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

Legislative Provisions 5 Section 501(3A) of the 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); . . .; 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. 6 Section 501(6)(a) of the 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. 7 Section 501CA of the Act relevantly provides that: (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. … (4) 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. 8 Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the exercise of those functions or powers. By s 499(2A), a person or body must comply with a direction made under s 499(1). On 8 March 2021, the Minister made a direction titled "Direction No. 90 - Migration Act 1958 - Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA" (Direction 90) which came into force on 15 April 2021. 9 Paragraph 5.2 of Direction 90 provides as follows: 5.2 Principles The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under s 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under s 501 or section 501CA of the Act are identified in Part 2. (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. (2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. (3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community. (4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding limited stay visas, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, 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. (5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstance, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mention in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community. 10 Paragraph 6 of Direction 90 stipulates that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision. 11 Paragraph 7(1) stipulates that, in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations. 12 Paragraph 8 of Direction 90 provides: 8. Primary considerations In making a decision under s 501(1), 501(2) or 501CA(4), the following are 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; and (4) expectations of the Australian community. 13 Paragraph 8.3 of Direction 90, which corresponds to the primary consideration in paragraph 8(3), provides as follows: … (4) In considering the best interests of the child, the following factors must be considered where relevant: (a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is not existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact); (b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements; (c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child; (d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways; (e) whether there are other persons who already fulfil a parental role in relation to the child; (f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child); (g) evidence that the child has been, or is at risk of being subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; (h) evidence that the child has suffered or experienced and physical or emotional trauma arising from the non-citizen's conduct.

Background 14 On 19 November 2018, Ms Walker was sentenced to six and a half years' imprisonment after a two week trial at which she was found guilty, inter alia, of trafficking in a dangerous drug. On 4 March 2019, whilst serving her term of imprisonment, a delegate of the Minister mandatorily cancelled Ms Walker's visa under s 501(3A) of the Migration Act. It is not in dispute that Ms Walker did not pass the character test referred to in s 501 of the Migration Act because of the operation of sub-s (6)(a) (substantial criminal record), on the basis of sub-s (7)(c) (sentenced to a term of imprisonment of 12 months or more). 15 Subsequent to the cancellation of her visa, Ms Walker made representations to the Minister, having been invited to do so in accordance with s 501CA(3)(b) of the Migration Act. Nevertheless, on 23 March 2021, the Minister decided not to revoke the cancellation of the visa. 16 Ms Walker's representations to the Minister included those relating to her biological son (Child X) who was then aged 10, and 17 other minor children who include Ms Walker's grandchild, nephews, nieces, and great-nieces. 17 On 29 March 2021, Ms Walker applied to the Tribunal for a review of that decision. Her application was heard by the Tribunal on 24 May 2021. Ms Walker represented herself at that hearing. In the Tribunal's Reasons for Decision of 21 June 2021, the Tribunal held: 261. The Tribunal has had reference to the Direction and to all the evidence before it and finds that there is not another reason for the Tribunal to revoke the cancellation of the Applicant's Visa. 262. In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Migration Act to revoke the mandatory Visa Cancellation Decision, the Tribunal has had regard to the Primary Considerations referred to in the Direction, and makes the following findings: (i) Primary Consideration 1 weighs very heavily in favour of non-revocation. (ii) Primary Consideration 2 weighs moderately in favour of non-revocation. (iii) Primary Consideration 3 weighs strongly in favour of revocation. (iv) Primary Consideration 4 weighs very heavily in favour of non-revocation. 263. The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal is of the view that any weight the Tribunal has found in favour of revocation from the Other Considerations (even when combined with each other and that of Primary Consideration 3), does not in any way outweigh the combined very heavy and determinative weight the Tribunal has attributed to Primary Consideration 1, and Primary Consideration 4 of the Direction. 264. In the Tribunal's mind, Primary Consideration 1, and Primary Consideration 4, have been determinative considerations in this matter. 265. It is the Tribunal's opinion that a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant's visa.

Ground of review 18 The revised particulars of the application for review are framed as follows: (a) The second respondent was bound to apply Direction 90 (the Direction) made on 8 March 2021. (b) A failure to comply with the Direction or a decision based on an incorrect understanding of the Direction is an error going to the exercise of the Second Respondent's jurisdiction. (c) The use in the Direction of the terms 'primary' and 'other' considerations, 'discretion' imported an exercise of a process of evaluation that involved an analysis of all relevant factors and a synthesis. (d) The Second Respondent did not undertake an exercise of evaluation of all relevant factors and a synthesis in order to arrive at a conclusion. Rather, the Second Respondent proceeded sequentially to find that the first primary consideration was 'determinative' ([Reasons 201]); that the first and third primary considerations together were 'determinative' (Reasons [232]); and that the first and fourth primary considerations together were 'determinative' (Reasons [254], [258]); (e) The Second Respondent proceeded on an incorrect understanding to the Direction and hence failed to comply with the Direction. (f) The Applicant was denied the possibility of successful outcome because of this failure. (g) The Second Respondent hence fell into jurisdictional error. 19 As to the matters raised by particular (a), the Tribunal was clear that Direction 90 was applicable (Tribunal's reasons at [18]). The Tribunal was also clear that it was required to take into account the primary and other considerations relevant to the individual case (Tribunal's reasons at [19]). It was also cognisant that primary considerations should generally be given greater weight than other considerations and that one or more primary considerations may outweigh other primary considerations (Tribunal's reasons at [20]). 20 The gravamen of Ms Walker's challenge to the Tribunal's decision is that it did not engage in an evaluative exercise of weighing and synthesising the primary and other considerations because, it is said, the Tribunal had prejudged the conclusion it ultimately reached at [265] in stating, at [201], that 'the weight the Tribunal as attributed to Primary Consideration 3 does not in any way outweigh the very heavy and determinative weight the Tribunal has attributed to Primary Consideration 1.' 21 Ms Walker does not challenge the proposition that one consideration may in fact be determinative of a Tribunal's ultimate decision, as explained by Anderson J in Onyebuchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1183 at [108]. Rather, she contends that any conclusion reached must be arrived at following an evaluative synthesis and not preceding it. 22 As framed, Ms Walker's submission goes beyond construing the Tribunal's 'minutely and finely with an eye keenly attuned to the perception of error' (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272). Rather, it misconstrues the Tribunal's reasons. 23 The Tribunal's consideration of Primary Consideration 1 commenced at [25] and concluded at [108], stating 'In consideration of all of the evidence and each of the relevant factors contained in the Direction, the Tribunal finds that Primary Consideration 1 weighs very heavily in favour of non-revocation'. Nothing in these paragraphs can be construed as the Tribunal's having prejudged the determinative quality of Primary Consideration 1. 24 The Tribunal considered Primary Consideration 2 commencing at [109] and concluded, at [122], '…the Tribunal finds that Primary Consideration 2 weighs moderately in favour of non-revocation'. 25 Ms Walker's contention arises from the conclusion reached in relation to Primary Consideration 3. Having considered the best interests of minor children from [123], the Tribunal concluded, at [200]-[201]: The Tribunal is of the view that the best interests of the relevant minor children overall weighs strongly in favour of revocation of the decision to cancel the Applicant's Visa. The Tribunal qualifies this finding by confirming that the weight the Tribunal has attributed to Primary Consideration 3 does not in any way outweigh the very heavy and determinative weight the Tribunal has attributed to Primary Consideration 1. 26 It is tolerably clear from these paragraphs that the Tribunal remained engaged in an evaluative process whereby, along the way, it was balancing the primary considerations against one another, as it was required to do by Direction 90. 27 The Tribunal moved to consider Primary Consideration 4 at [202] and concluded, at [217], 'that Primary Consideration 4 is of a very heavy weight in favour of affirming the non-revocation decision under review'. This does not suggest any prejudgment of the determinative character of this primary consideration. 28 The Tribunal proceeds to consider the other considerations it is required to consider by Direction 90. Ms Walker points to the Tribunal's reasons at [232] as further evidence of prejudgment. Having considered the extent of any impediments Ms Walker might face if returned to New Zealand, the Tribunal said: …it is the Tribunal's view that paragraph 9.2 of the Direction is of a slight weight in favour of revocation. However, the Tribunal is of the view that the weight of this factor does not outweigh the very heavy and determinative weight the Tribunal has found when combining Primary Consideration 1, and Primary Consideration 3 of these reasons. 29 This paragraph also demonstrates that the Tribunal is still engaged in the evaluative process required of it and is balancing the various considerations along the way. 30 The same criticism is made of the Tribunal's conclusion, first at [254] and then at [258]. Following the Tribunal's consideration of Ms Walker's links to the Australian community, the Tribunal concluded at [254] that, despite the strong measure of weight given to her links to the community, and having considered the other considerations in paragraphs 9 to 9.4.2 of the Direction, 'they are by far outweighed by the combined and determinative weight the Tribunal has given to both Primary Consideration 1, and Primary Consideration 4, both of which weigh very heavily in favour of non-revocation'. 31 The Tribunal's reasons disclose that the Tribunal engaged in the evaluative process required of it by Direction 90 and articulated the weight it had accorded to the primary considerations and the other considerations along the way, ultimately concluding, at [264], that 'Primary Consideration 1, and Primary Consideration 4, have been determinative'. 32 Even if Ms Walker could sustain her contention that the Tribunal fell into jurisdictional error, she cannot discharge the onus of establishing that it could involve a realistic possibility that the decision in fact made could have been different: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 390 ALR 590 at [2]. Ms Walker accepts that the Tribunal regarded Primary Consideration 1 as determinative. No other outcome was a realistic possibility.

Disposition 33 For these reasons, the application must be dismissed with costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice SC Derrington.