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[2021] FCA 1292
Federal Court of Australia
2021-10-27
Colvin J
Original judgment source is linked above.
COLVIN J: 1 Mr Rick De Veyra has lived in Australia since 2002, when he was 13 years of age. In December 2019 his visa was cancelled. In February 2021, the Administrative Appeals Tribunal affirmed a decision by a delegate of the Minister not to revoke the visa cancellation. He now seeks review of the Tribunal's decision on the basis of alleged jurisdictional error. The error is said to arise because the Tribunal misdirected itself as to the process to be followed in considering the expectations of the Australian community, being a consideration to which the Tribunal was required to have regard in re-exercising the relevant statutory power. The error is said to concern the assessment of the weight to be applied to that consideration. 2 The Tribunal's task was to decide whether the cancellation decision should be revoked in the exercise of the power conferred by s 501CA(4) of the Migration Act 1958 (Cth) and to do so standing in the shoes of the delegate of the Minister. Section 501CA(4) provides: (4) The Minister may revoke the [visa cancellation] 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 [visa cancellation] decision should be revoked. 3 It was not in dispute that the applicant did not pass the character test. In those circumstances, s 501CA(4) required the Minister by his delegate (and the Tribunal when re-exercising the statutory power) to form a state of satisfaction as to whether there is a reason other than passing the character test why the cancellation decision should be revoked. 4 The Minister has power under s 499 of the Migration Act to give written directions (that are not inconsistent with the Act) to a person having functions or powers under the Act. Any such direction must be complied with by that person: s 499(2A). The Minister has given such a direction in respect of the exercise of the power under s 501CA(4). At the time of the Tribunal's decision, the relevant direction was Direction no. 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction 79). 5 The Tribunal set out the relevant terms of Direction 79 in its reasons. For present purposes, it is sufficient to note the following aspects of the direction: (1) It specifies considerations that decision-makers exercising the power conferred by s 501CA(4) must take into account. (2) The primary considerations that are specified are: 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. (3) As to the third of the primary considerations, the direction says in para 9.3(1): The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation 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 continue to hold a visa. Decision-makers should have due regard to the Government's views in this respect. (4) The direction states that primary considerations 'should generally be given greater weight than the other considerations' and that one or more primary considerations may outweigh other primary considerations. (5) The direction also states principles that provide a framework within which decision-makers should approach their statutory task. Relevantly for present purposes, the direction specifies the following two principles in para 6.3(2) and (3): The 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. A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. 6 In its reasons, the Tribunal set out its consideration of matters relevant to the first and second of the primary considerations and expressed views as to the strength with which those considerations weigh for or against revocation of the visa cancellation. The Tribunal then turned to the third primary consideration. The Tribunal began by considering the reasoning in the Full Court decision in FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 where the nature of what was required by the third consideration was in issue. After considering the reasons in FYBR, the Tribunal said (paras 154-155): The construction of paragraph 13.3 of Direction No 79 as confirmed in FYBR (FC) [together with the two guiding principles quoted above], supports the conclusion that the Australian community would expect the Applicant's Visa to remain cancelled, and consequently, that the Cancellation Decision should not be revoked. The Tribunal will discuss the weight to be given to this consideration at the conclusion of these reasons as part of the overall weighing exercise. 7 No issue was taken with this approach. To the extent that it is a statement to the effect that the third primary consideration does not invite an inquiry as to what are the community expectations are and that those expectations are a factor that will weigh against revocation, it reflects the reasoning of each of Charlesworth J and Stewart J in FYBR. Their Honours' reasoning was expressed in separate judgments and, in some material respects not presently relevant, different terms. However, they were both of the view that para 13.3 did not invite an evaluation by the Tribunal of what it thought were community expectations and that those expectations were to be taken to be those expressed in the Direction. They also agreed that compliance with the Direction required the decision-maker to undertake an evaluative assessment of the extent to which those specified expectations weighed against revocation of the visa cancellation: see at [77] (Charlesworth J), [97] (Stewart J). 8 In consequence, the evaluation to be undertaken by the Tribunal in forming the required state of satisfaction was as to whether regard to the other two primary considerations (and any other relevant considerations) together with an assessment of the weight to be given to the third primary consideration (described by Stewart J as an assessment of appropriateness of the party desiring a visa to refused the outcome because of the community expectations stated in the direction) amounted to another reason for revoking the visa cancellation. As part of undertaking that task, the Tribunal had to evaluate by reference to the nature of the conduct in the particular case whether the community expectations described in Direction 79 together with any other considerations that were against revocation were outweighed by those considerations that were in favour of revocation of the visa cancellation. There was no onus. All matters needed to be considered and the required state of satisfaction formed. 9 The Tribunal's reasons in that regard were expressed as follows (paras 194-204): In relation to the first primary consideration, the Tribunal has found that: (a) the nature and seriousness of the Applicant's offending conduct weighs very strongly against the revocation of the Cancellation Decision (paragraphs 13.1 and 13.1.1 of Direction No 79); and (b) the risk to the Australian community should the Applicant commit further offences weighs moderately against the revocation of the Cancellation Decision (paragraphs 13.1 and 13.1.2 of Direction No 79). Overall, with respect to the first primary consideration, the Tribunal has concluded that the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of Direction No 79), weighs strongly against the revocation of the Cancellation Decision. With respect to the second primary consideration, being the best interests of minor children (paragraph 13.2 of Direction No 79), the Tribunal has found that the best interests of the Applicant's: 16-year-old nephew R weighed moderately; 15 year-old niece H weighed moderately; five or six-year-old son of his former partner weighed slightly; and other children weighed minimally in favour of the revocation of the Cancellation Decision. The Tribunal has found that the third primary consideration, being the expectations of the Australian community (paragraph 13.3 of Direction No 79) would be that the Cancellation Decision should not be revoked. The Tribunal must now determine the weight to be applied to this consideration. In determining the weight to be afforded to the third primary consideration, the Tribunal notes that the first primary consideration, regarding the protection of the Australian community, weighed against the Applicant. This consideration was comprised of the nature and seriousness of the Applicant's offences, which weighed very strongly against the revocation of the Cancellation Decision. It was also comprised of the risk of the Applicant reoffending, with the Tribunal finding that the Applicant had a low likelihood of reoffending, which weighed moderately against the revocation of the Cancellation Decision. In reaching this conclusion, the Tribunal considered the serious nature of the harm that can be caused to members of the community from violent offending such as the grievous bodily harm and assault on a taxi driver offences, making even a low risk of similar conduct in the future unacceptable (paragraph 6.3(4) of Direction No 79). Overall, the Tribunal found that the first primary consideration weighed strongly against the revocation of the Cancellation Decision. Further, in determining the weight to be applied to the third primary consideration, the Tribunal must balance the first primary consideration of the protection of the Australian community with the considerations that weigh in the Applicant's favour. These considerations included: the primary consideration of the best interests of minor children (with the respective weights having been referred to above). Additionally, the Tribunal found that the strength, nature and duration of the Applicant's ties to Australia (paragraph 14.2(1) of Direction No 79) weighed strongly in favour of the revocation of the Cancellation Decision. Further, the impediments the Applicant would face if returned to the Philippines weighed moderately in favour of the revocation of the Cancellation Decision (paragraph 14.5(1) of Direction No 79). The Tribunal also considered the impact of the COVID-19 pandemic, which did not favour revocation of the Cancellation Decision and was given neutral weight. After balancing the relevant primary and other considerations, the Tribunal concludes that the expectations of the Australian community would nevertheless weigh strongly against the revocation of the Cancellation Decision, particularly given the unacceptable nature of the harm that could result if similar offending were to occur in the future (paragraph 6.3(4) of Direction No 79). As articulated in paragraph 13.3(1) of Direction No 79, the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has breached the trust of the Australian Community by committing violent offences. This concern was articulated by his Honour Gething DCJ when sentencing the Applicant for the grievous bodily harm offence. His Honour stated (G11/51): … violence in public places is a matter of genuine concern to the community. More specifically, in recent years there has been an increasing level of community concern about one-punch violence sometimes referred to as the coward's punch. It's been the subject of a dedicated media and social media campaign. So your act was a grossly disproportionate act of alcohol-fuelled violence. The frequency with which conduct of this nature is occurring in the Australian community and the level of community concern means that general deterrence is a matter of considerable importance. The Tribunal is of the opinion that, even though there may be strong countervailing considerations that may favour the revocation of the Cancellation Decision, including the Applicant's strong ties to Australia, (supported by the best interests of minor children, and extent of impediments if removed), the view of the Australian community would be that the Applicant should not hold a visa. The Tribunal finds that the expectations of the Australian community weigh strongly against the revocation of the Cancellation Decision. The Tribunal further finds that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh the primary and other considerations which weigh in favour of revocation of the Cancellation Decision including, the best interests of relevant minor children, the Applicant's ties to Australia and the impediments he will face if he is returned to the Philippines. Having had regard to the relevant primary considerations and relevant other considerations in accordance with Direction No 79, the Tribunal is of the view that there is not another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to affirm the Reviewable Decision.
The particulars to the ground of review 10 As has been noted, the applicant advanced a single ground of review. It alleged that the Tribunal erred in its assessment of the weight to be applied to the third primary consideration. The particulars advanced to support the ground of review were expressed as follows: 1. The Tribunal erred by making its own assessment at paragraph 202 of what might be the expectations of the Australian community in this case by weighing aspects of Direction No. 79 in a balancing exercise directed to the expectations of the Australian community. 2. It was not for the Tribunal to make its own assessment of the community expectations; rather, this consideration is a statement of the government's views as to the expectations of the Australian community. 3. The correct approach was to take the expectations of the Australian community as set against the applicant, and apply weight to that consideration as is appropriate, without reconsidering other mandatory considerations under this heading. 4. In ascertaining ways to set the weight to the expectations of the Australian community, the Tribunal erred by re-applying parts of the Direction it had already applied adversely to the applicant and so, double counted them. 11 In the course of oral submissions for the applicant it was submitted that the Court should infer from an absence of reasons as to why the expectations of the Australian community weighed strongly against revocation that the required evaluative task was not undertaken or that it was undertaken by blending or reconsidering matters that related to other considerations. 12 As to particular 1, the Tribunal did not make its own assessment of community expectations. Plainly, it explained in detail why it did not adopt that approach and it referred, correctly, to FYBR as stating why that approach should not be adopted. Contrary to the applicant's submissions, the reference in para 197 to a 'finding' about community expectations is simply a way of referring back to the earlier part of the reasons where the Tribunal stated at para 153: Having regard to the judgments of Stewart and Charlesworth JJ in FYBR (FC), the Tribunal must give effect to the norm stipulated in paragraph 13.3 of Direction No 79 (that the Australian community expects non-citizens to obey Australian laws whilst in Australia), which will, in most cases, weigh against revocation of a cancellation decision. 13 At no point in the reasons did the Tribunal undertake any kind of assessment of what it considered to be the relevant community expectations. 14 As to particular 2, the proposition as stated may be accepted. However, as has been explained, that was not the course followed by the Tribunal. 15 As to particular 3, again the proposition as stated may be accepted. However, the implicit claim that the Tribunal gave weight to other mandatory considerations as part of its reasoning as to the weight to be given to the third primary consideration should not be accepted. The statements at paras 198 and 199 simply provide the context for the evaluation to be undertaken by the Tribunal. The evaluative process that the Tribunal was required to undertake involved having regard to the primary and other considerations. The significance of the third consideration in that process would depend upon the view of the Tribunal as to the forcefulness or significance of the matters before the Tribunal concerning the other considerations and the direction that generally greater weight should be given to the primary considerations. The reasons at paras 198 and 199 simply reflect an appropriate engagement with that aspect of the task. 16 At para 200, the Tribunal expressed the view that within the overall assessment to be made having regard to the other considerations that it had just summarised, the expectations of the Australian community weigh strongly against revocation. That was not to bring those other considerations into the process of determining the weight to be afforded the third consideration. Rather, it was to make a contextual assessment of the weight to be given to the specified community expectations in the particular circumstances of the case. The Tribunal simply expressed the view that, taking account of the Tribunal's assessment of the other considerations, the specified expectation the subject of the third primary consideration still weighed strongly against revocation. That is not to fail to undertake an assessment of the weight to be given the third primary consideration or to merge its consideration with other considerations. The reasoning to support the Tribunal's view as to the weight to be given the third consideration follows and is expressed thereafter as the 'unacceptable nature of the harm that could result if similar offending were to occur' and the nature of that offending as described by the sentencing judge (quoted in para 200). 17 As to particular 4, there is no error in bringing to account the nature of the offending in assessing the weight to be given to the third primary consideration even though it is also a matter to be considered under the primary consideration. The same material may be relevant to both considerations. Indeed, it is to be expected that the nature of the offending would be brought to account in forming a view as to the weight to be given to the specified community expectations. Further, as has been explained, it is not a correct reading of the Tribunal's reasons to treat the matters stated at paras 198 and 199 as reasons why the third consideration weighs strongly against revocation. Rather, they are a statement of the context in which the significance of the stated community expectations is evaluated. 18 It follows that there was no flawed process of reasoning. The Tribunal did undertake an assessment of the weight to be given to the third primary consideration. Therefore, the various ways in which the matter was put in oral submissions have not been established. In particular, reasons have been given as to weight, the reasoning has not been shown to lack an intelligible justification and there has been no flaw demonstrated in the manner in which the third primary consideration has been weighed with other considerations. 19 Therefore, it is not necessary to consider the Minister's submission as to materiality. 20 For completeness I note that the notice of appeal sought an order that the appellant be provided with pro bono assistance. A party is not entitled to apply to the Court for a referral: see my reasons in AMV19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 99. However, a party may raise the possibility of a referral and thereby invite the Court to consider the exercise of the discretion under r 4.12 of the Federal Court Rules 2011 (Cth). It is a matter for the Court as to whether there is a sufficient basis for it to consider whether to exercise the discretion and, if so, whether it should issue a referral certificate. In the present case, a referral certificate was issued. The matter was adjourned and ultimately the applicant through Legal Aid was able to obtain legal assistance. 21 For those reasons, the application must be dismissed. It was accepted that costs should follow the event. There will be an order that the applicant pay the costs of the Minister to be assessed by a registrar on a lump sum basis if not agreed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.
De Veyra
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs