Uriaere v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Uriaere v Minister for Home Affairs [2019] FCAFC 235

Appeal from: Uriaere v Minister for Home Affairs [2018] FCA 2084
File number: NSD 270 of 2019
Judges: FLICK, BROMWICH, BURLEY JJ
Date of judgment: 18 December 2019
Catchwords: MIGRATION – appeal from a decision of the Federal Court of Australia – where appellant’s visa cancelled by delegate of the Minister for Home Affairs under mandatory cancellation provisions – where delegate of the Minister decided not to revoke mandatory cancellation – where Administrative Appeals Tribunal decided to revoke the cancellation of appellant’s visa – where Minister set aside Tribunal’s decision – where primary judge dismissed application for judicial review – where appellant sought leave to raise new grounds on appeal – whether leave to be granted to appellant to raise new grounds on appeal – whether Minister misdirected himself regarding the operation of s 501BA(3) of the Migration Act 1958 (Cth) – whether, if further representations were received by the appellant, those representations could realistically have produced a different result – held: leave granted to raise new grounds on appeal – appeal allowed
Legislation: Migration Act 1958 (Cth) ss 501(3A), 501BA(2), 501BA(3), 501CA, 501CA(2), 501CA(3)
Cases cited:

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1

Ibrahim v Minister for Home Affairs [2019] FCAFC 89

Nguyen v Minister for Home Affairs [2019] FCAFC 128

Uriaere v Minister for Home Affairs [2018] FCA 2084

Weti-Safwan v Minister for Home Affairs [2019] FCAFC 173
Date of hearing: 18 November 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 23
Counsel for the Appellant: Mr N Williams SC with Ms S Phillips
Counsel for the Respondent: Mr C Horan QC with Ms R Francois
Solicitor for the Respondent: Clayton Utz

ORDERS

NSD 270 of 2019
BETWEEN:

WICHMAN URIAERE

Appellant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGES:

FLICK, BROMWICH, BURLEY JJ

DATE OF ORDER:

18 DECEMBER 2019

THE COURT ORDERS THAT:

1.Leave be granted to the appellant to amend the notice of appeal.

2.Leave be granted to the appellant to raise new grounds on appeal.

3.The appeal be allowed.

4.Order 4 made by the primary judge on 21 December 2018 be set aside. 

5.The visa cancellation decision made by the respondent on 9 January 2018 be set aside.

6.The appellant be released from immigration detention forthwith.

7.The respondent pay the appellant’s costs of the appeal as assessed or agreed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

THE COURT:

  1. A delegate of the respondent, the Minister for Home Affairs, cancelled the visa of the appellant, Mr Wichman Ngaoa Uri Uriaere, on character grounds, as was mandated by s 501(3A) of the Migration Act 1958 (Cth). All statutory provisions referred to in the balance of these reasons are under the Migration Act. 

  2. Section 501CA provides that when mandatory visa…

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Details
Case
[2019] FCAFC 235
Decision Date

CaseChat Overview and Summary

The case of Uriaere v Minister for Home Affairs involves the appellant, Mr Uriaere, who is a citizen of New Zealand, having migrated to Australia at a young age and living there since. His visa was cancelled by a delegate of the Minister for Home Affairs under mandatory cancellation provisions, but the delegate decided not to revoke the cancellation. The Administrative Appeals Tribunal later decided to revoke the cancellation, but this decision was set aside by the Minister. The primary judge dismissed Mr Uriaere's application for judicial review, and he now seeks leave to raise new grounds on appeal. The central issue in this case is whether the Minister misdirected himself regarding the operation of s 501BA(3) of the Migration Act 1958 (Cth) and if further representations from the appellant could have realistically produced a different result.

The court held that leave should be granted to the appellant to raise new grounds on appeal, and the appeal should be allowed. The court found that the Minister had indeed misdirected himself regarding the operation of s 501BA(3), which does not preclude the Minister from choosing to afford procedural fairness as part of the process in making a decision under s 501BA(2). The error made by the Minister in this case was found to be material, as there was a real possibility that if further representations were received by the appellant, those representations could have produced a different result. The court held that the Minister's error was a jurisdictional one and, therefore, the decision to set aside the Tribunal's decision was flawed.

In conclusion, the appeal was allowed, and the orders dismissing the judicial review application were set aside. Mr Uriaere was ordered to be released from immigration detention forthwith, and the Minister was ordered to pay the costs of the appeal. The court found that the materiality of the error made by the Minister was significant, as there was a real possibility that further representations from the appellant could have produced a different result.

Orders

Orders of the court

1. Leave be granted to the appellant to amend the notice of appeal.

2. Leave be granted to the appellant to raise new grounds on appeal.

3. The appeal be allowed.

4. Order 4 made by the primary judge on 21 December 2018 be set aside.

5. The visa cancellation decision made by the respondent on 9 January 2018 be set aside.

6. The appellant be released from immigration detention forthwith.

7. The respondent pay the appellant’s costs of the appeal as assessed or agreed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The Minister does not dispute that s 501BA(3) does not preclude the Minister from choosing to afford procedural fairness as part of the process in making a decision under s 501BA(2). The Minister accepts that him reading s 501BA(3) in that way is erroneous. However, the Minister contends that both Nguyen and this case are not like Ibrahim, such that the error made as to the effect of s 501BA(3) in both cases was not jurisdictional because it was not material. Alternatively, the Minister’s seeks to distinguish Nguyen and thereby to assert that the materiality of the error has not been established by Mr Uriaere so as to demonstrate that it is a jurisdictional error on the facts and circumstances of this case.The salient facts The primary judge summarised the facts succinctly as follows (at [4] to [6]):Mr Uriaere was born in the Cook Islands and is a citizen of New Zealand. He left the Cook Islands and migrated to Australia with his family when he was four years old. He has not returned since that time. He has never lived in New Zealand. He is now 26 years old. While he has lived in Australia almost all his life, Mr Uriaere never became an Australian citizen. He was permitted to live in Australia pursuant to a particular category of visa which allowed New Zealand citizens to reside and work in Australia while they remained New Zealand citizens: a Class TY Subclass 444 Special Category (Temporary) visa. Some of Mr Uriaere’s siblings appeared to have become Australian citizens, though that was mainly because they were born here. It may readily be assumed that Mr Uriaere now wishes that he too had become a citizen.Mr Uriaere’s life in Australia has, to say the very least, not been trouble-free. He has an undeniably lengthy criminal record. His offending began in 2008, when he was only 16 years of age. He has been before various courts on many occasions since that time. Many, if not most, of the offences committed by him have been fairly minor. Some have been more serious and have led to sentences of imprisonment. He could fairly be described as having been a recidivist. The basal cause of his offending behaviour would appear to have been chronic substance abuse and the lifestyle which substance abuse of that sort almost invariably engenders. He has, albeit in fairly recent times, taken steps to try to beat his substance abuse. There have been some positive signs. At all stages, a critical issue has been the assessment of the ongoing risk that Mr Uriaere poses to the community by reason of his lapses into reoffending, including by reason of recurrent substance abuse, and community expectations as to visa cancellation. The Tribunal made the following findings as to community expectations (at [45] to [46]):Community expectations would in my opinion take account of seven main things:(a)First, the important role which the applicant plays within his family, especially his younger siblings. The tragedy of the death of the father of the three younger children and its continuing effect on them would not fail to engage the sympathy of the Australian community, and the beneficial support role played by the applicant in the family, especially his younger siblings and his mother, who have itself done nothing to deserve the further misfortune of his removal to New Zealand.(b)Second, the fact that the applicant has lived here for twenty years, since he was five, and has the real possibility of contributing in positive ways to the community, despite his record.(c)Third, there is his record itself, which is substantial and such that removal to his country of origin (as he was warned might occur), would be regarded as something for which he has himself to blame.(d)Fourth, there is the quality of his offending, which, as the remarks on sentence made at the time of his most serious sentence indicate, was slightly above low range.(e)Fifth, there is the fact that he has undergone a course of rehabilitation which has involved him being drug-free for more than 20 months, as he has both the means and the strong motivation not to regress into a life of crime.(f)Sixth, the fact that he has no connection with New Zealand at all, despite his citizenship.(g)Finally, it seems to me that the community would appreciate that the applicant has served his time and now finds himself still deprived of his freedom because of immigration detention. Putting those things together suggests to me that especially because of the first factor I have mentioned, the Australian community would regard the revocation of the cancellation of the applicant's visa as the appropriate result. ·The mandatory considerations which I am required to take into account include the various matters to which I have referred, and two of the primary considerations to which I have referred (the interests of minor children and the expectations of the community) favour revocation of the cancellation of the applicant's visa. The other considerations so far as relevant favour the same result. The past offending of the applicant produces the risk that he will reoffend. That risk is less in the case of this applicant than in others who face the same consequence. That is because the applicant is conscious that it is his family who will be the losers if he reoffends. It seems to me that the best interests of minor children is a factor that in appropriate cases, ought to be a primary factor and that this case is a good example of why that is so.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Minister was expressly concerned that there was insufficient material regarding Mr Uriaere’s time in the community free of drug-taking and reoffending to allay his concerns as to the assessment of Mr Uriaere’s risk to the community. The Minister’s reasons pointed to a month in the community being insufficient time. Necessarily, that meant a longer time was capable of providing more comfort and, perhaps, sufficient comfort. Given how important the Minister considered that issue to be, material that could have had a real bearing on allaying that concern held by the Minister is enough to render the error material by reason of creating the real possibility of a different decision. Conclusion The appeal must be allowed, the orders dismissing the judicial review application set aside; and in lieu thereof, the application be allowed and the Minister be ordered to release Mr Uriaere from immigration detention forthwith. The costs order made by the primary judge should stand, but the Minister should pay the costs of this appeal, notwithstanding the abandonment of prior grounds of appeal.

Ratio Decidendi

Legal Principle Established

It is therefore clear that the Minister in this case made the same error as to the effect of s 501BA(3) as was made in Ibrahim, Nguyen and Weti-Safwan.Materiality of the error as to the operation of s 501BA(3) The parties largely differed in the view that should be taken of the material from Mr Uriaere, reproduced at [15] above, and also as to the correct test to be applied in the assessment of materiality. In Ibrahim, there was affidavit evidence as to relevant material that would have been made available to the Minister had the error as to the operation of s 501BA(3) not been made, and a decision made to invite representations had instead been made. This evidence was adverted to in the passage from Ibrahim at [63] (in the reference to [15] of that judgment), reproduced above at [17]. That passage was referred to in Nguyen (at [48]), and, insofar as evidence was adduced by the appellant in that matter, it was found to go further than was necessary to demonstrate the materiality of the error. There was then some discussion in Nguyen (at [49] to [50]) as to what was required to establish materiality so as to show that an error was jurisdictional in accordance with Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 359 ALR 1. In substance, the Full Court in Nguyen found (at [51]) that analysis of the kind that took place in Hossain was not necessary because there was already a clear causal link between the error and the Minister’s decision, and it could not be said that the failure to consider whether to give an opportunity to be heard was logically independent of, or could not have made any difference to the decision. The Full Court in Nguyen then reasoned (at [52] to [55]):In Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 363 ALR 599, at [45], Bell, Gageler and Keane JJ said that materiality is in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision. (It was this reasoning with which Nettle and Gordon JJ disagreed in SZMTA at [90] and following, their Honours being of the view that materiality of error was not a criterion of jurisdictional error.)We would conclude that although, as their Honours state at [46], the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof, those factual questions are likely to be more significant in a case concerning a breach of procedural fairness, which SZMTA was. That may be, at least in part, because obligations to afford procedural fairness, where “fairness” is to be regarded not in the abstract but as an “essentially practical” concept, reflect a concern to “avoid practical injustice”: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]. However, it will not always be incumbent on a person who seeks to establish a jurisdictional error to demonstrate by evidence what would have, or may have, occurred had the relevant legal error not been made. First, a court may draw inferences as to whether the identified error could have affected the Minister’s decision. Second, much will turn on the facts of the case, the decision making process and the kind of error alleged. This is true even of breaches of procedural fairness: we do not see the statements in Hossain and in SZMTA as modifying what was said by Gageler and Gordon JJ in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [55]-[60]. Their Honours said:[Quote omitted]As we have said, the present appeal is not on analysis a procedural fairness case. It is, in our opinion, not a case where it is incumbent on the appellant to prove, by evidence, what may have occurred had the Minister correctly understood the nature of the power he was exercising.