VKTT v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

VKTT v Minister for Home Affairs [2019] FCA 1018

File number: NSD 2140 of 2018
Judge: BURLEY J
Date of judgment: 28 June 2019
Catchwords: MIGRATION – application to set aside decision of Administrative Appeals Tribunal – where the applicant’s visa was cancelled on character grounds pursuant to s 501(3A)(b) Migration Act 1958 (Cth) – where the Tribunal affirmed the decision of the Minister not to revoke the cancellation of the visa – whether the Tribunal failed to take into account mandatory considerations required by Ministerial Direction 65 – application granted
Legislation:

Acts Interpretation Act 1901 (Cth) s 25D

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Migration Act 1958 (Cth) s 501(3A), 501(6), 501CA
Cases cited:

Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; 113 ALD 46

Benrabah v Minister for Home Affairs [2019] FCA 521

Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2018] NSWCA 276

Minister for Home Affairs v HSKJ [2018] FCAFC 217; 363 ALR 325

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67

Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99

NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1

Re Ruddock; Ex parte S154/2002 [2003] HCA 60; 201 ALR 437

Williams v Minister of Immigration and Border Protection [2014] FCA 674; 226 FCR 112

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Date of hearing: 27 May 2019
Registry: New South Wales
Division: General
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs:  67
Solicitor for the Applicant: Zali Burrows Lawyers
Counsel for the Applicant: Mr D. Hume
Solicitor for the First Respondent: Clayton Utz
Counsel for the First Respondent: Ms B. K. Nolan
Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

ORDERS

NSD 2140 of 2018
BETWEEN:

VKTT

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

BURLEY J

DATE OF ORDER:

28 JUNE 2019

THE COURT ORDERS THAT:

1.A writ of certiorari is issued quashing the decision of the second respondent dated 13 September 2018.

2.The matter be remitted to the second respondent, differently constituted, for re-determination according to law.

3.The first respondent pay the applicant’s costs of the proceedings save that the applicant is to pay the first respondent’s costs thrown away by reason of the adjournment of the hearing on 7 March 2019, to be assessed if not agreed.

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


REASONS FOR JUDGMENT

BURLEY J:

1.                 INTRODUCTION

  1. The applicant is a citizen of New Zealand aged 40. He first arrived in Australia in 2006 and has lived here since that time on a temporary visa. He has an extensive criminal history. Before he arrived in Australia he had been convicted of…

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Details
Case
[2019] FCA 1018
Decision Date

CaseChat Overview and Summary

VKTT, an applicant for a visa, sought judicial review of the Minister for Home Affairs' decision to uphold the cancellation of his visa on character grounds. The case was heard in the Federal Court of Australia. The central issue was whether the Administrative Appeals Tribunal (AAT) erred in not considering mandatory considerations under Ministerial Direction 65 when affirming the visa cancellation. The applicant argued that the AAT failed to properly weigh his psychologist's evidence regarding his intent to rehabilitate and distance from antisocial activities, and that this omission constituted a jurisdictional error. The Minister contended that the AAT's decision was sound and that the omission of specific considerations did not alter the outcome since the Tribunal found that revocation was not in the best interests of the applicant's minor children.

The court found that the AAT did not err in failing to consider the psychologist's evidence as the applicant's intent to rehabilitate was already accounted for in the Tribunal's assessment of his character and potential for reform. The court held that the Tribunal's task was to weigh all relevant evidence, not to explicitly address each piece of evidence individually. The court further noted that the AAT had adequately considered the primary considerations set out in Direction 65, focusing particularly on the protection of the Australian community and the best interests of the applicant's children. The court concluded that the AAT's failure to mention every consideration was not fatal to its decision.

The court granted the application for judicial review, quashing the Minister's decision and remitting the matter to the AAT for re-determination. The court also ordered that the Minister pay the applicant's costs, except for the costs incurred due to the adjournment of the hearing, which were to be borne by the applicant.

Orders

Orders of the court

1. A writ of certiorari is issued quashing the decision of the second respondent dated 13 September 2018.

2. The matter be remitted to the second respondent, differently constituted, for re-determination according to law.

3. The first respondent pay the applicant’s costs of the proceedings save that the applicant is to pay the first respondent’s costs thrown away by reason of the adjournment of the hearing on 7 March 2019, to be assessed if not agreed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Accordingly, ground 2 succeeds. 5. GROUND 3: FAILURE TO CONSIDER PSYCHOLOGIST EVIDENCE In ground 3, the applicant contends that the Tribunal erred in failing to consider or properly consider the evidence of a clinical psychologist. In his oral evidence, Mr Cicchini gives the following evidence:And it was not your remit to treat [the applicant] for any drug or alcohol issues that he may have? --- Well, when one engages in treatment, one doesn’t exclude anything. But certainly, there was no contract, or – to engage in treatment of alcohol or substance use, or any other – what I’m saying, though, is when one engages in treatment, those issues are pertinent, and they get addressed. The applicant submits that the statements made at [35] of the Tribunal’s reasons that the applicant has “not had treatment for his drug and alcohol condition”, and at [36] where it says that he has not previously “taken the initiative” to seek treatment for his drug and alcohol condition, and that there was “no cogent evidence” before it that the applicant has been rehabilitated and is deterred from drug use, were contrary to cogent and probative evidence. The applicant contends that this evidence was not considered, and accordingly reflected jurisdictional error. The evidence that the applicant relies upon in support of this ground is a letter in which the psychologist says that the applicant has a “strong desire to rehabilitate himself by distancing from antisocial activities and peers”. The applicant also relies on the passage of oral evidence above where the psychologist accepts in cross examination that when he was engaged to treat the applicant in relation to his mental health issues, there was no contract to treat alcohol or substance use, but notes that this kind of treatment “doesn’t exclude anything” and that “when one engages in treatment, those issues are pertinent and they get addressed”. This ground appears to be a challenge to the weighing of the evidence conducted by the Tribunal, which is not a matter appropriate for review by this court. I would not infer from the content of the reasons of the Tribunal that it did not take into account the evidence of Mr Cicchini. In [34] of its reasons, the Tribunal refers both to Mr Cicchini’s written report and also his oral evidence concerning the terms of his contract of engagement. Accordingly, ground 3 must be dismissed. 6. COSTS AND DISPOSITION At the hearing, the Minister sought an order for costs on the basis of the adjournment of the hearing on 7 March 2019. I directed that the parties file short written submissions on the subject. They each rely on evidence, the Minister on two affidavits affirmed by Aaron Moss who is employed by the solicitors representing the Minister, and the applicant on an affidavit from his solicitor, Zali Burrows. It is my view that the Minister is entitled to an order that the applicant pay the costs thrown away by reason of the adjournment, to be assessed if not agreed. The applicant made a late application that the hearing fixed for 7 March 2019 be adjourned. The reasons given for the application were because counsel briefed in the matter was unable to appear, and because the applicant did not have the funds to pay alternative counsel. No explanation was provided by the solicitor as to whether or not counsel came to be unavailable at short notice or why. The adjournment was opposed. Because of the significance of the proceedings to the applicant, and the danger that he would not be represented by counsel if it was refused, the adjournment was granted. However, the costs thrown away should not be borne by the Minister.

Decision

Reasons for decision

The proceedings were initially listed for hearing on 7 March 2019. However, upon the application of the applicant I adjourned the hearing until 27 May 2019. I reserved the costs of the adjournment, which now fall to be determined. 2. THE DECISION OF THE TRIBUNAL After setting out some background matters concerning the New Zealand and Australian criminal offences of the applicant, the Tribunal found that the applicant did not pass the character test identified in s 501(6) of the Act. It then proceeded to consider the framework within which decision-makers should approach their task in accordance with Direction 65. The Tribunal identified as “Primary Consideration A” the protection of the Australian community from criminal or other serious conduct. It noted that the applicant had an extensive history of criminal offending and that over a 20 year period he has been convicted of 46 criminal offences in New Zealand and 16 criminal offences in Australia. In New Zealand he was convicted of a number of firearm offences in 1996, 2000 and 2001. In Australia he continued his involvement with firearms. The Tribunal records that in 2015 the applicant was convicted of unlawful possession of a weapon. In 2016, he was also convicted of the offence of going armed so as to cause fear in enforcing a drug debt. The Tribunal notes that in relation to this offence, the Magistrate remarked: “Now, what makes it difficult for you is that you were the one who drove the car in, you were the one who produced the weapon, you were the one who seemed to lead the class of clowns when you got out of the car”. The applicant responded “Yes” to this statement. The Magistrate also referred to the “strongarm tactics” of the applicant. The Tribunal notes that before it, the applicant confirmed that the weapon he had was a revolver and that the possession of explosives conviction related to his possession of ammunition. The Tribunal noted that in 2016 the applicant was convicted of assaulting a police officer. The Tribunal said, in relation to the nature of the offences:26My assessment is that the applicant has certainly been convicted of serious violent offences. He has recently been convicted of the unlawful possession of a firearm, being a revolver, and bullets. That weapon was used by the applicant when he committed his offence of going armed so as to cause fear, and the victim was certainly aware that the weapon was concealed. The dangerous driving offence was an offence of violence because the applicant unlawfully drove the victim’s car and attempted to use the vehicle to harm the victim who was injured. The Tribunal also noted that the applicant had given false information when he did not disclose his prior criminal behaviour when coming into Australia in 2006 and that on 21 June 2013 he had received a formal warning about the consequences of further offending in terms of his migration status. This letter had been acknowledged by the applicant, but since then the applicant had four further court appearances and was found guilty of serious violent offences after that date.

Ratio Decidendi

Legal Principle Established

The respondent submits in answer that the contentions of the applicant are premised on a failure to consider clauses 13.2(4)(b), (c) and (f) of Direction 65 on the basis that there are no specific findings on those issues. However, the Minister submits that it was plainly pivotal to the Tribunal’s decision that the applicant did not provide a parental role to his minor children and that he had decided not to be in touch with the mother of his minor daughter, who had a new partner. The applicant had not been in touch with his minor daughter, C, since he been in detention. While the Minister accepts that any determination by the Tribunal about the best interests of a child should be the result of a reasoned assessment of material of sufficient probative value that the determination be a considered one, he submits the grounds of review relied upon by the applicant seek to draw the Court into an impermissible merits review. In order to complete its jurisdictional task, the Tribunal was not required to expressly record and comment upon each particular item of information or material before it, and is not obliged to set out every detail of the reasoning process which it eventually employed, citing Re Ruddock; Ex parte S154/2002 [2003] HCA 60; 201 ALR 437 at [54] (per Gummow and Heydon JJ). The choice of and weight to be given to competing information was a matter for the Tribunal: Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; 113 ALD 46 (Spender, Moore and Foster JJ) at [45]. In oral submissions, the Minister contended that even were it to be considered that the Tribunal mentioned some, but not all mandatory considerations, the outcome could not be any different because of the finding of the Tribunal at [45] that revocation of the visa cancellation is in the best interests of the children. 3.2 Consideration of ground 1 The foundation for ground 1 lies in the contention that the Tribunal failed to adhere to the requirements of Ministerial Direction 65, which is a direction made under s 499(1) of the Act. There is no dispute that failure to comply with Direction 65 may amount to jurisdictional error; Williams v Minister of Immigration and Border Protection [2014] FCA 674; 226 FCR 112 (Mortimer J) at [34] – [35]; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (Mortimer J) at [35], [36]; Minister for Home Affairs v HSKJ[2018] FCAFC 217; 363 ALR 325 (Greenwood, McKerracher and Burley JJ) at [41]. Direction 65 stipulates at cl 7(1)(b) that a decision-maker must take into account the considerations in Part C in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked. Part C includes cl 13, which provides in (1) that under subsection 501(3A) of the Act, the Minister must cancel a visa if satisfied that the person does not pass the character test, but if a non-citizen who has had his or her visa cancelled requests revocation of the decision under s 501CA, the discretion to consider revocation is enlivened and the decision-maker must consider whether to revoke the cancellation. In so doing, (2) provides that the three considerations designated “primary” are: (a) protection of the Australian community from criminal or other serious conduct; (b) the best interests of minor children in Australia; and (c) the expectations of the Australian community.