FEDERAL COURT OF AUSTRALIA

Taulahi v Minister for Immigration and Border Protection [2018] FCAFC 22

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the respondent’s costs, as agreed or assessed.

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

REASONS FOR JUDGMENT

NORTH J:

1    I agree with the orders proposed by Justice Robertson and with the reasons giving rise to those orders.

Associate:

Dated:    19 February 2018

REASONS FOR JUDGMENT

BESANKO J:

2    I agree with the orders proposed by Justice Robertson and I agree with his Honour’s reasons.

Associate:

Dated:    19 February 2018

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

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

4    The proceedings are within the Court’s original jurisdiction.

5    On judicial review it is not for this Court to enter into the merits of the Minister’s decision: the Court’s role is limited to considering the lawfulness of that decision.

The statutory provisions

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

Decision of Minister—natural justice does not apply

(3)    The Minister may:

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

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

if:

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

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

7    By s 501(4), the power under s 501(3) may only be exercised by the Minister personally.

8    By s 501(5), the rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under s 501(3).

9    By s 501(6):

Character test

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

…

(b)    the Minister reasonably suspects:

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

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

The Minister’s decision

10    The Minister stated, at [18] that he reasonably suspected that the Lone Wolf Outlaw Motorcycle Gang had been and was involved in criminal activity and, at [19], that he reasonably suspected that the applicant did not pass the character test in that the Minister reasonably suspected that he had been a member of the Lone Wolf Outlaw Motorcycle Gang and that that group had been and was involved in criminal conduct.

11    The Minister then went on to consider the question whether the cancellation of the applicant’s visa was in the national interest. At [26], the Minister concluded that the cancellation of the applicant’s visa was in the national interest having regard to his past close involvement with the Lone Wolf Outlaw Motorcycle Gang.

12    The Minister then went on to address other considerations, recognising that the power to cancel a visa under s 501(3) is discretionary. The Minister considered whether there were relevant considerations that might support not cancelling the applicant’s visa, despite his satisfaction that it was in the national interest to do so.

13    The Minister considered under separate headings the risk to the Australian community, the best interests of minor children, the strength, nature and duration of ties to Australia and the extent of impediments that the applicant would face if removed from Australia to Tonga.

14    In relation to the risks to the Australian community, the Minister considered at some length the applicant’s criminal history and said that of particular concern were the applicant’s criminal offences involving violence.

15    The Minister referred to submissions that the applicant was no longer a member of the Lone Wolf Outlaw Motorcycle Gang or any Outlaw Motorcycle Gang, was not associated with any member of any Outlaw Motorcycle Gang and had no interest in any Outlaw Motorcycle Gang. The Minister said, at [32], that he had taken this into account.

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

45. I considered the information report provided by the ACIC which confirms that Mr TAULAHI’s former girlfriend, Stephanie Mill, obtained three Apprehended Violence Orders against Mr Taulahi on 4 October 2011, 14 October 2011 and 2 February 2012 following a number of intimidation and assault incidents. I noted that Mr TAULAHI’s conduct did not result in any criminal charges, however I find Mr TAULAHI’s behaviour is a further indication of his propensity to engage in intimidating conduct.

Ground of the application for judicial review

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

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

Particulars

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

Other Serious Conduct

…45. I considered the information report provided by the ACIC which confirms that Mr TAULAHI’s former girlfriend, Stephanie Mill, obtained three Apprehended Violence Orders against Mr Taulahi on 4 October 2011, 14 October 2011 and 2 February 2012 following a number of intimidation and assault incidents. I noted that Mr TAULAHI’s conduct did not result in any criminal charges, however I find Mr TAULAHI’s behaviour is a further indication of his propensity to engage in intimidating conduct.

(ii)    The Minister states as a fact that the Applicant had engaged in ‘intimidation and assault incidents’ in relation to Ms Mills. However, the Applicant never had charges laid against him in relation to the allegations of ‘intimidation and assault incidents’. The Applicant is entitled to the presumption of innocence in relation to allegations of committing an offence or committing offences. The Minister therefore committed a jurisdictional error by relying on a fact that did not exist and or or (sic) by taking into account irrelevant material.

Ground 5, the only other ground in the amended application, was not pressed.

The parties’ submissions

18    In his written submissions dated 5 February 2018, the applicant addressed ground 3 as follows.

19    The applicant set out the following extract from the material which was before the Minister in relation to three Apprehended Violence Orders (AVOs) against the applicant:

9.    The AVOs were obtained by MILL in response to the following incidents:

•    Intimidation – MILL refused to open the front door and disclose who she was speaking to. TAULAHI progressed to get a butter knife, threatened to kill her and then threw the knife at her

•    Common Assault –TAULAHI accused MILL of cheating and assaulted her approximately 20-30 times to the face

•    Malicious Damage– MILL’s mother called TAULAHI’s wife and in response, TAULAHI threatened to smash MILL’s television, cut up her bed and couch. TAULAHI then called MILL from her apartment. Police later attended and found the television, lamp, mirror and en-suite were destroyed. (FOUO)

20    The applicant submitted, first, that the incidents were merely untested allegations, assuming the Australian Criminal Intelligence Commission (ACIC) summary was an accurate summary of the allegations made. Second, the incidents were not proven to have occurred. Third, there was no probative evidence before the Minister that the applicant had committed any of the ‘incidents’. Fourth, the applicant was not charged or convicted in relation to any of the incidents. Fifth, the issuing of an AVO was not a finding of guilt.

21    The applicant then referred to Woolmington v Director of Public Prosecutions [1935] AC 462 at 481- 482 per Viscount Sankey LC, as follows:

Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

22    The applicant submitted that the presumption of innocence similarly applied in Australia. However it was apparent that the Minister considered that, as a fact, the incidents occurred and that the applicant was the person who engaged in violent acts in the way described in the ACIC summary. At best, the applicant submitted, the ‘incidents’ referred to in the ACIC summary were mere allegations of conduct said to be attributed to the applicant. Despite this, the Minister relied on that mere summary to find that the applicant actually conducted himself in the manner described in the incidents. On the evidence, the applicant submitted, it was legally unreasonable for the Minister to make that finding.

23    The respondent Minister submitted that there was sufficient material before him to justify the finding at [45] of his reasons. The ACIC report provided details of the three AVOs. The Minister expressly recorded his recognition that the conduct had not resulted in any criminal charges. The information was probative of the occurrence of the incidents that they recorded, even if they were properly seen as hearsay accounts of Ms Mill’s allegations against the applicant. The applicant’s claim could therefore not be brought within the rubric of a “no evidence” ground.

24    Nor, the Minister submitted, could the applicant plausibly invoke any notion of irrationality or illogicality as that kind of error in fact-finding was distinct from the kind of error founded upon the inadequacy of the material. There was no suggestion that the impugned finding of the Minister was illogical or irrational in light of the ACIC report – the complaint was only about the adequacy of the ACIC report to justify the finding. The Minister submitted that the asserted presumption of innocence had no application in the present context as that principle was concerned with the criminal law and the accusatorial system of criminal trial.

25    The Minister submitted it was unnecessary to decide any question about whether a legal error in fact-finding was necessarily a jurisdictional error. However, the Minister submitted that even if the applicant were to succeed in demonstrating unreasonableness in the impugned finding of fact, it would not amount to jurisdictional error affecting the legality of the decision. The impugned fact was expressly said to be no more than “a further indication” of the applicant’s propensity to engage in intimidating conduct and was not essential to the exercise of discretion.

Analysis

26    In my opinion, the Minister was engaged in an evaluative exercise in the course of deciding how to exercise his discretion in s 501(3), having already formed the view that he reasonably suspected that the applicant did not pass the character test and that he was satisfied that the cancellation of the visa was in the national interest.

27    The Minister’s decision-making was administrative, even if it involved a finding of behaviour which could found criminal proceedings: Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7; 255 CLR 352 at [33] per French CJ, Hayne, Kiefel, Bell and Keane JJ and [63] per Gageler J. Unlike Today FM, the question of the commission of an offence is not the express statutory subject matter or jurisdictional fact where the issue is the exercise of the s 501(3) discretion.

28    The Minister took into account the response from the ACIC to the Department of Immigration and Border Protection’s request for information regarding why Ms Mill sought AVOs against the applicant.

29    Contrary to the submissions of the applicant, that material was plainly relevant to the Minister’s exercise of his discretion. As I have said, the Minister was engaged in an administrative process. He was not determining guilt or innocence and was not otherwise involved in the criminal justice process. It follows that the principle in Woolmington is not presently relevant.

30    No negative inference as to the scope of fact-finding relevant to the exercise of the discretion in s 501(3) is to be derived from the terms of s 501(6) dealing with the character test and expressly referring in various paragraphs to crime, criminal records, criminal convictions and criminal conduct.

31    In my opinion, it was open to the Minister to conclude that the events set out in the ACIC’s report had occurred even where there were no criminal charges or criminal convictions. Put differently, there was material before the Minister on which he could base the conclusions that he reached at [45] and the no evidence ground of judicial review has not been made out: see Australian Postal Corporation v D’Rozario [2014] FCAFC 89; 222 FCR 303 at [15] per Besanko J, [47]-[48] per Jessup J and [118] per Bromberg J.

32    I do not regard the exclusion of natural justice by s 501(5) as meaning that the Minister was not legally permitted to make the finding he did at [45].

33    I conclude that the Minister did not take into account irrelevant material and did not base his decision on a fact that did not exist. It follows that the decision of the Minister was not infected with legal unreasonableness and that this remaining ground of judicial review, ground numbered 3, must fail.

34    I accept, of course, that an error in fact-finding may constitute a jurisdictional error: Gill v Minister for Immigration and Border [2017] FCAFC 51; 250 FCR 309, but in the present case I find no error in fact-finding on the part of the Minister has been established.

35    It is not necessary to decide whether, if the claimed error in fact-finding had been established it would have been a jurisdictional error.

Orders

36    The orders I propose are that the application for judicial review be dismissed, with costs.

Associate:

Dated:    19 February 2018