FEDERAL COURT OF AUSTRALIA

Parker v Minister for Immigration and Border Protection [2017] FCAFC 115

ORDERS

THE COURT ORDERS THAT:

1.    The appellant has leave to file and rely upon the further amended notice of appeal dated 1 August 2017.

2.    Grounds 3 and 4 of the further amended notice of appeal are stood over for mention on a date to be fixed, not sooner than seven days after:

(a)    the decision of the High Court of Australia concerning the application for special leave to appeal against the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93; or

(b)    the determination of the appeal by the High Court of Australia if special leave to appeal is granted.

3.    Grounds 1 and 2 of the further amended notice of appeal are dismissed.

4.    The appellant is to pay the respondent’s costs of, and incidental to, grounds 1 and 2 of the further amended notice of appeal.

NOTE:

Final orders must await the determination of the proceedings in the High Court of Australia in Tesic v Minister for Immigration and Border Protection No B36 of 2017 and in Falzon v Minister for Immigration and Border Protection No S31 of 2017, whichever is the later.

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

REASONS FOR JUDGMENT

THE COURT:

1    The appeal is against a judgment of a single judge of this Court, which is reported as Parker v Minister for Immigration and Border Protection [2017] FCA 314. The appellant was granted leave to rely upon a further amended notice of appeal, which contains the following grounds (without alteration):

1.    The Court Below erred at [30]-[33] in holding that the issue of whether the needs of the appellant’s mother could “be adequately met” without him was not a matter that mandated the consideration by the Minister separate from his consideration of the needs of the appellant’s mother more generally.

2.    The Court should have found that the issue of “adequate care” of the appellant’s mother, having been specifically raised by and on behalf of the appellant, required specific consideration.

3.    The Court Below erred in failing to find that the respondent Minister took an irrelevant consideration into account in considering the exercise of his discretion pursuant to s 501CA(a) of the Migration Act.

Particulars

(a)    The irrelevant consideration being that remaining in Australia is a “privilege that Australia confers on non-citizens in the expectation that they are law abiding.”

4.    The Court Below erred in failing to find that the respondent Minister misconstrued the law in considering the exercise of his discretion pursuant to s 501CA(4) of the Migration Act.

Particulars

(a)    Error in applying what was said to be a “principle that remaining in Australia is a “privilege that Australia confers on non-citizens in the expectation that they are law abiding.”

5.    Section 501(3A), under which the appellant’s visa was purportedly cancelled is invalid because it purports to confer the judicial power of the Commonwealth on the Minister, and that being so the cancellation of the appellant’s visa was invalid.

2    On 18 July 2017, the Court made orders that grounds 1 and 2 of the then amended notice of appeal be heard separately and before ground 5 (grounds 3 and 4 having been abandoned). It ordered that ground 5 of the amended notice of appeal be stood over until two weeks after the determination of Falzon v Minister for Immigration and Border Protection (Falzon) No S31 of 2017, by the High Court of Australia. The constitutional validity of s 501(3A) is raised in Falzon.

3    On 2 August 2017, the Full Court granted the applicant leave to file and rely upon a further amended notice of appeal, which inserted new grounds 3 and 4. The hearing and determination of grounds 3 and 4 of the further amended notice of appeal were deferred pending the outcome of the application for special leave to appeal in Tesic v Minister for Immigration and Border Protection No B36 of 2017 (Tesic).

Summary of background facts

4    The material facts were not in dispute, either at the trial or on appeal. The appellant is a citizen of the United Kingdom. He has remained in Australia ever since he arrived here for the first time when he was 12 years old, which is approximately 48 years ago.

5    The appellant’s Class BF transitional (permanent) visa was cancelled by the Minister’s delegate on 31 August 2015, acting under s 501(3A) of the Migration Act 1958 (Cth) (the Act). The appellant was then serving a sentence of imprisonment for being in possession of child abuse material and failing to comply with reporting obligations. He had previously been sentenced to a total of seven years imprisonment for four convictions of indecent assault of a minor under the age of 16 years, three convictions of homosexual intercourse with a minor and two convictions of gross acts of indecency.

6    Under s 501CA(4) of the Act the Minister has the power to revoke a decision of a delegate to cancel a visa under s 501(3A). On 8 September 2015, the appellant made representations to the Minister urging him to revoke the delegate’s decision. Various other representations were made by or on behalf of Mr Parker in December 2015, March 2016, June 2016 and August 2016. Relevantly to grounds 1 and 2 of the amended notice of appeal, some of the representations related to the appellant’s mother and the effect on her if he was removed from Australia. The Minister did not contend, either below or on appeal, that the representations did not comply with the requirements of reg 2.52 of the Migration Regulations 1994 (Cth).

7    The following matters of relevance to grounds 1 and 2 should be noted in this material, which was before the Minister when he decided not to revoke the visa cancellation decision:

(a)    In his request for revocation dated 8 September 2015, the appellant said that he was the sole carer of his father (then aged 87), who was totally blind, and his mother (then aged 84) who was wheelchair bound. Both his parents lived in the appellant’s home. He said that while he had been in Long Bay gaol for the previous four months, his parents had received meals on wheels and homecare.

(b)    In an email dated 11 December 2015, the appellant said that his mother was “wheel chair bound and almost house bound as well, had to turn to care and meals on wheels this was not really good enough as my parents needed twenty-four seven care” (sic).

(c)    In an email dated 7 December 2015, the appellant said that his father had passed away and that his mother was now in need of his help, in circumstances where she has “full on signs of dementia and wheel chair bound which only be getting worse and I need to get home to look after my mum please” (sic).

(d)    The appellant forwarded a solicitor’s character reference dated 20 November 2015, in which the solicitor, who said he had known the appellant for over 25 years, referred to the recent death of the appellant’s father and the deteriorating health of his mother. The solicitor said that if the appellant were removed from Australia this would have a considerable effect on both he and his mother. He said that the appellant’s mother relied upon the appellant to provide housing for her.

(e)    In a character reference dated 27 November 2015 from the appellant’s eldest brother (David), it was stated that the death of their father had put huge pressure on David and his sister “to provide adequate care for mum as Keith has been providing for the last four to five years and the deteriorating health of mum, and the recent death of dad and with the possibility of never seeing one of her sons again is takeing (sic) a huge toll on her… if Keith is unable to remain living in his home of Australia”.

(f)    In an email dated 11 December 2015, the appellant wrote stating that this would likely be his mother’s last Christmas as she was in poor health and had dementia.

(g)    The appellant sent further emails on 17 and 29 December 2015. In the first, he expressed his hope that he would be able to return home before Christmas [100] and in the second he wrote that his mother was home alone in his house “scared out of her wits” and that he was his mother’s fulltime carer and would never leave her alone.

(h)    In an undated letter, the appellant’s mother said that the appellant had been her carer for a few years and that she would be lost without him. She said that if he was removed from Australia she knew she would never see him again and that because she did not have long to live he should be allowed to come home to her.

(i)    Other references were provided by third parties referring to the appellant as a caring son who had looked after his mother and father.

(j)    In a letter dated 9 February 2016, a doctor who apparently had knowledge of the appellant’s mother’s health, wrote and confirmed that she suffered from “multiple medical conditions and is unwell to travel” and that “she would benefit from a home visit from her son”. The letter was addressed to the Villawood Detention Centre.

(k)    In an email dated 9 June 2016, the appellant emailed the Department and said that he had to get home to look after his mother. He said that his sister was their mother’s “sole carer at this moment they both live in my house I am still paying the bills other wise my mum would have to reside into a nursing home which she does not want to do” (sic). He said that he and his sister would share the task of looking after their mother if he were released. He also repeated that his mother was “in need of constant care 24/7”.

(l)    In an email dated 24 August 2016, the appellant’s aunt, who wrote from overseas, said that she had been told that the appellant’s mother was to be placed in a home, initially for six weeks, and that she expected that she would “absolutely hate this” and that she missed the appellant being around as her carer.

The primary judge’s reasons for judgment summarised

8    The primary judge said that the amended application for judicial review raised four grounds, only the second of which is relevant to the appeal. That ground was that there had been a failure to consider the claim that the appellant’s mother would not be “adequately” cared for if he were removed to the United Kingdom. The primary judge considered this ground in [22] to [33] of his reasons for judgment. The primary judge made reference to some of the representations made by Mr Parker and others concerning Mrs Parker’s care needs. His Honour also noted the relevant parts of the Minister’s statement of reasons relating to this matter, which, for convenience, are now set out (without alteration):

19.    I have considered the sentencing remarks from the New South Wales District Court at Tamworth on 12 August 2005 which indicate that Mr PARKER's mother is virtually disabled by knee and hip problems and unable to drive, and that Mr PARKER was at that time the primary carer for his parents. Mr PARKER's father has since died, though his mother is 85 years old and is in full time care, which only her family can provide. He further states she suffers from dementia, Parkinsons disease, has heart problems, is wheel chair bound and has ‘numerous other health problems’. As part of his submissions Mr PARKER has provided a medical report for his mother which confirms her medical conditions and medication.

20.    I note that Mr PARKER indicated in an email dated 17 December 2015 that his sister currently provides care to their mother in his absence and will continue to help Mr PARKER to do so should he be released into the community, though needs him to return as she also needs to care for her own family, and is unable to do so while she is her mother's sole carer.

21.    I consider that Mr PARKER's mother will suffer emotional hardship should he not be allowed to remain in Australia. I also accept that she requires care and that he has been her primary carer prior to his incarceration. However I note that Mr PARKER's mother receives care from at least two of Mr PARKER's siblings, which I consider will reduce the impact of Mr PARKER not being involved in his mother's daily care, at least to some extent. I find non revocation of Mr PARKER's visa will place a significant burden on his siblings in caring for their ailing mother.

22.    I have considered the effect of non revocation upon Mr PARKER's immediate family in Australia and accept that those persons would experience emotional, practical and financial hardship. I find that Mr PARKER has been making a positive contribution for the majority of his 47 years residing in Australia years to the community and I have taken this into account, and also recognise the effect of non revocation for family members in Australia.

9    The primary judge rejected this ground of judicial review for the following three reasons:

(a)    The Minister’s reasons disclosed that the Minister had had an “active intellectual engagement” with the claims relating to the mother’s needs and that this matter had been taken into account (at [29]).

(b)    The contention that, even if the Minister took into account the needs of the mother more generally, he failed to take into account the more specific representation that the mother’s needs could not “be adequately met without him” was rejected on the basis that such a representation was not so clearly expressed in such a way that required it to be addressed separately. In any event, the primary judge added that he doubted that there was any real difference between the needs of the mother more generally expressed and the specific matter as to whether she would receive “adequate care”. The primary judge acknowledged that there was a reference in the 27 November 2015 letter to “adequate care for mum” and that there was no express reference to that concept in the Minister’s statement of reasons. However, applying the well-known approach to the proper reading of a statement of reasons as stated by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 (Wu Shan Liang) at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ, the primary judge held that the Minister had taken into account the substance of the representations.

(c)    The primary judge agreed with Robertson J’s observations in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 (Goundar) at [56], to the effect that, while representations as a whole made under s 501CA(4) constituted a mandatory relevant consideration, no particular statement in such representations should be so characterised. The primary judge found that any claim that the mother’s needs could not “be adequately met” if Mr Parker did not remain in Australia was not a matter which mandated separate consideration (at [33]).

Relevant statutory provision

10    It is desirable to set out s 501CA of the Act as in force at the relevant time:

501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

(6)    Any detention of the person that occurred during any part of the period:

(a)    beginning when the original decision was made; and

(b)    ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)    A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.”

The appellant’s submissions summarised

11    The appellant submitted that the primary judge erred in not accepting his contention that the Minister had failed to engage in “an active intellectual process” in respect of his representations concerning the adequacy of his mother’s care if he were removed from Australia (citing Tickner v Chapman [1995] FCAFC 1726; 57 FCR 451 at 451, 462 and 495 and Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 (Carrascalao)). He submitted that the question whether or not the Minister had considered the representations was a question of substance and not form (citing Applicant WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184; 236 FCR 593 at [47]).

12    The appellant submitted that his mother’s need for care was squarely raised in representations made by him or others, including:

(a)    his brother’s letter dated 27 November 2015;

(b)    the appellant’s emails dated 11  and 29 December 2015;

(c)    the appellant’s email dated 9 June 2016;

(d)    the appellant’s mother’s undated letter; and

(e)    the appellant’s aunt’s letter dated 24 August 2016.

13    The appellant submitted that the Minister had not engaged in the requisite active intellectual process in respect of these representations. This was said to be reflected, for example, in the omission from the Minister’s statement of reasons of any reference to the mother requiring care “twenty-four/seven”. The appellant also challenged the accuracy of the finding at [19] of the statement of reasons that the mother was “in full time care”.

14    The appellant submitted that the primary judge erred in finding that there was no real difference between the needs of the mother more generally expressed and the need to consider whether she would receive “adequate care”. He submitted that “adequate care” involves meeting a person’s wider individual needs, which necessarily varies from person to person.

15    The appellant submitted that the Minister merely acknowledged the mother’s illnesses and existing care arrangements and failed to indicate what the Minister considered would be the consequences for the appellant’s mother if the appellant was removed from Australia.

Disposition of the appeal

16    The appellant has failed to establish any appealable error in the primary judge’s reasons. We broadly agree with the reasons given by his Honour in rejecting the relevant judicial review ground, as summarised in [9] above, save that we consider that it was unnecessary for his Honour to apply Robertson J’s observations in Goundar. That is because, in our view, the first two reasons given by the primary judge for rejecting the appellant’s judicial review challenge (as summarised in [9(a) and (b)] above), were sufficient in themselves. We prefer to defer any consideration of the correctness of the relevant observations in Goundar to a case where it is essential to do so.

17    The issue of the appellant’s care for his parents and his mother in particular was expressly referred to in [11] and [13] of the Department’s submission for decision, which was placed before the Minister (emphasis in original):

11.    Mr PARKER states that he worked from 1975 until 2010 as a self-employed house painter (Attachment G) and has been a hardworking person all his life who has paid a great deal in taxes, and that he and his family helped make Australia what it is today (Attachments J, I, L & M). The sentencing remarks from the New South Wales District Court at Tamworth on 12 August 2005 also state that Mr PARKER had always been a hard worker and cared for his parents (Attachment C). Letters of support for Mr PARKER have been provided (Attachments K, K.1 & K.2) which also confirm that his life, apart from his offending, has been one of hard work and positive conduct in the community.

…

13.    Mr PARKER states that he needs to remain in Australia to care for his mother who is wheelchair-bound and suffers from dementia, Parkinson’s disease, heart disease and “numerous other health problems”. He does not expect her to live much longer as she is heartbroken after her husband passed away and very anxious about the possible deportation of her son. The New South Wales District Court at Tamworth on 12 August 2005 noted that Mr PARKER’s carer responsibility for his parents were a factor to be considered in sentencing (Attachment C). While Mr PARKER states that he is his mother’s primary carer (Attachments J, M & Q), his sister currently cares for his mother, though Mr PARKER indicates he will share care of their mother should his visa be re-instated, as his sister has her own family to look after.

18    It is desirable to identify the contents of the Attachments to which the Minister’s attention was drawn in these paragraphs because they relate to the appellant’s mother’s health issues and related needs.

(a)    Attachments J, M and Q comprised copies of the appellant’s facsimile received on 10 December 2015, the appellant’s email dated 29 December 2015 and the appellant’s email dated 9 June 2016 respectively (see [7(k)] above).

(b)    Attachments K, K.1 and K.2 comprised the solicitor’s reference, the appellant’s brother’s reference, the appellant’s mother’s undated email, the character reference dated 7 December 2015 (which described how the appellant had been “constantly caring for his parents”), another character reference (undated) which stated that the appellant had “also looked after his mum and dad… he would take them shopping and to Dr’s appointments etc” and how the appellant’s mother was not in good health and “is absolutely distraught that Keith is not there to look after her”, the brief medical report dated 9 February 2016 from Coffs Central Medical Centre and the appellant’s aunt’s emails dated 11 and 24 August 2016 respectively.

19    Some relevant parts of the Minister’s statement of reasons relating to the matter of the appellant’s mother’s health and care are set out in [8] above. There are other parts of the statement of reasons which should also be noted. In [47], the Minister stated that he had considered “the consequences of my decision for [the appellant’s] other family members, in particular his mother who is aged and unwell, and needs full-time care, of which Mr PARKER has normally been the main provider”. Moreover, in [10] of the statement, the Minister explicitly said that, in determining whether he was satisfied that there was another reason why the original mandatory visa cancellation decision should be revoked, he had considered Mr Parker’s representations. Moreover, the Minister said at [11] that, in undertaking that task, he “assessed all of the information set out in the attachments”, including, in particular, the appellant’s representations and the documents submitted in support of those representations.

20    In our respectful view, the primary judge was correct to find at [30] that the Minister’s consideration of, and conclusions regarding, the needs of the appellant’s mother encompassed the issue of whether she would receive “adequate care”. Merely because the word “adequate” does not appear explicitly in the statement of reasons is not determinative. Fairly read, and when considered against the background of the material in the representations which were attached to the Department’s submission (and to which the Minister’s attention was specifically drawn and which the Minister said he considered), we consider that the appellant has failed to discharge the onus, which he carried, of establishing that the Minister had not had an active intellectual engagement in respect of the representations relating to the adequacy of the appellant’s mother’s future care. In our respectful view, the primary judge correctly rejected this aspect of the appellant’s case.

21    Similarly, we respectfully agree with the primary judge’s reliance upon Wu Shan Liang in rejecting the appellant’s claims, which sought to attach great significance to the omission of any explicit reference to the word “adequate” in the Minister’s statement of reasons. When those reasons are fairly read, and against the background of the Department’s submission and the relevant attachments, we consider that the primary judge was correct to conclude that the Minister had taken into account the substance of the representation.

22    In the particular circumstances of this case (which are notably different from those in Carrascalao), some significance must attach to the fact that, on 16 September 2016, the Minister signed and dated the decision page of the Department’s submission, which included the following statement (emphasis in original):

I have considered all relevant matters including an assessment of the character test as defined by s 501 of the Migration Act 1958, and all evidence before me provided by, or on behalf of, or in relation to Keith Norman PARKER in connection with the possible revocation, under s 501CA(4), of the decision under s 501(3A) to cancel Mr PARKER’s Class BF transitional (permanent) visa.

23    The appellant did not demonstrate why this statement should not be accepted. Nor has the appellant demonstrated any reason to doubt the veracity of the Minister’s other statements in his statement of reasons that he had considered the appellant’s representations and the supporting documentation. As to the particular claim that the Minister did not address the need for the appellant’s mother to have care “24/7”, that is inconsistent with the explicit reference in [47] of the Minister’s statement of reasons to the mother needing “full-time care”. And the reference in [19] of the statement of reasons to the mother being in full-time care was supported by the appellant’s email dated 9 June 2016 in which he said that his sister was living with their mother in his home and was her “sole carer”.

Conclusion

24    For these reasons, grounds 1 and 2 in the amended notice of appeal are rejected. The appellant should pay the respondent’s costs of this part of the appeal. The final outcome of the appeal must await Falzon and Tesic.

Associate:

Dated:    4 August 2017