Federal Court. Did s 501CA(4) of the Migration Act 1958 (Cth) allow the Tribunal to consider the "future potential costs associated with the possible incarceration of the applicant while considering the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct"?
The Tribunal affirmed a decision of a delegate to refuse under s 501CA(4) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant's visa. The Applicant was self-represented before the Tribunal.
The Federal Court (FCA) discussed ground 2(a) of the judicial review application as follows:
66 By ground 2(a) the applicant contends that he was denied procedural fairness in that he was not put on notice by the Tribunal that it considered Primary Consideration 3 [about the best interests of minor children] to weigh heavily against revocation of the decision.
67 It is accepted that the applicant has four Australian minor children and that he is subject to a protection order until 5 August 2026, whereby he may not have contact with the children without the consent of their mother. Even though there was a protection order in place when the delegate of the Minister made his or her decision, the delegate found that it was in the best interests of the applicant's children that the visa cancellation be revoked. The delegate gave this consideration significant weight.
68 The applicant's SFIC strongly emphasised that it was the best interests of his minor children in Australia that his visa cancellation be revoked. It stated that he “concurs with the Minister” referring to the delegate’s decision as it applied to the best interests of his children.
69 The Minister's SFIC, in dealing with the best interests of minor children, stated "[a]lthough it is open for the Tribunal to find that it is in the best interests of the applicant's children that the cancellation decision to [sic] be revoked, the Minister contends that their best interests should be given lesser weight”. The Minister’s reason for it being given lesser weight included the applicant’s absence from the children’s lives due to the protection order, the impact of his offending on his ability to play a positive parenting role, the absence of any independent evidence as to the impact of his removal upon the children and that he and the children could have contact through electronic means. Importantly, the Minister did not submit in his SFIC that Primary Consideration 3 should weigh againstrevocation, only that it should be given lesser weight.
70 On the first day of the hearing before the Tribunal, the Minister gave no indication of a changed position in relation to the best interests of the children and nothing was put to the applicant in cross examination to suggest the Ministers' position now was that the best interests of minor children should weigh against revocation.
71 At the second day of hearing before the Tribunal, the applicant and Minister respectively made their closing submissions. For the first time, it was submitted by the Minister that "it is not in the best interests of those children for the applicant to remain in Australia".
72 After the Minister's closing submissions the following exchange occurred between the Tribunal Member and applicant:
MEMBER: Thank you very much indeed, Mr Burgess. Mr Buntin, customarily that is the end of the hearing. Because you are self-represented, if you have any brief comment you would like to make, I am happy to hear it.
MR BUNTIN: Yes. In the case of domestic violence, my ex-partner and I would not be getting back together, so there would be no expectations of family violence. She has messaged me and Face Timed me on regular occasions where obviously my children are asking, “When are you coming home?” To tell them that you might never see them again is hard.
MEMBER: Yes, thank you, Mr Buntin. Mr Burgess, you don’t need to respond on that, do you?
MR BURGESS: No, I don’t.
MEMBER: Yes, very well. Thank you, gentlemen. I note the 84th day for this decision is 26 August 2022. I will certainly be bringing down a decision no later than that date and if possible, I will do it a little earlier. Thank you very, Mr Buntin. Whatever the outcome here, sir, I wish you all the best for the future. Mr Burgess, thank you very much for your helpful and thorough submissions. That concludes the hearing.
The FCA discussed grounds 4(a) and (b) as follows:
87 Ground 4(a) refers to paragraph [184] of the Tribunal's decision, where the Tribunal found that the lies the applicant told before the Tribunal constituted “other serious conduct” within the meaning of paragraph 8.1.1(f) of Direction 90, which refers to "whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending".
88 Ground 4(b) refers to the Tribunal's finding at [169] that the applicant lied in his personal circumstances form where he ticked "No" next to the question "Provide details of any court orders or other that relate to your minor child/ren, that you want the decision-maker to take into account" and where he provided assurances that he would not commit any further offences. The Tribunal regarded those “lies” as providing false and misleading information to the Department for the purpose of cl 8.1.1(f) of Direction 90. At [202]-[204], the Tribunal found this to weigh very heavily against revocation of the mandatory visa cancellation.
The FCA discussed ground 4(c) as follows:
95 Ground 4(c) takes issue with the Tribunal's findings at [191]-[192] of its decision, where it attributed the offence of obstructing a police officer as enlivening the considerations under cl 8.1.1(1)(b)(ii) of Direction 90, and subsequently weighed this very heavily against revocation of the mandatory visa cancellation.
96 Clause 8.1.1(1)(b)(ii) of Direction 90 falls under Primary Consideration 1 and provides that crimes committed against "government representatives or officials due to the position they hold, or in the performance of their duties" is viewed by the Australian community as serious.
The FCA discussed ground 4(d) as follows:
102 Ground 4(d) is concerned with the Tribunal's findings at [215], which stated:
The applicant’s history suggests that if he does re-offend in future, any re-offending is unlikely to be an isolated episode, and he is unlikely to be compliant with the current DVO any future bail conditions or court orders. There could be increased costs of law enforcement and an added burden to legal administration which the taxpayer would have to fund.
(Emphasis added)
103 The applicant submitted that this is an irrelevant consideration in light of "the subject-matter, scope and purpose of the revocation power in s 501CA(4)" of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40at 40.
Some of the questions to the Federal Court (FCA) were as follows:
Question 1: Putting to the side the closing submissions before the Tribunal, was the Applicant denied procedural fairness in that he was not put on notice by the Tribunal that it considered the best interests of the minor children to weigh heavily against revocation of the cancellation?
Question 2: Did the "general invitation by the Tribunal to make "brief closing submissions", absent any further articulation of the change in the Minister’s position, afford a self-represented litigant procedural fairness"?
Question 3: Was the possibility that the Tribunal might consider the statements discussed at [87]-[88] in the way it considered them not "self-evident" to Applicant, with the result that the Tribunal not having put the Applicant on notice that it could use them against him amounted to a denial of procedural fairness?
Question 4: Was it open to the Tribunal to treat the 2 offences described at [95]-[96] as against "government representatives or officials due to the position they hold, or in the performance of their duties"?
Question 5: Did s 501CA(4) allow the Tribunal to consider the "future potential costs associated with the possible incarceration of the applicant while considering the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct"?
Question 6: Need the onus on a judicial review applicant to establish the materiality of an error only be “slight” to be enough?
The FCA answered those questions as follows: