Ali v Minister for Immigration, Citizenship and Multicultural Affairs

1. Leave to file an amended notice of appeal raising grounds of appeal that were not raised before the primary judge, and leave to rely upon those grounds, be refused.
2. The appeal be dismissed.
3. The appellant 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.

YATES J: 1 I agree with Bromwich J and with the orders his Honour proposes. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Yates.

BROMWICH J: 2 This is an appeal from orders made by a judge of this Court, dismissing an amended originating application for judicial review of a decision of the Administrative Appeals Tribunal, the second respondent. The Tribunal had affirmed a decision of a delegate of the first respondent, now the Minister for Immigration, Citizenship and Multicultural Affairs, not to revoke the mandatory cancellation of the appellant's Class UK Subclass 820 Partner visa. 3 The appellant's summary of his circumstances as set out in his written submissions may conveniently be adopted: The Appellant is a 37-year-old Fijian national who lawfully arrived in Australia on 20 November 2005 at the age of 22. He has resided in Australia since June 2013 when he was 30. Mr Ali has two sisters who reside in Fiji. In November 2013, Mr Ali married an Australian citizen, Ms Deng. Together, they have one child, a son born in July 2014. On 5 December 2014 Mr Ali was granted a partner (temporary) visa. Ms Deng has another child, a daughter, from a previous relationship. Mr Ali and Ms Deng divorced on 6 November 2016. In May 2018, Mr Ali was convicted of domestic violence offences that he committed against Ms Deng in April 2015. He was sentenced to concurrent custodial terms totalling 2 years and 11 months (suspended after serving 17 months). Mr Ali failed the character test set out in s 501(6) of the Act because he had been sentenced to a term of imprisonment of more than 12 months: ss 501(6)(a) and 501(7)(c) of the [Migration] Act. His visa was cancelled on 6 August 2018 under s 501(3A) of the Act. On 27 August 2018, Mr Ali made representations to the Minister's delegate seeking revocation of the cancellation of his visa in response to an invitation to do so. On 16 September 2020, the delegate decided not to revoke the cancellation decision. On 17 September 2020, Mr Ali applied to the Tribunal under s 500(1)(ba) of the Act for review of the delegate's decision. On 9 December 2020, the Tribunal affirmed the delegate's decision, providing written reasons on 24 December 2020. On 3 March 2022 Cheeseman J heard the applicant's application for review of the Tribunal's decision pursuant to s 476A(l)(b) of the Act, and dismissed the application with costs. The appellant is living in Fiji. 4 The sentencing judge in the District Court of Queensland described the appellant's offending, which resulted in his gaol term and thereby mandatory visa cancellation, as follows: The offences all occurred on the one day, really, in the same incident. For count 1, you grabbed the complainant's hair and pulled her to the ground. For count 2, you placed your hands around her throat and you squeezed for a period of time. You then punched her to the jaw when she was on the ground on her back. You did so with both fists simultaneously to each side of her jaw and you did that on two occasions. And in respect of count 4, you, again, placed your hands around her throat for some period of time. She suffered a broken jaw as a consequence of those punches. It was a significant break. She required surgical intervention with the introduction into her bone structure of plates and screws. She suffered significant pain as a consequence of that injury. That is quite apparent. It appears to me that you very quickly realised the seriousness of your situation and then there was a delay in you taking her for medical assistance. A delay of some hours and the only explanation for that is that you were concerned that she would - or that the authorities would learn of how these injuries - or this injury - was occasioned to her and, in that regard, you were quite callous in allowing her to not receive medical attention for what, in the circumstances, can only be described as a significant period of time. 5 The primary judge provided the following useful introductory summary of the appellant's case before her Honour at [4]: Mr Ali relies on a further amended originating application filed on 25 May 2021, for which leave was granted on 24 May 2021. The Tribunal's decision is challenged on four grounds which variously allege that the Tribunal fell into jurisdictional error by: failing to give proper, genuine and realistic consideration to the merits of the case; failing to consider evidence in support of Mr Ali's case; failing to observe the requirements of procedural fairness; and failing to take into account a substantial and clearly articulated argument with respect to "unprecedented levels of unemployment" in Fiji due to the impact of COVID-19. 6 The appellant was represented before the primary judge by both solicitors and counsel who are experienced in migration law. The grounds of review advanced by them on behalf of the appellant were of substance, although ultimately unsuccessful. Initially the appellant was apparently not legally represented after the primary judge's decision, because he personally filed the present notice of appeal which contains the following largely meaningless grounds: 1. Unreasonable decision 2. Error according to the law 7 The appellant is now represented by pro bono counsel. The Court is always grateful for this assistance to otherwise self-represented litigants, and to the Court. The appellant, via his counsel, seeks leave to file an amended notice of appeal, which he candidly acknowledges raises entirely new grounds of review that were never raised before the primary judge. This is done in the necessary guise of asserting error on the part of her Honour in order to attract the appellate jurisdiction of the Court. The Minister opposes leave being granted. 8 Counsel for the appellant sensibly disavowed any reliance upon or support for the existing notice of appeal, correctly describing it as not raising anything. 9 No error on the part of the primary judge is asserted in relation to the grounds of review that were before her Honour. It follows that leave is required to file an amended notice of appeal and to rely upon the grounds now sought to be advanced as follows: The Court below erred, in not finding that the Tribunal failed to carry out its statutory task of review in accordance with law, by failing to take into account mandatory relevant considerations, specifically the matters set out in Ministerial Direction 79 (Direction 79), with which, pursuant to s 499(2A) of the Migration Act 1958 (the Act), it was required to comply in exercising its review function: (a) The Tribunal erred by taking into account an irrelevant consideration or "illogicality" when considering the likelihood of the appellant engaging in further criminal or other serious conduct. (see Tribunal's Reasons for Decision (Reasons) at [87]; [91], [153], [155], [194] and [202]); and (b) The Tribunal erred in the conduct of its statutory review function in failing to give due probative weight to the psychologist reports of Ms. Shelley Jacks and Dr. Jacqui Yoxall (and her oral evidence) such that its decision, through the repository of the fact-finding power, displayed a critical disqualifying flaw in its reasoning. 10 The issue of the grant of leave to agitate a ground of review for the first time on appeal to the Full Court has recently been considered by the Full Court in MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; 284 FCR 152 per Allsop CJ at [2], O'Callaghan and Colvin JJ agreeing with the Chief Justice at [13], and in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; 285 FCR 187 per Derrington J at [14]-[22] and per O'Bryan J (with whom Katzmann J agreed) at [110]-[118]. 11 There is some divergence in reasoning in MBJY and in Tohi on the question of whether something more than merit is ordinarily required before leave should be granted. In this case nothing more than merit is advanced, as there is no explanation able to be given as to why specialist lawyers acting and appearing before the primary judge did not raise the proposed grounds before the primary judge, nor any other explanation for the delay. A common theme in MBJY and in Tohi, in keeping with long standing High Court and Full Court authority, is that sufficient merit of the proposed new ground, however assessed, is indispensable to the grant of leave. 12 O'Bryan J in Tohi at [112] suggested that the importance of merit did not mean that an appellate court should enter upon a full consideration of a proposed new ground because that would make the requirement for leave meaningless. His Honour considered that it was sufficient to decide whether there is a reasonable prospect of success, suggesting error in going further. This approach, while doubtlessly sound in most cases, if rigidly applied may unduly inhibit the scope for more detailed consideration of merit in circumstances in which that is otherwise warranted or convenient. 13 In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28, decided only the day before the hearing of this appeal, the High Court was addressing the parallel but different area of the exercise of a statutory discretion to grant or refuse an extension of time to bring an application for judicial review of a migration decision out of time, and the approach that should be taken in the assessment of the merit of the proposed case. Kiefel CJ, Gageler, Keane and Gleeson JJ held at [18]-[19] that there will be circumstances in which a more detailed assessment is required, rather than being limited to an impressionistic view, as was found by their Honours to be incorrectly mandated for extension of time applications by the Full Court in DHX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 127; 278 FCR 475 at [68]. The effect of Katoa is that a proper exercise of the discretion to grant or refuse an extension of time will not require a judge to confine the consideration of the merits to what is reasonably arguable or some similar standard. That does not mean that a more limited approach is not ordinarily permissible and even desirable. 14 While consideration of an application for an extension of time is materially different from consideration of leave to advance a ground for the first time on appeal, both involve consideration of the merits of the proposed case. The common point is that when considering the question of leave to rely upon a ground for asserting error by the Tribunal which was not raised at first instance, it is for the Full Court (or a single judge exercising the Court's appellate jurisdiction) to have regard to the question of merit in such manner as is considered to be appropriate in the circumstances. Accordingly there is unlikely to be a jurisdictional error in going beyond the question of an arguable case if otherwise thought appropriate to do so: Katoa at [19]. It remains within jurisdiction and the proper exercise of discretion to assess the merit of the proposed grounds at the level of whether the ground is arguable, which may generally be sufficient, or to go further when that is either necessary, or, e.g., the more sensible or practical thing to do. 15 In this case, the distinction between considering the merits of the two related grounds now sought to be advanced at the merely arguable level, and considering them in full, is somewhat illusory. Each was in a relatively narrow compass and overlapped. Each was succinctly argued in writing and by oral submissions by both sides. It is therefore appropriate in this case to assess the merit of the proposed grounds upon the basis of the arguments advanced on behalf of the appellant, taking into account contrary submissions advanced by the Minister. 16 Both aspects of the proposed challenge arise out of the Tribunal's consideration of the appellant's risk of recidivism. This entails assessing the "risk to the Australian community" should the appellant, as a non-citizen, "commit further offences or engage in other serious conduct". This is part of the assessment of a primary consideration in deciding whether to revoke a mandatory visa cancellation, namely the protection of the Australian community from criminal or other serious conduct: see [13(2)(a)] and [13.1(2)(b)] of Direction no. 79 made by the Minister under s 499 of the Migration Act 1958 (Cth), which was then in force. 17 The assessment of the protection of the Australian community is both backward looking as to what has happened in the past, and forward looking as to the risks as to what may happen in the future. Direction no. 79 provides a list of mandatory factors to be considered, at [13.1.1] in relation to the nature and seriousness of the appellant's prior offending conduct; and at [13.2.2] in relation to the risk to the Australian community of the appellant committing further offences or engaging in other serious conduct. 18 The principles guiding consideration of prior offending and the risk of future offending are set out in [6.3] of Direction no. 79, including in particular: (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere. (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa. 19 Under the heading of "The likelihood of the non-citizen engaging in further criminal or other serious conduct", the Tribunal considered the appellant's written submissions in his statement of facts, issues and contentions. The appellant advanced six reasons why there was a low and not unacceptable risk of him re-offending, including that "his crimes occurred in a very specific, interpersonal context that is highly unlikely to occur again in future". The Tribunal addressed that submission as follows at [87] (omitting a footnote): First, in terms of the context of the Applicant's offending, it is, for all intents and purposes, contended that "once his marriage [to his victim/ex-wife] ended, so did his offending." In my view, this is an unacceptably simplistic approach to addressing the issue of the Applicant's risk of recidivism. To my mind, it is not enough to say that the Applicant will no longer offend because he is no longer part of the marital/domestic situation in which the offending occurred. The reality is that he failed to address and adequately deal with relationship stressors that arose in his previous marital relationship. The consequences of that failure are redolent in the circumstances of his offending. The reason this contention falls short is because it is based on the false premise that he will no longer offend because he is no longer connected to his former wife. The correct test or assessment can only be made when the Applicant has again been exposed to a new domestic relationship involving emotional and other investment on his part, which then gets tested via the superimposition of the inevitable relationship stressors that affect every interpersonal relationship. In this paradigm, the Applicant's propensity to fail to control his impulse towards violence remains to be tested. 20 The Tribunal's concern with the appellant's risk of recidivism not having been tested adequately or at all in a community setting, and not in a domestic setting, was also expressed at [91], [153], [155], and [194]. This was considered in the context of other arguments advanced by the appellant, and in the context of discussing the evidence of two psychologists relied upon by him. 21 The Tribunal also assessed carefully and in some detail both the written evidence of one psychologist, and the written and oral evidence of another psychologist. Both opined that, subject to proper counselling, the appellant presented a low risk of reoffending. However neither excluded reoffending as a real possibility. The psychologist who gave oral and written evidence also saw no increased risk of reoffending arising from the appellant continuing to assert that his responsibility for the serious injuries inflicted upon his then wife did not extend beyond having pushed her and causing her to hit a cupboard. This remained his stance despite a jury verdict, and sentence based upon accepting his former wife's evidence that he had beaten her with his fists, which was also consistent with the extent of the injuries that she suffered. 22 The appellant's relatively benign but unsustainable characterisation of what had taken place was also accepted by his father, stepmother and brother, making them unable to provide any assurance to the Tribunal that they would fulfil a meaningful role in reducing the risk of the appellant reoffending. 23 The Tribunal also identified numerous other inconsistencies and concerning features about the psychologist evidence. No specific error was identified as to any aspect of that assessment. 24 The Tribunal concluded at [202]: I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and have also had regard to sub-paragraphs 6.3(2), (3) and (4). I find that (1) the nature of the Applicant's offending conduct to date is very serious, and (2), having regard to the totality of the evidence in relation to the Applicant's risk of recidivism, there is a convincing and sufficiently unresolved likelihood that he will engage in further very serious conduct if returned to the Australian community. 25 This led the Tribunal to conclude at [203] that the primary consideration at [13(2)(a)] of Direction no. 70, namely "Protection of the Australian community from criminal or other serious conduct", weighed heavily against revocation of the cancellation of the appellant's visa. 26 The first proposed ground sought to be advanced by the appellant is that [87] of the Tribunal's reasons, reproduced above, was an irrelevant consideration because it was hypothetical and speculative. He asserts it is irrational, illogical and not based on findings or inferences of fact supported by logical grounds. The reasoning at [87] is effectively replicated at least in part at [91], [153], [155], and [194], and also forms part of the reason for the adverse conclusions at [202]-[203]. 27 Beyond assertion, it is not explained by the appellant as to why the Tribunal's reasoning was illogical, or warranted any of the other adverse characterisations attributed to it by him. The question of whether a person presents a risk, which can arise in a range of legislative and other circumstances, "necessarily allows consideration of possibilities because it involves a consideration of what might or might not occur in the future": see FUD18 v Minister for Home Affairs [2020] FCA 48; 168 ALD 474 per Thawley J at [44], in the context of considering the terms of s 501(6)(h) of the Migration Act, and endorsed by Lee and Wheelahan JJ in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EYR19 [2021] FCAFC 133; 285 FCR 540 at [86]. 28 The Minister points out that, in any event, the Tribunal's assessment of future risk was not confined to the rejection of the appellant's assertion concerning the end of his marriage. By way of examples or aspects identified by the Minister, the Tribunal also reproduced portions of the report of the psychologist who did not give oral evidence (which the Tribunal said should be treated with caution): (a) at [121], concerning her observations about the appellant's beliefs around his relationships with women, including the assertion of power and control, anger and frustration when he was not getting his way; (b) at [125], concerning her comments about his entitlement to having his needs met and his wishes complied with; and (c) at [126], about his need for continuing treatment, having responded well so far, including benefiting from intensive intervention of a number of months in order to reduce his risk of reoffending in the future. 29 In relation to the psychologist who did give oral evidence, the Tribunal noted at [131] that she agreed with the other psychologist as to the need for specialised treatment for domestic violence. She also concluded that the appellant's risk of reoffending may be increased if he is faced with events that overwhelm him and cause him significant stress, giving as examples a breakdown in key relationships or loss of employment, and is unable to engage in effective problem solving and critical decision-making. The Tribunal was concerned about the appellant's continued denial that he had struck his wife with his fists, and attached little or no credibility to his version of how she sustained the "appalling injuries to her facial region": [134]. The Tribunal took issue with the second psychologist's assessment that the appellant had a low risk of reoffending, especially as that psychologist did not consider that the appellant's continued denial of having punched his wife to cause her severe injuries elevated his risk of reoffending because she did not characterise this as minimising his offending. The Tribunal found that was precisely what the appellant had done: [145]. 30 There is nothing discernibly wrong with the Tribunal's reasoning on the appellant's risk of recidivism. To the contrary, it was thorough, reasoned and logical. In particular, there was nothing wrong with the Tribunal not being satisfied that the level of risk of the appellant reoffending was acceptable given the circumstances of the offending and the worrying indicators of future risk. The Tribunal's consideration went well beyond considering what might happen in a future domestic relationship, even though there was nothing wrong with that reasoning either. Leave should not be granted to rely upon this ground as it falls well short of having sufficient merit. 31 The second proposed ground sought to be advanced by the appellant is that the Tribunal erred in failing to accept the evidence of the two psychologists, or in giving it adequate weight, on the question of the risk of reoffending by taking into account the supposed irrelevant consideration that he had not been in a domestic relationship in the period since his marriage had ended. The Tribunal's reasoning in this regard is characterised as constituting a failure to make a relevant finding on logically probative material, and being based on mere suspicion or speculation. The problem with this proposed ground is that it bears no discernible relationship with what the Tribunal actually did in considering the material that was before it, as indicated by the summary of a number of aspects above. The acceptance in parts, rejection in parts, and weight given to the evidence was all well within the Tribunal's decisional freedom. Leave should not be granted to rely upon this ground either as it too falls well short of having sufficient merit. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.