Campbell-Smith v Minister for Immigration, Citizenship and Multicultural Affairs

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

RANGIAH J: 1 The applicant seeks judicial review of a decision made by the Administrative Appeals Tribunal (the Tribunal) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) affirming a decision of a delegate of the first respondent (the Minister) to not revoke the cancellation of the applicant's visa. 2 The grounds of the application are as follows: 1. The Second Respondent fell into jurisdictional error because it misunderstood or failed to comply with paragraph 8.3(4)(a)(i) of Direction no. 99 and section 499(2A) of the Migration Act 1958 (Cth) (the Act) and, thereby, constructively failed to exercise its jurisdiction. Particulars a. The Second Respondent was obliged to comply with Direction no. 99 by reason of section 499(2A) of the Act. b. Paragraph 8.3(4)(a)(i) of Direction no. 99 provided that considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending. c. Despite finding that the Applicant started living and resided in Australia in his formative years (as per paragraph 93 of the Second Respondent's reasons (the Reasons)), the Second Respondent did not give considerable weight to that fact. d. Further, contrary to paragraph 8.3(4)(a)(i) of Direction no. 99, the Second Respondent found less weight should be given based on when the Applicant's offending commenced (as per paragraph 93 of the Reasons). 2. In the alternative to 1, the Second Respondent fell into jurisdictional error because its decision and reasoning was illogical or irrational. Particulars a. The Applicant relies on the particulars to ground one and the Second Respondent's reasoning at paragraph 93 of the Reasons. 3 The circumstances of the case were succinctly summarised by the Tribunal at para [1] of its reasons as follows: Justice Jaye Campbell-Smith arrived in Australia in December 2012, aged around 15 years. He turned 17 years old in February 2014. He has had an extensive and almost nonstop adult offending career in Australia since that time. His crimes include (a) property and dishonesty offences; (b) drug-related offences; (c) breaching orders or directions; and (d) offences against police officers in the course of their duties, among others. His visa was mandatorily cancelled in October 2022. because he has a substantial criminal record. He requested revocation of the decision and it was refused. In August 2023, the Applicant applied to the Administrative Appeals Tribunal for review of the Respondent's decision not to revoke his visa cancellation. In this case, the Applicant fails the statutory character test for revocation. Accordingly, the only question for the Tribunal to determine is whether there is "another reason" why the decision to cancel the Applicant's visa should be revoked. On balance, I find that the answer to this question is, no. (Footnotes omitted.) 4 The Tribunal observed at para [8] that it was bound under s 499 of the Act to comply with Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99). 5 The Tribunal proceeded to determine whether it was satisfied there was "another reason" why the original decision should be revoked by reference to the primary and other considerations identified in paras 8 and 9 of Direction 99. 6 When dealing with the primary consideration of, "the strength, nature and duration of ties to the Australian community", under para 8.3(4)(a) of Direction 99, the Tribunal concluded at para [93]: The Applicant has resided in Australia for around a decade, including a portion of his formative years - as he started living in Australia at the age of around 15 in December 2012. The Respondent contends (and I find) that less weight should be given to the Applicant's residency in Australia, as he commenced offending within 18 months of his arrival. 7 The applicant submits that the Tribunal was required by s 499(2A) of the Act to comply with Direction 99, but failed to do so. He submits that: On its proper construction, paragraph 8.3(4)(a)(i) contained an obligation for the Tribunal to give considerable weight to [the applicant] having been ordinarily resident in Australia during and since his formative years. 8 The applicant submits that the Tribunal's finding at para [93] that less weight should be given to the applicant's residency in Australia as he commenced offending within 18 months of his arrival was inconsistent with para 8.3(4)(a)(i) of Direction 99, and, was impermissible. 9 The issues for determination are: (a) whether the Tribunal was obliged under s 499(2A) of the Act to give "considerable weight" to the fact that the applicant had been ordinarily resident in Australia during and since his formative years; (b) if it was so obliged, whether it gave "considerable weight" to that matter; and (c) whether any error was material to the Tribunal's decision. 10 Section 501CA(4) of the Act provides: 501CA Cancellation of visa - revocation of decision under subsection 501(3A) (person serving sentence of imprisonment) … (4) 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. 11 Section 499 of the Act provides, relevantly: 499 Minister may give directions (1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about: (a) the performance of those functions; or (b) the exercise of those powers. … (2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations. (2A) A person or body must comply with a direction under subsection (1). … 12 Direction 99 was issued by the Minister on 23 January 2023, replacing Direction 90. Direction 99 has since been replaced by Direction 110, but Direction 99 remains relevant to the present application. 13 Paragraph 5 of Direction 99 had the heading, "Preamble", and para 5.1 had the heading "Objectives". Paragraph 5.1(4) provided: (4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499. 14 Paragraph 5.2 of Direction 99 set out a number of "principles" which, "provide the framework within which decision-makers should approach their task…". In Direction 99, the following principle, which had not appeared in Direction 90, was included as para 5.2(5): (5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years. 15 Paragraph 5.2(6), which was also included in Direction 90, stated: (6) Decision-makers must take into account the primary and other considerations relevant to the individual case…. 16 Paragraph 6 of Direction 99 provided: Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision. 17 Paragraph 7(2) of Direction 99 provided that primary considerations should "generally" be given greater weight than the other considerations. 18 Paragraphs 6 and 7(2) appeared in Direction 90 and were reproduced in Direction 99. 19 The "primary considerations" under Direction 99 were: 8. Primary considerations In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations: (1) protection of the Australian community from criminal or other serious conduct; (2) whether the conduct engaged in constituted family violence; (3) the strength, nature and duration of ties to Australia; (4) the best interests of minor children in Australia; (5) expectations of the Australian community. 20 It shall be observed that the "primary consideration" of "the strength, nature and duration of ties to Australia", had previously been dealt with under para 9.4.1 of Direction 90 as one of the "other considerations". In Direction 99, that consideration was recast as a primary consideration and explained in substantially greater detail. In particular, para 8.3(4) of Direction 99, which did not appear in Direction 90, provided, relevantly: (4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to: (a) the length of time the non-citizen has resided in the Australian community, noting that: i. considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and … 21 In Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, Kenny and Mortimer JJ at [55] noted that Direction 55 (a predecessor of Direction 99) was, "expressly intended to affect the weight decision-makers generally give to the factors with which it deals", before going on to observe at [57] that, "the weighing process is…in substance left, as it must be, to the individual decision-maker exercising the power…". 22 In Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582, Mortimer J (as her Honour was then) held at [23] (Raper J agreeing at [81]): Directions made under s 499 of the Act bind administrative decision-makers, including the Tribunal: see s 499(2A). They must be taken into account, and they must be accurately understood: see my observations in YNQY v Minister for Immigration & Border Protection [2017] FCA 1466 at [39], and see also Jagroop v Minister for Immigration & Border Protection (2016) 241 FCR 461 (Jagroop) at [55]. That said, the directions provide no more than guidance on the exercise of discretionary powers. As Kenny J and I said in Jagroop at [55], directions of this nature are avowedly intended to affect the weight decision-makers generally give to certain factors. However, they can do so as guidance only: see [78] of Jagroop. Such directions cannot compel a repository of power to reach a particular outcome, or compel specific weight to be given to a particular matter if, in the individual circumstances of the case, the administrative decision-maker's view is that different weight should be given to a particular matter. The statutory power in respect of an individual visa holder is being exercised by the administrative decision-maker, not by the Minister who made the directions…. 23 This passage was applied by the Full Court in JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 300 FCR 370 at [19] and in Price v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 301 FCR 484 at [71]. 24 On its face, para 8.3(4)(a)(i) of Direction 99 directs decision-makers that, "considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending". 25 The language of para 8.3(4)(a)(i) seemingly directing the decision-maker as to the weight to be given to the specified fact is inconsistent with paras 5.1(4), 5.2(6), 6 and 7(2) of Direction 99 which indicate that the Direction is intended to provide guidelines for the making of a decision. Paragraph 5.1(4) states that the purpose of Direction 99 is to, "guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act". Paragraph 5.2(6) provides that decision-makers, "must take into account the primary and other considerations relevant to the individual case". Paragraph 7(2) provides that primary considerations should "generally" be given greater weight than the other considerations. 26 Under para 6, decision-makers must take into account the considerations identified in paras 8 and 9, "where relevant to the decision". In respect of an identical para 6 in Direction 90, in Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516 (Manebona), the Full Court held at [95] that the words "where relevant" indicate that the duty to take into account the specified considerations is not an invariable one and whether the specified considerations are "relevant" in a particular case is a matter of opinion for the individual decision-maker. The Full Court held at [94] that Direction 90 did not purport to limit the considerations to which the decision-maker may have regard in exercising the discretion under s 501CA(4) and did not require that the decision-maker invariably take into account the considerations it specifies. Further, the decision-maker's obligation under para 6 is only to "take into account" the considerations in paras 8 and 9, not to obey any directions given by those paragraphs as to the weight those considerations are to be given. 27 Paragraph 8.3(4)(a) of Direction 99 should not be understood as intending to compel the Tribunal to give "considerable weight" to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years. Such a construction would be inconsistent with paras 5.1, 5.2, 6 and 7(2). Further, a construction of Direction 99 as prescribing the degree of weight that must be given to a factor would mean that the Direction would purport to fetter the discretion given to a decision-maker under s 501CA(4) of the Act. A Ministerial direction under s 499(1) of the Act cannot validly fetter the discretion under s 501CA(4): see s 499(2) of the Act; Manebona at [93], citing Ruhl v Minister for Immigration and Multicultural Affairs (2001) 184 ALR 401; [2001] FCA 648 at [40]; Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667; [2001] FCA 514 at [10] and [32]; Kumar v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 412 ALR 502; [2023] FCAFC 94 at [42]. The appropriate construction of para 8.3(4)(a)(i) is that it merely provides a guideline that generally considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending. 28 Therefore, the Tribunal was not obliged under s 499(2A) of the Act to give "considerable weight" to the fact that the applicant had been ordinarily resident in Australia during and since his formative years. It was left to the Tribunal to give that factor such weight as the Tribunal considered appropriate. 29 For these reasons, the applicant's first ground cannot succeed. 30 The applicant's second ground asserts, in the alternative, that the Tribunal fell into jurisdictional error because its decision and reasoning were illogical or irrational. The applicant submits that, even if para 8.3(4)(a) of Direction 99 is regarded merely as a guideline, there was no intelligible basis for the Tribunal's departure from the guidance provided. 31 The Tribunal found that less weight should be given to the applicant's residency in Australia during his formative years as he had commenced offending within 18 months of his arrival. 32 In BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, the Full Court held at [39]: …It is within the decisional freedom of the decision-maker under s 501CA(4) to regard a non-citizen's offending soon after arrival as a weighty consideration which diminishes the impact of any and all other factors. For instance, if a non-citizen commenced engaging in serious organised crime soon after arrival in Australia, a decision-maker might view that as negating the weight of any ties that person has to persons in Australia or social institutions. Similarly, a decision-maker would be entitled to regard it as minimising any weight which might be accorded to any positive contribution which the non-citizen had made to the community or the impact on the non-citizen's family were the non-citizen to be deported. 33 Accordingly, there is clear authority for the proposition that in assessing the weight to be given to the non-citizen's ties to the Australian community, a decision-maker may take into account that the non-citizen commenced offending soon after arriving in Australia. That factor may also affect the weight that should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years. A decision-maker might logically regard the Australian community as having greater responsibility towards a person whose criminality was substantially contributed to by their upbringing in Australia than towards a person whose criminality was substantially forged by their upbringing in another country. There was an intelligible basis for the Tribunal's departure from the guideline in para 8.3(4)(a)(i) of Direction 99. 34 The applicant's second ground must also fail. 35 The application will be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.