FEDERAL COURT OF AUSTRALIA

Tupai v Minister for Home Affairs [2018] FCA 986

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the respondent’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

GREENWOOD ACJ:

1    These proceedings are concerned with an application by Mr Luani Tupai by which the applicant seeks the issue of the constitutional writs in relation to a decision of the delegate of the Minister for Home Affairs (the “Minister”) of 3 June 2016 and a decision made by the Minister personally on 6 February 2018.

2    On 3 June 2016, the Minister’s delegate made a decision, under the provisions of the Migration Act 1958 (Cth) (the “Act”), to cancel the applicant’s visa described as a Class TY, Subclass 444, Special Category (Temporary) visa (the “visa”), under that Act. In doing so, the Minister’s delegate cancelled the visa under s 501(3A) of the Act (the “original decision”). I will return to that section of the Act later in these reasons.

3    On 6 February 2018, the Minister decided that he could not be satisfied as to the subsistence of either of the preconditions contained in s 501CA(4)(b) of the Act to the exercise of a discretionary power to revoke the original decision of the delegate conferred upon the Minister under s 501CA(4) of the Act. That being so, the Minister concluded that because “my power to revoke is not enlivened”, that is to say, not engaged, “Mr TUPAI’s Class TY Subclass 444 Special Category (Temporary) visa remains cancelled”: Minister’s Statement of Reasons (the “Reasons”), para 86.

4    Section 501CA(7) of the Act provides that a decision of the Minister not to exercise the power of revocation conferred by s 501CA(7) is not reviewable under Part 5 or Part 7 of the Act.

5    The applicant challenges both decisions, but, in particular, the decision of the Minister, made personally, on 6 February 2018, on the ground that in reaching his decision the Minister fell into jurisdictional error.

6    The applicant recites the grounds of his application by reference to two matters. The two grounds, on the face of the application, are said to be relevant to both decisions. The first ground has particular content but before examining that ground it will be necessary to explain aspects of the contextual background.

7    The second ground simply refers to the grounds set out in the applicant’s affidavit filed on 28 February 2018 in support of the application filed on that date. The affidavit is not particularly helpful because it simply says, in respect of each decision, that the respondent fell into jurisdictional error because the respondent: took into account irrelevant considerations; failed to take into account relevant considerations; failed to comply with the rules of natural justice/procedural fairness; reached a decision which involved an error of law; and so far as the Minister directly is concerned, the Minister did not “properly apply” ss 501CA(3) or 501CA(4) of the Act. The affidavit also contends by para 9 that the respondent “failed to exercise the discretion under s 501a CA … of the [Act]”.

8    The Act does not contain a provision described as s 501a CA. The applicant seems to be suggesting that the real question in issue is whether the Minister fell into jurisdictional error in the way in which the Minister reached his decision that the discretionary power conferred upon the Minister under s 501CA(4) to revoke the original decision was not engaged, having regard to the “character test” contemplated by s 501, in conjunction with other factors.

9    The applicant acts on his own behalf. He is not assisted by lawyers. He is presently in detention at Yongah Hill Immigration Detention Centre. On the hearing of the application on 18 June 2018, the Court made arrangements for a video-link to be in place between the Court and the Yongah Hill Immigration Detention Centre. Mr Tupai made oral submissions in support of his application, by video-link. The grounds recited in his affidavit as described at [7] and [8] of these reasons are not supported by any content at all. Ground 1 is set out in more precise terms and I will return to that ground later in these reasons.

10    In the course of oral submissions, the Court asked Mr Tupai whether he had had any assistance in formulating the grounds recited in his affidavit as described at [7] and [8] of these reasons. Mr Tupai said that the language of those grounds had been given to him by an inmate. Mr Tupai also said that he had adopted those grounds on the basis that they may raise questions relevant to the decisions now under challenge. He accepted that he had not been able to frame the grounds by reference to specific matters. The Court nevertheless asked Mr Tupai, ground by ground, to identify matters that might fall within each ground. I will return to those responses later in these reasons.

11    At the outset of the hearing, Mr Tupai said that he was “not well at the moment”. He said that he was suffering from “mental problems” and that he was “ill”. He said that he was suffering from “health issues” related to diabetes, his heart and blood pressure. He said that he was suffering from depression. He said that he was sometimes seeing things and hearing things which may be part of his depression. He said that “he needs someone to speak on his behalf”. He said that he had attempted to obtain legal advice about two weeks ago by contacting one of the staff of “Bono Lawyers”. He says that he was told that those lawyers would not “take on the case”. Based on these considerations, Mr Tupai sought to have the hearing of his application adjourned.

12    The Court refused to adjourn the hearing of the application. The application for an adjournment was opposed by the Minister. The Court observed that the application had been filed on 28 February 2018 and had been allocated a hearing date of 5 June 2018 on 19 March 2018. Various directions were made on 19 March 2018 as well. Moreover, the hearing of the application had been adjourned from 5 June 2018 to 18 June 2018. The Court observed that attempts by Mr Tupai to obtain legal advice as recently as two weeks before the hearing were too late in the day to be seeking legal representation. The Court observed that leaving aside legal questions related to whether questions of jurisdictional error properly arise, Mr Tupai ought to be able to identify, on the facts known to him, the matters of concern which he says were not properly considered by the Minister or matters which were considered which, in his view, ought not to have been considered and facts relevant to each ground of contended jurisdictional error upon which he relies. The Court observed that Mr Tupai would be given an opportunity to explain to the Court each of the matters which are of concern to him going to each ground he has raised and the Court would then determine whether those matters give rise to jurisdictional error in respect of either decision.

13    Accordingly, the application for an adjournment was refused and the hearing proceeded.

14    Section 501 of the Act bears the heading “Refusal or cancellation of visa on character grounds”.

15    Section 501(3A) provides that the Minister “must cancel” a visa which has been granted to a person if the Minister is satisfied that the person does not pass the character test “because of the operation of”, relevantly, subsection (6)(a) “on the basis of” subsection (7)(c) of s 501, and “the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory”: s 501(3A)(b).

16    Subsection (6)(a) provides that, for the purposes of s 501, a person does not pass the character test if the person has a “substantial criminal record” as defined by subsection (7). Relevantly for present purposes, subsection (7)(c) provides that, for the purposes of the character test, a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more”. Accordingly, if the Minister is satisfied that the person does not pass the character test because of the operation of subsections (6)(a) and (7)(c), and the person is serving a sentence of imprisonment as earlier described, the Minister must cancel the visa granted to the relevant person.

17    Section 496 of the Act provides that the Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under the Act (subject to those powers that must be exercised by the Minister personally an example of which is s 501(3) by reason of s 501(4)). The delegate is, in the exercise of a power so delegated, subject to the directions of the Minister.

18    In this case, the applicant’s visa was cancelled under s 501(3A) by the Minister’s delegate.

19    Section 501CA bears the heading “Cancellation of visa – revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)”. Section 501CA(1) provides that the section applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person. In this case, the Minister made a decision, by his delegate, to cancel, under s 501(3A), the visa granted to the applicant. Section 501CA(3) provides that as soon as practicable after the making of the original decision, the Minister must give the person, in the way that the Minister considers appropriate in the circumstances, a written notice that sets out the original decision and particulars of “relevant information” as defined by s 501CA(2). The Minister must also, as soon as practicable after the making of the original decision, invite the relevant person to make representations to the Minister, within the period and in the manner determined in accordance with the Regulations made under the Act, about revocation of the original decision.

20    Section 501CA(4) provides that the Minister “may revoke the original decision” if the person makes representations in accordance with the invitation contemplated by s 501CA(3) and the Minister “is satisfied”, either, that the person passes the character test as defined by s 501 or that there is “another reason why the original decision should be revoked”: s 501CA(4)(b).

21    If the Minister revokes the original decision, the original decision is taken not to have been made.

22    In this case, the Minister invited the applicant to make representations in a manner and within a defined time and the applicant did so.

23    As to the content of that matter, the following things should be noted. As already mentioned, the delegate, by letter dated 3 June 2016, gave notice to the applicant under s 501(3A) of the Act that his visa had been cancelled having regard to s 501(6)(a), s 501(7)(c) and the source of the power in s 501(3A). In that letter, the delegate advised the applicant that although his visa had been cancelled and he no longer held a visa, an opportunity was available to him to make representations about revoking that decision. The letter tells the applicant that the representations must be made in accordance with the instructions set out in the letter.

24    On 20 June 2016, the applicant requested revocation of the cancellation decision. In the application document, the applicant recites, as the reason for revocation (as written), this: “I’ve been here 16 years my whole family resides in Australia”. In the written application, the applicant provides some information about his three children and as to contact with these children, the applicant said this (as written): “very close 12 yr old is under my care but my mum looking after her cause I’m in prison”.

25    In the document, the applicant is asked whether he has any concerns or fears about what would happen to him on return to New Zealand. In response, he said that he did hold concerns or fears about “Gang Wars”.

26    The applicant attached to his application a 14 page handwritten statement addressing the circumstances of his upbringing, the factors that influenced his development, his relationship with particular individuals and circumstances relating to the role of his mother and also the applicant’s relationship with his children. I mention many aspects of these things later in these reasons.

27    In support of his application for revocation of the cancellation decision, the applicant also put before the Minister submissions made by the applicant’s mother (a letter dated 25 June 2016 signed “Moa Tupai”), a letter from Reverend Lance Tautiepa dated 26 June 2016, a letter from the applicant’s sister-in-law, Susan Tupai, and other documents including statements made by his daughter, Leilani.

28    By an undated letter (although the Minister contends that the letter, described as a Procedural Fairness letter, was handed to the applicant on 10 February 2017: see the reference to Attachment M in the Minister’s Statement of Reasons at p 16) from the Department of Immigration and Border Protection, the applicant was invited to comment on “information which has been received and which may be taken into account when making the decision whether to revoke the decision to cancel your visa under s 501CA of the [Act]”. The information consisted of: “National Police Certificate dated 15 June 2016; Transcript of Proceedings of Beenleigh Magistrates Court on 10 March 2016”. The applicant was asked to respond with any observations concerning those documents within 28 days.

29    By letter dated 18 August 2017 from the Department of Immigration and Border Protection, the applicant was asked to comment on information consisting of or contained in 11 identified documents. A copy of the documents was enclosed with the letter. It is not necessary to list each one of those documents. The applicant was told that the information might be taken into account in making a decision whether to revoke the original decision to cancel his visa. The applicant was invited to comment on the information within 28 days from a date on which he would be taken to have received the letter. The applicant responded by submitting a nine page handwritten letter which seems to be dated 18 September 2017 having regard to another document. As to the handwritten letters of the applicant, it should be noted that the letters are clearly written and easily understood. I have examined all of the handwritten responses from the applicant.

30    The Minister then considered whether the original decision ought to be revoked and, in doing so, embarked upon a consideration of whether he could be satisfied of either of the two relevant factors contained in s 501CA(4)(b) of the Act as described above.

31    In these proceedings, the applicant contends that both the decision of the delegate and the decision of the Minister personally is affected by jurisdictional error. The decision of the delegate under s 501(3A) is expressly subject to a power invested in the Minister, as described, to revoke the original decision of the delegate if the Minister is satisfied of the relevant matters as described. The applicant, having invoked the application of s 501CA, the primary question is whether the decision of the Minister of 6 February 2018 is affected by jurisdictional error.

32    Later in these reasons I will return to the decision of the delegate.

33    It is now necessary to consider aspects of the factual considerations and the reasons of the Minister.

34    The applicant is a citizen of New Zealand. He was born on 5 February 1973 and arrived in Australia on 29 October 1998. He was granted the visa on his arrival. At paras 41 to 51, the Minister, in his reasons, notes aspects of the applicant’s past criminal conduct. On 1 April 2003, Mr Tupai was convicted in the District Court of Queensland of “Robbery with Actual Violence – Armed with Dangerous/Offensive Weapon Instrument” and sentenced to two years imprisonment, suspended after serving six months. The court brief of the Queensland Police Service recites that a male person entered the front of a convenience store armed with a machete. The person was dressed in a long dark coloured shirt, a red coloured scarf and a black coloured beanie that was used to cover his face. The male person demanded money from the assistant and when she refused, he wielded the machete in her direction before stabbing the machete into the cash register which forced the cash drawer to open. He then grabbed the cash register and ran from the store. The person then got into a vehicle driven by another male person. The male person driving the vehicle was the applicant.

35    Police officers located the vehicle used in the course of the robbery. It had been seen leaving the location of the offence. Mr Tupai admitted involvement in the offence and identified the location of the machete used in the offence. The applicant voluntarily attended the police station for an interview and said that during the afternoon prior to the robbery, he had been drinking and had used “speed”. The applicant told the police that he had been parked across the road from the location of the offence while the other male ran into the store and returned with the cash register.

36    Mr Tupai provided a number of handwritten statements (representations) for use by the delegate in relation to the matters arising under s 501(3A) and statements (representations) in relation to the matters arising under s 501CA of the Act.

37    At para 43, the Minister notes the applicant’s written explanation of his involvement in this robbery. The applicant said that he drove the male who committed the robbery to the shops not knowing that this man was going to rob the shop. He said that he drove the man to Kuraby just around the corner from Logan, Kingston and parked the car outside the shop. He said that he was told to “keep the car running”. He said that the next thing he saw was “the teller machine go flying in the front passenger seat”. He said that he “freaked out not knowing what to do so I just step on the gas pedal and took off, my heart was beating 100 miles per hour”.

38    The Minister in the Reasons also notes the applicant’s statement that the “till machine” only contained $120 “but because we were off our heads, which is no excuse, we went to the bottle store and went back to the party where [his partner] was”. The applicant acknowledged that somebody would have seen the number plate of the vehicle. He said that within “a couple of days” the police arrived and asked him to accompany them to the police station.

39    The Minister, at para 44, also notes that on 26 August 2015, the applicant received a fine for a further violence-related offence of “assault or obstruct police officer”.

40    The Minister notes at para 45 that in March 2016 the applicant was convicted of violence-related offences of “assault or obstruct police officer” (on 1 February 2016) and “contravention of domestic violence order” (on 1 February 2016) which resulted in the applicant receiving “a total effective sentence of nine months imprisonment with immediate parole which he breached almost immediately when he slapped his partner after she threw a glass at him”. That explanation is to be found in the applicant’s written submission at p 10.

41    At para 46, the Minister notes that at the sentencing hearing in 2016 in the Magistrates Court, the Magistrate noted that the applicant had entered guilty pleas. The Minister also notes the Magistrate’s observations that the applicant “has a criminal history which, although quite dated, is serious”.

42    The Minister also notes the Magistrate’s further observation that none of the fines imposed upon the applicant in the past seven years had been paid.

43    At para 47, the Minister also had regard to a National Police Certificate concerning the applicant which shows multiple breaches of bail conditions in 2016 (between 4 February 2016 and 9 February 2016; on 12 February 2016; and between 22 February 2016 and 26 February 2016); a failure to appear in accordance with an undertaking given by the applicant (on 24 February 2016 and on 10 March 2016) and a conviction (on 5 July 2013) for contravening a direction or requirement of a police officer (given on 20 May 2013).

44    At para 48, the Minister observes that the applicant also has a criminal history in New Zealand from 1990 to 1995 which relates to convictions he received for public nuisance offences and breaches of judicial orders. The Minister notes that the applicant’s traffic history includes convictions for “driving while disqualified, unlicensed driving” and “driving under the influence of alcohol”. The Minister observes at para 48 that he regards offences such as driving under the influence of alcohol as “serious” because of the potential harm to other road users. The Minister acknowledges that the applicant’s criminal history in New Zealand is “dated” but considers that “it contributes to his demonstrated history of criminality nonetheless”.

45    The applicant’s former partner (or one of his former partners) is Ms Theresa Scanlan. The applicant made submissions that he has a son, Maximus, with Ms Scanlan. Ms Scanlan sought and obtained a “temporary protection order” against the applicant. The applicant made submissions concerning the circumstances of that order. The Minister notes the applicant’s submission set out in the handwritten submissions. The Minister has taken the applicant’s explanation of this event into account and notes the account as follows:

He submits that he had not seen Ms Scanlan for a year when she suddenly picked him up from his mother’s house [the applicant’s mother’s house] with his son sitting in the back of her car. He stated that Ms Scanlan kept his son away from him and that he had only seen him twice in four years. Mr TUPAI stated that he had accompanied her to her mother’s house where her two young daughters were waiting for her. He stayed there that night and the next morning Ms Scanlan told him she was going to drop them off at her ex-partner’s house. Mr TUPAI waited in the car with his son and stated that he dozed off and woke to hear the back door of the car slam and the ex-partner taking his son into the house. Mr TUPAI stated that he knocked on the door and asked Ms Scanlan why her ex-partner took the baby, only to have the ex-partner lash out at him with a hammer. Mr TUPAI added that he grabbed hold of a pipe to protect himself and was yelling at him to come outside when the police turned up, locking him up for a few hours and then serving him with the protection order. Mr TUPAI said that it was the first time he had seen the man and had never been back to that house since then.

46    At para 50, the Minister also notes “with concern” that Mr Tupai has a number of convictions for breaches of conditional liberty. The Minister observes that this “demonstrates a disregard for the law that I find indicative of Mr TUPAI’s propensity to offend”.

47    The Minister also notes at para 51 that a pending charge recited on the National Police Certificate for the applicant, dated 15 June 2016, was dismissed. The Minister also notes that the applicant “has had bursts of criminality over a long period of time, however he has also had a long period of lawfulness from April 2003 until September 2010”.

48    At paras 52 and 53, the Minister said this:

52.    I find that the sentence that Mr TUPAI received is a further indication of the seriousness of his offending. Dispositions involving incarceration of the offender are the latest [last] resort in the sentencing hierarchy and I have considered that the court viewed the offending as very serious, as do I.

53.    Given Mr TUPAI’s criminal history, his questionable insight and remorse and his proven willingness to breach conditional liberty and court orders, I find there is an ongoing risk that he may re-offend. Should Mr TUPAI re-offend, it may result in psychological or physical harm to the Australian community, as well as financial cost to the community through any required use of law enforcement resources and the criminal justice system.

49    At para 7 of the Reasons, the Minister says that he has considered the representations made by the applicant and the documents the applicant submitted in support of his representations. The Minister notes at para 8 that in those representations, the applicant does not dispute the information contained in the National Police Certificate dated 15 June 2016 regarding the applicant’s criminal convictions and sentences.

50    The Minister observes that the applicant does not dispute the notion that he does not pass the character test.

51    The Minister observes at para 9 that he is not satisfied that the applicant passes the character test having regard to s 501, and, in particular, s 501(7)(c) and thus s 501CA(4)(b)(i) of the Act is not met. That subsection provides that the Minister may revoke the original decision if the Minister is satisfied that the person passes the character test as defined by s 501 (assuming representations have been made in accordance with the relevant invitation as is the case here).

52    That being so, the Minister then notes that, in the light of the applicant’s representations, the Minister has considered whether he is able to be satisfied “that there is another reason why the original mandatory visa cancellation decision should be revoked”. That consideration arises under s 501CA(4)(b)(ii) which provides that the Minister may revoke the original decision if the Minister is satisfied that there is another reason why the original decision should be revoked. In undertaking that assessment, the Minister says that he has assessed all of the information set out in the attachments put before him including the applicant’s representations and the documents submitted in support of those representations.

53    At para 12, the Minister notes that the applicant’s representations fall into four categories, that is, the applicant has lived in Australia for the past 16 years and his whole family lives here; the applicant fears returning to New Zealand due to the gang wars; the impact of his removal on his family; and the support he has from his family in Australia.

54    Having identified those broad categories, the Minister embarks upon a consideration of where the best interests of children under the age of 18 might lie.

55    The Minister, at para 13, says this;

13.    In considering whether or not I am satisfied that there is another reason why the original decision should be revoked, I acted in conformity with Article 3 of the United Nations Convention on the Rights of the Child, and treated the best interests of any affected child under 18 in Australia as a primary consideration and have concluded that it is in the best interests of Mr TUPAI’s children and minor relatives for the original decision to be revoked.

56    As to that matter, the Minister notes the following factors.

57    The Minister notes that the applicant has three minor biological daughters, Leilani Tupai, born 28 August 2003, aged 14; Lemau Tupai, born 3 November 2005, aged 11 [although it should be noted that Lemau, born on 3 November 2005, would have been 12 as at the date of the Reasons, 7 February 2018]; and Lucy Tupai, born 3 July 2007, aged 10.

58    The Minister notes the applicant’s submission that his daughter, Leilani, is the child born from his relationship with his de facto wife, Ms Maryanne Timaloa, an Australian citizen, who passed away at age 23 from a brain aneurysm, leaving him with full custody of Leilani. The Minister notes the applicant’s submission that his mother is currently caring for his three daughters and that she is struggling to care for them as she can barely walk. The Minister notes the applicant’s mother’s submission that the applicant’s three daughters have been “emotionally drained” since their father’s imprisonment. The Minister also notes that Leilani Tupai has stated in a letter that “she loves her father, misses him and needs him to help her with her homework because her grandmother is getting old and sick”. The Minister’s also notes that Leilani says that she “misses her father and prays for his return every day”.

59    The Minister also notes the applicant’s submission that his two daughters Lucy and Lemau were born from another relationship with an unnamed former partner and limited details in relation to each of them are available to the Minister.

60    The Minister also notes that the applicant has a son, Maximus, as earlier described and also notes the applicant’s submission that “he has only seen [Maximus] twice in the past four years, stating that he is unsure as to whether the boy is his child”.

61    At para 20, the Minister makes this finding:

20.    I find that it is in the best interests of Leilani, Lucy and Lemau Tupai as well as his son, Maximus, that I revoke the original decision to cancel Mr TUPAI’s visa, enabling the children to establish or maintain their relationship with him.

62    The Minister also notes that the applicant has submitted that he has grandchildren born to a daughter, Shaneese. The Minister says that the applicant has not provided any information regarding his grandchildren. However, the Minister says this at para 21:

21.    I find that any grandchildren will suffer emotional distress in the event of a non-revocation to the extent that they are permitted by law to have a relationship and should they wish to do so.

63    Apart from these considerations, the Minister notes that in coming to his decision about whether or not he can be satisfied that there is another reason why the original decision should be revoked, he has had regard to the “strength, nature and duration of Mr TUPAI’s ties to Australia”: para 22.

64    As to that matter, the Minister notes these things.

65    The applicant has resided in Australia for 18 years having arrived as an adult in 1998 aged 25. The Minister observes that given the length of his residence in Australia, the Minister considers that the Australian community would afford “a higher level of tolerance for Mr TUPAI’s offending”. The Minister notes that the applicant has family and social ties to Australia. He has a partner in Australia, Ms Wendy Richards, in addition to his mother, Ms Moalulu Tupailevaililigi, four daughters, a brother, a sister-in-law, 20 uncles and aunts, 16 nephews and nieces and 50 cousins.

66    The Minister notes the applicant’ submission that he is currently in a relationship with Ms Richards.

67    The Minister also notes that Ms Richards has sought and obtained a protection order against the applicant which was in force until 1 December 2017. The Minister also notes the applicant’s statements about Ms Richards contained in his written representations (which are set out at p 95 of the Court Book) in these terms (as written):

… I have never met a woman that is so evil like this one on the face of the earth this one is the most ruthless female that I’ve ever met she manipulated me intimidated me and also used me for everything even made me turn on my own family …

68    The Minister notes that no representations have been made by Ms Richards in support of the applicant “and as such pause in accepting their continuing relationship”: para 25.

69    As to the role of the applicant’s mother, the Minister says this at para 26:

[Ms Tupailevaililigi], is currently caring for his three children and states that she needs her son to come home so that he can care for his children while she is in hospital. A letter from Dr Chang Wai states that Mrs Tupailevaililigi needs her son’s help in her activities of daily living. A report from another doctor, Dr Chiang-Leng Teo states that she suffers from asthma, hypertension, osteoarthritis, limited mobility, had a stroke in 2014 and requires a right knee replacement soon.

70    At para 26, the Minister reaches this finding:

I find that a non-revocation decision will result in emotional, financial and practical hardship for Mr TUPAI’s mother.

71    As to the daughter, Shaneese, aged 20, the Minister notes the applicant’s statement that he has not seen her for at least two years.

72    The Minister also notes at para 28 submissions made the applicant’s sister-in-law, Ms Susan Tupai, that the applicant’s family “desperately need him to come home” as he is the strength of the family. The Minister notes Ms Susan Tupai’s statement that the applicant has always taken great care of his mother and his daughter, Leilani, of whom he has full custody from the time when Leilani’s mother died when Leilani was seven months old. Ms Susan Tupai made submissions that the applicant is “a kind-hearted and loving man whose mother and daughter desperately need him to come home” and that he is “the strength of his family and has always been the protector through much of the tragedy that the family has suffered”. She says that she and her husband, the applicant’s brother, will support him.

73    At para 29, the Minister makes this observation:

I find that a non-revocation decision will result in emotional hardship for Mr TUPAI’s brother and sister-in-law. I consider that such a decision will have a similar effect on his other family members in Australia.

74    The Minister notes the submission of the applicant’s nephew, Pano Iosefa, that the applicant was “there for the family”, “unconditionally” and helped Pano to finish his final year at school. The Minister notes that the nephew states that if it were not for the applicant, he would not have been able to achieve what he did and the one true thing he believes about the applicant is that he is “a good man”.

75    The Minister also notes that the applicant was employed in Australia from 2008 until 2010 working in despatch at a warehouse. However, since 2010 the applicant has been in receipt of a disability pension. The applicant’s mother describes him as the sole income provider for their family. The Minister says that he has taken these matters into account in his deliberations. The Minister finds that the applicant:

… has been making something of a positive contribution for a number of years to the community through employment activity and I have taken this into account.

76    At para 32, the Minister makes this observation:

I have considered the effect of non-revocation upon Mr TUPAI’s immediate family in Australia and accept that those persons would experience hardship.

77    Having considered those matters, the Minister observes that in assessing whether he can reach a relevant state of satisfaction on the question of whether there is “another reason” why the original decision should be revoked, the Minister has had regard to the “impediments” that the applicant would face if removed from Australia to his home country of New Zealand in “re-establishing himself and maintaining basic living standards”.

78    As to that matter, the Minister notes these things. The applicant is a 44 year old man who suffers from anxiety and depression and is currently medicated for these conditions. He has a history of illicit drug and substance abuse and has had incidents of self-harm while in detention. He has made submissions that he has no relatives in New Zealand. The Minister notes that the absence of support for the applicant in New Zealand is confirmed by others.

79    The Minister also notes the applicant’s submission that he “fears gangs in New Zealand” and this is the reason why his mother decided to move to Australia. The Minister observes that the applicant has not provided any detail as to the basis for such a fear and also notes that New Zealand has an effective police force. The Minister expressed the observation that he considers “that Mr TUPAI can seek the protection of the police should he have any concerns about his safety in New Zealand”.

80    The Minister also notes that the applicant lived in New Zealand for the whole of his childhood and early adulthood having arrived in Australia at the age of 25. The Minister also finds that New Zealand is “culturally and linguistically similar to Australia and has comparable standards of healthcare, education and social welfare support”. The Minister notes that the applicant will have equal access to these services like any other New Zealand citizen.

81    The Minister then makes this observation at para 38:

Nevertheless, given the presence of his immediate and extended family in Australia, the absence of family in, or ties to New Zealand, the separation from his family, particularly his four children and his lengthy residence in Australia from the age of 25, I find that non-revocation of the cancellation decision will involve substantial hardship for him in the short term. I do not consider this hardship to be insurmountable nor will it prevent him from maintaining basic living standards.

82    The Minister also observes that in reaching a decision about whether or not he can be satisfied that there is another reason why the original decision should be revoked, he has had regard to the consideration of the protection of the Australian community noting, in particular, the applicant’s claim that he is “rehabilitated”. In this context, the Minister says that he has considered “the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens”.

83    I have already identified the Minister’s consideration of the various offences committed by the applicant. It should also be noted, however, that at para 40, the Minister observes that in considering the nature and seriousness of the applicant’s criminal offending, the Minister notes that “violent offences are very serious”.

84    In assessing whether the applicant poses a risk to the Australian community through re-offending, the Minister has had regard “to any mitigating or causal factors in his offending” and has given consideration to the steps the applicant has undertaken “to reform and address his behaviour”. The Minister has also taken into account the applicant’s “overall conduct in the custodial and non-custodial environment, and his insight into the offending”.

85    In relation to these issues, the Minister has had regard to these matters. In the applicant’s representations, he provides background about his childhood in New Zealand. The applicant says that when he started secondary school everything “fell apart” and he started drinking heavily. He became involved in fighting with “blood gangs” in New Zealand and was suspended from school a number of times. He went to Samoa to participate in a church choir. He returned to New Zealand. The suicide death of his brother and the influence of the “blood gangs” resulted in his turning to drugs and alcohol. His mother decided that it would be best to move to Australia where his father was living. His first relationship in Australia was with a woman who was a heroin addict. This resulted in the applicant also becoming addicted to heroin. The applicant says that he left this woman after a few months. After withdrawing from heroin, he never wanted to use drugs again. The applicant’s father died in 2007. His father’s passing, together with the death of his brother and partner, was “too much for him” and he subsequently turned to alcohol. He was on the verge of killing himself when he was admitted to a psychiatric hospital for approximately six months. A second admission occurred for a week in 2016. He became involved again in drugs in 2015 and 2016 and “this time it was worse than before”.

86    The Minister notes that the applicant has made submissions that he has attended a number of courses while in immigration detention which address the cycle of addiction, domestic violence, life stresses and life traps. Five such courses are identified by the Minister.

87    The Minister also notes the applicant’s submission that since being in prison and detention he has become “a changed man” who can now walk away from fights. The Minister also notes that the applicant recognises that he has made poor decisions in the past; associated with the wrong people; and allowed drugs and alcohol to play “a big part in his life”. The applicant made representations that he wishes that he could change things but recognises that he cannot, and prefers to look at the better things he has done through counselling, prayer and Bible studies. The Minister notes the submission that the applicant is “remorseful” and feels that “he” should be punished and “not his daughters and mother”. The Minister notes the applicant’s submission that “they deserve a second chance” and he hopes that he can “become a better father, uncle and son in future”: para 61.

88    At para 62, the Minister says this:

I note that in 2016 the Court gave Mr TUPAI the opportunity of court-ordered parole and he lasted all of two days before being required to serve his sentence. I also note that Mr TUPAI’s family and parental obligations have provided little in the way of protection against his offending since 2010.

89    At para 63, the Minister says this:

I note that in October 2016 Mr TUPAI threatened an officer with harm while in detention when informed that he would be moved to another centre, becoming agitated, abusive and aggressive and slamming his fists against the table. Mr TUPAI has also been involved in incidents of self-harm and was also the alleged victim of an assault by another detainee. At court in 2016 Mr TUPAI’s solicitor stated that stress causes Mr TUPAI to react in a way and that he needs help in dealing with his emotions, which he accepts.

90    The Minister also notes that the applicant’s daughter, Shaneese, has a partner, Mr Moody-Jones and both he and Shaneese have been staying at the applicant’s mother’s house. They both “took off without a word”. The Minister notes that the applicant stated that Mr Moody-Jones, applied for and obtained a temporary protection order against the applicant after they had left the residence. The applicant stated that “prior to the day they left he had not seen them for nearly two years”: para 64.

91    The Minister also notes that the applicant states that he had an argument with Ms Richards because Ms Richards had no drugs and blamed the applicant for that circumstance. The Minister notes the applicant’s submission, as earlier mentioned, that Ms Richards threw a glass at him and he responded by slapping her. The applicant says that the police then “turned up” and he was charged with assault.

92    At para 66, the Minister makes this finding:

I find that Mr TUPAI has provided explanations for his offending that tend to project responsibility onto others or that minimise his responsibility. I note that Mr TUPAI states he “got mixed up with bad women” and that his ex-partner, Ms Richards, is “the most evil and ruthless female”, who manipulated him, turned him against his own family and then took out an AVO against him. I consider that this indicates limited insight by Mr TUPAI into his conduct.

93    The Minister acknowledges the applicant’s efforts at rehabilitation and the family support available to him and that these factors “may lower the likelihood of [his] re-offending”. However, the Minister considers that the applicant’s ability to “resist alcohol and drugs, being factors associated with an increase in the likelihood of [his] re-offending, has not yet been tested in the community nor has he had any exposure in the community …”: para 67.

94    Although the Minister notes the applicant’s representation in 2003 in relation to the robbery with violence offence that he was remorseful, had changed his life around and was devoted to his family with the result, therefore, that there was no risk that he would re-offend, these statements at that time “did little to dissuade Mr TUPAI’s subsequent offending”.

95    At para 69, the Minister notes that on 2 October 2017, the applicant was advised that information had been received by the Department of Immigration and Border Protection that the applicant is a member of the “Mongrel Mob” bikie gang in Logan, Queensland and that the Mongrel Mob is taking over drug supply and trafficking in Logan and that the applicant is involved in that activity. The Minister also notes the applicant’s response of 13 October 2017 that:

… wherever you got the information from is false and misleading. Me and my entire life since I was born until now has never dealt with anyone or any bikie gang.

96    The Minister does not take that matter any further except to note that the applicant had admitted “to a history with gangs in New Zealand prior to his arrival in Australia”.

97    In terms of mitigating factors attributable to family support, the Minister notes that the applicant has family support in the community from his mother, brother, sister-in-law and the Minister of the church he attends. The Minister notes that all of these people believe that the applicant is “deeply remorseful” and “accepts full responsibility for the actions that led to his incarceration” and they are confident that “with all the support systems they have in place for him, he will not re-offend”: para 70.

98    The Minister makes these observations at paras 71 and 72:

71.    I note that Mr TUPAI’s New Zealand Police record contains multiple offences of driving while his driver’s licence was disqualified (1993 (x 2) and 1995) and driving unlicensed with excess alcohol (1992). Mr TUPAI has also incurred a number of breaches of periodic detention (1993, 1994 and 1995). I consider that these breaches indicate a disrespect for judicial or other orders.

72.    I am cognisant that Mr TUPAI has had his visa cancelled previously on 9 June 2004, however the AAT remitted the matter and his visa was reinstated. I consider that notwithstanding the reinstatement of his visa, Mr TUPAI was on notice that criminal conduct could put his visa status at risk.

99    At para 74, the Minister notes that notwithstanding the applicant’s submission that he is remorseful; will not offend if allowed to remain in Australia; has completed rehabilitation programs; and has family support for his rehabilitation:

… past program attendance, sentences of imprisonment and a prior visa cancellation, have failed to curb his offending. Given his criminal offending, history of substance abuse, his proven attitude towards conditional liberty and the untested nature of his rehabilitation as such, I find there remains a risk of Mr TUPAI re-offending.

100    At para 75, the Minister finds that the risk of Mr Tupai re-offending is “a low risk”.

101    At para 76, the Minister finds that should the applicant re-offend “in a similar manner, it could result in physical/psychological harm to members of the Australian community”.

102    By way of conclusion, the Minister observes that the applicant has made representations in accordance with the invitation extended to him in accordance with the provisions of the Act. The Minister is not satisfied that the applicant passes the character test as defined by s 501 of the Act.

103    The Minister then examined the representations made by the applicant in order to determine whether the Minister could be satisfied whether there is another reason why the original decision should be revoked: s 501CA(4)(b)(ii). In undertaking that analysis the Minister gave “primary consideration” to the best interests of the applicant’s children and found that their best interests would be served by revoking the original decision.

104    The Minister also considered the length of time the applicant has engaged with and made a contribution to the Australian community (18 years) and the consequences of non-revocation of the original decision for his other family members. The Minister also gave consideration and “significant weight” to the serious nature of the crimes committed by the applicant which involved violence and found that the Australian community “could be exposed to harm should Mr TUPAI re-offend in a similar fashion”: para 83. The Minister concluded that he could not rule out the possibility of further offending by the applicant.

105    At paras 84 and 85, the Minister said this:

84.    I am cognisant that where harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to invoke the original decision to cancel the visa.

85.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr TUPAI represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children and other minor family members, as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds, employment, familial ties to Australia, and the hardship Mr TUPAI, his family and social networks will endure in the event the original decision is not revoked.

106    At para 86, the Minister concludes that having given full consideration to all of the matters recited in the reasons, the Minister is not satisfied that there is another reason why the original decision should be revoked. The Minister concludes at para 86:

86.    Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and Mr TUPAI’s [visa] remains cancelled.

107    The first ground relied upon by the applicant as the basis for a contention of jurisdictional error on the part of the Minister is this:

The Minister didn’t take into consideration my kids when making his decision. The impact it would have on them if I am removed from Australia and the impact it will have on my mother as she is sick and old and I am the sole parent alive.

108    The fundamental difficulty with that contention is that the above extensive review of the Reasons of the Minister demonstrate that the Minister expressly took those factors into consideration: see [61], [62], and [64] to [66], of these reasons.

109    In the course of oral submissions, the applicant raised a further factual matter which had not been put to the Minister in the course of representations. The new matter is put this way. The applicant’s former partner is buried in Brisbane at Goodna. The applicant’s daughter, Leilani, who is the daughter of that ex-partner, has never visited the gravesite because the applicant is waiting until she achieves a level of age or maturity which would enable him to take her to the burial site. At the time of the Minister’s decision on 6 February 2018, Leilani was aged 14. This matter is a new matter and is put forward as a basis upon which the original decision should be revoked. However, the consideration that the applicant might wish to take Leilani to her mother’s gravesite is not a matter which demonstrates jurisdictional error on the part of the Minister in reaching the decision the Minister reached having regard to all of the documents and the representations made by the applicant.

110    As to the question of whether the Minister took into account irrelevant considerations, the applicant says that the Minister had regard to the period during which the applicant was in remand. The applicant also says that the Minister did not properly have regard to the fact that one of the charges was dismissed.

111    As the review of the Reasons reflects, the Minister had regard in some considerable detail to the precise history of the applicant’s criminal conduct and weighed that conduct in the balance in determining whether the Minister could be satisfied about whether there is another reason why the original decision should be revoked.

112    The applicant also said in oral submissions that he had been accused of being a member of a bikie gang and asserts that, on the facts, the true position is that he has never been a member of a bikie gang. In the course of the Reasons, as indicated above, the Minister notes that the applicant was advised that information had been received by the Department of the kind described above and the Minister also noted the submissions in response. The Minister did not make a finding that the applicant was a member of the “Mongrel Mob”. The Minister did not take the matter of membership of a bikie gang any further than noting the applicant’s admission to a history with “gangs” in New Zealand prior to his arrival in Australia. In any event, the Minister clearly identified all of the factors weighed in the balance which informed the ultimate decision he made.

113    The applicant was unable to provide any content going to the blanket grounds recited in his affidavit. In particular, he was not able to identify any content going to the contention that the Minister in making his decision failed to comply with the rules of natural justice/procedural fairness. Nor could the applicant identify any error of law involved in the Minister’s decision. Nor could the applicant identify any way in which the Minister had failed to act in conformity with the statutory regime and, in particular, with ss 501CA(3) or (4) of the Act.

114    Accordingly, no basis has been demonstrated for a contention of jurisdictional error on the part of the Minister in reaching a decision that he could not be satisfied of either of the matters set out in s 501CA(4)(b)(i) and (ii).

115    I am conscious that the applicant has no legal representation in advancing the merits of his contentions. Accordingly, I have looked closely at the material to determine whether there is a hint of an argument that there may be something which requires exposure in determining whether there may be jurisdictional error affecting the Minister’s decision. There is no basis for such a concern.

116    Although the applicant calls into question both the decision of the delegate of 3 June 2016 and the decision of the Minister personally on 6 February 2018, the real focus of analysis is whether the Minister’s decision of 6 February 2018 is affected by jurisdictional error. The applicant has responded to the statutory opportunity to engage the possibility of the exercise of the Minister’s discretion to revoke the original decision on the footing that the applicant may be able to put on representations and material which enables the Minister to reach the relevant state of satisfaction on either limb of s 501CA(4)(b). Notwithstanding those representations and the submission of the relevant documents, the Minister was unable to reach the relevant state of satisfaction.

117    As to the earlier decision, for the sake of completeness, I have also looked closely at the reasons of the delegate of 3 June 2016 having regard to circumstance that the applicant has no legal representation. I can see no basis for a contention of jurisdictional error on the part of the delegate.

118    Accordingly, the application must be dismissed with costs.

Associate:

Dated:    29 June 2018