Federal Court of Australia NLHN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1001 Review of: Application for judicial review: NLHN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 502 File number: NSD 343 of 2021 Judgment of: ABRAHAM J Date of judgment: 24 August 2021 Catchwords: MIGRATION – cancellation of Class TY, Subclass 444 Special Category (Temporary) visa of New Zealand citizen under s 501(3A) of Migration Act 1958 (Cth) – where applicant failed to pass character test on basis that he has a "substantial criminal record" – application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming a decision of the delegate not to revoke cancellation – whether Tribunal failed to adequately consider factors raised by applicant in regard to expectations of Australian community – whether Tribunal formed its own views of expectations of Australian community – FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 considered – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss 501, 501(3A), 501(6), 501(6)(a), 501(7)(c), 501CA, 501CA(3), 501CA(4) Direction no. 79 –Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA Cases cited: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 NLHN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 502 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 41 Date of hearing: 5 August 2021 Counsel for the Applicant: Ms E Buzo Solicitor for the Applicant: Southwest Migration and Legal Services Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Minter Ellison Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs. ORDERS NSD 343 of 2021 BETWEEN: NLHN Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: ABRAHAM J DATE OF ORDER: 24 AUGUST 2021 THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant is to pay the costs of the first respondent, to be agreed to assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ABRAHAM J 1 The applicant, who is a citizen of New Zealand, had his visa cancelled on 28 February 2019, under s 501(3A) of the Migration Act 1958 (Cth) on the basis that he did not pass the "character test" because he had a "substantial criminal record," having been sentenced to a term of imprisonment of 12 months or more: s 501(6)(a) and 501(7)(c) of the Migration Act. 2 On 28 March 2019, the applicant made representations to have the cancellation revoked under s 501CA of the Migration Act. On 23 December 2020, the delegate of the first respondent (respondent) found that the discretion under s 501CA(4) to revoke the cancellation under s 501(3A) was not enlivened. On 1 January 2021, the applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the delegate's decision. On 16 March 2021 the Tribunal affirmed the delegate's decision: NLHN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 502. This is an application under s 476A(1)(b) of the Migration Act seeking review of that decision of the Tribunal. 3 Although two grounds of review were initially alleged in the applicant's originating application, the applicant confirmed in his written submissions that only the second ground would be pressed. The single ground of appeal that is advanced related to the consideration in "Direction no. 79 –Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA" (Direction no. 79) in respect to the expectations of the Australian community. This ground somewhat evolved at the hearing of the matter. 4 For the reasons below, the application is dismissed. Tribunal 5 The Tribunal at [5] set out the key issues as follows: (1) whether or not the applicant made representations in accordance with the invitation issued under s 501CA(3); and (2) whether the applicant passed the character test (as defined in s 501(6)), or if the applicant did not pass the character test, whether there was another reason why the cancellation decision should be revoked. 6 It was accepted that the applicant made representations to the delegate: at [6]. 7 The Tribunal found that the applicant did not satisfy the character test in s 501(6)(a) on the basis that he has a "substantial criminal record" as defined in s 501(7)(c), having been sentenced to a term of imprisonment of 12 months or more: at [7]. 8 Noting that the applicant did not satisfy the character test, the Tribunal then considered whether or not there was another reason why the cancellation decision should be revoked. 9 The Tribunal noted that the delegate was required to apply Direction no. 79 in exercising the discretion to consider whether to revoke the mandatory cancellation of the applicant's visa under s 501CA: at [9]-[10]. The Tribunal observed that Pt C of Direction no. 79 contains three "primary considerations" and five "other considerations" to be taken into account in this regard: at [11]. The Tribunal's consideration of these factors is summarised below. 10 First, the Tribunal considered the protection of the Australian community: at [12]-[46]. The Tribunal noted that there are two relevant matters in this regard: (i) the nature and seriousness of the applicant's conduct; and (ii) the risk to the Australian community should the applicant commit further offences or engage in other serious conduct: at [14]. 11 With respect to the first factor, the Tribunal found at [27], after describing the history of the applicant's offending conduct (footnotes omitted): The nature of the offences committed over a period of about 10 years, the frequency of offending, the sentences imposed by the courts, including increasingly longer periods of imprisonment, the increasing seriousness of offending, the cumulative effect of repeat offending, and that the Applicant re-offended after being formally warned in writing about the consequences of further offending in terms of his migration status, demonstrate that the Applicant's offending was very serious. The nature of his offending demonstrates a disdain for Australian law. 12 With respect to the second factor, the Tribunal at [28] noted that Direction no. 79 provides that there are two further issues for consideration: (i) the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and (ii) the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence concerning the risk of the applicant re-offending. 13 At [29], the Tribunal concluded that: The nature of the harm to individuals and to the Australian community if the Applicant reoffends is serious. His offences include aggravated break and enter, driving offences, assaulting police and his father, and drug trafficking, which cause mental and physical harm to individuals and cost to law enforcement and emergency services. 14 After describing the evidence put forward by the applicant, including from his psychologist, as to the likelihood of his re-offending and rehabilitative prospects, the Tribunal found at [45]: As an adult, the Applicant has not breached parole. Overall, his behaviour in prison and detention has been quite good, given his history. He plans to undertake programs and courses that address his criminal offending behaviours and attitudes. He is untested in the community. If he breaches his parole, he may return to prison. Assuming that does not happen, I am concerned that when the constraint of parole ends, he will again seek out anti-social peers and resume substance abuse. In the past, his family and his partner have tried unsuccessfully to stop him doing that. His previous behaviour does not instil confidence in his future conduct. 15 At [46], the Tribunal concluded that "the protection of the Australian community weighs heavily against revocation of the mandatory visa cancellation". 16 Second, the Tribunal considered the best interests of minor children in Australia: at [47]-[60]. In relation to the applicant's daughter, the Tribunal considered that her best interests would be served by the revocation of the cancellation decision and this consideration "weighs heavily" in favour of revocation: at [56]. In regards to the applicant's two younger brothers, the Tribunal considered that their best interests would be best served by the applicant remaining in Australia, and this consideration "weighs moderately" in favour of revocation: at [57]. Lastly, concerning one of the applicant's nephews, in relation to whom the applicant is a "father figure", the Tribunal found that his best interests "weigh moderately" in favour of revocation: at [59]. In respect of the applicant's other nieces and nephews, the Tribunal accepted that the applicant did not have a parental role in relation to each of them and their best interests only "weigh slightly" in favour of revocation: at [60]. 17 Third, the Tribunal considered the expectations of the Australian community: at [61]-[66]. After setting out the legal principles and relevant factors in this case, the Tribunal found that "the expectations of the Australian community weigh heavily against revocation of the visa cancellation": at [66]. It is this part of the Tribunal's reasons that is the subject of the application. 18 In relation to the "other considerations" that [14] of Direction no. 79 directs a decision maker to consider, the Tribunal recognised that two matters were relevant: (i) the strength, nature and duration of the applicant's ties to Australia; and (ii) the extent of any impediments that the applicant might face if removed from Australia to New Zealand, in establishing themselves and maintaining basic living standards: at [67]-[82]. 19 In relation to the strength, nature and duration of the applicant's ties to Australia, the Tribunal considered the applicant's family circumstances in the context of his high risk of re-offending, and found that this factor weighs in favour of revocation: at [67]-[74]. In respect to the impediments that the applicant might face if removed from Australia, the Tribunal considered that this factor also weighs in favour of revocation, finding that although the applicant may have significant difficulty establishing himself in New Zealand, this difficulty was not "extreme" as the applicant had contended: at [81]. The Tribunal reached this conclusion considering, inter alia, the length of time the applicant has been in Australia, his lack of support networks in New Zealand compared to Australia, the potential difficulty he might face gaining employment in New Zealand given his criminal history and the similar social and cultural circumstances in New Zealand to Australia: at [75]-[82]. 20 The Tribunal concluded at [83]: The considerations weighing against revoking the mandatory cancellation of the Applicant's visa are the protection of the Australian community and the expectations of the Australian community. Those weighing in favour of revocation are the best interests of several minor children in Australia, the strength, nature and duration of ties to Australia, and the extent of impediments if removed. The considerations weighing against revoking the mandatory cancellation of the Applicant's visa outweigh those weighing in favour of revocation. Consideration 21 Given the applicant's submission is directed to the Tribunal's consideration of the expectations of the Australian community, it is appropriate to recite that aspect of the Tribunal's reasoning. At [61]-[66] the Tribunal stated (footnotes omitted): [61] Expectations of the Australian Community is the third primary consideration. Paragraph 13.3(1) of Direction 79 sets out the expectations of the Australian community: The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. [62] Paragraph 13.3(1) of Direction 79 is analogous to paragraph 11.3(1) of Direction 65 which was considered by the Full Court of the Federal Court in FYBR v Minister for Home Affairs. At [67] Charlesworth J said in respect of "clause" 11.3: ....For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectations of the executive government of the day in respect of its subject matter. [63] Adopting the language of Stewart J, the content of the expectations of the Australian community expressed in paragraph 13.3 is: ... "If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive." [64] The weight to be attached to this consideration is a matter for the decision-maker to decide. As Stewart J observed at [103]: ... It is also incorrect to construe the community expectations as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker. [65] The Applicant's legal representative accepted that paragraph 13.3 of Direction 79 means that the Australian community expects non-citizens to obey Australian laws in Australia, but argued that the expectations of the community should be determined on the basis that the community is fully informed of all the facts of the matter and in this case would view the Applicant's situation with empathy and leniency given because he: Has been living in Australia for over 20 years since he was 8 years old, Has conceded his wrongdoing and is remorseful, Has sought rehabilitation for his aggression and drug problems in custody Has made positive contributions to Australia through employment, Has an 8-year-old daughter that has a need for her father, Is strongly supported by his partner, family and friends in Australia, Has no family or ties to New Zealand. [66] The question for me to determine is the weight to be given to this consideration. Taking all the circumstances of this case into account, I find that the expectations of the Australian community weigh heavily against revocation of the visa cancellation. 22 It is important to recall at the outset the ground of review is that "[t]he Tribunal erred amounting to jurisdictional error in its failure to consider the factors raised by the applicant [referred to in [65] of the reasons] that should be considered in the assessment of the expectations of the Australian community". 23 A proper reading of the reasons does not support that contention. 24 As the respondent correctly submitted, it is apparent at [66] that the Tribunal did not accept the applicant's submission that less weight should be given to the expectations of the community because they would allegedly view the applicant's situation with "empathy and leniency". The reference in [66] to the circumstances includes, as accepted by the applicant during the hearing, the seriousness of the applicant's offending. Earlier in its reasons, the Tribunal had undertaken a detailed examination of the offences and the circumstances in which they were committed. The Tribunal stated that it has taken into account those submissions relied on by the applicant recited in the preceding paragraph at [65]. The obvious inference from the reasons read as a whole, is that the Tribunal reached this conclusion as to the weight to be attached to this consideration, taking into account the applicant's submission as identified in [65], on the basis of the seriousness and frequency of the applicant's offending. The failure to refer in [66] to each of the factors relied on in the conclusion does not detract from that obvious inference, that the factors referred to in [65] were considered as part of the circumstances referred to in [66]. 25 Contrary to the applicant's submission, the failure to refer to the individual factors identified in [65] in its consideration, does not, in the circumstances, establish that the Tribunal failed to meaningfully consider those factors: cf Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589. Moreover, as the respondent submitted, a conclusion that the Tribunal has not engaged in an active intellectual process will not lightly be made and must be supported by clear evidence, bearing in mind that the applicant bears the onus of proof: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [48]. The applicant has not discharged his onus of showing that the Tribunal did not consider his submissions concerning the weight to be given to the expectations of the Australian community. 26 It follows that the ground as pleaded and as first advanced, that the factors raised in [65] were not considered, is not established. 27 In the applicant's written submissions in reply, the applicant appeared to have expanded the argument advanced. At the outset of the hearing, the applicant acknowledged that "in the written submissions that the position of the applicant has somewhat evolved" and the issue that he is seeking to press is "an extension of the original ground", contending that the reasoning of the Tribunal in "measuring the expectations of the Australian community was inadequate at best". The positon appeared to evolve further during oral submissions, in particular in the applicant's reply. In some respects, the ground appeared to be one of inadequate reasons. There was no application to amend the ground of review, or to add a ground alleging inadequate reasons. As a consequence of the expansion of the submission, the respondent was given an opportunity to address the additional matters raised. 28 There was no application to amend the ground of review, with the submission ultimately pressed plainly being different from that pleaded. 29 Nonetheless, the evolved submission also has not been established. 30 The submission, as it evolved, was not entirely consistent. To take an example, although the applicant ultimately accepted that [65], recited above, reflected his submission before the Tribunal as to the factors which he said were relevant to the weight to be attached to this consideration, that proposition was at some stages denied. The change in position has a significance. At one stage the applicant's submission was based on the proposition that not all of those factors were relevant to this consideration. It was submitted therefore that the Tribunal was required to address each factor to identify which were relevant, because otherwise there would be a "doubling up" of considerations. This submission was inconsistent with the case as advanced in the Tribunal and with the ground of review as pleaded, which alleges that the error is that each of those identified factors in [65] relied on by the Tribunal were not taken into account. 31 Ultimately, the applicant's submission is based on FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 (FYBR), and in particular [100] in the judgment of Stewart J. There, his Honour stated: To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations: • non-citizens will obey Australian laws when in Australia; • it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere; • in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa. 32 As noted by the Tribunal at [62], Direction no. 65 which is cited by Stewart J in the passage recited above, is for present purposes relevantly analogous to Direction no. 79. 33 Based on that passage, the applicant submitted that the "Tribunal was required to undertake the three steps" outlined in that paragraph. The applicant submitted by failing to undertake that three-step process, the decision maker has incorporated its own assessment into this consideration which is directed to the expectations of the Australian community. The applicant also referred to [92] and [93] of Stewart J's judgment in FYBR in support, which state (emphasis in submissions): [92] There is also an important structural consideration, which is identified in the reasons of the primary judge (at [39]-[41]) and Charlesworth J (at [73]). It is that community expectations are to be taken into consideration (as a primary consideration) with other factors to inform the decision-maker's decision. The consequence of that is twofold. First, not every factor relevant to the decision will inform the content of community expectations and, second, the ultimate decision may differ from the community expectations. [93] This is an important further indication that it is not for the decision-maker to undertake an assessment of what the community expectations are in each case dependent on the circumstances of the case which circumstances would necessarily include all the considerations relevant to the ultimate decision. If that was so then the expectations of the community, as assessed, would determine the decision which would conflict with the requirement that they be taken as merely one of three primary considerations along with a number of other considerations to inform the ultimate decision. 34 The applicant misconstrues [100], as there Stewart J, in the context of considering the construction of what is now [13.3] of Direction no. 79, is explaining part of his reasoning in support of his construction. His Honour is not purporting to set out a staged process the decision maker must follow in every case, but rather is summarising the relevant community expectations as expressed in the Direction. The respondent's submissions to that effect must be accepted. 35 Rather, the relevant conclusion is in [105], where Stewart J stated: The specific circumstances of the visa applicant are necessarily front and centre of every decision. That is made clear in cl 6.1(2) of Direction 65 which requires the decision-maker to consider whether to exercise the discretion to refuse or cancel the visa "given the specific circumstances of the case". That requires an evaluative assessment. Direction 65 also identifies "principles" that "reflect community values and standards" (cl 6.2(1)). Those principles include that in the case of the commission of a "serious crime" a non-citizen "should generally expect" to be denied a visa (cl 6.3(3)). That principle is not expressed in absolute terms, as conveyed by the word "generally". It is a question of weight, not prescription as to outcome. Also, the consequence of criminal or other serious conduct by a non-citizen may be different depending on how long and from what age they have been in Australia (cl 6.3(5) to (7)). Further, the best interests of minor children in Australia who may be affected by the decision is also a primary consideration (cl 11.2, and referred to in cl 6.3(7)). In any particular case, that primary consideration may outweigh, or contribute with other considerations to outweigh, the consideration of the expectations of the Australian community (cl 8(3)). 36 As apparent from the passage of the Tribunal's reasons recited above at [21], the Tribunal refers to passages of FYBR at [62]-[64] of its reasons, preceding its conclusion in [66]. 37 Although, as the respondent noted, the description in [65] of the Tribunal's reasons should more correctly have described the applicant's submission as "the primary consideration of the expectations of the Australian community should not weigh heavily against the applicant because of these ameliorating factors", nonetheless, nothing practically turns on that. As read in context, it is plain the Tribunal was astute to the fact that this consideration involves a question of weight, not prescription as to the outcome. 38 The applicant also submitted that it is possible that the Tribunal formed its own assessment of the community's expectations contrary to FYBR, but does not point to any basis in the reasons in support. The submission appears to be that [66] is "inadequate and lends to the position that …the decision maker has simply incorporated their own views into an assessment". In reply, the applicant submitted that he was not suggesting that the Tribunal did form its own assessment, but that it is unknown because the language in [66] is "unclear". The applicant also appeared to suggest that the considerations in [65] "should be perhaps dealt with by the decision maker individually or rejected", otherwise it is not clear whether the Tribunal formed its own assessment of the community's expectations. However, there is nothing in the reasons to support the contention that the approach as articulated in FYBR was not applied. Rather, the reasons reflect the contrary. 39 In [66], read in context, it is apparent that the Tribunal allocated weight to this primary consideration in accordance with the circumstances of the case. As explained above at [24], the inference is that those circumstances are the seriousness of the offending (and matters related thereto) and the factors relied on by the applicant, referred to at [65]. The Tribunal has not formed its own view of what those expectations are. It has had regard to the circumstances of the case, to determine the weight to be given to it. As the Tribunal stated at [64], the question for it was the weight to be given to this consideration. That is consistent with the approach articulated in FYBR. 40 Although there is no ground of review pleaded which reflects the submission ultimately advanced, nonetheless a consideration of the submissions reflects that the applicant also has not established any jurisdictional error in respect to this "evolved" argument. Conclusion 41 For the reasons above, the application is dismissed. The applicant is to pay the costs of the first respondent, to be agreed to assessed. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham. Associate: Dated: 24 August 2021