by Paul Cutler | Aug 31, 2022 | Uncategorized
The High Court case of Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 deals primarily with how decision makers should deal with non-refoulement (protection) claims in the context of whether a visa cancellation on character grounds should be revoked or affirmed. This is one of the “other considerations” which arise for consideration in Direction 90. There is a distinction between claims (or circumstances) which are made under un-enacted international obligations (which don’t have to be considered) and those made under domestic law which do have to be considered. The decision maker can consider the claim in substance or it can be deferred if there is a possibility that a protection claim will be made in the future.
The High Court at [23]-[24] (references omitted) has summarised the obligations on decision makers who consider representations made by applicants. It is well established that:
-
- a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision‑maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
-
- the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
Although the Applicant was not successful, there is a powerful dissenting judgment by Edelman J (starting at [48]) (with whom Gleeson J agreed). His Honour said there was no dispute that the Applicant’s life was in danger if returned to Sudan and that “process‑related powers and duties must be exercised or performed reasonably just as outcome‑related powers and duties must be exercised or performed reasonably”. His Honour was clearly of the view that the Minister had acted unreasonably. Unfortunately this really (in my view) highlights the shortcomings and subjective nature of judicial review.
Creative commons acknowledgement for the photograph.
by Paul Cutler | Aug 17, 2022 | Uncategorized
Exercising discretion
KXXH v Minister [2022] FCAFC 111 is another case of a Kiwi with a character cancellation problem. This case was about whether or not the interests of his grandchildren had been properly considered and highlights the difficulties in trying to find a jurisdictional error amongst Tribunal reasons. I let some of the paragraphs from the judgment speak for themselves…
- This is a case where, to adapt the words of the Court in Navoto, it is necessary to make a decision as a matter of impression, including by inferences to be drawn from the manner in which the appellant’s case unfolded before the Tribunal and the structure, tone and content of its reasons. While it is not straightforward to determine whether the reasons here fall ‘on the wrong side of the line’, on balance we consider that they did not. Two principles emerging from the summary above are particularly important to that conclusion. The first is that it is the reality of the consideration that is important, not necessarily the manner in which it is (or is not) expressed. The second is that the degree of consideration required depends on the centrality of the matter to the issues that arise in the review………
- In light of all that, the brevity with which the Tribunal dealt with the interests of MS’s grandchildren at paragraphs 134 and 135 is unsurprising. It does not by itself bespeak any failure to read, identify, understand and evaluate the material that was before it as to those interests. It is more likely to reflect a decision by the Tribunal to give little weight to those interests in the context of the matter as a whole. The Tribunal explicitly said that this is what it had decided to do. That decision was open to the Tribunal….
- It is true that there are aspects of paragraphs 134 and 135 of the Tribunal’s decision that are problematic. They appear to give priority to the interests of the nieces and nephews over those of MS’s grandchildren, although it had no information whatsoever about the interests of the former, even information about whether they were indeed children………
- The Tribunal’s written reasons were, with respect, deficient in that regard. But in light of the matters canvassed above, these are deficiencies in expression, rather than an absence of real consideration of the interests of MS’s grandchildren. They do not constitute error of a kind that the Parliament is to be taken to intend to invalidate the Tribunal’s exercise of power under s 501CA(4) of the Act. Therefore, the primary judge was correct to conclude that the appellant had not established jurisdictional error in relation to the Tribunal’s consideration of the interests of MS’s grandchildren. The appeal should be dismissed, with costs.
Creative commons acknowledgment for the photograph.
by Paul Cutler | Jul 19, 2022 | Uncategorized
Mr Calvey is a New Zealand citizen with a significant (serving a concurrent sentence of 339 months) criminal history. He is also the father to three minor (Australian citizen) children by two different mothers. His visa was cancelled in May 2020.
Under Direction 79 (the predecessor to Direction 90), the “best interests of the children” is one of the primary factors (to be given greater weight) in exercising the discretion as to whether or not to revoke the cancellation decision. At the AAT hearing, the mothers gave evidence of the views of their respective children (ie they wanted a relationship with their father). There was no direct evidence from the children and no expert evidence.
Despite that, the Tribunal found (at [232] that: “In circumstances where the Tribunal does not have the views of the Applicant’s biological children before it, the Tribunal is unable to afford sub-paragraph (f) of paragraph 13.2(4) of the Direction any measure of weight.”
The Court expressed some reservations about whether this was an error despite the Minister’s concession that it was. The issue then became one of materiality. Existence or non-existence of a realistic possibility that the decision could have been different is a question of fact which the applicant in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof. In this case the applicant did not establish that there is a realistic possibility the decision would have been different if his children were able to give their views. Overall, considering that the applicant’s children are quite young, it is reasonable for their mother to speak on their behalf of their wishes to maintain a relationship with their father.
If you want to read the whole case: Calvey v Minister for Immigration [2022] FCAFC 104.
Creative commons acknowledgment for the photograph.
by Paul Cutler | Jun 30, 2022 | Uncategorized
Mr Alexander was born in Australia in 1986 and acquired both Australian and Turkish citizenship at the time of his birth. His case in the original High Court challenged the constitutional validity of section 36B Australian Citizenship Act. That section provides for cessation of citizenship if certain conduct is engaged in (eg engaging in foreign incursions) outside of Australia. Perhaps it is sufficient to say that the case was conducted through a litigation guardian because his family and lawyers have not been able to contact him since 15 July 2021, shortly after he told them that he was being transferred to the Branch 235 prison in Damascus, Syria, operated by Syrian intelligence.
Like many constitutional law judgments (Alexander v Minister for Home Affairs [2022] HCA 19) it is long and complex with one dissenting judgment (Stewart J upheld the validity of 36B). The most succinct reason that I can distill for the invalidity was expressed by Gordon J who found that denationalisation is a punishment and at [173]: “Section 36B is contrary to Ch III. It confers on the Minister the power to impose a sanction upon a person (involuntary cessation of citizenship) for engaging in past conduct of a kind identified as warranting the condemnation of the Australian community. It permits the Executive to do what it cannot: to “exercise judicial power and act as prosecutor and judge to punish breach of law by executive fiat or decree“.
There is a lot of quite interesting historical discussion about deprivation of citizenship in ancient Rome and outlawry from the time of the Norman conquest. In any event 36B was invalid because it contravened the separation of powers. Mr Alexander is still an Australian citizen and is (presumably) still in a Syrian prison.
Creative commons acknowledgment for the photograph.
by Paul Cutler | Jun 24, 2022 | Uncategorized
The Court may grant an extension of time for filing a judicial review application under section 477(2) if it considers it is in the interests of justice to do so. This usually involves inter alia a “reasonably impressionistic” examination of the merits. In FKV17 v Minister for Home Affairs [2022] FCAFC 93 case management orders were made for the determination of the extension of time issue and for a later hearing if the extension was granted. When the matter came before Judge Vasta (recently infamous for imprisoning family law parties for contempt), he effectively conducted a full hearing, found the grounds without substance and dismissed the application for a time extension.
My first reaction was what’s wrong with that? If the grounds fail then there can be no extension time.
Well, it actually raises some complicated admin law principles about the constitutional writs, “conflating of powers”, inferior courts and the High Court cases of Craig and Kirk. It also resulted in a 2:1 majority decision (in the Applicant’s favour) but even the judges in the majority had different reasons. However, the simplest explanation was given by Rangiah J at [153]: “In this case, the approach taken by the FCC judge to the application under s 477(2) of the Act was to determine whether the proposed grounds would ultimately succeed or fail, rather than to assess their prospects of success. His Honour did not suggest that the grounds were unarguable. His Honour determined that each ground “fails”, and refused an extension of time primarily for that reason. That approach conflated the Federal Circuit Court’s function under s 477(2) of determining an application for an extension of time with its function under s 476 of determining a substantive application. It must be concluded that the FCC judge misconstrued s 477(2) and thereby fundamentally misconceived the nature of the Federal Circuit Court’s function. Subject to the question of materiality [it was] the error was a jurisdictional error”.
Creative commons acknowledgment for the photograph.
