HSKJ v Minister for Immigration and Border Protection

Direction 65 12 At the outset, it is important to note that the issue for consideration in this matter is the use of the term 'secondary' in the exercise of weighing considerations in the context of a written direction given by the Minister, being Direction 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65). The issue was considered recently by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594. The same Tribunal Deputy President who determined the review the subject of Suleiman determined the review application in this case. In Suleiman it was held that there was jurisdictional error by the Deputy President. This application first came before me shortly after the delivery of Suleiman. As it happens, the applicant sought an adjournment on that date and in the circumstances, I granted an adjournment. The Minister's counsel was therefore in a position to properly address Suleiman at the adjourned hearing.

The Tribunal's decision 13 The Tribunal's reasons proceeded by first addressing the legislative structure and reference to Direction 65 as follows: (a) on the evidence before it as to the applicant's convictions, it is common ground that the applicant does not pass the character test and was liable for mandatory cancellation of his visa (s 501(6) and s 501(3A) of the Migration Act); (b) it was then for the Tribunal to assess whether, standing in the Minister's shoes, it should revoke the cancellation of the applicant's visa; (c) Section 501CA(4) of the Migration Act relevantly provides that the Minister (and the Tribunal) may revoke the mandatory cancelation of an applicant's visa if there is another reason why the original decision should be revoked; (d) in considering whether there is 'another reason' the Tribunal must consider Direction 65; (e) the Tribunal then recorded paragraph 6.2 of Direction 65 (General Guidance), and paragraph 6.3 (Principles); (f) paragraph 7(1) (headed 'How to exercise the discretion') requires that informed by the principles in paragraph 6.2, the Tribunal must take into account the considerations in Part C; (g) paragraph 8 (headed 'Taking the relevant considerations into account') then provides: (1) Decision-makers must take into account the primary and other considerations relevant to the individual case …. (2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. (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 the visa. (4) Primary considerations should generally be given greater weight than the other considerations. [the Tribunal substituted 'more' for 'greater'] (5) One or more primary considerations may outweigh other primary considerations. (h) paragraph 13 in Part C sets out the three primary considerations that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant's visa: (i) protection of the Australian community from criminal or other serious conduct; (ii) the best interests of minor children in Australia; and (iii) expectations of the Australian community; (i) by paragraph 13.1, in considering the protection of the Australian community as referred to in Part C the Tribunal is to have regard to the nature and seriousness of the person's conduct to date and the risk to the Australian community should the person commit further offences or engage in other serious conduct. 14 The Tribunal then addressed the three primary considerations. 15 As to protection of the Australian community, the Tribunal considered the applicant's claims in detail and concluded: (a) taking into account the nature of his offences, the sentences imposed, the comments of the sentencing judges and the specific guidance and principles of Direction 65, the nature and seriousness of the applicant's conduct is a significant consideration that weighs heavily against revocation of the decision to cancel the visa; (b) the cumulative effect of his offending over a lengthy period of time and the seriousness of his offending weighs heavily against revocation of the decision and evidences a degree of recklessness towards the well-being of the Australian community; (c) previously the applicant had expressed remorse for his actions but during the hearing he was quick to blame others, including the WA Police, and the Tribunal has serious concerns about his credibility in this regard; (d) given the applicant comes from a war-torn country it is quite conceivable that the applicant suffered from and continues to suffer from post-traumatic stress disorder and developed a drug addiction in order to manage mental anguish; (e) the applicant had undertaken various rehabilitation courses in prison and claimed that he had learnt from his mistakes and promised his mother that he would get his life together and stay away from drugs; (f) there was a letter before the Tribunal offering the applicant employment upon his release; (g) the applicant continued to offend post those courses and failed to demonstrate rehabilitation in the community whilst on bail; (h) although his mother has offered to provide a loving and supporting environment to her son, there is no evidence that he will continue to receive counselling or intervention for his mental health issues if released into the community and this is of concern in light of the link between his mental health and illicit drug use; (i) after receiving a formal warning that future offending would expose him to removal from Australia the applicant received some further 20 convictions; (j) the risk of recidivism is high; and (k) the present risk to the Australian community if the applicant engages in further criminal conduct is high and the protection of the Australian community weighs heavily in favour of refusing to revoke the cancellation of the visa. 16 There was no issue raised as to the best interests of a minor child in this case. 17 As to expectations of the Australian community, the Tribunal concluded, amongst other things, that: (a) the Australian community would have considerable sympathy for a young Iraqi male who has endured what the applicant has endured but there are limits to just how far that generosity and sympathy will extend; (b) the expectations of the Australian community are that a non-citizen with an extensive criminal record should expect to lose his visa and forfeit the privilege of remaining in Australia; (c) the applicant has almost 30 convictions and the community would expect the applicant to be deported accordingly; and (d) the community's expectations in this regard weigh heavily against the revocation of the decision to cancel the applicant's visa. 18 The Tribunal then turned to paragraph 14 of Direction 65 that provides that when deciding whether to revoke a mandatory cancellation of a visa certain other considerations may be taken into account. The Tribunal identified that in this case, other considerations that may be relevant are: (a) Australia's international non-refoulement obligations as they relate to the applicant; (b) the strength, nature and duration of the applicant's ties with Australia; and (c) the extent of impediments for the applicant if he returned to Iraq. 19 The Tribunal noted that the applicant may apply for a protection visa. The applicant informed me that he has since in fact applied for a protection visa but there has been no outcome as yet. 20 The Tribunal then properly noted that since BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 450 it is clear that the Tribunal is required to assess to the extent it can on the evidence, any type of harm that might arise to the applicant should he be deported to Iraq, and regardless of whether the risk of harm is framed as a non-refoulement issue. 21 The Tribunal said in this case that: (a) the Tribunal can only assess the often limited evidence before it in determining any risk of harm to an applicant; (b) it does not have before it the type of information available when a protection visa is determined; (c) the applicant claimed that while in Iraq he worked with American military forces as a builder and has subsequently been labelled a traitor, and that if he returns he will be targeted and 'signing his own death warrant'; (d) there is no evidence that he was kidnapped because of his work with the American military; (e) the Tribunal has serious concerns about the applicant's credibility but can only take him at his word; (f) the applicant's mother also indicated he would be harmed if he returned to Iraq because of his work and that his mother was a credible witness; and (g) a report from the Department of Foreign Affairs and Trade indicated that individuals who have worked with the United States Government have faced recriminations, that the risk of social discrimination against individuals associated with the international community is high and the risk of social violence is moderate. 22 The Tribunal concluded that it accepted that the applicant assisted US military forces in Iraq in some capacity and faces some risk of harm if returned to Iraq because of this alleged association, and considered that this finding weighed to some degree in favour of a revocation, but considered that the primary considerations outweighed this 'secondary consideration'. 23 As to the consideration of ties to Australia, the Tribunal noted that the applicant has lived here since 2010, has been engaged in consistent employment and when not in prison has been the primary carer for his mother, but was not convinced the nature of his ties outweigh the primary considerations. 24 As to the issue of the extent of impediments if removed to Iraq, the Tribunal repeated its findings as to harm and also noted that the applicant may have difficulty receiving mental health treatment, but found that for the same reasons as for the non-refoulement obligations such impediments do not outweigh the primary considerations.

The grounds of appeal 25 The applicant is self-represented. He speaks relatively fluent English although an Arabic interpreter was available for him in Court both before the Tribunal and before me and the interpreter provided some assistance. 26 The grounds in the notice of appeal are as follows (without alteration): (1) The Tribunal was in error by making a decision on my case which is not in a substantive sense fair; it is a denial of natural justice. (2) The Tribunal failed to assess whether legislation properly construed the obligation to accord natural justice. (3) The Tribunal did not assess/consider the real risk of significant harm to my person upon return to IRAQ. (4) They relied on irrelevant factors and materials which have nothing to do with my persecution. (5) They ignored relevant materials. Identified the wrong Issue and asked themselves the wrong questions. (6) They made an incorrect interpretation and applied applicable law in a way that affects the exercise of power. 27 These are identical grounds (save for the country reference) to those in Suleimen, and suffer the same difficulty in that they are unparticularised. 28 The applicant made general submissions as to the difficulties faced by him and his mother due to his ongoing detention and sought to explain the reasons for the commission of his offences, none of which identified any error or basis of review on the part of the Tribunal. However, relevantly, he did refer to the risk of harm should he return to Iraq. The consideration given to that matter by the Tribunal in this case in the context of Suleiman was squarely in issue and addressed by counsel for the Minister. This issue falls within the broad scope of ground 6 and the hearing proceeded on that basis. 29 As to grounds 1 to 3, no denial of natural justice was disclosed. The applicant had been moved from prison and was in a detention centre by the time of the Tribunal hearing. He attended before the Tribunal and gave evidence, as did his mother. He presented various materials, as referred to by the Tribunal at [17]. As to grounds 4 and 5, the applicant did not point to any particular matter to which the Tribunal had failed to pay regard. During oral submissions he claimed that the Tribunal had failed to take into account letters from his mother and a counsellor and a letter regarding work. All of these letters were before the Tribunal, as referred to in its reasons (at [16], [17], [62]-[68]). The Tribunal clearly considered the evidence of the applicant's mother (at [102]-[104]). As appears from the discussion below, the Tribunal considered all the matters relevant to the application as raised by Direction 65. I do not consider grounds 1 to 5 are of any merit.

The Tribunal's assessment of harm 30 Immediately after its assessment of the risk of harm, the Tribunal found as follows (at [96]-[98]): On the limited evidence before it, this finding [of some risk of harm] weighs to some degree in favour of revoking the decision to cancel HSKJ's visa. The question the Tribunal needs to ask, however, is whether this finding in relation to what is an 'other' or 'secondary' consideration outweighs the Tribunal's findings in relation to the primary considerations detailed above. The Tribunal finds that it does not do so. The Tribunal has considerable sympathy for HSKJ and, on the limited evidence, finds that he might have safety concerns in Iraq. The evidence in support of this finding is, however, scant. Overall, the Tribunal needs to weigh these safety concerns with the very strong concerns outlined above in relation to the seriousness of HSKJ's crimes, the risk of further offending and what this would mean for the Australian community - findings that were based on very clear and strong evidence. The Tribunal recognises that any concerns it has in relation to HSKJ's safety are somewhat addressed by the fact that HSKJ can apply (and has now indicated that he will apply) for a Protection visa. Further, noting that the primary considerations in Direction No. 65 (based here on unequivocal evidence) are normally given greater weight than the other considerations (here, based on less than ideal evidence), the Tribunal finds that the primary considerations here clearly outweigh this secondary consideration. This should not be seen, however, as a comment by the Tribunal as to the prospects of any future protection visa application. 31 In its conclusion, the Tribunal included the following paragraphs (at [121]-[123]): There are considerations that weigh in favour of revocation of the decision to cancel HSKJ's visa. These include concerns in relation to Australia's non-refoulement obligations. The Tribunal finds that HSKJ may face harm if returned to Iraq because, on his limited evidence, he assisted the US Military in Iraq. The Tribunal also finds that HSKJ has ties to the Australian community and that his mental health may suffer if he is returned to Iraq. These findings weigh in favour of revoking the decision to cancel HSKJ's visa. The Tribunal finds, however, that these countervailing considerations do not, on balance, outweigh the other primary considerations referred to above - considerations which are generally afforded greater weight. On the evidence, there is no reason for the Tribunal to reject that approach here.

Suleiman 32 In Suleiman, after considering the Tribunal's assessment of harm Colvin J stated (at [22]): As to its finding that Mr Suleiman risked facing harm if returned to his country of nationality because of his mental condition, the Tribunal posed the question 'whether this finding in relation to what is an 'other' or secondary consideration outweighs the Tribunal's findings in relation to the primary considerations': at [105]. It concluded by noting that the primary considerations in Direction 65 'are normally given greater weight than the other considerations and in light of the evidence before it, the Tribunal finds that the primary considerations here clearly outweigh this secondary consideration': at [106]. 33 Direction 65 refers to 'primary' and 'other considerations'. It does not describe any considerations as 'secondary'. Colvin J found that the use of the word secondary by the Tribunal indicates that the 'other considerations' are always of lesser importance (at [23]). His Honour continued (at [23]-[24]): However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply. This is a different question to that posed by the Tribunal which was whether a finding as to a consideration which had been classified as a secondary consideration outweighed the primary considerations which were normally to be given greater weight.

Consideration in this case 34 As is apparent from paragraphs [96]-[98] of the Tribunal's reasons (above), the Tribunal asked itself the same question as it asked in Suleiman ('whether this finding in relation to what is an 'other' or secondary consideration outweighs the Tribunal's findings in relation to the primary considerations') and used the same language as in Suleiman of the primary considerations outweighing the secondary considerations. 35 When asked how this Court would properly distinguish the approach of the Deputy President in this case from his approach in Suleiman, and depart from or distinguish the decision of Colvin J, counsel for the Minister submitted, in effect, that: (a) the reasons of the Tribunal are to be given a beneficial construction, consistent with the High Court decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 and that rather than focus on the word 'secondary' with an eye keenly attuned to the perception of error the focus should be on the task in fact undertaken by the Tribunal; (b) the word 'secondary' can sometimes just be convenient shorthand for 'other' in the context of Tribunal hearings; (c) the real question is whether the reasons indicate that the Tribunal considered such 'other' considerations must always be afforded less weight; and (d) there is nothing to suggest the Tribunal failed to comply with Direction 65. 36 Whilst I accept that there is an argument that the word 'secondary' may sometimes be used in contradistinction to 'primary', it is important to bear in mind that Direction 65 expressly uses the term 'other' considerations and in the context of the exercise of discretion where the issues of the hierarchy of considerations and fetters on discretion are well known and longstanding: see, for example, the discussion as to former Direction 17 in Awa v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 63; (2002) 189 ALR 328. Against that backdrop, I do not consider that Colvin J was clearly wrong in his assessment that the Tribunal's use of the word 'secondary' conveys that a consideration described as secondary is less important than one described as primary. 37 In Suleiman, the Minister similarly suggested that the Tribunal had not found that the considerations it described as secondary considerations will always be outweighed by the primary considerations. As to that submission, Colvin J said (at [26]): It is true that the Tribunal did not in terms state that secondary considerations could not be treated as having equal or greater importance in any particular case. However, equally it did not say that despite the description 'secondary considerations', they may be afforded equal or greater weight than primary considerations in an appropriate case. In my view, the use of the term 'secondary' conveys an interpretation of Direction 65 that establishes a hierarchy of considerations to be applied in all instances. It is a term that the Tribunal used in the heading before considering the other considerations: at [89]. It is also a term that it used when weighing the primary considerations and the other consideration of risk of harm if Mr Suleiman was returned to his country of nationality. 38 As to the application of Direction 65 in this case, I accept that the Tribunal considered the different considerations and conducted a balancing exercise. In so doing, however, it started from a stated position that the relevant 'other' considerations were secondary. Whilst it is true, as the Minister submits, that the Tribunal found 'scant' evidence as to harm as against 'unequivocal' evidence as to the primary considerations, there was still a finding, even on scant evidence, that the applicant faced some risk of harm. Having made that finding, it was a consideration that was to be weighed not from the starting point of being of secondary importance but from a position that allowed for the potential for such consideration to be afforded equal or greater weight than a primary consideration. The same applies to the other considerations considered secondary by the Tribunal. 39 For completion, I note two points. First, in contrast to Suleiman, the Tribunal in this case did not use 'secondary' in its heading before considering 'other considerations' (at [83]). This is not a real distinction. In the substantive reasons, the Tribunal used the expression twice and in almost identical sentences as in Suleiman. 40 Second, the Tribunal in its conclusion (at [121]-[123]) does not use the word 'secondary', but the conclusion is in effect a summary of the earlier reasoning. This point was made by the Minister and was rejected in Suleiman (at [27]). 41 In my view, and following and applying the reasoning in Suleiman, the Tribunal approached the review in this matter on the basis that Direction 65 required it to consider the 'other' considerations (including the non-refoulement obligations) from the starting point that they were secondary considerations and such approach was not correct. Therefore, there was jurisdictional error. 42 The Tribunal (at [87]-[89]) also addressed the decision in BCR16 in a similar manner as it did in Suleiman (at [33]-[34]). I respectfully adopt Colvin J's conclusion that there is no hierarchy of considerations expressed within the Tribunal's satisfaction required by s 501CA(4) such that any requirement that considerations be given less weight by Direction 65 would invalidly confine the Tribunal: Suleiman at [40]-[44]. 43 I should add that it is to be expected that there may be a consistent structure to reasons delivered by a particular Tribunal member in different reviews conducted by them. The necessity for the efficient delivery of reasons makes such a course somewhat inevitable. The Deputy President in this case delivered detailed reasons and referred to matters specifically relevant to the applicant. However, the similarity and application of language and reasoning as between this case and Suleiman means that in the absence of meaningful points of distinction, it is appropriate that the Tribunal's decision in this case also be set aside. 44 Further, I do not suggest that a Tribunal's mere description of a consideration as 'secondary' in a determination of such a review will of itself necessarily evidence jurisdictional error. For example, there may well be circumstances where it is obvious from the reasons that the Tribunal was alive to an 'other' consideration (albeit described as secondary) being afforded equal or greater weight than a primary consideration.

Determination 45 It follows that I would uphold ground 6 of the appeal on the basis of jurisdictional error, but dismiss grounds 1 to 5. The decision of the Tribunal should be set aside and the matter should be remitted to the Tribunal to be dealt with according to law. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.