VPKY v Minister for Home Affairs

Federal Court of Australia|2020-08-17|Before: Middleton J

The application for an extension of time to appeal is dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 On 17 August 2020 I made orders in this proceeding. These are the reasons for those orders. 2 The Applicant seeks an extension of time under r 36.05 of the Federal Court Rules 2011 (Cth) (the 'Rules') to appeal against the judgment of the Federal Court given on 6 November 2019 at first instance: VPKY v Minister for Home Affairs [2019] FCA 1767. 3 That judgment dismissed the Applicant's application for judicial review of the decision of the Second Respondent (the 'Tribunal') affirming the decision of a delegate of the First Respondent (the 'Minister') not to revoke under s 501CA(4) of the Migration Act 1958 (Cth) (the 'Act') the cancellation under s 501(3A) of the Act of her Class BB Subclass 155 (Five Year Resident Return) visa (the 'visa'). 4 The Applicant is in her late fifties, and is a national of the United Kingdom. She arrived in Australia with her parents and family at the age of seven and has been a resident here for almost all of the 50 years since that time, with the exception of some brief periods out of Australia between 2005 and 2006. Almost all her family members live in Australia, including her parents, sibling, daughter, grandson, and great niece and great nephew. 5 The Applicant has a substantial criminal history from 1977, when she was 16 years old, to her most recent convictions in March 2017. Her record includes a range of offending but is predominantly associated with drug related offences. The Applicant has engaged in extensive drug use involving a range of substances such as marijuana and methylamphetamine, more commonly referred to as "speed" or "ice". Her offending also related to the trafficking of drugs. 6 The Applicant's criminal history is not violent, but is primarily related to drugs. The trafficking of drugs was serious, but it was a consequence of addiction, which in turn was a coping mechanism for her long periods of suffering sexual abuse as a child, domestic violence in her relationships, and grief at the death of a very close friend whom she had nursed. Further, she had a long period (from 2002 to 2015) with no criminal history. She has not used drugs since her relapse in around 2015 and 2016 to deal with severe emotional issues. The Applicant was sentenced in 2002 for trafficking of drugs in 2000. The most recent trafficking was from April to July 2016. 7 The Applicant would have serious impediments if returned to the United Kingdom: physical and psychological illness, isolation, overwhelming difficulty in finding employment, no support networks and desperation at the thought of never being able to be with her family again, and at the consequences for her parents. She amplified this in her own detailed statement to the Tribunal, which also extracted positive observations by the Minister's delegate. 8 As well as a detailed submission by her then solicitor, the Applicant also sent letters dated 24 September 2017, 14 December 2017 and 12 February 2018, and made a personal statement dated 26 August 2018 in support of her request to revoke the cancellation of the visa. She wrote another statement to the Tribunal and had supporting witnesses, including her parents, sisters, daughter, niece and nephew. 9 There were many other supporting documents before the Tribunal, including a report from a consultant forensic and clinical psychologist, a counsellor in a domestic violence resource service, the order of the relevant parole board, various certificates and notes of courses, communications and competencies completed or engaged in while in prison, her own relapse prevention plan, and letters of support including letters from her sister and mother. 10 On 7 September 2017, while the Applicant was in prison, the visa was cancelled under s 501(3A) of the Act. 11 The Applicant made representations under s 501CA(4)(a) of the Act, but on 14 December 2018, the Minister's delegate decided not to revoke the cancellation of the visa. The Applicant sought review of the delegate's decision, but on 8 March 2019 the Tribunal affirmed the decision not to revoke the cancellation. 12 The Applicant then applied to the Federal Court for judicial review of the Tribunal's decision (the 'decision'). On 6 November 2019, the Federal Court dismissed her application for judicial review. 13 Under r 36.03 of the Rules, the Applicant had until 4 December 2019 to appeal from the decision of the Court at first instance, but in the situation of distress she set out in her affidavit of 3 February 2020 filed on that date in support of the application, she did not then file the present application until 3 February 2020.

EXTENSION OF TIME TO APPEAL 14 The Applicant submits, having regard to the need to do justice between the parties and the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension, the extension of time should be granted. In this regard the Applicant relies on the principles enunciated in Gallo v Dawson (1990) 93 ALR 479 at [2] (per McHugh J). 15 In summary, the Minister contends that the Applicant's proposed grounds of appeal do not reveal any arguable error in the reasoning of the primary judge: (1) The primary judge correctly held that the Tribunal did consider the representation that the Applicant would not see her parents again, as this matter followed directly from findings made by the Tribunal. (2) The primary judge correctly held that the Tribunal's weighing of different factors is not unreasonable.

RELEVANT LEGISLATIVE CONTEXT 16 The issue for the Tribunal was "whether there is another reason why the original decision should be revoked" under s 501CA(4) of the Act. 17 In answering this question under s 501CA(4), the Tribunal was bound by the Minister's Direction 79 (the 'Direction', in effect from 28 February 2019) given under s 499(1) of the Act. 18 Principle 5 of the Direction provided that: … Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age. 19 Principle 7 of the Direction said that: The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa … cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused. 20 The Direction required that: Informed by the principles in paragraph 6.3 above, a decision-maker … must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a noncitizen's visa will be revoked. 21 The Direction set out primary and secondary considerations, and "recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa …".

THE TRIBUNAL'S DECISION 22 The Tribunal reviewed various considerations under the Direction. It considered the primary consideration of the protection of the Australian community, including the nature and seriousness of the offending, and the risk if the Applicant should offend again. 23 The Tribunal concluded that the Applicant sought "at times to downplay her level of culpability and responsibility for her crimes", although it also accepted that the Applicant "has a level of remorse". 24 The Tribunal accepted that the recent offending was in the context of "grief and anguish", and the history of sexual and physical abuse as context. 25 The Tribunal found that the Applicant had shown "a level of remorse and insight into her offending", was "a fundamentally decent person", at times addicted to drugs which caused her offending, but there is a risk of the same response in future. It considered that her plans for support (if released and remaining in Australia) seemed "not ... well developed". It noted other supports (family, friends and church) but said these had been available previously, yet she relapsed. It noted good behaviour in custody, and a significant period of abstinence, yet that she was a repeat offender in the past with increasing seriousness of offending. It found that her resolve not to offend again has not yet been tested in the community, and that there were risks, because of former associates, in the place where she would live with her ageing parents ([43]). The Tribunal found that there is a real risk of reoffending and that if she relapsed into drug use the risk was substantial ([45]). 26 It found that the best interests of the only minor children - great niece and great nephew - do not weigh against cancellation, as they have no close relationship with the Applicant ([50]). 27 The Tribunal set about its considerations regarding the protection of the Australian community, pursuant to the requirements under the Direction's heading 'Expectations of the Australian Community' ([54]-[60]). 28 Pursuant to other considerations under the Direction, namely under the heading 'Strength, nature and duration of ties', the Tribunal had some regard to close and loving family ties, the needs of the parents and other family members, the positive contribution of the Applicant, and other factors. 29 The Tribunal noted the report of a consultant psychologist (19 August 2018), and other evidence ([41] and [43]). 30 The Tribunal concluded that serious offending and risk of reoffending weighs, as against the Applicant's ties to Australia and hardship if removed, slightly in favour of cancellation.

GROUNDS OF PROPOSED APPEAL 31 It is appropriate in this application to consider directly the merits of the proposed appeal in deciding whether to grant the extension of time requested by the Applicant.

Proposed Ground 1 32 Proposed ground 1 contends that the Tribunal failed to consider a representation by the Applicant that non-revocation would mean that she would never see her parents again, and they would die without her being able to be present. 33 I accept that the Tribunal must consider each relevant representation. It must consider with active intellectual engagement a material question of fact squarely raised by the material before the Tribunal. Failure to do so is a jurisdictional error. 34 I also accept that the Court may infer from the Tribunal's statement of reasons that if an issue is not mentioned it has not been considered: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5] (per Gleeson CJ), and see also [69] and [75] (per McHugh, Gummow and Hayne JJ). 35 The Tribunal was obliged by s 499 of the Act to take account of the considerations in the Direction and also of the material submitted by the Minister and the Applicant. 36 The Applicant contends that while the Tribunal's reasons cover a number of points (for example, where the Tribunal said "it was clear from the evidence that the applicant is a member of a relatively close and very loving family" ([68]), and considered the evidence of the Applicant's mother that she would be "heartbroken" if her daughter was removed from Australia ([67])), the Tribunal did not consider (as required under the Direction, including under the headings 'Impact on family members' and 'Extent of impediments if removed', and under the global weighing up of the considerations), that it was almost certain that a decision not to revoke the cancellation of the Applicant's visa would mean that she would never see her elderly and ill parents again and her parents would die without her being able to be present. 37 It was then submitted that these were grave consequences of the decision, such that they were also mandatory and relevant considerations under the Direction, pursuant to the 'Strength, nature and duration of ties' heading, and implicitly under the 'Other relevant considerations' heading. It was contended that they are implicit because the hardship of the cancellation of the visa and the expectation of a visa holder that she can remain in Australia in accordance with the terms of her visa require consideration of the consequences of cancellation as they may impinge on the Applicant as well as on her family. 38 It is therefore submitted by the Applicant that the Court at first instance erred in finding that ([22]): … it goes without it being needed to be said in terms, that the tribunal therefore must be taken to have accepted that, as a consequence, the Applicant would never see her parents again (because they would pass away before she could do so). 39 It was then submitted that the Tribunal therefore failed to take account of relevant considerations, and that this was a material and jurisdictional error in that it may have affected the decision. This, it was submitted, is evident from the Tribunal's finding "that the overall balance weighs slightly in favour of a decision to not revoke the mandatory cancellation of the applicant's visa" ([79]). 40 In my view, the primary judge correctly held that the Tribunal did consider this matter, albeit implicitly rather than expressly. As his Honour noted at [21], the Tribunal accepted the following facts: (1) the Applicant's parents are elderly and in declining health; (2) the Applicant's mother is legally blind and has survived three bouts of cancer; (3) the Applicant could play an important role in caring for her mother and father as they got older; (4) the mother would be "heartbroken" if the Applicant were removed from Australia; and (5) deportation would mean that the Applicant would be prevented from caring for her parents as their health continued to decline. 41 As the primary judge held, the fact that the Applicant would not see her parents again is the "self-evident consequence" of these findings ([21]). Thus the Tribunal can be taken to have accepted that this was a consequence of non-revocation, without it needing to be said in terms ([22]). 42 A decision-maker does not need to make express findings on all material facts to demonstrate active intellectual consideration of an applicant's representations. To the contrary, it is well settled that a finding can be implicit in other findings made by a decision-maker: see Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [60]. The primary judge made no error of principle in concluding as he did in considering the Tribunal's decision. The Tribunal itself made no error in its reasoning.

Proposed ground 2 43 Proposed ground 2 contends that the Tribunal's decision was legally unreasonable because it was unreasonable for the Tribunal to determine that the balance of all relevant considerations weighed in favour of cancellation. 44 The Tribunal is obliged to act reasonably and according to logically probative evidence. An administrative decision-maker falls into jurisdictional error if they make findings which are illogical in the sense of being unsupported by any probative evidence: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [16]-[40] (per Gummow A-CJ and Kiefel J); [119]-[120], [124]-[133] (per Crennan and Bell JJ); and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. It also falls into jurisdictional error if it acts so unreasonably that no reasonable decision-maker could so have acted: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. 45 It was submitted by the Applicant that having regard globally to all the factors accepted by the Tribunal - including the Applicant's age, her traumatic and long experiences of sexual and physical abuse, her remorse, her insight into her offending, her determination not to reoffend, her long periods of abstinence from drugs before her relapse upon the death of a very close friend, her determination and desire to look after her elderly parents and their love for her, the closeness of the family ties and the long history of hard work by the Applicant over many years - it was not reasonably open to the Tribunal to conclude that the balance of all relevant considerations weighed "slightly" in favour of cancellation, and the removal of the Applicant to a country she has not resided in for nearly 50 years, since childhood, where the prospects of getting work would be greatly affected by health problems and the grave emotional trauma of being removed from her parents and loving family, and from the only country she knows as home. 46 It was submitted that this is the more so, especially as the Tribunal did not have an actual intellectual engagement with the question of the Applicant being separated from her parents forever, and the balance found by the Tribunal was only "slightly" in favour of not revoking cancellation. For this reason, it is submitted by the Applicant that the Court at first instance erred in finding that "[t]here is no error demonstrated in that process of reasoning and weighing matters in the balance, fine though the balance was" ([33]). 47 In my view, the primary judge correctly held that there was no substance to this ground ([31]). His Honour referred to the following findings made by the Tribunal: The Tribunal found that the protection of the Australian community (a primary consideration) should weigh "very heavily" in favour of not revoking the cancellation decision ([46]). As the primary judge held, that finding, in itself, would be sufficient to base a conclusion that the cancellation decision should not be revoked ([31]). The Tribunal also found that the expectations of the community (another primary consideration) weighed in favour of not revoking the cancellation decision ([61]). On the other hand, the Tribunal found that the impact on the Applicant's family (a non-primary consideration) "weigh[ed] heavily" in favour of revoking the mandatory cancellation ([72]). The extent of impediments (another non-primary consideration) weighed "slightly" in favour of revocation ([77]). 48 In my view, there was a clear, intelligible justification for the Tribunal's decision, which was the view of the primary judge ([33]). The Tribunal expressly weighed at several points the long time that the Applicant has spent in Australia, her strong social ties, and the contribution she has made to the community: see eg [56] (community expectations), [69] (impact on family), [79] (conclusions).

DISPOSITION 49 For the reasons given above, the application for an extension of time to appeal is dismissed with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Middleton.

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