De Veyra v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The application be dismissed.
2. The applicant pay the costs of the first respondent to be assessed by a registrar on a lump sum basis if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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.