Garland v Minister for Immigration, Citizenship and Multicultural Affairs

1. The application is dismissed.
2. The applicant do pay the Minister's costs of the application 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 Garland is a New Zealand citizen who has lived in Australia since 1988. He is now 52 years of age. By reason of a sentence that was imposed for aggravated burglary and assault occasioning bodily harm, his visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth). He made representations to the Minister seeking the revocation of the cancellation in the exercise of the power conferred by s 501CA(4). A delegate of the Minister refused to exercise the power and Mr Garland sought review in the Administrative Appeals Tribunal. The Tribunal affirmed the decision of the delegate. Mr Garland now seeks review of the Tribunal's decision on the basis of alleged jurisdictional error. 2 Mr Garland appears on his own behalf and relies upon a single ground of review. It concerns an alleged failure by the Tribunal to comply with Direction No. 90 - 'Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under s 501CA' (Direction). The Direction was given by the Minister pursuant to s 499. A failure to comply with a direction made under s 499 may constitute jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6]; and Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; (2017) 250 FCR 209 at [65] (Bromwich J, Bromberg and Charlesworth JJ agreeing). 3 The ground of review is to the effect that the Tribunal made a jurisdictional error by misapplying or misconstruing para 9.4.1(2)(a)(ii) of the Direction. Paragraph 9.4.1(2) is expressed in the following terms: Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to: a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that: i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community. b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia. 4 The Tribunal's reasons concerning para 9.4.1(2) were as follows (at para 132): [Mr Garland] did not start offending soon after arriving in Australia, with his first driving/ traffic offence being in 1998, and his first criminal offence being in November 2011. Consequently, his length of time in Australia is not diminished by this factor. He has made some contributions through employment. A letter from AB, a former colleague, states that the Applicant 'has helped with volunteering his time to help his community run outdoor venues with security and safety management' (A5), but there is no other evidence of any community work including from the Applicant. Therefore, this factor is not sufficient to warrant more weight being given to the length of time the Applicant has resided in Australia. 5 As to this reasoning the ground of review alleges that the Tribunal conflated 'contributing positively to the Australian community' with community work and did not find that Mr Garland had been other than a productive or positively contributing member of the community when evidence 'of this impact' was before the Tribunal. It was further alleged that the error was material to the outcome. 6 In short focussed written and oral submissions in support of the ground, Mr Garland contended that the Tribunal did not give proper and genuine consideration to his longevity and positive contributions to Australian society. When asked to explain the aspects of his contribution as a member of the community that he relied upon before the Tribunal he provided information concerning his employment history over the time he has lived in Australia. He said he relied upon his work history as his contribution to the Australian community. He did not identify any other matters that he had advanced before the Tribunal. 7 He also made some submissions about the view that the Tribunal took about his prospects of his reoffending and the seriousness of his offence. This matter may have some significance in evaluating whether any error concerning para 9.4.1(2) of the Direction was material. However, no separate basis was raised as to how the Tribunal's reasons as to those matters might support a claim of jurisdictional error. 8 In his written submissions, Mr Garland relied upon the decision of Charlesworth J in LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1209 at [128] concerning whether there had been genuine consideration of his claimed contribution. However, in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22]-[27] Kiefel CJ, Keane, Gordon and Steward JJ warned against the use of labels such as 'proper, genuine and realistic' consideration because they have the danger of invoking language which confers a warrant for scrutinising the procedural and substantive merits of a decision thereby exceeding the limited role of a court in considering whether there has been jurisdictional error: at [26]. In my recent decision in BLBY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 128, I dealt with the consequences of the reasoning in Plaintiff M1/2021 for cases that allege a failure to comply with the Direction: at [10]-[21]. In particular, I concluded as follows concerning claims that allege a failure to conform to the Direction (at [20]-[21]: There is a significant distinction between the requirement to have regard to particular considerations (as specified in the Direction) which, in most instances, is concerned with requiring deliberation as to a particular factor and a requirement to have regard in making the decision to the content of the representations concerning that factor. The Direction imposes the former but not the latter requirement. Therefore, where the Tribunal has addressed the consideration to which it is required by the Direction to have regard and has addressed the weight to be given to that consideration, a failure to comply with the Direction cannot be demonstrated on the basis that it might be said that there is a failure to refer expressly to a particular aspect of the representations that may be relevant to that consideration, less still particular evidence that might be said to be relevant to that factor. In short, there must be particular attention to precisely what is required by the Direction and the need for the Direction to be consistent with the nature of the discretionary power conferred by s 501CA(4). It follows that in those cases where the Tribunal has directed attention to the factor to which it is to have regard then in all likelihood it will have complied with the Direction (noting that any aspect of the reasoning may be relied upon to support a separate basis for alleged jurisdictional error such as unreasonableness or illogicality or deliberation that lacks the characteristics and qualities expected of the Tribunal as the repository of the authority to undertake a merits review). 9 In this particular case, having regard to the Tribunal's reasons, it could not be said that the Tribunal failed to have regard to the factor expressed in para 9.4.1(2)(a)(ii) (based on its view as to what that para required). Therefore, to the extent that the submissions advanced by Mr Garland described the complaint in terms of a failure to give genuine consideration to that factor they do not demonstrate jurisdictional error and the Minister's submission to the effect that the weight to be given to the factor was a matter for the Tribunal should be upheld. 10 However, the way in which the ground of review was formulated gave rise to a different point. It concerned whether the Tribunal acted on a misunderstanding of what was required by the Direction, particularly para 9.4.1(2)(a)(ii). In cases where the Tribunal acts on the basis of a misunderstanding of what the Direction requires in a way that is relevantly material there will be jurisdictional error: see, for example, as to the requirements of para 9.4.1, the reasons of Thawley J in FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [62]-[68]. 11 It would be an error to view para 9.4.1(2)(a)(ii) as being confined to contributions by employment and community service. There are other positive contributions that a person may make to the Australian community that may mean that more weight should be given to the time spent by a person in making those contributions. In BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [24], Farrell, Perry and Derrington JJ described the provisions as referring to 'the degree of the non-citizen's modal and substantive connection with the Australian community'. 12 However, in the present case no such issue arose because the matters relied upon by the applicant were addressed by the Tribunal (namely employment, including volunteer work in helping the community run outdoor venues). Therefore, this was not a case where an inference might be drawn that only matters of employment and volunteer community work were considered by the Tribunal to be relevant. The fact that the Tribunal limited its consideration to those matters is a consequence of the fact that they were the only matters relied upon by the applicant. 13 For those reasons, it has not been shown that the Tribunal acted upon a misunderstanding of what the Direction required. Therefore, it is not necessary to consider the question of materiality. 14 It follows that the application for review must be dismissed. As the application was unsuccessful, in the absence of any other matter being raised that might bear upon costs, it is appropriate to make a costs order in favour of the Minister. Further, the confined nature of the issues makes it an appropriate case for an assessment of costs by a registrar on a lump sum basis if there is no agreement as to the quantum of costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.