Ross v Minister for Immigration, Citizenship and Multicultural Affairs

1. A writ of certiorari issue quashing the decision of the second respondent made on 19 July 2023 which affirmed the decision of a delegate of the first respondent not to revoke, pursuant to s 501CA(4) of the Migration Act 1958 (Cth), cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa (Decision).
2. A writ of mandamus issue directing the second respondent to re-determine the applicant's application for the review of the Decision according to law.
3. The first respondent pay the applicant's costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 The applicant is a 45-year-old citizen of New Zealand. He first arrived in Australia in 2003 and was the holder of a Class TY Subclass 444 Special Category (Temporary) visa. 2 On 20 April 2022, the applicant was convicted of "Contravention of Domestic Violence Order" and sentenced to a term of imprisonment of 12 months. Subsequently, on 19 August 2022, the applicant's visa was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Cancellation Decision) for failing to pass the character test by reason of having a substantial criminal record. 3 The applicant made representations to the Minister seeking revocation of the Cancellation Decision pursuant to s 501CA(4) of the Act, and on 24 April 2023, a delegate of the Minister decided not to revoke the Cancellation Decision (Non-Revocation Decision). The applicant sought review of the Non-Revocation Decision by the Administrative Appeals Tribunal. On 19 July 2023, the Tribunal affirmed the Non-Revocation Decision (Tribunal's Decision or TD). 4 The applicant now seeks review of the Tribunal's Decision on the following grounds: 1. The Tribunal fell into jurisdictional error by: a) failing to take into account a mandatory relevant consideration; b) misunderstanding or misapplying a mandatory relevant consideration; or c) alternatively, failing to consider clearly articulated and significant representations made by the Applicant in support of "another reason" to revoke the earlier decision to cancel his visa, in making its Decision. Particulars (A) In determining the Applicant's application for review, the Tribunal was mandatorily required to have regard to Ministerial Direction 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (MD99). (B) By paragraph 9.4 of MD99, the Tribunal was required to "consider any impact on Australian business interests if the [Applicant was] not allowed to…remain in Australia…" (Business Interests Consideration). (C) The Business Interest Consideration is not limited to impacts on a "major project" or "important service": Singh v Minister for Home Affairs [2019] FCA 905; Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311; Tonga v Minister for Immigration, Citizenship and Migrant Affairs [2023] FCA 1179. (D) The Applicant was self-represented before the Tribunal. In support of his application to the Tribunal, the Applicant made representations to the effect that he had significant experience in the construction industry, including in scaffolding, that he intended on continuing to work as a scaffolder if his visa was returned, and that he had received a job offer from his former employer. (E) The Applicant's former employer gave evidence in support of the Applicant's case. In that evidence, he confirmed that inter alia, an offer of employment had been made to the Applicant, that his business was in "desperat[e]…need of qualified ticketed scaffolders" and that the Applicant was "qualified to do…advanced ticketed scaffold" which his business was "need[ed]" by his business": see the Tribunal's reasons, [65]-[71]. (F) The Minister submitted in his statement of facts, issues and contentions that "there is…nothing on the material to suggest, that a non-revocation decision would significantly compromise the delivery of a major project or important service in Australia. This other consideration is therefore irrelevant in this case" (emphasis added): CB 1005, at [66]. (G) In making its decision, and in assessing the Business Interests Consideration, the Tribunal found that "[t]he Respondent contends this consideration is not relevant. I agree" (emphasis added). The Tribunal allocated "allocated neutral weight" to it as a result: [178]. (H) The Tribunal's decision was affected by error as in Singh, Arachchi, and Tonga. (I) That error was material. 2. The Tribunal fell into jurisdictional error by: a) misunderstanding or misapplying a mandatory relevant consideration; b) made a finding of importance that was not supported by the evidence; or c) alternatively, making an illogical or irrational finding, in making its Decision. Particulars (A) The Applicant refers to and repeats paragraph (A) of the particulars to Ground 1. (B) By paragraph 8.1.2(2)(b) of MD99, and in considering the risk to the Australian community, the Tribunal was required to consider inter alia "the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account" (i) "information and evidence on the risk of the non-citizen re-offending" and (ii) "evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence" ("Risk of Recidivism Consideration") (emphasis added). (C) The Tribunal found that inter alia (1) "the Applicant's evidence has little or nothing to contribute to an assessment of his current recidivist risk", particularly as it was "postulated into the future": [72]; and (2) the "clinical evidence before the Tribunal" concerned matters "postulated into the future and cannot assist this Tribunal to assess the Applicant's current level of recidivist risk": [72]). The Tribunal also considered evidence of findings and observations from previous judicial sentencing orders, and evidence of prospective family support and employment. (D) At [72] (final bullet point) the Tribunal found that "what really matters is not what lay and expert witnesses might say about what the Applicant might do if returned to the community" as "[a]ll of those observations are postulated into the future". The Tribunal added that in the absence of evidence from a "qualified clinician with a longitudinal comprehension of the Applicant's psychological history who has put in place a demonstrated plan of remedial treatment and control for him" ("Hypothetical Psychologist"), the Tribunal could not "safely accept that things are different." (E) The Tribunal ultimately concluded that the risk was "more reliably described as an unresolved risk," and "consequently unknown," "due to the dearth of clinical opinion and the stark reality of two previous relapses that had very serious consequences": [73]-[74]. (F) Despite finding that the Applicant "represents an unresolved and otherwise unknown level of recidivist risk," the Tribunal nevertheless concluded that the only "safe conclusion" was that the Applicant's "recidivist risk is now no different to what it was at the time of his most recent removal from the Australian community": [74] (see also [75(c)]). (G) That analysis, in light of the Tribunal's findings concerning the historic nature and seriousness of harm and its prospective seriousness were it to be repeated, led the Tribunal to conclude that "Primary Consideration 1 confers a heavy level of weight against revocation…": [77]. (H) The Tribunal's findings reveal that it erred in the following ways: (1) it misunderstood the Risk of Recidivism Consideration as not being forward-looking or, alternatively that evidence which went to prospective risk not from the Hypothetical Psychologist was not relevant to its task; (2) its finding referred to at paragraph (F) above, that the Applicant's recidivist risk is now no different to what it was at the time of his most recent removal from the Australian community," was not supported by an evidentiary basis; and/or (3) its findings referred to above were illogical or irrational, in circumstances where (a) the Tribunal had concluded that the Applicant's risk of recidivism was "unknown," but (b) nevertheless concluded that his risk was no different to what it was at the time of his most recent removal from the Australian community following his conviction and sentence. (Emphasis in original) 5 For present purposes, the first ground will be referred to as the business interests consideration ground and the second ground as the recidivism risk ground. 6 Counsel for the applicant read the amended application filed on 6 November 2023, the affidavit of Ziaullah Zarifi filed on 6 November 2023, which annexed the transcript of the Tribunal hearing, the two outlines of submissions before the Court, the court book and the joint bundle of authorities. He formally tendered the Court Book and the affidavit of Ziaullah Zarifi. 7 For the reasons that follow, the application is allowed on the basis of the business interests consideration ground. Accordingly, and because it is in the interests of justice to make a decision as soon as the Court is in a position to do so, I do not consider it necessary to traverse the recidivism risk ground.