Moananu v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2023-09-27|Before: Meagher J

The date for compliance of order 2 and 4 of the orders dated 21 March 2023 be extended to 13 September 2023.
The date for compliance of order 5 of the orders dated 21 March 2023 be extended to 19 September 2023.
The application for an extension of time be granted.
The amended originating application dated 12 September 2023 is dismissed.
The applicant must pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

introduction 1 The applicant is a 46-year-old citizen of New Zealand who migrated to Australia with his de-facto partner in 2005, holding a Class TY Subclass 444 Special Category (Temporary) visa. On 12 August 2021, the visa was subject to mandatory cancellation by a delegate of the Minister for Immigration, Citizenship and Migrant Services pursuant to s 501(3A) of the Migration Act 1958 (Cth). On 18 May 2022 a delegate of the Minister decided not to revoke the mandatory visa cancellation (Decision). 2 The applicant sought review of the Decision by the Administrative Appeals Tribunal which, on 9 August 2022, affirmed the Decision (Tribunal's Decision). Written reasons were published on 2 September 2022: Moananu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2869. 3 On 28 September 2022, the applicant filed an application for an extension of time to seek review of the Tribunal's Decision. At that time, the applicant was self-represented. 4 The applicant obtained pro-bono legal counsel and an amended originating application was filed on 13 September 2023 which seeks review of the Tribunal's Decision on two grounds: 1. The making of the Decision was an improper exercise of power as: a. the Learned Member had a discretion to determine whether the mandatory cancellation of the Applicant's visa ought to be revoked pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth); b. when exercising this discretion, the Learned Member acted only in accordance with a rule or policy set out in Direction no 90 "Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA" made by the Respondent pursuant to s 499 of the Migration Act 1958 (Cth), and thereby acted without regard to the merits of the case; c. if the merits of the case had been taken into account the Learned Member would have exercised his discretion to revoke the mandatory cancellation of the Applicant's visa. 2. The making of the Decision was an improper exercise of power conferred by section 501CA(4)(b)(ii) as the Learned Member failed to take relevant considerations into account when exercising his discretion namely the effect of the cancellation of the visa on the Applicant's de facto wife and eight (8) children who live in Australia. 5 For the reasons that follow, the extension of time is granted, and the application is dismissed.

key legislative provisions 6 Pursuant to s 501(3A) of the Act, the Minister must cancel a visa if the Minister is satisfied that the visa holder does not pass the character test, and the visa holder is serving a sentence of imprisonment on a full-time basis. 7 According to s 501(6), a person does not pass the character test if, inter alia, they have a substantial criminal record defined in subsection (7) to include a sentence of a term of imprisonment of 12 months or more. 8 Section 501CA(4) provides that the Minister may revoke a mandatory visa cancellation if representations are made by the person whose visa was cancelled and the Minister is satisfied that either the person passes the character test, or there is another reason why the mandatory visa cancellation should be revoked. 9 To aid in determinations under ss 501 and 501CA of the Act, Direction No 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90 or the Direction) commenced on 15 April 2021 pursuant to s 499(1) of the Act. 10 The Direction contains four "primary considerations" and four "other considerations" which are to be taken into account when determining whether or not to revoke a mandatory visa cancellation. 11 The four primary considerations are found in paragraph 8, and include: (1) Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1); (2) Whether the conduct engaged in constituted family violence (Primary Consideration 2); (3) The best interests of minor children in Australia (Primary Consideration 3); and (4) Expectations of the Australian community (Primary Consideration 4). 12 The four other considerations are contained in paragraph 9, and include: (1) International non-refoulement obligations (Other Consideration 1); (2) Extent of impediments if removed (Other Consideration 2); (3) Impact on victims (Other Consideration 3); and (4) Links to the Australian community (Other Consideration 4), including: (a) strength, nature and duration of ties to Australia; and (b) impact on Australian business interests. 13 The Court has jurisdiction to review the Tribunal's decision pursuant to s 476A(1)(b) of the Act. Section 477A(1) provides that an application to this Court must be made within 35 days of the decision. According to s 477A(2), the Court has the discretion to extend the 35 day period if it is satisfied that it is necessary in the interests of the administration of justice to do so.

Extension of time 14 In considering whether to grant an extension of time, the Court looks at the extent of the delay, any explanation provided for the delay, any prejudice to the respondent as a result of granting an extension of time, and the merits of the proposed grounds of review: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176 at [18]-[23]. 15 In relation to considering the merits of the proposed grounds of review, it has been observed that while a strong case weighs heavily in favour of granting an extension of time, a weak but arguable case does not weigh against granting an extension: SZUTY v Minister for Immigration and Border Protection (No 2) [2016] FCA 289 at [53]-[55] (Katzmann J) citing Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83 at 98 (French J). Furthermore, in considering the merits of the proposed grounds, the Court is not to determine whether the application would succeed, merely whether it is arguable: MZABP v Minister for Immigration and Border Protection (2015) 242 FCR 585; [2015] FCA 1391 at [63] (Mortimer J, as her Honour then was). Lastly, in circumstances where the application is plainly futile, or where the judgment on review is plainly right, it is not in the interests of justice to grant an extension of time. 16 At the time of filing his application, the applicant was self-represented. The explanation for the delay provided in his affidavit filed alongside the application for an extension of time stated: I am applying through the Federal Court myself as I only have 35 days to apply. Legal Aid have informed me it may take longer to get Representation. Also I still have not received a written copy of the no Decision from the AAT, and am running out of time. (Errors in original) 17 The Minister conceded that the delay is not excessive, the explanation offered is satisfactory and no prejudice would be occasioned if an extension of time was granted however opposed the application on the basis that the proposed grounds of review have no reasonable prospects of success. 18 I consider that the grounds of review detailed below, at least with respect to ground one, are arguable. I therefore find that it is in the interests of justice to grant an extension of time to seek review of the Tribunal's decision.

Ground one 19 By ground one, the applicant contended that the Tribunal erred as, in exercising its power under s 501CA(4)(b)(ii) of the Act, the Tribunal only had regard to the considerations set out in Direction 90 and did not have regard to the merits of the applicant's case beyond what the Direction required of it. 20 The applicant submitted that the Tribunal ought to have considered factual matters outside the considerations contained in the Direction, including that the applicant was sentenced to twelve months imprisonment, which is "at the lowest possible level to constitute 'substantial criminal record'". The applicant submitted that had he been sentenced to one less day, his visa would not have been revoked, therefore the fact that his sentence was at a "low level" is an important consideration. Further, the applicant submitted, the Tribunal ought to have considered that, in the sentencing remarks, there is nothing to suggest that the Magistrate considered that imposing the sentence would lead to the cancellation of his visa. 21 The Direction is "clearly binding on delegates and Tribunal members as an overt fetter on discretion": Bochenski v Minister for Immigration and Border Protection (2017) 250 FCR 209; [2017] FCAFC 68 at [65] (Bromwich J). It acts to constrain the discretionary power conferred by ss 501 and 501CA: Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112; [2014] FCA 674 at [14] (Mortimer J, as her Honour then was). 22 As observed by the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417; [2022] HCA 17 at [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ) a decision-maker's consideration as to whether there is another reason to revoke a mandatory visa cancellation is guided by reference to the representations made by the former visa holder. Furthermore, as accepted in Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47; [2019] FCAFC 55 at [69] (Bromwich and Wheelahan JJ) "the Tribunal is only required to consider matters that are raised by argument, or which clearly emerge from the materials". The applicant is unable to point to any representation made by him, or any material that was before the Tribunal from which the considerations referred to above would arise. The Tribunal was clearly aware of the term of the applicant's sentence (at [4], [10]), the nature of the offence (at [74]-[76]) and the sentencing remarks of the Magistrate (at [77]). Even so, the Tribunal was not satisfied that there was another reason to revoke the mandatory visa cancellation, and therefore declined to exercise its discretion. 23 The applicant referred to Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 295 FCR 315; [2022] FCAFC 125 at [88] (O'Sullivan J), where his Honour set out the view held in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187; [2021] FCAFC 125 at [51] (Derrington J) that exercising the discretionary power pursuant to s 501CA(4) of the Act engaged a two-stage approach: 1. It is contrary to decisions of the Full Court of this Court where the point was specifically considered and decided: Ali at 641-648 [39]-[49]; Guclukol v Minister for Home Affairs (2020) 279 FCR 611 at 616 -617 [16]. 2. It is contrary to the natural reading of the section which not only identifies the two stage process but structurally isolates them by locating them in separate parts of the section. 3. Direction No 79 as well as its progenitor iteration (Direction No 65) are explicit in identifying the separate stages of satisfaction of a jurisdictional fact followed by the exercise of discretionary power, and that the latter is conditioned on the former. This Court should be cautious about adopting an approach which directly contradicts the clear and repeated expressions of legislative intent. 4. The recognition of the different elements of s 501CA is consistent with the High Court's construction of the similarly structured s 65 of the Act: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 ; Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 ; Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 . 5. The conflation of the discrete parts of s 501CA(4) fails to have regard to the differences in which a vitiating error may occur in the process of forming a state of satisfaction as opposed to the exercise of discretion. 24 However, as pointed out by the Minister, the following paragraph of Au at [89] considers Katzmann J's view in Tohi, namely that the two-stage process set out by Derrington J was "contrary to the weight of authority in this Court" and was rejected by North ACJ in Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166. In Gaspar it was stated at [38]: The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test. 25 The weight of the authorities lies in favour of the approach taken in Gaspar. It is evident from the Tribunal's Decision that it did not reach the state of satisfaction required in order to find that there was another reason to revoke the mandatory visa cancellation. At that point, there is no further residual discretion that applies allowing the Tribunal to revoke the mandatory visa cancellation. 26 Insofar as the applicant argued that the Tribunal failed to exercise a "broader" or a "freestanding" discretion that arises by nature of the power to revoke a mandatory visa cancellation, it is clear that the Tribunal was aware that the Direction is non-exhaustive. At [21], when setting out the other considerations it was required to take into account, the Tribunal importantly noted that it was not limited to the four specified in the Direction. The fact that the Tribunal did not take into account the fact that the applicant's sentence was at the "lower end" of sentences and that it appears the Magistrate was not aware of the effect of the sentence on the applicant's visa status is unsurprising when regard is had to the material before the Tribunal. No representations to that effect were made, nor is there any material from which it can be said those matters clearly arise. 27 Accordingly, ground one does not succeed.

Ground two 28 By ground two, the applicant contended that the Tribunal erred in failing to take into account a relevant consideration, being the detrimental effect the mandatory visa cancellation would have on his partner and children who reside in Australia. 29 The applicant submitted that while the Tribunal took into account the impact the Decision had on his partner, that was not done in the context that she is the victim of the crime for which he was sentenced. The applicant submitted that the mandatory visa cancellation effectively punishes his partner twice, first by being subjected to his criminal conduct, and secondly by the cancellation of his visa which deprives her of his support with respect to their children and the household. 30 As for the children, the applicant submitted that while the Tribunal acknowledged the impact of the mandatory visa cancellation on them, the Tribunal did not expressly state what that impact is, and therefore did not properly consider the best interests of the children. The applicant also submitted that the Tribunal considered the children's interests as a collective, rather than individually. Further, the applicant submitted that the Tribunal did not consider the effect of the separation from their father on the children nor their ability to maintain contact with him, and that the consideration at [153] does not address this point. 31 As is clear from the Tribunal's Decision, it expressly considered the impact that the mandatory visa cancellation would have on his partner at [154]-[155]. The Tribunal noted at [144] that, given his partner had expressed a desire that the applicant remain in Australia it would consider the impact on her in relation to the consideration of the Applicant's ties to the Australian community, as opposed to under its consideration of impact on victims. The Tribunal correctly relied on XXBN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74 at [53] in support of this decision, which makes it clear that the Tribunal ought not to take into account a matter repetitiously where it may be relevant to multiple of the primary and other considerations. As such, it was not necessary for the Tribunal to repeat findings it had already made under a separate heading. 32 Regarding the best interests of the children, the Tribunal undertook a detailed analysis from paragraph [121]-[138], and ultimately found that the primary consideration weighed very heavily in favour of revoking the mandatory visa cancellation. As can be seen from those paragraphs, the Tribunal set out evidence provided by the children, and made particular reference to the possible additional needs of one of the children. It is incorrect to say that the Tribunal only considered the children as a collective rather as individuals. 33 With respect to the findings at paragraph [153], it must be noted that this finding was made in considering the applicant's links to the community, rather than the best interests of the children. The Tribunal said: Further, the Applicant has expressed concern that his children, all of whom were born in Australia, would not be eligible for New Zealand citizenship on account of he and ER both obtaining New Zealand citizenship by descent. Beyond the concerns expressed by the Applicant and ER, there is no information before the Tribunal to indicate it would not be possible for the Applicant's children to reside with him in New Zealand should they choose to do so. 34 Here, the Tribunal was pointing out that, notwithstanding the applicant's concern about his children not being able to obtain New Zealand citizenship, there was nothing before the Tribunal which suggested that they would not otherwise be able to visit him in New Zealand, or reside there, if they so wished. This finding occurred after the Tribunal had already found that the best interests of the children weighed heavily in favour of revoking the mandatory visa cancellation. 35 Accordingly, I am not satisfied that the Tribunal erred. The applicant submitted that if the Tribunal was to reconsider the best interests of minor children, presumably on the basis of a failure to consider how the applicant and his children would maintain contact, it could materially impact on the decision such that the Tribunal might find that the consideration weighed so heavily in favour of revocation that it must revoke the mandatory visa cancellation. I am not satisfied that there is a realistic possibility that the decision which was "made could have been different" if any error is said to have arisen: MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [2] (Kiefel CJ, Gageler, Keane and Gleeson JJ). 36 Ground two does not succeed.

conclusion 37 Accordingly, both grounds of review fail. The applicant must pay the first respondent's costs. I thank pro bono counsel for their considerable assistance to the Court. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Meagher.

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