Ward v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Ward v Minister for Home Affairs [2019] FCA 1623

Review of: Ward and Minister for Home Affairs [2019] AATA 581
File number: NSD 847 of 2019
Judge: FLICK J
Date of judgment: 3 October 2019
Catchwords:

PRACTICE AND PROCEDURE – failure to identify grounds of review – grounds discernible from affidavit

ADMINISTRATIVE LAW – review of decision of Administrative Appeals Tribunal – need to establish jurisdictional error – erroneous findings of fact fall short of jurisdictional error – no irrationality in findings made  
Legislation:

Migration Act1958 (Cth) ss 476A, 499, 500, 501, 501CA

Australian Constitution s 75

Cases cited:

Minister for Immigration and Citizenship v Obele [2010] FCA 1445; (2010) 119 ALD 358

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, (2010) 240 CLR 611

Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 75 ALJR 542

SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58, (2012) 202 FCR 1

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Date of hearing: 19 June 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 47
Counsel for the Applicant: The Applicant appeared in person
Counsel for the Respondent: Mr J Kay Hoyle
Solicitor for the Respondent: Clayton Utz

ORDERS

NSD 847 of 2019
BETWEEN:

CHRISTOPHER WARD

Applicant
AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:

FLICK J

DATE OF ORDER:

3 OCTOBER 2019

THE COURT ORDERS THAT:

1.The proceeding is dismissed.

2.The Applicant is to pay the costs of the Respondent, either as assessed or agreed.

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


REASONS FOR JUDGMENT

FLICK J:

  1. The Applicant in the present proceeding, Mr Christopher Ward, is a citizen of the United Kingdom.

  2. Mr Ward was 22 year old when he arrived in Australia in 1987.  He arrived with his wife and son and was granted a permanent visa in September 1994.  Between 1996 and 2016 he was convicted of over 20 offences.

  3. His visa was cancelled in December 2017 pursuant to s 501(3A) of the Migration Act1958 (Cth) (the “Migration Act”), it then being concluded that Mr Ward did not pass the “character test” by reason of his having been sentenced to a term of imprisonment of at least 12 months.

  4. Mr Ward made representations seeking revocation of the cancellation of his visa.  In January 2019, a delegate of the Minister determined that Mr Ward did not pass the “character test” and that there was no other reason why the cancellation of his visa should be revoked. The delegate thus concluded pursuant to s 501CA(4) of the Migration Act that the original decision should not be revoked. 

  5. Mr Ward then lodged an application with the Administrative Appeals Tribunal (the “Tribunal”) in January 2019, seeking review of the delegate’s decision.  In March 2019, the Tribunal…

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Details
Case
[2019] FCA 1623
Decision Date

CaseChat Overview and Summary

In the case of Ward v Minister for Home Affairs, the applicant, Mr Ward, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) to dismiss his application for the revocation of a visa cancellation. The central issue before the Federal Court was whether the AAT had made a jurisdictional error in its decision. The court examined four grounds of review advanced by Mr Ward, all of which were ultimately rejected. The court found that Mr Ward's arguments were not invitations for the court to engage in merits review but rather an impermissible challenge to the factual merits of the AAT's decision. The court also determined that the AAT had properly considered all relevant matters and had not made any legal errors, let alone jurisdictional errors.

The AAT's decision was thorough and methodical, addressing various aspects of Mr Ward's case, including his background, the hearing process, his evidence regarding employment history, family, rehabilitation efforts, medical history, and cross-examination. The AAT identified the administrative task of determining whether Mr Ward passed the "character test" under section 501CA(4)(b)(i) of the Migration Act and whether there was another reason to revoke the visa cancellation decision. The AAT applied Ministerial Direction No 79 in its assessment, considering both primary and other considerations, including the protection of the Australian community and the risk of further offending by Mr Ward.

The court found that the AAT's consideration of Mr Ward's rehabilitation efforts, while in custody and his intentions for future rehabilitation, was adequate. The AAT acknowledged Mr Ward's efforts but also noted the absence of evidence regarding his future rehabilitation, family support, employment, and residence. The AAT concluded that Primary Consideration A weighed heavily in favour of continuing the visa cancellation. Therefore, the court dismissed Mr Ward's application for judicial review, finding no jurisdictional error in the AAT's decision.

The court ordered that the proceeding be dismissed and that Mr Ward pay the costs of the respondent, either as assessed or agreed, pursuant to Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The proceeding is dismissed.

2. The Applicant is to pay the costs of the Respondent, either 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Each of these four Grounds should be rejected for either of at least two fundamental reasons, namely:·each of the matters advanced for consideration is nothing other than an impermissible invitation for this Court to review the factual merits of the Tribunal’s decision rather than considering whether the decision reached was in accordance with law; and/or·each of the matters was in fact considered by the Tribunal and no legal error is exposed in the Tribunal’s consideration of each matter, let alone jurisdictional error. Nevertheless, each of the four Grounds require attention to be directed to the findings and reasons of the Tribunal.The Tribunal’s decision – an overview At the outset of its reasons for decision, the Tribunal separately addressed (inter alia): ·the Background to the application (at paras [3] to [10]);·the Hearing itself (at paras [11] to [13]);·the Applicant’s Evidence, including: - his employment history (at paras [24] to [26])- his wife and children (at paras [27] to [28])- rehabilitation (at paras [29] to [31])- his medical history (at paras [32] to [35]) - cross-examination (at paras [36] to [41]); and ·Closing Submissions (at paras [42] to [53]).The Tribunal thereafter identified the administrative task that it was required to undertake. That task was to consider whether Mr Ward passed the “character test” as set forth in s 501CA(4)(b)(i) of the Migration Act and whether there was “another reason” why the decision to cancel his visa should be revoked: [2019] AATA 581 at [57]. Section 501CA(4) provides as follows: The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. The Tribunal thereafter correctly identified that in undertaking that task it was to apply Ministerial Direction No 79 made by the Minister pursuant to s 499(2A) of the Act: [2019] AATA 581 at [59]. That Direction, it may be noted, revoked the earlier Direction that had been applied by the delegate in the January 2019 decision. Ministerial Direction No 79, in very summary form, sets forth (at cl 13), the “Primary Considerations” to which a decision maker must give attention in deciding whether to revoke a visa cancellation and also “Other considerations” (at cl 14). In applying Ministerial Direction No 79, the Tribunal gave separate consideration to what it referred to as: ·Primary Consideration A: Protection of the Australian community, including:-“[t]he nature and seriousness of the Applicant’s conduct to date”(at paras [69] to [77]); and-“[t]he risk to the Australian community should the Applicant commit further offences or engage in other serious conduct” (at paras [78] to [84]).The Tribunal’s Conclusion in respect to this consideration is expressed at para [85].

Ratio Decidendi

Legal Principle Established

Although it would thus be possible, merely by reference to the manner in which Mr Ward has identified his four areas of concern or challenge to the decision of both the delegate and the Tribunal, to dismiss his Originating Application as an impermissible invitation for this Court to engage in merits review, that outcome is only further reinforced if consideration is given to the manner in which the Tribunal dealt with each of those four matters. The consideration given by the Tribunal to the four matters The second of the two generally expressed reasons for concluding that Mr Ward’s Originating Application to this Court should be dismissed is that none of the four matters relied upon expose the Tribunal making any finding which was not open to it on the evidence and other material before it. It is this generally expressed reason which requires more detailed attention to be given to the findings and reasons made by the Tribunal. Each of those four matters should be further explored. First, the steps taken by Mr Ward to rehabilitate himself whilst in custody were not “overlooked” by the Tribunal but – on the contrary – were taken into account in the decision-making process. When outlining the Applicant’s Evidence, the Tribunal thus specifically addressed his evidence in respect to rehabilitation as follows: Rehabilitation[29]The Applicant said that whilst in custody for the subject offending, he completed the EQUIPS drug program which covered three courses, namely (a) Education, (b) Aggression, and (c) Foundation. It was these certificates in proof of completion that he said he a sent by facsimile to the Tribunal about one and half months ago. I accept that the Applicant completed this program. [30]The Applicant said that prior to the subject offending, he attended the GROW drug rehabilitation program but was evicted from the program when he commenced a relationship with one of the group members. That person was his partner of approximately two years to whom I have referred. [31]The Applicant said it is his intention to return to rehabilitation should his visa cancellation be revoked, but that he has not made any inquiries about what rehabilitation courses are available because they will not accept him unless he is ready and able to start.The Tribunal returned to this issue when addressing the “risk to the Australian community” as follows: [82]The Applicant’s drug abuse contributed to the breakdown of his marriage, loss of employment, and his criminal offending. The fact that since he has been incarcerated for the subject offending he has engaged in the EQUIPS program and remained drug free in detention is to his credit. However, this abstinence has not been tested in the community. It is also to Applicant’s credit that he attended the GROW rehabilitation program at his own volition, although evicted.[83]In the absence of any evidence about his drug rehabilitation in particular future ongoing rehabilitation, family support including reconciliation with this wife, future employment and residence should he be released, there remains the real risk that he will return to drug or alcohol abuse and likely engage again in criminal offending.The Tribunal again gave consideration to the steps taken by Mr Ward towards rehabilitation later in its reasons as follows (without alteration): Conclusion: Primary Consideration A[85]Having regard to this whole of the evidence, the nature of the Applicants’ offending associated with drug and alcohol abuse, the absence of any corroborative evidence provided on behalf of the Applicant relating to past and future drug and alcohol rehabilitation and his dedication to maintain his ongoing rehabilitation and how that will proceed, his medical health including from a mental health professional, his future employment and residence, and other support from family member or friends that is available to him, Primary Consideration A weighs heavily in favour of the Respondent and the continued cancellation of the Applicant’s visa.