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

Federal Court of Australia|2021-12-23|Before: Perry J, Bromwich J

Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth), the appeal be summarily dismissed.
The appellant pay the first respondent's costs as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 This is an application by the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, for summary judgment in relation to the appeal brought by the appellant, Mr Tran, from a decision of a judge of this Court. Her Honour, on 9 February 2021, dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal, the second respondent. The Tribunal had affirmed a decision of a delegate of the Minister not to revoke the mandatory cancellation of the appellant's visa on character grounds. 2 The Minister's application for the appellant's appeal to be summarily dismissed under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) requires the Court to be satisfied that the appellant has no reasonable prospects of successfully prosecuting it, a familiar phrase that is best taken as it is without further gloss: Spencer v Commonwealth of Australia [2010] HCA 28; 241 CLR 118 at [58]. Certainty of failure is not required, so that the bar is lower under the Act than previously existed at common law, as typified by General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. 3 The authorities dealing with s 31A are well known and the principles well established: see Spencer at [49]-[60], especially at [52]-[53]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; 167 FCR 372 at [121]-[132]; see also the helpful summary of Spencer and a number of the other key cases by Perry J in Riva NSW Pty Ltd v Official Trustee in Bankruptcy [2017] FCA 188 at [44]-[50]. Among the key points to be derived from Spencer in particular is that caution is required. That is especially so in cases where evidence can have a material bearing on the allegations relied upon, and where questions of fact and degree are important. Neither of those are common features of judicial review proceedings at either the trial or appeal stage. The power is clearly exercisable when the pleading discloses no reasonable cause of action and the deficiency is incurable, such as by re-pleading: Spencer at [22]. A failure to re-plead a reasonable cause of action despite an opportunity to do so may properly suggest that none exists, but the existence of one and the pleading of one remain distinct concepts: Spencer at [23].

Chronology of key events 4 In 1988, Mr Tran arrived in Australia as a 17 year old, holding a Class BB Subclass 155 Five Year Resident Return visa. He is now 50 years of age. He has strong bonds with two adolescent daughters and a stepdaughter, but has not had a lot of contact with them due to his time in prison and detention. There is no issue that this was taken into account and found to favour revocation. 5 Mr Tran has been convicted of 54 offences between 1994 and 2017 when he was taken into immigration detention. In the earlier part of that period some of the offences included significant acts of violence. As a result he has spent over eight years in prison. However, the offences that gave rise to his visa cancellation were considerably less serious. He was given warnings as to the potential impact of further offending on his immigration status in 2005, 2007 and 2012. His extensive criminal history and the risk of him reoffending were a significant factors found to favour revocation not taking place. 6 On 1 June 2017, Mr Tran was convicted of 3 counts of driving a motor vehicle during a disqualification period, and 3 counts of possessing a prohibited drug, and sentenced to 12 months' imprisonment. On 14 September 2017, and as a result of those convictions, a delegate of the Minister cancelled his visa under s 501(3A) of the Migration Act 1958 (Cth). On 29 September 2017, he made representations requesting that the cancellation decision be revoked under s 501CA(4) of the Act. On 31 May 2018 a delegate of the Minister decided not to revoke the cancellation decision. Mr Tran sought merits review of the delegate's non-revocation decision in the Tribunal. 7 On 21 August 2018 the delegate's decision was affirmed by a first Tribunal. The Tribunal's decision was set aside by consent because the first Tribunal had failed to take into account the best interests of a minor child. 8 On 22 May 2020, a differently constituted Tribunal again affirmed the delegate's non-revocation decision. On 3 June 2020, Mr Tran applied for judicial review of the second Tribunal's decision in this Court. That application was heard on 14 and 23 December 2020. Mr Tran was not legally represented and communicated with the Court via an interpreter. On 9 February 2021, his judicial review application was dismissed. 9 On 8 March 2021, Mr Tran filed a notice of appeal in relation to the primary judge's decision. On 29 March 2021, the Minister filed the present interlocutory application for summary dismissal of the appeal. 10 On 2 July 2021, I made orders providing for Mr Tran to file an amended notice of appeal. The orders also made provision for the hearing of the Minister's 29 March 2021 interlocutory application for summary dismissal, including a timetable for submissions. The latter orders were contingent on there being no amended notice of appeal filed that the Minister regarded as having any reasonable prospect of being successfully prosecuted. 11 Mr Tran did not file any amended notice of appeal, nor any submissions in response to the Minister's submissions in support of the interlocutory application. Extensive attempts by the registry of the Court to obtain pro bono legal representation for him have not been successful.

Before the Tribunal 12 The Tribunal's decision was summarised by the primary judge as follows: [9] By way of background, the Tribunal found that Mr Tran had a lengthy criminal history, having spent more than eight and half years in prison, and been convicted of 54 offences in Australia before he was taken into immigration detention in August 2017. It found that those criminal convictions included: (1) five offences involving violence; (2) 11 offences involving stealing; (3) 12 offences involving drugs; (4) two offences involving firearms; and (5) 19 driving offences (Tribunal reasons (TR) at [7]). [10] Mr Tran had also been warned in 2005, 2007 and 2012 of the risk that his visa may be cancelled if he reoffended (TR at [9]-[10]). [11] It was not in issue before the Tribunal that Mr Tran did not meet the character test (TR at [11]). As such the Tribunal found that the issue before it was "whether, having regard to Ministerial Direction 79 ('the Direction'), the Tribunal should exercise its discretion in revoking the mandatory cancellation of the applicant's visa" (TR at [12]). As I later explain, the reference to a "discretion" was an error, although ultimately I find that it was not material to the Tribunal's decision. [12] Under Direction No. 79: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a Visa under s 501(1) of the Act (Direction 79), the Tribunal was required to take into account the primary and other considerations specified in and relevant to Mr Tran's case in determining whether or not to revoke the cancellation of his visa: Direction 79 at [8]; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591 at [41] (the Court). [13] As the Tribunal noted at [15], Direction 79 provided that there were three primary considerations which it was required to take into account, namely: (a) Protection of the Australian community from criminal activity or other serious conduct; (b) The best interests of minor children in Australia; (c) Expectations of the Australian community (Primary Considerations A, B and C respectively). [14] Paragraph 14(1) of Direction 79 provided a non-exhaustive list of the Other Considerations required to be taken into account, as the Tribunal acknowledged at [16]. These included the "Strength, nature and duration of ties" (referring to an applicant's ties with Australia), and "Extent of impediments if removed" (referring to the extent of impediments which an applicant may suffer if returned to her or his country of origin). [15] First, the Tribunal found that it was necessary for it to consider the evidence in accordance with Direction 79. This direction post-dated and superseded Direction 65 which had been applied by the first Tribunal (TR at [13]). [16] Secondly, with respect to Primary Consideration A, the Tribunal found that Mr Tran had a history of repeated offending, incurring some 54 convictions and that 11 of those convictions had resulted in sentences of imprisonment for more than a year (TR at [25]). It further found that a number of these were violent offences "of very serious concern" (TR at [23]). While the most serious crimes involving violence and abuse towards his victim's elderly in-laws and their disabled child had occurred in 1996, the Tribunal found that they could not be discounted given "the applicant's apparent disregard of the rights of others and the length of the sentence he received, namely five years" (TR at [24]). The Tribunal also considered that it was "of serious concern" that Mr Tran had ignored the three warnings from the Department in July 2005, October 2007, and October 2012. In the Tribunal's view, "[c]learly neither imprisonment nor very specific warnings as to the possible cancellation of his visa had any effect on the applicant's behaviour" (TR at [28]). The Tribunal found that there was a real risk that Mr Tran would reoffend, given among other things that: (1) in the past Mr Tran did not appear to have been prepared to change his conduct despite his evidence that he wished to care for his family; (2) the fact that there was "very little evidence to indicate that he has a low chance of recidivism" despite assurances given by him in the past; (3) Mr Tran's long history of criminal offences over 24 years and his long-standing drug addiction; (4) remarks of sentencing judges; (5) the lack of evidence of engagement with any serious counselling; and (6) Mr Tran's failure to heed prior warnings from the Department (TR at [29]-[38]). [17] As to Primary Consideration B, the Tribunal found that Mr Tran had a "strong bond" with his children and stepchild even though he had spent a long period of their lives in prison or immigration detention, and that it would be "a major wrench" for them if he were to be removed to Vietnam where they would be unlikely to see each other often (TR at [39]-[45]). As such, the Tribunal found that Primary Consideration B weighed in favour of revocation and gave it "significant weight" (TR at [47]). [18] As to Primary Consideration C, the Tribunal correctly found that it was not for the Tribunal to determine for itself the expectations of the Australian community (at [48]-[49]). The Tribunal continued to find that: 50. The applicant's extensive and violent criminal history criminal history [sic], his failure to heed judicial or departmental warnings or change his conduct substantially, demonstrate that he does not meet the expectations of the Australian community. This consideration weighs heavily against revocation of the Delegate's decision. [19] With respect to the other considerations in Direction 79, the Tribunal had regard to the strength, nature and duration of Mr Tran's ties to Australia, including his familial connections, which were found to weigh in his favour and given "moderate weight" (TR at [54]). The Tribunal also found that there were impediments to Mr Tran's return to Vietnam including that he would find some difficulty in obtaining suitable employment, and that these weighed moderately in favour of revocation (TR at [55]-[60]). [20] The Tribunal concluded that the correct and preferable decision was to affirm the delegate's decision on the ground that "the applicant's long history of criminal offences, the seriousness of those offences, his failure to heed warnings and the likelihood of his reoffending outweigh those considerations in his favour" (TR at [62]).

Before the primary judge 13 After summarising the applicable authority in relation to judicial review of the Tribunal's decision, the primary judge turned to the grounds of review and addressed each in turn as follows: [27] In his affidavit in support of his application made on 2 June 2020, Mr Tran alleges that the Tribunal's decision is invalid on the following grounds: (1) the decision was unreasonable; (2) the Tribunal did not properly apply, or properly exercise its discretion under, ss 501CA and 501CA(4) of the Migration Act; (3) the Tribunal failed to take a relevant consideration into account; (4) there was insufficient or no evidence to support the Tribunal's findings; (5) the decision involved an error of law; and/or (6) the Tribunal failed to comply with the rules of procedural fairness. [28] In principle, as the Minister accepted at the hearing, each of these grounds is capable of giving rise to an error of a jurisdictional kind and therefore providing a ground on which the Tribunal's decision must be set aside. However, they are expressed at such a high level of generality that it is not possible to discern the nature of any error complained of by Mr Tran. Nor did Mr Tran file written submissions which might have assisted in identifying any specific error. In so saying, I am not intending to be critical of Mr Tran. Given that he was unrepresented, in immigration detention, and does not speak English, the failure to file written submissions to elaborate upon his grounds of review is entirely understandable. [29] At the hearing, Mr Tran submitted that: (1) he was not advised that he would be returned if he committed crimes; and (2) while he was given a number of warnings, the warning letters advised that his visa was liable to cancellation only if he served a sentence for criminal sentencing for more than 12 months in prison but since the warning, he had not served a prison sentence exceeding one year for any criminal offences. [30] Neither of these grounds, however, can succeed. [31] First, as earlier mentioned, Mr Tran received three warnings from the Department, as the Tribunal found at [8] to [10] of its reasons. The first warning in July 2005 advised in bold type that while a delegate had decided not to cancel his visa, "conviction for ANY further offences will result in a fresh assessment being made to again consider cancellation of your visa" (CB 152) (emphasis in the original). Mr Tran received a further warning from the Department on 26 October 2007 (CB 165). That letter gave a "formal warning" in bold in the following terms: Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered. [32] A third warning was given on 2 October 2012 (CB 169) which advised that: … any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in consideration of the cancellation of your visa. The consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia (emphasis in the original). [33] A copy of s 501 was attached to this letter. Mr Tran also, as requested in the letter, signed an acknowledgement of receipt of the warning letter (CB 171). [34] None of these warnings advised that Mr Tran's visa could be cancelled only if he served a sentence for further offending of more than 12 months. To the contrary, in each case the advice was that any further criminal conduct could result in a reconsideration of the question of whether his visa should be cancelled. Furthermore, the last of these [warnings] expressly advised that Mr Tran could be removed from Australia if his visa was cancelled on character grounds. [35] It is true that none of the letters warned that Mr Tran's visa would be cancelled automatically under s 501(3A) of the Migration Act and it may be that this perceived omission lies at the heart of Mr Tran's complaint. However, this is because s 501(3A) was enacted after the last of the warnings by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth), which came into force on 11 December 2014. There was no obligation in law for the Minister to advise Mr Tran that that amendment had been made to the Migration Act. [36] Secondly, Mr Tran's submission that the Tribunal had not reinstated his visa merely because of his driving offences is, with respect, incorrect. The Tribunal considered the totality of his offending, as it was required to do under Direction 79 in order to have regard in particular to Primary Considerations A and C. [37] Thirdly, Mr Tran submitted that the Court should exercise compassion and permit him to stay in Australia given that his family lives in Australia. It is understandable that a lay-person in Mr Tran's circumstances would seek leniency from the Court and assume that the Court could overturn the Tribunal's decision. However, for the reasons I have earlier explained, the Court does not have the power to decide whether or not to revoke the visa cancellation on compassionate or any other grounds. It is limited to considering whether or not the Tribunal made a lawful decision under the Migration Act. [38] Fourthly, the Minister's counsel properly drew the Court's attention to two errors in the Tribunal's reasons. At [12] and [13], the Tribunal identified the issue as whether or not it should exercise its "discretion" to revoke the mandatory cancellation of Mr Tran's visa under s 501(1). However, the question for the Tribunal was relevantly whether or not the Tribunal was satisfied that "there is another reason why the original decision should be revoked" under s 501CA(4). If satisfied that there was another reason, the Tribunal was required to revoke the cancellation decision: AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 2205 at [16] (Perry J). While unfortunate, on a fair reading of the Tribunal's reasons as a whole, it is apparent that the Tribunal in fact applied the correct test under s 501CA(4). The Tribunal cited the correct provision at [4] of its reasons in referring to the decision of the delegate under review and cited Part C of Direction 79 at [26] and [29] which relates to a consideration of the power under s 501CA(4). The Tribunal then in fact weighed the Primary and Other Considerations in the manner required by Direction 79 in order to decide whether another reason existed to revoke the cancellation decision. In this regard, Colvin J explained in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 with respect to the process of weighing the Primary and Other Considerations, that Direction 65 (which is relevantly the same as Direction 79): 23. … makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' … It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. [39] Finally, I have carefully considered the Tribunal's decision and, in particular, whether any of the general grounds of review alleged in the application might have merit. However, I was unable to discern any errors of the general kind alleged. 14 The primary judge therefore dismissed Mr Tran's application for judicial review with costs.

The pleaded grounds of appeal 15 On 8 March 2021, Mr Tran filed a notice of appeal from the primary judge's decision. It contains grounds and particulars that are, on their face, largely incomprehensible, at least in relation to this proceeding, including before the Tribunal and before the primary judge. The Minister's submissions identify why that is so: the pleaded grounds in the notice of appeal are a direct and almost verbatim copy paste of the grounds reproduced in Hovhannisyan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 176 at [2], save that the name of the applicant in that case has been replaced with Mr Tran's name. 16 The Minister's written submissions endeavour to make sense of what is alleged and then address each allegation. What follows is drawn from the Minister's submissions, which have been carefully examined and evaluated. I have included some additional detail as part of the consideration of what is raised in order to discharge the onus for summary dismissal of this appeal. 17 Ground 1 asserts jurisdictional error on the part of the Tribunal by failing to find that the Minister (necessarily via his delegate) had denied the appellant procedural fairness. As the Minister's submissions point out, this misconceives the role of the Tribunal, which is not to function in an appeal capacity determining any question of error on the part of the delegate, but rather to conduct a full merits review in the shoes of the delegate. As such, this ground is incapable of establishing any error on the part of the Tribunal, and therefore incapable of establishing any error on the part of the primary judge. No denial of procedural fairness on the part of the Tribunal is referred to, let alone properly identified or established. As such, this ground of appeal cannot possibly succeed. 18 Ground 2 alleges that there has been an error of law, which for present purposes can be taken to be an allegation of an error of law on the part of the Tribunal that was not detected by the primary judge, and/or an error of law by her Honour. That ground has set out particulars (a) to (h) as follows. 19 Particular (a) asserts that there was a finding that Mr Tran had disregard for judicial orders and that this finding should have been put to him. This is what occurred in Stowers v Minister for Immigration and Border Protection [2018] FCAFC 174; 265 FCR 177, a case that is neither cited nor referred to except by the Minister. However, there was no such finding by either the Tribunal or the primary judge in this case. 20 Mr Tran was arrested for driving while disqualified and for possessing drugs, and committed the same offences both the next day and four weeks later. This was raised in the Minister's statement of facts, issues and contentions before the Tribunal as going to the question of recidivism. Mr Tran had ignored judicial warnings in the past, but this too was in the Minister's statement of facts, issues and contentions before the Tribunal. The pleaded particular is not referrable to what in fact happened in this case. 21 Particular (b) appears to mirror part of the ultimately successful allegation made in Stowers. That allegation was to the effect that an invitation to comment on a national police certificate recording convictions had involved a denial of procedural fairness because the decision-maker had drawn conclusions from the certificate to the effect that the revocation applicant in that case had displayed a disregard for judicial orders. Procedural unfairness was said to arise because that conclusion was not obvious or reasonably apparent on the face of the certificate and not drawn to the revocation applicant's attention in seeking his comments. By contrast, in this case, Mr Tran was provided with a copy of his national police certificate, and Minister's statement of facts, issues and contentions before the Tribunal contained a detailed summary of its effect. The Tribunal reasons did include a summary of his convictions, and this was obvious information on the face of the certificate. Again, the pleaded particular is not referrable to what in fact happened in this case. 22 Particular (c) raises the question of whether the primary judge erred in finding there was no procedural unfairness and whether Mr Tran was given practical, direct or non-misleading advice as to how material disclosed to him might be used by the "Assistant Minister". Putting to one side the fact that the decision-maker was the Tribunal, not the Minister or any Assistant Minister, in this case, as already noted, Mr Tran was provided with a detailed statement of facts, issues and contentions detailing the relevance of the material before the Tribunal. Without there being any complaint about any specific information or the like, no error of the kind asserted is capable of being shown to exist in this case. 23 Particular (d) asserts that the Minister failed to put Mr Tran on notice of the potential adverse effect of the national police certificate. Even treating this as a reference to the Tribunal, as noted above, the allegation is not referrable to what in fact happened in this case, because such notice was given in considerable detail. 24 Particular (e) states that "the Minister relied expressly on 'convictions of serious nature of judicial orders and non-custodial dispositions' in causing him to 'pause in accepting unquestioningly that Mr Tran will not re-offend if returned to the community' ". Even treating this as a reference to the Tribunal, no such findings were made, such that again the allegation is not referrable to what in fact happened in this case. 25 Particular (f) is a statement as to the purpose of providing notice or disclosure as an aspect of procedural fairness, and does not contain any allegation of error. 26 Particular (g) refers to observations which are said to highlight the materiality of Mr Tran's loss of an opportunity to comment on matters significant to the "Assistant Minister's" decision. Even taking this to be a reference to the Tribunal, it does not identify what observations or matters are being referred to, such that there is no means of comprehending the ground, let alone any asserted error. Given the detail in the Minister's statement of facts, issues and contentions before the Tribunal, there would need to be a clear identification of anything taken into account of which the appellant was not on notice. Having read the Tribunal's reasons and the Minister's statement of facts, issues and contentions before the Tribunal, it is not apparent to me that there is any basis for asserting that has taken place. 27 Particular (h) contains various asserted errors by way of the Tribunal in some unspecified way acting beyond its responsibilities and having an improper purpose. Those asserted errors were that "this law violates the constitution", that there was non-compliance with the rules of natural justice, that there was insufficient evidence or no evidence to support findings made by the Tribunal and the Minister, and that they denied him procedural fairness. Without any particulars these allegations cannot be comprehended, much less established, and there is no evident foundation for any of these allegations. 28 It follows that neither ground 2 itself nor any of the particulars pleaded can possibly succeed. 29 The appellant's presently pleaded appeal cannot succeed. That would have been sufficient for the purposes of the common law, let alone the lower bar for impugning a pleading under s 31A of the Federal Court of Australia Act.

The prospects of re-pleading a viable appeal case 30 There are two aspects to the question of whether the defects in the present notice of appeal are incurable. The first concerns whether Mr Tran has the means of re-pleading a viable case; and the second concerns whether such a case is likely to be available to be pleaded. 31 As to the former, Mr Tran made it clear that he has no means to fund a lawyer, and that there is no-one else he can turn to who could help him in this way. The only remaining option is to resume the attempts to obtain pro bono legal representation for him. That is only worth considering if there is some reasonable prospect that anything useful could be achieved. 32 The Minister submits that the Court might derive some comfort in concluding that there is unlikely to be any viable ground of appeal to advance when regard is had to the history of Mr Tran's endeavours to have the visa cancellation decision revoked. First, when Mr Tran applied for judicial review of the first Tribunal decision, he advanced only generic grounds of review. It was the Minister who identified a potential error referrable to what took place at the Tribunal hearing, filed a transcript of that hearing, and ultimately entered into consent minutes of order with the appellant resulting in the first Tribunal's decision being set aside and Mr Tran's merits review application being remitted for fresh determination. 33 In the judicial review proceeding of the second Tribunal decision before the primary judge, the Minister again carefully considered the Tribunal's decision and drew to her Honour's attention an errant reference by the Tribunal to s 501(1) of the Migration Act when exercising its powers. Her Honour acknowledged the propriety in that being pointed out, and concluded that while the erroneous reference was unfortunate, on a fair reading of the Tribunal's reasons as a whole, it was apparent that the Tribunal in fact applied the correct test under s 501CA(4). Her Honour also said that she had carefully considered the Tribunal's decision, including whether any of the general grounds of review alleged in the application might have merit, but was unable to discern any errors of the general kind alleged. 34 I have conducted the same exercise as the primary judge, including considering the statement of facts, issues and contentions before the Tribunal, and the National Police Certificate to which that statement refers, which was also before the Tribunal. I was unable to discern any factual or legal error beyond that identified by the primary judge as noted above, let only any such error capable of amounting to jurisdictional error. I therefore conclude that there is no serious prospect of the defects in the present notice of appeal being able to be cured by re-pleading.

Conclusion 35 The Minister has discharged the onus of establishing that summary judgment should be granted. I am comfortably satisfied that the appellant has no reasonable prospects of successfully prosecuting his appeal. The Minister's application must therefore succeed. 36 The appeal is summarily dismissed with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.

Migration Amendment (Character and General Visa Cancellation) Act 2014(Cth)

Migration Act 1958(Cth)ss 501(1), 501(3A), 501CA(4)

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