Miglani v Minister for Immigration, Citizenship and Multicultural Affairs

. The [Tribunal's Decision] was irrational in that it found that [Mr Miglani's] failure to remember all details of the offending, which occurred over four years prior, demonstrated a lack of remorse and thus a heightened risk of re-offending;

. The [Tribunal's Decision] failed to have consideration of the strength, nature and durations of [Mr Miglani's] ties to Australia, as required by [paragraph] 8.3 of [Direction 99], in that: a. [t]he [Tribunal's Decision] failed to properly consider [Mr Miglani's] ties to his wife, who has a right to reside in Australia; and b. [t]he [Tribunal's Decision] failed to properly consider [Mr Miglani's] social ties in Australia.

. The [Tribunal's Decision] considered irrelevant considerations in finding that: a. [Mr Miglani's] wife's decision to file for divorce following [Mr Miglani] being placed in immigration detention was grounds to disregard [Mr Miglani's] family ties in Australia; and b. [Mr Miglani's] failure to be completely candid and forthcoming with his friends was grounds to disregard [Mr Miglani's] social ties to Australia.

. The [Tribunal's Decision] was irrational in that: a. the [Tribunal's Decision] relied upon the decision by [Mr Miglani's] wife following [Mr Miglani] being placed in immigration detention as grounds to dismiss [Mr Miglani's] family ties to Australia in the event that he were to be granted a visa to remain in Australia; and b. the [Tribunal's Decision] dismissed [Mr Miglani's] social ties in Australia on the grounds that [Mr Miglani] was found to have not been completely candid and forthcoming about the circumstances of his offending to his friends within Australia.

1. This matter proceeded to trial in an orthodox way. In advance of the hearing, the parties filed helpful written submissions addressing the grounds pressed by the Application. By his own written submissions, Mr Miglani abandoned ground 1.
2. Two days prior to the hearing, Mr Miglani foreshadowed an adjournment application, which he said was necessary to permit an application for special leave to appeal, which had been filed a week earlier (and that related to his sexual assault convictions, or at least one of them), to progress to hearing and determination in the High Court.
3. At the hearing on 31 July 2024, counsel appearing pro bono pressed the adjournment application. That application was heard and determined, and oral reasons for rejecting it were given at the time. The hearing otherwise progressed in the usual way. Mr Miglani observed the hearing and was assisted in that regard by a taxpayer-funded interpreter.
4. With that summary stated, it is convenient to address each of Mr Miglani's remaining grounds of challenge.

Grounds 2 and 3: failure to consider post-conviction behaviour

1. By his written outline of submissions, Mr Miglani contended (references omitted): The Tribunal failed to note or acknowledge that [Mr Miglani] had plead guilty to all charges pertaining to both incident one and incident two in its examination of the risk posed by [Mr Miglani], an important factor in the rehabilitative processes. Even if [Mr Miglani] did not demonstrate remorse, the Tribunal was still required to consider [Mr Miglani's] plea of guilty as part of the rehabilitative process, and how such pleas of guilt impacted [Mr Miglani's] risk of reoffending. The Tribunal failed to expressly mention that [Mr Miglani] has spent over three years and two months without re-offending in relation to any sexual assault offences. The Tribunal failed to expressly acknowledge this time spend [sic] without re-offending, as required pursuant to [paragraph] 8.1.2(2)(b)(ii) of [Direction 99].
2. Insofar as concerns the fact that Mr Miglani pled guilty to the charges that had been laid against him (both in respect of the incidents of sexual assault and also his having breached conditions associated with his sex offender status), the point can be swiftly addressed.
3. Direction 99 mandates consideration of any evidence that an applicant stands rehabilitated from his or her criminal past. Evidence of a guilty plea or pleas is not, in terms, made a mandatory consideration.
4. In any event, it cannot seriously be doubted that the Tribunal made its decision conscious that Mr Miglani has pled guilty to the charges laid against him. A finding to the contrary can only be made by process of inference. In the right circumstances, such an inference can be drawn from the failure of a decision maker expressly to refer to a matter in its reasons: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [68] (McHugh, Gummow and Hayne JJ). But an inference of that kind should not too readily be drawn and the applicant bears the onus: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, [46]-[47] (French, Sackville and Hely JJ), Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352, [44]-[46] (Griffiths, White and Bromwich JJ), Minister for Home Affairs v Buadromo (2018) 267 FCR 320, [49] (Besanko, Barker and Bromwich JJ).
5. Here, the Tribunal expressly acknowledged that Mr Miglani had pled guilty. That it did not do so expressly in the context of rehabilitation does not matter. There is no warrant to infer that it made its decision ignorant of that reality.
6. A similar observation may be made in respect of Mr Miglani's "time in the community". There can be no doubt whatsoever that the Tribunal made its decision conscious of the relevant chronology (including as to when the offences occurred and the passage of time that had transpired since). Again, there is no warrant for inferring that it made its decision ignorant of the reality that Mr Miglani now says went unconsidered.
7. But there is an additional problem. Direction 99 refers to time spent in the community since the most recent offence. In the present case, there wasn't any. Mr Miglani pled guilty to breaching register conditions, was taken into custody, served his time and, upon release, went straight into immigration detention.
8. Mr Miglani submits that the reference to his "most recent offence" in paragraph 8.1.2(2) of Direction 99 must be understood as a reference to offending of a particular kind, rather than offending per se. Specifically, he says that it should be understood as a reference to the second of the two instances of sexual offending to which he pled guilty to in 2021 (which transpired in May 2019).
9. I do not accept that submission. The circumstances of which paragraph 8.1.2(2) requires that account be taken concern the likelihood that an applicant might commit "further offences". Direction 99 does not discriminate between different species of offending. So to observe is not to doubt that a decision maker could validly have taken into consideration in this case the fact that several years had transpired since Mr Miglani had sexually assaulted anybody (a truth of which it was surely cognisant in any event); but nothing in Direction 99 required that it should do so.
10. Neither of grounds 2 and 3 is made good.

Ground 4: irrational reasoning regarding lack of remorse

1. Mr Miglani maintains that it was not open to the Tribunal to reason, from his inability or failure to recall in detail the specifics of his offending in 2019, that he lacked remorse or otherwise presented with a heightened risk of reoffending.
2. The Tribunal is not authorised by the Act to exercise its powers in ways that involve extreme illogicality or unreasonableness. For a decision to be affected by jurisdictional error in the form of unreasonable or irrational reasoning, it is insufficient that a decision maker is led to favour a conclusion about which reasonable minds might differ: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [131] (Crennan and Bell JJ), ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109, [47] (Griffiths, Perry and Bromwich JJ).
3. The test is stringent. It is not enough that a finding might be the subject of emphatic disagreement; it has to be so far outside the realms of what a reasonable decision maker might contemplate as appropriate as to exhibit extreme irrationality.
4. Insofar as concerns ground 4, Mr Miglani cannot clear that hurdle.
5. The Minister's written outline of submissions correctly identified as follows: Even read in isolation, there is nothing irrational about the Tribunal's conclusion…: (a) The Tribunal was referring to oral evidence of [Mr Miglani] reproduced at [the Tribunal's Decision] [38]-[46]. There, [Mr Miglani] responded to questions not about minor details, but about the critical parts of the offences - what he had done and what his victims had done in response. At [57] [of the Tribunal's Decision] the Tribunal stated its view that it was not plausible these fundamental events would not have been recalled by [Mr Miglani]. As the Tribunal noted (though it was not reproduced in [Mr Miglani's submissions]), these were significant life events. On [Mr Miglani's] evidence, this was his only offending and these were events that led to significant criminal consequences. (b) Further, at the end of [57] [of the Tribunal's Decision] (also not mentioned by [Mr Miglani]), the Tribunal referred to a detailed personal statement from [Mr Miglani] setting out details of his offending. [Mr Miglani's] non-responses to the Tribunal orally were in stark contrast to that statement. They certainly support a conclusion that [Mr Miglani] was not being truthful in his evidence.
6. Even assuming that it might wrongly have done so (which, to be clear, I do only for the sake of argument), it was open to the Tribunal to reason that Mr Miglani's remorse and insight could be measured by reference to his level of recall of the events that transpired. It was not unreasonable or irrational to a point bespeaking jurisdictional error for the Tribunal to have proceeded on that basis. Ground 4 is not made out.

Ground 5: failure to consider ties to australia

1. Ground 5 is put in two ways (bifurcated by subparagraphs (a) and (b)).
2. Ground 5(a) concerns Mr Miglani's ties to his wife, which he advanced as a relevant consideration guiding the Tribunal's assessment of the strength, nature and duration of his ties to Australia. That ground was not the subject of written or oral submissions and appears no longer to be pressed.
3. In any event, it is plain from the Tribunal's reasons (see above [18]) that the Tribunal in fact did take account of Mr Miglani's marriage and the extent to which it might bear upon its discretion to refuse the Visa Application.
4. Ground 5(b) concerns Mr Miglani's friends. Mr Miglani presented 11 written character references in support of his Visa Application. Although it could be clearer, Mr Miglani seems to suggest that the Tribunal failed to consider what at least some of them had said. During oral submissions, counsel for Mr Miglani submitted that none of the character references had been appropriately considered in the Tribunal's Decision: [The Tribunal] said that they discounted [the 11 written character references] on the basis that they didn't know about the offending. They didn't say, "We give it less weight," or, "We think that in some ways the ties were lessened as a result." Any rational assessment still requires that some consideration of those ties and weight to those ties needs to be given under [Direction 99].
5. Again, the failure alleged can only be established by inference. Here, there is no occasion to infer that the Tribunal was unaware that there were 11 statements advanced to prove what Mr Miglani maintained were his strong social ties to Australia. Those statements formed part of the "G documents" that were before the Tribunal, to which express mention was made (see above, [13]). Additionally, the Tribunal was aware not only that references had been submitted from people other than those from whom Mr Miglani called oral evidence but also of the content of what they had said (see above, [19]).
6. Again, then, there can be no occasion here to infer any want of consideration of the matters of which Mr Miglani says the Tribunal failed to take account.
7. Ground 5 is not made out.

Grounds 6 and 7: consideration of irrelevant matters

1. Ground 6 is put in two ways ("(a)" and "(b)"). Each charges the Tribunal with having wrongly considered irrelevant matters en route to the making of its decision. Ground 7 is related, in that it posits, presumably in the alternative, that the consideration of those matters was attended by irrationality in a degree sufficient to warrant the grant of prerogative relief. I shall deal with the former contention first.
2. Mr Miglani submits that the Tribunal ought not to have considered - indeed, that the proper exercise of its jurisdiction required that it refrain from considering - the evidence before it about his wife's intention, actual or perceived, to end their marriage. That, he says, was an irrelevant consideration and the account that the Tribunal took of it suffices to constitute its decision as a product of jurisdictional error.
3. That proposition is wrong and I reject it. The evidence about Mr Miglani's wife's intentions was capable of informing the strength of Mr Miglani's ties to Australia (or, more precisely, the impact of a decision to refuse him a visa upon members of his immediate family). Indeed, I consider it to have been plainly germane to that issue. Had it been that Mr Miglani's marriage was stronger than the Tribunal considered that it was (having regard to the evidence to which it referred), that would very plainly have been a factor that might inform its assessment of the strength of Mr Miglani's community ties and the impact of visa refusal upon members of his family. The opposite must also be so.
4. It was open to the Tribunal to consider that evidence if it wished to. Doing so did not involve any prohibited consideration of an irrelevant matter, nor bespeak any jurisdictional error of the kind alleged.
5. Similarly, Mr Miglani says that his "failure to be completely candid and forthcoming with his friends" about his offending was a circumstance of which the Tribunal could not properly take account in considering the Visa Application.
6. Again, that submission is unsustainable. The extent to which it might assist may be debated (in a merits-only sense); but it cannot be said that Mr Miglani's apparent failure to be candid with his friends - people whom he put forward to establish his close ties to Australia - was a matter falling beyond what the Tribunal was permitted to consider in the context of paragraph 8.1.3 of Direction 99.
7. Ground 6 is not made out. For equivalent reasons, nor is ground 7. Whatever might be said of the wisdom attaching to the Tribunal's consideration of the matters to which that ground refers, it cannot be said that that consideration bespoke any extreme want of rationality that might suffice to establish jurisdictional error. On the contrary, it was open to the Tribunal to take account of the matters of which it took account, and to reason from them (or partially from them) the conclusions at which Mr Miglani takes aim. There was no irrationality as alleged and, as with ground 6, ground 7 is not made out.

Disposition

1. None of the seven bases advanced by Mr Miglani by way of challenge to the Tribunal's Decision is made out. The Application must, and will, be dismissed. Mr Miglani should pay the Minister's costs. There shall be orders to those effects. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.

Associate: Dated: 13 November 2024