Federal Court of Australia Reid v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1076 File number(s): SAD 33 of 2023 Judgment of: MCELWAINE J Date of judgment: 12 September 2023 Catchwords: MIGRATION – application for review of a visa cancellation decision pursuant to s 476A of the Migration Act 1958 (Cth) – whether Administrative Appeals Tribunal (Tribunal) was required to have regard to Ministerial Direction that had been issued but not yet commenced – whether Tribunal erred in its application of the tolerance principle – application refused Legislation: Migration Act 1958 (Cth) s 476A, 499, 501C Ministerial Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA Cases cited: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 Reid v Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 79 Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; 90 FCR 583 Trout v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 583 Division: General Division Registry: South Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 29 Date of hearing: 6 September 2023 Counsel for the Applicant: Mr B Zipser Solicitor for the Applicant: LegalVision ILP Pty Ltd Counsel for the Respondents: Ms H Veale Solicitor for the Respondents: Australian Government Solicitor ORDERS SAD 33 of 2023 BETWEEN: BARRY LEE REID Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent order made by: MCELWAINE J DATE OF ORDER: 12 September 2023 THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant is to pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT MCELWAINE J: 1 The applicant is a citizen of the United Kingdom who migrated to Australia with his parents at age 12 in October 1997. To put it mildly, he has not been a law-abiding individual. He has a substantial adult criminal record commencing in August 2005. He has been sentenced on various occasions to terms of imprisonment and fined. In September 2019, whilst serving a full-time sentence of imprisonment, his visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Act) on the ground that he does not satisfy the character test. He made representations as to why the cancellation decision should be revoked. It was not. On two previous occasions he has succeeded in challenging the non-revocation decision in this Court. The result of his success was that, on remittal, a delegate of the Minister on 10 November 2022 made a decision not to revoke the cancellation decision pursuant to s 501CA. From there, the applicant applied for review to the Administrative Appeals Tribunal (Tribunal). The Tribunal heard the review on 23 and 24 January 2023. Senior Member Nikolic AM CSC in comprehensive reasons commendably published seven days later on 3 February 2023, affirmed the decision of the delegate: Reid v Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 79 (Tribunal decision or TD). 2 By an amended application filed on 23 August 2023, Mr Reid engages the original jurisdiction of this Court pursuant to s 476A of the Act and seeks an order that the decision of the Tribunal be quashed together with a writ of mandamus directed to the Tribunal requiring it to determine his review application according to law. 3 Mr Reid raises two points. One, that the Tribunal was bound but failed to have regard to a direction given by the Minister pursuant to s 499 of the Act, even though it did not commence until after publication of the Tribunal decision. The other, that the Tribunal misapplied that which is described as the "Tolerance Principle" in conducting the review. 4 For the reasons that follow I have concluded that there is no merit in either ground and the application must be dismissed. Background 5 Mr Reid was born on 7 April 1985 in Scotland. His criminal history whilst an adult in Australia commences with a conviction for unlawful sexual intercourse with a minor on 12 August 2005, for which he was sentenced to a period of imprisonment of 18 months. Since then, his criminal history discloses no less than 43 convictions to 22 November 2019, for a variety of offences including possessing illicit drugs, various motor vehicle offences, dishonesty and violence. The Tribunal received oral evidence from Mr Reid, and other persons including his current partner. Despite various expressions of remorse for his offending, the Tribunal found his evidence to be unsatisfactory in a number of respects. The Tribunal found that his evidence was at times contradictory and evasive. Overall, the Tribunal made an adverse assessment of Mr Reid's credit concluding at TD [32]: The Tribunal formed the view after considering the Applicant's documentary and oral evidence that the credibility of some of his claims and his overall credibility as a witness is questionable. This conclusion is not lightly made and does not arise from objectively minor factual matters or the Applicant's demeanour, but on substantial evidentiary concerns. The Tribunal considers the Applicant to be an unreliable historian and found him to be less than forthright at times. 6 An adverse credit finding was also made need in relation to aspects of the evidence given by Mr Reid's partner. 7 The Tribunal applied and reasoned in accordance with Ministerial Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90), made pursuant to s 499 of the Act. Relevantly for present purposes the Tribunal: (1) At [16], reproduced the principles at cl 5.2 of Direction 90; (2) At [18]-[19], identified the primary and other considerations at cll 8 and 9 of Direction 90; (3) At [20]-[21], correctly understood that the primary considerations should generally be given greater weight than the other considerations and that one or more primary considerations may outweigh other primary considerations as required by cl 7 of Direction 90; (4) Extensively considered and made findings about the risk to the Australian community in accordance with cl 8 of Direction 90 at [46]-[60], concluding at [61]: The very serious nature of the Applicant's own offending and other conduct, risk of repeat across the categories described above, and the harm that may be caused by further reoffending, results in his overall recidivism risk being high and unacceptable. This primary consideration weighs very substantially against revocation; (5) Was unable to make a positive finding in relation to the commission by Mr Reid of an offence involving family violence: [62]-[66]; (6) Considered, but concluded that "very slight weight in favour of revocation" could be given to the best interests of minor children in Australia affected by the decision: [67]-[69]; (7) Considered in detail, and made findings of fact relevant to, the expectations of the Australian community conformably with cl 8.4 of Direction 90 at [70]-[77] and concluded, contrary to the applicant's submissions, at [78] that he: has also persistently breached the community's expectation that non-citizens obey Australian laws… [T]he Australian community would strongly expect that he should not hold a visa. This primary consideration weighs substantially against revocation; (8) At [77], noted that the respondent Minister: accepts that because of the time the Applicant has spent in Australia, 'a higher degree of tolerance would be afforded to him'. It is submitted, however, that the prolonged nature of his own offending and recidivism risk is such that the Australian community would expect that he should not hold an Australian visa. (9) Next turned to each of the other considerations at [79]-[99]. Relevant to the grounds of review, is the finding at [93], when considering the strength, nature and duration of ties to Australia as required by cl 9.4.1 of Direction 90 that: the applicant has lived permanently in Australia since the age of 12, which is for approximately 25 years and all his adult life. His circumstances are such that he would be afforded a higher level of tolerance by the community; (10) Expressed its overall conclusions at [100]-[103] that the unacceptably high risk of reoffending, and the expectations of the Australian community as primary considerations, "considerably outweigh" each other relevant consideration. The review grounds 8 The amended grounds provide: 1. On 23 January 2023 Direction 99 was made or "give[n]" by the Minister under s 499(1) of the Migration Act 1958 (Cth). The Administrative Appeals Tribunal ("AAT"), at the time it made its decision on 3 February 2023, although it continued to be bound by Direction 90 and was not bound by Direction 99, was required to have regard to Direction 99. Its failure to have regard to or consider Direction 99 involved jurisdictional error. 2. Paragraph 5.2(4) of Direction 90 contained a principle that "Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age" ("Tolerance Principle"). The AAT erred in applying the Tolerance Principle, including: a) at [77]-[78] where it either misapplied the Tolerance Principle or its reasoning process was irrational; b) by not applying the Tolerance Principle in its weighing process at [100]-[103]; and c) in not otherwise properly applying the Tolerance Principle in its decision. The error was a jurisdictional error. Resolution of ground 1 9 Direction 90 was signed by the Minister on 8 March 2021. Clause 2 provides that it commences on 15 April 2021. By cl 3, Direction No. 79 dated 28 February 2019, is revoked with effect from the commencement of Direction 90. Ministerial Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99) was signed by the Minister on 23 January 2023. Clause 2 states that it commences on 3 March 2023 and by cl 3 Direction 90 "is revoked with effect from the date this Direction commences." 10 The Tribunal did not mention Direction 99. That matters on the applicant's argument because there is a material alteration that is relevant to his circumstances. Clause 9.4.1 of Direction 90, which is concerned with the strength, nature and duration of ties to Australia requires decision-makers to have regard to, inter alia (at subclause (2)): Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to: a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that: i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community. 11 Under Direction 90 this has the status of "other considerations" which generally have less weight than the primary considerations: cl 7. In contrast, in Direction 99, the strength, nature and duration of ties to Australia is elevated to a primary consideration at cl 8.3 which at subclause (4) provides: Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to: a) the length of time the non-citizen has resided in the Australian community, noting that: i. considerable weight should be given to the fact that a non­citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and ii. more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and iii. less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non­citizen began offending soon after arriving in Australia. 12 It will be noticed that there is an alteration to the wording of this consideration. The phrase "Australia may afford" is replaced with "Australia will generally afford" and there is added the sentence commencing "[t]he level of tolerance will rise with": cl 5.2. 13 For the applicant, Mr Zisper submits that, although not commenced at the date of the Tribunal decision, the Tribunal was obliged to have regard to the "change in policy" in Direction 99. The submission as developed is that the Minister "gave" Direction 99 on 23 January 2023 within the meaning of s 499(1) of the Act with the consequence that the Tribunal was bound to comply with it pursuant to s 499(2A). On that submission, between "the giving and commencement of a direction, the direction is Ministerial policy." As further developed by Mr Zisper: In any event, that a direction given under s 499 has not yet commenced does not avoid the inevitable conclusion that the direction, from the moment that it is issued or given, states present and existing Ministerial policy. That the direction states a commencement date at a future point in time is part of the present and existing Ministerial policy, and does not mean that the document does not state present and existing Ministerial policy. (Original emphasis.) 14 I am unable to accept that submission. As is well understood, s 499(1) permits the Minister to give written directions to a person or body having functions or powers under the Act "if the directions are about" the performance of those functions or the exercise of those powers. Once given, that person or body "must comply with" the direction: s 499(2A). The verb "give" in this provision means "to issue". It does not require that a direction be served on or communicated to the person bound by it: Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; 90 FCR 583 at [9] (Whitlam and Gyles JJ). The applicant's submission decouples the giving of Direction 99, which I infer occurred on or shortly after the date the Minister signed it, from its commencement date whereupon Direction 90 was revoked. 15 The commencement date is when Direction 99 comes into force. Expressly, it has no force prior to commencement. To that point in time, it is Direction 90 with which the Tribunal was bound to comply. Direction 99 expresses Ministerial policy only once commenced. It is in my view artificial and illogical to contend that prior to commencement, Direction 99 "states present and existing Ministerial policy" which is the essence of the submission. Before commencement of Direction 99, the Ministerial policy was as stated in Direction 90. That policy was altered on and with effect from 3 March 2023, not before. 16 The applicant's argument also suffers from the difficulty as to how the Tribunal was obliged to take into account Direction 99, whilst bound by the requirement to comply with Direction 90. In oral argument Mr Zipser sought to resolve that conundrum by placing reliance on cl 9(1) of Direction 90 which provides: In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to): a) international non-refoulement obligations; b) extent of impediments if removed; c) impact on victims; d) links to the Australian community, including: i) strength, nature and duration of ties to Australia; ii) impact on Australian business interests 17 That provision does not assist the argument. The policy alteration effected by Direction 99 cannot amount to a relevant "other consideration" where Direction 90 applied and stipulated the relevant matters that the Tribunal was either required to, or may, take into account. Any failure by the Tribunal to comply with Direction 90, would most likely have resulted in jurisdictional error: FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] (O'Callaghan and Colvin JJ, Derrington J agreeing). 18 The applicant's argument also fails to grapple with the point made by Feutrill J in Trout v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 583 where one issue to be determined was whether the Tribunal was obliged to apply Direction No. 79, which applied at the time of the decision of the delegate, or Direction 90 which applied at the time the Tribunal handed down its decision. His Honour concluded that Direction 90 was applicable because it was the direction in force when the Tribunal made its decision. At [85], his Honour reasoned: While the question for the delegate had a temporal element, the review of the delegate's decision formed part of an administrative continuum that continued until the time of the Tribunal's decision. Part of that continuum included ministerial executive policy as promulgated from time to time. That policy, whether the subject of a direction given under s 499 or not, had no bearing on the operation of s 501CA(4) and s 500 of the Act. The effect of s 499(2A) of the Act was that the delegate was obliged to comply with Direction 79 when making a decision to exercise (or not) the power under s 501CA(4) because that was the executive policy in force and that applied to the exercise of that power under s 501CA(4) at the time of that decision. The effect of s 499(2A) of the Act was that independently the Tribunal was obliged to comply with Direction 90 when making a decision on review because that was the executive policy in force and that applied to the Tribunal's function under the Act at the time of the Tribunal's decision. Direction 79 and Direction 90 formed part of the administrative decision-making continuum that prevailed from the time of the applicant's representations until the Tribunal's decision upon review was made. (Emphasis added.) 19 To the extent that the applicant relies on the "concept of an 'administrative continuum'", the submission fails to explain how one mandatory direction that is in force may be displaced or affected by another that is not. Conversely, the continuum which his Honour mentioned is concerned with the policy that is in place when the decision is made. 20 Another submission that the applicant presses is developed by reference to cl 5.1(4) of Direction 90 which provided: The purpose of this Direction is to guide decision makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction under section 499. 21 That clause simply states the effect of the statutory scheme and most certainly does not, contrary to the applicant's submissions, envisage and accommodate "a situation that a decision-maker exercising power under s 501CA may have to comply with more than one direction, so long as the direction has been 'made under s 499'." The argument confusingly conflates the making of a direction with when it is given and when it commences. 22 It follows that the Tribunal was correct not to mention Direction 99 and ground 1 fails. Resolution of ground 2 23 Mr Zipser submits that the Tribunal erred in its application of "the Tolerance Principle" which finds expression in cl 5.2(4) of Direction 90 which relevantly provides: 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 s 501, or whether to revoke a mandatory cancellation under s 501CA. The factors... that must be considered in making a decision under s 501 or 501CA of the Act are identified in Part 2. ... (4) Australia has a low tolerance of any criminal or other serious conduct by... 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age. 24 There is no doubt that the Tribunal was cognisant of this principle, in that it reproduced it at TD [16]. The error which it is said that the Tribunal committed is that although consideration was given to the question of tolerance when considering the expectations of the Australian community, specifically by reference to cl 8.4 of Direction 90 (at TD [70]-[78]), it did not do so as part of "the ultimate weighing process". The submission is framed by reference to FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 at [77] where Charlesworth J reasoned, by reference to the principle as earlier expressed in Direction No 65: In my view, the degrees of tolerance referred to in cl 6.3(5) and cl 6.3(7) are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion. They are factors that may be taken into account in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen's character concerns or offences. 25 Justice Stewart reasoned similarly at [105]. This submission fails to read the Tribunal's decision fairly and as a whole. As correctly submitted by Ms Veale for the Minister, the issue of tolerance is: …one of a number of principles which provide the framework for how decision-makers should approach the task of considering a non-revocation decision. That is, the "Tolerance Principle" is not itself a relevant consideration, rather the understanding of that principle should guide how the [Tribunal] assesses the relevant considerations. 26 It will be recalled that at TD [77], the Tribunal noted that the Minister "accepts that because of the time the applicant has spent in Australia, 'a higher degree of tolerance would be afforded to him'", but then noted the consequential submission that due to the "prolonged nature of his offending and recidivism risk", the Australian community would expect that he should not hold a visa. And then at TD [78] the Tribunal in part found and reasoned: …The Applicant has also persistently breached the community's expectation that non-citizens obey Australian laws. Having regard for the norm stipulated at cl 8.4(1) of the Direction and the guidance provided by the principles at cls [sic] 5.2 of the Direction, the Australian community would strongly expect he should not hold a visa. This primary consideration weighs substantially against revocation. 27 Manifestly that conclusion was open to the Tribunal on the material before it. The Tribunal returned to the tolerance issue, specifically when considering the strength, nature and duration of the applicant's ties to Australia at TD [92]-[98]. At TD [93] the Tribunal recorded that the applicant had lived permanently in Australia for approximately 25 years, being the totality of his adult life and that: "[h]is circumstances are such that he would be afforded a higher level of tolerance by the community." However, balanced against that consideration is the most substantial matter that the Tribunal took into account in stating its conclusions, in the manner that it was bound to do, at TD [103]: Having weighed the relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant's visa should be revoked. That is because the primary considerations Protection of the Australian community, and Expectations of the Australian community, considerably outweigh the combined weight to be given to the primary consideration Best interests of minor children and the other countervailing considerations. 28 What is clear from the structure of the Tribunal's decision is that it did consider and weigh the tolerance issue as part of the overall balancing exercise that it undertook, ultimately concluding adversely to the applicant that the combined weight of the primary considerations were dispositive in the particular circumstances. In proceeding in the way that it did, the tolerance issue was assessed and weighed. Frankly and quite appropriately, Mr Zipser in oral submissions accepted that if on a fair reading of the entirety of the Tribunal's decision the concession recorded at TD [77] was "kept in mind" when proceeding to the conclusion, then the correct finding is that the Tribunal had regard to the tolerance issue and took it into account as a relevant matter. In my view that is precisely what the Tribunal did, and no error is demonstrated. Ground 2 fails. Result 29 The application must be dismissed. I was informed by counsel that costs should follow the event. I order as follows: 1. The application is dismissed. 2. The applicant is to pay the first respondent's costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McElwaine. Associate: Dated: 12 September 2023