Ward v Minister for Home Affairs
[2019] FCA 1623
•3 October 2019
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:
The Applicant in the present proceeding, Mr Christopher Ward, is a citizen of the United Kingdom.
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.
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.
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.
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 affirmed the delegate’s decision: Re Ward and Minister for Home Affairs [2019] AATA 581.
An Originating Application was then filed in this Court on 29 April 2019.
Mr Ward appeared before this Court at the hearing on 19 June 2019 unrepresented. His oral submissions were directed to his disagreement with the assessment that had been made as to his prospects of rehabilitation and that he “deserve[d] another chance”. The criminal offence that occasioned the cancellation of his visa in December 2017, Mr Ward maintained, was “out of character” and that he did not have “anywhere to go” if he were forced to return to England. The Respondent Minister appeared by Counsel.
The proceeding is to be dismissed with costs.
The jurisdiction being exercised by this Court
Within constraints, and as a general proposition, the fact finding task of the Tribunal is a matter entrusted by the Commonwealth Legislature exclusively to the Tribunal and not this Court. The task of this Court is not to review the factual findings made by the Tribunal with a view to the Court substituting its own assessment as to the factual merits of each matter the subject of consideration; the task of this Court is to review a decision of the Tribunal to determine whether it has been made in accordance with law.
More specifically, the jurisdiction presently being exercised by this Court is that conferred by s 476A of the Migration Act. That section provides (in part) as follows:
Limited jurisdiction of the Federal Court
(1)Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:
(a) …; or
(b)the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500 …; or
…
(2)Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.
…
The legislative intent to confer only a limited jurisdiction upon this Court is manifest from the phrase “if, and only if”.
The decision made by the delegate in the present case, which was the subject of review by the Tribunal, was a decision which fell within s 500(1)(ba) of the Migration Act, namely a decision “of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa”.
By reason of s 476A of the Migration Act, and in particular s 476A(2), an applicant seeking judicial review of a decision of the Tribunal must bring himself within the jurisdiction conferred by s 75(v) of the Constitution. An applicant seeking judicial review “rooted” in s 75(v), it has been said, must establish jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [7], (2010) 240 CLR 611 at 616 per Gummow A-CJ and Kiefel J (“SZMDS”).
Such an error may be found to have been made out if a decision-maker fails to “have regard to” the principles set forth in a direction made by the Minister under s 499 of the Migration Act: cf. Minister for Immigration and Citizenship v Obele [2010] FCA 1445 at [52] to [54], (2010) 119 ALD 358 at 365 to 366 per Katzmann J; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [35] to [40] per Mortimer J.
The arguments advanced
The Originating Application filed by Mr Ward failed to identify any of the Grounds upon which he sought review. But an affidavit filed in support maintained that:
·the decision of the delegate was “unjust and unfair” and that the steps taken to “rehabilitate myself … seemed to be overlooked or didn’t matter”;
·the delegate “states that my youngest daughter … would be better suited if I was deported” but that Mr Ward “strongly disagrees” with the delegate’s decision;
·the delegate assessed his chance of reoffending as “medium to high” and “assume[d] that I will reoffend”; and
·“the crime was a stupid one off thing and totally out of character for me…”.
It is to be assumed that these statements are to be construed as the Grounds upon which the present proceeding is to be resolved. It is further to be assumed that the references in Mr Ward’s affidavit to the “delegate” are a mistake and that Mr Ward intended to attribute these errors to both the delegate and, more relevantly, the Tribunal.
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].
The Tribunal thereafter gave consideration to what it referred to as:
·Primary Consideration B: The best interests of minor children in Australia (at paras [86] to [89]), with the Tribunal’s Conclusion in respect to this consideration being expressed at para [90]; and
·Primary Consideration C: Expectations of the Australian Community (at paras [91] to [95]), with the Tribunal’s Conclusion in respect to this consideration being expressed at paras [96] to [99].
The Tribunal finally turned its attention to what it referred to as:
·Other Considerations, including:
-Other Consideration 1: International non-refoulement obligations (at para [102]);
-Other Consideration 2: Strength, nature and duration of ties (with its conclusion being expressed at para [108]);
-Other Consideration 3: Impact on Australian business interests (at para [109]);
-Other Consideration 4: Impact on victims (at paras [110] to [111], with its conclusion being expressed at para [112]); and
-Other Consideration 5: Extent of impediments if removed (at paras [113] to [117], with its conclusion being expressed at paras [118] to [119]).
The Tribunal then expressed its Conclusion: at paras [121] to [124].
What this brief overview of the Tribunal’s reasons exposes – at least on its face – is the Tribunal directing its attention to each of the matters identified in Ministerial Direction No 79. It did so with meticulous attention to the terms of that Direction.
Disagreement with the Tribunal’s findings
The first of the two generally expressed reasons for rejecting Mr Ward’s Originating Application is that each of the four matters set forth in his affidavit can properly be characterised as a challenge to the findings of fact made by the Tribunal.
This generally expressed concern may be resolved free from any detailed consideration of the findings and reasons in fact provided by the Tribunal and can be resolved simply by reference to the terms in which each of the four matters is expressed. On their face, each of these four matters expresses nothing other than an assertion by Mr Ward that the Tribunal’s factual conclusions were made in error.
But factual error on the part of an administrative tribunal does not generally establish jurisdictional error: Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 75 ALJR 542 at 548-549. McHugh J there summarised the general principle as follows:
[35]… Leaving aside questions of jurisdictional fact, an administrative tribunal will ordinarily not commit a jurisdictional error unless it has made an error of law. A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
[36]If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.
(footnotes omitted)
“Ordinarily”, it has been said, “a decision-maker will not make an error of law or a jurisdictional error simply by making a wrong finding of fact”. This is because “the jurisdiction so exercised, is to make findings of fact not to make findings of fact that are necessarily correct”: SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 at [12], (2012) 202 FCR 1 at 6 per Rares J.
A court undertaking judicial review will generally thus not conclude that jurisdictional error is made out if the findings of fact and the decision made by a tribunal are open to it on the materials before it: SZMDS [2010] HCA 16 at [135], (2010) 240 CLR at 649-650. Crennan and Bell JJ there concluded in relevant part as follows:
[135]On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. …
It is not understood that Mr Ward advanced his case upon the footing that the Tribunal’s findings were irrational and even had he done so that submission would have been rejected.
If consideration is given to each of the four matters identified by Mr Ward in his affidavit, it is apparent that he merely disagrees with the factual conclusions made by the Tribunal. But each of those conclusions was open to be made. Even if there be error exposed in the conclusions reached, any such error falls short of jurisdictional error.
The Tribunal understood the task entrusted to it and discharged that task within the jurisdiction entrusted to it.
Mr Ward’s Originating Application to this Court is, with respect, an invitation to do nothing more than disagree with the findings made by the Tribunal and to thereby engage in the impermissible task of undertaking merits review and not judicial review. That invitation is rejected. Indeed, to accede to it would be for this Court to fail to respect the jurisdiction entrusted to the Tribunal by the Commonwealth Legislature and for the Court itself to exceed the limited jurisdiction conferred upon it by s 476A of the Migration Act.
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.
The first of the matters relied upon by Mr Ward as exposing error is thus rejected. The Tribunal did not “overlook” the steps taken by Mr Ward towards rehabilitation but gave that matter detailed and repeated consideration.
Second, Mr Ward’s affidavit is simply wrong when he asserts that the Tribunal stated that his “youngest daughter Sarah would be better suited if I was deported”. Although Mr Ward expressed his concerns in terms of the “delegate’s” decision, that has been taken as a reference to the decision sought to be reviewed, namely the Tribunal’s decision. The Tribunal in its reasons for decision made no such statement with respect to Mr Ward’s daughter and, contrary to Mr Ward’s submission, actually resolved this consideration in favour of Mr Ward. When expressing its Conclusion with respect to “Primary Consideration B”, the Tribunal thus recorded its assessment, in part, as follows:
[90]In as much as there is no satisfactory evidence about the Applicant’s parenting role and relationship with S, there is no evidence to suggest that the relationship is a poor one and absent of any parenting role whatsoever. In general terms, the ability for a child to maintain his or her relationship with a parent, absent of any adverse fact with respect to that relationship, is likely to weigh in favour, to varying degrees, of the revocation of the cancellation of an Applicant’s visa. I am satisfied that it is in the best interests of S to revoke the mandatory cancellation of his visa.
Notwithstanding this Conclusion, the Tribunal immediately thereafter expressed the “weight” to be given to this consideration as follows:
… Given the inadequacy of the evidence before me, I attribute only slight weight to Primary Consideration B in favour of the revocation of the Applicant’s visa cancellation.
The second of the matters relied upon by Mr Ward is thus also rejected.
The third of the matters identified by Mr Ward in his affidavit, namely the Tribunal’s “assumption” as to his chance of reoffending, again proceeds from a misapprehension as to the finding in fact made by the Tribunal. Rather than “assuming” that there was a “medium to high” risk of Mr Ward re-offending, the approach of the Tribunal was as set forth at para [81]. The assessment made by the Tribunal, as distinct from any “assumption”, is founded upon the prior remarks of the sentencing Judge. Prior to para [81] the Tribunal, when addressing Mr Ward’s evidence and “Cross-examination”, addressed the subject matter of the risk of reoffending as follows:
[38]In respect of the Applicant’s risk of reoffending, he was referred to the sentencing remarks which said:
“...I accept that he is genuinely remorseful in respect of his offending. In respect of his risk of re-offending, the Pre-Sentence Report indicates that he has been assessed as a medium to high risk of re-offending.
I accept that on the basis of the material before me as an appropriate observation, noting however that should he address his alcohol and drug problems, I would consider that the risk would be no greater than medium. Successful treatment will of course be difficult as he has entrenched substance abuse issues dating back to his teenage years...”.
When summarising the “Closing Submissions”, the Tribunal further noted:
[44]The Respondent referred to the lack of evidence produced by the Applicant to counter his long entrenched and frequent drug use, and offending history. In particular, there was insufficient evidence to counter the medium to high risk of reoffending he poses as referred to by Judge King SC in the sentencing remarks for the subject offending.
And, when addressing the “risk to the Australian community”, the Tribunal also further stated:
[81]I referred above to the Learned Sentencing Judge’s assessment of the Applicant’s risk of reoffending as medium to high, but no greater than medium should he address his alcohol and drug problems. I agree with His Honour’s assessment. That assessment is too high a risk to reduce the weight properly attributed to this Primary Consideration.
The third of the matters relied upon by Mr Ward in his affidavit is therefore rejected. The Tribunal made no “assumption” as to Mr Ward’s risk of re-offending but, by way of contrast, adopted the assessment made by the Sentencing Judge.
The last of the four matters identified by Mr Ward in his affidavit was his statement that he his “crime was a stupid one off thing and totally out of character for me…”. His affidavit concludes (without alteration) as follows:
Another thing that I think is not fair is that in the robbery the female worker who got hurt, witch I deeply regret, was out of place. Meaning that in the super market training when situations occur the workers are told not to intevene. I am not saying she was wrong, she didn’t do what she was trained to do. I do believe I am a good citizen who has made a few mistakes and not the monster the delegate makes me out to be – …
This final argument is nothing more than a repetition of an assertion made by Mr Ward throughout the decision-making process. The weight to be given to this assertion remained a matter for the Tribunal – and not a matter for this Court.
The final matter relied upon by Mr Ward in his affidavit is also rejected.
CONCLUSIONS
The proceeding is to be dismissed.
The jurisdiction of this Court is confined to the task of determining whether the Tribunal committed jurisdictional error in reaching its decision. No jurisdictional error is discernible. Indeed, the findings made by the Tribunal seem to be well within the range of available findings – if not findings of fact with which this Court would agree.
There is no reason why costs should not follow the event.
THE ORDERS OF THE COURT ARE:
1. The proceeding is dismissed.
2. The Applicant is to pay the costs of the Respondent, either as assessed or agreed.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate:
Dated: 3 October 2019
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