Were the appellant’s promise not to re-offend and the risk of the appellant re-offending a mandatory relevant consideration and was it a "clearly articulated argument"?
BWI20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 518 (14 May 2021)
Intro:-
The appellant contends that the primary judge erred by not finding that the decision of the Tribunal was affected by jurisdictional error in that the Tribunal denied the appellant procedural fairness and/or failed to provide the appellant a real and meaningful hearing pursuant to s 360 of the Migration Act 1958 (Cth) (the Act) and/or failed to complete its statutory task by failing to consider the appellant’s “clearly articulated argument” that the appellant would not commit further offences.
Facts:-
The appellant is a Sri Lankan national who arrived as an unauthorised maritime arrival in Australia in November 2012. The appellant applied for and was refused a protection visa. The appellant was granted the bridging visa on 11 July 2018 while his protection visa application was under review.
On 2 July 2019, the appellant was convicted in the Melbourne Magistrates’ Court of one charge of sexual assault and one charge of indecent act with a child under 16 years. The appellant was sentenced to a Community Corrections Order for a period of 18 months, with special considerations requiring him to perform 100 hours of unpaid community work (the CCO).
On 10 September 2019, the appellant was given notice that there were grounds for cancellation of his bridging visa as a result of the criminal convictions. On 30 September 2019, the appellant attended an interview with a delegate of the Minister to determine if his bridging visa should be cancelled. At the interview, the appellant promised on two occasions that the offending behaviour would not happen again (the promise). The promise was recorded in the delegate’s decision in the following terms:
"I didn’t know those consequences. I promise it won’t happen again. I took alcohol and didn’t know what happened. I have a lot of family issues. I am a respected person. I can’t go back to my country."
On 30 September 2019, the delegate cancelled the appellant’s bridging visa under s 116 of the Act.
On 1 October 2019, the appellant sought review of this decision in the Tribunal. The appellant appeared before the Tribunal on 25 November 2019 to give evidence and present arguments. The appellant was represented by a lawyer and assisted by an interpreter.
On 14 January 2020, the Tribunal affirmed the delegate’s decision to cancel the appellant’s bridging visa.
The appellant applied to the Federal Circuit Court for review of the Tribunal’s decision on one ground. That is, that the Tribunal denied the appellant procedural fairness and/or failed to provide the appellant a real and meaningful hearing pursuant to s 360 of the Act and/or failed to consider the appellant’s “clearly articulated argument” that he would not commit further offences.
The Federal Circuit Court was not satisfied that this ground had been made out, and dismissed the application for judicial review with costs.
Issue:-
The appellant contends that the Federal Circuit Court erred in not finding that the Tribunal was obliged to consider and failed to consider the appellant’s promise not to re-offend and evidence in support of that promise in exercising the discretion under s 116 of the Act.
Analysis:-
It is common ground that the appellant’s promise and the consequential risk of re-offending were not mandatory considerations under the Direction. The Tribunal must also consider any claim which: (a) is the subject of a substantial “clearly articulated argument” relying on established facts, or (b) “clearly emerges” from the materials. Failure to comply with this obligation may amount to a breach of procedural fairness:
The appellant accepted that no reference to his promise or risk of re-offending was made during the hearing before the Tribunal. In the first of two written submissions to the Tribunal the appellant recorded the background to the Minister’s decision in the course of which the question and answer containing the promise were identified. However, in describing why the visa should not be cancelled the submission made no further reference to the promise or the risk of the appellant re-offending. No reference was made to either matter in the appellant’s second written submission to the Tribunal after the hearing.
The appellant contends that his promise amounted to a “clearly articulated argument” as to why the discretion pursuant to s 116 of the Act should be exercised in his favour. The argument, it is said, was expressly made in the interview with the delegate and was supported by the following underlying facts:
(a) the appellant had not re-offended for two and a half years;
(b) the appellant submitted a letter from his general practitioner, Dr Ganegoda, confirming that the appellant had been treated for depression and alcohol dependence;
(c) the appellant had been compliant with his CCO until the appellant was detained; and
(d) the appellant would be subject to supervision under that CCO if the appellant was in the community.
The appellant submitted that, although the promise was only briefly stated, it was the only reason the appellant provided to the delegate of the Minister as to why his bridging visa should not be cancelled, apart from family issues. It was thus important to the appellant’s claims and was clearly articulated or clearly emerged from the material before the Tribunal.
In circumstances where the promise and consequential risk of re-offending were not relied upon by the appellant as a reason why the Tribunal should not cancel the appellant’s visa in either his written or oral submissions to the Tribunal it cannot be concluded that these matters were clearly articulated or clearly emerged from the materials. The issue is whether the matters were clearly articulated or clearly emerged from the materials. They did not.
The appellant had a legal representative who appeared at the hearing and made oral and written submissions. The fact of legal representation is relevant. It may reasonably be expected that if the appellant wished the Tribunal to assess his case on the basis of his promise and the consequential low risk of him re-offending, the appellant’s lawyer would have made that case in some positive way to the Tribunal.
As a result, the Tribunal was not bound to consider the appellant’s promise or consequential risk of re-offending whether by reference to the four facts on which the appellant relied or otherwise.
Decision:-
1) The appeal be dismissed.
2) The appellant pay the costs of the first respondent, as agreed or taxed.
