Va'a v Minister for Immigration, Citizenship, Multicultural Affairs and Migration Services
[2022] FCA 1412
•25 November 2022
FEDERAL COURT OF AUSTRALIA
Va’a v Minister for Immigration, Citizenship, Multicultural Affairs and Migration Services [2022] FCA 1412
Review of: Application for judicial review of Va’a v Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 573 File number: VID 175 of 2022 Judgment of: MCEVOY J Date of judgment: 25 November 2022 Catchwords: MIGRATION – application for judicial review of decision of the Administrative Appeals Tribunal – Tribunal affirmed decision of Minister’s delegate not to revoke a mandatory cancellation of a special category (subclass 444) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) – no illogicality or irrationality in the Tribunal’s reasons – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth) ss 501(3A), 501(7)(c), 501CA(4)
Criminal Code 1899 (Qld) s 328A
Police Powers and Responsibilities Act 2000 (Qld) s 754(2)
Ministerial Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA cl 5.2(4), 8.1.2, 9.4.1
Cases cited: Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 288 FCR 565; [2021] FCAFC 195
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456
CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628; [2018] FCAFC 225
Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 37 Date of hearing: 12 October 2022 Solicitor for the Applicant: Mr McComber of Sentry Law Counsel for the First Respondent: Mr Barrington Solicitor for the First Respondent: Sparke Helmore Solicitor for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
VID 175 of 2022 BETWEEN: JOHN VA'A
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MULTICULTURAL AFFAIRS AND MIGRATION SERVICES
First Respondent
AND: ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
MCEVOY J
DATE OF ORDER:
25 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The application for judicial review filed 5 April 2022 be dismissed.
2.The applicant pay the first respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MCEVOY J:
By application filed 5 April 2022, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal made on 1 March 2022 to affirm a decision of a delegate of the First Respondent (the Minister) not to revoke the mandatory cancellation of the applicant’s Special Category (Temporary) (Class TY) (Subclass 444) visa under s 501CA(4) of the Migration Act 1958 (Cth).
The applicant is a citizen of New Zealand who was 29 years old at the time of the Tribunal’s decision. He first arrived in Australia with his family in June 1995 when he was 30 months old. His family moved back to New Zealand in January 2004, before returning to Australia in July 2004. Apart from that period, he has otherwise ordinarily resided in Australia since 1995.
It would seem that in about 2018 the applicant began using methylamphetamine, and between 2018 and 2020 he committed some 32 criminal offences.
On 22 May 2020 the applicant was convicted of a charge of “dangerous operation of a vehicle” (under s 328A of the Criminal Code 1899 (Qld)) and an “evasion offence” (under s 754(2) of the Police Powers and Responsibilities Act 2000 (Qld)). He was sentenced to 12 months’ imprisonment on each count.
On 1 October 2020 the applicant’s visa was mandatorily cancelled under s 501(3A) of the Act. The applicant had a substantial criminal record under s 501(7)(c) of the Act.
On 22 October 2020 the applicant made representations to the Minister requesting revocation of the cancellation decision, however on 6 December 2021 the Minister’s delegate decided not to revoke the cancellation decision.
On 15 December 2021 the applicant applied to the Tribunal for merits review of the delegate’s decision. On 1 March 2022, after a hearing at which the applicant was represented, the Tribunal affirmed the delegate’s decision. The Tribunal provided written reasons for its decision on 30 March 2022.
GROUNDS OF APPLICATION FOR REVIEW
The applicant now advances and particularises the following grounds of review in his originating application in this Court:
1.The Tribunal’s putative state of mind that there was not ‘another reason’ for revocation for the purposes of s 501CA(4)(b)(ii) was vitiated by illogicality and/or irrationality on the following grounds:
a) in determining the risk of harm to the community if the Applicant were to engage in further offending the Tribunal had regard to logically irrelevant information and material, including:
i. the impact of the unlawful trade in illicit drugs, in circumstances where the Applicant had never been charged with, convicted of, or otherwise accused of the supply or distribution of drugs in the community;
ii. the possibility that methamphetamine use can trigger psychological disturbances and aggressive behaviour ‘for some people,’ despite the absence of any evidence that it had that effect on the Applicant;
b) the Tribunal’s finding that the strength, nature and duration of the Applicant’s ties to Australia weighed only moderately in favour of non-revocation is logically irreconcilable with the prescriptions of paragraph [9.4.1] of Direction 90 and the Tribunal’s its findings [sic] that:
i.the Applicant’s immediate family would be ‘devastated’ by a non-revocation decision;
ii. the Applicant had lived in Australia since he was one year old, with the exception of a one-year period between ages 11 and 12;
iii. the Applicant had a history of being socially engaged with the Australian community; and
iv. the Applicant had maintained employment in Australia for a number of years and was a hard worker,
particularly in circumstances where the Tribunal provides no justification for its decision to only appropriate ‘moderate’ weight to this consideration.
2.The Tribunal’s putative state of mind that there was not ‘another reason’ for revocation for the purposes of s 501CA(4)(b)(ii) was vitiated in consequence of its failure to properly consider the mandatory consideration prescribed by paragraph [8.4] of Direction 90.
Particulars
A. Consistent with authority, the Tribunal was required to determine the question of not whether the Australian community would expect the Applicant to forego the privilege of holding a visa, but the weight to be afforded to the deemed expectation that he should forego the privilege of holding an Australian visa.
B. The Tribunal was required to consider the appropriate weight to be ascribed to the consideration prescribed by paragraph [8.4] having regard to the degree of tolerance afforded by paragraph [5.2(4)] of Direction 90, which provides:
Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life or from a very young age.
C. Despite this, the Tribunal expressly disregarded the length of time the Applicant had lived in the Australian community when deciding how much weight to afform to the primary consideration prescribed by paragraph [8.4] of Direction 90.
3.The Tribunal’s decision is affected by jurisdictional error on the basis that there was no evidence to support its conclusion that the Applicant would ‘in all likelihood be able to communicate with his son at some point.’
Particulars
A. The Tribunal accepted that the Applicant was the father of a young child [Child A], despite the Applicant not being listed on Child A’s birth certificate as his father.
B. The Tribunal accepted that the Applicant has never had any contact with Child A.
C. The Tribunal accepted that Child A was in the care of the Queensland Government.
D.There was no evidence before the Tribunal suggesting that the Queensland Government would facilitate electronic or telephonic communication with a person not including [sic] on Child A’s birth certificate.
E. There was no evidence before the Tribunal of the possibility or probability of the Applicant being able to satisfy the Queensland Government that he is the biological father of Child A from outside of Australia.
For the reasons that follow I have determined that each of these grounds fail and that the application should be dismissed.
GROUND 1: WAS THERE ILLOGICAL OR IRRATIONAL REASONING IN THE TRIBUNAL’S FINDING THAT THERE WAS NOT ANOTHER REASON FOR REVOCATION?
The applicant contends that the Tribunal’s path of reasoning in respect of two mandatory considerations prescribed by Ministerial Direction 90 were illogical and irrational, specifically the Tribunal’s reasoning in respect of:
(a)the protection of the Australian community (cl 8.1.2 of the Direction); and
(b)the strength, nature and duration of the applicant’s ties to Australia (cl 9.4.1 of the Direction).
This is, in substance, an allegation that the Tribunal fell into jurisdictional error by reasoning illogically or irrationally in respect of two of the considerations contained within the Direction.
Protection of the Australian community
The applicant submits, in effect, that having found that he was a risk of engaging in similar offences to those he had already committed, it was irrational for the Tribunal to refer to information from the Final Report of the National Ice Taskforce and an extract from the National Drug Strategy (2016-2020). The applicant says that the Tribunal ought to have constrained its consideration to the harm that might result if the applicant were to offend in a similar manner as his previous offending.
The Minister disputes that there was any irrationality in this regard and refers generally to the difficulty of showing jurisdictional error on the basis of illogicality or unreasonableness: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at 27-28 [33], citing Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 551 [11], 564 [52], and 586 [135]; Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at 563 [26]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 647–650 [130]–[135]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496 at 517–518 [60]; and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 288 FCR 565 at 598 [142].
In particular, the Minister contends that it was not irrational for the Tribunal to refer to information from the Final Report and the National Drug Strategy in order to consider the wide-ranging harms caused by ice use generally when considering the impact on the community should the applicant reoffend. The Minister submits that the Tribunal, at [63]-[69] of its reasons, explained why it considered that if the applicant offended in “similar or identical unlawful conduct” such offending “would involve physical and/or psychological harm, with a more realistic possibility of such harm resulting in devastating consequences”. The Minister submits that the Tribunal was not, by referring to the Final Report, erroneously finding that the applicant would reoffend in a violent manner. In any event, the Minister contends that the Tribunal was obliged to have regard to the risk to the Australian community should the applicant commit further offences and that it was not illogical to consider the possible impact of violent offending.
Whilst the applicant submits that he was never charged with any violent offence, the Minister notes that the applicant was accused of becoming aggressive towards police after being arrested and that the applicant’s driving offences had a clear risk of physical harm. Furthermore, in oral argument the Minister submitted that at [66] of its reasons the Tribunal expressly stated the “[a]pplicant’s driving is relevant” and that “[r]oad trauma has already been referenced above” when considering the impact of harm on the community. Importantly, the Tribunal concluded that the charge relating to the dangerous operation of a motor vehicle was of a “very serious nature”. Referring to the transcript of the hearing before the magistrate, the Tribunal noted that the offending involved the applicant in a police chase where he almost collided with a police officer who was deploying “stingers” in an attempt to stop the applicant. According to the magistrate, the applicant “could have run over a police officer”, he actually “drove on the wrong side of the road through stop lights” and he drove on the footpath while pedestrians had to get out of the way, creating a danger to others. The magistrate said: “You could have killed somebody. You could have killed somebody. Your dangerous behaviour is serious”.
The Minister submits that the Tribunal was considering the impact of the applicant engaging in similar offending, not the impact of him engaging in precisely the same offending, and considering the impact such offending may have. The Minister contended that this part of the Tribunal’s reasons should not be read as the Tribunal saying that the applicant will commit a violent offence and that these are the impacts; rather, the Tribunal should be taken to have been considering the impacts of ice use generally and then identifying whether they have particular relevance in this case.
I do not accept the applicant’s submission that it was irrational or illogical for the Tribunal to consider the Final Report and the National Drug Strategy despite the applicant never having been convicted, charged or otherwise accused of any violent offence or offence involving the sale or distribution of dangerous drugs. The Tribunal was obliged to consider the risk to the Australian community should the applicant commit further offending. The Tribunal considered the impact of the applicant engaging in similar offending and in doing so made reference to the Final Report and the National Drug Strategy which outlined the impact of methamphetamine in the community and the types of harm that can be caused by illicit drugs. In the context of the applicant’s offending there was no irrationality or illogicality on the part of the Tribunal by referring to these documents.
Strength, nature and duration of ties
In this particular the applicant submits that the Tribunal’s conclusion that his ties to Australia “weigh moderately in favour of revocation” was unresponsive to the Tribunal’s earlier reasoning relating to that consideration.
The applicant contends that the Tribunal’s moderate weight finding does not “conform on its face with ordinary rules of reasoning”. It is submitted that this is so because the Tribunal accepted in its reasons that the applicant’s family would be devastated if he were to be removed from Australia, that he had lived in Australia since he was one year old and therefore that he is entitled to greater weight under this consideration, and that he had a history of study, friendship, sport, church and employment in Australia. The Tribunal’s conclusion as to weight, the applicant submits, therefore appears to have been unresponsive to cl 9.4.1 and 5.2(4) of the Direction.
The Minister submits that this complaint evinces no illogicality or irrationality. First, it is said to be an impermissible attack on the weight given to the consideration by the Tribunal and that the weight to be afforded to the representations is a matter for the decision maker: Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 at 425 [24].
Secondly, in response to the applicant’s argument that the moderate weight finding does not conform with “ordinary rules of reasoning” and related criticisms, the Minister notes that the High Court has cautioned against using labels such as “active intellectual process” and “proper, genuine and realistic consideration” as phrases which have a propensity to create a warrant to scrutinise the substantive merits of a decision: see M1/2021 at 426 [26]. Noting also the observations of Allsop CJ in Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628 at 630 [3], which caution against decision-makers adopting decisional checklists, the Minister submits that no such criticism of the Tribunal can be levelled here. The Minister submits, and I accept, that the Tribunal at [160] and [165] directly confronted the consequences of non-revocation on the applicant, noting that it would result in the applicant’s permanent exclusion from Australia and that his immediate family would be “devastated”.
Thirdly, and in any event, the Minister submits that the Tribunal’s assessment of weight was reasonably open to it and at least falls far short of the extreme illogicality which the applicant would be required to show. In this respect the Minister notes that the Tribunal referred to the evidence of the applicant’s sisters to the effect that the applicant’s mother and father and possibly younger sister would return to New Zealand with the applicant if he were removed from Australia. The Minister submits that this is plainly a matter capable of moderating the weight to be given to this consideration.
I accept the Minister’s submissions in answer to these criticisms of the Tribunal’s reasons. Contrary to the applicant’s submissions, I do not accept that the Tribunal giving moderate weight to this consideration was “left to some undisclosed feeling, intuition or instinct which appears on its face to have been unresponsive to [the Direction]”. It is clear that the Tribunal considered the strength, nature and duration of the applicant’s ties to the Australian community and to the impact of non-revocation on the applicant and his family. The Tribunal considered that it was possible the applicant’s family members would move with him back to New Zealand, and as such the Tribunal accorded moderate weight to the consideration. Plainly it is not for the Court to “substitute its decision for that of an administrative decision-maker”: see M1/2021 at 426 [26].
For these reasons ground one fails.
GROUND 2: WAS THERE A FAILURE TO CONSIDER A MANDATORY CONSIDERATION?
By ground two the applicant contends that the Tribunal failed to consider a mandatory relevant consideration. The applicant appears to contend that the Tribunal was required to consider cl 5.2(4) of the Direction when assessing the weight to be given to the expectations of the Australian community. Clause 5.2(4) states, among other things, that “Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.”
The applicant submits that the Tribunal refused to inform its consideration in its decision of the weight to be ascribed by the expectations of the Australian community the accepted facts that the applicant had lived in Australia for the majority of his life or since the age of 30 months. It is said by the applicant that at [134] of its reasons the Tribunal expressly disavows consideration of these matters on the basis that they are properly considered elsewhere in the reasons. The applicant contends that this was a failure to take into account a mandatory relevant consideration which resulted in jurisdictional error, and that the error was material.
The Minister submits in response that even if the applicant could show that cl 5.2(4) of the Direction was a mandatory consideration, this ground cannot succeed because the Tribunal expressly considered the relevant subclause and set it out at [127] of its reasons as follows:
I note, based on the principles in paragraph 5.2 of the Direction, that:
…
(b) Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life; and
…
The Minister contends that it is significant that the Tribunal italicised the word “may” from cl 5.2(4) of the Direction in paragraph 127(b) of its reasons, that word not being italicised in the Direction itself. In this regard the Minister submits that the Court should draw an inference that the Tribunal’s emphasis on the word “may” reflects its observation that it was not required to proceed on the basis that Australia will afford a higher level of tolerance of criminal conduct by non-citizens who have lived in Australia for most of their lives. Furthermore, the Minister submits that the Tribunal had express regard to the applicant’s submissions concerning the weight to give to the consideration relating to the expectations of the community including that he had resided in Australia since he was one year of age. Whilst the Tribunal did not bring those matters to bear in its assessment of weight, the Minister notes the Tribunal’s observation at [134] that “[o]ther than the matters that are properly considered elsewhere in these reasons, there are no other factors that counteract the expectation of the Australian community”.
Thus the Minister contends that the Tribunal had regard to the relevant parts of the Direction, considered the applicant’s submissions concerning weight, and considered that the matters raised by the applicant were more appropriately taken into account elsewhere. The Minister submits, and I accept, that this approach coheres with the statement of the majority in M1/2021 at [26] that the Tribunal “must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them.”
Furthermore the Minister submits that it was not irrational for the Tribunal not to place weight on the matters referred to by the applicant as the Tribunal plainly considered that this was a case which engaged the principle that even strong countervailing considerations were insufficient to justify revoking the cancellation decision, and that it was rational to consider that the circumstances upon which the applicant relied were more appropriately considered elsewhere.
I accept the Minister’s submissions in answer to these criticisms of the Tribunal’s reasons. I do not accept, as the applicant submits, that the Tribunal expressly refused to consider that the applicant had lived in Australia for the majority of his life or since he was 30 months old when contemplating the weight to be ascribed to the expectations of the Australian community. The Tribunal expressly had regard to the relevant parts of the Direction, considered the applicant’s submissions, and considered that the matters raised by the applicant were more appropriately taken into account elsewhere in its reasons. This is not inconsistent with the approach contemplated by the High Court in M1/2021. I am not satisfied that there is any jurisdictional error made out on this ground, and so ground two fails also.
GROUND 3: WAS THERE AN ILLOGICAL FINDING IN RELATION TO THE APPLICANT’S FUTURE COMMUNICATION WITH HIS SON?
By ground three, the applicant contends in substance that the Tribunal’s finding (“The reality is that were the applicant to be removed from Australia, he would in all likelihood be able to communicate with his son at some point”) was illogical or irrational, or based on no probative material.
The applicant submits that this was an illogical finding that was material because had the Tribunal not found that the applicant and his son were likely to be able to communicate even if the applicant were removed, it is possible that the Tribunal would have placed greater weight on the best interests of that child for the purposes of the primary consideration pursuant to the Direction.
The Minister submits that this ground fails to have regard to relevant context and, I accept, seeks to examine the Tribunal’s reasons with an eye keenly attuned to the perception of error: see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. It is said by the Minister that the Tribunal recognised the limitations of the applicant’s parental role with his son in the “immediate future” given that his son is in State care and on the basis of the applicant’s own evidence that “it could take some time for him to be reunited with his son”. The Tribunal then referred to the applicant’s ability to play a positive parental role “in the mid to long term”, and accepted that the applicant and his son “face the prospect of being permanently separated, at least until the applicant’s son is 18 years old”. Therefore the Minister submits that, read in context, the Tribunal’s statement that the applicant would be able to communicate with his son “at some point” does not mean “at some point soon”. Rather, “at some point” should be taken to mean that the applicant would be able to communicate with his son eventually. The applicant disputed this construction in oral submissions and contended that the Direction is concerned with minor children under the age of 18. In response the Minister submitted that the Tribunal was not necessarily to be taken as referring to the child after he turns 18, but rather was recognising that there is a likelihood that the applicant could resume telephone contact with the child at some point in time.
The Minister submits that such a conclusion was not illogical and was open given the likelihood that the court processes relating to the applicant’s son might play out in such a way as to permit telephone contact at some stage. It was also consistent with the applicant’s evidence that he understood it may take time for the relevant State child protection authorities to become confident about his ability to care for his son.
The Tribunal’s conclusion in relation to this aspect of the matter was plainly not illogical or irrational either. It was entirely open, and based on a consideration of the evidence. The applicant has thus failed to establish jurisdictional error on the part of the Tribunal in relation to ground three also.
CONCLUSION
The applicant having failed to establish jurisdictional error in the relevant sense on any of the grounds of review advanced, the application will be dismissed. The applicant will be ordered to pay the first respondent’s costs.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McEvoy. Associate:
Dated: 25 November 2022
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