YYPP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 379
•13 April 2021
FEDERAL COURT OF AUSTRALIA
YYPP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 379
File number(s): QUD 377 of 2020 Judgment of: DAVIES J Date of judgment: 13 April 2021 Catchwords: MIGRATION – Application for review of a Migration Decision of the Administrative Appeals Tribunal for non‑revocation of mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – whether legal error contained in decision of tribunal – no legal error – application dismissed. Legislation: Migration Act 1959 (Cth) s 501CA (4)(b). Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 13 Date of hearing: 13 April 2021 Counsel for the Applicant: Applicant appeared in person Solicitor for the Respondent: Mr McLaren of MinterEllison
ORDERS
QUD 377 of 2020 BETWEEN: YYPP
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DAVIES J
DATE OF ORDER:
13 APRIL 2021
THE COURT ORDERS THAT:
1.The originating application for review be dismissed.
2.The applicant to pay the first respondent’s costs as assessed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DAVIES J:
The applicant has applied for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal), which affirmed a decision of a delegate of the first respondent not to revoke the mandatory cancellation of the applicant’s Class TY, Subclass 444, Special Category (temporary) visa. The Tribunal found that the applicant did not pass the character test and, therefore, was unable to rely on s 501CA(4)(b)(i) of the Migration Act 1959 (Cth) for the cancellation decision to be revoked. The Tribunal went on to consider whether, for the purposes of s 501CA(4)(b)(ii), there was another reason why the original cancellation decision should be revoked. The Tribunal considered the following matters.
First, whether the mandatory cancellation of the applicant’s visa served to protect the Australian community. In this context, the Tribunal gave consideration to the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct. The Tribunal set out an extensive summary of the applicant’s offending history, noting that the applicant had a number of convictions for violent crimes relating to the assault of victims for which he received sentences of imprisonment. The Tribunal viewed the applicant’s offending to be “frequent and of sustained seriousness” and “of a very serious nature”. The Tribunal also considered it to be significant that the applicant had continued to reoffend despite being formally warned in 2014 that further offending may result in the cancellation of his visa. The Tribunal found that the nature of the harm to the Australian community should the applicant commit similar offences was serious, with “the clear capacity to cause very serious physical harm or indeed, catastrophic harm to a victim of the Australian community”. The Tribunal also assessed as likely that the applicant would resume offending upon release into the Australian community and thus concluded that the risk to the Australian community weighed very heavily in favour of non-revocation.
Secondly, the Tribunal took into account the best interests of the applicant’s minor children in Australia, as well as the best interests of the applicant’s nephew and two nieces, concluding that the best interests of the applicant’s children and, to a lesser extent, the best interests of the applicant’s nephew and nieces weighed moderately in favour of revocation.
Thirdly, under the heading “The Expectations of the Australian Community”, the Tribunal had regard to a number of matters, including the length of time the applicant has lived in Australia, the circumstances of his upbringing, the adverse impact removal of the applicant may have on the applicant’s children, the applicant’s serious substance abuse issues, the violent and serious nature of the applicant’s offending to date, the unacceptable risk of some of the conduct in the future and risk to the Australian community if the applicant was to reoffend, the applicant’s lack of respect for lawful authority or the personal rights of others and the applicant’s refusal to follow laws governing the Australian community. The Tribunal considered that this consideration weighed heavily in favour of affirming the non-revocation decision, having regard to those matters.
Fourthly, the Tribunal considered whether international non-refoulement obligations were owed to the applicant and was satisfied that Australia’s non-refoulement obligations were not engaged in relation to the applicant.
Fifthly, as to the strength, nature and duration of the applicant’s ties to Australia, the Tribunal noted that the applicant had lived in Australia for the majority of his adult life and has family links here and considered this factor had moderate weight in favour of revocation.
Sixthly, the Tribunal considered the impact on Australian business interest and was satisfied that this consideration was not relevant to the circumstances of the applicant.
Seventhly, the Tribunal considered the impact on victims and was of the view that this consideration had a “neutral impact” as there was no evidence before the Tribunal as to how the victims of the applicant’s offending would be impacted.
Eighthly, the Tribunal considered the extent of the impediments for the applicant, if the applicant was removed to New Zealand. The Tribunal noted that the applicant had not disclosed or substantiated any significant health issues or concerns that he would not receive comparable standards of care should he be returned to New Zealand and that the applicant would suffer no language or other cultural barriers given the similarities between New Zealand and Australia. However, it did note that the applicant had raised concerns and fears regarding the prospect of returning to New Zealand where his father resides and from whom he suffered sexual abuse. The Tribunal accepted that this consideration weighed slightly in favour of revocation.
On weighing all the relevant considerations, the Tribunal was not satisfied that there was another reason to revoke the cancellation of the applicant’s visa, concluding that a holistic view of the considerations favoured the non-revocation of the visa cancellation.
The applicant, who represented himself, advanced seven grounds of review as follows:
3. The Second Respondent’s decision was unreasonable.
4.The Second Respondent did not properly apply s501CA and s501CA(4) of the Migration Act 1958.
5. The Second Respondent failed to take relevant consideration into account.
6.There was insufficient evidence or no evidence to support various findings made by the Second Respondent.
7.The Respondent failed to properly exercise its discretion under s501 CA and s501 CA(4) of the Migration Act 1958.
8. The Second Respondent’s decision involved an error of law.
9.The Second Respondent in making the decision did not comply with the rules of natural justice and/or the Applicant was denied procedural fairness.
None of the grounds were supported by particulars and the applicant did not file any written submissions supporting or explaining the grounds. Nor are they proper grounds of review as they failed to identify the actual legal error contended by the applicant, other than by the general and formulaic expression of heads of legal error. The applicant was given the opportunity to elaborate on each of those grounds at the hearing but it was evident from the matters put by the applicant to the Court that the applicant sought to have his application reconsidered on the merits. However, it is well established that the Court’s jurisdiction on judicial review is limited to whether there was legal error in the decision of the Tribunal. The Court on this application does not have jurisdiction generally to review the decision or to substitute a different decision based on the Court’s review of the merits. In any event, no legal error is apparent on the face of the Tribunal’s decision. The Tribunal took into account the material considerations it was required to take into account and weighed those considerations in the balance. It is neither apparent on the face of the Tribunal’s reasons nor in anything submitted by the applicant that the Tribunal failed to have regard to any matter materially bearing on whether to grant or not grant the application for revocation. There was also no basis for concluding that the applicant was not afforded a fair hearing by the Tribunal or that the Tribunal did not comply with the rules of natural justice.
Accordingly, the application will be dismissed.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Davies. Associate:
Dated: 16 April 2021
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