Minister for Home Affairs v YZXB

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: STEWART J
• Judgment Date: 25 July 2019
• Neutral Citation: [2019] FCA 1134
• Date: 25 July 2019

FEDERAL COURT OF AUSTRALIA

Minister for Home Affairs v YZXB [2019] FCA 1134

Review of:	Application for Judicial Review: YZXB and Minister for Home Affairs (Migration) [2019] AATA 69
File number:	NSD 330 of 2019
Judge:	STEWART J
Date of judgment:	25 July 2019
Catchwords:	MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – where the Tribunal revoked a decision to cancel the applicant’s visa – whether the Tribunal’s assessment and balancing of the primary considerations and other considerations was consistent with Direction 65 – standard of judicial review of reasons of the Tribunal – no jurisdictional error – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 474(2), 476A(1)(b), 499, 500(1)(ba), 501(2), 501(3A), 501CA(4)
Cases cited:	DKXY v Minister for Home Affairs [2019] FCA 495 FYBR v Minister for Home Affairs [2019] FCA 500 Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Nigam v Minister for Immigration and Border Protection [2017] FCAFC 127; 254 FCR 295 Oluwafemi v Minister for Home Affairs [2018] FCA 1389 Omar v Minister for Home Affairs [2019] FCA 279
Date of hearing:	22 July 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	50
Counsel for the Applicant:	C Lenehan
Solicitor for the Applicant:	Sparke Helmore Lawyers
Counsel for the First Respondent:	C Jackson
Solicitor for the First Respondent:	South West Legal Migration Services
Counsel for the Second Respondent:	The second respondent filed a submitting notice save as to costs

ORDERS

		NSD 330 of 2019
BETWEEN:	MINISTER FOR HOME AFFAIRS Applicant
AND:	YZXB First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE:	STEWART J
DATE OF ORDER:	25 July 2019

THE COURT ORDERS THAT:

1. The originating application filed on 6 March 2019 is dismissed.

2. The applicant pay the costs of the first respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWART J:

Introduction

1. This is an application for the review of a decision of the Administrative Appeals Tribunal. The review to this Court is under s 476A(1)(b) of the Migration Act 1958 (Cth) of a decision by the Tribunal on review of a “privative clause decision” (see s 474(2)) under s 500(1)(ba). The result is that in order to succeed in reviewing and setting aside the decision of the Tribunal, the applicant must establish jurisdictional error by the Tribunal.

Background

2. The relevant decision-making history is as follows.

3. On 19 January 2016, the first respondent’s Class XB Subclass 202 (Global Special Humanitarian) visa was cancelled under s 501(3A) of the Act on the basis that the first respondent had a “substantial criminal record”, having been convicted and sentenced to a term of imprisonment of 12 months or more as referred to in s 501(7)(c) of the Act.

4. That decision was reviewed by a delegate of the relevant Minister who decided on 31 October 2018 under s 501CA(4) of the Act not to revoke the cancellation of the visa. That was on the basis that the delegate was not satisfied that the first respondent passes the character test as defined in s 501 and the delegate was not satisfied that there was another reason why the original decision should be revoked.

5. The first respondent then sought a merits review of that decision in the Tribunal pursuant to s 500(1)(ba) of the Act. On 25 January 2019, the Tribunal upheld the review, set aside the delegate’s reviewable decision of 31 October 2018 and, in substitution, revoked the decision of 19 January 2016 to cancel the first respondent’s visa.

6. The review before me is based on one ground of narrow compass. The Minister asserts that the Tribunal failed to comply with Direction No. 65, being a direction issued by the Minister under s 499 of the Act, by asking itself the wrong question. It is said that the Tribunal misconstrued Direction 65 in that it understood that the “primary consideration” of the “protection of the Australian Community from criminal and other serious conduct” in paragraphs 11(1)(a) and 11.1 of the Direction was a matter which could weigh in favour of a person in the position of the first respondent whereas, so it is said, properly construed the Direction could weigh in favour of non-revocation of a decision to cancel a visa or be regarded as neutral to that issue, but it could not weigh in favour of revocation.

Additional background

7. The first respondent is a citizen of Iraq and is approximately 25 years old. He arrived in Australia on 18 September 2008, at age 14 years, as the holder of a humanitarian visa of the specific class referred to above at [3].

8. In May 2015, a jury of the New South Wales District Court found the first respondent guilty of one count of aggravated sexual assault. In October 2015, the first respondent was convicted and sentenced on that finding to three years imprisonment with an 18 month non-parole period. That is the conviction and sentence that led to the mandatory cancellation of his visa as referred to.

The decision of the Tribunal

9. The Tribunal identified that the original cancellation decision could be revoked under s 501CA(4) if it, standing in the shoes of the Minister, was satisfied that the first respondent passes the s 501 character test (s 501CA(4)(b)(i)), or there is another reason why the original decision should be revoked (s 501CA(4)(b)(ii)), and that such a decision involves an assessment and evaluation of the factors for and against revoking the cancellation.

10. The Tribunal also identified that its determination had to be carried out in accordance with any written directions under the Act (s 499(2A)). It recognised that in considering a request for revocation of a mandatory s 501(3A) cancellation, the Tribunal had to comply with Direction 65.

11. Direction 65 identifies three “primary considerations” to be taken into account, namely (1) protection of the Australian community from criminal or other serious conduct, (2) the best interests of minor children in Australia, and (3) the expectations of the Australian community. This case turns on the primary consideration of the protection of the Australian community.

12. The Tribunal recognised that the first respondent’s offending involved a sexual crime and is accordingly identified by paragraph 13.1.1(a) of Direction 65 as very serious. The Tribunal stated that it regards the offending as serious.

13. The Tribunal also recognised that the court’s sentence of imprisonment for three years is a reflection of the objective seriousness of the offence (as per paragraph 13.1.1(c) of Direction 65). It stated that in its view the offending was, however, at the lower end of the scale of seriousness for offences of the type in question.

14. With regard to the primary consideration of risk to the Australian community, the Tribunal stated as follows:

50. Paragraph 13.1.2 of Direction 65 prescribes that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm...