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

Factual background 5 The applicant is a citizen of Poland who has resided in Australia since arriving on 12 June 1982. The applicant has been the holder of a Class BF Transitional (Permanent) visa since 1 September 1994. 6 The applicant committed a number of criminal offences in Australia between 1 November 1990 and 8 May 2018. On 3 March 2014, the applicant was sentenced to a 12-month term of imprisonment, and on 20 March 2017, he was sentenced to a term of imprisonment of two years and nine months. 7 On 5 April 2017, the applicant's visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act), as the Minister's delegate was satisfied that the applicant did not pass the character test because he had a substantial criminal record and was serving a sentence of imprisonment on a full-time basis. The applicant made representations requesting that the Minister revoke the cancellation in accordance with s 501CA(4)(a) of the Act, and, on 3 January 2018, a delegate of the Minister decided to revoke the cancellation (the Previous Revocation Decision). 8 The applicant committed and was sentenced for further criminal offences after the revocation of the visa cancellation, including, on 23 April 2019, a sentence of ten months' imprisonment. On 19 August 2019, the applicant's visa was again cancelled pursuant to s 501(3A) of the Act, as the Minister's delegate was satisfied that the applicant did not pass the character test because he had a substantial criminal record (based on the sentence of 20 March 2017) and was presently serving a sentence of imprisonment on a full-time basis. The applicant made representations on 19 August 2019 requesting that the Minister revoke the cancellation in accordance with s 501CA(4)(a) of the Act. 9 On 11 June 2020, a delegate of the Minister decided not to exercise the power conferred by s 501CA(4) to revoke the cancellation of the visa. 10 The applicant applied to the Tribunal for review of the delegate's non-revocation decision on 17 June 2020. The Tribunal had the authority to review such a decision under s 500(1)(ba) of the Act. 11 The applicant's application was heard by the Tribunal on 18 and 21 August 2020. The applicant called witnesses and gave oral evidence at that hearing. On 3 September 2020, the Tribunal affirmed the decision of the Minister's delegate to not revoke the cancellation of the visa. The Tribunal provided written reasons for its decision on 10 September 2020. 12 The applicant then applied to this Court for review of the Tribunal's decision pursuant to the power conferred on the Court under s 476A(1) of the Act.

Legislation 13 The relevant provisions in this matter are ss 474, 500, 501 and 501CA of the Act. 14 Section 474 of the Act provides, relevantly: 474 Decisions under Act are final (1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2) In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). 15 Section 500(1)(ba) of the Act provides: 500 Review of decision (1) Applications may be made to the Administrative Appeals Tribunal for review of: … (ba) decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa; or 16 Section 501CA of the Act provides, relevantly: 501CA Cancellation of visa - revocation of decision under subsection 501(3A) (person serving sentence of imprisonment) (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. … (4) The Minister may revoke the original 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 original decision should be revoked. 17 In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. The Minister has issued Direction No. 79 (Direction 79), which took effect from 28 February 2019 and remains in force.

The Tribunal's reasons 18 The Tribunal's reasons began by identifying the issues before the Tribunal. The reasons then set out the legislative framework, and proceeded to consider the character test under s 501(6) of the Act, concluding that the applicant had not passed the character test for the purposes of s 501CA(4)(b)(i). 19 The reasons then considered whether there was another reason why the cancellation of the applicant's visa should be revoked pursuant to s 501CA(4)(b)(ii). The Tribunal noted the various considerations that must be taken into account in exercising the discretion under s 501CA(4) of the Act, particularly the considerations contained in Direction 79. 20 The Tribunal then set out in some detail the applicant's background and offending history, and in doing so, expressly referred to and analysed the Previous Revocation Decision. The Tribunal then stepped-through the considerations set out in Direction 79, concluding that they weighed in favour of non-revocation of the visa cancellation decision. The Tribunal ultimately concluded that it should not revoke the cancellation of the applicant's visa, and affirmed the decision of the delegate.

Consideration 21 The issues in this matter are limited in scope, and relate primarily to the role the Previous Revocation Decision had to play in the decision made by the Tribunal not to revoke the visa cancellation decision. 22 The applicant submits that the Tribunal's decision is affected by jurisdictional error in three ways: (1) in making its decision, the Tribunal found that it was not prevented from finding that the Previous Revocation Decision was made in error or that it was anything other than the correct and preferable decision at the time it was made; (2) the Tribunal failed to give proper consideration to the Previous Revocation Decision, notwithstanding that it was relevant to the exercise of the Tribunal's jurisdiction; and (3) the Tribunal's failure to give proper consideration to the Previous Revocation Decision was unreasonable in the legal sense. 23 I will proceed to consider each ground of review.

Ground 1 24 By the first ground, the applicant contends that the Tribunal fell into jurisdictional error because it erred in law by concluding that s 474(1) of the Act did not prevent it from finding that the Previous Revocation Decision was in error or was other than the correct and preferable decision at the time it was made. The applicant relies on the nature of the Previous Revocation Decision as a privative clause decision, which was final and conclusive in respect of the matters to which it related. The applicant submits that the Tribunal erred in finding that it was not required to treat the Previous Revocation Decision as final and conclusive. 25 The Minister submits that this ground is based on a mischaracterisation of the Tribunal's reasons, and that the Tribunal did not make any finding as to the correctness of the Previous Revocation Decision. 26 Section 474(1)(a) provides that a privative clause decision is final and conclusive, while s 474(1)(b) provides that such a decision must not be challenged, appealed against, reviewed, quashed or called in question in any court. A privative clause decision is defined in s 474(2) as, "a decision of an administrative character made…under this Act…other than a decision referred to in subsection (4) or (5)". The parties accept that the Previous Revocation Decision was a privative clause decision. 27 The Tribunal addressed the Previous Revocation Decision at paras 67 to 76 of the reasons. The Tribunal firstly addressed the applicant's submission that the Previous Revocation Decision, "fetters the Tribunal's function in relation to the decision under review", referring to s 474 of the Act, and the decision of Logan J in Pitcher v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 999, which was relied upon by the applicant. It appears that the submission was that the Tribunal must proceed on the basis that the applicant's offending until the date of the Previous Revocation Decision was not such that it precluded revocation of the mandatory cancellation decision. 28 The Tribunal concluded that Logan J's remarks in Pitcher did not support the applicant's position, as the visa cancellation decision before the Tribunal was an "entirely separate decision" from the Previous Revocation Decision, such that the Previous Revocation Decision did not fetter the Tribunal's function in relation to the decision presently before it. 29 The Tribunal at para 75 of its reasons concluded that the Previous Revocation Decision had been made in the context of material which differed from the material currently before the Tribunal, stating that: …I note that the previous revocation decision was made in the context of the information that was available to the decision maker at the time, which may not have included the information about the prior offending that is now available to the Tribunal and which did include forecasts about the Applicant's future conduct that proved to have been incorrect. I respectfully reject the contention that the Tribunal must proceed on the basis that the Applicant's offending up until 3 January 2018 was not such that it precluded revocation of the mandatory cancellation of the Applicant's visa. The Tribunal is not concerned with evaluating the Applicant's offending up to any particular point in time except the present. The Tribunal must apply the Direction taking into account the totality of the Applicant's offending, and the circumstances of the offending, according to the available evidence at the time of the decision. 30 Pitcher concerned the relevance of a previous revocation decision made under s 501CA(4) to the determination of a subsequent request for revocation. The applicant in that case had contended that the previous revocation decision was final and conclusive, and that the Tribunal could not make a different decision in relation to the second revocation. 31 The applicant in this case relies, in particular, upon the following passage from Pitcher: 17. Part of the continuum in relation to the Tribunal's exercise of its jurisdiction was the earlier administrative decision made to revoke the cancellation. The Tribunal's reasons disclose that the Tribunal member was well aware of that. That decision formed part of the background facts against which the Tribunal came to exercise its review jurisdiction. I can accept, as was put on behalf of Mr Pitcher, that the Tribunal could not contradict an earlier revocation decision but that is not the nature of the jurisdiction here being exercised. 32 While Logan J accepted that the Tribunal could not contradict an earlier revocation decision, his Honour considered that the Tribunal had not purported to do so: 18. Where the facts are different, as they are here by effluxion of time, there is no inconsistency between an earlier decision to revoke cancellation and a later decision not to revoke cancellation. I can readily see how there may be an arguable case in relation to findings by an earlier ministerial decision-maker on the same material as is before a later decision-maker. At the very least, there may be an expectation of consistency in administrative decision-making or it may be that it is unreasonable to depart from an earlier finding of fact, but those are questions for another day. 19. The particular burden in relation to the first proposed ground of review is that the facts were different. There had been further offending conduct. That conduct, as well as the later development of family or other ties with Australia, all had to be considered in the context of the Tribunal's exercising its review jurisdiction. The Tribunal was in no way bound by the earlier decision to revoke cancellation… … 27. It is particularly important that judicial review of decisions so made not descend into a re-evaluation on the merits. The Tribunal was not bound by the earlier decision, even though it was final and conclusive in terms of s 474 of the Act, in any way other than to acknowledge that there had been an earlier revocation decision. It was faced with different facts and in relation to those different facts, took into account, in my view, the relevant consideration of the ministerial direction and made a value judgment. There the matter must rest. (Emphasis added.) 33 Justice Logan held that where a subsequent revocation decision is made on additional, and, therefore, different, facts to a previous revocation decision, the Tribunal is not bound by that previous decision notwithstanding that it is, "final and conclusive in terms of s 474". 34 The Previous Revocation Decision in this case was made on 3 January 2018, and as such only took into account the applicant's offending up to that date. The subsequent offending by the applicant was obviously not before the decision-maker and so was not taken into account. 35 While the Tribunal accepted that the Previous Revocation Decision should be taken into account, it considered that it did not fetter the Tribunal's function in relation to the decision presently before it. The Tribunal was correct to find at para 67 of the reasons, that it was not bound by the Previous Revocation Decision as it was, "an entirely separate decision". The Tribunal was engaged in a separate exercise of its power under s 500(1)(ba) of the Act, reviewing a separate decision by a delegate of the Minister under s 501CA(4) not to revoke a separate decision to cancel the visa, upon a different set of facts. 36 The Tribunal took into account the Previous Revocation Decision as well as the applicant's offending that occurred after 3 January 2018, and concluded that there was not another reason to revoke the cancellation of the applicant's visa. 37 In the exercise of its power under s 501CA(4) of the Act, the Tribunal was not bound by the Previous Revocation Decision. The Tribunal did not fall into jurisdictional error in concluding that the Previous Revocation Decision did not fetter the Tribunal's function in relation to the decision under consideration. 38 One further matter should be mentioned. At para 75 of its reasons, the Tribunal said, "I respectfully reject the contention that the Tribunal must proceed on the basis that the Applicant's offending up until 3 January 2018 was not such that it precluded revocation of the mandatory cancellation of the Applicant's visa". The sentence is somewhat confusing, and is inaccurate. If anything, the Tribunal should have accepted, rather than rejected, the contention that the Tribunal must proceed on the basis that the applicant's offending up until 3 January 2018 was not such that it precluded revocation of the mandatory cancellation of the applicant's visa. However, it was not contended that the error was material. The Tribunal in fact proceeded on the basis that it was open to the Tribunal to revoke the cancellation of the visa. 39 Ground 1 of the application must be rejected.

Ground 2 40 Ground 2 contends that the Tribunal failed to have regard to a relevant consideration in making its decision, namely the Previous Revocation Decision. The applicant contends that a necessary implication of the Previous Revocation Decision is that there was, as at 3 January 2018, "another reason" why the visa cancellation decision should be revoked for the purposes of s 501CA(4)(b)(ii) of the Act. It is submitted that this fact was a relevant consideration in the sense contemplated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-41 because s 474(1)(a) necessarily makes it so. It is contended that s 474(1)(a) requires that acknowledgment of the Previous Revocation Decision includes acknowledgement of the finality, conclusiveness and correctness of that decision. 41 The ground of failure to take into account a relevant consideration as considered by Mason J in Peko-Wallsend at 39-41 may be summarised as follows: (a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he or she is bound to take into account in making that decision. (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. (c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. (d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned. 42 The applicant submits that the Previous Revocation Decision is a mandatory relevant consideration under s 501CA(4)(b)(ii) because of the operation of s 474(1)(a) of the Act, such that the Tribunal was required to not only acknowledge the existence of the Previous Revocation Decision, but also to acknowledge the, "finality, conclusiveness and correctness of that decision". 43 Section 501CA(4)(b)(ii) provides that the Minister may revoke a cancellation decision if satisfied that there is another reason why the decision should be revoked. As a matter of construction, the provision does not expressly or impliedly require that the Minister take into account any previous revocation decision, or acknowledge the finality, conclusiveness and correctness of any previous revocation decision. 44 In any event, the Tribunal did have regard to the Previous Revocation Decision at para 76 of its reasons: As Logan J articulated in Pitcher, the earlier revocation decision is part of the factual continuum and it should be taken into account. The relevance of the earlier revocation decision is, broadly, that the Applicant's visa was mandatorily cancelled in 2017, the Applicant made representations to the Respondent including that he would not reoffend and that he would face difficulties if returned to Poland, the cancellation was revoked in 2018, the Applicant was on notice that further offending could result in his visa being cancelled, and he re-offended. 45 Therefore, the Tribunal did not fall into jurisdictional error as it did take into account the Previous Revocation Decision when considering whether there was another reason why the visa cancellation decision should be revoked pursuant to s 501CA(4)(b)(ii) of the Act. The weight to be given to the Previous Revocation Decision was a matter for the Tribunal in the exercise of its discretion. 46 Ground 2 of the application must be rejected.

Ground 3 47 Ground 3 contends, in the alternative to Ground 2, that the failure of the Tribunal to consider the Previous Revocation Decision was unreasonable in the legal sense. As the Tribunal did take into account the Previous Revocation Decision, this ground cannot succeed 48 Ground 3 of the application must be rejected.

Conclusion 49 The applicant has not established any of the grounds of review. The application must be dismissed with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.