FYBR v Minister for Home Affairs

2. BACKGROUND 5 As the matters in issue are narrow, the background facts can be briefly summarised as follows. 6 The applicant is a citizen of Afghanistan. Following an exercise of the power by the Minister under s 46A of the Act to allow the applicant to apply for a protection visa, the applicant was granted a Bridging E (Class WE) visa. The applicant's bridging visa was cancelled under s 116 of the Act and he was placed in a correctional facility. In March 2016 the applicant pleaded guilty in the Local Court of New South Wales to the offences of common assault, procure child for unlawful sexual activity, and two counts of stalking or intimidation with intent to cause fear of physical or mental harm. The applicant was convicted and sentenced to 2 years' imprisonment with a non-parole period of 18 months. On appeal, the sentence was reduced to an aggregate head sentence of 12 months' imprisonment with an aggregate non-parole period of 7 months. Upon the applicant's release from criminal detention on expiry of the non-parole period, the applicant was immediately detained under s 189(1) of the Act and placed into immigration detention where he currently remains. 7 On 7 September 2016, the Minister again exercised the power under s 46A of the Act to allow the applicant to lodge an application for a Safe Haven (Enterprise) visa (SHEV). The applicant lodged his application on 28 April 2017 on the basis of his Hazara ethnicity and Shi'a Muslim religion. 8 On 24 January 2018, the applicant was issued with a notice of intention to refuse his application for the SHEV because he did not meet the character test. On 7 August 2018, a delegate of the Minister exercised the discretion under s 501(1) of the Act to refuse to grant the SHEV. The applicant sought merits review of that decision by the Tribunal. He was not represented before the Tribunal and provided no documentary evidence in addition to the material which his migration agent had already provided to the delegate. 9 By a decision given on 5 November 2018, the Tribunal affirmed the delegate's decision. 10 In its reasons, the Tribunal first found that the applicant did not pass the character test in s 501(6)(e) of the Act because he had been convicted of a sexually based offence involving a child. 11 Secondly, the Tribunal considered the protection of the Australian community which is a "primary consideration" under Direction 65 (Tribunal reasons at [27]). In the course of that consideration, the Tribunal addressed the nature and seriousness of the applicant's criminal conduct in accordance with cl 11.1.1 of Direction 65, finding that his crimes were serious, as reflected in his sentence of imprisonment for 12 months (Tribunal reasons at [28]). The Tribunal also considered the risk to the community in accordance with cl 11.1.2 in the course of which the Tribunal, among other things: (1) referred to the author of the pre-sentence report having assessed the applicant overall as having a medium to low risk of reoffending; (2) found that the harm that would be caused if his conduct were repeated is not so serious that any likelihood of repetition is unacceptable; (3) found that he had not taken any steps towards rehabilitation although he had expressed the desire to do so; and (4) noted that his intention to not reoffend had not been tested as he had not been in the community since he offended (Tribunal reasons at [30]-[53]). 12 The Tribunal also found that the nature and seriousness of the offences committed, the cumulative effect of the applicant's behaviour, and the risk to the Australian community should he commit similar offences in the future, supports the exercise of the discretion to refuse to grant the SHEV (Tribunal reasons at [53]), and considered the expectations of the Australian community purportedly in accordance with cl 11.3 of Direction 65 (as I explain later). 13 Thirdly, the Tribunal accepted that Australia has protection obligations to the applicant under s 36 of the Act (Tribunal reasons at [58]). The Tribunal concluded on this issue that "being in immigration detention for more than two years after having served the sentence determined by the justice system for the offences he committed, with uncertainty about when or if ever he may be released, weigh in favour of not exercising the discretion to refuse the visa" (Tribunal reasons at [66]). 14 Finally, the Tribunal concluded that: 67. Taking into account all the circumstances discussed above, and being conscious of the lengthy time he has already spent in detention, the Tribunal has concluded that in this case the primary considerations of protection of, and expectations of, the Australian community outweigh the other considerations in this case, Australia's international non-refoulement obligations and consequential prolonged detention.

3. THE APPLICATION FOR AN EXTENSION OF TIME 15 As earlier explained, the applicant requires an extension of time within which to seek judicial review of the Tribunal's decision in the Federal Court because his application was filed outside the 35 day time limit imposed by s 477A(1) of the Act. Under s 477A(2), this Court has a discretion to make an order extending time where the Court is satisfied that it is necessary in the interests of justice to make the order. In considering whether to exercise the discretion in an applicant's favour, the Court considers among other things the applicant's reasons for delay and whether the application, if an extension of time were granted, would have any reasonable prospect of success: Metera v Administrative Appeals Tribunal [2008] FCA 1627; (2008) 105 ALD 18 at [22]-[23] (Cowdroy J) (quoting Fisher v Minister for Immigration and Citizenship [2007] FCA 591; (2007) 162 FCR 299 at [35] (Stone J)); MZYYO v Minister for Immigration and Citizenship [2013] FCA 49; (2013) 214 FCR 68 at [30] (Murphy J) (applying Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 (Wilcox J)). In assessing the last of these matters, the proposed grounds of judicial review should be considered at a "reasonably impressionistic level"; the Court should not descend into a fuller consideration of the arguments for and against each ground (see by analogy MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J), approved on appeal in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110; (2016) 152 ALD 478 at [38] (the Court)). 16 In support of his application for an extension of time, the applicant relied upon the affidavit of Mr Etienne De Villiers Hugo, solicitor, affirmed on 13 December 2018. Mr Hugo's evidence was not contested. He explained that: (1) the matter had been presented to the applicant's solicitors by Legal Aid on 10 December 2018 in order to file an application for judicial review; (2) the applicant's solicitors were instructed to act in the matter by Legal Aid less than two hours before the 35 day deadline; (3) the application for judicial review was lodged electronically at the Federal Circuit Court (FCC) at 4:40pm on Monday 10 December 2018, being the 35th day from the date of the purported Tribunal decision; (4) the FCC rejected the application because it was filed 10 minutes out of time; (5) the applicant's solicitors subsequently came to the view that the FCC in any event lacked jurisdiction because the Tribunal's decision was made under s 500 of the Act; and (6) as soon as that mistake was discovered, Mr Hugo took steps to rectify the situation by filing the application for an extension of time in the Federal Court on 13 December 2018. 17 The Minister rightly does not dispute the reasonableness of the applicant's explanation for the delay; nor does the Minister contend that he would suffer any relevant prejudice were the Court to grant the extension. However, the Minister contends that the two grounds identified in the amended application have insufficient prospects of success to warrant the grant of an extension of time. 18 In my view, it is in the interests of justice to grant the extension of time given the very short delay which, absent the solicitor's error, would have been 10 minutes, the steps taken immediately thereafter to rectify the situation, the absence of any prejudice, and the fact that, at a reasonably impressionistic level, it cannot be said that the proposed grounds lack sufficient merit.

4.1 The Tribunal's reasoning with respect to cl 11.3 of Direction 65 19 The application for judicial review centres on the Tribunal's reasons at [54]-[57] under the sub-heading "Expectations of the Australian community (11.3)" in the context of the Tribunal addressing the consideration of the protection of the Australian community. The critical passages read as follows: 54. In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 Mortimer J considered expectations of the Australian community in the context of cl 13.3 of Direction 65. Her Honour concluded: … this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government … wish to articulate community expectations, whether or not there is any objective basis for the belief. That is the structure of this part of the Direction. 55. Her Honour's reasoning is equally applicable to cl. 11.3 [citing Oluwafemi v Minister for Home Affairs [2018] FCA 1389 at [37] in the accompanying footnote]. 56. The Tribunal accepts the Respondent's submission that the Australian community would regard [the applicant's] offending as unacceptable. The Australian community expects non-citizens to obey Australian laws. He has been convicted of serious offences, a sexual offence and three other offences against vulnerable members of the community. 57. The Tribunal accepts that this consideration favours the exercise of the discretion to refuse to grant the visa. 20 Clause 11.3 of Direction 65 provides that: (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 refuse the visa application of such a person. Visa refusal 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 be granted a visa. Decision-makers should have due regard to the Government's views in this respect.

4.2 The applicant's submissions 21 At the heart of the applicant's submission is that the Tribunal failed to comply with cl 11.3 of the Direction because it treated cl 11.3 as conclusively "deeming" (to quote Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY) at [76]) what community expectations are, irrespective of the individual's personal circumstances. As a consequence, the applicant submitted that the Tribunal wrongly treated this consideration as necessarily suggesting that the discretion should be exercised so as to refuse the grant of the visa in cases where cl 11.3 was relevant. By contrast, the applicant submitted that cl 11.3 requires the Tribunal to undertake "an assessment of community values made on behalf of [the Australian] community", citing Afu v Minister for Home Affairs [2018] FCA 1311 (Afu) at [85] (Bromwich J). As such, in the applicant's submission, the Tribunal failed to appreciate that it was permissible under cl 11.3 for it to assess whether community expectations would have been the same in relation to the applicant, given that he had already spent so much time in immigration detention. He further submitted that if the Tribunal had appreciated that this was permissible, it may have reached a different decision. As such, it was the applicant's submission that the alleged error was material because it operated to deprive him of the possibility of a successful decision: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780 at [29]-[30] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [3] (Bell, Gageler and Keane JJ). 22 The applicant accepted at the hearing that in order to succeed on this argument, it was necessary for him to demonstrate that the decision of Thawley J in Oluwafemi v Minister for Home Affairs [2018] FCA 1389 (Oluwafemi) was "plainly wrong": Garrett v Federal Commissioner of Taxation [2015] FCA 665; (2015) 233 FCR 226 at [33] (Kenny J). While the applicant also submitted that the passages from Mortimer J's decision in YNQY relied upon by the Tribunal were obiter, he submitted that if I were to find that they were ratio, they were also plainly wrong.

4.3 Is the decision in Oluwafemi plainly wrong? 23 In Oluwafemi the applicant submitted that the Tribunal was required to determine the content of the primary considerations specified in Direction 65, including community expectations under cl 11.3(1), and was to do so by reference to the particular steps taken by the applicant to reform his behaviour: Oluwafemi at [35]. 24 Justice Thawley rejected this submission, holding that it: 37. … is inconsistent with the general scheme of the Direction and the way the primary considerations operate. These parts of the Direction are statements as to what the expectations of the Australian community are for the purposes of determining whether the visa should be refused. It is not for the Tribunal to determine the expectations of the Australian community by reference to the applicant's circumstances or evidence as to what the expectations of the Australian community are. The Direction requires a decision-maker to assess each of the primary considerations as they apply to the circumstances of the applicant's case, and to weigh the various considerations against each other in order to reach a conclusion as to how the discretion should be exercised. 25 Similarly, his Honour rejected the applicant's submission that the Tribunal erred in failing to take into account the fact that the applicant's wife and minor child were also part of the Australian community and in failing to take their expectations into account, holding that: 47. Paragraph 11.3(1) of the Direction states, in effect, the Minister's policy as to the expectation of the Australian community - see: YNQY at [76] per Mortimer J … It is not the role of the Tribunal to make its own assessment of the expectations of the Australian community by taking into account the applicant's wife and minor child at parts of that community. That is not to say that the Tribunal was to ignore as irrelevant the interests of the applicant's wife and minor child. 26 In so holding Thawley J agreed with Mortimer J's views in YNQY at [76]-[77] (extracted below). In YNQY, the applicant also contended that the Tribunal had erred in failing to take into account the expectations of the Australian community in accordance with cl 13.3 of Direction 65. That clause is relevantly identical to cl 11.3 save that it deals with community expectations in the context of decisions on whether to revoke a mandatory visa cancellation as opposed to a decision to refuse to grant a visa. In rejecting the applicant's submission in that case, Mortimer J stated (in the passage relied upon in part by the Tribunal here) that: 76. In substance this consideration [in cl 13.3] is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the "expectations" about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to "tolerance") the Australian community's "expectations" are defined only in one particular way: namely, that the Australian community "expects" non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction. 77. I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]). (emphasis added) 27 In my view, notwithstanding counsel's careful submissions, the applicant has not established that the decision in Oluwafemi and Mortimer J's reasoning in YNQY are plainly wrong and should not be followed. 28 First, as I have earlier mentioned, the applicant relied upon the decision of Bromwich J in Afu in support of his submission. However, with respect and as the Minister submitted, the decision in Afu is consistent with the reasoning in the passages from Oluwafemi and YNQY quoted above. 29 In Afu the applicant submitted that the Tribunal had fallen into jurisdictional error in making the following findings (as characterised by the applicant) without the support of logically probative evidence: (1) in the case of violent transgressions, the Australian community would have less regard to the individual, err on the side of visa cancellation and want that person deported; and (2) it would be preferable for the Australian community to see the applicant deported. (Afu at [78]-[80]) 30 These findings were said to be significant because the expectations of the Australian community were one of two considerations on the basis of which the Tribunal affirmed the delegate's decision not to revoke the mandatory cancellation of the applicant's visa under s 501(3A) of the Act. The Minister, however, submitted in Afu that: 81. … it is plainly unnecessary for the Tribunal to have evidence before it of the views of Australians before it can make findings as to what it considers to be the expectations of the Australian community in a given case. That is because the Tribunal, in common with the Minister or his delegate, is permitted to have regard to the expectations of the Australian community in the context of determining whether or not to revoke the cancellation of a non-citizen's visa. That, in turn, is because, quoting Djalic v Minister for Immigration [2004] FCA[FC] 151; 139 FCR 292 at [71]: … the legislation is designed to protect the community from criminal or other undesirable conduct and to permit the Minister to give effect to what might loosely be described as community expectations that perpetrators of such conduct, should not be permitted to remain in Australia. 82. The Minister submits that Direction 65 provides the source of the Australian community's expectations when it comes to visa cancellations and revocation of visa cancellations. 31 Thus, the Minister submitted in Afu that, consistently with the Tribunal's findings, cl 13.3 provided that the Australian community expects non-citizens to obey Australian laws while in Australia and that non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that such a person should not hold a visa. 32 Bromwich J accepted the Minister's submissions holding that: 85. The applicant's argument misconceives the representative nature of the Tribunal's function and, for that matter, the same function when the exercise of the revocation power is being considered by the Minister or his delegate. The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 reproduced above. The Tribunal was required to give effect to those norms, which is precisely what it did. There is no error, legal or factual, in what the Tribunal did, let alone the requisite jurisdictional error. This sub-ground must therefore fail. (emphasis added) 33 Relying upon this passage in Afu, the applicant in this case submitted that cl 11.3 "requires the Tribunal to undertake 'an assessment of community values made on behalf of that community'". However, as submitted by the Minister, Bromwich J did not suggest that it is the Tribunal that undertakes this assessment. Instead, as his Honour held, the express terms of Direction 65 create the "norm" to which the Tribunal must give effect. It follows that Afu lends no support to the applicant's submission that the decision in Oluwafemi is plainly wrong. 34 Secondly, contrary to the suggestion by the applicant (albeit faintly alluded to), I do not see a basis for distinguishing the decision in Oluwafemi or the other decisions to which I have referred. The applicant's argument here is essentially the same, namely, that cl 11.3 does not preclude the Tribunal from making its own assessment of community expectations for the purpose of cl 11.3, and therefore as a primary consideration, having regard to the circumstances of the applicant's case. 35 Thirdly, the applicant argues that, contrary to the construction of cl 11.3 adopted in Oluwafemi, cl 8(3) of Direction 65 suggests that, by their nature, each of the "primary considerations" specified in the Direction and the "other considerations" may individually weigh in favour of or against (relevantly) refusal, or be neutral, depending upon an applicant's subjective circumstances. In my view, with respect, that construction does not accord with the language and context of cl 8(3). 36 Specifically, after referring to the obligation to take primary and other considerations into account where relevant and the need to give appropriate weight to evidence from independent and authoritative sources, cl 8 relevantly provides that: (3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa. (4) Primary considerations should generally be given greater weight than the other considerations. (5) One or more primary considerations may outweigh other primary considerations. 37 On an ordinary and natural reading, the purpose of cl 8 is to specify the obligation to take into account the primary and other considerations relevant to the individual case and, importantly for present purposes, to specify the way in which those considerations are to be weighed as against each other. It says nothing about the content of the primary and other considerations in a particular case or more generally; nor does it say anything about whether by their nature the primary and other considerations favour refusal, cancellation or non-revocation. 38 Rather, the content of primary and other considerations is specified relevantly in cl 11 and cl 12 respectively of Part B of Direction 65 which applies to the discretion to refuse to grant a visa. Clause 11 provides that primary considerations not only include "Protection of the Australian community" from criminal or other serious conduct and "Expectations of the Australian Community", but also the "Best interests of minor children in Australia" which plainly may, and in general will, weigh against refusal of a visa in the final balance (as the Full Court explained in Nigam v Minister for Immigration and Border Protection [2017] FCAFC 127; (2017) 254 FCR 295 at [44]). Similarly, "other considerations" as specified in cl 12 include international non-refoulement obligations which, where relevant, will almost certainly weigh against refusal. "Other considerations" identified in cl 12 also include the impact on family members, impact on victims, and impact on Australian business interests. In contrast to non-refoulement obligations, the latter may, of their nature, weigh against or in favour of refusal depending on the individual's circumstances. As such, some primary and other considerations by their nature tend to "tip the balance" in favour of or against refusal, while some considerations may tend to "tip the balance" in one direction only or the other depending upon the particular facts. 39 Contrary, therefore, to the applicant's submissions, in my view there is nothing in the text or context of cl 8(3) which suggests that a primary consideration must be of the latter, fact-sensitive kind as opposed to establishing a "norm". Furthermore, as the Minister submitted, it would render cl 8(3) unworkable if an "other consideration", which was required by cl 8(4) to be given less weight than a "primary consideration", was nonetheless to be taken into account as an aspect of a "primary consideration". Read in context, therefore, cl 8(3), together with cl 8(4) and (5), do no more than explain the final exercise of balancing the primary and other considerations - adverse and favourable - in which the decision-maker must engage in deciding whether or not to refuse a visa. There is therefore nothing in cl 8(3) which undermines the construction of cl 13.3 adopted by Mortimer J in YNQY (and applied to cl 11.3 by Thawley J in Oluwafemi), namely, that it expresses the expectation of the Australian community only in terms of the negative conclusion that it may be appropriate to refuse to grant the visa by reason of an applicant's commission of serious criminal offences. 40 Finally, the applicant identified cl 6.3(5) of Direction 65 as the high point of his argument. This clause, together with the remaining paragraphs of cl 6.3, set out the principles which provide a framework within which decision-makers should approach the exercise of discretion to refuse or cancel a visa or to not revoke an automatic visa cancellation. Clause 6.3(5) reads: Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age. 41 In the applicant's submission, this clause expressly permits the decision-maker to take considerations which are subjective to an applicant into account. That is unquestionably correct. However, it does not mean that those subjective considerations must be taken into account by the Tribunal so as to reach its own conclusion about community expectations for the purposes of cl 11.3. Rather, provision is expressly made elsewhere in the Direction for individual or subjective considerations, such as the impact on family members and on victims, to be taken into account in the balancing exercise as "other considerations" in cl 12. 42 It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government's view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant's submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant's circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the "norm" stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases. As such, the Tribunal did not fall into jurisdictional error in failing to have regard to the applicant's circumstances when assessing the expectations of the Australian community in applying cl 11(3) of the Direction.

5. CONCLUSION 43 It follows for these reasons that the application for an extension of time is granted, but that the application for judicial review must be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry.