Ahmad v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The application is dismissed.
2. The applicant pay the costs of the first respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMBERG J: 1 The applicant seeks judicial review of the decision of the second respondent (Tribunal) to affirm the decision of a delegate of the first respondent (Minister) made under s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the decision made under s 501(3A) of the Act to cancel the applicant's Partner (Class BC) (Subclass 100) visa (visa). 2 The applicant is a Lebanese national. He arrived in Australia in March 2003 on a Provisional Partner (Subclass 309) visa sponsored by his former wife. He was 21 years of age when he arrived from Lebanon and has not returned since. He and his former wife have two daughters, who are both Australian citizens. 3 Between August 2004 and July 2017, the applicant committed a significant number of offences for which he received sentences of imprisonment. On 12 September 2017, the applicant's visa was cancelled under s 501(3A) of the Act on the basis that the applicant had a substantial criminal record and was serving a full-time sentence of imprisonment. The applicant made representations to the Minister to revoke that decision. On 22 April 2020, a delegate of the Minister decided not to revoke the cancellation of the visa. 4 On 30 April 2020, the applicant lodged an application for review of the delegate's decision with the Tribunal. On 15 July 2020, the Tribunal affirmed the delegate's decision. 5 The applicant now seeks judicial review of the decision of the Tribunal on three grounds. First, the applicant submitted that the Tribunal ignored relevant evidence and failed to give proper, genuine and realistic consideration to representations made by the applicant regarding the best interests of his two children. That ground was not pressed, and I need not deal with it. Second, the applicant submitted that the Tribunal made findings of fact in respect of the impediments that the applicant would face if he were returned to Lebanon for which there was no evidence. During the course of oral argument, leave was given to reformulate that ground to encompass a failure to give proper, genuine and realistic consideration to those matters. Third, the applicant submitted that the Tribunal engaged in irrational or illogical reasoning in respect of the same findings. 6 By the second ground, the applicant submitted that there was no evidence for the Tribunal's finding that upon his return to Lebanon the applicant would be "able to secure some form of employment in the medium to longer term" (at [178]), that the Tribunal had a "higher level of confidence in the applicant being able to obtain work in the medium to longer term" (at [179]) and that the applicant was "relatively well placed to manage a transition" (at [174]). 7 For the applicant to succeed on a 'no evidence' ground for judicial review it was necessary to demonstrate that there was not any evidence in support of the impugned findings: VAAW of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 202 at [33]-[37] (Spender, Tamberlin and Kenny JJ); Australian Postal Corporation v D'Rozario (2014) 222 FCR 303 at [77] (Jessup J) and at [118] (Bromberg J); Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [575] (Weinberg J) and SZFWB v Minister for Immigration and Citizenship [2007] FCA 167 at [31] (Kenny J); MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59] (Murphy J). Further, any evidence relied upon need not be direct but may be reasonably inferred from the material available to a decision-maker: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [39]-[41] (Gummow and Hayne JJ). 8 The first problem with the applicant's second ground is that the applicant's submission mischaracterises the finding actually made by the Tribunal. The Minister submitted, and I accept, that, properly characterised, the Tribunal's finding was to the effect that the applicant's prospects of employment in Lebanon were limited. The Tribunal accepted that the applicant would face significant difficulties establishing himself in Lebanon, but was satisfied that several factors indicated that his prospects may improve in the medium to long term. As the Minister submitted, this was not a finding that the applicant would necessarily secure employment at some later point. The finding is to be read in context with the finding that the applicant's prospects in the short term were abysmal. On that basis, properly understood, the finding was to the effect that the prospects of the applicant may improve after the acute difficulties he is likely to face in the first instance but may still be poor in the medium and long term. It was not a finding that the applicant had positive employment prospects in Lebanon in the medium to long term as the applicant contended. 9 As the Minister submitted, that limited finding was supported by anterior passages in the reasons for the decision and was based on evidence before the Tribunal. At [171], the Tribunal referred to the country information which identified unemployment as especially problematic for persons under 25 years of age. At [173], the Tribunal found that the applicant was unlikely to experience any substantial language or cultural barriers because he had lived in Lebanon until he was 21 years of age. At [178], the Tribunal found that the applicant, being 38 years of age at the time, was relatively young, was in good physical health, and had a strong work ethic and significant practical experience. There was a question as to whether there was evidence in support of the finding about the applicant's physical health, but I accept that the finding was likely made on the basis of the Tribunal's own observations of the applicant at the hearing. The finding about the applicant's strong work ethic and experience was supported by anterior findings in respect of his work history and community involvement in periods prior to, and during reprieve from, his addiction to drugs (at [8], [162] and [164]). At [178], the Tribunal found that it was satisfied that "the applicant's experience of having worked in a Western country with a relatively good practical understanding of English would also be of advantage" given that "a number of international groups and NGO's [sic] are currently operating in Lebanon". 10 Those findings were based on evidence before the Tribunal. The evidence was rationally probative of, and sufficient to support, the Tribunal's limited finding, referred to above, that the applicant's employment prospects may improve over time. The weight to be afforded to that evidence, however thin, was a matter for the Tribunal. It follows that the applicant's claim that there was no evidence in support of the findings referred to above is not made out. 11 For substantially the same reasons in combination with those that follow, the applicant's submission that the Tribunal did not give proper, genuine and realistic consideration to those matters must also fail. The Tribunal was obliged to consider, in the sense of an active intellectual engagement, the merits of the case before it: see Minister for Home Affairs v Omar (2019) 272 FCR 589 (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ); Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 (Griffiths, White and Bromwich JJ). 12 In carrying out its statutory task, the Tribunal applied Direction No. 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 79). Paragraph 14(1) of Direction 79 provides that "[i]n deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant". Paragraph 14.5 of the Direction 79 establishes that those other considerations include: 14.5 Extent of impediments if removed (1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: a) The non-citizen's age and health; b) Whether there are substantial language or cultural barriers; and c) Any social, medical and/or economic support available to them in that country. 13 The Tribunal set out paragraph 14.5 of the Direction 79 at [169] of its reasons. In making the findings referred to above, the Tribunal provided rational answers to the matters which it considered it was obliged to consider under Direction 79. The Tribunal considered, inter alia, the applicant's age and physical health (at [178]), whether the applicant would face substantial language or cultural barriers (at [173]) and the accessibility of medial support in Lebanon in the context of the applicant's mental health (at [180]). 14 Furthermore, the Tribunal considered those matters in circumstances where the applicant had made no apparent representations to the Tribunal about his prospects of employment in Lebanon. In that context, it is difficult to draw an inference that the Tribunal did not give "proper, genuine and realistic" consideration to the merits of the case before it. The Tribunal had not received representations about the applicant's employment prospects. It nevertheless addressed the matters that it considered were relevant under paragraph 14.5 of Direction 79 and, in doing so, made a limited finding about the applicant's employment prospects. In that context, the Tribunal evidently gave sufficient consideration to the impediments that the applicant would face if he were returned to Lebanon. This, and the earlier explanation of the Tribunal's reasoning, demonstrates that the applicant's onus of establishing that the Tribunal did not give proper, genuine and realistic consideration to the merits of the case before it has not been discharged. 15 It is salutary to observe that care is to be taken with the phrase "proper, genuine and realistic" consideration lest a court fall into impermissible merits review: see Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [30] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). Although one may dispute the findings of a decision-maker, disagreement is not of itself a sufficient basis for establishing jurisdictional error. 16 By the third ground, the applicant contended that there was no intelligible justification in the evidence or material before the Tribunal for the finding that there would be positive medium to long term prospects of employment for the applicant. As explained above, properly construed, the Tribunal's finding was narrow. It was limited to a finding that the applicant's employment prospects may improve over time, not that his prospects were positive in the medium to long term. For the reasons given above, the evidence and inferences drawn by the Tribunal from the material, provided an intelligible justification for the limited finding that the Tribunal made. There was a logical basis for the Tribunal to infer, based on the information available to it, that the situation faced by the applicant upon his arrival in Lebanon may improve after some time. 17 The applicant also submitted that there was no logical connection between the applicant's understanding of English and any "advantage" that might accrue to him by reason of the presence of international groups and NGOs. It may be doubted whether the applicant would succeed in securing a position with such an organisation. However, the logical link in the Tribunal's reasoning was self-evident: the applicant's knowledge of English might afford him employment opportunities at international groups and NGOs that would not otherwise be available to him. That was the "advantage" referred to by the Tribunal. Accordingly, the Tribunal's reasoning in respect of the prospects of the applicant in Lebanon did not rise to the level of legal unreasonableness, and the third ground cannot be sustained. 18 For the reasons stated, the applicant has failed to establish that the decision of the Tribunal was affected by jurisdictional error. The application should therefore be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromberg.