CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia (Full Court)|2021-05-03|Before: Jackson JJ

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

RARES, O'CALLAGHAN AND JACKSON JJ: 1 This is an appeal from the decision of a Judge of this Court affirming the decision of the Administrative Appeals Tribunal that, in turn, affirmed the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the appellant's visa under s 501CA(4) of the Migration Act 1958 (Cth). 2 The sole ground of appeal was not raised directly in the application before the primary judge, but the Minister consented to the ground being argued, as it substantively covered an issue involved in his Honour's consideration of the grounds of review of the Tribunal's decision. That ground is that his Honour erred in failing to identify and apply the proper interpretation of cl 14.4(1) of Ministerial Direction 79 pursuant to s 499(2A) of the Migration Act. Although numbered (1), this is the sole sub-clause in cl 14.4 which provides: 14.4 Impact on victims (1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness. (italic emphasis added) 3 Despite the Minister consenting to the new ground being argued as a sole ground of appeal, counsel for the Minister told us that, first, her client did not embrace the primary judge's reasoning as to the construction of cl 14.4 but, secondly, she had no instructions as to how we should interpret or otherwise approach the construction of cl 14.4. To say the least, the Minister's approach was unhelpful.

The issue 4 The issue arises in the following way. Direction 79 must be applied by all persons, other than the Minister acting personally, making decisions under the Act in an administrative capacity, such as the Minister's delegates and the Tribunal. Relevantly, the direction deals with visa refusal and cancellation decisions under s 501, as well as applications under s 501CA seeking the revocation of a mandatory cancellation of a visa pursuant to s 501(3A). Section 501(3A) requires the Minister to cancel the visa of a person who fails particular provisions of the character test in s 501(6)(a) (on the basis of s 501(7)(a), (b) or (c)) or (6)(e), and is serving a sentence of full-time imprisonment. 5 Direction 79 is divided into three Parts, A, B and C. Part A is concerned with a decision to cancel a non-citizen's visa; Pt B with decisions to refuse to grant a visa to a non-citizen; and Pt C with decisions as to whether there is another reason to revoke the mandatory cancellation of a non-citizen's visa under s 501(3A) where the non-citizen cannot satisfy the Minister that he or she passes the character test. 6 Direction 79 deals with the impact of the relevant decision on victims in cll 10.4 involving cancellation decisions; 12.3 involving refusal decisions; and 14.4 involving non-revocation decisions. Barring one slight difference in the final sentence of cl 12.3, only the introductory wording of those clauses varies and the balance is identical. The introductory words of those clauses differ from the italicised words above in cl 14.4 as follows: 10.4 Impact on victims Impact of a decision not to cancel a visa… 12.3 Impact on victims Impact of a decision to grant a visa… (italic emphasis added) 7 Additionally, cl 14(1)(d) provides: 14. Other considerations - revocation requests (1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to): d) Impact on victims; 8 The Tribunal noted (at [99]-[100]) that the phrasing of cl 14.4 was: … curious given that a decision not to revoke the cancellation of the visa would result in the non-citizen being removed from Australia. It is not clear how the offending non-citizen being forced to leave Australia would impact victims, other than positively. The Tribunal adopts the course taken in the above matters. The considerations listed in paragraph 14 of Direction 79 are not exhaustive and the Tribunal assumes, in any event, that paragraph 14.4(1) was meant to direct the decision maker to consideration of the impact of revoking the cancellation rather than not revoking the cancelation. The Tribunal therefore considers the former consideration. 9 The primary judge considered that the Tribunal's construction was correct on the basis that there was an obvious error in the phrasing of cl 14.4. He said that, in all likelihood, the error was caused by the negative character of an application under s 501CA(4) in which an applicant sought to revoke a visa cancellation. He noted that there are many instances in which a victim of violence, including family violence, may have a relationship with the non-citizen whose visa has been, or is at risk of being cancelled, and wishes the person to remain in Australia so as to maintain a relationship. His Honour did not agree with the Tribunal's suggestion that not revoking the decision to cancel a non-citizen's visa would always have a positive impact on victims, because sometimes it may have an adverse impact on a victim and cited, as an example, Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 at 539 [32] per Rangiah J.

Background 10 The factual circumstances can be stated briefly. The appellant had a substantial criminal history. His most recent offending, that prompted the mandatory cancellation of his visa under s 501(3A), had resulted in the Chief Judge of the District Court of Western Australia, on 8 May 2018, imposing a sentence of four years' imprisonment and a further sentence of six months. The appellant was also convicted in the Magistrates' Court for breach of protective bail conditions. 11 On 16 May 2018, the appellant received notice that his visa had been cancelled under s 501(3A), together with an invitation under s 501CA(3) to seek to persuade the Minister either that he passed the character test or that there was another reason why his visa's cancellation should be revoked. On 7 June 2018 the appellant requested the Minister to revoke the cancellation decision. 12 On 17 December 2019, a delegate of the Minister decided not to revoke the visa cancellation. The appellant received notice of that decision on 31 December 2019. He then applied to the Tribunal to review that decision on 9 January 2020.

The Tribunal's reasons 13 The Tribunal heard the application and later made its decision on 24 March 2020. Relevantly, the Tribunal found (at [57]) that the nature and seriousness of the appellant's offending could be viewed as very serious, and that factor weighed heavily against the revocation of the cancellation decision. The Tribunal then found that the appellant's likelihood of reoffending was moderate to medium, and that also weighed heavily against the revocation of the cancellation decision for the purposes of the first primary consideration in cl 13.1 of Direction 79, namely protection of the Australian community from criminal or other serious conduct (at [71]). 14 In respect of the second primary consideration in cl 13.2, the Tribunal found that, on balance, the best interests of minor children in Australia would be served by revocation of the cancellation of the appellant's visa. But, it found that little weight should be given to that consideration because of, first, the relatively long period in which the appellant had limited or no contact with the children during his periods of incarceration, secondly, his criminal history and turbulent relationship with his ex-wife, some of which was no doubt exacerbated by the fact that his ex-wife had formed a relationship with his half-brother in unfortunate and acrimonious circumstances, and thirdly, the fact that the minor children, at the time of the decision, had no contact with the appellant. The Tribunal found that he could communicate with the minor children by electronic means if need be, and if that were permitted by the Family Court. However, it found that his ex-wife and her new partner fulfilled parental roles in relation to the appellant's three daughters. The Tribunal noted that the appellant contended that his ex-wife was using his daughters as a weapon against him. It found that they were innocent victims in the circumstances. The Tribunal also found that, in relation to his niece, the appellant did not play any parenting role, and that apart from her visiting the appellant in prison on one or two occasions, there did not seem to have been much recent contact between the two. The Tribunal noted that it was difficult to see how the niece would be impacted by his removal. Accordingly, it found that little weight should be given to the consideration that revocation of the cancellation would be in the best interests of the minor children in accordance with cl 13.2. 15 The Tribunal then turned to other considerations in cl 14. In relation to the consideration in cl 14.4, the Tribunal found (at [101]-[104]): Insofar as the broader Australian community is concerned, there is no evidence of what impact the deportation of the Applicant would have. The only letter of support which refers to there being any impact, other than an impact on his daughters and on the Applicant, is the letter provided by the Applicant's cousin's partner who says that the Applicant's family and friends will suffer a 'great loss' if he is deported. Considering the impact of the Applicant remaining in Australia, that is considering the impact of revoking the cancellation of the Applicant's visa, fairly obviously the interests of the victims would be served by the Applicant's visa remaining cancelled and the Applicant being removed from Australia as that would effectively reduce to zero the possibility of the Applicant re-offending against those victims. While there are lifetime violence restraining orders against the Applicant communicating with or approaching [his former father-in-law], the Applicant's half-brother Kenneth and the Applicant's ex-wife, the Applicant has in the past failed to adhere to protective bail conditions and there obviously remains the possibility that he will breach the violence restraining orders Unfortunately there was no evidence put before the Tribunal as to the attitude of the Applicant's victims to his remaining in Australia. The Tribunal finds that given the nature of the offences committed against the Applicant's above identified victims, the fact that, as far as the Tribunal is aware, the victims still reside in Western Australia and given the Tribunal's finding that the Applicant has not adequately addressed and has little insight into his offending behaviour and the fact that the Applicant has in the past breached orders prohibiting him approaching one of his victims, the victims' best interests would be served by not revoking the cancellation of the Applicant's visa. The Tribunal finds that this consideration weighs against the revocation of the cancelation of the Applicant's visa. (bold emphasis added)

The appellant's submissions 16 The appellant argued that the literal construction of cl 14.4 was compelling and was required by the application of the principles of statutory interpretation. He contended that none of the clauses in Direction 79 conflicted with one another or created disharmony if cl 14.4 were construed literally. He noted, as did the primary judge, that consideration of the impacts on victims is not necessarily an exercise that would always tend one way. 17 The appellant submitted that the Tribunal made a material error in not construing cl 14.4 literally because there was a realistic possibility that its decision could have been different had it complied with a literal reading of Direction 79. He relied on Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 445 [48] per Bell, Gageler and Keane JJ. He argued that the materiality of the asserted error of construction of cl 14.4 could be perceived from the fact that the Tribunal had evidence that: the appellant had previously enjoyed a positive relationship with his ex-father-in-law and half-brother, and was horrified by what he had done in his most recent offending; and he had surrendered immediately to the police after he had attacked the two victims, in circumstances where, the appellant said, his ex-father-in-law was the one person who had really tried to help him. 18 The appellant contended that it was not inconceivable that he might eventually make amends with his victims because they were or had been beloved family members, and there was evidence that he was a caring and family oriented man. He submitted that he had tried to have contact in every possible legal way with his children and, at the time of the hearing before the Tribunal, was still attempting either to gain custody of his children, or at least have access to them, and that was consistent with other letters of support before the Tribunal. He argued that the Tribunal should, and had it correctly construed cl 14.4 would, have found these matters significant and may have found relevant that some other persons who were victims of his offending might have had the opportunity to repair their relationships with him.

Consideration 19 The construction of cl 14.4 must be approached consistently with Direction 79 as a whole so far as is possible, as McHugh, Gummow, Kirby and Hayne JJ held in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [69]-[70]. In Australian Securities and Investments Commission v DB Management Pty Limited (2000) 199 CLR 321 at 338 [34]-[35], Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ said: In Project Blue Sky Inc v Australian Broadcasting Authority [(1998) 194 CLR 355 at 384] after pointing out that the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have, the majority said: "Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."" It may be added that, if a party contends that a provision, by reason of such considerations, should not be given its literal meaning, then such a contention may lack force unless accompanied by some plausible formulation of an alternative legal meaning. (bold emphasis added) 20 Mason and Wilson JJ held in Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321 (and see too per Gibbs CJ at 304-305; Saraswati v The Queen (1991) 172 CLR 1 at 21-22 per McHugh J with whom Toohey J agreed; and Weedon v Davidson (1907) 4 CLR 895 at 904-905 per Barton J) that a court may depart from the literal meaning of a statute "in any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions." This principle of statutory interpretation allows a court to "reject" or "eliminate" one or more words so as to give effect to the legislative intention by reference to the language of the instrument viewed as a whole: Weedon 4 CLR at 905; Cooper Brookes 147 CLR at 320; Project Blue Sky 194 CLR at 381 [69]. 21 Here it is clear enough that, in the exercise of a power not to cancel or to grant a visa, both cll 10.4 and 12.3 require a decision-maker to consider the impact on members of the community, including any victim of the non-citizen's criminal behaviour, of a decision, respectively, not to cancel the visa or to grant it. Likewise, cl 14(1)(d) requires, where relevant, the decision-maker to take into account the impact on victims on which cl 14.4 expands. The word "not" in the introductory part of cl 14.4 appears anomalous, albeit that, as with cll 10.4 and 12.3, it is connected with the nature of the decision called for under the relevant provision, here, s 501CA(4). However, the other two provisions are directed to situations in which a visa is left in place (the visa is not cancelled or is granted), whereas the use of the word "not" in cl 14.4 is directed to the impact on victims and the community were a decision made not to revoke a visa cancellation, such that the visa remains cancelled. 22 Given the importance in the practical, day-to-day work of delegates and the Tribunal in applying cl 14.4 as Direction 79 mandatorily requires, it is important that they have some authoritative understanding of how the clause should be construed. As we have said, it was unhelpful that the Minister failed to give any assistance in arriving at a different construction which, apparently, he would have wished us to find but without explanation of how we could have done so except by making a literal construction of cl 14.4. 23 The construction arrived at by the Tribunal, which the primary judge considered correct, is more consistent with the analogously expressed requirements in cll 10.4 and 12.3 than with a literal construction of cl 14.4. The failure of the Minister to advance any intelligible reasoning process as to why the literal construction ought be applied enables us more confidently to find that the primary judge was correct in treating the word "not" in cl 14.4 as an error or surplusage that should be ignored so that persons bound by Direction 79 will approach their decisions consistently under cll 10.4, 12.3 and 14.4 in respect of the impact on the community, including victims, if the non-citizen were to hold a visa. 24 The parties agreed that the amended ground of appeal as formulated before the Full Court was not argued before the primary judge but sought to have this Court determine the appeal on that basis. Given that we have found his Honour's construction of cl 14.4 to be correct, the appellant's arguments as to materiality do not arise. However, we note that he wished formally to argue that the minority decision in SZMTA 264 CLR at 460 [95] was correct, and that materiality was not relevant to the grant of relief if a jurisdictional error were established. We note that submission, but, of course, must reject it. 25 The evaluation of the evidence and its strengths or weaknesses were matters for the Tribunal. Given the construction which the appellant urged is not correct, it follows that any consequence of his contention that the considerations which he said may have been material to his postulated construction of cl 14.4 do not arise. But, in any event, it was for the Tribunal to weigh the facts and come to its own view as to materiality. The Tribunal's reasoning appears to have been thorough and to have considered all of the material before it. No jurisdictional error in that reasoning is apparent.

Conclusion 26 For these reasons, there was no jurisdictional error in the application of cl 14.4 in the Tribunal's decision, and, of course, no error in the primary judge's decision, because the point agitated now was not expressly raised before his Honour. For these reasons, the appeal must be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Rares, O'Callaghan, and Jackson.

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