Federal Court of Australia Kaye v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 604 Review of: Kaye v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4820 File number: QUD 6 of 2021 Judgment of: LOGAN J Date of judgment: 27 May 2021 Catchwords: MIGRATION – application for judicial review of a decision of Administrative Appeals Tribunal (Tribunal) affirming decision of Minister's delegate to not revoke mandatory cancellation of applicant's visa – whether any jurisdictional error in decision of Tribunal to refuse to revoke cancellation decision – where applicant unable to show any material factual error on the part of the Tribunal Legislation: Constitution (Cth) Migration Act 1958 (Cth) s 499 Cases cited: Attorney General (NSW) v Quin (1990) 170 CLR 1 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 Love v Commonwealth (2020) 94 ALJR 198 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Home Affairs v DUA16 (2020) 95 ALJR 54 Minister for Immigration and Border Protection v Makasa (2021) 386 ALR 200 Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Re Patterson; Ex parte Taylor (2001) 207 CLR 391 Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 Division: General Division Registry: Queensland National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 31 Date of hearing: 27 May 2021 Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Ms A Wheatley QC with Mr J Byrnes Solicitor for the First Respondent: Minter Ellison Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS QUD 6 of 2021 BETWEEN: CHRISTIAN KAYE Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: LOGAN J DATE OF ORDER: 27 MAY 2021 THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the first respondent's costs of and incidental to the application, to be fixed by a registrar if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) LOGAN J: 1 Mr Christian Kaye (Mr Kaye) is a citizen both of the United Kingdom, where he was born, as well as New Zealand, to which place he migrated with his family when he was about seven years of age. About a decade later, in turn, Mr Kaye came to Australia. He entered Australia lawfully, as New Zealanders without any particular criminal record can so easily do. His most recent visa was a Class TY Subclass 444 Special Category (Temporary) visa, which was issued to him on 10 December 2018. That he was, in 2018, the recipient of a visa is indicative of his citizenship status; he is not a citizen of Australia but, rather, a dual national of the countries mentioned. Mr Kaye is, on any view, also a British subject. There was a time, and that time is as recent as earlier in the present century, when Mr Kaye's status as a British subject would have been regarded by the High Court as having the result that he was not an alien: see Re Patterson; Ex parte Taylor (2001) 207 CLR 391. It is the term subject of the Queen which one finds in the Constitution (Cth). There is, though, also legislative power to make laws with respect to citizenship. That power was taken up long ago, so as to create by statute the status of Australian citizen. Subject to a consideration arising from an ability to claim Native Title, a person who is not an Australian citizen is an alien: see Love v Commonwealth (2020) 94 ALJR 198. The view that a British subject is not an alien no longer prevails in the High Court: see Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28. 2 This recollection of a constitutional interpretation controversy is pertinent in Mr Kaye's case because, as a result of offending conduct in late 2014 and related sentencing, his visa was cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) on what one might call character grounds. The Minister's delegate declined to revoke the cancellation. Mr Kaye, in turn, sought the review of that decision by the Administrative Appeals Tribunal (Tribunal). 3 On 30 November 2020, for reasons given in writing that day, the Tribunal decided to affirm the decision made by the Minister's delegate on 3 September 2020 not to revoke the cancellation of Mr Kaye's visa. All of that would, of course, have been quite inapplicable had Mr Kaye not had the status of alien, but the position is that he does and that the Tribunal's decision stands, unless, and until, it is set aside on the basis of demonstrated jurisdictional error. Mr Kaye has sought to do this by the present proceeding in the Court's original jurisdiction. 4 Mr Kaye was initially legally represented but came to act on his own behalf. It is fair to say that the ground of review that was originally pleaded evolved as a result of Mr Kaye's coming to act for himself and then reformulating the basis of the alleged jurisdictional errors. That reformulation was summarised in an email of 26 May 2021 which Mr Kaye sent both to the Court and to the Minister's solicitors. With the attention to model litigant obligations and the interests of justice which the Court is entitled to expect from the Minister, the Minister has, through his counsel, adopted the commendably fair approach of treating what is set out in that email as amending the grounds of review. 5 It is desirable to set out the particular points advanced by Mr Kaye in that email: Please see below points which I will elaborate further on, during the hearing on Thursday. 1) The risk placed on the Applicant (Me) is unreasonable and irrational. They have accepted low risk but then said I'm a real risk. Despite the Tribunals findings and accept low risk, they still see me as it would seem a serious risk, not a real risk. 2) Dr Coyle's report is dismissed due to not being able to be cross examined. However Dr Coyle's report is accepted by the sentencing judge and also mentioned in the transcripts. The Tribunal is not bound by the rule of evidence, and can rely on any form of evidence to come to its conclusions, therefore I feel this should have been considered. His report also arrives at the same conclusion as Dr Yoxall, that being low-risk. Just because he wasn't there to be cross examined, shouldn't mean his evidence be dismissed. The labelling of the report by the Tribunal or the the Minsters lawyers as 'Peachy and fanciful' should not apply or be accepted. Dr Coyle is highly qualified, certainly more so than Dr Yoxall, extremely experienced and an expert in his field. So how can the tribunal simply dismiss this? Seems unfair, and unreasonable. 3) Their is no accurate trend of re-offending and therefore this can be seen as not relevant. Certainly in the view of risk to community or protection of the Australian community. I had not reoffended for 4 years on bail, and as it be, now technically 6 1/2 years since any blemish (albeit a minor breach of bail due to not signing in) 4 years on bail and 30 months in a custodial environment. Which are highly volatile and hostile. Wouldn't a person of real risk, with a trend of violence had some sort of offending or violation in these environments. Surely this would have been evident in the past 6 1/2 years? It is further more a clear indication of my efforts of rehabilitation and being able to manage myself in very stressful situations under copious amounts of stress. 4) The weight attributed to my strength nature and ties, only moderate? No consideration of Jet the young lady with a severe disability or impact on Tracey Thomas her Mother. I feel the impact on my sister and my parents were not taken into consideration correctly. As I feel only moderate weight is an unfair weight attribution. This in turn makes me feel like the weight given and applied in different areas of the AAT's findings as unreasonable and unfair. 5) The error made at the AAT during cross examination of Tracey Thomas. The findings was that future employment was dependent on a criminal check. However it was made clear by Tracey that I did not need a blue or yellow card. (This is in the transcript) This in turn means that I have employment to return to and It's also been found that as she is not an organization, the blue or yellow card requirement does not apply. It just so happens that her current carer has, on the 20th May, resigned and Jet now has no one to replace her. That said, there is no consideration on the hardship of Jet and Tracey, and the actual report from AAT stating that I my employment was dependent on a police check was not correct. Therefore they were simply dismissed or forgotten about because they had found a carer during this time of incarceration/detention. 6) My parents and the likeliness of seeing them again, would actually be a permanent separation from me. My dad is so physically unwell I would never see him again. My mother also medically unwell and they are unfortunately on the pension so they would not be able to travel to see me. Due to financial and heath reasons, which are so severe, I would be saying goodbye forever. 7) The overall findings of the above and conclusion of the AAT decision/report is that this wasn't just one error, but a number of important factors that weren't considered or weighed accurately. Therefore I feel that the overall judgment was unfairly weighed against me. I feel that it was unreasonable given everything that was put forward in evidence, not only in Character references, but rehabilitation efforts and courses, 2 x forensic psychologist reports and also 1presentence report, 4 years on bail without any serious offending, clean jail history (plus now 13months in detention without demur), 6months volunteering work with disabled and elderly people, active member of the community, long standing work history, church member, and many other contributions during my time in Australia and importantly the severe impact on everyone in my life both loved ones and work colleagues, not correctly considered. I feel that I should be afforded another consideration in light of the above. I feel that the aforementioned errors, even though some factual, amount to Jurisdictional Error. [sic] 6 Mr Kaye did indeed elaborate on those points, both by way of an affidavit, which was more in the nature of a submission in writing but none the worse for that, as well as in oral submissions which were notable for their courtesy, eloquence and, within the limits of a lay person's knowledge of public law principle, relevant. 7 As I observed during the course of submissions and without intending any disrespect, either to Mr Kaye or the victims, the particular offences which gave rise to the ability to cancel his visa might be described as crimes passionnel. That is in no way to diminish their seriousness, only to put the occasion for their commission in context. 8 The particular offences are accurately described by the Tribunal, at [41], and following in the Tribunal's reasons. The Tribunal extracts of the sentencing observations made in the District Court by his Honour Judge Kent QC, at [52]. Plainly enough, the offence of doing grievous bodily harm there described was regarded by the Court as serious, warranting a head sentence of four years imprisonment. It is also plain enough, and the Tribunal's reasons disclosed that the Tribunal is well seized of this, that the sentencing judge regarded Mr Kaye as having a low risk of reoffending. That particular view, to which the sentencing judge came, did not, of course, bind the Tribunal but there was an overlap in terms of the evidentiary foundation for the learned sentencing judge's conclusion, as well as material before the Tribunal. That overlap took the form of opinion evidence in writing from a Professor Coyle. 9 One of the bases upon which Mr Kaye alleges jurisdictional error on the part of the Tribunal concerns the way in which the Tribunal dealt with Professor Coyle's evidentiary evidence. Professor Coyle did not give oral evidence in the proceedings before the Tribunal. The Tribunal stated, at [99]: 99. The Tribunal is of the view that the findings of Professor Coyle should be treated cautiously. This is particularly so as (1) the Tribunal has not heard evidence from Professor Coyle, nor have his findings been subject to cross-examination; and (2) the concept that the Applicant will not commit any crime or other serious offence in the future is one which the Tribunal has serious reservation in affording measurable weight. Mr Kaye submitted that this, in effect, was dismissive of an opinion which warranted, particularly in light of its acceptance in the sentencing process, being given particular weight. 10 The Tribunal's stated reason is one which could permissibly be given for discounting the weight of Professor Coyle's opinions, relative to those given by, notably, a Dr Jacqueline Yoxall, who not only gave opinion evidence in writing but was also called to give oral evidence on Mr Kaye's behalf in the proceeding before the Tribunal. In effect, the Tribunal preferred Dr Yoxall's evidence, but did so on an intelligible basis in the sense that Dr Yoxall's evidence was the subject of particular oral exchange in the course of the Tribunal proceedings, which, obviously enough from the Tribunal's reasons, the Tribunal found of assistance. 11 Further, and in any event, the Tribunal's ultimate conclusion about the risk presented by Mr Kaye, in terms of reoffending, was not so very different, in any event, from the view reached by the sentencing judge on the basis of Professor Coyle's evidence, which was that he was a low risk. So I do not see that there is anything illogical or irrational about the discounting or the preference, which is apparent enough, as between evidence given by Professor Coyle and Dr Yoxall, which was before the Tribunal. 12 I should record that Mr Kaye sought to supplement the views which the Tribunal had from Dr Yoxall by way of a further letter from her, which was exhibited to an affidavit upon which he sought to rely in the present proceeding. The difficulty about that, as highlighted by the objection made by the Minister, was that that particular letter did not form part of the material before the Tribunal and it is no part of the Court's function to make adjudications on the merits in cases such as this. 13 The end result of the Tribunal's evaluation of expert evidence and the circumstances of the offending conduct in later 2014, as well as earlier offending conduct, is to be found in its reasons in respect of a conclusion against "Primary Consideration A" (see the Ministerial Direction No 79 made under s 499 of the Migration Act 1958 (Cth) (Migration Act)). At [117], the Tribunal states: 117. The Tribunal has had regard to the provisions of paragraph 13.1.1 and 13.1.2 of the Direction, as well as the principals outlined in paragraph 6.3. The Tribunal finds: (i) the nature of the Applicant's offending is viewed extremely seriously; (ii) there is a low but real risk that the Applicant's offending would likely pose significant harm to the Australian community (not precluding a risk of catastrophic harm to a future victim); and (iii) that the risk posed by the Applicant re-offending is so serious that this risk posed is unacceptable. Mr Kaye highlighted what he submitted was an illogical incongruity, as between subparagraphs 117(ii) and 117(iii). That submission was, with respect, by no means a groundless one. 14 To read [117] in isolation does, with all respect to the Tribunal, sound something of an interrogative note as to how subparagraphs 117 (ii) and 177 (iii) could rationally stand together. In approaching the answer to that, it is necessary to bear in mind the emphatic endorsement by the High Court, in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272, of observations earlier made by the Full Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, at 287, to the effect that the reasons of an administrator are not to be narrowly read with an eye for error. In other words, it is only natural, where reasons are furnished, for those reasons to be scrutinised. After all, they are meant to expose, for the benefit of the person affected by the decision, why the decision has been made. However, that their primary purpose is informative, it is to be remembered in terms of unhappy phraseology or absence of eloquent precision. For the judicial branch to be over-exacting, in terms of the standard of an administrator's reasons, would be to make the business of the conduct of public administration well-nigh impossible. So one must read [117] with these sentiments firmly in mind. 15 My initial reaction upon reading [117] was exactly in accordance with the submission made to me by Mr Kaye. On reflecting, however, on that paragraph in the context of the reasons as a whole and the Tribunal's detailed reference to the late 2014 offences, to opinions which have been expressed about risk and also to earlier, albeit relatively minor, offending conduct by Mr Kaye, it is possible, reasonably and rationally, in my view, to reconcile what is said in subparagraphs 117(ii) and (iii). The reconciliation lies in an appreciation that the Tribunal is endeavouring, perhaps, with respect, clumsily, to do no more than highlight that there is a low risk. If that risk is manifested the result, having regard to past conduct, is likely to be "catastrophic" (Tribunal's description), hence the view that the Tribunal was entitled to reach that the risk of reoffending is so serious as not to be acceptable. 16 The Tribunal's task is a difficult one in the sense that Mr Kaye, as with any applicant, is entitled to expect that the Tribunal will approach the task of conducting its review independently from the Minister. Equally, Tribunal members enjoy no security of tenure. It is certainly not unknown for decisions which favour an applicant to attract adverse publicity. So there is undoubtedly, in my view, a degree of moral courage involved on the part of Tribunal members in discharging their duties faithfully. For all that, the view that the Tribunal reached in relation to risk is one which I am obliged to accept as reasonably open and not irrationally or illogically expressed. Contrary, as I have indicated, to my first blush reaction. 17 Mr Kaye also submitted that there was a material error of fact evident in the Tribunal's reasons in relation to a conclusion concerning his prospect of again undertaking, if permitted to remain in Australia, work as a carer for a severely disabled person. The evidence before the Tribunal disclosed that Mr Kaye had, for some four months, undertaken, in the employ of the person's mother, obviously valued work in caring for a severely disabled person. The Tribunal accepted that there was a prospect, if Mr Kaye was permitted to remain in Australia, of his again undertaking such work but sounded an interrogative note in relation to whether that would be possible, having regard to his criminal history. 18 In the course of submissions, both by Mr Kaye as well as on behalf of the Minister, I was taken to the relevant part of the evidence given by the parent to the Tribunal. When one reads that evidence as a whole, there is support, in my view, revealed for the Tribunal's voicing the interrogative note one finds in the reasons. It looks to be the case that the parent, hitherto in terms of privately employing carers, did not need to have either what is called a blue or yellow card before so doing. But it does also look as if, in terms of any taking up of financial support through the National Disability Insurance Scheme, that there is an element of uncertainty as to whether such cards, and with them criminal history vetting, would be needed. So the state of the evidence, whilst it revealed hitherto no need for such cards with private employment, was such as to admit, reasonably, of the Tribunal's sounding an interrogative note. 19 Further, and this takes up what may have been a passing submission but it was a submission nonetheless in the course of Mr Kaye's oral submissions, that the question of whether there was such a need could have been answered in short order. That may well be so, but the Tribunal was not, in my view, in the circumstances itself under any duty to make that enquiry. If there were a gap, the gap is one which could have been filled equally by a supplementary submission made on Mr Kaye's behalf. Less to be thought that that is an adverse criticism of the way his case was presented in the Tribunal, I should record that it appears that his case was well-made, both in terms of submission as well as supporting evidentiary materials. Hindsight can sometimes be something of a false prophet in terms of what else could have been undertaken. So I do not see any substance in the proposition that there was a factual error in relation to the prospect of further employment in Australia as a carer. 20 There is a further submission Mr Kaye made in terms of a failure to take into account a relevant consideration. That consideration being what is expressed in [13.1.1] of Ministerial Direction No 79. Section 499 of the Migration Act obliged the Tribunal in conducting its review to take into account considerations specified in a ministerial direction, so Mr Kaye's submission that a failure to take into account a relevant consideration was reflective of a potential jurisdictional error ground. 21 The particular error was said to be one which flowed from a failure to take into account that after the awful events of December 2014, and save for what looks to have been an aberration in relation to bail, Mr Kaye had lived a blameless life. The latter, on the material before the Tribunal, is undoubtedly true, but the focus which the Tribunal gave didn't show, in my view, a failure to take into account the existence or otherwise of the pattern of particular offending behaviour, such as what might show non-compliance with the consideration found in [13.1.1]. 22 It is necessary in judicial review to concede to an administrative decision maker the assigned role of evaluating facts of the merits. Mr Kaye's earlier offending conduct did expose a problem with drinking to excess on occasion. It also appears that at least one of the incidents of the more grave criminal conduct was, to use a term, fuelled by alcohol. So it was reasonably open for the Tribunal to have reached a view that the particular assaults, aggravated and otherwise, in December did show an elevated pattern, in singular circumstances after drinking, of offending behaviour. It is truly not for me, on judicial review, to in any way second guess or alter factual evaluations made by the Tribunal. 23 That then leaves an overarching submission which Mr Kaye made, which was, in terms of outcome, that the result of a failure to revoke cancellation was, in all of the circumstances revealed by the material before the Tribunal, unreasonable. 24 There is much to be said in Mr Kaye's favour and it was said, both in submission and in terms of supporting material, in the evidence before the Tribunal. His parents, who are Australian residents, are not well. That they enjoy some support from siblings of Mr Kaye, but for all that they certainly, as revealed by the evidence, were reliant also on Mr Kaye. The prospect of their being sufficiently well or financially resourced to visit him in New Zealand ever again was a point made on his behalf. His siblings are Australian residents. Further, it is plain enough from material before the Tribunal, that he has particulars ties of friendship here as well. 25 In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend), at 41, Sir Anthony Mason observed, of the jurisdictional error ground of unreasonableness, that "both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance". That observation has never been disapproved of High Court. That said, it is a rare and unusual case where an evaluation of competing considerations yields conclusion of unreasonableness. Last year in Minister for Home Affairs v DUA16 (2020) 95 ALJR 54, at [26], the High Court emphasised that the threshold for a conclusion as to unreasonableness is "usually high" and that "the conclusion is drawn 'from the facts and from the matters falling for consideration in the exercise of the statutory power'". 26 In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, at [10], Kiefel CJ stated: 10 In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. … [footnote references omitted] 27 Also in that case, at [82], Nettle and Gordon JJ stated in their joint judgment: 82 Nor is the abuse of statutory power limited to a decision which may be described as "manifestly unreasonable", or to what may be described as an irrational, if not bizarre, decision that is so legal unreasonable that no reasonable person could have arrived at it. A conclusion of unreasonableness may be outcome focused – where, for instance, there is no "evident and intelligible justification" for a decision. As Gageler J explained in Minister for Immigration v Li, "[r]eview by a court of the reasonableness of a decision made by another repository power, 'is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process' but also with 'whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts of law'". [footnote references omitted] 28 I had thought that statements made in the joint judgment in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, had signalled that in Australia a view more akin to that which prevails in the United Kingdom in relation to proportionality may be favoured by the High Court. But that view did not survive appeal in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Stretton). Stretton was recently cited with express approval as to the content of unreasonableness by the High Court in Minister for Immigration and Border Protection v Makasa (2021) 386 ALR 200, at [40] (fn 18). 29 So whatever, with respect, one makes these days of Sir Anthony Mason's observations in Peko-Wallsend, it must be tempered with the knowledge that, whilst the decision does not have to be irrational or illogical, it nonetheless, if unreasonableness is to be found in outcome, must be one which is extreme. In my view, to do other than conclude that the Tribunal's decision here was within a range of acceptable outcomes, and hence not unreasonable, would be to depart from, indeed be defiant of, the reasoning evident in Stretton. That is something I must not do. 30 Mr Kaye could be forgiven for thinking, as might others, as to what sort of case, if any, there would be where there is a conceded low risk, albeit after a grave crime but one which was committed in singular circumstances, could ever result in other than a decision which is regarded as reasonable in terms of deciding not to revoke a visa cancellation. There is, as I have observed, much to be said in Mr Kaye's favour in terms of his ties with Australia but I must concede to the Tribunal, its statutory role of making such evaluations. To do otherwise would be to go beyond the limits of judicial review as described by Sir Gerard Brennan in Attorney General (NSW) v Quin (1990) 170 CLR 1. It is no part of the Court's function to make factual merits-based decisions. 31 In one way or another, what I have canvassed reflects the essence of the jurisdictional error grievances so eloquently put by Mr Kaye in his oral submissions, which provided clarity and focus in respect of those in his submission affidavit and in the email from which I have quoted. This is just one of those hard cases in which the Tribunal has reached a view which I am obliged, in law, to concede was open to the Tribunal. The result, then, is that the application must be dismissed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate: Dated: 3 June 2021