EQV20 v Minister for Immigration, Citizenship, Migrant Services and... [2021] FCA 1252 | Case summary

Federal Court of Australia|2020-09-30|Before: Mr P, Burley J

The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 The applicant is a citizen of New Zealand. He arrived with members of his family in Australia in 1994 when he was nine years old. On 7 January 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs cancelled the applicant's Special Category (Temporary) (Class TY) visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) on the basis that he was satisfied that the applicant had a substantial criminal record and was serving a full-time custodial sentence for an offence against an Australian law. After the applicant made representations to the Minister seeking the revocation of the cancellation, a delegate of the Minister on 8 July 2020 refused to revoke the visa cancellation pursuant to s 501CA(4) of the Act. The applicant then applied to the Administrative Appeals Tribunal for review of the delegate's decision. On 30 September 2020, the Tribunal affirmed the decision of the delegate. 2 This is an application for judicial review of the decision of the Tribunal within this Court's original jurisdiction. 3 In his amended originating application, the applicant advances the following ground of review:
1. The Tribunal fell into jurisdictional error by taking into account an irrelevant consideration, and/or constructively failing to exercise its jurisdiction or acting unreasonably, or failed to afford the applicant procedural fairness, in reaching a state of "satisfaction" that there was no "other reason" for revocation of cancellation of the visa pursuant to section 501CA(4)(b)(ii) by reference to two alleged common assault convictions said to have occurred on 26 August 2019 (at Reasons [43]), in circumstances where: (a) the Applicant was not made aware of any such convictions in 2019 as a matter the Tribunal would consider; (b) those convictions did not exist and it was therefore irrelevant to consider such material; (c) matters similar to those had been the subject of conviction some 9 years earlier in 2010; (d) by reason of Direction No 79 the Tribunal was required to pay particular regard to domestic violence offences when assessing the seriousness of the Applicant's conduct in light of the need to protect the Australian community and reflect community expectations; and (e) as a result of that error, and the failure to appreciate those facts, the Applicant has been deprived of the possibility of a successful review. 4 The applicant was represented by Mr Santucci of counsel who was appointed to act on a pro bono basis pursuant to a certificate issued under r 4.12 of the Federal Court Rules 2011 (Cth). The Minister was represented by Mr Johnson of counsel. Both the applicant and the Minister filed written submissions in advance of, and made oral submissions at, the hearing.

THE DECISION OF THE TRIBUNAL 5 The Tribunal noted that on 27 September 2019, the applicant was re-sentenced in the Parramatta Drug Court for a number of offences for which he had in October 2018 received suspended sentences. It noted that those offences were: two counts of drive motor vehicle during disqualification period; one count of contravene prohibition/restriction in AVO (Domestic); one count of break and enter house etc steal value -< $60,000; and one count of Larceny value <- $2000. 6 The Tribunal noted that the applicant was also convicted of two new offences being: one count of drive motor vehicle during disqualification period; and one count of break and enter house etc steal value -< $60,000. 7 The Tribunal noted that the sentences imposed were for an aggregate term of 22 months of which the applicant was required to serve 13 months with the consequence that his visa was mandatorily cancelled pursuant to s 501(3A) of the Act. The issue before the Tribunal was whether there was "another reason" within s 501CA(4)(b)(ii) why the cancellation decision should be revoked. 8 The Tribunal set out the terms of the legislation and noted that Direction 79, being a written direction made by the Minister pursuant to s 499 of the Act, guides decision-makers in the exercise of the power in s 501CA(4). It summarised the preamble to the Direction and identified and set out relevant terms within the Direction concerning the three primary considerations identified in it, being the protection of the Australian community, the best interests of minor children in Australia affected by the decision and the expectations of the Australian community. The Tribunal also summarised the "other considerations" that the Direction requires decision-makers to take into account where relevant. 9 The Tribunal then turned to consider the protection of the Australian community in relation to "past conduct and future risk". It said: 33. It is necessary to analyse the Applicant's criminal history in some detail to expose his behaviour and other aspects relevant to assessing the seriousness of his past conduct and whether there is a relevant future risk in terms of this consideration. 34. I do not regard the Applicant as a determined "criminal" in the everyday sense. The Applicant has been a user of drugs of various types, including heroin, from quite a young age. This drug-taking has, no doubt, informed both his criminal conduct and his serious antisocial behaviour, including domestic violence to former partners. 35. On a scale of seriousness, the Applicant's criminal behaviour has increased somewhat over time, including breaking and entering offences committed in the first half of 2018. Prior to 2018, the property offences for which he was convicted were relatively petty. He has been convicted of a large number of unlicenced driving offences. 10 The Tribunal went on to note that, in relation to the applicant's driving offences, he appeared to be immune and unaffected by various Court sanctions punishing him for his behaviour. It also noted that the applicant's drug offending has been "relentless" and "goes a long way to explaining much of his other conduct, including conduct in his personal relationships". 11 In a passage that is central to the ground of review the Tribunal found: 41. The Applicant has three ex-partners and presently someone, Ms R, who he has claimed in evidence to be in a relationship with. Although the term of his imprisonment may well have affected that relationship, the Tribunal accepts that the relationship with Ms R is continuing. Ms R has three children who are relevant to issues in Primary Consideration 2, the best interests of minor children in Australia affected by the decision. 42. The Applicant has been involved in domestically violent relationships. He has been convicted in relation to domestic violence in respect of three ex-partners. On 26 August 2010, the Applicant was convicted of one count of common assault on Ms T, the mother of his four children. The Applicant denied the most serious aspects of that assault, claiming that he merely pushed the victim away. The allegations were that he further pushed her on to the bonnet of a car with one hand around her throat while carrying his young child in the other arm. This he denied. I do not accept his explanation or denial regarding the circumstances of the offence. 43. The Applicant was convicted of two further counts of common assault on 26 August 2019, in relation to a second former partner, Ms P, and her three-year-old child. The Applicant gave evidence that this incident did not occur at all but that Ms P made the story up so that she could obtain some financial benefit from social services or the like. The Applicant did not complain when charged that the incident did not occur at all nor did he attempt, at any time, to challenge the assertions of assault either before or after conviction. I find that his version is inherently incredible. 44. A third incident, which took place on 6 May 2017, involved a third ex-partner, Ms H, whose car the Applicant drove away after an argument. After the police were called, he used threatening words in the presence of police and said, in effect, that she had likely caused him to be deported. Following this incident, the police successfully applied for an Apprehended Domestic Violence Order (ADVO) for the protection of Ms H. The Applicant was later convicted of contravening the ADVO. (Emphasis added) 12 The ground of review draws particular attention to the italicised passage. There is no dispute that there was no evidence that the applicant had been convicted of the counts of common assault mentioned there on 26 August 2019. There is also no dispute that the convictions for the assaults identified there were actually entered on 26 August 2010, nine years prior to the date recorded in the Tribunal's reasons. 13 The Tribunal then noted that these incidents suggested that the applicant's relationships are likely to continue to be fraught and tumultuous. It noted that it was clear that the applicant's violence and drug offending was linked to his personal circumstances and pressures. It noted that this was explained by the history of medical reports and assessments which refer to the various disorders from which the applicant suffers. The Tribunal did not consider that the letters of support from the applicant's former partners in any way diminished the seriousness of his domestic violence offences. 14 It said at [50]: Overall, the Tribunal considers that the Applicant's criminal history, although lengthy, is of moderate seriousness, although the commission of the domestic violence offences are regarded by the Tribunal as particularly serious. 15 After reviewing the evidence of psychological and psychiatric assessments performed on the applicant, the Tribunal said at [56]: In summary, the Tribunal considers the conduct of the Applicant, particularly having regard to domestic violence which the Tribunal views as serious and the relentless unlicenced driving by the Applicant, together with property offences, leads to a conclusion that the Applicant's offending is serious. 16 The Tribunal then noted in relation to the question of future offending and risk to the Australian community that, broadly, the applicant had in the past been unable to abstain from criminal offending even when subject to beneficial orders imposed by Courts, and it considered that he would almost certainly re-offend in the future. It considered this factor to weigh particularly heavily against the applicant. 17 In relation to primary consideration 2, the best interests of minor children in Australia, the Tribunal noted that the applicant has four biological children, three stepchildren and five nephews and nieces. It accepted that despite the applicant having been in custody and immigration detention, he has had contact with his biological children on a daily basis and that this indicated he would have a strong future relationship with them. In relation to the applicant's stepchildren, the Tribunal also accepted that it was important that each stepchild had a continuing relationship with the applicant and vice versa. Similarly, the Tribunal took into account the presence of the applicant's numerous family members in Australia and determined that his removal would impact on both them and himself. It also considered that his removal would have a negative impact upon the applicant's nieces and nephews. It did, however, note that the applicant has been convicted of assaulting a child in the past and, on occasions, failing to meet his obligations for contact with his biological children. It also noted that it would be possible for the applicant and all of the minor children to have some sort of electronic contact if he was removed to New Zealand. The Tribunal, however, considered this to be a poor substitute for real face-to-face contact. It concluded that this consideration weighed very heavily in favour of the applicant. 18 In relation to primary consideration 3, the expectations of the Australian community, the Tribunal said: 69. In this case, the Tribunal has considered the seriousness of the Applicant's offending history together with the risk of his re-offending. The Applicant's offending should be regarded as being less culpable because of his mental health issues. The length of time the Applicant has spent in Australia affords him a higher level of tolerance. Nonetheless, the seriousness of the domestic violence offences and persistence of his offending, overall, lead to the conclusion that the Australian community, in conformity with Direction No. 79, would expect that the Applicant should not continue to hold a visa. 70. This consideration weighs against revocation of the mandatory cancellation decision. 19 The Tribunal then considered the matters falling within the "other considerations" identified in the Direction, including Australia's international non-refoulement obligations, the strength, nature and duration of the applicant's ties to Australia, the impact of his behaviour on victims and the extent of the impediments that the applicant would face if he is returned to New Zealand. 20 The Tribunal concluded that there was a variety of factors which weighed strongly in the applicant's favour including the presence of his biological children and other children in Australia, his family members and the absence of any of his relatives living in New Zealand. It found that other considerations in his favour included the difficulties associated with him returning to New Zealand. The Tribunal weighed against these factors its view that there was a real likelihood that he would reoffend. It ultimately found at [103]: 103. Above all, even although this application presents ultimately very finely balanced issues concerning the revocation or otherwise of his visa, nonetheless, the Tribunal considers the past behaviour of the Applicant so worryingly serious and of more concern, the real likelihood of future offending of the type he has indulged in in the past, that these factors relative to Primary Consideration 1 together with Primary Consideration 3 ultimately outweigh all positive factors in the Applicant's favour.

CONSIDERATION 21 The applicant submits that at [43] of its reasons the Tribunal fell into jurisdictional error by incorrectly identifying the applicant's convictions of two further counts of common assault as having taken place on 26 August 2019. In fact, the two counts occurred on 26 August 2010. He submits that this is a patent and central error, and that the decision is illogical or unreasonable or a breach of the requirement of procedural fairness, citing SZRHL v Minister for Immigration and Citizenship [2013] FCA 1093; 136 ALD 641 at [33]-[34] (Logan J). He submits that the timing of the domestic violence offence was wrong by a large margin of nine years, and that error likely affected the Tribunal's consideration of the seriousness of the offences as indicating an increase or recent tendency to commit such offences. This, he submits, likely led the Tribunal to feature the domestic violence offence more prominently in the weighing process compared with the other minor driving offences. He also submits that this casts doubt on the credibility finding made at the conclusion of [43]. 22 The applicant also submits that, given he was not informed in advance of any material which supported the conclusion that he was convicted of two domestic violence offences in 2019 upon which he could comment, the Tribunal failed to afford him procedural fairness. He further submits that the fact finding of the Tribunal clearly miscarried in a sufficiently central way to warrant a conclusion of jurisdictional error, citing Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [111] (Robertson J): The fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error. 23 The Minister, whilst accepting that there is a clear error in the Tribunal's reasons at [43], submits that on a common sense reading the error is clerical or typographical in nature and, therefore, does not indicate that the Tribunal misapprehended or misunderstood the evidence. On this basis, the Minister contends that the Tribunal did not fall into jurisdictional error. 24 In reply to the Minister's submissions, the applicant contends that it is ultimately a question of fact for the Court to determine whether the error is typographical in nature. He submits that the Tribunal's reasons are to be taken, prima facie, as the reasons for the Tribunal's decision and that it is for the Minister to establish, by reference to material external to the reasons, that the Tribunal's error was merely typographical in nature. 25 In my view, whether or not the error is typographical in nature may be understood by having regard to the context in which the error appears and the evidence that was before the Tribunal. 26 Subsections 43(3)-(5) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) provide: 43 Tribunal's decision on review … Tribunal must give copies of its decision to parties (3) The Tribunal shall cause a copy of its decision to be given to each party to the proceeding. Evidence of Tribunal's decision or order (4) Without prejudice to any other method available by law for the proof of decisions or orders of the Tribunal, a document purporting to be a copy of such a decision or order, and to be certified by the Registrar, to be a true copy of the decision or order, is, in any proceeding, prima facie evidence of the decision or order. (5) Subsections (3) and (4) apply in relation to reasons given in writing by the Tribunal for its decision as they apply in relation to the decision. 27 These provisions demonstrate that the reasons for the decision of the Tribunal are taken to reflect what the Tribunal found. However, it is for the Court to discern what the Tribunal is saying in its reasons. The starting point is that because the Tribunal was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were, in fact, taken in arriving at that result: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [5] (Gleeson CJ), [37] (Gaudron J), [69] (McHugh, Gummow and Hayne JJ); Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 at [130] (Hayne J). Nevertheless, the Court will not be concerned with looseness in the language of the Tribunal nor unhappy phrasing of the Tribunal's thoughts, nor are the reasons for the decision under review to be construed minutely and finely with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at [30] (Brennan CJ, Toohey, McHugh and Gummow JJ); Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280 at 287 (Neaves, French and Cooper JJ); Politis v Federal Commissioner of Taxation [1988] FCA 739; 16 ALD 707 at 708 (Lockhart J). 28 Although the authors of important decisions affecting the lives of individuals should be held to a high standard, it must be acknowledged that even the most carefully prepared and proof-read decisions will, from time to time, contain clerical or typographical errors. Several decisions in this Court have considered whether the reasons of a decision-maker contain a typographical error and whether, as a matter of common sense, the reasons should be construed having regard to that fact: CCC v Minister for Immigration & Multicultural Affairs [2001] FCA 682 at [28]-[29] (Marshall J); Foroghi v Minister for Immigration & Multicultural Affairs [2001] FCA 1875 at [48] (Marshall J); SZLPH v Minister for Immigration & Citizenship [2008] FCA 744 at [29]-[32] (Weinberg J); Bhangu v Minister for Immigration and Border Protection [2017] FCA 108 at [26] and [30]-[36] (Moshinsky J). 29 The task of the Court in the present case is to determine, by reference to all of the circumstances and the reasons themselves, whether the Tribunal actually misapprehended the evidence or whether the reference to "2019" in [43] was an error in the nature of a slip of a key. 30 Relevantly, at [42] the Tribunal referred to the applicant's convictions in relation to domestic violence. It said that "[h]e has been convicted in relation to domestic violence in respect of three ex-partners". It noted that "[o]n 26 August 2010, the Applicant was convicted of one count of common assault on Ms T". After then making some observations as to the applicant's response to the conviction with respect to the offence against Ms T, the Tribunal continued at [43] to note that "[t]he Applicant was convicted of two further counts of common assault on 26 August 2019, in relation to a second former partner, Ms P, and her three-year-old child". The Tribunal went on at [44] to refer to a third incident involving a third ex-partner, Ms H, which it found occurred on 6 May 2017. 31 For the following reasons I find that the Tribunal intended to write "2010" at [43] but instead, as a result of a clerical error, put "2019" and accordingly did not misapprehend the correct position. 32 First, the reference to two further counts on 26 August strongly suggests that the Tribunal intended to write 2010 but instead put "2019". I infer that the Tribunal used the word "further" at [43] to signify that the convictions referred to therein were entered on the same day as that noted at [42]. I consider it to be unlikely that the Tribunal intended to write "2019" because the reference to "further counts" would not be on the same day, but some 9 years later. 33 Secondly, I note that, at [44], the Tribunal refers to a "third incident…involv[ing] a third ex-partner" on 6 May 2017. Notably, this date pre-dates that recorded by the Tribunal with respect to the common assault on the "second former partner" in the preceding paragraph [43]. If, contrary to my view, the Tribunal is taken to have intended to use the date that it did at [43], this would have the consequence of disrupting the chronological order of the incidents outlined by the Tribunal at [42]-[44]; that is, the incident with respect to the "third ex-partner" would predate the conviction with respect to the "second former partner". This also tends to indicate that the error at [43] was typographical in nature. 34 Thirdly, I note that the facts recited by the Tribunal comprise a detailed and fair summary of the applicant's criminal record that was before the Tribunal in the form of the decision of the delegate, the police fact sheet and the Minister's Statement of Facts, Issues and Contentions. It was accurate in all respects except for the date. This points away from a finding that the Tribunal intended to select 2019 as the year. I consider that this contextual matter supports the conclusion that I have reached: see Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [77] (Perram, Murphy and Lee JJ). 35 Accordingly, in my view it is tolerably clear that the Tribunal did not mistakenly consider that the convictions identified at [43] of its reasons were entered in August 2019. Rather, I consider that the Tribunal correctly considered that they took place on 26 August 2010 but somehow mistook the keystroke for "9" in lieu of "0" and thereby recorded the incorrect date in its reasons. 36 The consequence is that the factual basis for the jurisdictional errors contended for by the applicant is not made out. The application must accordingly be dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.

Migration Act 1958(Cth)ss 501(3A)

EQV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

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