Tonga v Minister for Immigration, Citizenship and Multicultural Affairs

Legislative framework 9 Section 501(3A) of the Migration Act provides that the Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or …; and (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. 10 Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)). Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. 11 Section 501CA(3) requires the Minister to give written notice to visa holder of a decision to cancel that visa, and particulars of the relevant information, and invite representations "about revocation of the original decision". Subsection (4) provides that the Minister may revoke the original decision if such representations are made and if: (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. 12 Section 499(1) of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under the Migration Act if the directions are about the performance or exercise of those functions or powers. Pursuant to s 499(2A), a person or body must comply with a direction made under s 499(1). On 8 March 2021, the then Minister made Direction 90, which came into force on 15 April 2021 and applied to the decision in respect of the applicant's visa refusal. It has since been replaced by Direction 99 as from 3 March 2023. 13 Part 1 of Direction 90 is comprised of preliminary matters organised into five paragraphs, which deal with the Name of the Direction, Commencement, Revocation, Interpretation, and the Preamble. The Preamble sets out the Objectives of the Direction in para 5.1, and the Principles which provide the framework within which decision-makers are to approach their task, in para 5.2. Part 2 is comprised of nine sections (there is no apparent reason for the different nomenclature as between Parts 1 and 2 from paragraphs to sections, with s 9 reverting back to paragraph at s 9.4) and is concerned with exercising the discretion. For the purposes of consistency, "section" will be applied throughout this decision. 14 Section 6 stipulates that a decision-maker must take into account the considerations identified in ss 8 and 9, where relevant to the decision. 15 Section 8 of Direction 90 identifies four primary considerations: (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; (4) expectations of the Australian community. 16 Section 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Section 7(3) provides that one or more primary considerations may outweigh other primary considerations. 17 Section 9 provides that other considerations must also be taken into account, where relevant. These considerations include, but are not limited to: (a) international non-refoulement obligations; (b) extent of impediments if removed; (c) impact on victims; (d) links to the Australian community, including: (i) strength, nature and duration of ties to Australia; (ii) impact on Australian business interests. 18 More detailed guidance relating to each of the primary considerations is set out in ss 8.1-8.4, and in respect of the "other considerations", in ss 9.1- 9.4.

The Business Interests Ground 19 Mr Tonga contends that the Tribunal erred, analogously, with the errors found in Singh v Minister for Home Affairs [2019] FCA 905 and Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 in misconstruing s 9.4.2 of Direction 90 by focusing only on the delivery of an important service in Australia. 20 Section 9.4.2 of Direction 90 provides: (3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia. 21 The Tribunal's error is said to be manifest in the Reasons at [293] where the Tribunal said: There is no evidence before the Tribunal that the Applicant's deportation will impact on Australian business interests in the manner contemplated by Direction 90. 22 In the Reasons at [165]-[167], the Tribunal referred to the oral evidence given by Mr Tonga's brother, Mr Cade Tonga, to the effect that he was the Projects Training Coordinator for Freo Training based at McArthur River Zinc Mine in the Northern Territory, there was a major shortage of cranage and rigging staff in the Northern Territory, and it was a perfect opportunity to employ Mr Tonga. 23 The evidence was that Mr Tonga had a long history of employment within the construction and mining sectors and had previously worked as a rigger. In a further statement to the Minister dated 11 April 2022, Mr Tonga indicated that he intended to resume employment as a rigger. In his statutory declaration of 18 July 2022, which was before the Tribunal, Mr Tonga stated: 13. I've been offered a job by my brother to operate a Frenna in Darwin. But I can't do that until January 2023, when I'm done with my parole. I have worked with my brother in the past but I'm very comfortable with the fact that he will be my employer. 24 That statement was confirmed in an email dated 1 July 2022 sent on behalf of FreoWGC, which was also before the Tribunal, which read: Dear Gavin, We are pleased to offer you the position of Advanced Rigger/Franna Operator at Freo Cranes. This is a full-time position requiring you to live on site. We feel confident that the skills and experience you contribute will be a great asset towards the growth of our company. We understand that you are currently experiencing a trialling time, and should you make it through this period we would like to hear from you to discuss your role within our team. We hope all goes well for you and we look forward to welcoming you onboard. Kind regards, Cade F Tonga Projects Cranes Co-Ordinator McArthur River Zinc Mine 25 In his oral testimony, Mr Tonga was asked whether he was confident he could do the job in light of his diagnosed bilateral tendonitis. Although he expressed some reservations about the actual position he had been offered, Mr Tonga gave evidence that should it be an impediment, he hoped he "could just maintain employment with my brother but in a different - different department" because he was in a position to hire and fire. 26 In cross-examination, Cade testified that the Freo Group was a "contractor to Glencore, or McArthur River Mine". He also confirmed that there would be other roles for Mr Tonga if his medical issues prevented him from doing the role as offered. Cade also testified that "we have approximately three years' worth of project upgrades at the mine. So that would give Gavin a good comfortable two and half to three years' worth of employment". 27 It is against this evidence that the Tribunal's finding at [293] is challenged. Mr Tonga submits that the proper inference to be drawn is that the Tribunal misunderstood what the Business Interests Consideration required by interpreting s 9.4.2 as requiring more than "any impact on Australian business interests". 28 The Minister contends that no error is established because the Tribunal's finding was qualified by the phrase "in the manner contemplated by Direction 90". The Minister submits that there is no warrant to read into those words an implication that the Tribunal was referring to "an employment link" being "generally only given weight where the decision…would significantly compromise the delivery" of a major project or service; rather, it is equally open that the Tribunal simply found that there would be no impact at all on any Australian business interests. 29 Neither of those interpretations flow easily from the Tribunal's finding. Section 9.4.2 directs attention to two things: (1) any impact on Australian business interests; and (2) in circumstances where the non-citizen is an employee of an Australian business interest, weight is generally only to be given where there would be significant compromise of the delivery of a major project or important service. 30 So much is apparent from the judgment of Middleton J in Singh v Minister for Home Affairs [2019] FCA 905 at [10], albeit in respect of a precursor to Direction 90 in the same terms: 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. 31 It cannot reasonably be concluded that the Tribunal's use of the phrase in the "manner contemplated by Direction 90" embraced both aspects of s 9.4.2 given its statement that there was "no evidence". The statement is contradicted by the record. 32 The Minister is correct to observe that the issue of Australian business interests was not raised by Mr Tonga, who was legally represented, in either his Statement of Facts, Issues and Contentions, or in closing submissions before the Tribunal. Nevertheless, as has already been observed, there was oral and written evidence before the Tribunal to which the Tribunal referred. Cade, whose evidence was the most significant to this issue, was one of only four witnesses called on the second day of the hearing. It was not evidence that was simply buried in a tender bundle. The circumstances of this case are not in the category of cases, to which the Minister referred, where an inference might be drawn that an omission of a particular issue from the Tribunal's deliberations can be readily understood in light of the "continuum" of the review: Knight v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 127 at [53]; GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468 at [33]-[35]. Rather, this was a claim that clearly emerged from the materials, to a limited extent on the written materials, but more prominently in the course of the oral hearing: AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; 261 FCR 503 at [18]. 33 The evidence that was before the Tribunal was not dissimilar to that adduced in Singh to the effect of the following, at [16]: We are in an industry where good people are hard to find … 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. 34 Similarly, in Arachchi, Mr Arachchi was concerned with the impact on his pizza shop partnership were he to be removed from Australia. His evidence was that, if he returned to the business, he could help it to grow. The Tribunal found that was "not the sort of impact on Australian business interests to which s 9.4.2 of Direction 90 is referring". Justice Rangiah held, at [71]: By misconstruing para 9.4.2 as only applying to an impact on a "major project" or "important service", the Tribunal precluded itself from considering the applicant's claim concerning the impact of his removal on his partner's interest in the pizza business. The Tribunal failed to comply with s 499(2A). 35 It is tolerably clear from the Tribunal's Reasons that it misconstrued s 9.4.2 of Direction 90 and so omitted to consider what evidence there was relevant to the business interests' consideration. 36 The Minister argues that any misconstruction of s 9.4.2 of Direction 90 was immaterial on the basis that the Reasons do not suggest that its conclusion was finely balanced. That is not the test. The Tribunal denied there was any evidence that went to s 9.4.2. Had it not misinterpreted s 9.4.2, there is a realistic possibility that they would have considered the evidence and that a different decision could have been made: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 at [39].

Disposition 37 For these reasons, the decision of the Tribunal must be quashed and the matter remitted to the Tribunal, differently constituted, for determination according to law. Mr Tonga is entitled to a costs order in his favour. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Sarah C Derrington.