CKT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2020-10-27|Before: Jagot J

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

JAGOT J: 1 This is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (Tribunal), made on 21 April 2020, which affirmed a decision of a delegate of the first respondent, made on 24 January 2020, not to revoke the mandatory cancellation of the applicant's Class XB Subclass 202 Global Special Humanitarian visa (GSH visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act): ZTFH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 910. 2 The applicant identified four grounds for review, which are that the Tribunal failed to consider: (1) that one of the impediments to the applicant's return to South Sudan is that he has no family in South Sudan; (2) that one of the impediments to his return to South Sudan is that the applicant has a real chance of becoming homeless; (3) the applicant's cultural entitlement to be the father figure to his younger siblings and family who are in Australia; and (4) certain factors relating to the likelihood of the applicant engaging in further criminal or other serious conduct. 3 For the reasons that follow, these grounds do not identify a reviewable error, and the Tribunal was correct to affirm the delegate's decision. Accordingly, the application is dismissed.

background 4 The applicant was born in Khartoum, Sudan. His parents are both of the Dinka tribe and were born in South Sudan. The applicant and his older brother were sent to Egypt to live with their mother's sister when the applicant was between six and eight years old. The applicant's mother, two younger brothers and three of his sisters joined them in Egypt in around 2003. From there they were granted GSH visas and arrived in Australia on 1 November 2004. The applicant has another sister who was born after the family's arrival to Australia. The applicant's older brother died in 2011. 5 The applicant was convicted of various offences between 2006 and 2019, as set out in the Tribunal's reasons at [25], including a conviction for reckless wounding on 15 May 2018 for which the applicant was sentenced to a term of imprisonment of two years and 14 days with a non-parole period of one year and 14 days. 6 On 24 April 2019, a delegate of the first respondent cancelled the applicant's visa under s 501(3A) of the Act, which relevantly provides: 501 Refusal or cancellation of visa on character grounds … (3A) The Minister must cancel a visa that has been granted to a person if: (a) The Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c) … and (b) The person is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. … (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); … … (7) For the purposes of the character test, a person has a substantial criminal record if: … (c) the person has been sentenced to a term of imprisonment of 12 months or more. 7 The Tribunal was satisfied that the applicant had a substantial criminal record for the purposes of s 501(6)(a), when read with s 501(7)(c), of the Act, as the applicant was sentenced to a term of imprisonment of 12 months or more, and that the applicant therefore did not pass the character test. 8 The Tribunal went on to consider whether there was another reason why the decision to cancel the applicant's visa should be revoked, which required the Tribunal to comply with any directions made by the first respondent under s 499 of the Act, including Direction No 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa s 501CA (the Direction). The Tribunal noted in its reasons at [30] that the Direction requires decision makers to take into account primary and other considerations, which include: (1) As primary considerations: (a) protection of the Australian community from criminal or other serious conduct; (b) the best interests of minor children in Australia; and (c) expectations of the Australian community; and (2) As other considerations: (a) international non-refoulement obligations; (b) strength, nature and duration of ties; (c) impact on Australian business interests; (d) impact on victims; and (e) extent of impediments if removed. 9 The Tribunal considered the following factors in favour of the applicant: (1) the best interests of the applicant's nieces, nephew, and sister as a primary consideration (at [145]-[158]); (2) the harm or hardship that the applicant was likely to suffer if removed to Sudan or South Sudan (at [195]-[196]); (3) the possibility that, in light of the lack of certainty about the applicant's country of nationality, there is a real risk of prolonged detention for the applicant (at [199]-[204]); and (4) the applicant's ties to Australia, including his family ties and contribution to the Australian community (at [207]-[210]). 10 The Tribunal considered the following factors against the applicant: (1) the protection of the Australian community, having regard to the nature and seriousness of the offending and the likelihood that the applicant would reoffend if allowed to remain in Australia (at [104]-[144]); and (2) the expectations of the Australian community, with the conclusion that this factor weighed significantly against revocation (at [159]-[168]). 11 The Tribunal was not satisfied that non-revocation of the cancellation decision would result in a breach of Australia's international non-refoulement obligations, so found this to be a neutral consideration (at [222]). 12 The Tribunal concluded that, taking into account each of the primary and other considerations as set out above, it would affirm the delegate's decision not the revoke cancellation of the applicant's visa (at [220]-[227]).

Applicant's submissions 13 The applicant did not file written submissions in support of his application. At the hearing, the applicant sought an adjournment in which to obtain Legal Aid, stating that he had received confirmation that morning via telephone that a Legal Aid representative would be present at the hearing to assist him with his claim. The first respondent neither opposed nor consented to the adjournment sought by the applicant. 14 The applicant had legal representation until recently (Shaheen Legal filed a notice of ceasing to act on 15 September 2020). There was no indication on the Court's file that Legal Aid intended to represent the applicant. No such suggestion had been made by the applicant until the hearing. In these circumstances, I was not minded to grant the applicant the adjournment. Accordingly, the hearing proceeded on the basis that the applicant was self-represented. 15 I provided the applicant with opportunity to make any oral submission in support of his claim. The applicant did not make any substantive submissions. I therefore considered the applicant's claim on the basis of the grounds set out in his originating application, outlined at [2] above.

Ground 1 - Tribunal failed to consider applicant's lack of family in Sudan or South Sudan 16 The first respondent submitted that ground 1 was "factually misconceived" since the Tribunal considered the applicant's submission that one of the impediments to his removal from Australia was that he did not have family in Sudan or South Sudan. The first respondent submitted that the Tribunal: (a) set out the applicant's representations on this issue (at [181], [183], [187]); (b) accepted that the applicant would have no family support or community network in Sudan or South Sudan (at [218]); (c) accepted that the lack of family support may contribute to the applicant ending up homeless in Sudan or South Sudan (at [190], [218]); and (d) ultimately placed significant weight on the harm or hardship that the applicant is likely to face if removed from Australia to Sudan or South Sudan (at [196], [219]). 17 The first respondent submitted that the circumstance that the applicant does not have family in Sudan or South Sudan was therefore properly weighed in favour of the applicant. 18 I accept this submission. The Tribunal clearly considered the circumstance that the applicant does not have family in Sudan or South Sudan and the applicant's originating application does not identify any error in respect of the Tribunal's consideration of this issue.

Ground 2 - Tribunal failed to consider possibility that applicant would become homeless 19 The first respondent submitted that ground 2 was misconceived, since the Tribunal accepted that the applicant may end up homeless if returned to Sudan or South Sudan (at [190], [218]), and this was "part of the reasoning which led to the Tribunal giving significant weight to the hardship the applicant may experience if returned to Sudan or South Sudan" (at [196]). The first respondent submitted further that the question of the weight to give to this consideration is "quintessentially a matter for the Tribunal": Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611. 20 I accept these submissions. As identified by the first respondent, the Tribunal clearly gave weight in its reasoning to the possibility that the applicant may end up homeless if returned to Sudan or South Sudan. The applicant's assertion that the Tribunal failed to give "proper" consideration to this matter is an attack on the merits of the Tribunal's conclusion and does not identify a legal error.

Ground 3 - Tribunal failed to consider applicant's cultural entitlement to be father figure 21 The first respondent submitted that ground 3 was "factually flawed" and that the Tribunal: (a) accepted that the applicant's father is deceased (AAT [42]); (b) set out the applicant's evidence on the matter of familial responsibilities (AAT [46]); and (c) noted the evidence of the applicant's mother and older sisters in this regard (AAT [91], [95]). … found in favour of the revocation of the cancellation of the visa, that it was in the best interests of the applicant's youngest sister that he remain in Australia (AAT [154]), and that, in terms of ties to Australia, the applicant would be likely to provide emotional and other support to his family members (AAT [209]). … As to the applicant's claims in respect of his deceased brother's children … noted the applicant's submissions in respect of his cultural entitlement to care for them (AAT [46]), the applicant's evidence that his deceased brother's children were currently cared for by their mother and her partner in Melbourne, and that while the applicant originally claimed that if he were allowed to remain in Australia, the children would move to Sydney where he would care for them, he 'later admitted that he had exaggerated his role in these children's live and his responsibility for these children according to African culture' (AAT [47]). 22 Accordingly, the first respondent submitted that to the extent this ground suggests that the Tribunal should have placed greater or different weight on the applicant's submissions in relation to his cultural entitlement to be a father figure to his relatives, it "invites impermissible merits review." 23 I accept these submission. Ground 3 invites impermissible merits review and does not identify legal error.

Ground 4 - Tribunal's consideration of likelihood of applicant engaging in further criminal or serious conduct 24 The first respondent submitted that the Tribunal properly discharged its duty to consider the likelihood of the applicant engaging in further criminal or other serious conduct, by taking into account "available information and evidence on the risk of the applicant re-offending, [and] … considering the risk to the Australian community for the purposes of cl 13.1.2(1) of … [the Direction]" (at [128]-[138]). The first respondent further submitted that the Tribunal considered the prospect of the applicant taking rehabilitative courses at [137], finding that it was unclear whether the applicant was likely to take any such courses in the future, accepted that the applicant had had limited opportunities thus far to engage in such courses due to being held in prison and/or immigration detention at [131], and was not obliged to delay its decision in order for rehabilitative courses to be undertaken (cl 13.1.2(1)(b) of the Direction). 25 On this basis, the first respondent submitted that the Tribunal considered the seriousness of the applicant's offending conduct to date, as it was required to do, and the assertion that it did not give proper weight to the relative lack of seriousness of the applicant's offences prior to reckless wounding amounts to impermissible merits review. 26 I accept these submissions. The Tribunal gave proper consideration to the likelihood of the applicant engaging in further criminal or other serious conduct and ground 4 does not identify any legal error.

DQM18 v Minister for Home Affairs [2020] FCAFC 110 27 Counsel for the first respondent in oral submissions referred to the Full Federal Court's recent decision in DQM18 v Minister for Home Affairs [2020] FCAFC 110 (DQM18), in which the Full Federal Court held that the Assistant Minister to the first respondent failed to perform the required statutory task in determining not to revoke a visa cancellation. The Full Court held that the Assistant Minister erred by failing to: (1) give meaningful consideration to representations made by the appellant, including the representation that the appellant would not have any support if returned to Sudan or South Sudan. In this regard, the Full Court found that the Assistant Minister "engaged in nothing more than speculation, without a probative basis" in determining that the appellant's sisters would attempt to assist him if he were returned to Sudan or South Sudan (at [52]); (2) determine the country to which the appellant would be returned (at [67]). As the first respondent submitted, the plurality in that decision stated that the failure to make a specific finding about whether the appellant would be returned to Sudan or South Sudan was "a further indication that the Assistant Minister did not engage with the appellant's representation about it not being safe for him to be sent back" (at [62]). It was also significant that the Tribunal in that proceeding did not have country reports for either Sudan or South Sudan before it when reaching its decision; (3) consider "the objective reality of the circumstances to which [the appellant] is being compelled to return; and then explain how this reality has, or has not, affected the exercise of power. The Assistant Minister did not undertake that task at all, and therefore failed to exercise the jurisdiction conferred upon him according to law" (at [92]); and (4) consider that indefinite detention would be a legal consequence of the non-revocation of the cancellation of the appellant's visa. The Full Court stated that the Assistant Minister "made no findings about this matter at all" (at [101]). 28 In relation to the failure to make a finding about whether the appellant would be returned to Sudan or South Sudan the plurality concluded that "in the face of the ambiguity about how Sudan or South Sudan should be addressed, the Minister had failed to perform the statutory task in confronting the factual representation and determining how that factual representation should be assessed against South Sudan or Sudan and incorporating those findings into the weighing exercise" (at [91]). 29 In support of its conclusion to remit the decision, the Full Court stated that (at [118]): …there are two significant errors: the failure to consider the representation about safety and the failure to consider the representation about indefinite detention. Taken together, we are comfortably satisfied that the appellant was deprived of the realistic possibility of a different outcome on his request for revocation of his visa cancellation. That is especially so where the Assistant Minister did not even make a finding about which country the appellant would be removed or returned to, which infected several aspects of his reasoning process. 30 The Full Court found that this error was material to the Assistant Minister's exercise of power and was therefore a jurisdictional error, and set the decision aside. 31 Counsel for the first respondent submitted that DQM18 should be distinguished from the present proceeding, since the Tribunal in this matter: (1) gave meaningful consideration to each of the representations made by the appellant, and recognised that it was required to actively engage with the applicant's claims relating to risk of harm and to make specific findings of fact in this respect (at [175]-[176]); (2) having expressly found that it could not determine the country to which the applicant would be returned, assessed the material by reference to the circumstances prevailing in both Sudan and South Sudan. Importantly, as identified by the first respondent, the Tribunal in this proceeding ensured it had before it material relevant to both countries, including both country reports; and (3) considered the "objective reality of the circumstances to which the applicant is being compelled to return" and explained how these circumstances affected its exercise of power. The first respondent noted that the Tribunal recognised that both Sudan and South Sudan are very dangerous; dealt with the risk of generalised violence in both countries; and recognised that despite the possible lack of non-refoulement obligations the applicant risks harm through homelessness, unemployment and generalised violence in both Sudan and South Sudan. Further, the Tribunal identified that it did not have the information to determine which country the applicant might be a citizen of, or even if he would be accepted in either Sudan or South Sudan, and that this might cause further hardship in the form of the applicant's prolonged detention. The Tribunal clearly took this possibility into account and it weighed significantly in the applicant's favour (at [204]). 32 I accept these submissions. The present proceeding is not one in which the applicant was "deprived of the possibility of a different outcome" on his request for revocation of his visa cancellation. The applicant was provided with the possibility of having his visa cancellation revoked, however, that possibility did not eventuate because, according to the Tribunal's assessment of the merits of the applicant's case, revocation was not warranted. The Tribunal gave proper consideration to the representations made by the appellant and each of the matters to which the Tribunal was required to have regard in its exercise of power, including, following DQM18, the objective reality of the circumstances to which he might be returned (whether that be in Sudan or South Sudan) and the possibility of indefinite detention. 33 For these reasons the applicant has not established any error by the Tribunal and the application must be dismissed, with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot.

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