Botha v Minister for Immigration and Border Protection

Federal Court of Australia|2017-04-07|Before: Collier J

The amended originating application filed on 24 March 2017 be dismissed with costs, to be taxed if not otherwise agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLLIER J: 1 This is a further amended application filed 24 March 2017, made pursuant to s 476A of the Migration Act 1958 (Cth) (the Migration Act). In this application the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 18 August 2016. Pursuant to s 500(1) of the Migration Act, the Tribunal considered an application for review of a decision of a delegate of the Minister dated 13 May 2016 to cancel the applicant's Class TY Subclass 444 Special Category (Temporary) visa. The original decision of the delegate was made in accordance with s 501(2) of the Migration Act. The Tribunal affirmed that original decision. 2 The applicant seeks an order that "the decision of the Tribunal be overturned".

Background facts 3 The background facts to this application are set out in the Reasons for Decision of the Tribunal and are not in dispute. 4 The applicant is originally from South Africa. He is now a New Zealand citizen. Relevantly, he arrived in Australia on 3 August 2006 as a New Zealand citizen and was granted a Class TY Subclass 444 Special Category (Temporary) visa which permitted him to remain in Australia. In early 2008 the applicant and his family moved permanently to Australia. 5 Subsequently, the applicant was convicted of a number of offences in Australia. In particular, the Tribunal referred to: a conviction on 14 April 2010 for assault of his former wife occasioning bodily harm. The applicant was sentenced to imprisonment for one year, suspended on the condition that he entered a good behaviour bond; a conviction on 9 May 2013 for assault on his former wife occasioning bodily harm, in respect of which the applicant was sentenced to eight months imprisonment. 6 As the Tribunal explained, on 14 February 2014 the applicant was served with a notice of intention to consider cancellation of his visa, and on 13 May 2016 a delegate of the Minister decided under s 501(2) of the Migration Act to cancel the applicant's visa. 7 On 6 June 2016 the applicant lodged an application with the Tribunal to review the delegate's decision.

Decision of the Tribunal 8 The Tribunal's reasons were under the headings "Character Test", "Ministerial Direction" and "Other Considerations". 9 Under "Character Test", the Tribunal referred to s 501(6)(a) and s 501(7)(c) of the Migration Act, and observed: [6] … As the applicant was sentenced to one year period of imprisonment, he has a substantial criminal record under s 501(7)(c) of the Act. 10 The Tribunal gave more extensive consideration to the topic "Ministerial Direction". It observed that s 499 of the Migration Act empowered the Minister to give written directions about the performance of functions and the exercise of powers under the Migration Act, and that the effect of this section was that the Tribunal was required to comply with Ministerial Direction No 65 (Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s501CA) (Direction 65). The Tribunal noted that Direction 65 commenced operation on 22 December 2014, and was in force at the time of the Tribunal's decision. 11 The Tribunal examined Direction 65, referring to the seven principles in the Preamble providing the framework within which decision-makers should approach their specific task. The Tribunal then observed: 10. Paragraph 8 of the Direction provides: ... (2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. (3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa. (4) Primary considerations should generally be given greater weight than the other considerations. (5) One or more primary considerations may outweigh other primary considerations. 11. In deciding whether to revoke the mandatory cancellation of the applicant's visa, paragraph 13(2) of the Direction provides the following are primary considerations: a) Protection of the Australian community from criminal or other serious conduct; b) The best interests of minor children in Australia; c) Expectations of the Australian community. 12 The Tribunal considered each of the primary considerations identified under paragraph 11 of Direction 65 as relevant to the application before it. 13 In relation to primary consideration (a), namely protection of the Australian community from criminal or other serious conduct, the Tribunal referred to paragraphs 9.1(1) and (2) of the Direction which provide: 9.1 Protection of the Australian community (1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. (2) Decision-makers should also give consideration to: a) The nature and seriousness of the non-citizen's conduct to date; and b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. 14 The Tribunal described the circumstances of the applicant's conviction on 14 April 2010, including the nature of his assault of his former wife in the presence of one of his children, and a further assault on his wife in which he punched her in the ribs with closed fists, for which the applicant was convicted on 9 May 2013. The Tribunal noted that the applicant had also been convicted of assaults in relation to the destruction or damage of property, and two offences for the contravention of apprehended violence orders. The Tribunal had regard to the sentencing remarks of the Local Court made on 9 May 2013 in which the Magistrate described the circumstances of both assault offences as "very similar", and accepted that the sentencing remarks, as well as the statement of facts of the 2010 conviction were a reliable account of the facts relating to both assault convictions. In relation to these convictions the Tribunal noted evidence given by the applicant at the Tribunal hearing in which he accepted responsibility for his past actions and expressed remorse, although he also felt that he had pleaded guilty because he had received poor legal advice. 15 The Tribunal observed: [21] Paragraph 13.1.2(1) of the Direction requires that in considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated is so serious that any risk that it may be repeated may be unacceptable. 16 At the Tribunal hearing the applicant relied on an expert report of a clinical psychologist, Dr Frank Walsh, dated 4 July 2016, in which Dr Walsh concluded that there was no evidence to suggest that the applicant had any propensity for violence over and above that of the ordinary person, and further assessed the applicant as being a low risk of being a threat to the Australian community should he be permitted to remain resident in Australia. Dr Walsh also considered the applicant did not suffer from any psychological disorder or psychopathology. The Tribunal noted however that Dr Walsh did not provide an explanation for the applicant's past conduct. 17 At [23] the Tribunal noted that Dr Walsh was unaware that the applicant had earlier received treatment from consultant psychologist Ms Saime Dilek, who, in a report dated 19 June 2015, opined that the applicant met the criteria of major depression, anxiety and stress in terms of DSM-IV. In her report Ms Dilek noted that a number of diagnostic instruments were administered to the applicant. In light of Ms Dilek's view that the applicant suffered a major mental illness for which he was apparently receiving no treatment, the Tribunal was not satisfied that the applicant presented a low risk of violence to the Australian community. 18 The Tribunal placed some weight on Dr Walsh's opinion that major mental illness was a factor associated with violence. 19 At [24] the Tribunal expressed concern that, other than completing an anger management course while serving his sentence of imprisonment, there was no indication that the applicant had undertaken rehabilitation to address his conduct such as the domestic violence course ordered by the Local Court on 14 April 2010. 20 At [25]-[26] the Tribunal considered the applicant's claims that his former wife was the physical aggressor in their arguments, however noted Dr Walsh's rejection of that position. The Tribunal agreed with this particular view of Dr Walsh, and concluded that: the account of events provided to Dr Walsh by the applicant indicated that the applicant was not remorseful and had not fully accepted responsibility for his actions; and as a sentencing Magistrate observed, it was "in [the applicant's] character" to perform the acts which led to his convictions. 21 At [27] the Tribunal said: [27] I consider that the consideration of protecting the Australian community from criminal or other serious conduct strongly favours the cancellation of the applicant's visa. There is no cogent evidence that there is little or no risk of re-offending. I am concerned that there is no explanation why the applicant has committed these violent offences. 22 In relation to primary consideration (b), namely the best interests of minor children in Australia, the Tribunal noted in summary that: the applicant had two children under the age of 18 years in Australia; he had had little physical contact with them following his incarceration; he had moved to central Queensland following his release from prison and his children lived in another State; he was in regular telephone contact with the children. 23 The Tribunal expressed concern that the applicant denied that his children had seen him assault his former wife - a denial the Tribunal found implausible in light of the remarks of the sentencing Magistrate in 2013. The Tribunal also expressed concern that the applicant's current partner had young children. 24 At [30] the Tribunal concluded that the primary consideration requiring him to consider the best interests of minor children favoured the cancellation of the applicant's visa. 25 In relation to primary consideration (c), namely expectations of the Australian community, the Tribunal observed: [31] The Australian community expects non-citizens to obey Australian laws. The violent offences committed by the applicant weigh heavily against the applicant. I find that the expectations of the Australian community weigh strongly in favour of the cancellation of the applicant's visa. Any risk that the applicant would repeat his violent conduct is unacceptable in terms of principle four of the preamble to the Direction. (footnotes omitted.) 26 Under the heading "Other Considerations" the Tribunal said, in summary: there were no relevant international non-refoulement obligations; there were no impediments to the applicant resuming residence in New Zealand, where, as a citizen, he would receive social services support; the applicant had a new partner with children, who was unable to leave Cairns. The Tribunal noted that the applicant had a good relationship with his new partner's children, that he paid for their health insurance, and that consideration of the applicant's strength, nature and duration of ties with his new partner and her children favoured a decision not to cancel the applicant's visa; the first offences committed by the applicant occurred in 2010 after the applicant had been a permanent resident for only two years; a favourable work reference supportive of the applicant had been provided by a former employer, suggesting that the applicant was highly respected in the workplace; victim impact evidence of the applicant's former wife, whom he had assaulted, favoured cancellation of the applicant's visa. 27 In conclusion, the Tribunal said: [38] I am not satisfied that the applicant passes the character test as defined by s 501(6) of the Act. I have taken into account the Direction and all the evidence before me. In my opinion the three primary considerations: the protection of the Australian community from criminal or other serious conduct, the interests of minor children in Australia and the expectations of the Australian community support the cancellation of the applicant's visa. The considerations which support the decision to cancel the applicant's visa are not outweighed by the considerations which favour revocation of that decision. Therefore, I am satisfied that the applicant's visa should be cancelled.

The Application 28 The applicant seeks relief in this Court on the following grounds: The applicant is aggrieved by the decision because the Administrative Appeals Tribunal ("AAT") made jurisdictional errors by not properly exercising Direction 65 under section 499 of the Migration Act 1958: 1. not giving primary/sufficient weight to the mitigating factors (the combination) assessing level of risk of harm to the Australian Community; 2. not giving primary weight to the best interests of the Applicant's children; and 3. placing too much weight on the "victim impact statement" of Natalie Botha as an "other consideration". 29 At the hearing both parties were represented by Counsel, who made oral submissions. Written submissions were also filed. 30 During the course of oral submissions a question arose as to whether the Tribunal had, in the course of its decision, considered factors listed in paragraph 9.2(4) of Direction 65. I ordered that supplementary submissions be filed by the parties limited to this discrete point. 31 In summary, and including supplementary submissions, the applicant contended as follows: In respect of ground 1, the Tribunal failed to give primary or sufficient weight to mitigating factors in assessing the level of risk of harm to the community, including: o the failure of the Tribunal to find that, despite pleading guilty to substantive offences, the applicant did not accept all elements of the statement of facts; o the Tribunal placed too much weight on the offences, being that of violence, against the consideration that they were committed against a single person in a domestic setting which no longer existed; o the Tribunal erroneously found that the children had witnessed the relevant assaults; o the Tribunal placed insufficient weight on the criminal history and character of the applicant, in particular that he had no criminal history prior to the relevant assaults; o the Tribunal placed no weight on the fact that the applicant was an applicant in a domestic violence order to which his former wife was a respondent; o the Tribunal placed insufficient weight on the opinion of Dr Walsh, and too much weight on comments of the sentencing Magistrate; o there was ample evidence that there was little or no risk of the applicant reoffending. In respect of ground 2, the Tribunal failed to give sufficient weight to the best interests of the applicant's minor children in that: o the Tribunal erroneously placed significant weight on the comments of the sentencing Magistrate; o there was no evidence of any impact on the children (negative or otherwise); o the findings of the Tribunal were against the background that the applicant's partner has young children; o the Tribunal made no mention of the future prospect of further contact between the applicant and his children; o the Tribunal failed to have regard to comments of Dr Walsh at paragraph 13.23.2 of his report, relevantly: … Based on the information available to me it would appear that Mr Botha's children continue to have a relationship with both parents and are not fearful of or reluctant to visit their father. It is in the best interests of minor children to have loving and caring relationship with both parents. It is my opinion [sic], it is not in the best interests of Mr Botha's children for him to be unable to have regular access to their father which would become more difficult if he were to reside outside of Australia. o the Tribunal failed to consider that the applicant financially supported his children and the children of his fiancée; o the Tribunal failed to mention the parental role he played in relation to his fiancée's children; o the Tribunal failed to consider any aspect of the applicant's ability to maintain contact other than by telephone; o the Tribunal should have noted that there was no evidence that the applicant had abused or neglected his children in any way; o notwithstanding the findings of the Tribunal there was no evidence before the Tribunal that the applicant's children had seen him assault their mother. In respect of ground 3, the Tribunal erroneously placed undue weight on the victim impact statement given by the applicant's former wife, in particular: o the Tribunal should have placed no weight on that statement; o the Tribunal should have taken into account the applicant's evidence that he too had been the subject of domestic violence from his former wife. 32 The Minister opposed the application. In summary, the Minister contended that the applicant sought to cavil with the merits of the Tribunal's decision rather than identify any jurisdictional errors, and further because the applicant erroneously assumed that the failure of the Tribunal to mention a fact or a matter in its reasons meant that the Tribunal did not consider that fact or matter.

Consideration 33 The decision of the Tribunal was made pursuant to s 500(1)(b) of the Migration Act, and accordingly is a "privative clause decision" assuming that it was made within jurisdiction: s 474 Migration Act. If the decision was affected by jurisdictional error then, under s 5E of the Migration Act it was a "purported privative clause decision". It is not in dispute that the Tribunal's decision, being a privative clause decision (or potentially a purported privative clause decision), cannot be the subject of review other than in circumstances where it is beyond jurisdiction: Plaintiff S157 /2002 v The Commonwealth (2003) 211 CLR 476; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1. 34 In his application the applicant has not specified the precise basis on which he seeks judicial review, other than claiming jurisdictional error on the part of the Tribunal. Further, the only order he seeks is that the decision of the Tribunal be "overturned". In these circumstances I assume that the application is made pursuant to s 39B of the Judiciary Act 1903 (Cth), and that the applicant seeks certiorari and mandamus in accordance with that section. 35 While the categories of jurisdictional error are not closed, a useful catalogue of errors which have been held to be jurisdictional errors is set out by the learned authors Aronson, Groves and Weeks in Judicial Review of Administrative Action and Government Liability (6th ed, Thomson Reuters, 2017) at [1.140]. This catalogue includes:

A mistaken assertion or denial of the very existence of jurisdiction.
A misapprehension or disregard of the nature or limits of the decision-maker's functions or powers.
Acting wholly or partly outside the general area of the decision-maker's jurisdiction;
Mistakes as to the existence of a jurisdictional fact or other requirement when the relevant statute treats that fact or requirement as something which must exist objectively as a condition precedent to the validity of the challenged decision.
Disregarding relevant considerations or having regard to irrelevant considerations.
Some, but not all errors of law. (Relevantly, the learned authors opine that in legally qualified adjudicative bodies - of which the Tribunal is undoubtedly one - the error is likely to be jurisdictional only if it amounts to a misconception of the nature of the function being performed or of the body's powers.)
Acting in bad faith.
Breaching the hearing or bias rules of natural justice/ procedural fairness.
Making decisions that are seriously illogical, irrational or unreasonable.
Committing a mistake which justifies the conclusion that the repository of a power simply failed to perform his or her job. 36 In the context of decisions under the Migration Act the principles of natural justice so far as concern hearings have been modified by Subdiv AB of that Act, including s 51A.

Weight 37 The principal complaint of the applicant in all three grounds on which he relies is that, by reference to Direction 65, the Tribunal either accorded insufficient weight (grounds 1 and 2) or excessive weight (ground 3) to particular factors in reaching its decision. 38 He does not claim, for example, bad faith, mistake, error of law or absence of procedural fairness. There are a number of fatal flaws with this approach. 39 First, in the absence of claims of unreasonableness or illogicality, complaints concerning the weight attributed by the Tribunal to certain issues do not raise jurisdictional error in the primary decision. Rather, such complaints simply cavil with the factual findings of the decision-maker. There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33]. Provided the exercise of attributing weight to relevant factors is within jurisdiction - and is not, for example, unreasonable or illogical - the resultant findings of the Tribunal cannot be challenged. The applicant in this case does not claim unreasonableness or illogicality in the approach of the Tribunal - rather it appears that he merely disagrees with the manner in which the Tribunal evaluated the material before it and the Tribunal's conclusions. 40 Second, in assessing whether a person passes the character test defined by s 501(6) of the Migration Act, the discretion granted by s 501(2) to make that decision is broad and unfettered in its terms: Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at 523 [72]-[73]; Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 at 309-310 [67]; Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566. In this context, it is particularly helpful to note observations of Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; [1981] FCA 191 at 26 (cited by Heydon and Crennan JJ in Nystrom 228 CLR 566 at [126]) where his Honour observed: ... where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. 41 Guidance, and a framework within which decision-makers should approach their task of making decisions under s 501, are provided to delegates (and the Tribunal) by Direction 65. Certainly in this case the Tribunal had close regard to the contents of that Direction. Inevitably, however, the manner in which decision-makers (including the Tribunal) should evaluate relevant considerations (including those prescribed by Direction 65) will depend on the facts of each case. In the circumstances before the Tribunal the identification of relevant considerations under Direction 65, and the balancing of those considerations, were clearly matters for the Tribunal as arbiter of fact. In its decision the Tribunal examined the contentions of the applicant in support of his case, and evidence including the statement of the applicant's former wife. The weight given by the Tribunal to those matters was for the Tribunal to decide. No legitimate basis for interference by the Court with that decision-making process under s 501(2) has been identified by the applicant.

Failure to mention 42 At the hearing and in written submissions the applicant claimed that the Tribunal failed to engage with relevant material before it. 43 First, the applicant referred to paragraph 9.2(4) of Direction 65, which provides as follows: (4) In considering the best interests of the child, the following factors must be considered where relevant: a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact); b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements; c) The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child; d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways; e) Whether there are other persons who already fulfil a parental role in relation to the child; f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child); g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct. 44 In supplementary submissions the applicant referred to each factor in light of the Tribunal's decision. To the extent, however, that the applicant submitted that the Tribunal was required to systematically examine each sub-paragraph of paragraph 9.2(4) and comment on its application to the circumstances of the case, that submission was misconceived. Paragraph 9.2(4) states that, in considering the best interests of a child, the decision-maker must consider listed factors where relevant. A decision is not infected by error if the decision-maker fails to perfunctorily acknowledge issues in a token fashion, irrespective of their relevance (or lack thereof) in their circumstances. 45 Second, there is ample authority to support the proposition that, merely because the Tribunal did not specifically mention a fact or an issue, the Court should not necessarily infer that the Tribunal did not consider that fact or issue. So, for example, in SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25] the Full Court observed in that case that the appellants were obliged to do more than point to material capable of supporting an inference that the Tribunal did not consider the particular material - it was necessary for the appellants to demonstrate that, having regard to all of the evidence and other material before the Court, it would be appropriate to draw that inference. In circumstances where the Tribunal has an unfettered discretion to determine material it considers of relevance and the weight to attributed thereto, I do not accept that the mere absence of reference by the Tribunal to particular facts inevitably meant that the Tribunal had not had regard to them. I also make this observation in light of the oft-quoted principle that reasons for decision of administrative bodies are not to be construed minutely and finely with an eye keenly attuned to the perception of error (Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; Brennan CJ, Toohey, McHugh and Gummow JJ in Wu Shan Liang 185 CLR 259 at 272; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197 at [59]; [2015] HCA 50 at [59]). 46 Third, and in any event, I am not satisfied that the Tribunal failed to consider numerous factors to which the applicant adverted in submissions. So, for example: the applicant complained that the Tribunal did not consider the views of Dr Walsh and Ms Dilek that he posed no, or a low, risk to the Australian community. This is not the case - the Tribunal did consider those views but for reasons expressed in the decision did not accept them. the applicant complained that the Tribunal did not consider the views of the children of his fiancée. While certainly the Tribunal did not describe those views at length, the Tribunal did note that the applicant was in a parental role to those children, that he was "like a father to them", and that they had a good relationship. the applicant complained that the Tribunal did not consider the potential harm to his children being deprived of his presence as a father. The Tribunal however did note the applicant's contention that while he lived in a different State from his children, that he was nonetheless in regular telephone contact with them, and that that contact could be maintained if his visa were cancelled. the applicant complained that the Tribunal did not consider his claim that his children had not witnessed his assault of his former wife. It is clear, however, that the Tribunal preferred the sentencing remarks of the Magistrate when the applicant was convicted of assault, to the effect that the children had witnessed that event. The applicant complained that the Tribunal failed to find that, despite pleading guilty to substantive assault charges, he did not accept all elements of the relevant statements of facts. In its decision the Tribunal noted that the applicant did not accept all elements (for example, the Tribunal noted that the applicant disputed that either of his children witnessed the assault of his former wife). It is, however, clear that the Tribunal did not accept the applicant's version of events. The applicant complained that the Tribunal failed to consider whether there was evidence of any impact on his children of his assaults of his former wife. The Tribunal, however, observed that it was required to consider whether the applicant's conduct had had a negative impact on the children, and clearly formed that view that there was potentially such an impact in light of the remarks of the sentencing Magistrate in 2013 concerning the "appalling scenes those kids have seen". The applicant complained that the Tribunal failed to consider the potential financial suffering of his fiancée and her children if he were not permitted to return to live in Australia. The Tribunal however noted the financial support provided by the applicant to his fiancée and her children.

Conclusion 47 In my view the grounds of the applicant are not substantiated. The application should be dismissed with costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

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