FEDERAL COURT OF AUSTRALIA

Taniela v Minister for Immigration and Border Protection [2014] FCAFC 104

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

THE COURT:

1    This is an appeal from an order of a judge of the court dismissing the appellant’s application to review a decision of the Administrative Appeals Tribunal that affirmed the decision of the Minister’s delegate to cancel his “special cataegory (temporary)” visa under s 501 of the Migration Act 1958 (Cth): Taniela v Minister for Immigration and Border Protection [2014] FCA 375.

The appellant’s circumstances

2    The appellant is a citizen of New Zealand who arrived in Australia in 1987 at the age of six and has resided here ever since. On 20 August 2004, the appellant was convicted of two counts of robbery in company and sentenced to four years’ imprisonment, with a non-parole period of two years. He was released from custody in February 2006. While on parole, he received a letter dated 26 April 2007 from the Minister’s Department that informed him that it was considering cancelling his visa under s 501 of the Act on character grounds based on his conviction and sentence.

3    While still on parole, in November 2007, the appellant committed a bank robbery in company with three other persons. On that occasion he was 27 years of age and was armed with a sawn-off shotgun. One of his co-offenders also had a shotgun and the other two were armed with crowbars. The offenders threatened the staff of the bank and ordered them to open the safe. When the offenders were behind the service counter they realised, according to the findings of the Tribunal, that the police had been alerted and they fled and locked themselves in an ATM bunker room. In an effort to escape, they fired shots into the perimeter wall, which faced a pedestrian footpath. Two pedestrians were wounded and taken to hospital, but each made a full recovery. As a result, the appellant was convicted and given a total sentence of 10 years and three months, with a non-parole period of six years and three months for the offences of robbery while armed with a dangerous weapon, possession of a prohibited firearm, discharging loaded arms in company with intent to resist apprehension, possessing a shortened firearm not being a pistol without authority, discharging a firearm in or near a public place and stealing a motor vehicle.

4    On 20 February 2013, the Department wrote to the appellant, informing him of its intention to consider the cancellation of his visa under s 501 of the Act. The Minister’s delegate cancelled the appellant’s visa on 31 May 2013. That led him to apply to the Tribunal for a review of the decision. The appellant is currently detained in immigration detention.

5    The Tribunal conducted a hearing at which the appellant gave evidence and had legal representation. A number of his close family members also gave evidence to the Tribunal. The primary judge summarised the nature of that evidence as being that if he were released into the Australian community the appellant intended to reside in the family home with his parents. One of his sisters, her husband and four children lived next door to their parents. While he had no children of his own, the appellant said that five children would be affected if he were to be deported, namely, his younger sister (who was aged 15) and the four children of his older sister (who were aged between 10 months and 10 years of age). The evidence given to the Tribunal by the appellant and his family members also suggested that it would be in the best interests of those children if he remained in Australia.

The Tribunal’s decision

6    The Tribunal found that the appellant failed to pass the character test by reason of his substantial criminal record, in accordance with s 501 of the Act. There is no issue that that is so, having regard to the sentences he has been given and partly served. The central question identified by the Tribunal, and referred to by her Honour, was whether the power to cancel the visa was properly exercised by the Tribunal pursuant to the Ministerial Direction No 55 – Refusal and Cancellation Under Section 501. The Tribunal had to take Direction No 55 into account by force of s 499(2A) of the Act.

7    The Tribunal found that three of the four primary considerations identified in Direction No 55 were relevant, namely, the protection of the Australian community from criminal or other serious conduct, the strength, duration and nature of the appellant’s ties to Australia and the best interests of any minor children in Australia. At the end of the day, the Tribunal weighed, as it was obliged to do, the competing primary considerations and other considerations under Direction No 55. It concluded that, in the appellant’s case, the primary consideration of the protection of the Australian community outweighed the other considerations that favoured his visa not being cancelled. In those circumstances, it concluded that the correct and preferable decision was to cancel the appellant’s visa and affirm the decision under review. Notably, the Tribunal had found that the appellant was not a hardened or vicious criminal. The Tribunal expressed the view that, were it not for the use of armed force during the robberies, it might have concluded that the considerations that were favourable to the appellant were sufficient to justify a decision not to cancel his visa. However, it found that those considerations could not be availed of by the appellant.

The primary judge’s decision

8    The primary judge carefully summarised the arguments and considerations that the Tribunal took into account. Her Honour considered the grounds of review, which are substantially repeated in the notice of appeal in this Court, namely that:

(1)    the appellant had been denied procedural fairness and natural justice by the Tribunal on the ground that it should have been aware that he was protected and exempted from being deported from Australia by force of s 201 of the Act;

(2)    s 501 of the Act was inconsistent with s 201 and other parts of the Act;

(3)    given s 201 of the Act and other parts of the Act, the Tribunal’s decision was beyond power, invalid and unconstitutional; and

(4)    the Tribunal failed to advise the appellant that it was not going to have regard to s 201 and thus provide him with an opportunity to make submissions about it, so as to apply the safety net that, he asserted, the provision contained.

9    Section 201 deals with the power of the Minister to deport from Australia, whereas s 501 deals with the power of the Minister to cancel a visa. Section 201 creates a power of deportation only where a person who is a non-citizen has been convicted in Australia of an offence and, at that time, he or she had been a permanent resident for a period of less than 10 years, or was a citizen of New Zealand who had been in Australia as an exempt non-citizen or special category visa holder for a period of less than 10 years.

10    Her Honour noted that the appellant’s grounds of review had referred to other parts of the Act. However, he did not refer to any other sections apart from s 201 then or in this appeal. Her Honour found that each of the grounds of review was premised upon the proposition that the power to cancel a visa under s 501 of the Act was not available in the circumstances where the power of the Minister to deport a non-citizen could not be exercised under s 201.

11    The appellant contended that, because he had been in Australia for longer than 10 years, he could not be deported by force of the provisions of s 201. Her Honour found that the premise upon which all of the four grounds reviewed relied had been rejected in the decision of the High Court of Australia in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566. There, the Court held that the conditions imposed on the deportation power in s 200 by s 201 of the Act did not limit the availability of the separate power contained in s 501 of the Act to cancel a visa on character grounds and to remove a person whose visa had been so cancelled from Australia on that basis: 228 CLR at 589-590 [60]-[61] per Gummow and Hayne JJ, 615-616 [162]-[169] per Heydon and Crennan JJ with whom Gleeson CJ agreed at 575 [1].

12    Her Honour applied the decision in Nystrom 228 CLR 566, finding that there was no repugnancy or inconsistency between ss 201 and 501, but rather that each provision applied to separate and distinct circumstances in which the Minister had separate and distinct powers that were not constrained by the other section. Her Honour also held that there was no relevant constitutional inconsistency between the two provisions in the Act. The primary judge held that, where a conflict appeared to arise between particular provisions of an Act, the conflict should be resolved through the process of statutory interpretation in accordance with the decision in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [70] per McHugh, Gummow, Kirby and Hayne JJ. For those reasons, her Honour dismissed the appeal.

This appeal

13    The appellant’s notice of appeal raised four grounds that largely repeat the matters argued before her Honour, namely that her Honour erred:

(1)    in dismissing the application by reason of the holding that the Tribunal had fully discharged its statutory task irrespective of whether or not the task defined in Direction No 55 fully accorded with international human rights principles of proportionality or otherwise;

(2)    in failing to find that the Tribunal had denied him procedural fairness by its failure to warn and inform him that it was not going to have regard to s 201 of the Act and to give him the opportunity to make submissions about that matter;

(3)    by failing to find that s 501 was inconsistent with s 201 and that Nystrom 228 CLR 566, was wrongly decided; and

(4)    in failing to find that s 501 was unconstitutional in that it purported to override the provisions of s 201.

The appellant’s submissions

14    This morning the appellant faxed to the Court a written submission of six pages in which he sought to articulate those arguments and that also raised matters that were not the subject of his notice of appeal. He argued his appeal by telephone, relying in substance on his written submission. He has not applied to amend the notice of appeal and, ordinarily, the Court would not allow that to happen.

15    The appellant argued in his written submission substantially that ss 200 and 201 were enacted as, in effect, a code to provide safeguards against the deportation of persons who had been resident in Australia under visas for more than 10 years, notwithstanding that they had committed crimes. He contended that s 501 was unconstitutional, because if it were capable of applying contrary to those safeguards, the appellant would be deprived of what he claimed were rights conferred under s 201.

16    He claimed that, and this is not a ground of appeal, the Tribunal erred in the exercise of its discretion, because the considerations in favour of not cancelling his visa were overwhelmingly huge. We note that, even if that were a ground of appeal, it would be hopeless, because the exercise of the discretion was a matter for the Tribunal in its weighing process and the appellant did not identify any error in how it undertook that task.

17    He also argued that in exercising a statutory power, such as that in s 501, that affected fundamental rights, a decision-maker ought to consider whether there were alternative means available to achieve the legitimate aim of the statute, namely the protection of the Australian community, which would not impair, or impair to the same extent, his rights. He claimed that he was being subjected to double jeopardy because first, he had been convicted and served his sentences for his criminal offences and, secondly, he would be removed from Australia on the cancellation of his visa. Again, that is not a ground of appeal. That argument confused the application of the criminal law with the application of the provisions of the Migration Act. The power to cancel a visa applied at the time the appellant committed his offences to situations in which a person had engaged in serious criminal conduct of the kind caught by s 501. The appellant also argued that the Tribunal owed him a duty under the rules of natural justice or procedural fairness to inform him that it was not going to have regard to the provisions of s 201 in the course of exercising its power.

Consideration

18    The Parliament had power to pass laws under s 51(xix) and (xxvii) of the Constitution with respect to naturalisation and aliens and immigration and emigration. The Act is a law with respect to those subject matters and each of ss 201 and 501 was validly enacted by the Parliament. As the High Court held in Nystrom 228 CLR 566, each of the provisions has a separate and distinct operation and nothing in the provisions of ss 200 and 201 controls or affects in any way the construction and operation of s 501. Her Honour was correct to have applied the principles in Project Blue Sky 194 CLR at 381-382 [70] in that regard. In any event, this Court, as was her Honour, is bound by, and must apply, the decision of the High Court that found that there is a separate operation of each of ss 201 and 501. For the reasons in Nystrom 228 CLR 566, the grounds of appeal in relation to inconsistency and unconstitutionality are hopeless and must be dismissed.

19    Her Honour also found, correctly, that to the extent that domestic law had not expressly incorporated some principle of international human rights law or proportionality, she was bound, as was the Tribunal, to apply the law as it stood. Nothing in the provisions of Direction No 55 suggests otherwise.

20    The Tribunal was mindful of the personal impact that the decision to cancel the visa would have on the appellant. It gave careful consideration to the weighing process in determining whether or not the protection of the Australian community, as a primary consideration, outweighed the subjective circumstances of the appellant that would favour the non-cancellation of his visa. There is no error in the way in which the Tribunal applied the law to the weighing process that it had to undertake.

21    The Court is not able to deal with the merits of the decision. Its concern is to ensure that the Tribunal acted in accordance with the law. Her Honour found that it did and we are unable to see any error in her Honour’s determination in that respect.

22    The appellant has failed to establish any error in her Honour’s reasoning, including her explanation that the primary consideration of the best interests of the five children who are in the appellant’s family unit did not outweigh the primary consideration of the protection of the Australian community. As her Honour said, the Tribunal lawfully discharged its statutory task irrespective of whether or not the task, as defined in Direction No 55, fully accorded with the international human rights principles of proportionality or otherwise. The primary judge correctly found that those principles do not apply in Australian domestic law of their own force, relying on Horta v Commonwealth (1994) 181 CLR 183 at 195-197 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gordon and McHugh JJ.

Conclusion

23    For these reasons, we are unable to see any error in Her Honour’s reasoning or any basis on which we could uphold any of the grounds of appeal. It follows that the appeal must be dismissed with costs.

Associate:

Dated:    2 September 2014