
[28] Court book page 196 at paragraph [14].
The tribunal then set out:
a)the factual background;[29]
b)its analysis of the primary considerations;[30]
c)its analysis of the secondary considerations;[31] and
d)its conclusions.[32]
[29] Court book pages 196 to 197 at paragraphs [15] to [23].
[30] Court book pages 197 to 198 at paragraphs [24] to [29].
[31] Court book pages 198 to 200 at paragraphs [30] to [44].
[32] Court book pages 200 to 201 at paragraphs [45] to [53].
At paragraph 54 of its decision record, the tribunal confirmed its decision to affirm the delegate’s decision to cancel the applicant’s subclass 050 Bridging General visa.
Ground one
The first ground of review in the applicant’s application filed on
5 July 2018 and amended on 28 November 2018 is:
The Second Respondent (‘the Tribunal’) failed to consider relevant considerations.
Particulars
(a)The Tribunal considered that at the time of its decision the Applicant’s family unit ‘has since broken down’ … and ‘has already broken down’ … but it failed to consider the chances of any restoration or healing of the family unit.
(b)Further or in the alternative to particular (a), the Tribunal failed to consider the prospects of contact of the Applicant with his daughter being desirable in the interests of the family unit.
(c)Further or in the alternative to particular (a), the Tribunal failed to consider the prospects of contact of the Applicant with his daughter being commanded by a competent court, and the consequences of this for:
(i)The best interests of the Applicant’s daughter;
(ii) The interests of the family unit.
(d)Further to particular (a), the Tribunal failed to consider the effect for its weighing of relevant considerations the possibility that the Applicant may be acquitted of charges against him or that charges may be withdrawn or dismissed.
(e)Further or in the alternative to particular (d), the Tribunal failed to consider the effect for its weighing of relevant considerations the fact that some charges against the Applicant may have been laid as alternate charges, or that some charges may be withdrawn or dismissed.
It is common ground that as an administrative decision maker, the tribunal must consider each necessary and relevant consideration. As noted by Mason J, as he then was, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24:
The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action.[33]
[33] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at [15].
It was argued by the applicant that the tribunal’s failure to consider a material question of fact, squarely raised by the material before it amounts to a failure to discharge its jurisdiction. Moreover, it was further submitted on behalf of the applicant that a failure by the tribunal to have regard to information may also constitute a jurisdictional error. Particular reference was made by the applicant to Applicant M190 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1362 at [10]–[13].
It was further submitted on behalf of the applicant that the court can infer that if the tribunal does not mention an issue in its reasons, it has not considered that issue.[34]
[34] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [5], [69] and [75].
By particulars (a) to (c) of ground one, the applicant submitted that the tribunal considered that the applicant’s family unit had ‘broken down’[35] but failed to consider the chances of reconciliation on the one hand, or the benefits of the applicant maintaining an ongoing relationship with his daughter. It was said that this was a “critically important consideration” having regard to the fact that:
a)the best interests of a child under the age of 18 is a primary consideration to which the tribunal must have regard under Ministerial Direction No. 63; and
b)the tribunal noted that this factor “weighs for the applicant”[36]; and
c)a court might order some contact between the applicant and his daughter in future.
[35] Court book pages 198 to 199 at paragraphs [32] and [33].
[36] Court book page 198 at paragraph [28].
It was submitted for the applicant that the prospect of a restoration of the family unit, particularly the relationship between the father and his daughter was a “critical and obvious consideration for the Tribunal, given the likelihood that, by agreement or by court order, the relationship between father and daughter would continue by some form of contact”[37] and that such contact would be in the best interests of the applicant’s daughter.
[37] Paragraph 14 of the applicant’s written submissions filed 28 November 2018.
Moreover, it was submitted that the tribunal did not give consideration to the possible ongoing relationship between the applicant and his daughter notwithstanding the breakdown of the relationship between the applicant and his wife.[38]
[38] Paragraph 15 of the applicant’s written submissions filed 28 November 2018.
It is common ground that the tribunal was required to comply with Ministerial Direction No. 63 in considering the exercise of its discretion.[39] Part two of Ministerial Direction No. 63 identifies the considerations relevant to determining whether to exercise the discretion to cancel the visa. Part one sets out the objectives of the direction as well as general principles that decision makers ought to have regard to in determining whether to cancel a visa.
[39] Migration Act 1958 (Cth), section 499(2A).
Relevantly, clause 4.3(3) of Ministerial Direction No. 63 states:
The Australian Government has a low tolerance for criminal behaviour by non-citizens who are in the Australian community on a temporary basis, and do not hold a substantive visa. In the case of a non-citizen who, but for the Minister granting them a visa in the public interest, would be subject to mandatory detention, it is a privilege and not a right to be allowed to live in the community while their immigration status is being resolved.
Clause 4.3(5) provides:
Bridging E visa holders who have been found guilty of engaging in criminal behaviour should expect to be denied the privilege of continuing to hold a Bridging E visa while they await the resolution of their immigration status. Similarly, where Bridging E visa holders are charged with the commission of a criminal offence… there is an expectation that such Bridging E visas ought to be cancelled while criminal justice processes or investigations are ongoing (emphasis added).
Clause 4.3(6) further states:
The person’s individual circumstances, including the serious of their actual or alleged behaviour, and any mitigating circumstances are considerations in the context of determining whether a Bridging E visa should be cancelled.
Clause 5.1 entitled ‘How to exercise the discretion’ relevantly states:
(1)Informed by the Principles in paragraph 4.3, a decision-maker must take into account the primary and secondary considerations in Part two of this Direction, where relevant, in order to determine whether a Bridging E visa holder should have their visa cancelled.
(2)Both primary and secondary considerations may weigh in favour of, or against, cancellation of a Bridging E visa.
(3)The primary considerations should generally be given greater weight that any secondary considerations.
(4)One primary consideration may outweigh the other primary consideration.
The primary considerations are then set out at clause 6 and the secondary considerations at clause 7. One of the primary considerations set out in clause 6 is “the best interests of a child under the age of 18 years who would be affected by the cancellation”.
Whilst accepting the principles outlined at paragraph 31 to 33 above, it was submitted on behalf of the Minister that the tribunal did consider the material submitted by the applicant, in particular in relation to his relationship with his wife and his daughter.
The tribunal noted the material provided by the applicant in support of his application at paragraphs 19 to 21 of its decision. Relevantly, the tribunal noted that the incident which gave rise to the decision subject of the review to cancel his visa occurred in the last week of January 2018, a matter of weeks after the decision of the first tribunal in November 2017.
To the extent that the applicant seeks the reestablishment of a relationship with his wife and time with his child, I am satisfied that the tribunal considered those matters. For example, the tribunal noted that the applicant had not provided any evidence of any possible reunification with his wife either prior to, at the review hearing or since that hearing on 12 February 2018 and prior to the tribunal’s decision.[40] Indeed it referred to the applicant’s wife’s statement to the police made 26 January 2018 in which she said:
I know that David will be even more angry with me when he knows that I have spoken to police. I feel unsafe living with David, and I can’t carry on like this. I would like an intervention order that prevents David from being at our house so that I can feel safe there with Gemma. I am hoping that David will not get his visa and will have to return to Scotland.[41]
[40] Court book page 201 at paragraph [42].
[41] Court book page 201 at paragraph [42].
In addition, the tribunal noted:
The applicant said that he was confident that his wife would come to the Magistrates’ Court of Victoria and testify that the charges against him are an overreaction. Having carefully considered the statement provided to the police by the applicant’s wife, the Tribunal considers this unlikely.[42]
[42] Court book page 199 at paragraph [39].
A fair reading of the tribunal’s reasons indicates that to the extent that the applicant raised any issues about the possibility of an ongoing relationship with his wife, this was considered and evidence in relation to that issue appropriately assessed.
It is also clear from the tribunal’s reasons that it considered the prospect of the applicant wishing to spend time with his daughter in Australia irrespective of whether or not his relationship with his wife had reconciled. So much is clear from paragraph 43 of the tribunal’s reasons in which it was noted:
(the applicant) claimed that he… needs to have his visa restored so that he can make arrangements to gain access to his daughter.[43]
[43] Court book page 200 at paragraph [43].
The tribunal also noted:
the applicant… said that the consequences… would be “absolutely devastating”… his daughter needed a father… his daughter’s world would be “torn apart”…[44]
[44] Court book page 200 at paragraph [41], see also court book page 198 at paragraph [32].
A fair reading of the tribunal’s reasons reveals that the tribunal did consider the best interests of the applicant’s child as required. No jurisdictional error arises from the manner in which the tribunal assessed the factors set out in particulars (a) to (c) of ground one.
Turning then to particulars (d) and (e) of ground one in which it was argued that the tribunal failed to consider the prospect that the charges against the applicant which triggered the cancellation of his visa might be dismissed, withdrawn or laid as alternate charges.
It was submitted that the applicant denies the charges against him and the prospect of the charges being dismissed, withdrawn or laid as alternate charges was a factor which ought to have been considered. It was said on behalf of the applicant that a failure to do so amounts to a jurisdictional error.
In essence, it was submitted that the tribunal was required, and failed, to consider the prospects of the applicant successfully defending the charges against him. This is particularly so given:
a)the charges related to a number of contacts by mobile phone in a short space of time; and
b)the applicant says they were not in breach of the intervention order.[45]
[45] Transcript page 7 at lines 5 to 33.
The tribunal considered the charges laid against the applicant at paragraphs 36 to 40 of its reasons. In that context, the tribunal noted it is “not tasked with deciding whether the applicant is guilty or innocent of the charges… is however obliged to put certain aspects of the alleged offending to the applicant”[46] which it then did.
[46] Court book page 199 at paragraph [37].
The tribunal noted that the applicant maintained that:
a)he was charged because his wife had developed a close relationship with the police;
b)there had been a “major error in the process” of his visa being cancelled;
c)he believes the police acted unfairly and denies the charges; and
d)his wife was not afraid of him although he acknowledged that she may have been insulted by him.[47]
[47] Court book page 199 at paragraph [38].
The tribunal noted that the alleged offending is said to have occurred six weeks after the applicant was released from detention.[48]
[48] Court book page 199 at paragraph [40].
After considering these factors, the tribunal concluded:
…the applicant has been charged with multiple offences of contravening an intervention order. Whilst the applicant denies the particulars of the allegations against him, on his own account of events, he acknowledges a dispute of the kind alleged occurred.
The charges against the applicant are serious charges and the tribunal accepts that he denies that he is guilty of those offences. It will be a matter for the Victorian criminal justice system as to how those charges are resolved (emphasis added).[49]
[49] Court book pages 200 to 201 at paragraphs [47] to [48].
I find that the tribunal did consider the context in which the criminal charges laid against the applicant were made and noted that it was a matter for the criminal justice system in Victoria to determine the outcome of those matters. There was no evidence before the tribunal that the charges against the applicant or some of them might be withdrawn or laid as alternate charges. The fact of the matter is that the applicant was the subject of certain charges and he maintained he was innocent of those charges. Both of those factors were taken into account by the tribunal.
The weight to be given to these matters was a matter for the tribunal.[50] In those circumstances and for the reasons set out above, the tribunal’s consideration of the applicant’s criminal charges does not disclose any jurisdictional error.
[50] Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5]–[7]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at [41]; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], [13]–[14].
For each of these reasons, ground one is not made out.
Ground two
The second ground of review in the applicant’s application filed on
5 July 2018 and amended on 28 November 2018 is:
The Tribunal fell into jurisdictional error in that it erred in interpreting or applying the law.
Particulars
(a)The Tribunal erred in interpreting or applying the primary considerations under Direction 63, in that it applied the primary consideration that “every instance of non-compliance should be considered for cancellation” as if this involved a consideration of the circumstances in which the ground for cancellation arose, but those circumstances were a secondary and not primary consideration under Direction 63 …
(b)The Tribunal erred in considering that the Government’s view that it “has a low tolerance of criminal behaviour” is relevant when, although there were charges such as to enliven Regulation 2.43(1)(p) the Applicant denied that he was guilty of the charges and had not been convicted. …
(c)Further or in the alternative to particulars (a) and (b), the Tribunal erred in not finding that the possible future acquittal of the Applicant or dismissal or withdrawal of the charges lessened the weight to be ascribed to the fact of charges being laid.
(d)Further or in the alternative to particular (c), the Tribunal erred in not considering for the effect for its weighing of relevant considerations the fact that some charges against the Applicant may have been laid as alternate charges, or that some charges may be withdrawn or dismissed.
By ground two, the applicant takes issue with the manner in which the tribunal considered and applied the primary considerations in
Ministerial Direction No. 63 and in particular, to the extent that it said:
The Tribunal however considers that the first primary consideration outweighs the second primary consideration.[51]
[51] Court book page 201 at paragraph [53].
In support of this submission, the applicant relied upon the decision of Judge Smith in ACH15 v Minister for Immigration and Border Protection [2015] FCCA 1250 (“ACH15”).[52]
[52] ACH15 v Minister for Immigration and Border Protection [2015] FCCA 1250 at [28]–[31] and [33].
In essence, the applicant’s submission is that the primary consideration set out in clause 6(1)(a) of Ministerial Direction No. 63 only goes to the question of whether or not consideration ought to be given to cancelling a visa. Once that decision is made, and the decision maker is required to consider cancelling the visa, that primary consideration effectively has no more work to do.[53] This is to be contrasted with the primary consideration set out in clause 6(1)(b) of Ministerial Direction No. 63, which requires the decision maker to have regard to the best interests of any child who may be affected by the decision to cancel the applicant’s visa.
[53] Transcript page 12 at lines 32 to 39.
It was submitted that in this case, the tribunal misdirected itself at paragraph 53 of its reasons, in determining that the primary consideration of the government’s view outweighs the other primary consideration being the best interests of the child.[54]
[54] Transcript page 12 at lines 45 to 46.
In the course of the hearing, the following exchange occurred in relation to this submission:
Her Honour: …what do you say if I were to accept your submission… that is, that (a) is simply there to determine whether or not to consider the visa issue, then what does (4) do?
Mr Krohn:…the first is that it is perhaps a little oddly drawn, but the second answer is it is parallel to, as I understand it, the general instruction that’s given in various other directions that the Minister has given under section 499, where there may be a number of primary considerations. But in this particular case (b) can outweigh (a) but (a) can’t outweigh (b). So it is the case that one primary consideration may outweigh the other primary consideration, but probably the only way that that would work would be if the best interests of the child… was so compelling that a decision-maker might say, “I don’t even need to think about this”… perhaps there is a theoretical and a rather empty way in which (a) could outweigh (b) and that is there may be no child.[55]
[55] Transcript page 13 at line 44 to page 14 at line 21.
With respect, these submissions misstate the reasoning of his Honour in ACH15. In that case, the court had to consider whether the tribunal erred by conflating the question of whether to consider cancelling a visa and if so, the consideration of whether to exercise its discretion to do so. In that case, the tribunal made various findings, including that:
a)the applicant was not a flight risk, otherwise did not have a criminal record, was not a risk to the community and was genuinely remorseful for his actions;
b)the applicant came to Australia as a young man without family support and may have found it difficult to adjust to life here;
c)the applicant would understandably prefer to stay in the community and not remain in detention; and
d)there was no evidence before it that the applicant would be precluded from applying for a visa or that if found to be owed protection, would continue to be held in detention.
Against these findings, the tribunal in ACH15 went on to conclude:
However, in the circumstances of this case, bearing in mind that the primary consideration that the ground of cancellation in r2.43(1)(p) should be applied rigorously, the Tribunal concludes that the visa should be cancelled.[56]
[56] ACH15 v Minister for Immigration and Border Protection [2015] FCCA 1250 at [27].
The appellant in ACH15 challenged this decision on the basis that:
The Tribunal understood the Direction, and in particular the first primary consideration set out in sub-cl 6.1(1) of the Direction to mean that cancellation must, almost always follow the enlivenment of the discretion. It was argued by the applicant that that understanding was incorrect because sub-clause 6.1(1) of the Direction only relates to consideration of whether to consider cancellation of the visa. In my view, although there are some contextual considerations which strain against the applicant’s argument, the clear words of the Direction support that argument (emphasis added).[57]
[57] ACH15 v Minister for Immigration and Border Protection [2015] FCCA 1250 at [17].
ACH15 does not, in my view, stand for the proposition advanced by the applicant. The error identified in ACH15 was that the tribunal was of the view that it had to apply the grounds of cancellation in Regulation 2.43(1)(p) “rigorously” in the exercise of its discretion as to whether to cancel the visa, rather than simply at the preliminary step of determining that it was appropriate to consider whether to cancel the applicant’s visa.
In this case, the tribunal was aware of the reasoning in ACH15 and indeed appropriately referred to it when it said:
…the Tribunal is satisfied that the ground for cancellation in s116(g) exists. As that ground does not require mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.[58]
[58] Court book page 196 at paragraph [9].
Moreover, the tribunal appreciated the effect of the decision in ACH15 when it said:
One of the prescribed primary considerations in cl6 of the Direction is the Government’s view that the prescribed grounds in r2.43(1)(p) and (q) should be applied rigorously, in that every instance of non-compliance should be considered for cancellation in accordance with the discretionary cancellation framework. The rigour referred to in this clause is addressed solely to the question of whether to enter into consideration of cancelling the visa and is not saying that the power to cancel should be exercised rigorously. The decision maker must take the government’s view as part of the matters to be weighed in the exercise of the discretion, rather than simply follow that view (emphasis added).[59]
[59] Court book page 197 at paragraph [24].
At paragraphs 28 to 31 of the decision in ACH15, the limitation on the matters determined in that case were clarified. In particular, his Honour noted that:
The Tribunal did not understand and apply the Direction according to its proper meaning. Rather than understanding that the government’s view that the relevant grounds should be applied rigorously in the sense described above, it understood that view to be that the exercise to cancel should be exercised rigorously, that is, strictly. Thus, in spite of having found many mitigating factors in favour of the applicant, it cancelled the visa simply because it thought it was directed to do so. That misunderstanding by the Tribunal caused it to fail to properly review the decision of the delegate and so I constructively failed to exercise its jurisdiction. [60]
[60] ACH15 v Minister for Immigration and Border Protection [2015] FCCA 1250 at [31].
No such error was made in this case.
ACH15 does not go so far as to stand for the proposition now advanced by the applicant that once the question of whether or not to consider cancelling the visa, clause 6.1 of Ministerial Direction No. 63 effectively has no more work to do.
I am not satisfied that the proper interpretation of Ministerial Direction No. 63 has that effect. As conveniently summarised by Smith J in ACH15:
The process of construing the Direction is no different to that to be applied in respect of any other written document. In the statutory context, that has been described by the High Court as follows:
‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text.” So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text …
(Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 87 ALJR 98 at 107 [39])
More recently, the majority of the High Court emphasised what was said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]–[70]…
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’ …
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.[61]
[61] ACH15 v Minister for Immigration and Border Protection [2015] FCCA 1250 at [18]–[19].
When one has regard to Ministerial Direction No. 63 as a whole, it is clear that the primary considerations set out at clauses 6.1(a) and (b) need to be considered and weighed both against each other and with the secondary considerations in determining whether to cancel a visa. So much is clear from the opening words of the clause, namely “In deciding whether to cancel a non-citizen’s Bridging E visa … the following are primary considerations …”[62]
[62] Ministerial Direction No. 63, clause 6.1.
In addition, clause 5.1(1) under the subheading ‘How to exercise the discretion’ relevantly provides:
Informed by the Principles in paragraph 4.3, a decision-maker must take into account the primary and secondary considerations in Part two of this Direction, where relevant, in order to determine whether a Bridging E visa holder should have their visa cancelled.
Although clause 6(1)(a) could be more clearly drafted, when read in the context of the whole document (in particular by reference to principles set out at clauses 4.3(1) and (2) as well as (3) and (5)) and when consideration is given to the secondary considerations set out in clause 7, I find that the proper interpretation of clause 6 is that both factors set out in (a) and (b) have work to do in the consideration of whether or not to cancel a visa that is in the exercise of their discretion. Clause 6(1)(a) requires the tribunal to have regard to the government’s view of the matters identified.
This is supported by the fact that the principles which underpin Ministerial Direction No. 63 include:
a)mandatory detention applies to non-citizens who arrive or remain in Australia without a valid visa;
b)all non-citizens who reside in the community are expected to abide by the law;
c)the Australian government has a low tolerance for criminal behaviour by non-citizens who are in the Australian community on a temporary basis without a substantive visa; and
d)where a bridging visa holder is charged with a criminal offence, there is an expectation that that visa would be cancelled pending the determination of the criminal proceedings.
The primary considerations must be viewed in the context of Ministerial Direction No. 63 as a whole. As such, I am not persuaded by the argument advanced by the applicant in support of this ground. If that were accepted, the government’s views about how bridging visa holders who allegedly (or do) engage in criminal conduct, would not need to be considered beyond the initial determination of whether or not to consider cancelling a visa. This interpretation is not consistent with the remainder of Ministerial Direction No. 63, particularly the matters set out at clauses 4.3, 5(3) and 5(4).
In this case, the tribunal properly gave consideration to the Government’s views identified above as well as the best interests of the applicant’s daughter.
For each of these reasons, the findings made by the tribunal at paragraph 53 of its reasons do not give rise to any jurisdictional error.
Ground two is therefore not made out.
Ground three
The third ground of review in the applicant’s application filed on
5 July 2018 and amended on 28 November 2018 is:
The Tribunal fell into jurisdictional error in that it was unreasonable.
Particulars
(a)The Tribunal was unreasonable in concluding “that the first primary consideration outweighs the second primary consideration”…
In essence, this ground follows on from ground two; namely, if the applicant is correct and the tribunal ought not have given any consideration to the government’s views under clause 6(1) and 6.1(1) of the Ministerial Direction No. 63, then it was legally unreasonable for the tribunal to conclude, as it did in paragraph 53, that those matters outweighed what was in the applicant’s daughter’s best interests.
Counsel for the Minister appropriately conceded that if the court were against him in relation to ground two, ground three would also be made out.
For the reasons set out above however, I am not satisfied that ground two is made out. I therefore do not find that the conclusion reached by the tribunal in paragraph 53 of its reasons was legally unreasonable.
For these reasons, ground three is not made out.
Conclusion
As none of the applicant’s grounds have been made out, the application should be dismissed with costs.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 21 March 2019
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