Federal Court: when determining under s 501CA(4) of the Migration Act 1958 whether to revoke the mandatory cancellation of a visa, should a decision-maker also take into consideration the non-citizen's submissions regarding what the expectations of the Australian community are or should the decision-maker only take into consideration their own views of what constitutes those expectations?
Summary and discussion
The Minister mandatorily cancelled the Applicant's visa under s 501(3A) of the Migration Act 1958 (character) and the Applicant then made representations under s 501CA(3) requesting the revocation of that cancellation. The Minister refused to revoke the cancellation (the non-revocation decision).
The Applicant subsequently applied to the Tribunal for merits review of the non-revocation decision. The Tribunal was bound to follow Direction 65, which provided that the following were primary considerations (emphasis added):
(a) protection of the Australian community from criminal or other serious conduct;
(b) the best interests of minor children in Australia; and
(c) expectations of the Australian community.
The Applicant made the following submission to the Tribunal regarding the "expectations of the Australian community":
Notwithstanding the seriousness of the Applicant’s criminal offending, it is highly unlikely that the Australian community would expect a person in the Applicant’s circumstances to be involuntarily removed from Australia, particularly having regard to the fact that the Applicant’s criminal offending happened against a background of serious family violence, drug abuse, and mental health issues. The Applicant is no longer in an abusive relationship and has abstained from drugs since undergoing her prison sentence. Further the Applicant has ongoing measures in place with psychologist Dr Julie Kruss, such as regular counselling, to address her mental health issues.
The Tribunal affirmed the non-revocation decision. Its decision record included the following passage:
The Tribunal concludes that members of the Australian community, properly informed, would adopt an unfavourable view of what is on the evidence a well-planned drug growing enterprise, given the pernicious impact the illegal drug trade has on society. Adding to that [the applicant’s] separate convictions for possessing weapons and for trafficking in ICE, this consideration weighs strongly towards not revoking the mandatory cancellation of the visa.
The Appellant eventually applied to the Federal Court (FCA) for judicial review of the Tribunal's decision. There were 4 grounds of review, although this article deals only with ground 4.
The questions to the FCA were as follows:
Question 1: should the Tribunal also have taken into consideration the Applicant's submission as to what the "expectations of the Australian community" were or should it instead only have taken into consideration its on views as to what constituted those expectations?
Question 2: if the answer to Question 1 is that the Tribunal should also have taken into consideration the Applicant's submissions as to what the "expectations of the Australian community" were, did the Tribunal take those submissions into consideration by adding the words "properly informed" to the following passage (emphasis added): "The Tribunal concludes that members of the Australian community, properly informed, would adopt an unfavourable view of what is on the evidence a well-planned drug growing enterprise, given the pernicious impact the illegal drug trade has on society"?
The FCA answered as follows...
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