Tahir v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1368
•12 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tahir v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1368
File number: PEG 189 of 2024 Judgment of: JUDGE D HUMPHREYS Date of judgment: 12 December 2024 Catchwords: MIGRATION – Administrative Appeals Tribunal – Partner (class UK) (subclass 820) cancellation under s 116(1)(g) - whether the Tribunal failed to balance different factors – whether reg 2.43(1)(oa) is inconsistent with the Migration Act 1958 (Cth) - whether undue findings of s 116(1)(a) were made – whether any jurisdictional error exists – application dismissed. Legislation: Migration Act 1958 (Cth) ss 116(1)(a), (g), 116(3), 189, 198, 359A, 375A, 476(2)(a), 476(4), 501H, 504.
Migration Regulations 1994 (Cth) reg 2.43(1)(oa).
Cases cited: BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475
BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DLJ18 v Minister for Home Affairs (2019) 273 FCR 66
El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
Nepal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 610
Plaintiff S297/2013 v Minister for Immigration and Border Protection [No 2] (2015) 255 CLR 231
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
R v Trebilco; Ex parte FS Falkiner & Sons Ltd (1936) 56 CLR 20
SZMTA v Minister for Immigration and Citizenship [2010] HCA 3
Thompson v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 776,
Thompson v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 76
VWOK v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 135
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 4 December 2024 Place: Parramatta Solicitor for the Applicant: Self-represented litigant Counsel for the First Respondent: Mr Barrington Solicitor for the First Respondent: Mr Rogers (Australian Government Solicitor) Solicitor for the Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 189 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HASSAN TAHIR
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
12 DECEMBER 2024
THE COURT ORDERS THAT:
1.The name of the Second Respondent be substituted to ‘Administrative Review Tribunal’.
2.The application is dismissed.
3.The Applicant is to pay the First Respondent’s costs fixed in the sum of $ ___
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
JUDGE D HUMPHREYS
INTRODUCTION
This is an application for judicial review of a decision made by the Administrative Appeals Tribunal (“Tribunal”) on 29 April 2024. The Tribunal affirmed a decision made by a delegate of the Minister for Home Affairs (“delegate”) to cancel the applicant’s Partner (class UK) (subclass 820) on 6 September 2023 under s 116(1)(g) of the Migration Act 1958 (Cth) (“the Act”).
BACKGROUND
The applicant is a male citizen of Pakistan who first arrived in Australia on 24 June 2008 on a Student (Vocational Education and Training Sector) (class TU) (subclass 572) visa.
On 10 November 2016, the applicant was granted a Partner (Class UK) (subclass 820) visa (“the visa”) . The relationship which formed the basis for this visa has since ended. The applicant has three children with his then wife. The children are under the Guardianship of the South Australian Minister for Child Protection until they turn 18 years of age through an order made by the Youth Court.
The applicant has a lengthy criminal history in the period of 2012 to 2022 and has received sentences of imprisonment. At the time of the Tribunal’s decision, the applicant had been convicted of over no less than 50 offences against the laws of Victoria and South Australia. These offences mainly relate to driving offences, including driving while disqualified, in addition to causing injury and stealing.
On 9 March 2020, a delegate of the Minister invited the applicant to comment on the possible cancellation of the visa. After taking into account his responses to that invitation, on 16 April 2020 a delegate decided not to cancel the visa.
On 16 June 2023, a delegate of the Minister sent the applicant a further invitation to comment on the possible cancellation of the visa. The delegate noted that there appeared to be grounds for cancelling the visa under s 116(1)(g) of the Act and r 2.43(1)(oa) of the Migration Regulations 1994 (Cth) (“Regulations”).
Section 116(1)(g) of the Act is in the following terms:
(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.
One of the prescribed grounds referred to in s 116(1)(g) is reg 2.43(1)(oa) of the Regulations, which is as follows:
(oa) in the case of the holder of a temporary visa (other than a Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa)--that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));
On 20 June 2023, the applicant responded to the invitation.
On 6 September 2023, a delegate of the Minister decided to cancel the applicant’s visa. The applicant subsequently applied for review of the cancellation decision with the Tribunal.
Two hearings were held before the Tribunal in February 2024. On 29 April 2024, the Tribunal affirmed the cancellation decision.
The applicant now seeks judicial review of the Tribunal’s decision.
ADMINISTRATIVE APPEALS TRIBUNAL DECISION
At issue was whether a ground for cancellation was made out, and if so, whether the applicant’s visa should be cancelled.
A non-disclosure certificate was issued under s 375A of the Act and was included in the Department’s file. The applicant was invited to comment on the validity of this certificate as well as a further certificate dated 22 March 2024. The applicant was also invited under s 359A of the Act to comment on information that he had been reported on 20 March 2024 for driving whilst unauthorised. The Tribunal concluded at [9] that the certificates had been validly issued.
The Tribunal was satisfied at [21] that a ground for cancellation in s 116(1)(g) of the Act existed. As that ground does not require mandatory cancellation under s 116(3), the Tribunal proceeded to consider whether the visa should be cancelled.
The Tribunal noted at [33] the purpose of the applicant’s stay was as the spouse of his ex-wife. The Tribunal stated that in certain circumstances, if a person has obligations to children from the relationship, the person may remain qualified for the visa and therefore may continue to be in Australia for the purpose for which the visa was granted.
At [51] the Tribunal accepted the applicant would suffer some financial hardship if his visa was cancelled and he was required to leave Australia. The Tribunal accepted he would suffer emotional hardship in being separated from his children, current partner and friends in Australia due to the lengthy period of time he has spent in Australia. This attracted some weight in favour of not cancelling his visa.
At [64] the Tribunal considered the number of convictions over a lengthy period, the number of repeat convictions for the same offences and Mr Tahir’s unconvincing explanation. This resulted in the conclusion that he has little regard for laws in Australia about driving, and little respect for compliance with bonds issued as a result of his offending. The Tribunal noted this factor weighed heavily in favour of cancelling his visa.
The Tribunal was not satisfied at [69] that Mr Tahir has had regard to the previous notice of intention to cancel his visa, or the warning this should have provided about his behaviour. He was unlawful for a period, which shows a lack of care in complying with Australia’s migration laws.
The Tribunal considered the mandatory legal consequences of a cancellation and determined at [71] that the applicant would be an unlawful non-citizen liable to detention under s 189 of the Act and for removal from Australia under s 198 of the Act unless he applied for another visa and was granted a bridging visa. At [74] the Tribunal considered the most likely outcome of the applicant’s visa cancellation would be his detention and removal from Australia to Pakistan.
With regard to international non-refoulement obligations, the Tribunal considered at [75] the applicant had previously applied for a protection visa, and that this has been refused. Australia’s non-refoulement obligations to the extent enacted in domestic law are provided for in the criteria for a protection visa. The applicant applied to this Tribunal for a review of the decision and the decision was affirmed. The Tribunal noted there was no new information before it that indicated the removal of Mr Tahir to Pakistan would breach Australia’s non-refoulement obligations.
The Tribunal considered the best interests of the applicant’s children. The Tribunal noted at [93] it was in the best interests of Mr Tahir’s children that he remain in Australia, so they may continue to have in-person contact with him and there remains a possibility that they will have greater contact with him in the future.
The Tribunal stated at [94] that the applicant does not currently have a role in caring for his children and that a delegate of the Chief Executive of the Department currently considers it is in the children’s best interests to have restricted time with the applicant. As a result, this consideration was given some weight in favour of not cancelling his visa, but it did not outweigh other factors in the circumstances of this case. The Tribunal stated at [95] that the applicant was advised at the hearing that the best interests of the children may not be the paramount consideration when weighed against other factors in favour of cancelling his visa.
The Tribunal considered the applicant’s ties to Australia. It noted at [96] the applicant has three children in Australia and has ties to Australia through his children. The Tribunal considered the impact of the visa cancellation and the parties that would be affected by it. It accepted at [98] that the applicant’s partner at the time would be adversely affected, and that her mental health may deteriorate. The Tribunal did not give significant weight in favour of not cancelling the visa due to the applicant’s friends being affected. The Tribunal noted at [100], that the applicant’s employer would be affected. The Tribunal observed at [102] that the applicant’s ties to Australia weighed in favour of not cancelling his visa.
The Tribunal noted that the applicant had previously been issued with a Notice of Intention to Cancel his visa and had been subjected to government supervision of his children before they were removed from his care. The Tribunal stated that neither event appeared to have resulted in significant change. In view of this, the Tribunal placed little weight on his claims to have now realised that his actions may result in him being deported, or that the current consideration of cancelling his visa will result in a change to his behaviour.
Having considered the circumstances, and the information and documents provided by the applicant, the Tribunal found at [105] the applicant’s lengthy and repeated offending outweighed the factors in favour of not cancelling his visa. The Tribunal affirmed the decision to cancel the applicant’s visa.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review are contained in the Originating Application filed on 5 June 2024. They are reproduced as follows (less very lengthy particulars):
1.If, contrary to Ground 2, r 2.43(1)(oa) of the Migration Regulations 1994 (Cth) was consistent with the Migration Act 1958 (Cth), the Tribunal constructively failed to exercise its jurisdiction, thereby making a jurisdictional error.
2.The delegate and Tribunal lacked the jurisdiction and/or power to make their decisions on the basis of s 116(1)(g) and r 2.43(1)(oa), with the result that each of them made a jurisdictional error by purporting to do so.
3.If, contrary to Ground 2, r 2.43(1)(oa) was consistent with the Act, the Tribunal failed to consider a legal consequence of its decision, or was legally unreasonable, thereby making one or more jurisdictional errors.
4.If, contrary to Ground 2, r 2.43(1)(oa) was consistent with the Act, the Tribunal misapplied this provision, thereby making a jurisdictional error.
The Court notes the Grounds of Judicial Review and the associated particulars run to some eight typed pages. The particulars are excessive and can be best described as submissions, yet they were drafted by Counsel. The Court should be assisted by precise and clear particulars and not left to wonder what the error being complained of is.
THE APPLICANT’S SUBMISSIONS
On 11 September 2024, the applicant’s representative filed a notice of intention to withdraw as a lawyer. The applicant was therefore self-represented when appearing before the Court. The applicant filed written submissions along with submissions in reply on 1 November 2024.
The applicant appeared before the Court unrepresented. He did not require an interpreter. The Court confirmed that the applicant was in possession of a copy of the Court Book and had received the respondent’s written submissions. The Court checked that the applicant had access to a pen and paper so he could take notes, during the course of the hearing
The Court explained that it was conducting judicial review, not merits review and the difference between the two types of review. The Court also explained the process by which the hearing would be conducted.
The applicant submitted that the delegate and the Tribunal made jurisdictional errors in their decisions to cancel his visa. These errors stemmed from the Tribunal's failure to properly exercise its discretion, the inconsistency of regulation 2.43(1)(oa) with the Act, the Tribunal's failure to consider the legal consequences of its decision, and the Tribunal's failure to consider the legal consequences of its decision.
The Tribunal did not properly exercise its discretion on account of failing to adequately balance the factors in favour of him ‘against those against’ him. Its reasons merely stated that the factors against the applicant outweighed those in his favour, without demonstrating a genuine weighing of the considerations. The Tribunal also failed to adequately explain the weight it assigned to various factors, particularly those in the applicant's favour. This failure to provide adequate reasons for the decision constitutes a jurisdictional error (see: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, SZMTA v Minister for Immigration and Citizenship [2010] HCA 3 and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16).
The applicant further submitted that reg 2.43(1)(oa) was inconsistent with the Act. The Act exhaustively prescribes the visa consequences of a conviction. Specifically, s 116(1)(g) of the Act outlines the consequences of a conviction for a serious criminal offence, including the possibility of visa cancellation. However, reg 2.43(1)(oa) allows for visa cancellation based on conviction without meeting the requirements of s 116(1)(g) of the Act . This inconsistency renders the regulation invalid, and the Tribunal lacked the power to affirm the delegates decision based on it; (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 (“Project Blue Sky”).
Further the Tribunal failed to consider the legal consequences of its decision. His reasoning was that the Tribunal failed to consider the longer ban period imposed by PIC 4014, which would have resulted in the applicant being excluded from Australia for a longer period than under PIC 4013. This failure to consider a relevant legal consequence constitutes a jurisdictional error: (see: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (“SZMDS”)).
Additionally the Tribunal misapplied s 116(1)(g) of the Act and/or reg 2.43(1)(oa). The Tribunal made findings about whether the applicant still satisfied the criteria for the grant of a partner visa, effectively conducting a de facto assessment under s 116(1)(a) of the Act. The applicant argued this was an irrelevant consideration for the purpose of exercising discretion under s 116(1)(g) and reg 2.43(1)(oa). and constitutes a misapplication of these provisions citing Project Blue Sky Inc and SZMDS.
The applicant provided written submissions in reply to the first respondents submissions. In essence, the applicant disagreed with the entirety of the first respondent’s arguments including the application of law and relevant cases.
In oral submissions, the applicant raised the fact that he had been out of trouble for 3 years. The applicant was advised this was new information that the Court could not take into account and in any event only went to the merits of the case. The Court was unable to conduct merits review.
THE FIRST RESPONDENT’S SUBMISSIONS
First, in relation to the applicant’s request in the Originating Application that the delegate’s decision be quashed, the challenge is entirely misconceived. This Court does not have jurisdiction to quash the delegate’s decision. That is because the delegate’s decision is a “primary decision” within the meaning of s 476(4) of the Act, because it is a “privative clause decision” and was reviewable (and, indeed, was reviewed) under Part 5 of the Act. This Court is therefore denied jurisdiction by operation of s 476(2)(a) of the Act.
Ground one is an allegation that the Tribunal failed to exercise jurisdiction. The particulars for the ground appear to depend heavily upon a judgment of the Full Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 (“CRNL”). The applicant contends that the Tribunal failed to undertake a balancing exercise of the various matters it considered.
The present case can be contrasted to the Ministerial Direction in CRNL which had to be complied with in an exercise of balancing specific considerations. In contrast, s 116(1) of the Act (i.e., the Minister “may” cancel) confers a broad discretion. There is policy in PAM-3, which the Tribunal took into account, but the Tribunal was not bound by that policy. Gray J in El Ess v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 142 FCR 43 stated, inter alia, at [45] that “PAM3 is not a binding document” and that “PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act”.
Even if the Tribunal were somehow bound by PAM-3, nothing in the PAM-3 policy suggests the Tribunal is required to balance the various considerations against each other. Indeed, PAM-3 says that, in considering the matters relevant to the exercise of the discretion, “[g]enerally, matters must be weighed in favour of the visa holder, not against the visa holder”. Unlike in CRNL, there is no requirement at law for a decision-maker considering the discretion in s 116(1) to weigh various matters against each other. That task was not required by the Act or by any other instrument.
The Tribunal’s reasoning evinces the same weighing process as the reasoning approved by Halley J in Thompson v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 776, at [60]-[62]. There was no error in the Tribunal’s approach.
In ground two, the applicant argues that reg 2.43(1)(oa) of the Regulations was inconsistent with the Act. The particulars cite the High Court’s decision in Plaintiff S297/2013 v Minister for Immigration and Border Protection [No 2] (2015) 255 CLR 231 (“Plaintiff S297/2013”), seemingly for the proposition that, through s 501 of the Act, the Parliament has exhaustively prescribed the visa consequences which follow from a criminal conviction. Perhaps put differently, reg 2.43(1)(oa) is an invalid regulation because it is inconsistent with the Act, for the purposes of s 504 (the regulation making power in the Act).
This argument overlooks the clear terms of s 501H of the Act, which makes clear that the powers in s 501 of the Act are “in addition to” any other power of the Act. A similar argument was advanced in VWOK v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 135 (“VWOK”). There, the appellant argued that cl 866.222A of the Regulations was invalid because it was repugnant to s 501 of the Act. The Full Court rejected that argument and agreed with Crennan J. The same approach applies to the present case.
Section 501 does not “evince any intention to exhaustively cover the circumstances in which a criminal record may be taken into account” It is not inconsistent with the existence of s 501 to have a different cancellation power which is also capable of considering a person’s criminal convictions. Ground two should be rejected.
In ground three, the applicant contends that the Tribunal failed to consider a legal consequence of its decision or, alternatively, was legally unreasonable. The applicant submits that the Tribunal failed to consider the application of Public Interest Criterion (PIC) 4014, and only referred to PIC 4013. He submits that PIC 4014 would have meant that the applicant was barred from applying for a visa for a further 5 months than the ban imposed by PIC 4013. This argument must be rejected.
PIC 4014 was not a direct and immediate legal consequence of the Tribunal’s decision, and it was not unreasonable for the Tribunal to refuse to consider it. The reason that PIC 4014 was not a legal consequence is because it depended on future, and unknowable, events. PIC 4014 was not certain to apply to the applicant; indeed, whether it operated was doubly contingent. It only applied if the applicant did not leave Australia in the circumstances set out in PIC 4014(5) (which is about leaving Australia within 28 days of the cessation of a substantive visa, or while the holder of a bridging visa granted within 28 days of the cessation of a substantive visa), and only if the applicant made an application for a visa which was subject to the applicant meeting PIC 4014.
PIC 4014 did not apply to the applicant at the time of the Tribunal’s decision. The applicant held a bridging visa on the date that his substantive visa was cancelled (6 September 2023). Therefore, if he left the country while the holder of that bridging visa (i.e. promptly after the Tribunal’s decision), PIC 4014 would not have applied to the applicant. The possibility of a condition applying the applicant, depending upon what he does in the future, is not a legal consequence of the decision.
Reliance was placed on BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111 (“BNGP”) and DLJ18 v Minister for Home Affairs (2019) 273 FCR 66 in support of this point.
Further, one obvious point is that the applicant made no argument about this ground on merits review. He never claimed that he would delay his exit from Australia such that PIC 4014 would operate. Nor did he claim that he would, if returned to Pakistan, make further applications for Australian visas. Reasonableness did not compel the Tribunal to consider some speculative possibility not raised by the applicant.
In ground four, the applicant argues that the Tribunal misapplied reg 2.43(1)(oa) of the Regulations and s 116(1)(g) of the Act. The applicant argues that, by making findings about his partner visa, the Tribunal “in essence” made findings about s 116(1)(a) of the Act. He submits this was an irrelevant consideration. One of the matters which the Tribunal was permitted to take into account, as set out in PAM-3, was “the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia”.
The Tribunal recognised that the purpose of the applicant’s stay in Australia was as the spouse of Ms Tahir. The Tribunal noted that their children were now in the guardianship of the Minister, and that the applicant had limited access to them. Ms Tahir had no access. Thus, the Tribunal noted that the applicant would not meet the criteria for a partner visa. The Tribunal then went on to consider other matters, such as the applicant’s apparent (but unrealised) desire to study in Australia.
It was not impermissible for the Tribunal to consider whether the applicant met the criteria for a partner visa. The scope of the discretion in s 116 of the Act is broad. “[W]here no limitations are expressly imposed by the legislature on an administrative discretion, the questions what are, and what are not, legitimate considerations for its exercise must always be disputable and open to wide differences of opinion” citing R v Trebilco; Ex parte FS Falkiner & Sons Ltd (1936) 56 CLR 20 at 32 per Dixon J. There is nothing in the subject-matter, scope or purpose of the Act which would suggest that a decision-maker is forbidden from considering that other grounds for cancellation may be enlivened. Indeed, it is open to a decision-maker to consider that multiple grounds for cancellation are met. The applicant does not point to any matter in the subject matter, scope and purpose of the statute to suggest that a decision-maker cannot take into account the fact that multiple grounds for cancellation might have arisen.
This was the same conclusion reached by Judge Vasta in Nepal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 610 (“Nepal”). The first respondent argued this reasoning applies in this case too. There is no prohibition on the Tribunal considering, as part of its discretion, whether the applicant continues to satisfy the grant of a partner visa.
CONSIDERATION
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [17] the task of a Court conducting judicial review was described in this manner:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government, here in the form of a decision of the Minister. The Court does not consider the merits or wisdom the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality the decision by reference to the complaints made about it.
In BCK21 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 475 at [19] Abraham J said the following:
It is first appropriate to recall that a Tribunal’s reasons should be read fairly, and as a whole. The Tribunal’s reasons should not be construed minutely, with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 400 ALR 417 at [38].
Ground one is an allegation that the Tribunal failed to exercise jurisdiction alleging the Tribunal failed to undertake a balancing exercise of the various matters it considered. The Court is satisfied that a ground for cancellation existed pursuant to s116(1)(g) of the Act and reg 2.43(oa). That ground existed as the applicant had been convicted of over 50 offences against the laws of Victoria and South Australia, which were attached as annexure to the Tribunal decision record.
Having come to the view that a ground existed, which did not require a mandatory cancellation under s 116(3), the Tribunal proceeded to consider whether or not the applicant’s visa should be cancelled. In so doing, the Tribunal noted at [22] that there were no matters specified in either the Act or Regulations that must be considered in the exercise of this discretion. Accordingly, the Tribunal had regard to the circumstances of his case, including the matters in the Department’s Procedures Advice Manual 3: ‘General visa cancellation powers’. What follows is an extensive discussion of various matters including the applicant’s criminal record, including matters that were outstanding as at the date of the decision, the purpose of the applicant’s travel and stay in Australia, including whether he had a compelling need to travel or remain in Australia, the extent of his compliance with these conditions, the degree of hardship that may be caused, the circumstances in which the ground cancellation arose, his past and present behaviour towards the Department, and whether there would be consequential cancellations under s 140 and the best interests of his children as a primary consideration.
Each of the above factors, together with some not detailed above, was given a weighting either in favour of cancelling the applicant’s visa or not. At [104] the Tribunal noted that the applicant had previously been issued with a Notice of Intention to Cancel his visa and had been the subject of departmental supervision of his children in 2019 before they were removed from his care. The Tribunal noted that neither of these matters appear to have resulted in significant change. The Tribunal placed little weight on his claims that he had now realised his actions may result in him being deported.
The Tribunal considered all of the circumstances, information, and documents provided by the applicant but concluded that his lengthy and repeat offending outweighed those factors that were in favour of not cancelling his visa.
The Court is satisfied that the Tribunal did in fact weigh each of the various matters that it had referred to against each other and gave the matter some considerable thought. The Court agrees with the respondent’s submission that the Tribunal’s reasoning evinces the same weighing process in the reasoning approved by Halley J in Thompson v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 76 at [60] – [62].
The Court rejects the applicant’s submission based on CRNL. That matter involved consideration of matters by reference to matters set out in a Ministerial Direction. In this case, there is no requirement to consider various matters. PAM 3 provides guidance to matters that might assist in the forming of a view as to whether or not a visa should in fact be cancelled, along with ‘any other relevant matter’. The Court is satisfied there is no requirement in considering the matters under PAM 3 to balance the various considerations against each other. All that is required is that weight be given to the various considerations, and then a final conclusion arrived at as to whether or not the visa should be cancelled. Ground one has no merit.
In ground two, the applicant argues that reg 2.43(1)(oa) is inconsistent with the Act relying on Plaintiff S297/2013. This argument relies on the proposition that, though s 501 of the Act, Parliament has exhaustively prescribed the visa consequences that flow from a criminal conviction. The Court does not accept that. As pointed out by the respondent, the clear terms of s 501H of the Act make it clear that the powers in s 501 are “in addition to” any other powers of the Act. Section 501 does not “evince any intention to exhaustively cover the circumstances in which a criminal record may be taken into account”; VWOK at [19].
Ground three is a contention the Tribunal failed to consider the legal consequences of its decision, or in the alternative, was legally unreasonable. The applicant submits the Tribunal failed to consider the application of public interest criterion (PIC) 4014 and instead only referred to PIC 4013 at [72]. At that paragraph, the Tribunal noted that if the applicant’s visa was cancelled, it limited the other visas for which you could apply. It would also be subject PIC 4013 which would prevent him from being granted a visa for three years unless there were compelling and compassionate circumstances (cl 4103(3)).
The Tribunal noted that the most likely outcome if his visa was cancelled was that the applicant would be detained and removed from Australia to Pakistan.
PIC 4014 meant that the applicant would be barred from applying for a visa for a further five months and the ban imposed by PIC 4103. As pointed out by the respondent, it was not certain that PIC 4104 would apply to the applicant. It was contingent. It would only apply if the applicant did not leave Australia within 28 days of this cessation of his substantive visa, while the holder of a bridging visa, granted within 20 days of cessation of the substantive visa and only if the applicant made an application for the visa which was subject to the applicant meeting PIC 4014.
Thus, if the applicant left Australia on a bridging visa, that being promptly after the Tribunal’s decision, PIC 4104 would not have applied. It was not an inevitable legal consequence of the decision and thus did not require the Tribunal to consider the impact on it.
This distinction was referred to by Perry J in BNGP at [101] in which she said:
… in deciding whether decision is legally unreasonable because of a failure by the decision-maker to consider the full legal consequences of the decision, a distinction needs to be drawn, on one hand, an inevitable or certain legal consequence as in CWY20 and, on the other hand, a consequence which is merely probable or arguable.
The Court is not satisfied that reasonableness compelled the Tribunal to consider some speculative possibility which in fact was not even raised by the applicant before the Tribunal. Ground three has no merit.
Ground four is an assertion that the Tribunal makes findings about the applicant’s partner visa, which was referable to s 116(1)(a) of the Act. PAM 3 directs the Tribunal to consider “The purpose of the visa holder’s travel to and stay in Australia: delegates should assess whether the visa holder has a compelling need to travel to or remain in Australia.”.
By the time the matter came before the Tribunal for consideration, the applicant was divorced from his previous partner. Thus, the original basis upon which he received a visa which allowed him to continue to remain in Australia, following the expiration of student visas, had evaporated. The Tribunal properly considered the fact that the applicant’s three children with his previous partner were no longer in her care and were in the care of the Minister. Further, the applicant had very limited contact with them. The Court does not accept that it was not within the Tribunal’s jurisdiction to consider the issue of the applicant’s purpose for being in Australia. In this regard the Court is comforted by the decision of Judge Vasta in Nepal at [60] and [64] where the following was said with regard to s 116:
[60] There is no doubt to my mind, in any event, that the AAT can look at whether there are any other grounds for cancellation in looking at the matters that it can take into account in exercising the discretion.
…..
[64] Obviously, there is a difference between (e) and (g) and it cannot be said that there was any form of prohibition in looking at other reasons why a visa can be cancelled in the exercise of discretion.
As a matter of comity, unless the Court is satisfied the above analysis was just plain wrong, it should follow the finding. The Court is not satisfied that what is set out above is plain wrong. The Court is satisfied there is no prohibition on the Tribunal considering, as part of its discretion, whether the applicant in this case continues to satisfy the conditions for the grant of a partner visa, which was the substantive visa he was on before the cancellation took effect. Ground four has no merit.
As the applicant is unrepresented, the Court has perused the Tribunal decision record and associated Court books but is unable to ascertain any articulated jurisdictional error.
DETERMINATION
In these circumstances, the application must be dismissed with costs.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 12 December 2024
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