Taulahi v MIBP [2018] FCAFC 22 (19 February 2018)

Case Summary & Extract

Taulahi v Minister for Immigration and Border Protection [2018]
FCAFC 22 (19 February 2018)

A unanimous decision of the Full Court of the Federal Court holding that it was open to the Minister, in considering how to exercise his discretion under Section 501(3) of the Migration Act to cancel the applicant’s visa, to conclude that the events described in an Australian Criminal Intelligence Commission’s report relating to AVOs against the applicant occurred despite the lack of criminal charges and convictions.

Full decision at:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2018/22.html

See below for a summary of the case including key elements of the decision followed by a detailed extract from the case.


Case Summary – Key elements from the decision

The Minister personally cancelled the applicant’s visa under s 501(3) of the Migration Act (Act) on the basis that, in the Minister’s view, the applicant had failed the character test set out under s 501(6) and that it was in the national’s interest for the visa to be cancelled.

10. The Minister stated [in his decision] … that he reasonably suspected that [a group] had been and was involved in criminal activity and … that he reasonably suspected that the applicant did not pass the character test in that the Minister reasonably suspected that he had been a member of [that group] and that that group had been and was involved in criminal conduct.

12. The Minister then went on to address other considerations, recognising that the power to cancel a visa under s 501(3) is discretionary …

One of those other considerations was the risk to the Australian Community in relation to which ‘the Minister considered at some length the applicant’s criminal history and said that of particular concern were the applicant’s criminal offences involving violence‘.

16. In a paragraph central to the … ground of judicial review, under the heading “Other Serious Conduct”, the Minister said:

45. I considered the information report provided by the ACIC which confirms that [the applicant’s] former girlfriend … obtained three Apprehended Violence Orders against [the applicant] … following a number of intimidation and assault incidents. I noted that [the applicant’s] conduct did not result in any criminal charges, however I find [the applicant’s] behaviour is a further indication of his propensity to engage in intimidating conduct.
20. The applicant submitted, first, that the incidents were merely untested allegations, assuming the Australian Criminal Intelligence Commission (ACIC) summary was an accurate summary of the allegations made. Second, the incidents were not proven to have occurred. Third, there was no probative evidence before the Minister that the applicant had committed any of the ‘incidents’. Fourth, the applicant was not charged or convicted in relation to any of the incidents. Fifth, the issuing of an AVO was not a finding of guilt.

31. In my opinion, it was open to the Minister to conclude that the events set out in the ACIC’s report had occurred even where there were no criminal charges or criminal convictions …’.

North and Besanko JJ agreed with Robertson J’s orders and reasons.


Case Extract – Elements from the full decision

Court: Federal Court of Australia
Applicant: Tomasi Taulahi
Respondent: Minister For Immigration and Border Protection
Judges: North, Besanko and Robertson JJ
Judgement for: the respondent

Robertson J

‘3. The applicant seeks judicial review of a decision made personally by the Minister for Immigration and Border Protection to cancel the applicant’s Class BS Subclass 801 Partner (Residence) visa under s 501(3) of the Migration Act 1958 (Cth).

The statutory provisions

6. The relevant statutory provision, s 501(3), was in the following terms:

Decision of Minister—natural justice does not apply

(3) The Minister may:

(a) refuse to grant a visa to a person; or

(b) cancel a visa that has been granted to a person;

if:

(c) the Minister reasonably suspects that the person does not pass the character test; and

(d) the Minister is satisfied that the refusal or cancellation is in the national interest.

9. By s 501(6):

Character test

(6) For the purposes of this section, a person does not pass the character test if:

(b) the Minister reasonably suspects:

(i) that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and

(ii) that the group, organisation or person has been or is involved in criminal conduct;……

The Minister’s decision

10. The Minister stated [in his decision] … that he reasonably suspected that [a group] had been and was involved in criminal activity and … that he reasonably suspected that the applicant did not pass the character test in that the Minister reasonably suspected that he had been a member of [that group] and that that group had been and was involved in criminal conduct.
11. … the Minister concluded that the cancellation of the applicant’s visa was in the national interest having regard to his past close involvement with the [group].
12. The Minister then went on to address other considerations, recognising that the power to cancel a visa under s 501(3) is discretionary. The Minister considered whether there were relevant considerations that might support not cancelling the applicant’s visa, despite his satisfaction that it was in the national interest to do so.
14. In relation to the risks to the Australian community, the Minister considered at some length the applicant’s criminal history and said that of particular concern were the applicant’s criminal offences involving violence.
16. In a paragraph central to the … ground of judicial review, under the heading “Other Serious Conduct”, the Minister said:

45. I considered the information report provided by the ACIC which confirms that [the applicant’s] former girlfriend … obtained three Apprehended Violence Orders against [the applicant] … following a number of intimidation and assault incidents. I noted that [the applicant’s] conduct did not result in any criminal charges, however I find [the applicant’s] behaviour is a further indication of his propensity to engage in intimidating conduct.

Ground of the application for judicial review

17. The remaining ground of the applicant’s amended originating application, by which he seeks an order that the Minister’s decision be set aside, is as follows:

3. The decision of the Minister is infected with legal unreasonableness because the Minister took into account irrelevant material, or based his decision on a fact that did not exist.

Particulars

(i) In making a decision to cancel the visa under s501(3) of the Migration Act 1958, the Minister stated at [45]:

Other Serious Conduct

[see the Minister’s reasons at [16] above]

(ii) The Minister states as a fact that the Applicant had engaged in ‘intimidation and assault incidents’ in relation to [the former girlfriend]. However, the Applicant never had charges laid against him in relation to the allegations of ‘intimidation and assault incidents’. The Applicant is entitled to the presumption of innocence in relation to allegations of committing an offence or committing offences. The Minister therefore committed a jurisdictional error by relying on a fact that did not exist and or or (sic) by taking into account irrelevant material.
20. The applicant submitted, first, that the incidents were merely untested allegations, assuming the Australian Criminal Intelligence Commission (ACIC) summary was an accurate summary of the allegations made. Second, the incidents were not proven to have occurred. Third, there was no probative evidence before the Minister that the applicant had committed any of the ‘incidents’. Fourth, the applicant was not charged or convicted in relation to any of the incidents. Fifth, the issuing of an AVO was not a finding of guilt.


21. The applicant then referred to Woolmington v Director of Public Prosecutions [1935] UKHL 1; [1935] AC 462at 481- 482 per Viscount Sankey LC, as follows:
Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt …
22. … At best, the applicant submitted, the ‘incidents’ referred to in the ACIC summary were mere allegations of conduct said to be attributed to the applicant. Despite this, the Minister relied on that mere summary to find that the applicant actually conducted himself in the manner described in the incidents. On the evidence, the applicant submitted, it was legally unreasonable for the Minister to make that finding.

Analysis

26. … the Minister was engaged in an evaluative exercise in the course of deciding how to exercise his discretion in s 501(3) …
27. The Minister’s decision-making was administrative, even if it involved a finding of behaviour which could found criminal proceedings … [T]he question of the commission of an offence is not the express statutory subject matter or jurisdictional fact where the issue is the exercise of the s 501(3) discretion.
29. Contrary to the submissions of the applicant, that material was plainly relevant to the Minister’s exercise of his discretion. As I have said, the Minister was engaged in an administrative process. He was not determining guilt or innocence and was not otherwise involved in the criminal justice process. It follows that the principle in Woolmington is not presently relevant.
30. No negative inference as to the scope of fact-finding relevant to the exercise of the discretion in s 501(3) is to be derived from the terms of s 501(6) dealing with the character test and expressly referring in various paragraphs to crime, criminal records, criminal convictions and criminal conduct.
31. In my opinion, it was open to the Minister to conclude that the events set out in the ACIC’s report had occurred even where there were no criminal charges or criminal convictions. Put differently, there was material before the Minister on which he could base the conclusions that he reached at [45] and the no evidence ground of judicial review has not been made out …’.

Sergio Zanotti Stagliorio, Juris Doctor (The University of Sydney)
Registered Migration Agent (MARN 1461003)


* The above text merely contains a summary and extract of a court decision and should not be treated as immigration assistance, immigration legal assistance nor legal advice. We disclaim liability in tort, equity or otherwise for any action (or lack of) taken based on the above content. If you need immigration assistance, please consult your Registered Migration Agent. If you need immigration legal assistance or legal advice, please consult your lawyer.

Published on 8 March 2018.