NDDG v Minister for Home Affairs [2019] FCA 1527

FEDERAL COURT OF AUSTRALIA

NDDG v Minister for Home Affairs [2019] FCA 1527 Application from: NDDG and Minister for Home Affairs (Migration) [2019] AATA 250

File number: NSD 551 of 2019

Judge: YATES J

Date of judgment: 16 September 2019

Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – mandatory cancellation of visa on character grounds – whether cancellation decision should be revoked – delegate's decision not to revoke the cancellation decision affirmed on review by the Tribunal – whether error demonstrated in the Tribunal's decision

Legislation: Migration Act 1958 (Cth), ss 499(2A), 500(1)(b), 501(3A), 501(6)(a), 501(7)(c), 501CA(4)

Cases cited: YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Date of hearing: 16 September 2019

Registry: New South Wales

Division: General Division

National Practice Area: Constitutional and Administrative Law and Human Rights

Category: Catchwords

Number of paragraphs: 42

Counsel for the Applicant: The applicant appeared in person

Counsel for the First Respondent: Ms R Francois

Solicitor for the First Respondent: Clayton Utz

ORDERS NSD 551 of 2019

BETWEEN: NDDG Applicant

AND: MINISTER FOR HOME AFFAIRS Respondent

JUDGE: YATES J DATE OF ORDER: 16 SEPTEMBER 2019

THE COURT ORDERS THAT:

1. The originating application taken to have been filed on 20 May 2019 be dismissed. 2. The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

YATES J:

Introduction 1 This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 27 February 2019. The decision affirmed a decision of a delegate of the respondent, the Minister for Home Affairs (the Minister), not to revoke the cancellation of the applicant's absorbed persons visa. The cancellation of the visa was mandatory under s 501(3A) of the Migration Act 1958 (Cth) (the Act) given the applicant's failure to pass the "character test" because of his substantial criminal record. The applicant sought revocation of the cancellation decision (the mandatory cancellation decision) pursuant to s 501CA(4) of the Act. 2 This matter first came before me for case management on 20 May 2019 in the context of an application by the applicant to extend time to bring the judicial review proceeding. On that day, the Minister consented to time being extended. I ordered that the draft originating application accompanying the application to extend time be taken as having been filed and stand as the originating application for review of the Tribunal's decision. I also made orders for the filing of written submissions, with the applicant's written submissions to be filed on or before 1 July 2019 and any submissions in reply to the Minister's submissions to be filed by 26 August 2019. 3 The applicant was self-represented at the case management hearing. However, at that time, he told me that he would be retaining a lawyer to act for him. The following exchange occurred: HIS HONOUR: Are you going to get a lawyer? NDDG: Yes, yes. Should be. HIS HONOUR: You will get one? NDDG: Yes. HIS HONOUR: Okay. Well, then you will need to – do you already have a lawyer? NDDG: Not at the moment. Not at - - - HIS HONOUR: Okay. So well, you will need to get in contact – or members of your family or someone will need to get in contact with a lawyer quickly. NDDG: ..... yes. HIS HONOUR: Because although 1 July is a fair way off at the moment, it's really about five or six weeks - - - NDDG: Yes. HIS HONOUR: That lawyer will … have to start working on this straightaway. NDDG: Yes. Yes. Yes. HIS HONOUR: Okay? NDDG: No worries. HIS HONOUR: So then it provides that the Minister will file his submissions - - - NDDG: Yes. HIS HONOUR: - - - in response by 29 July, and then you will have an opportunity to respond to those submissions and you've got a fairly generous time to do that. But it is vital - - - NDDG: Yes. HIS HONOUR: - - - that your submissions be on by 1 July. NDDG: 1 July. Yes. Thank you, sir. HIS HONOUR: Because I'm going to give it a hearing date. NDDG: Yes. HIS HONOUR: The hearing date will be in September, and the matter will need to proceed; okay? NDDG: Yes, your Honour. HIS HONOUR: So I will set the matter down for hearing on 16 September. So Madam Court Officer, do we have a pen there that's handy? Or my associate will provide a pen to the applicant. So just write down there so you know - - - NDDG: Yes. HIS HONOUR: - - - that the hearing will be on 16 September - - - NDDG: Yes. HIS HONOUR: - - - 2019. NDDG: Yes. HIS HONOUR: At 10.15 am. NDDG: Yes. No worries. HIS HONOUR: Okay. Got that? NDDG: Yes. Yes, your Honour. 4 It will be apparent from this exchange that I stressed the need for the applicant to obtain a lawyer expeditiously so as to ensure compliance with the orders I made with respect to filing submissions. I also made clear to the applicant that the hearing of his application for judicial review would take place on 16 September 2019. 5 On 3 July 2019, at the Minister's request, I extended the time for filing the applicant's and the Minister's written submissions. 6 As events have unfolded, the applicant has not obtained legal representation and has not filed any written submissions either in support of his application or in response to the Minister's submissions (which were filed on 28 August 2019). 7 The applicant's grounds of review in the originating application are expressed at a high level of generality, namely: 1. The respondent's decision was unreasonable. 2. The respondent's decision involved an error of law. 3. The respondent's took into account irrelevant considerations. 4. The respondent's failed to make relevant considerations into account. 5. The respondent's in making its decision did not comply with the rules of natural justice. 6. There was insufficient evidence or no evidence to support various findings made by the respondent's. 7. The respondent's denied the appellant procedural fairness. (Errors in original.) 8 I take the reference to "the respondent" in these grounds to be to the Tribunal. It is only the Tribunal's decision that is amenable to judicial review in the present application. 9 At the case management hearing on 20 May 2019, the Minister's legal representative expressed the Minister's preparedness to permit the originating application to proceed in that form in the expectation that the applicant would file written submissions in support of his application. One important consequence of the applicant's failure to file written submissions is that neither the Minister nor the Court is informed, in any meaningful way, of the precise basis on which the applicant contends that the Tribunal's decision is affected by reviewable error.

Legislative Background 10 Section 501(3A) of the Act provides: The Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or (ii) paragraph (6)(e) (sexually based offences involving a child); and (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. 11 A person does not pass the "character test" if that person has a "substantial criminal record". A person has a "substantial criminal record" if, amongst other things, that person has been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and 501(7)(c). 12 Section 501CA(4) of the Act provides: The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 13 An application may be made to the Tribunal for review of a decision of a delegate of the Minister under s 501 of the Act: s 500(1)(b). 14 When considering whether to revoke the mandatory cancellation decision, the Tribunal is required under s 499(2A) of the Act to have regard to directions given by the Minister. In the present case, the relevant direction is Direction no. 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65).

Background 15 It is not in dispute that the applicant does not pass the "character test". The applicant, who was born in New Zealand in 1970, came to Australia in 1982, when he was 12 years of age. His criminal offending commenced in 1985, when he was 14 years of age. To say the least, his criminal offending (recorded at [2] and [31] – [46] of the Tribunal's Decision Record) has been extensive. His most recent serious offences are: (a) 13 July 2007 – convicted in the District Court of New South Wales of two counts of "Robbery in company" and three counts of "Robbery armed with offensive weapon", for which he was sentenced to six years imprisonment with a non-parole period of four years and six months; and (b) 26 August 2013 – convicted in the District Court of New South Wales of "Robbery armed with offensive weapon", "Aggravated break and enter and commit serious indictable offence-in company" and "Aggravated enter dwelling with intent-offender in company", for which he was sentenced to six years imprisonment with a non-parole period of four years. 16 The question before the Tribunal was whether "there is another reason why the original decision (i.e., the mandatory cancellation decision) should be revoked".

The Tribunal's decision 17 After noting the issue for determination before it and summarising the evidence that had been given, the Tribunal turned to consider whether to revoke the mandatory cancellation decision having regard to Direction 65, as it was obliged to do. The Tribunal noted that Part C of Direction 65 required it to have regard to three primary considerations and, to the extent relevant, a number of other considerations. 18 The primary considerations were: (a) Protection of the Australian community from criminal and other serious conduct (Primary Consideration 1); (b) The best interests of minor children in Australia affected by the decision (Primary Consideration 2); and (c) Expectations of the Australian community (Primary Consideration 3). 19 The other considerations were: (a) International non-refoulement obligations; (b) Strength, nature and duration of ties [to Australia]; (c) Impact on Australian business interests; (d) Impact on victims; and (e) Extent of impediments if removed. 20 The Tribunal noted that both the primary and other considerations may weigh in favour of, or against, the revocation of a mandatory cancellation of a visa, with the primary considerations generally being given greater weight than the other considerations: Direction 65, paras 8(3) – (4). The Tribunal noted further that one or more primary considerations may outweigh other primary considerations: Direction 65, para 8(5). It is clear, therefore, that the Tribunal was mindful of the fact that its consideration of whether to revoke the mandatory cancellation decision required it to weigh and balance possibly competing considerations. 21 The Tribunal's Decision Record shows that it then undertook a systematic and comprehensive analysis of the primary and other considerations by reference to the guidance provided in Direction 65, having regard to the findings of fact which the Tribunal had made. 22 As to Primary Consideration 1, the Tribunal directed its attention to the nature and seriousness of the applicant's conduct to date (as required by para 13.1.1) and the risks to the Australian community should the applicant commit further offences or engage in other serious conduct (as required by para 13.1.2). 23 The Tribunal found (at [82]) that the nature and cumulative effect of the applicant's criminal conduct to date was serious. This finding was certainly open to the Tribunal in light of the applicant's extensive criminal record. 24 In relation to the applicant's likelihood of re-offending or engaging in serious conduct, the Tribunal said (at [85] – [87]): 85. In having regard to the likelihood that the Applicant will engage in further criminal or other serious conduct, the Tribunal has had regard to the Applicant's evidence to the Tribunal, the representations he made in support of his request for revocation of the Mandatory Visa Cancellation Decision, and the oral and written evidence of his family members. 86. The Applicant's evidence is that he has undertaken a number of courses, including EQUIPS Addiction and Aggression Programs, which have given him the tools he requires to avoid risky behaviour and relapse into drug addiction upon his release. The Tribunal accepts that the Applicant has made considerable efforts to acquire the knowledge and skills he needs to prevent him from resuming his drug habit that has to date fuelled his violent and aggressive criminal offending. However the Applicant has a track record of relapse into drug addiction upon release from jail leading to repeat offending and further periods of imprisonment. The Tribunal cannot therefore be satisfied that the Applicant will not resume drug taking upon release into the community and therefore finds that there is a not insubstantial risk that the Applicant will re-offend. 87. The evidence of the Applicant's relatives, particularly his daughter and sister is that they will provide the Applicant with considerable assistance and support upon his release, including providing him with accommodation and help finding employment. The Tribunal finds that while this is essential to the Applicant continuing his rehabilitation, it is not sufficient. There is no evidence before the Tribunal that the Applicant has arranged or is seeking the support he will need to ensure he does not resume his drug habit. The Tribunal accepts that the Applicant has been on a methadone program for four years however he will require the support and guidance of medical practitioners and social workers if he is to continue his recovery. Given his diagnosis of borderline personality disorder, the Applicant will require ongoing treatment by a psychologist or psychiatrist if he is to manage this condition and it not impact on his recovery. In the absence of evidence that the Applicant is taking steps to ensure he has this support following his release, the Tribunal cannot be satisfied that the Applicant will not resume drug taking which will greatly increase the likelihood he will engage in further criminal activity and cause harm to others. 25 The Tribunal found that the risks of the applicant engaging in further criminal conduct to be at "the middle end of the scale". The Tribunal explained this finding (at [89] – [92]): 89. In making this finding, the Tribunal has been informed by Principle 5 which provides: Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age. 90. The evidence before the Tribunal is that the Applicant came to Australia at the age of 12 and that he has spent the vast majority of life in this country, including undertaking his schooling here and working in a range of employment roles. 91. The length of time the Applicant has been living in Australia is a factor that supports a finding that there is a higher level of tolerance for his serious criminal conduct than there would be for a non-citizen who has lived in the community for a much shorter period of time. 92. However, the Tribunal notes that the Applicant commenced criminal activity in Australia when he was aged 14, just two years after his arrival. He will soon mark his 49th birthday and therefore for the vast majority of the more than three decades that he has been resident in Australia he has been involved in criminal offending that has caused harm to individuals. Accordingly, the Tribunal finds that the level of tolerance for the Applicant's behaviour is diminished by the period of time he has been engaged in criminal activity during his residency in Australia. 26 The Tribunal concluded (at [93]) that Primary Consideration 1 weighed against revocation of the mandatory cancellation decision. 27 As to Primary Consideration 2, the Tribunal noted that the only children in question were the applicant's two grandsons, one of whom was (then) seven years of age (born 2011), and the other (then) two and one-half years of age (born 2016). Both grandsons are Australian citizens. 28 The Tribunal concluded (at [103]) that Primary Consideration 2 weighed in favour of revocation of the mandatory cancellation decision. 29 As to Primary Consideration 3, the Tribunal noted Mortimer J's observations in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY) at [76] – [77]: 76 In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the "expectations" about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to "tolerance") the Australian community's "expectations" are defined only in one particular way: namely, that the Australian community "expects" non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction. 77 I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]). 30 Notwithstanding Mortimer J's observation in YNQY that Primary Consideration 3 is a kind of deeming provision, the Tribunal made the following finding (at [109]): 109. In support of this finding, the Tribunal notes that while the Australian community may have been prepared to overlook or tolerate the offences committed by the Applicant as a young man, it would expect that as an adult, and after periods of imprisonment, he would make necessary changes in his life to prevent him from re-offending. Since his first term of imprisonment in 2000, the Applicant has not made these changes and the pattern of drug taking and offending has continued. In these circumstances, it is reasonable to conclude, and the Tribunal finds, that the expectation of the Australian community is that the Applicant no longer hold a visa permitting him to remain in Australia 31 The Tribunal concluded (at [110]) that Primary Consideration 3 weighed against revocation of the mandatory cancellation decision. 32 Dealing with each of the other considerations in turn, the Tribunal noted, firstly (at [113]), that there was no suggestion that Australia's non-refoulement obligations were engaged in the present case. 33 Secondly, the Tribunal found (at [120]) that the strength and nature of the applicant's family ties in Australia weighed in favour of revocation of the mandatory cancellation decision. In this connection, the Tribunal found (at [115] – [119]): 115. Having regard to para 14.2(1)(a) of the Direction, the Tribunal has given weight to the evidence before the Tribunal that the Applicant arrived in Australia as a 12 year old and has resided in Australia continuously since this time. The Applicant considers Australia his home and he no longer has a connection to New Zealand where he spent the first decade of his life. 116. The Tribunal has had regard to the evidence before it that the Applicant commenced criminal offending at the age of 14, two years after his arrival in Australia. This evidence is unfavourable to the Applicant as it demonstrates that, having lived in Australia for nearly four decades, for the vast majority of this period he has engaged in criminal activity. 117. Having regard to the considerations in para 14.2(1)(b), the Tribunal finds that the evidence demonstrates that the Applicant has significant ties to Australia, particularly his two daughters, his grandsons, his sisters and their children, and his father, all of whom are either Australian citizens or have a permanent right to remain. 118. The evidence before the Tribunal is that the impact on his family of the Applicant returning to New Zealand will be significant, particularly the emotional hardship they will endure. His daughters and sisters will be particularly affected by the removal of their father and brother, particularly the loss of the opportunity to re-establish their relationships with him. The Applicant's father will be significantly disadvantaged by the Applicant's return to New Zealand because his ailing health is such that he is unable to travel and therefore he is unlikely to see his son again. 119. There is no evidence before the Tribunal to indicate that his daughters and sisters would not be permitted to visit the Applicant in New Zealand. However the Tribunal recognises that finances are not always adequate to permit families to travel abroad on a regular basis. There is no evidence to indicate that the Applicant's family would not be able to maintain regular contact with him via phone and other forms of electronic and other communication if he returns to New Zealand. 34 Thirdly, the Tribunal noted (at [122]) that the applicant did not claim that any Australian business interests would be affected by his removal to New Zealand. 35 Fourthly, the Tribunal found (at [124]) that there was no evidence of any potential impact on the victims of the applicant's criminal activity of a decision not to revoke the mandatory cancellation decision. The Tribunal noted further (at [124]) that the applicant recognised that his offences would have had a significant psychological impact on his victims and that this effect was likely to be ongoing. The Tribunal concluded, therefore, that this consideration did not favour revocation of the mandatory cancellation decision. 36 Fifthly, the Tribunal found (at [129]) that, on balance, the impediments that the applicant would face if returned to New Zealand weighed against revocation of the mandatory cancellation decision. In this connection, the Tribunal found (at [126] – [128]): 126 The evidence before the Tribunal is that the Applicant has no family or friends in New Zealand and he will be alone and left to establish himself there without support. 127. In relation to the considerations in para 14.5(1) the Tribunal finds that living standards in New Zealand will not be significantly different to those in Australia. Having regard to the considerations in para 14.5(1)(a), the Tribunal notes that the Applicant is aged 49 years and has the skills to find employment in the construction industry or as a cleaner in New Zealand. The skills and qualifications he acquired as a result of the programs and courses he completed in jail provide further potential for him to secure employment upon his return. Having regard to para 14.5(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return, although it will take time for him to readjust to life in a country in which he has not lived for almost four decades. 128. Having regard to para 14.5(1)(c), the Tribunal finds that the Applicant will have the same access to the welfare benefits of New Zealand citizens including health care and social services. The Applicant will be able to obtain the treatment and support he requires to ensure that he continues his rehabilitation. He will have access to the medical treatment and medication he requires for his physical and psychological conditions. The Tribunal finds that the obstacles the Applicant may experience on his return to New Zealand, whilst real are not insurmountable. 37 In light of these findings and conclusions, the Tribunal stated that the decision to refuse to revoke the mandatory cancellation decision was affirmed. As I have earlier noted, it is clear from the directions it gave itself that the Tribunal was mindful of the fact that its consideration of whether to revoke the mandatory cancellation decision involved a weighing and balancing of possibly competing considerations. It is implicit in the Tribunal's final conclusion that it undertook that task.

The Grounds of Review 38 As I have noted, the grounds of review stated in the originating application are expressed at a high level of generality. The applicant's failure to comply with the Court's orders to file written submissions has meant that the Court has not been assisted by the further precision that written submissions could provide. The Minister's written submissions note the difficulty that has thereby been presented and seek to grapple, as best they can, with the stated grounds. 39 At the hearing, I invited the applicant to address me orally on his grounds but he was unable to articulate, in any meaningful way, where there was any error in the Tribunal's review of the refusal decision. In response to my questions, the applicant said that the grounds had been prepared with someone else's assistance and that he had no real understanding of them. 40 The Minister took me though a number of key documents in the Court Book (which I have marked as Exhibit A). They include the sentencing remarks of Freeman ADCJ in the District Court of New South Wales on 26 August 2013; the conclusions in a psychological assessment report in respect of the applicant, dated 18 March 2013; and the applicant's request for revocation of the mandatory visa cancellation decision setting out the bases on which he said the decision should be revoked. 41 I have carefully read and considered the Tribunal's Decision Record and, assisted by the Minister's written submissions, can see no apparent error falling within the broad grounds that the applicant has asserted in his originating application.

Conclusion and disposition 42 In these circumstances, I see no basis on which the Court could and should interfere with the Tribunal's decision. Therefore, the originating application should be dismissed, with costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates.

Associate: Dated: 27 September 2019