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

The Tribunal's decision 11 It is not necessary to assay the Tribunal's decision in any great detail in these reasons and a general description will suffice. 12 The Tribunal set out the statutory framework and concluded that Mr Zyambo did not pass the character test under s 501(6) of the Act because he had a "substantial criminal record". It reached this conclusion on the basis that Mr Zyambo had previously been sentenced to a term of imprisonment of more than 12 months (s 501(7)(c)). In particular, the Tribunal relied upon Mr Zyambo's being sentenced to a period of incarceration of 12 months in October 2006. 13 In the Minister's submissions, it is stated that Mr Zyambo makes no challenge to the Tribunal's determination regarding the character test. That submission is correct although, as is discussed later in these reasons, the Court raised with Counsel for the Minister whether there may be an apparent additional ground of appeal arising from the recent decision of the High Court in Minister for Immigration and Border Protection v Makasa [2021] HCA 1 (Makasa), a decision delivered on 3 February 2021. That decision post-dated the Tribunal's decision. 14 From paragraph 19 of its reasons, the Tribunal considered the issue under s 501CA(4)(b)(ii) of whether there was another reason why the cancellation should be revoked. In addressing that question, it turned its attention to Direction No. 79 (the Direction). That Direction had been made under s 499(1) of the Act and, as such, a decision-maker is required to apply it in the fulfilment of its functions under s 501CA(4): s 499(2A). 15 In relation to the primary consideration under the Direction of the protection of the Australian community, the Tribunal carefully and fully analysed the nature and seriousness of Mr Zyambo's criminal conduct, his many and varied criminal offences, and his terms of imprisonment, some of which were substantial. It also considered his constant addictions to drugs which resulted in him engaging in drug-related crime. The Tribunal then concluded that Mr Zyambo's offending should be regarded as "serious" due to its frequency, persistence and impact upon others. More particularly, Mr Zyambo had been warned on a number of occasions that his visa would be revoked if he continued to offend. That was, apparently, no deterrent to him. The Tribunal determined that there was a high risk that he would resume drug use and commit further property offences if returned to the wider community. Overall, it concluded that the issue of the protection of the Australian community weighed heavily in favour of non-revocation. 16 The Tribunal then considered the best interests of any minor children in Australia and, given Mr Zyambo's circumstances of a somewhat distant relationship with his nephew, this consideration had limited weight in favour of revocation. 17 In relation to the issue of the expectations of the Australian community, the Tribunal considered, based on Mr Zyambo's long history of offending, that this weighed heavily in favour of non-revocation. 18 At paragraphs 109 to 136 of its reasons, the Tribunal dealt with the "other considerations" specified in the Direction. In particular, it considered the "strength, nature and duration of ties" which Mr Zyambo had to Australia and, given the length of time in which he had lived here, it was satisfied that factor warranted the allocation of a moderate level of weight in favour of revocation. The Tribunal then considered the extent of impediments which Mr Zyambo might suffer if he were removed from Australia. It accepted that there was no or limited government welfare in Zambia but that Mr Zyambo had some prospects of employment there and the opportunity to be financially comfortable. Nevertheless, overall, it considered this consideration to weigh heavily in favour of revocation. 19 After conducting its analysis of the matters prescribed by the Direction, the Tribunal determined that the primary considerations of the protection of the Australian community and the expectations of the Australian community weighed heavily in favour of non-revocation, and that the other considerations, although weighing in favour of revocation, did not outweigh those primary considerations. Consequently, it determined not to revoke the cancellation of Mr Zyambo's visa and affirmed the delegate's decision.

Application to this Court for review 20 Mr Zyambo's application for review of the Tribunal's decision raises three possible grounds. In brief, they are: (a) the Tribunal gave baseless grounds for how he was likely to fall into recidivism; (b) the Tribunal erred in its consideration of his welfare (in the context of impediments faced) and made a decision on flawed information and hasty generalisations; and (c) the Tribunal placed little weight on the issue of his duration of stay and his ties to Australia in relation to the final outcome. 21 As previously mentioned, Mr Zyambo did not file any written submissions in support of these grounds of review. However, they can be taken as challenges to the Tribunal's state of non-satisfaction under s 501CA(4)(b) of the Act and that it was vitiated by reason of those errors.

Ground one - baseless grounds for recidivism 22 As the Minister's written submissions observe, this ground appears to raise an allegation of illogicality or irrationality in the Tribunal's conclusion that there was a high risk that Mr Zyambo will resume drug use and commit further property offences against individuals and businesses, as well as other offences, if he is returned to the wider community (see [93] of the Tribunal's reasons). 23 In his submissions, the Minister noted the distinction between the formation of the decision-maker's state of satisfaction under s 501CA(4)(b) (which involved the substantive deliberative process) as opposed to the exercise of a discretion. He correctly observed that, properly articulated, the allegation should be that the Tribunal's purported satisfaction was vitiated or did not exist because its formation was illogical or irrational: Ali v Minister for Home Affairs (2020) 380 ALR 393 (Ali) at 406 - 407 [43]; EHF17 v Minister for Immigration and Border Protection (2019) 377 ALR 669 (EHF17) at 425 - 426 [58]. 24 The Minister acknowledged that, notwithstanding that findings of fact are for decision-makers and it is not open for courts to review them on applications for judicial review, it is possible for illogicality or irrationality in relation to critical findings of fact on the way to a decision-maker's ultimate decision to give rise to a jurisdictional error: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (SZMDS) at 647 - 648 [130] to [132]; DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at 183 - 184 [30]. 25 Nevertheless, it must be accepted that the threshold for establishing illogicality is very high and requires extreme illogicality such that the decision was one that no rational or logical decision-maker could arrive at on the same evidence: Gill v Minister for Immigration & Border Protection (2017) 250 FCR 309 at 331 [62]; CQG15 v Minister for Immigration & Border Protection (2016) 253 FCR 496 at 517 - 518 [60]; SZMDS at [130] to [135]; EHF17 at 430 - 434 [73] to [85]; Ali at [42] to [44]. 26 In this case, Mr Zyambo did not particularise the manner in which he claimed the Tribunal's determination that he was likely to revert to criminal activities was illogical or irrational. With respect, the Tribunal's decision cannot be criticised in this way. Its reasoning and conclusions were rational and logical and, indeed, one might observe, the only conclusion open to it. Mr Zyambo had an extraordinarily lengthy criminal history which was characterised by relapses into drug use, crime and periods of imprisonment. Although there were some periods of abstinence, Mr Zyambo was prepared to engage in further criminal offending even after warnings that his visa might be revoked were he to do so. On issues of this nature, it can generally be observed that what has occurred in the past is likely to be a reliable guide as to what will happen in the future: Mouflih v Minister for Home Affairs (2019) 168 ALD 148 [55] (by reference to Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575); Ogbonna v Minister for Immigration and Border Protection (2018) 261 FCR 385 at [24] (by reference to Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81); Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595 at 618 [71] to [79]. 27 Although Mr Zyambo had previously expressed remorse and a commitment to rehabilitation, which the Tribunal considered to be genuine, he had unsuccessfully tried to live a drug and crime free life. His repeated failed attempts to do so tended to support the unlikelihood of his rehabilitation. It might also be observed that the periods during which Mr Zyambo was not involved with drugs and drug-related crime were also those periods of his incarceration which, in his circumstances, represented a protective environment which does not exist when he is in the community. 28 Ultimately, the evidence of Mr Zyambo's history of offending reveals that, despite his attempts and the attempts of his relatives to restrain him, he has always returned to drug use and the commission of further offences. 29 The Tribunal noted all of the above matters and considered and analysed Mr Zyambo's lengthy criminal history in seeking to ascertain the likelihood of whether he would offend in the future. Its conclusion that he would do so was wholly supported by the evidence and there was nothing irrational or illogical about it. 30 In the course of the appeal, Mr Zyambo acknowledged his lengthy criminal history and sought to blame it on the lack of rehabilitation received by him in jail. He claimed that his sentences were of insufficient length to allow him to undertake treatment which would enable him to remain free of drugs and crime. Whilst this might be accepted, it does not undermine the Tribunal's conclusion that there was a high risk that he would resume drug use and reoffend in the future were he to be returned to the wider Australian community. Consequently, Ground one must fail.

Ground two - welfare and flawed information 31 In the absence of any submissions from Mr Zyambo, it can be inferred that this ground related to the issue of the extent of the impediments which he might suffer if he were removed from Australia and returned to Zambia. However, although the character of the complaint might be discerned, it is not possible to ascertain the substance of any criticism. Reference is made in the application for review to flawed assumptions and hasty generalisations, but the failure to identify any supports the rejection of this ground: CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [20] - [22]; Palu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1736 at [31] - [32]. 32 If one were to assume that this ground also sought to raise questions of illogicality or irrationality, the ground would nevertheless fail. The Tribunal assessed what information it had relating to this topic and was inclined to accept Mr Zyambo's contention that there was no or limited government welfare in Zambia, and that medical care and employment opportunities would be far less there than they are in Australia. Nevertheless, it observed that Mr Zyambo did not have any current medical conditions and that he had some prospects of employment. Ultimately it concluded that the consideration of the extent of impediments to him if he were removed was a consideration which weighed heavily in favour of revocation of the decision. In those circumstances, it is impossible to ascertain the nature or gravamen of Mr Zyambo's complaint in this respect. The issue was fully considered by the Tribunal, generally found to be in his favour, and there was no flaw in its reasoning or conclusion. 33 Nothing mentioned by Mr Zyambo in the course of the appeal sheds any light on the nature of any complaint in respect of this second ground of review and the application cannot be sustained on this basis.

Ground three - duration of stay in Australia and weight 34 By this ground, Mr Zyambo contends that the Tribunal placed insufficient weight on the issue of his duration of stay and ties to Australia in reaching its final conclusion. Again, the gravamen of the complaint is difficult to understand. Ultimately, the Tribunal concluded (at [115]) that it was satisfied that the strength, duration and nature of his ties to the Australian community warranted the allocation of a moderate level of weight in favour of revocation. It reached that conclusion after considering Mr Zyambo's circumstances, the length of time he had lived in Australia and his relationship with others in this country. Having properly considered the material before it relevant to the consideration, the weight which it gave to it is a matter for it and not, generally, reviewable by the Court. There was certainly no illogicality or irrationality in the Tribunal's decision in this respect. 35 Mr Zyambo was not able to add anything further to this issue in the course of the appeal. Overall, the Tribunal's consideration of the relevant material cannot be faulted. It took into account the relevant evidence and, despite there being very little which established that Mr Zyambo had any close ties with members of his family in Australia, it was prepared to allocate a moderate level of weight for this consideration in favour of revocation. In the circumstances, it was entitled to take that approach and did not err in doing so. 36 This ground of review should also fail.

Relevance of the decision in Makasa 37 During the course of the hearing, the Court raised with Counsel for the Minister the relevance and applicability of the recent decision of the High Court in Makasa. Although that decision concerned the exercise of power under s 501(2) of the Act, it is not wholly irrelevant to the present matter. At the conclusion of the hearing, the parties were invited to make written submissions with respect to this decision. Counsel for the Minister duly supplied the Court with helpful and balanced submissions. Mr Zyambo did not do so, although there is no criticism of him on that account. 38 In Makasa, the Tribunal had set aside a prior decision of the Minister's delegate to cancel the visa of Mr Makasa pursuant to s 501(2) (on the basis that it was reasonably suspected that he did not pass the character test in s 501(6)) and substituted a decision that his visa should not be cancelled. Some six years later, the Minister purported to re-exercise the power to cancel the visa pursuant to s 501(2) on the same basis. In each case, the foundation for the suspicion enlivening the power pursuant to s 501(2) was the same instance of Mr Makasa being sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)). The question before the High Court was whether the Minister could rely upon evidence as establishing that suspicion after an earlier cancellation of the visa pursuant to the same provision and relying on precisely the same evidence had been set aside by the Tribunal and a decision that the visa should not be cancelled substituted in its place. 39 After considering the relevant provisions of the Act, as well as the operation of s 33(1) of the Acts Interpretation Act 1901 (Cth), the High Court concluded that the Minister could not re-exercise the power under s 501(2) based on the same evidence. However, the Court did not conclude that where new factors arose they, alone or together with past matters, may not legitimately have a cumulative impact on the conclusion as to whether a visa holder does or does not pass a character test. The Court said (at [48] and [49]): 48 Turning then to the scheme of the Act and the AAT Act, it is important at the outset to recognise that nothing in the legislative scheme indicates an intention to displace the application of s 33(1) of the AI Act to the power conferred by s 501(2) of the Act to the extent that subsequent events or further information not previously before the Minister or a delegate provide a different factual basis upon which to form a reasonable suspicion that a visa holder does not pass the character test. A new sentence of imprisonment amounting by operation of s 501(7)(c), or contributing by operation of s 501(7)(d), to the coming into existence of a new substantial criminal record within the meaning of s 501(6)(a) is an example. A new conviction providing a reasonable basis for making a revised assessment of the visa holder's "character" − his or her "enduring moral qualities" − under s 501(6)(c) is another example. Section 501(6)(c) was not argued to be engaged in this appeal. 49 To the extent that the scheme of the Act and the AAT Act exhibit an intention contrary to the application of s 33(1) of the AI Act to the power conferred by s 501(2) of the Act, absent subsequent events or further information providing a different factual basis for the formation of a reasonable suspicion that a visa holder does not pass the character test, such an intention emerges by reference to two principal considerations. One is narrower in its ambit and arises from the generic operation of the AAT Act; the other is broader in its ambit and specific to the relationship between s 501(2) and s 501A of the Act. (Footnotes omitted). 40 The Court thereafter considered what might be the unusual operation of the Act were the Minister to be entitled to make the decision to cancel a visa on precisely the same grounds as a decision which was previously revoked by the Tribunal, observing (at [50] and [51]): 50 Looking to the generic operation of the AAT Act, an intention not to allow further re-exercise of a power by a primary decision-maker after re-exercise of that power by the AAT under s 43(1)(b) or (c)(i) of the AAT Act on review of an earlier exercise of power by the primary decision-maker is inherent in the nature of the merits review function for which it is the design of s 43 of the AAT Act to make provision. The merits review function of the AAT is "to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review". The function of the AAT, in other words, is "to do over again" that which was done by the primary decision-maker. The function would be reduced to a mockery were the subject-matter of the decision made by the AAT on review able to be revisited by the primary decision-maker in the unqualified re-exercise of the same statutory power already re-exercised by the AAT in the conduct of the review. 51 The object of s 43(6) of the AAT Act, in deeming a decision made by the AAT under s 43(1)(b) or (c)(i) in variation of or substitution for the decision under review to be a decision of the primary decision-maker, is to bring finality to the administrative decision-making process. Like any other legal fiction, the deeming effected by s 43(6) of the AAT Act cannot be taken to have a legal operation beyond that required to achieve the object of its enactment. Section 43(6) cannot be taken so far as to be read as requiring an exercise of power by the AAT to be treated as no more than an exercise of power by the primary decision-maker which the primary decision-maker is able by operation of s 33(1) of the AI Act simply to re-exercise. (Footnotes omitted). 41 The Court then considered powers conferred by s 501A of the Act, powers which are in terms similar to ss 501(2) and 501(3) and which specifically permit the Minister to override the Tribunal's decision and cancel a visa. Significantly, the Court observed that the specific powers conferred by s 501A could be exercised by the Minister "without need for any change to the factual basis on which the delegate or the [Tribunal] formed a reasonable suspicion" which was the foundation for the previous decision: at [53]. Finally, the Court observed that: 55 Hence, s 501A of the Act must be read as manifesting a legislative intention to exclude re-exercise by the Minister or a delegate of the more general power conferred by s 501(2) of the Act, read in light of s 33(1) of the AI Act, to revisit and reverse a previous decision of a delegate not to cancel a visa made in the exercise of the power conferred by s 501(2) where there has been no change to the factual basis on which the previous decision-maker, be it the Minister or a delegate or the AAT, formed a reasonable suspicion that the visa holder did not pass the character test in making the previous decision not to cancel a visa. 42 When read literally, the observations of the High Court in relation to s 501(2) might be regarded as applying to the circumstances of this case and the power in s 501(3A). Here, the foundation for the state of satisfaction that Mr Zyambo did not pass the character test was his sentence in 2006. However, that was twice previously relied upon as basis for the formation of the same state of satisfaction and, in part, for the exercise of the power to cancel Mr Zyambo's visa pursuant to s 501(3A). On each occasion, the cancellation was revoked, though not by the Tribunal. If the decision in Makasa is to the effect that material establishing a particular state of mind in relation to the character test cannot be relied on again once an earlier cancellation based on that same material and state of mind has been revoked or set aside, it may mean in this case that there was no valid cancellation of Mr Zyambo's visa. 43 However, the structure and operation of s 501(3A), being the relevant power in the present case, is substantially different to that of s 501(2), the power considered in Makasa. The essential difference is that s 501(3A) requires the existence of two matters before the Minister is compelled to cancel a visa. The first is the subjective jurisdictional fact that the Minister is satisfied that the visa holder does not pass the character test because they have a substantial criminal record (s 501(7)(a), (b) or (c)) or have committed a sexual offence against a child (s 501(7)(e)). The second is that the person is serving a term of imprisonment on a full time basis. It follows that the mere formation of the state of satisfaction as to the failure to pass the character test is not sufficient to enliven the power to cancel. It also means that the matters in s 501(3A)(a) and (b) may be satisfied on different occasions. That is to say, as were the circumstances in this case, satisfaction that a person does not pass the character test by reason of the matters in s 501(3A)(a) may arise at one time, but satisfaction of s 501(3A)(b) may arise on multiple later occasions by reason of imprisonment for other offences. It may also arise at the same time by reason of imprisonment for the same offences. So long as both pre-conditions are satisfied, the power is enlivened. Moreover, every time they are satisfied, the obligation on the Minister to cancel the visa arises, subject to a limitation discussed below. 44 Here, although the Minister's satisfaction that Mr Zyambo did not pass the character test for the purposes of s 501(3A)(a) was founded on his sentence in 2006, it was his incarceration for five months in 2019 that completed the circumstances enlivening the Minister's obligation to cancel. That remained the case even though Mr Zyambo's failure to pass the character test by reason of his sentence in 2006 had, together with earlier terms of imprisonment, caused the earlier cancellations of his visa in 2015 and again in 2018 (which were subsequently revoked). 45 It follows that the decision in Makasa cannot be directly applied to s 501(3A), at least to the extent to which its focus is on reaching a particular state of mind in respect of passing the character test. Perhaps the point in Makasa might be reformulated to say that the circumstances which enliven the Minister's power to cancel a visa are spent once a decision based on those circumstances has been revoked or set aside by the Tribunal. That is not to say that new matters, taken with some or all of those prior circumstances, cannot give rise to a new foundation for the exercise of power, but the Minister may not rely on precisely the same circumstances on the second occasion. 46 In relation to s 501(3A), it would follow that the Minister could not rely upon the same factors as satisfying s 501(3A)(a) and (b) if he had previously relied upon them to cancel a visa and the Tribunal had then revoked that cancellation. That was not the position in the present case. Here, the matters which enlivened the power to cancel were the delegate's satisfaction that Mr Zyambo did not pass the character test by reason of his sentence in 2006 (s 501(3A)(a)) and his service of a subsequent sentence of imprisonment in 2019 (s 501(3A)(b)). This combination of matters had not been relied upon previously to cancel the visa. 47 It follows that the Minister's careful and thoughtful submissions on this issue should be accepted. The decision in Makasa has no application to the operation of s 501(3A) in the circumstances of this case.

Conclusion 48 The necessary consequence of the foregoing is that none of Mr Zyambo's grounds in his application can succeed. The application for judicial review must be dismissed. 49 There is no reason why the Minister is not entitled to an order for costs in his favour. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington.