Singh v Minister for Home Affairs

1. The decision of the Second Respondent dated 30 January 2019 be set aside.
2. The matter be remitted to the Second Respondent for determination according to law.
3. The First Respondent pay the Applicant's costs of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MIDDLETON J: 1 The application before me - which seeks to invoke this Court's original jurisdiction pursuant to s 476A of the Migration Act 1958 (Cth) (the 'Act') - concerns a decision of the Second Respondent (the 'Tribunal') which affirmed a decision of a delegate of the First Respondent (the 'Minister') to cancel the Applicant's Subclass 885 Skilled - Independent Visa under s 501(2) of the Act on character grounds. The Minister had determined that the Applicant had not passed the 'character test' because of two criminal convictions recorded in 2014: (1) use of a carriage service to groom a person under 16 years of age for sexual activity; and (2) wilfully committing an indecent act with a child under the age of 16. 2 Following an application for merits review, the Tribunal affirmed the Minister's decision to exercise the discretion under s 501(2) to cancel the Applicant's visa. 3 The crux of the application before this Court is whether the Tribunal erred in applying particular aspects of Ministerial Direction 65 (the 'Direction'), which at the time was the relevant direction the Tribunal was required to apply pursuant to s 499 of the Act. I note that this Direction has since been replaced and is no longer in force. 4 The Applicant's amended originating application for review of a migration decision dated 23 May 2019 identifies two grounds of application: 1. The Administrative Appeals Tribunal (the Tribunal) erred by failing to take into account the mandatory consideration of the Applicant's then-unborn child. Particulars Paragraph 10(1) of Ministerial Direction No 65, issued pursuant to s 499 of the Migration Act 1958 (Cth), made it mandatory for the Tribunal to have regard to 'other' considerations. The Applicant's then-unborn child was raised by the Applicant in his case, and was an 'other' consideration. 2. The Tribunal erred by concluding that it was precluded from considering the Applicant's employment links. Particulars At [160]-[161] the Tribunal incorrectly concluded that consideration of Applicant's employment links 'has no application' and 'cannot' weigh in the Applicant's favour 'at all'. 5 The factual background to this case is appropriately summarised at [2]-[16] of the Tribunal's reasons: 2. The Applicant was born on 9 August 1988. He is 30 years of age. He arrived in Australia on 30 December 2006, having obtained a Subclass 573 (Higher Education Sector) visa. 3. Between 12 February 2007 and 17 October 2008 he completed a Diploma of Horticulture at Holmesglen TAFE. 4. In 2008, after undertaking a practical training course, he became a licenced security guard; what is correctly known as the holder of a "Private Agents' licence". 5. In 2010 he was issued with a Subclass 485 (Temporary Graduate) visa. 6. On 26 September 2011 the Applicant applied for [a Subclass 885 Skilled - Independent Visa ("the Visa")]. At the time of his application for the Visa he had been assessed as having the skills for the occupation of "Nurseryperson" by Trades Recognition Australia. The Visa was granted on 27 November 2013. 7. From 2013 the Applicant has been engaged in full-time work as a security guard. Since December 2015 he has worked for Protection Pacific Security and … his supervisor, gave evidence that he is a dedicated and valuable employee. 8. Following his convictions, details of which are outlined later in these reasons, on 24 December 2014 the Victoria Police Licensing & Regulation Division cancelled the Applicant's Private Agents' licence because of his convictions. 9. The Applicant appealed to VCAT against the decision of Victoria Police to cancel his Private Agents' licence. On 23 July 2015 VCAT set aside the decision to cancel the Applicant's Private Agents' licence. It reprimanded him and reinstated his Private Agents' licence from 24 July 2015. 10. On 28 October 2015 the Applicant applied for Australian citizenship. He disclosed his convictions on the application for Australian citizenship. 11. On 14 October 2017 the Applicant married [his now wife]. 12. On 13 March 2018 the Applicant received a Notice of Intention to Consider Cancellation in relation to the Visa ("the NOICC"). 13. On 18 April 2018 Applicant responded to the NOICC. 14. As noted earlier, on 31 October 2018, a delegate of the Respondent cancelled the Applicant's permanent Visa. 15. On 5 November 2018, the Respondent refused the Applicant's application for Australian citizenship. 16. The Applicant's wife is pregnant and due to give birth to their first child in February 2019. 6 In light of the view that I take in respect of the second ground of the application (which is explained below), I do not need to deal with the first ground of the application. That ground, which concerns the then unborn child, raises interesting questions of construction and application of the Direction and the Act, but because of the strong view I have come to in relation to the second ground, and because it is in the interests of justice and efficiency to make a decision as soon as the Court is able, I propose only to deal with the second ground. 7 It is to be noted that the unborn child has now been born, and the Tribunal on remittal will not need to consider the issue raised in the first ground. Hence, no guidance is required from this Court on that issue for the purposes of the remittal. 8 The Direction, together with s 499 of the Act made it mandatory for the Tribunal to consider 'other' matters. The Direction relevantly provided as follows: 7. How to exercise the discretion (1) Informed by the principles in paragraph 6.3 above, a decision-maker: a) must take into account the considerations in Part A … in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa … … 8. Taking the relevant considerations into account (1) Decision-makers must take into account the primary and other considerations relevant to the individual case. ... (2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. (3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa. … PART A … 10. Other consideration - visa holders (1) In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to): … c) Impact on Australian business interests; … 10.3 Impact on Australian business interests (1) Impact on Australian business interests if the non-citizen's visa is cancelled, noting that any employment link would generally only be given weight where visa cancellation would significantly compromise the delivery of a major project or delivery of an important service in Australia. 9 Counsel for the Applicant contends that the Tribunal fell into jurisdictional error by concluding at [160]-[161] of its reasons that consideration of Applicant's employment links 'has no application' and 'cannot' weigh in the Applicant's favour 'at all'. Those paragraphs, which followed a recitation of the Applicant's contentions on this point before the Tribunal, were as follows: 160. On the other hand, Ms Briffa acting on behalf of the [Minister], contended with considerable force and effect that it is clear from the language used in the direction that it applies solely to an occasion where the visa cancellation would significantly compromise the delivery of a major project, or delivery of an important service in Australia. She contended that there was no evidence that enables the Tribunal to reach this conclusion. Further, she contended there was no evidence from the owner of the business, merely the Site Security Supervisor. 161. The Tribunal accepts the contentions of Ms Briffa concerning this consideration and finds that it has no application to the circumstances of the Applicant. It cannot weigh in his favour at all. 10 I can immediately say that the correct interpretation of the Direction is not to focus only on the delivery of a major project or delivery of an important service in Australia. The focus has to be on the impact on Australian business interests if the non-citizen's visa is cancelled. In my view, it is clear that the Tribunal fell into error by misconstruing paragraph 10.3 of the Direction and this is apparent from [160] of the Tribunal's reasons. 11 In effect, the Tribunal accepted a submission put on behalf of the Minister that the Direction applied solely to an occasion where cancellation of the visa would significantly compromise the 'delivery of a major project or delivery of an important service in Australia'. With that interpretation in mind, the Tribunal then looked at the evidence and found that there was no evidence that enabled the Tribunal to reach that conclusion. 12 It seems to me that on any reading of the Tribunal's reasons that is the way in which it misdirected itself. I am, of course, mindful not to be overly prescriptive in reading an administrative decision in the manner cautioned against by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). 13 The only remaining question is whether or not the Court should intervene and set aside the Tribunal's decision having regard to the materiality of the error that was made. 14 Counsel for the Minister submits that such an error could not be material as there was no evidence to show the effect that the Applicant's visa cancellation would have on an Australian business in the manner contemplated by the Direction for the consideration to carry any real weight. Counsel for the Applicant contends that it was not for the Court to place itself in the shoes of the Tribunal and second guess the weight that would have been given to a consideration it had not taken into account at all. 15 In my view, one always has to be careful in acceding to a submission that, an error having been identified, the error is not material. There are many factors that may influence a decision-maker to reach a particular conclusion which need to be weighed in the balance. Further, this is not a case where there is no evidence before the Tribunal and it does not in my view come within the ambit of the comments made by Mortimer J in Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112 at [119]. Here we have more than just assertion; we have evidence in the form of two letters from the Applicant's employers. 16 First, in a letter dated 10 April 2018, the Site Security Supervisor at Protection Pacific Security (which employed the Applicant from December 2015) relevantly recorded that: … We are in an industry where good people are hard to find thus explaining the reason of the high turn around of staff members … guards employed normally do not last long enough to master every aspect. Where many other guards have failed in the past, [the Applicant] has succeeded while consistently motivating others. He is a great asset to our team and would be difficult, even impossible at some level, to replace if he had to move on. 17 And second, in a letter also dated 10 April 2018, the National Business Manager at Australia Wide Security Services (which employed the Applicant from February 2016) relevantly stated that: [The Applicant] has proven himself to be a very trustworthy, honest and hardworking employee who is always willig [sic] to give our customers excellent service. He is a valued member of our security team and has recently been promoted to Team Leader of our small but busy security company. … It will be very difficult to cover [the Applicant's] role if he has to take any extended leave from the country. 18 Noting this evidence, it may be that the Tribunal, if it had asked itself the correct question, focusing not solely on the effects of a major project or an important service in Australia, could have, weighing all the matters up, come to a different conclusion. 19 In those circumstances, I will grant the relief sought by the Applicant as follows: (1) the decision of the Second Respondent dated 30 January 2019 be set aside; (2) the matter be remitted to the Second Respondent for determination according to law; and (3) the First Respondent pay the Applicant's costs of the proceeding. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.