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

1. A writ in the nature of certiorari issued directed to the second respondent quashing its decision dated 7 December 2022 (Tribunal File No. 2022/7812).
2. A writ of mandamus issue directed to the second respondent requiring it to determine according to law the application for review made on 23 September 2022. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 Mr Shayman Pihama is a New Zealand citizen. His visa was cancelled in 2021 on the basis that he was serving a term of imprisonment in a custodial institution of 12 months or more for an offence against Australian law. A delegate of the Minister declined to exercise the power conferred by s 501CA(4) of the Migration Act 1958 (Cth) to revoke the decision to cancel his visa. In December 2022, a member of the Administrative Appeals Tribunal affirmed the delegate's decision. Mr Pihama sought review in this Court on the basis of alleged jurisdiction error by the Tribunal. Mr Pihama sought time to obtain legal representation. In May 2023 the grounds of his application were amended. 2 One of the amended grounds was expressed in the following terms (Relevant Ground): In the course of determining under s 501CA(4) of the [Migration Act] whether there was 'another reason' to revoke the cancellation of the Applicant's visa, and in purported compliance with Direction 90 issued under s 499(1) of the Act, the Tribunal erred jurisdictionally in its assessment of 'protection of the Australian community' … by: a. Denying the applicant procedural fairness by failing to afford him an opportunity to be heard on the Tribunal's finding that his driving offences are clearly serious crimes against other road users; and/or b. Denying the applicant procedural fairness by failing to afford him an opportunity to be heard on the finding that other road users are vulnerable member of the community. c. The Tribunal's error was material. (original emphasis) 3 By minute of consent orders, the parties proposed orders that the decision of the Tribunal be quashed and that a writ of mandamus issue requiring the Tribunal to determine the application according to law. The orders were proposed on the basis of the merits of the Relevant Ground. 4 I was persuaded that it was appropriate to make the orders sought and indicated that I would provide short reasons for doing so. These are my reasons. 5 Even where the proper contradictor to an application for judicial review consents to the grant of relief, the Court must be satisfied that there is error and there is a public interest that requires the Court to specify the error and its satisfaction that an error has occurred which justifies the proposed relief being granted within the public law jurisdiction of the Court: see my reasoning in VNPC v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 921 at [3]-[6]. 6 The reference in the Relevant Ground to Direction 90 is to 'Direction No. 90 - Visa refusal and cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA'. A failure by the Tribunal to comply with the Direction in undertaking a review of a decision by a delegate of the Minister not to exercise the power conferred by s 501CA(4) may constitute jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] (O'Callaghan and Colvin JJ, Derrington J agreeing); and Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; (2017) 250 FCR 209 at [65] (Bromwich J, Bromberg and Charlesworth JJ agreeing). 7 The Preamble to the Direction specifies certain 'principles' which are to 'provide the framework within which decision-makers should approach their task'. The principles include the following (para 5.2(3)): The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community. 8 After the Preamble, there is Part 2 of the Direction which is headed 'Exercising the discretion'. It begins with the following provision (para 6): Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision. 9 In section 8, the Direction provides that the following considerations must be taken into account 'where relevant': (1) protection of the Australian community from criminal or other serious conduct; (2) whether the conduct engaged in constituted family violence; (3) the best interests of minor children in Australia; and (4) expectations of the Australian community. 10 It further provides that in considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to various matters including the following (see para 8.1.1(1)(b)(ii)): crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties; 11 In its reasons at para 104, the Tribunal said: The Tribunal has regard to the fact that the Applicant driving offences are clearly serious crimes against other road users, who in the context of the Applicant's offending conduct are vulnerable members of the community. The Tribunal notes that the Applicant's evidence was that he was under the influence of drugs while he committed these offences, which increases the potential for catastrophic harm. The Applicant takes a different view, namely that his offending 'could be serious' but is 'unlikely' to cause injury, or at its highest 'may' cause harm to the community. The Tribunal finds this view unsettling and disturbing. (footnotes omitted) 12 The Minister concedes that the adverse conclusion to the effect that the applicant had committed serious crimes against other road users who were to be viewed as vulnerable members of the community for the purposes of para 8.1.1(1)(b)(ii) was an adverse conclusion 'which would not obviously be open on the known material', that the applicant was not given notice of that conclusion and that, therefore, he did not have an opportunity to address it and that the failure was a denial of procedural fairness. I am satisfied that these concessions were properly made and they demonstrate jurisdictional error (subject to materiality). This is especially so in circumstances where Mr Pihama appeared on his own behalf before the Tribunal. 13 The reasoning of the Tribunal at para 104 was relied upon by the Tribunal to support its ultimate findings as to two of the primary considerations that it was required by section 8 to consider: see the reasons of the tribunal at paras 104 and 164(b). In those circumstances, it was accepted by the Minister that there was a realistic possibility that the decision-making process could have resulted in a different outcome: Nathanson v Minister for Home Affairs [2022] HCA 26 at [33]. I am satisfied that there is an appropriate basis for that concession. 14 I express no view as to the merits of the construction of the phrase 'vulnerable members of the community para 8.1.1(1)(b)(ii) implicit in the Tribunal's reasoning at para 104. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.