Say v Administrative Appeals Tribunal

GROUND 3 7 When a person's visa is cancelled under s 501(3A) of the Act, the person must be invited to make representations to the Minster about the revocation of the decision. 8 Section 501CA(4) of the Act provides: The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 9 When exercising that power, the Minister's delegate was required to comply with directions issued by the Minister under s 499(1) of the Act: s 499(2A). The applicable direction was "Direction No. 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA" (Direction 79). It required that the delegate have regard to the extent of impediments Mr Say would face should he be returned to Cambodia. 10 On that topic, a legal representative for Mr Say made representations to the delegate in the following terms: 14.5 Extent of impediments if removed Mr Say has lived in Australia since 1985. Mr Say's family fled Cambodia as refugees and he has had no contact with anyone in Cambodia since his departure. Should Mr Say return to Cambodia, he has no family or social connections to support him in his continuing rehabilitation. Mr Say articulates the following about the impact his return to Cambodia would have on him and his family: 23. Having left Cambodia when I was only 5 years old, I do not know anyone or anything about the place that would support me enough to be able to make my way there. I speak very little of the Cambodian language and do not know how I would find somewhere to live, or find a job there. I would therefore have no capacity to send my family money to support my children's upbringing. I am also worried that my life would deteriorate as I don't feel there will be enough support in Cambodia to assist me to stay clean and stop taking drugs permanently. In Cambodia, it would be difficult for me to continue working towards better mental health and move my life forward in a positive way. 24. If I was sent to Cambodia and couldn't see my wife and children again, I would be terrified for my children because I don't know how sending me to Cambodia would affect them as they grow up. My kids would be forced to grow up without their father and will find it hard in society knowing that their Dad had been taken away from them. We submit that Mr Say will face serious impediments if he is returned to Cambodia as he will be unable to access employment due to a significant language barrier and will have no social or familial connections to aid any possible integration. As a result, Mr Say will face poverty and severe hardship and struggle to access appropriate mental health treatment. Additionally he will be isolated from his central supports- namely his wife and four children, and be returned to a place where he has experienced significant trauma and in which he has limited prospects and social connections. His mental health will be negatively impacted by returning to Cambodia. In our submission, Mr Say and his family will face high impediments due to his removal to Cambodia, and these should be given significant weight when considering the discretion to revoke the mandatory cancellation of his visa. 11 The third ground of review asserts that the Tribunal erred in failing to consider: … as the most important consideration weighing in favour of revocation, the fact that he would be forced to go back to a country he did not know and try to live in that country with no knowledge of the written language of Khmer, no ability to fill in forms, no knowledge of anyone to assist him and the almost certain fate of death because of neglect or starvation. 12 In Minister for Home Affairs v Omar (2019) 272 FCR 589, the Full Court (Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ) observed that representations made by a non-citizen about a visa cancellation under s 501 of the Act are central to the statutory regime: at [34]. The Minister must "engage in an active intellectual process with significant and clearly expressed relevant representations" made in support of a revocation request: at [37]. 13 It was submitted that the Tribunal had done no more than to conclude that Mr Say would face impediments in Cambodia as a result of his inability to speak Khmer, and had not given genuine consideration to the substance of Mr Say's representations. 14 The contention that the Tribunal failed to consider the particular impediments faced by Mr Say as asserted in his representations cannot be accepted. The Tribunal dealt expressly with the topic in the following terms: Extent of impediments if removed (paragraph 14.5) 92. The Tribunal must consider the extent of any impediments that a person may face if removed from Australia to their home country in establishing themselves and maintaining basic living standards, in the context of what is generally available to other citizens of that country. A decision-maker should take into account the person's age and health, any substantial language or cultural barriers, and any social, medical or economic support available to them in the country of reference. 93. Mr Say submitted that his physical health is satisfactory, although he had some difficulties with his shoulder which he said had been dislocated. He told the Tribunal he had been prescribed certain medication over the years for depression and anxiety, which he had been 'off and on for the last ten years in prison,' but not whether he was continuing to take that medication. The Respondent submitted, rightly in the Tribunal's view, that Mr Say's long-term drug addiction may present as a barrier to future employment and maintaining basic living standards. 94. The Applicant said that he spoke Khmer to his mother and to his wife, whose English is not yet fluent, but that owing to the fact that he had left Cambodia aged five, he did not write and nor could he read the language. Ms WX in her statement expresses the view that this would be an impediment if he returned to Cambodia, and the Tribunal accepts this. 95. The Respondent noted that there is no indication that Mr Say would have any less right to economic or medical support that is available to Cambodian citizens, but that it is probable that the support he would receive would be of a lesser standard than what is available in Australia. While observing that submission, the Tribunal notes that the Direction does not require decision-makers to use that comparison; the correct measure is what is available to a repatriated person in the context of what is generally available to other citizens of that country. 96. The Respondent also noted that Mr Say does not appear to have any close family members in Cambodia who would be able to help him reintegrate into society in that country, and that he would experience emotional pain as a result of separation from his wife and children, and wider family. 97. The Tribunal notes that the Applicant's parents, siblings and other extended family, as well as his wife and four children, all reside in Australia. There was no evidence of any relatives in Cambodia with whom Mr Say has contact. While the culture of Cambodia would not be completely unfamiliar to the Applicant because of his own family background, the Tribunal considers that his local language limitations would be an impediment, as would the fact that he left Cambodia at a very young age. 98. The Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa. 15 Later in its reasons, the Tribunal said that this consideration was outweighed by other considerations weighing against revocation of the cancellation decision. They included the seriousness of Mr Say's criminal offending and the expectations of the Australian community (as to which see grounds 1, 2 and 4 below). 16 The Tribunal in fact addressed the matters that had been raised by Mr Say in his representations in relation to the impediments he would suffer. On its terms, ground 3 fails for that reason alone. 17 In oral argument in support of this ground it was submitted that the Tribunal erred by failing to afford the impediments sufficient weight and that it was not open to the Tribunal to find that the impediments were outweighed by factors favouring non-revocation of the decision to cancel Mr Say's visa. Counsel submitted that the impediments to be faced by Mr Say upon his return to Cambodia were so severe that it would be legally unreasonable for the Tribunal to do anything other than to set aside the non-revocation decision and to restore the visa to him. 18 In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76], the High Court (Hayne, Kiefel and Bell JJ) said that unreasonableness is "a conclusion which may be applied to a decision which lacks an evident and intelligible justification". As French CJ explained at [28]. Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider 'they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.' In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense. (footnote omitted) 19 The point at which the Court exercising judicial review is able to interfere in an administrative decision is the same point delineating the standard of reasonableness: ABAR15 v Minister for Immigration and Border Protection (No 2) (2016) 242 FCR 11 at [52]. 20 As Allsop CJ states in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (at [11]): … The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power. 21 His Honour continued (at [12]): Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised. 22 In the present case, the submissions advanced by Mr Say proceeded from the factual premise that the consequences of returning him to Cambodia would be his starvation and certain death. That is not a finding made by the Tribunal. The representations made to the delegate included no assertion that Mr Say would face starvation and certain death should he be returned to Cambodia and nor did Mr Say make submissions to the Tribunal to that effect. It has not been shown that the Tribunal was in error in failing to make such a finding. 23 The Tribunal's reasons do indicate an acceptance of Mr Say's representations that he would struggle to achieve a basic standard of living should he be returned to Cambodia. It was that impediment that was weighed in the balance by the Tribunal. 24 To demonstrate illegality, it is not enough to show that the countervailing considerations could have been weighed differently by a different decision-maker. In my view, Mr Say's submissions amounted to an invitation to this Court to interfere with the merits of the Tribunal's decision by weighing the countervailing considerations for itself so as to arrive at a different outcome. That is not the task of the Court on an application for judicial review. Accordingly, this ground must be rejected.

GROUND 1 25 Direction 79 required the Tribunal to have regard to the protection and expectations of the Australian community as a primary consideration. The contention advanced on the first ground of review is that the Tribunal erred in finding that Mr Say's conduct engaged that primary consideration. Four particulars are given: a. His conduct, though it involved committing many crimes, was explicable by his being a heroin addict. b. All offences were summary offences. c. His conduct could be summarised as being the conduct of a pest, not a major criminal. d. It was unreasonable to conclude that the Australian community needed to be protected from him. 26 The Tribunal considered Mr Say's criminal history at some length. It did not accept some of Mr Say's descriptions of his offending. It held that Mr Say had attempted to minimise the seriousness of an assault against his sister. It held that whilst there was no pattern of offending against women, the assault was nonetheless a serious offence that had led to a criminal conviction. As to the assault on an emergency worker, the Tribunal said: 56. Paragraph 13.1.1(2)(c) of the Direction sets out the principle that crimes committed against government representatives or officials due to the position they hold or in the performance of their duties are serious. Mr Say's conviction in November 2018 for Assault emergency worker on duty falls squarely in that category. The informant's statement (SGD, p 276) in relation to the incident that led to this conviction stated: At approximately 1810, the Victim escorted the accused - Pheap SAY out of his cell to provide him with his scheduled night time medication. The victim was assisted by witness - PCO [name redacted of female officer]. The victim and [female officer] walked the accused down the hallway of the custody area towards the custody counter where the accused's medication was. As they were walking, the accused said 'hello gorgeous' to PCO [female officer]. PCO [name redacted] asked the accused not to say that to her as it was inappropriate. The victim advised that it was not acceptable to talk to staff in that nature. The accused was standing in close proximity to the victim. The victim put his hand up to create distance between himself and the accused. As he did this, the accused came closer to the victim in a confrontational manner. The accused then grabbed the victim's wrist and shirt. The accused started to become aggressive towards the victim. The accused started to struggle with the victim. The accused scratched the victim's arm, causing it to bleed. The accused then ripped the victim's shirt pocket completely off. The victim and PCO [redacted] restrained the accused on the hallway floor, however the accused continued to fight with staff. Acting Sergeant [redacted], (witness), Constable [redacted] (witness) and First Constable [redacted] (informant) assisted in subduing the accused, as he called staff 'c----' and 'rats'. The accused was then placed in the holding cell, where he continued to bang loudly on the floor, scream and yell abuse towards PCO's, showing no remorse for his actions. The victim required first aid and his short [sic] was unusable and was disposed of. 57. While this summary shows that the assault was not at a higher end of violence, it was nonetheless totally unjustified. Mr Say's oral evidence to the Tribunal that he was affected by drugs at the time may be some explanation for his aggressive conduct, but it is no excuse. 27 The Tribunal went on to find that Mr Say had offended frequently. The Tribunal identified that Mr Say had appeared in Court in 10 of the 14 years between 1994 and 2018. The Tribunal said (at [58]): … That is a lamentable record. Generally, the Applicant did not seek in his evidence to deny his offending, although he queried some details, and told the Tribunal that for some of the offending he was 'off his face' (i.e. intoxicated by illicit drugs) to such an extent that he did not recall the details. 28 The Tribunal went on to find that Mr Say had continued to offend notwithstanding warnings that had previously been given to him about the potential for his offending to affect his immigration status. 29 The Tribunal gave express consideration to Mr Say's assertion that his offending had been driven by drug addiction. It summarised his evidence on that topic as follows (at [63]): Mr Say's consistent evidence to the Tribunal was that his offending has been driven by his drug addiction. He told the Tribunal that he had engaged in counselling and a number of opioid-replacement courses, but each time had relapsed. When asked directly by the Tribunal why there should be confidence that he would not re-offend, if allowed to remain in Australia, Mr Say's response was that he 'has four children now.' When the Tribunal pointed out that he has committed a stream of offences since his eldest child was born in 2011, Mr Say said 'I should have another chance' and that he 'believed he could do well by his wife and kids about what is right and wrong to do.' 30 The Tribunal identified that there was a risk of Mr Say reoffending, which it assessed as "relatively high" (at [64]) and, later in its reasons, as "relatively likely" (at [78]). 31 The Tribunal returned to the subject of the risk of Mr Say reoffending when weighing the factors for and against the revocation of the cancellation decision. It concluded (at [101]): A significant factor to which the Tribunal has had regard in this matter is the number of times that the Applicant has been warned about the immigration consequences of his continuing to offend. These warnings and two previous visa cancellations seem to have had no effect in abating his regular appearances before the Courts. It may be that much of his offending has been fuelled by his drug addiction, including attempting to fund it. But that has not been the basis of all the offending, Mr Say has also been violent and blithe in his disregard for the law. The Tribunal was left with the strong impression that Mr Say had good intentions of trying to end his drug habit, but not much more than that, especially as he ruefully admitted the several other attempts and interventions to this same end, all of which had ultimately failed. 32 It was submitted that it was not open to the Tribunal to characterise Mr Say's history of criminal offending and his risk of reoffending in the way that it did. That submission cannot be accepted. The Tribunal was not satisfied that the applicant had overcome his drug addiction which had been advanced as an explanation for much of his offending as recently as 2018. It considered his prospects of recovering from that addiction as grim, given that he had continued to offend even after the birth of his children and after repeated warnings about the consequences of the offending on his immigration status. All of those findings were open to the Tribunal to make, as was the characterisation given to Mr Say's overall criminal history. No jurisdictional error of the kind asserted in the first ground of review has been demonstrated.

GROUND 2 33 Direction 79 required the Tribunal to have regard to the expectations of the Australian Community. The relevant expectation is expressed as follows: 11.3 Expectations of the Australian Community (1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government's views in this respect. 34 The meaning of an equivalent direction was considered by the Full Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454. The Tribunal applied the reasoning in that case as follows: 76. In FYBR v Minister for Home Affairs [2019] FCAFC 185 (which was considering identical wording in an earlier version of the Direction), the majority (Charlesworth and Stewart JJ) held that this part of the Direction expresses a 'norm.' It is not for a decision-maker to make his own personal assessment of what the 'expectations' of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed - they are what the executive government has declared are its views, not apprehensions, presumptions or values that may be gleaned by some other subjective evaluative process. 77. Stewart J stated, at [100]: To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations: • non-citizens will obey Australian laws when in Australia; • it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere. • in a particular case, the refusal of the visa may be appropriate simply because of the nature of the character concerns or offences is such that they should not be granted a visa. Understood in this way, community expectations are simply, and informally, expressed as follows: 'If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.' (Emphasis added.) 78. His Honour later said (at [102]) that the character assessment, even through the prism of community expectations, may not be decisively against an Applicant, which is why the decision-maker must assess what is 'appropriate' in the particular circumstances. Mr Say has a long criminal history. He has amassed more than 140 convictions. The risk of him re-offending is real, and objectively, given his history of convictions, re-offending is relatively likely. 79. The Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa. (original emphasis) 35 The second ground of review asserts that the Tribunal erred in finding that Mr Say's conduct was such that the Australian community would expect that he not hold a visa. The particulars are that: a. With the exception of two relatively minor matters, none of his conduct involved violence. b. Repeated minor offences by a drug addict could not be reasonably regarded as conduct that the Australian community would consider he should not hold a visa, particularly if they were aware that he had been in Australia since he was very young, that all of his family had become citizens and that the refusal of a visa would expose him to the risk of death in a foreign country he did not know, or life-long detention in Australia 36 For the most part, submissions in support of this ground of review repeated what had been said before the Tribunal about the seriousness of Mr Say's criminal offending and repeated what was said in support of Ground 1. The effect of the submissions was to invite this Court to make a different assessment of the seriousness offending than that made by the Tribunal. As I have already observed, that approach amounts to an impermissible attack on the merits of the decision subject to judicial review. 37 There is no jurisdictional error affecting the Tribunal's assessment of the seriousness of Mr Say's past offending, whether viewed as a separate consideration or as a consideration informing the Tribunal's application of cl 11.3 of Direction 79. It cannot assist Mr Say to show that a different decision-maker might have evaluated the facts differently. 38 It was then submitted that the Tribunal failed to apply cl 11.3 of Direction 79 in accordance with the principles stated by two members of the Full Court in FYBR in that it had considered itself bound to affirm the delegate's decision merely because Mr Say had committed criminal offences. That contention was not elaborated upon in oral submissions and there are no written submissions relating to it. 39 The three members of the Full Court in FYBR reasoned differently as to the proper construction of cl 1.3 of Direction 65 and as to the range of considerations that might be taken into account in its practical application. Counsel for Mr Say has not suggested that I should depart from the course of reasoning I adopted as a member of the Full Court in that case. I repeat what I said there: The content of the expectation 68 It is necessary to give content to the deemed expectation of the Australian community in a way that is capable of being afforded weight as a primary consideration in a particular case. In the particular case, the Australian community will either expect the visa to be refused, or it will not. In light of what is said above, the present enquiry does not concern what the Australian community expects in fact (assuming such expectations could be objectively ascertained), but rather concerns what the government has deemed the community's expectations to be. The content of the deemed expectation is to be discerned by construing cl 11.3 itself. 69 The clause expresses two expectations, the first concerning norms of conduct to be expected of non-citizens, as expressed in the opening sentence: The Australian community expects non-citizens to obey Australian laws while in Australia. 70 This statement is a reflection of the rule of law as it applies to citizens and non-citizens alike. It is an expectation that will not have been met in respect of a visa applicant who cannot pass the character test in s 501(6) of the Act and so must, of its nature, weigh against the refusal of a visa in all cases to which the Direction applies. 71 The second expectation is more difficult to interpret. It is expressed in the second and third sentences of the clause as follows: Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. 72 This part of the clause is concerned with the consequences that should befall a non-citizen who has fallen foul of the first expectation. It should be understood as expressing an expectation about the outcome of the exercise of the power conferred by s 501(1) of the Act in respect of the particular person whose circumstances are under consideration. 73 Before proceeding further it must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker's own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction. The clause implicitly recognises that the decision-maker's assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be. 74 I have accepted the Minister's submission that cl 11.3 is intended to give effect to the principle that the Minister may make a statement of the government's views about the expectations of the Australian community, which statement may be acted on by the person conferred with the power in a particular case, as recognised in Uelese. In my view, the task of the decision-maker is to identify what is the 'government's view' about community expectations in the particular case, to 'have due regard' to that view and to 'generally' afford that view more weight than other non-primary considerations in accordance with cl 8(4). The phrase 'may be appropriate' does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl 11.3) with the decision-maker's own view as to the preferable outcome in the ultimate exercise of the discretion. To construe cl 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to 'other considerations' in the exercise of the discretion, as cl 8(4) of the Direction generally requires. The primary judge was correct to say that importing into cl 11.3 all countervailing factors bearing on the ultimate decision would render cl 8(4) of the Direction unworkable. 40 Special leave to appeal from the orders in FYBR was refused: FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56. 41 The reasons of the Tribunal should be understood as expressing a finding that Mr Say had failed to meet the expectations of the Australian community that he obey Australian laws while in Australia. The reasons should also be understood to include a finding that the Australian community would expect that Mr Say, by reason of his offending, should not be permitted to hold a visa. There is no error affecting either finding. Whilst the Tribunal did not identify the difference in reasoning in the plurality judgments in FYBR, Counsel for Mr Say did not suggest that difference to be material to the outcome of the Tribunal's review. 42 In the present statutory context, a Tribunal may commit jurisdictional error if it considers itself bound to act in accordance with the expectations of the Australian community in the ultimate outcome. However, in the present case, the Tribunal did not express itself in terms suggesting that community expectations were decisive. Rather, the Tribunal identified the expectations of the Australian community in a manner that has not been shown to be unlawful, then weighed that expectation in the balance among countervailing considerations, as it was entitled (indeed bound) to do.

GROUND 4 43 This ground seeks to impugn the Tribunal's assessment of the weight to be given to countervailing considerations before it. For the reasons given above, it has not been shown that the Tribunal transgressed the bounds of legal reasonableness in ascribing more or less weight to any particular circumstance. 44 It follows that the application for judicial review should be dismissed. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Charlesworth.