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[2021] FCAFC 78
General information, not legal advice.
Federal Court of Australia (Full Court)
2021-05-10
Mr J, Beach JJ, Logan J
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LOGAN J: 1 Mr Robert Dzik arrived in Australia as a 12 year old child on 12 June 1982. He has remained in Australia since then. On and from 1 September 1994, until a material event of cancellation, his residence here has been lawful pursuant to a class BF transitional (permanent) visa. 2 On 5 April 2017, on the basis of particular criminal conduct sounding in a term of imprisonment, and overall conduct, a decision was made by the Minister's delegate under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) to cancel Mr Dzik's visa. Subsequently, he made a representation requesting that that visa cancellation be revoked. On 3 January 2018, a delegate of the Minster revoked that cancellation. At that time, Mr Dzik was given a notice in which it was stated, "Please note: the decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you". 3 Suffice to say, Mr Dzik engaged, after 3 January 2018, in further criminal offending. The nature and extent of that is referred to in the reasons given by the Administrative Appeals Tribunal (Tribunal) as a sequel to another decision to cancel Mr Dzik's visa, and his failure this time, at primary decision-making level, to secure revocation of that cancellation. The Tribunal came on his application to review the decision to refuse to revoke that particular cancellation. On 3 September 2020, for reasons given later in writing, the Tribunal decided not to revoke the cancellation of Mr Dzik's visa. 4 Mr Dzik then sought the judicial review of the Tribunal's decision by the Court. On 16 December 2020, the Court dismissed with costs that judicial review application, see Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1794. He has now appealed to this Court against that order of dismissal. There is but one ground of appeal: 1. The Court below erred [in] failing to find that the Second Respondent's decision dated 3 September 2020 affirming the First Respondent's decision not to revoke the mandatory cancellation of the Appellant's visa involved jurisdictional error, being an error of law that impacted the Second Respondent's exercise of its jurisdiction. Particulars A. In making its decision, the Second Respondent found that s 474(1)(a) of the Migration Act 1958: (i) only sought to deprive courts of jurisdiction in relation to privative clause decisions; and (ii) did not require the Administrative Appeals Tribunal to treat a previous privative clause decision as final and conclusive. B. The Second Respondent's above finding is contrary to law as s 474(1)(a) of the Migration Act 1958 does more than limit the jurisdiction of courts and requires the Tribunal to treat a previous privative clause decision as final and conclusive. C. The Second Respondent's failure to treat a previous privative clause decision as final and conclusive was material to its determination of whether to exercise its discretion to revoke the mandatory cancellation of the Applicant's visa. 5 The Minister raised an interrogative note as to whether or not, as pleaded, this ground raised a new issue which might require, therefore, a grant of leave. I am inclined to the view that the ground of appeal really does no more than, perhaps, in different words, but in substance, raise an issue initially put to the Tribunal on behalf of Mr Dzik and pressed as a ground of review in the original jurisdiction. In any event, no factual controversy or other prejudice would attend its agitation in the form pleaded. 6 The difficulty about that ground, which became apparent as it was developed in the course of oral submissions, is that it requires a particular foundational premise to succeed. That premise is that the Tribunal was not seized with, in the sense of understanding, the fact that there had earlier been a revocation of a cancellation and of, inferentially, what had been the reasons for that revocation. 7 This is not a case where the Tribunal was seeking, on identical facts, to revisit the earlier revocation of cancellation. The Tribunal, at [55] - [56], makes explicit an awareness of the initial cancellation and of the earlier revocation of cancellation in the following paragraphs: 55. In April 2017, the Respondent cancelled the Applicant's visa under s 501(3A) of the Act. The Applicant requested revocation of the cancellation and made representations in support of that ("the first revocation request"). In answer to the question: "What do you think is the likelihood that you may re-offend now? Please give reasons for your answer" the Applicant responded, "No risk"'. (sic) He also said the following in a statement: "If I was to be removed and sent to Poland, I have no family members that I am aware of in Poland. I would have no networks to assist me to find work. My Polish is no longer fluent as I have been mainly an English speaker since coming to Australia in 1982. I have no intention of using drugs when I am released from prison. I will be on strict parole conditions and I will be drug tested. I am aware that if my permanent visa is revoked, I am aware that any further offence would mean almost certain removal from Australia. As I do not wish to be separated from my parents and my current partner or my son, I have a very strong incentive to not be involved in drug use again." 56. On 3 January 2018, the Respondent revoked the cancellation. The notice that was sent to the Applicant advising of the revocation contained the following warning: Please note: the decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you. [emphasis in original - footnote references omitted] 8 The Tribunal returns to the subject of the earlier revocation of cancellation in the context of dealing with a submission made on behalf of Mr Dzik as to the effect of s 474(1)(a) of the Migration Act, at [70] - [76]. The Tribunal did so with particular reference to an earlier judgment of mine, Pitcher v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 999 (Pitcher). 9 In particular, at [75], by reference, and having set out particular paragraphs from my judgment in Pitcher, the Tribunal stated: 75. ... 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. 10 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 an applicant's offending, and the circumstances of the offending, according to the available evidence at the time of the decision. 11 The Tribunal then referred, at [76], to an observation made by me in Pitcher, that the earlier revocation decision is part of the factual continuum. The Tribunal's reasons must, of course, be read as a whole, and not narrowly with an eye for error. Approaching the reasons in that way, it is not only tolerably clear that the Tribunal was aware of the earlier revocation decision, but it may also quite reasonably be inferred that it took up the representation from Mr Dzik that the Tribunal set out at [55]. It is not necessary to parse all of the passage which I have quoted from [75], only to conclude that the essential approach revealed there, of considering that the Tribunal was bound to decide whether revocation should occur afresh and by reference to the material then before it was, having regard to binding authority, unquestionably correct. 12 That binding authority has its origins in observations made long ago by the Judicial Committee of the Privy Council in the Shell Co of Australia Ltd v Federal Commissioner of Taxation (1930) 44 CLR 530 (Shell Co), at 544 - 545, in upholding the constitutional propriety of the then taxation Board of Review. The Judicial Committee observed of the Board that it was in the nature of administrative machinery and that the Board was not exercising judicial power but rather, merely in the same position as, in that instance, the Commissioner himself. That particular model was taken up in s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Referring to that model and to the earlier judgment in Shell Co, Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 (Drake), at 419, stated: The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal. 13 The view expressed in Drake as to the nature of the jurisdiction exercised by the Tribunal was endorsed in the High Court, notably in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (Shi). 14 Shi is also noteworthy for a reference by Kirby J to an observation made by Davies J in Jebb v Repatriation Commission (1988) 80 ALR 329, at 333 - 334, as to the Tribunal being part of an administrative decision-making continuum. That particular observation was endorsed by Bell, Gageler, Gordon and Edelman JJ in Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250, at [53]. 15 The present case offers a paradigm example of the Tribunal's role as part of an administrative decision-making continuum. The Tribunal was, as I have mentioned, aware both of the earlier revocation of cancellation decision, of the reasons, apparently, for that and, as well, of its obligation to review not the earlier refusal to revoke cancellation decision but a later one, afresh, and by reference to the material then before it. Section 474(1)(a) of the Migration Act in no way concluded the view which the Tribunal could permissibly take of the totality of events, including events up to and including the earlier revocation of cancellation decision. 16 The Tribunal was, with respect, quite right in referring to the logic of that particular obligation. As it happens, in this instance, logic is not at all at odds with the law, but rather, the law reflects that logic. The Tribunal was perfectly entitled, in reviewing the totality, to cast its mind back to predictions made earlier which apparently led to revocation of cancellation, and then, to conclude in light of later events that those predictions had not come to pass, and that there was not to be found in the totality of offending conduct, up to and including the time when the Tribunal made its decision in 2020, some other reason to revoke the cancellation. 17 Further, the Tribunal was obliged by reference to ministerial directions made pursuant to s 499 of the Migration Act to take into account that particular totality. Once again, those directions were not in any way at odds with s 474(1)(a) in prescribing a need to look at that totality. 18 However one puts the appellant's case under s 474(1)(a), it is just impossible to succeed upon it if one understands truly the nature of the jurisdiction being exercised by the Tribunal under s 43 of the AAT Act. Instead, the decision made by the Tribunal is, as the learned primary judge correctly apprehended, unremarkable save for a particular passage described, with respect, benignly by his Honour as "confusing" but which is, in the overall context of the reasons, of no moment. The Minister's submissions before us contained each of the sentiments which I have just voiced. 19 For these reasons, I would dismiss the appeal. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.
PERRY J: 20 I express my agreement with the reasons for dismissing the appeal as articulated by Logan J, and my gratitude for the clarity with which they were expressed. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment of the Honourable Justice Perry.
BEACH J: 21 I substantially agree with the reasons of the presiding judge and would further add the following observations. 22 During the course of oral argument this morning, the appellant focused his attention on the Tribunal's reasons at [71] which said: A privative clause is one that seeks to deprive courts of jurisdiction, and that is clearly the intent of s 474. Section 474(1)(a) does not provide that the merits of a decision made under s 501CA cannot be called into question. If it did, the Applicant could not challenge the decision currently under review which was made under that provision. (emphasis in original) 23 In my view, the appellant's submissions do not carry him far. 24 First, even if the Tribunal was not wholly accurate or complete concerning the effect of s 474 of the Migration Act in the first sentence of [71], that error was immaterial. The Tribunal's reasons make it apparent that it did not gainsay the previous revocation decision or the basis thereof on the then material at the time of the previous decision. 25 Second, all that the second sentence of [71] meant was that the Tribunal could look at all the facts then before it, including the earlier facts underpinning the previous revocation decision, assessed in a new light by the later offending that had occurred after the previous revocation decision. That position was unobjectionable. When the Tribunal in [71] used the words "the merits" it meant the underlying facts. 26 Third, it seems readily apparent from the Tribunal's reasons at [75] and [76] that the Tribunal did accept as a fact the earlier revocation decision and that implicitly there was "another reason" shown at the earlier time on the then evidence. Nothing that it said sought to undermine that. 27 For these reasons, I would also dismiss the appeal. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach.
Dzik
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
(1979) 46 FLR 409
(2019) 266 CLR 250
(1988) 80 ALR 329
(1930) 44 CLR 530
(2008) 235 CLR 286