Direction 65: interpreting cl 14.4(1)

Federal Court: In an application for merits review to which the 84-day deadline under s 500(6L) of the Migration Act 1958 (Cth) applies, should the reasons provided by the AAT be scrutinised less rigorously than would otherwise be the case? Was the Tribunal required to expressly put the Applicant on notice that it would consider the impact on victims that could flow from a decision to revoke the visa cancellation, pursuant to cl 14.4(1) of Direction 65? Did the AAT misinterpret cl 14.4(1)? Note: cl 14.4(1) of Direction 79 is identical to cl 14.4(1) of Direction 65.

What follows is an oversimplification of the facts.

The Applicant's visa was mandatorily cancelled on character grounds under s 501(3A) of the Migration Act 1958 (Cth).

As Anderson J said at [48]:

... the notice of visa cancellation under s 501(3A) of the Act enclosed a copy of Direction No. 65 and informed the applicant that “if the decision-maker who makes the decision regarding whether or not to revoke the decision to cancel your visa is a delegate of the Minister, they must follow Direction [No.] 65”. The notice otherwise stated that the applicant “should address each paragraph in PART C of the Direction that are relevant to your circumstances” (emphasis in original). The terms of Direction No. 65 expressly directs attention to the consideration of the “impact on victims”.

The Applicant then sought revocation of that cancellation, but a delegate of the Minister decided not to revoke that cancellation, pursuant to s 501CA(4).

Anderson J went on to say as follows:

50    The applicant subsequently applied to the Tribunal for a review of the merits of the delegate’s decision. The applicant was legally represented at this time. It would have been clear, or should have been clear, to his representatives that Direction No. 65 was also applicable to decisions of the Tribunal: see Direction No. 65, Annex B, definition of “decision-maker”.

51    Moreover, ... the Tribunal in this case had before it certain sentencing remarks in relation to the applicant’s previous offending. It also had before it various police reports documenting the impact of the applicant’s behaviour. Indeed, the applicant was questioned during the Tribunal hearing about aspects of his offending that involved violence against his former girlfriend and his wife partly by reference to these police reports.

As the Applicant failed the character test, the only question to the Tribunal was whether there was "another reason why the original decision should be revoked", pursuant to s 501CA(4)(b)(ii).

In answering that question, the Tribunal was bound by s 499 to comply with Direction No 65, which included the following paragraph:

14.4    Impact on victims

(1)    Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

The Tribunal considered the impact on victims that could flow from a decision to revoke the visa cancellation, but did not expressly put the Applicant on notice that it would do so.

The Tribunal's consideration of the impact on victims was as follows:

Impact on victims

155.     There was evidence contained in police reports of the impact of the Applicant’s violent behaviour, particularly on his wife Ms S and Ms Z. The physical injuries and psychological effects suffered by both women were significant. In sentencing the Applicant in December 2004, the court noted that the victim of the assault by the Applicant in that case had, in addition to significant physical injuries, also been required to visit a psychologist on 20 occasions to deal with symptoms of anxiety and depression, panic attacks, hypervigilance and difficulty sleeping and breathing.

156.    The Tribunal gives this consideration significant weight against revocation.

The Tribunal affirmed the delegate's non revocation decision and the Applicant eventually applied to the Federal Court (FCA) for judicial review of the Tribunal's decision.

The questions to the FCA were as follows:

Question 1: In an application for merits review to which the 84-day deadline under s 500(6L) applies, should the reasons provided by the AAT be scrutinised less rigorously than would otherwise be the case?

Question 2: Was the Tribunal required to expressly put the Applicant on notice that it would consider the impact on victims that could flow from a decision to revoke the visa cancellation?

Question 3:

Background: the Applicant argued as follows:

56 ... the emphasis of the Tribunal’s consideration of the “impact on victims” in [155] of its reasons does not directly align with the wording of paragraph 14.4(1) of Direction No. 65. That paragraph required the Tribunal to consider the impact on the victims of a decision not to revoke the applicant’s visa cancellation. However, the Tribunal instead outlined the impact on the victims of the applicant’s offending.

Question: can it be said that, "[i]f the Court were to consider [paragraphs 155 and 156 of the Tribunal's decision record extracted above] in isolation, without regard to the balance of Direction No. 65, and without regard to the balance of the Tribunal’s reasons, these matters may be sufficient to evidence a misconstruction of paragraph 14.4(1) of Direction No. 65 by the Tribunal"?

Question 4: Considering paragraphs 155 and 156 of the Tribunal's decision record extracted above, the balance of Direction No. 65 and the balance of the Tribunal’s reasons, did Tribunal misconstrue paragraph 14.4(1) of Direction No. 65?

The FCA answered those questions as follows.

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