Ground two - appellant's submissions
40 There were two limbs to the appellant's arguments that were advanced in support of ground two. As with ground one, these arguments were complicated. They were advanced on the assumption that, as we have held, para 13.3 of Direction No 79 is not invalid on the basis that was advanced on behalf of the appellant.
41 The first limb of the appellant's arguments in support of ground two was that the Tribunal had erred in its understanding and application of the "expectations of the Australian community" consideration. The error was alleged to flow from [76] of the Tribunal's reasons. We set out below [75] to [77] of the Tribunal's reasons, because they should be read together -
75 In FYBR v Minister for Home Affairs [2019] FCAFC 185 the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purposes of applying this consideration. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to sub-paragraph 13.3(1) of the Direction.
76 Having regard to sub-paragraph 13.3(1) and the principles set out in paragraph 6.3 of the Direction, I am satisfied that the Australian community expects that a non-citizen "will obey Australian laws" while living in Australia and will generally "forfeit the privilege of staying" in Australia if they frequently commit serious crimes of a violent nature.
77 Considering the extent, frequency and nature of the Applicant's offending, set out in this decision, in the Tribunal's opinion this consideration weighs heavily against revoking the cancellation of his visa.
42 The appellant advanced three matters in support of the submissions that error was disclosed by the above passages in the Tribunal's reasons.
43 First, the appellant submitted that the relevant content of the "expectations of the Australian community" was to be found exclusively within para 13.3, and in particular to the exclusion of any reference to the principles in para 6.3, which included statements of expectations in paras 6.3(2) and (3). Counsel for the appellant submitted that these references to expectations did not refer to non-revocation decisions. We have set out para 6.3 at [18] above. Paragraph 6.3(2) provides that "[t]he 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" (emphasis added). Paragraph 6.3(3) provides that where a non-citizen has committed a serious crime that person "should generally expect to forfeit the privilege of coming to, or to forfeit the privilege of staying in, Australia" (emphasis added). On the other hand, para 13.3 provides that where a non-citizen has been convicted of a breach of the laws of Australia or elsewhere "it may be appropriate to not revoke the mandatory visa cancellation of such a person" (emphasis added), and that "non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa" (emphasis added).
44 The appellant fastened upon the difference between the language in para 6.3(2) and the permissive language in para 13.3. That difference was said to set up contradictory statements of community expectations such that the decision-maker, when addressing the consideration in para 13.3, should eschew any reference to, or reliance upon, the principles expressed in paras 6.3(2) and (3), or any other part of para 6.3, or else stray into error. The appellant's argument relied upon the conclusions of Charlesworth J at [67] and Stewart J at [93] in FYBR, respectively, that "[i]t is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a 'primary consideration'", and that "it is not for the decision-maker to undertake an assessment of what the community expectations are in each case dependent on the circumstances of the case". The Full Court in HSRN at [24] made the same point: "it is not for the decision-maker to assess the expectations of the Australian community for the purposes of applying the consideration". With that assumption in mind, the appellant submitted that incorporation of any of the principles expressed in para 6.3 into the analysis with respect to the primary consideration in para 13.3 would involve the decision-maker assessing what the community expectations were in a particular case - by reference to the para 6.3 principles - which was "contrary to the approach and findings in FYBR". By way of example, the appellant drew upon the principles in paras 6.3(4) and (5), which are set out at [18] above. It was said that reliance upon those principles when considering the primary consideration of expectations of the Australian community in para 13.3 would lead to the sort of individualised and context-based determination of the content of the expectations of the Australian community which was rejected in FYBR and HSRN.
45 Moving to the particular error said to have been made by the Tribunal, the appellant submitted that at [76] the Tribunal had erroneously incorporated a portion of para 6.3(3) into its expression of the expectations of the Australian community by using the words "forfeit the privilege of staying" in Australia. Those words are not to be found in para 13.3. On the basis of the inclusion of those words from para 6.3(3) in [76] of its reasons, the appellant submitted that the Tribunal had misunderstood where the content of the expectations referred to in para 13.3 was to be found.
46 The second submission of the appellant in support of the first limb of ground two was that at [100] of FYBR, Stewart J had identified the three relevant expectations which are applicable to para 13.3 of Direction No 79, being -
(a) that non-citizens will obey Australian laws whilst in Australia;
(b) that it may be appropriate to refuse a visa application (or, for present purposes, to refuse to revoke a mandatory cancellation of a visa) where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of an offence in Australia or elsewhere; and
(c) that in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that the non-citizen should not be granted a visa.
47 The appellant submitted that these expectations were materially different to an expectation that a person will "forfeit the privilege" of staying in Australia (even if only "generally"), and therefore the Tribunal had erred at [76] in its employment of the words "the Australian community expects that a non-citizen … will generally 'forfeit the privilege of staying' in Australia if they frequently commit serious crimes of a violent nature".
48 Third, the appellant submitted that the Tribunal had failed to understand and correctly apply the para 13.3 consideration because it had failed to appreciate that, in determining the weight to be attributed to that consideration, it was necessary to consider the specific circumstances of the relevant applicant's case, including any submissions in relation to countervailing factors in the relevant applicant's favour. Whilst the appellant's written submissions noted this as an element of his ground two argument in relation to misunderstanding and misapplication of the para 13.3 consideration, those submissions were developed primarily under the second limb of the arguments made on behalf of the appellant in support of ground two. Accordingly, we will summarise that argument in more detail below, which deals with the second limb of ground two.
49 As to the second limb of the appellant's argument addressed to ground two, the appellant relied on two decisions of judges of the Court at first instance, namely the decision of Beach J in Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396 (Kelly), and the decision of Rangiah J in QHRY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 827 (QHRY). The appellant drew attention to the following passages in the reasons for judgment of Beach J in Kelly at [97] and [100] -
97 … FYBR establishes that the community expectations consideration does not incorporate all the countervailing factors from the person's specific circumstances. Instead, these individual factors are brought to account when deciding what relative weight to give to community expectations.
...
100 In my view, a fair reading of the Minister's reasons is that he attributed "significant weight" to his concept of the "expectations of the Australian community" without having regard to the specific circumstances of the applicant's case, including the applicant's very low risk of reoffending and the very serious impact of an adverse decision on him noting his medical diagnosis and inability to travel.
50 Moving now to QHRY. The Tribunal in QHRY had considered the effect on the applicant's partner and child of a decision to affirm the Minister's delegate's decision to refuse a visa under s 501(1) of the Migration Act, in the context of assessing the weight to be given to the primary consideration of the best interests of the applicant's minor children as well as other considerations. The applicant, however, submitted that the Tribunal ought also to have given consideration to the effect on the applicant's partner and child when considering the weight to be given to the primary consideration of the expectations of the Australian community. Rangiah J recorded at [28] that the applicant made a specific representation that was directed to the weight to be given to the expectations of the Australian community, which his Honour held at [37], [43], and [47] had not been considered by the Tribunal in arriving at its conclusion that the expectations of the Australian community weighed heavily in favour of refusal of the visa. In the present appeal, counsel for the appellant relied upon the following passage in the reasons for judgment of Rangiah J at [47] -
The Minister submits that as the impact of the decision upon the applicant's partner and children had already been considered earlier in the reasons, it was unnecessary to consider that issue again at [112]. However, the method of reasoning adopted by the Tribunal was to first decide what weight was to be given to each primary consideration and other consideration, and later assess those considerations in combination having regard to the weighting already decided. The Tribunal's consideration of the effect upon the applicant's partner and children was in the context of assessing the weight to be given to the best interests of the children and other considerations. The matter complained of is that the Tribunal assessed the weight to be given to the expectations of the Australian community without considering the effect upon the applicant's partner and children. Having failed to do so, the Tribunal reasoned that the expectations of the Australian community weighed "very heavily", and then decided that this finding together with its finding upon protection of the Australian community, "determinatively weighs" in favour of refusing the visa. The consideration of the effect upon the applicant's partner and children elsewhere did not cure or otherwise affect the impact of the Tribunal's failure to consider that factor when deciding the weight to be given to the expectations of the Australian community.
51 For the above reasons, Rangiah J held at [48] that the Tribunal in QHRY had made a jurisdictional error by failing to consider the relevant submission.
52 Against this background, the appellant referred to [77] of the Tribunal's reasons which are the subject of this appeal, which was the concluding paragraph under the heading "PRIMARY CONSIDERATION 3: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY", and which we set out at [41] above. The appellant argued that by stating that the para 13.3 consideration weighed heavily against revoking the cancellation of his visa, the Tribunal at [77] had fallen into error because such weight had been ascribed "without considering anything other than [his] offending". In written submissions, the appellant submitted that "there were specific circumstances, as outlined in relevant material before the Tribunal and clear submissions put forward by the applicant, that went to the weight the Tribunal should ascribe to the primary consideration of the expectations of the Australian community". The appellant submitted that these were submissions and representations of which the Tribunal did not take account in relation to that consideration. The appellant listed those submissions and representations as including the following -
(a) The applicant "has no connection with Russia for a period of more than 17 years which he spend in Australia [sic]. He lost all his contacts in Russia. He has no any [sic] relatives and even friends there, has no document which he could use in Russia to establish his identity in order to settle in any place in Russia. … until present Russia requires compulsory residence registration known as "propiska". [The applicant] has no property in Russia where he can be registered and no one who willing to register him on their property. Therefore [the applicant] will become a homeless person. Having no residential registration he will not be able to get any job and therefore will not have income to support himself" - at AB 228. See also at AB 266.
(b) The applicant had "developed strong ties within Australian community as well as got stable employment working in a capacity of painter for many years [sic]" - at AB 567 [89].
(c) The applicant had a long-term partner, Ms M, who would be impacted by his return to Russia - at AB 567 [93].
(d) The applicant "has a very longstanding history of alcohol abuse" (as noted at AB 111), and "used alcohol excessively to cope with PTSD and Major Depressive Disorder" (at AB 228). And, the applicant's offending (specifically the 2018 offending of reckless wounding, which triggered the mandatory cancellation of his visa) occurred in the context of the applicant's "alcohol abuse" - at AB 111.
(e) The applicant (as of 8 May 2020) "realised that he needs to be treaded [sic] specifically for his alcohol dependency and therefore he taken a lot of efforts to get rid of that terrible dependency" and "is positive that he is fully rehabilitated from alcohol dependency" (at AB 162). Also, "that the Applicant's character has been reformed as a result of counselling services attendance provided by alcohol and drug counsellor" - at AB 266.
(f) The evidence regarding rehabilitation, including: i. A certificate from SMART Australia (AB 165), ii. Psychologist engagement letters (AB 166 - 172), iii. Remand Addictions certificates (AB 174 - 181).
53 At the hearing of the appeal it was clarified that the appellant did not submit that the Tribunal did not take these considerations into account in its overall evaluation. Rather, it was submitted that the Tribunal should have taken account of the submissions and representations set out above in forming a view as to the weight to be ascribed to the para 13.3 consideration concerning the expectations of the Australian community, and that it was not enough that the Tribunal had considered these matters in the context of other considerations. At the hearing of the appeal, counsel for the appellant accepted that, by way of example, the matters relating to the appellant's ties to the Australian community had been taken into account by the Tribunal under the heading "Other consideration - strength, nature and duration of ties to Australia", and that this consideration had then been weighed against the para 13.3 consideration in the ultimate balancing exercise between the various relevant considerations. However, counsel nonetheless maintained (at T43.39-42) -
[T]he Tribunal failed to address, refer to or respond to any of these matters [i.e the principles in cl 6.3 and the matters extracted at [52], above] at all in considering the appropriate weight to be attributed to the primary consideration of the expectations of the community let alone actually intellectually engage with them.