FYBR v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 24 October 2019
• Neutral Citation: [2019] FCAFC 185
• Date: 24 October 2019
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

FYBR v Minister for Home Affairs [2019] FCAFC 185

Appeal from:	FYBR v Minister for Home Affairs [2019] FCA 500
File number:	NSD 672 of 2019
Judges:	FLICK, CHARLESWORTH AND STEWART JJ
Date of judgment:	24 October 2019
Catchwords:	MIGRATION – Direction No 65 – the expectations of the Australian community – a primary consideration – correct interpretation of cl 11.3(1) – whether cl 11.3(1) a deeming provision – appeal dismissed
Legislation:	Migration Act 1958 (Cth) ss 189, 499, 500, 501, 501CA
Cases cited:	Afu v Minister for Home Affairs [2018] FCA 1311 Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151; 139 FCR 292 Drake v Minister for Immigration And Ethnic Affairs (1979) 24 ALR 577 DKXY v Minister for Home Affairs [2019] FCA 495 FYBR v Minister for Home Affairs [2019] FCA 500 Jack Woodridge on behalf of Gomilaroi People v Minister for Land and Water Conservation (NSW) [2002] FCA 1109; 122 FCR 190 Oluwafemi v Minister for Home Affairs [2018] FCA 1389 Plaintiff M64/2015 v Minister For Immigration and Border Protection [2015] HCA 50; 258 CLR 173 R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; 144 CLR 45 Re FYBR and Minister for Home Affairs [2018] AATA 4281 Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; 225 FCR 424 Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Date of hearing:	22 August 2019
Registry:
Division:
National Practice Area:
Category:	Catchwords
Number of paragraphs:	107
Counsel for the Appellant:	Mr DH Godwin with Mr J Donnelly
Solicitor for the Appellant:	Teleo Immigration Lawyers
Counsel for the First Respondent:	Mr C Lenehan with Mr N Y H Li
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	The Second Respondent filed a submitting notice save as to costs

ORDERS

		NSD 672 of 2019
BETWEEN:	FYBR Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES:	FLICK, CHARLESWORTH AND STEWART JJ
DATE OF ORDER:	24 OCTOBER 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The Appellant is to pay the costs of the First Respondent, either as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FLICK J:

1. In August 2018, a delegate of the Minister refused to grant the Appellant in the current proceeding, identified by the pseudonym FYBR, a Safe Haven (Enterprise) Visa. The delegate was of the view that the now-Appellant failed the “character test” prescribed by s 501(6)(e) of the Migration Act 1958 (Cth) (the “Migration Act”) by reason of his having been convicted of sexual offences involving a child. An appeal against that decision to the Administrative Appeals Tribunal (the “Tribunal”) was unsuccessful, with the Tribunal publishing its reasons for decision in November 2018: Re FYBR and Minister for Home Affairs [2018] AATA 4281.

2. An Application for an Extension of Time in which to review the decision of the Tribunal was filed in this Court in December 2018. In April 2019, a Judge of this Court granted the application for an extension of time but proceeded to dismiss the application for judicial review: FYBR v Minister for Home Affairs [2019] FCA 500.

3. The Appellant now appeals.

4. Contrary to the views of Charlesworth and Stewart JJ, it is respectfully concluded that the appeal should be allowed.

5. The primary issue to be resolved on appeal is the correct construction and application of cl 11.3(1) of Direction No 65 (the “Direction”) made under s 499 of the Migration Act.

6. That Direction provides (inter alia) “General Guidance for decision-makers” in respect to a number of categories of decision-making, including the refusal to grant a visa, as sought by the Appellant. The form and content of the Direction, and other like Directions issued by the Minister, are by now well-known. But in very general terms, the Direction identifies, with respect to the refusal to grant a visa, both:

• “primary considerations”, including relevantly for present purposes the “Expectations of the Australian Community”; and

• “other considerations”.

The Direction provides that decision-makers “must take into account the primary and other considerations” (cl 8(1)).

7. In expanding upon what is embraced for the purposes of the Direction as being the “Expectations of the Australian Community”, cl 11.3(1) provides as follows:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government’s views in this respect.

8. Although the correct construction of cl 11.3(1) cannot be divorced from the context in which it appears, no question arises in the present proceeding to put in doubt:

• the fact that in addressing the “Expectations of the Australian Community”, cl 11.3 is one of three “primary considerations” – the other two being the “[p]rotection of the Australian community from criminal or other serious conduct” and “[t]he best interests of minor children in Australia”;

• the fact that, in exercising the discretion, decision-makers (including the Tribunal) “must take into account the primary and other considerations” of relevance to a claimant (cl 8(1)) – those “other considerations” being “[i]nternational non-refoulement obligations”; “[i]mpact on family members”; “[i]mpact on victims”; and “[i]mpact on Australian business interests” (cl 12);

• the fact that “[b]oth primary and other considerations may weigh in favour of, or against, …refusal” of a visa (cl 8(3)); and

• the fact that “[p]rimary considerations should generally be given greater weight than the other considerations” (cl 8(4)) and that “[o]ne or more primary considerations may outweigh other primary considerations” (cl 8(5)).

It is the Direction that primary considerations are generally to be given greater weight than other considerations (cl 8(4)) which assumes particular importance in the present proceeding.

9. Within these generally expressed guidelines as to the manner in which the discretion is to be exercised, the sole question for resolution is whether cl 11.3(1) either:

• operates as some kind of “deeming provision” such that the expectations of the Australian community are “expectations adverse to the position of any applicant who has failed the character test” and “defined only in one particular way: namely that the Australian community ‘expects’ non-revocation…” or, relevantly for the present proceeding, refusal of the visa: cf. YNQY v Minister for...