In the case of cancellation under s 501CA Migration Act, 1958 (Cth), is the Tribunal required by Direction 79 to consider the impact of a non-revocation decision on a victim?
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97 (8 June 2021)
Intro:-
The Appellant has appealed from a decision of the Federal Court of Australia: DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158. In that decision, the primary judge dismissed an application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of the delegate of the First Respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, not to revoke the mandatory cancellation of the Appellant’s visa under s 501CA of the Migration Act 1958 (Cth).
Facts:-
The Appellant is a citizen of Morocco who arrived in Australia on 7 December 2006. He applied for a protection visa in early 2007, which was refused. In 2007, he began a relationship with Ms J and they married in September of the same year. Ms J gave birth to their daughter, an Australian citizen, in September 2009. In March 2011, the Appellant and Ms J separated and their daughter began living with Ms J. On 28 August 2011, the Appellant was granted a Partner Class BS Subclass 801 (permanent) visa (partner visa).
The Appellant has an extensive criminal record. In June 2011, he pleaded guilty to an offence of common assault in relation to an incident with Ms J and was sentenced to a good behaviour bond. The Appellant was also convicted of contravening a domestic violence order in 2011. The Appellant’s offending continued in subsequent years, with convictions recorded for, amongst other things, driving offences, use of a carriage service to menace, harass and cause offence, disorderly behaviour and breach of bail conditions. In relation to these offences, the Appellant was sentenced to fines or released on good behaviour bonds.
In 2015 and 2016, the Appellant was sentenced to two separate terms of imprisonment. First, on 20 November 2015, the Appellant was convicted of stalking and sentenced to seven months’ imprisonment with a two-year Community Corrections Order. Subsequently, on 25 November 2016, the Appellant was sentenced to two years’ imprisonment for stalking another person by the County Court of Victoria. At the same time, he was sentenced to 12 months’ imprisonment for a series of federal offences, including using a carriage service to menace, harass or cause offence, using a carriage service to make a threat to cause serious harm and using a carriage service to make a threat to kill.
By a letter dated 18 September 2017, the Department of Immigration and Border Protection advised the Appellant that his visa was cancelled under the mandatory cancellation power in s 501(3A) of the Act. The Appellant did not satisfy the character test as defined in s 501(6)(a) and (7)(c) of the Act..
On 9 October 2017, the Appellant requested revocation of the cancellation decision. On 13 December 2019, a delegate of the Minister decided not to revoke the cancellation of the Appellant’s visa pursuant to s 501CA of the Act.
On 3 April 2020, the Tribunal affirmed the delegate’s decision not to revoke the cancellation of the Appellant’s visa. The issues before the Tribunal were two-fold. First, whether the Appellant passed the character test under s 501(6) of the Act and, if not, whether there were any other reasons why the cancellation decision should be revoked having regard to considerations prescribed by “Direction No 79."
As the Tribunal noted, cl 13(2) of Direction No 79 provides three “primary considerations” which it was required to take into account in deciding whether to revoke a mandatory cancellation decision: (a) protection of the Australian community from harm as a result of criminal activity or other serious conduct; (b) the best interests of minor children in Australia; and (c) expectations of the Australian community. (Primary Considerations (a), (b) and (c) respectively)
Clause 14(1) of Direction No 79 provides a non-exhaustive list of Other Considerations also required to be taken into account: (a) international non-refoulement obligations; (b) strength, nature and duration of ties;(c) impact on Australian business interests; (d) impact on victims; and (e) extent of impediments if removed.
The Tribunal, in its Statement of Decision and Reasons, found that certain considerations were in favour of revocation of the cancellation decision, including the best interests of minor children, namely the Appellant’s daughter, niece and nephew. However, the protection of the Australian community weighed heavily against the Tribunal being satisfied that there was another reason to revoke the cancellation decision. The Tribunal found that the Appellant’s offending was serious and repetitive, and that there was a significant risk of him re-offending.
.
On 8 April 2020, the Appellant applied for judicial review of the Tribunal’s decision and the primary judge dismissed that application on 12 August 2020, concluding that there was no “irrationality or other jurisdictional error revealed by the Tribunal’s reasons”. It was also oberved inter alia that:-
"Equally for the reasons earlier given, the decision did consider the impact of [the Appellant] being returned to Morocco upon his daughter and no legal error is apparent in its consideration of that issue... [I]t is not open to the Court on judicial review to revisit the merits of the Tribunal’s reasons and consider whether or not it agrees with the Tribunal’s findings of fact and assessment of the weight to be given to the Primary and Other Considerations."
Appeal to this Court
By further amended Notice of Appeal dated 29 January 2021, the Appellant appealed from the decision of the primary judge. The Notice of Appeal contained one new ground of appeal. By the new ground of appeal the Appellant contends that the Tribunal failed to consider the impact of a non-revocation decision on a victim of his offending, namely the Appellant’s ex-wife Ms J, contrary to the requirements of Direction No 79.
Issues:-
a) on a proper construction of cl. 14.4 of Direction No. 79, is the Tribunal required to consider the impact on a victim of the appellant's offending?
b) consequently, was there denial of procedural fairness to the appellant?
Analysis:-
Two issues arose concerning the merit of the new ground of appeal. First, the proper construction of cl 14.4. Second, whether or not the material before the Tribunal raised as a relevant issue the impact of non-revocation on Ms J as a victim of previous offending by the Appellant.
In making its decision not to revoke the visa cancellation, the delegate was required to comply with Direction No 79. This Direction deals with three types of statutory powers conferred by the Act: (1) the power to make a decision refusing a visa under s 501; (2) the power to make a decision cancelling a visa under s 501; and (3) the power to revoke the mandatory cancelation of a visa under s 501CA.
Construction of Clause 14.4 of Direction No 79
Clause 14.4(1) of Direction No 79 requires the decision-maker to take into account, where relevant, the impact on victims of a decision not to revoke a visa cancellation. To determine whether the Tribunal failed to take into consideration the impact on victims it is necessary to first determine the proper construction of cl 14.4.
In CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 1842, Colvin J found that there was an “obvious error in the formulation of cl 14.4” and that the impact on victims could only be considered in circumstances where the person concerned was allowed to remain in Australia. Colvin J observed:-
"However, in the case of a cancellation under s 501(3A), Direction 79 requires the decision maker to consider the impact of a decision not to revoke (thereby framing the inquiry by reference to what would be the case if the person was removed from Australia because the cancellation of the visa was not revoked). If the direction required there to be a focus on what would be the case if the visa cancellation was not revoked then it would be a most awkward way of directing attention to the adverse consequences for victims and their family members if the person was allowed to remain in Australia."
The Court respectfully adopt the reasoning of Colvin J in CGX20. There was no scope for the Tribunal to consider the impact on Ms J as a victim pursuant to cl 14.4 and accordingly no error in its construction of that clause, nor in its reasoning consequent upon that construction.
Was the impact on Ms J as a victim raised as a relevant issue?
It follows from the above conclusion that it is strictly unnecessary to decide the question of whether the Appellant made representations concerning the impact of a decision not to revoke the cancellation on Ms J as a victim. However as this was argued, we consider it appropriate to express our findings in relation to this contention.
The Minister correctly submitted that the Other Considerations in Direction No 79 need only be taken into account by the Tribunal “where relevant”: Minister for Home Affairs v HSKJ [2018] FCAFC 217 (Greenwood, McKerracher and Burley JJ) at [52]. What is “relevant” to a decision under s 501CA of the Act depends in part on the representations made by the applicant for revocation. The Tribunal is required to consider those representations for the purposes of deciding whether they are satisfied there is another reason why the visa cancellation should be revoked: Navoto v Minister for Home Affairs [2019] FCAFC 135, [88] (Middleton, Moshinsky and Anderson JJ).
In its Reasons, the Tribunal considered the impact of its decision on Ms J as a family member, under the heading “Best interests of minor children”. This was appropriate as her statements in the letter of support concerning her desire to co-parent and to preserve the relationship between the Appellant and his daughter were plainly relevant to a consideration of the best interests of her and the Appellant’s daughter. It is clear that the Tribunal had turned its mind to Ms J, and the impact on her of removing the Appellant from Australia, when deciding whether or not to revoke the visa cancellation decision, though it had not done so by express reference to cl 14.4.
In Navoto, the Court held that “importantly, decision-makers under s 501CA(4) of the Act are not required to consider a reason in favour of revocation not advanced by the person making representations to the decision-maker”. No other material relating to the impact on Ms J as a victim was expressly put to the Tribunal. Accordingly, the Tribunal was not required to separately consider the impact of its decision on Ms J as a victim.
Conclusion:-
For the above reasons, the proposed ground of appeal has no merit. Accordingly, leave to raise a new ground of appeal is refused and the appeal is otherwise dismissed.
