Jama v Minister for Immigration, Citizenship and Multicultural Affairs

Legislative provisions 6 Section 501(3A) of the Migration Act provides that the Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or …; and (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. 7 Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. It is not in dispute that Mr Jama did not pass the character test in s 501(1) because of the operation of subs (6)(a), on the basis of subs (7)(c). 8 Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the exercise of those functions or powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 20 December 2018, the then Minister made Direction 79, which came into force on 28 February 2019 and applied to the decision in respect of the applicant's visa refusal. (We interpolate that Direction 79 has since been revoked and replaced twice: Direction 90, made on 8 March 2021 with effect from 15 April 2021, and Direction 99, made on 23 January 2023 with effect from 3 March 2023). 9 Paragraph 6.3 of Direction 79 provides as follows: 6.3 Principles (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere. (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa. (5) 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. (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia. (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused. 10 Paragraph 7(1)(b) of Direction 79 stipulates that, informed by the principles in para 6.3 above, a decision-maker must take into account the considerations in Part C, where relevant, in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked. 11 Paragraph 8(1) of Direction 79 stipulates that decision-makers must take into account the primary and other considerations relevant to the individual case (which, in the case of a decision whether to revoke the mandatory cancellation of a visa, are in Part C). Paragraph 8(3) provides that both primary and other considerations may weigh in favour of or against whether or not to revoke a mandatory cancellation of a visa. Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations. 12 Part C of Direction 79 sets out those considerations which a decision-maker must take into account in deciding whether to revoke the mandatory cancellation of a visa under s 501CA(4) of the Migration Act. These considerations are divided into "primary considerations" and "other considerations". 13 Paragraph 13(2) of Direction 79 provides that the following considerations are "primary considerations": (a) Protection of the Australian community from criminal or other serious conduct; (b) The best interests of minor children in Australia; (c) Expectations of the Australian community. 14 Paragraph 14 of Direction 79 provides that the following "other" considerations include, but are not limited to: (a) International non-refoulement obligations; (b) Strength, nature and duration of ties; (c) Impact on Australian business interests; (d) Impact on victims; (e) Extent of impediments if removed. 15 We again interpolate that Direction 99 has elevated the consideration of the strength, nature and duration of ties to Australia to a primary consideration. This is in addition to the consideration of whether the conduct engaged in constituted family violence, which was added as a primary consideration by Direction 90. 16 Paragraph 14.2 provides: 14.2 Strength, nature and duration of ties (1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, 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, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

Appeal Grounds 17 As to Ground 1, Mr Jama contends that the Tribunal "double counted" the weight it attributed to the seriousness of his offending: first by weighing it against the "strength, nature and duration of ties" under para 14.2 of Direction 79, thereby discounting the weight given to the latter consideration and according it only slight weight; and secondly, in concluding ultimately that the factors in favour of revocation (including the "strength, nature and duration of ties") were outweighed by the seriousness of Mr Jama's offending. 18 The error is said to be manifest from the following passages in the Reasons. With respect to the purported first weighing exercise, the Tribunal said: [175] In summary, the Tribunal finds that the Applicant has close ties to the Australian community. He has lived in Australia since he was 17 years old, and his family members reside in Australia, including his numerous siblings, nieces and nephews. Whilst the Applicant did not start offending shortly after arriving in Australia and has contributed to the Australian community to some degree, the Tribunal considers that these matters are outweighed by the serious nature of his offending and the risk that he will reoffend. The Tribunal also finds that the Applicant's family will suffer emotional detriment if he is returned to New Zealand, but would be able to continue to manage financially and practically. Overall, considering the serious nature of the Applicant's offending and the risk that he will reoffend, this other consideration of the strength, nature and duration of the Applicant's ties to Australia cannot outweigh these matters and therefore, the Tribunal finds it only weighs slightly in favour of the revocation of the Cancellation Decision. (Emphasis added.) 19 With respect to the purported second weighing exercise, the Tribunal concluded: [199] After balancing the relevant primary and other considerations, the Tribunal concludes that the expectations of the Australian community would nevertheless weigh very strongly against the revocation of the Cancellation Decision. As set out in paragraph 13.3(1) of Direction No 79, the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has, in the Tribunal's view shown a consistent disregard for the law by continuing to use drugs and has been undeterred by the known consequences of doing so. The Tribunal is of the opinion that, even when balanced against the other considerations that weighed in favour of the Applicant (being the strength, nature and duration of the Applicant's ties to Australia, the impediments the Applicant would face if returned to New Zealand and the impact of the COVID-19 pandemic), the strong view of the Australian community would be that the Applicant should not hold a visa. [200] The Tribunal finds that the primary consideration of the protection of the Australian community and the expectations of the Australian community outweigh the considerations which weigh in favour of revocation of the cancellation, being the other considerations of the strength, nature and duration of the Applicant's ties to Australia, the extent of impediments if removed and the impact of the COVID-19 pandemic. The Tribunal reiterates, for completeness, that the primary consideration of the best interests of minor children was found to not weigh either for or against the revocation of the cancellation decision. (Emphasis added.) 20 The ultimate finding of the Tribunal as expressed at Reasons [200] was the concluding paragraph of the section of the Reasons headed "Conclusion", in which the Tribunal found: (a) The first primary consideration, the protection of the Australian community, weighs very strongly against revocation, at [192]; (b) The second primary consideration, the best interests of minor children, weighs neither for nor against revocation, at [193]; (c) The weight to be accorded to the third primary consideration, the expectations of the Australian community, was to be determined by balancing the first and second primary considerations with those that weighed in the applicant's favour, one of which, the strength, nature and duration of ties, was found to weigh slightly in favour of revocation, at [197]. 21 The Minister characterised the Tribunal's findings at Reasons [175] as a legitimate weighing of Mr Jama's positive contributions to Australia (and the fact that he did not start offending soon after arriving) against the negative aspects of his time in Australia (his serious offending and the risk that he would reoffend). The Minister contended that the Tribunal applied para 14.2(1) correctly and in a way which reflected the principles in para 6.3. 22 The "strength, nature and duration of ties" is the only consideration which makes express reference to the principles articulated in para 6.3 of Direction 79. Counsel for Mr Jama contended that the reference to the principles had no real work to do and that "it was not an invitation to consider these directives against the other principles". It was submitted that the principles were no more than explanations as to why certain other considerations have been provided. That is an unlikely construction of para 14.2. Rather, at a textual level, the reference to the principles appears to be a direction to give effect to para 14.2, at least by reference to principles 6.3(5) and 6.3(7), which appear to be explanatory of the content of para 14.2. 23 Principles 6.3(5) and 6.3(7) explain the dichotomy expressed in para 14.2(1)(a), namely that Australia has a low tolerance of any criminal conduct by people who have been participating in and contributing to the Australian community for only a short period of time. Consequently, less weight should be given to a non-citizen's ties to Australia where offending commenced shortly after arrival, whilst conversely, more weight should be given to time the non-citizen has spent contributing positively to the Australian community. 24 Principle 6.3(7) explains the content of para 14.2(1)(b) by directing attention to the length of time a non-citizen has been making a positive contribution and the consequences that would flow from the cancellation of a visa for other Australian members of the community, including minor children and immediate family. 25 Consideration of the text of Direction 79 as a whole also belies the construction for which Mr Jama contends. Paragraph 7 directs a decision-maker as to how to exercise the discretion; namely, "informed by the principles in paragraph 6.3 above". Within that framework, there can be no error by a Tribunal in considering the non-citizen's criminal or other serious conduct in assessing the Australian community's tolerance for such conduct in the context of considering how soon the offending began, the length of any positive contribution to the Australian community and the extent of family and community ties. So much was concluded by Bromwich J in Ali v Minister for Home Affairs [2018] FCA 1895 and on which the Minister relied to contend that this does not involve any form of "double counting". 26 In Ali, the Tribunal had weighed Mr Ali's conduct, described at [12] as "demonstra[ting] a continuing contempt for and disregard for the laws of Australia", against his significant ties to the community. Despite the Tribunal's finding that this consideration weighed in favour of revocation of the cancellation of his visa, Mr Ali complained, inter alia, at [18] that the Tribunal's reasoning entailed an erroneous consideration of his offending conduct in the context of considering para 14.2(1) because his criminal conduct had already been considered and consideration of domestic violence was not "mandated" by para 14.2(1). In dismissing this ground of review, Bromwich J observed, at [23]: The Tribunal was entitled to assess the strength, nature and duration of Mr Ali's ties to Australia holistically and in context, and not just in isolation. This includes having regard to whether, and, if so, how, the quality of those ties was affected by Mr Ali's record of domestic violence and his poor driving record. That is so even though that driving record was misdescribed at one in point in the Tribunal's reasons as "continuing", and correctly described elsewhere as being in the past. Paragraph 14.2(1) of Direction 65 did not preclude this approach to the assessment of the strength, nature and duration of Mr Ali's ties to Australia. To the contrary, by expressly mandating how offending closer to the time of arrival in Australia was to be weighed in assessing the strength, nature and duration of ties to Australia, the appropriateness of taking offending into account in the assessment of this "other consideration", which was already apparent as a matter of logic, is made express. It follows that no error is manifested by [132] of the Tribunal's reasons, let alone jurisdictional error. (Emphasis added.) 27 The Minister relied further on BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 where the Full Court said, at [39]: It is within the decisional freedom of the decision-maker under s 501CA(4) to regard a non-citizen's offending soon after arrival as a weighty consideration which diminishes the impact of any and all other factors. For instance, if a non-citizen commenced engaging in serious organised crime soon after arrival in Australia, a decision-maker might view that as negating the weight of any ties that person has to persons in Australia or social institutions. Similarly, a decision-maker would be entitled to regard it as minimising any weight which might be accorded to any positive contribution which the non-citizen had made to the community or the impact on the non-citizen's family were the non-citizen to be deported. 28 Mr Jama did not resist the proposition that the Tribunal's reasoning at Reasons [175] was, of itself, unobjectionable. That reasoning accords both with the approach of the Full Court in BOE21 and in Ali, where Bromwich J observed at [19]: It is impossible to accept that a consideration is irrelevant, in the sense of being forbidden, by reason of when and where it was considered, rather than whether it is considered, in the absence of the text of Direction 65 precluding such a course by express words or necessary implication. 29 The primary judge concluded, correctly with respect, by reference to the text of para 14.2, that Mr Jama's offending and risk of re-offending are matters properly able to be considered as part of the evaluation of the strength, nature and duration of his ties. 30 However, the complaints in BOE21 and Ali were not the same as that in the present case. The gravamen of Mr Jama's complaint is that the weighing exercise undertaken by the Tribunal at Reasons [175] was repeated, with the consequence that the weight given to the strength, nature and duration of his ties to Australia was reduced twice. 31 The Tribunal did not engage in an assessment, at Reasons [175], of the quality of Mr Jama's ties to Australia by taking into account his offending in a manner that affected that assessment. That is, the Tribunal did not approach the assessment of the strength, nature and duration of Mr Jama's ties to Australia in the manner described by Bromwich J in Ali at [23]. Rather, it applied a discount to the weight to be given to the evident strength, nature and duration of Mr Jama's ties by reason of the nature and seriousness of his offending. That discount was then applied again in the Tribunal's evaluation of the weight of the primary and other considerations at Reasons [192]-[200]. 32 With respect to the primary judge, it is difficult to accept that the Tribunal's reasoning at Reasons [197] can be read other than as recording that the Tribunal had already found that the strength, nature and duration of ties had been found to weigh only slightly because the Tribunal had already discounted that "other circumstance", at [175], on account of the seriousness of Mr Jama's offending. It is readily apparent from a reading of the Reasons as a whole that the Tribunal did indeed "double count" the seriousness of Mr Jama's offending. 33 The Tribunal was not entitled to double count its assessment of the seriousness of Mr Jama's offending both when attributing weight to that specific consideration and again when weighing all considerations, both primary and other, in the final assessment. That was a misconstruction of para 14.2 of Direction 79, which, as the Minister conceded would be so, was material. 34 For these reasons, Ground 1 must be upheld. 35 Given the conclusion we have reached in relation to Ground 1, it is unnecessary for us to consider whether, as contended by Ground 2, the Tribunal acted unreasonably, or irrationally and/or illogically, when concluding that the best interests of minor children in Australia weighed neither for not against revocation of the cancellation of Mr Jama's visa.

Disposition 36 For the reasons given, the appeal must be allowed and the matter is to be remitted to the Tribunal, differently constituted, for determination according to law. The Minister should pay Mr Jama's costs of the application before the primary judge, and of the appeal. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Markovic, Sarah C Derrington and Feutrill.