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

LOGAN J: 1 The applicant is a citizen of New Zealand. He is presently 22 years old. The better part of two decades ago, in May 2003, as a three year old, the applicant entered Australia lawfully as a member of family group pursuant to a class TY, subclass 444, special category (temporary) visa. He has remained in Australia since then but has never become an Australia citizen. 2 About 12 years after the applicant's arrival in Australia, at age 15, the applicant commenced what later events have shown to be a course of offending conduct. A particular pervasive theme in relation to that offending conduct has been over consumption of alcohol and related intoxication. It is not necessary to set out in detail that course of offending conduct. That detail is to be found in reasons given by the Administrative Appeals Tribunal (Tribunal) in proceedings the occasion for which I shall now highlight. 3 The climax of the course of offending conduct by the applicant came in the form of offences of robbery with actual violence, assault occasioning grievous bodily harm and stealing, in respect of which, on 20 February 2020, he was sentenced to successive terms of imprisonment with an effective head sentence of three years and six months. A sequel to that was that on 17 June 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) cancelled the applicant's visa acting under s 501(3A) of the Migration Act 1958 (Cth) (the Act). The basis for that cancellation was satisfaction on the part of the delegate that the applicant did not pass the character test. Upon that satisfaction, it became mandatory that the applicant's visa be cancelled. 4 The applicant was subsequently invited to, and did, apply for revocation of the cancellation decision. On 2 June 2021, it was decided that the cancellation of his visa should not be revoked. The applicant then sought the review of that refusal to revoke the decision by the Tribunal. On 26 August 2021, the Tribunal, for reasons given in writing that day, decided to affirm the refusal to revoke decision. 5 The applicant has now applied in this Court's original jurisdiction for the judicial review of the Tribunal's decision. The Tribunal, as is appropriate, has filed a submitting appearance. The Minister is the only active party respondent. 6 Of the grounds of review pleaded, only two are pressed. They are: Ground One The Second Respondent fell into jurisdictional error by erring in law by not applying the principle stated in 5.2(4) of Ministerial Direction 90. Ground Two The Second Respondent fell into jurisdictional error (including at paragraph 134) by erring in law by failing to correctly interpret and apply 9.4.1(2) and 5.2(4) of Ministerial Direction 90. 7 Before turning to these grounds, there is an overarching principle which, unsurprisingly, is applicable. That principle is to be found in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272, where the High Court emphatically endorsed observations earlier made by the Full Court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287, to the effect that the reasons of an administrator are not to be read narrowly with an eye for error. 8 The importance of that principle translating into restraint by the judiciary in relation to the scrutiny of an administrator's reasons cannot be overstated. The Tribunal is, though it follows a judicial model, an emanation of the executive. The principle so stated applies to the reasons given by the Tribunal. It is only natural, given that the Tribunal provides reasons in writing, that attention comes to focus upon them in relation to any challenge to a Tribunal's decision on jurisdictional error grounds. Exposure of the Tribunal's reasons has an aim of promoting better understanding and decision making but to approach reasons so furnished in an over-exacting way would make the business of public administration well-nigh impossible.

Ground 2 19 Ground 2 engages with what is a relevant consideration as derived from the ministerial direction and found in paragraph 9.4.1 of that direction. It is there stated: 9.4.1. The strength, nature and duration of ties to Australia (1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. (2) 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 noncitizen 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. 9.4.2 Impact on Australian business interests (3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501 CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia. 20 Under the heading Strength, Nature and Duration of Ties to Australia, the Tribunal stated, at [134]: The Applicant came to Australia at the age of three. He has lived in Australia for 19 of his 22 years. He commenced offending nearly 12 years after arriving in Australia, but whilst still a minor, and therefore he is entitled to limited weight under paragraph 9.4.1(2)(a) of the Direction. 21 In [134], the Tribunal misconstrued paragraph 9.4.1(2)(a)(i) of the ministerial direction. Within paragraph 9.4.1(2)(a)(i), two considerations are raised. One is whether the non-citizen arrived in Australia as a young child as part of considering how long a non-citizen has resided in Australia. The other is, directed to weight, is that specified in subparagraph 9.4.1(2)(a)(i), which is that less weight should be given where the non-citizen began offending "soon after" arriving in Australia. What the Tribunal, with respect, has done is to conflate these two and in so doing, misconstrue the Minister's direction. 22 The Tribunal has appreciated that the applicant commenced offending nearly 12 years after arriving in Australia. Nonetheless, because the applicant was still a minor when this occurred, the Tribunal has construed the Minister's direction as entitling the Tribunal to afford the applicant limited weight. That is just not so. 23 It was put on behalf of the Minister that the Tribunal was entitled to take into account that offending conduct had occurred whilst a minor. There can be no gainsaying the correctness of that, but that submission does not in any way ameliorate the error of construction found in [134] of the Tribunal's reasons. 24 Of course, as was also submitted on behalf of the Minister, what constitutes "soon after" does entail an element of factual evaluation. There is an element of imprecision inherent in the expression "soon after". But on no view of its meaning could a passage of 12 years constitute "soon after" arrival in relation to commencement of offending conduct. It would be unwise in relation to what, after all, are plain English words, to attempt to give any precision to "soon after". It just means what it says. It does admit of an evaluation but it does not admit of the evaluation reached by the Tribunal. 25 Moreover, it is not merely a matter of evaluation which has informed the Tribunal's affording less weight. It is a misconstruction of the Minister's direction which has informed that. The Tribunal has acted on the basis that it is permissible to give less weight just because the offending conduct commenced when the applicant was a minor. 26 It was, with respect, appropriately conceded on behalf of the Minister that, if there were a misconstruction which had resulted in an affording of less weight, then that error was material. The concession was appropriately made because, as is so very evident from the Tribunal's reasons read as a whole, this was a most difficult case in terms of merits review. There was a course of offending conduct of an increasingly serious nature, but there was also a lengthy period of residence in Australia and deep ties both with a grandfather and a mother, each of whom were and are Australian citizens. The grandfather suffers from serious illness; the mother, understandably, feels an obligation to care for her father yet, at the same time, feels deep ties of natural love and affection towards a son who is the applicant. 27 Against this background, the particular error made by the Tribunal may have had an impact upon the overall merits evaluation by the Tribunal in accordance with the Minister's direction. 28 It necessarily follows from the foregoing that the Tribunal's decision must be quashed and the matter remitted to the Tribunal for rehearing according to law. Costs must follow the event. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.

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