FEDERAL COURT OF AUSTRALIA

Timu v Minister for Immigration and Border Protection [2018] FCAFC 161

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s application to adjourn the hearing of the appeal is refused.

2.    Leave to raise the grounds set out in the appellant’s affidavit affirmed on 2 August 2018 and in the second paragraph of the notice of appeal (insofar as it raises a new ground for the first time on appeal) is refused.

3.    The appeal is dismissed.

4.    The appellant must pay the respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

THE COURT

1    The appellant, Mr Timu, is a citizen of New Zealand who arrived in Australia in October 1988. He was then aged 14 years. He has resided continuously in Australia since then.

2    His class TY Special Category (Temporary) visa was mandatorily cancelled by a delegate of the Minister for Immigration and Border Protection on 5 August 2016 (original decision). The delegate was required to cancel the visa under s 501(3A) of the Migration Act 1958 (Cth) as Mr Timu was then imprisoned, having been convicted of an offence for which he was sentenced to a term of imprisonment greater than 12 months. He therefore did not pass the “character test” by reason of ss 501(6)(a) and 501(7)(c) of the Migration Act.

3    The Assistant Minister for Immigration and Border Protection, the Hon. Alex Hawke MP, decided to refuse to revoke the original decision on 8 February 2017 because Mr Timu did not pass the “character test” and the Assistant Minister was not satisfied that, for the purposes of s 501CA(4)(b)(ii), there was “another reason” why the original decision should be revoked.

4    Following a hearing on 1 March 2018, on 7 March 2018 a Judge of this Court dismissed Mr Timu’s application for judicial review of the Assistant Minister’s decision: see Timu v Minister for Immigration and Border Protection [2018] FCA 214. It is from that decision Mr Timu now appeals.

Primary judge’s decision

5    In his application for judicial review of the Assistant Minister’s decision filed on 9 May 2017, Mr Timu raised three grounds (as written):

1)    Not enough consideration given to the rights of a child (child support assessment act 1989)

2)    Not enough consideration given to my ties in Australia

3)    The lack of assessment made for my mental stability in the future if deported.

6    In his reasons for judgment the primary judge notes that:

(1)    On 4 September 2017 his Honour made programming orders allowing Mr Timu to file an amended application and evidence. The primary judge also issued a pro bono certificate to facilitate the applicant obtaining legal representation. Enquiries were made after the pro bono certificate was issued; the Court was advised that enquiries had not been successful. On 27 October 2017, an email was sent by the Court to the email address of Mr Timu specified on his application and copied to the Minister’s solicitors. The email advised that enquiries had been unsuccessful and Mr Timu “may wish to make [his] own arrangements for legal representation”. Mr Timu did not file an amended application or written submissions and appears not to have had legal representation: J[41]-[43], [48]-[49];

(2)    When the application was called on for hearing at 11:30 am on 1 March 2018 by telephone to the detention facility at Christmas Island, Mr Timu did not appear. An officer at the detention facility advised that Mr Timu had earlier indicated a lack of interest in attending. The Court adjourned to 2:15 pm on that day. Before the Court reconvened, the Court was advised that Mr Timu had been under “some confusion as to the nature of the hearing” and that he would appear by telephone at 2:15 pm. Mr Timu appeared by telephone when the Court resumed: J[44]-[46];

(3)    Mr Timu orally addressed his grounds and also confirmed that he did not have a lawyer. He indicated that he would like an adjournment to obtain a lawyer. Mr Timu said that he did not get the email advising that enquiries to secure a pro bono lawyer had not been successful and suggested that he had experienced some difficulties with emails at the detention facility. The primary judge understood Mr Timu’s submissions to be that he had spoken to “at least one lawyer, but that he could not afford the lawyer’s fees, or that the lawyer, or another lawyer, was too busy to consider his materials”: J[47]-[50];

(4)    The Minster opposed adjournment because attempts had already been made to obtain pro bono assistance for Mr Timu without success and Mr Timu’s grounds so lacked merit that there would be no point in an adjournment. The primary judge then summarised the Minister’s submissions as to the merit of Mr Timu’s application: J[51], [55]-[60]; and

(5)    Mr Timu submitted that a lawyer may find other grounds: J[52].

7    The primary judge refused the adjournment application on the following bases: Although Mr Timu raised an issue about his receipt of the Court’s email it appears that he in fact consulted one or more lawyers about his case. Having been aware of the scheduled date of the hearing for some months, Mr Timu took no steps to obtain legal advice or arrange legal representation for the hearing. Mr Timu was not entitled effectively to do nothing further to obtain legal representation. In all the circumstances it was not unreasonable to proceed with the hearing without granting an adjournment. Additional to these factors was the lack of obvious merit to the grounds put forward by Mr Timu. The grounds invite “merits review” and do not raise issues going to the identification of jurisdictional error by the Assistant Minister. Whether another lawyer might discover further grounds of review is speculative and that approach to adjournment is not appropriate: J[63]-[71].

8    In relation to the grounds of the application, the primary judge found as follows:

(1)    Ground 1 complains that not enough consideration was given to the rights of the child including the Child Support Assessment Act 1989 (Cth). The weight to be given to relevant considerations was something for the Assistant Minister to assess. The Child Support Assessment Act was not, of itself, a relevant consideration that the Assistant Minister was bound to take into account. The rights of the relevant children were plainly considered and given weight in the Assistant Minister’s decision making: J[73];

(2)    In relation to ground 2, the Assistant Minister plainly did give consideration to Mr Timu’s ties to Australia. The Assistant Minister gave greater weight to the protection of the Australian community from Mr Timu’s potentially violent and criminal conduct in the future having regard to his conduct in Australia since the age of 17, finding that Mr Timu represented an unacceptable risk to the Australian community: J[74];

(3)    In relation to the third ground, the Assistant Minister also plainly gave attention to Mr Timu’s “mental stability” in the future, noting that health services and social security services in New Zealand were comparable to those in Australia and would be available to him as a citizen of New Zealand if he needed them. The Assistant Minister plainly accepted that Mr Timu has a mental health condition and took that into account when making the decision not to revoke the original decision: J[75]; and

(4)    All these matters go to the merit of the Assistant Minister’s decision and none disclose that his decision was in any sense illogical, irrational or legally unreasonable: J[76].

The appeal

9    Mr Timu’s notice of appeal was lodged on 27 March 2018 and accepted as filed on 4 April 2018. It sets out two grounds as follows (as written):

1.    On the 7th of March 2018 in feral court I had a telephone conference with judge BARKER J on the 1st of March 2018 six days before I also had a court date for my application I told the judge on this day that I needed an adjournment to acquire a lawyer as I was representing myself he then told me that he would make a decision if he would grant me more time to get a lawyer the judge adjourned my case until the 7th of March 2018.On this date I had a telephone conference the judge told me that my application has been dismissed I didn’t even get a chance to plead my application case on this date 7th March 2018 I then said to the judge that I will be appealing the decision he made I could not even see the judge on video link only by phone I wanted to tell the judge that I have found a jurisdictional error in my case which I will explain in ground two of appeal, I feel that I have been discriminated against for the fact that I did not know exactly what was going on in the court hearing it is very unfair.

2.    My visa was revoked by the deputy minister of immigration and border protection in the revocation process in my court book that I received from the ministers lawyer which has the file number PEG251/2017 which I was served, on page 17 paragraph 44 attachment 3: Statement of reasons for decision under s 501(CA) of the act not to revoke a mandatory cancellation visa decision under s 501(3A) titled extent of impediments if removed the deputy minister states- ( Mr TIMU states that he does not know his family in New Zealand. I note that it has been submitted that Mr TIMU has two brothers residing in New Zealand and in 2012 his parents stated that the two brothers were the ‘only family we have left in New Zealand and that they will not support him there as they have families of their own’ and are not happy with him at all causing pain and anguish to us’.) I only have one brother in New Zealand NOT two. My younger brother lives in Australia this is the current status which is true I believe that the deputy minister who revoked my visa has read old information that is not current concerning my current position as it stands today to do with my case. I have submitted numerous letters to do with my status as it stands today I believe that what I am about to lose is worth appealing being my family and two children in Australia given the fact that one of my original grounds in the federal court was NOT ENOUGH CONSIDERATION GIVEN TO MY TIES IN AUSTRALIA if the word on a process of everything I submit to the courts has to be true and not false or misleading a jurisdictional error is not validated on the weight but only the facts they did invite me to submit more information on my ties in Australia which I did and have attached a copy of my letter dated 21/08/2016 within this letter it states my younger brother is here in Australia. I only have two brothers my younger brother Jamie Timu lives in Australia I know there is a velocity of information before judgement of revocation of visa, obviously when considering my impediments if removed to New Zealand it was not judged on the facts that myself submitted.

10    On 3 August 2018 Mr Timu faxed to the Court an affidavit affirmed by him on 2 August 2018 in which he sought to raise six further grounds that the Assistant Minister’s decision is affected by jurisdictional error. They are (as written) that:

1)    The minister failed to consider the full and till this day how affected my family is in a negative emotional feelings and sycological feelings and the physical feelings and the hardship my family and children are feeling;

2)    The minister failed to consider a representation or a claim;

3)    The minister made a critical finding that lacked an evidentiary foundation;

4)    The minister’s decision not to revoke a visa cancellation was reasonable and/or disproportionate and lacked an evident and intelligible justification that the minister stated in his decision on 7th March 2018;

5)    The minister misapplied a legal test that the minister stated in his decision on 7th March 2018;

6)    The minister relied on fact of conviction but fail to consider the evidence.

11    The faxed material contained what appeared to be an application for an extension of time, although the appeal was filed within time. We take this to be an application for adjournment. Mr Timu stated that he needed an extension of time to acquire a lawyer. He said that he did not have the funds to engage a lawyer nor the education (having left school in year 8 or 9) nor professional expertise of an immigration lawyer to be able to prosecute the matter on his own behalf. He said that the thought of preparing the appeal book for this appeal made him physically sick and stressed. He says that this involves questions of “moral fairness”, what the term “jurisdictional error” means and whether enough consideration was given to the “physical, emotional sycological, effects” on his children and parents, and whether that can be judged (presumably by the Assistant Minister) from reading submissions from Mr Timu.

12    Mr Timu filed no written submissions.

13    Mr Timu appeared in person at the hearing of his appeal, having been transported to Perth from immigration detention at Christmas Island.

14    When the appeal came on for hearing, Mr Timu requested an adjournment for the purpose of obtaining a pro bono lawyer. He stated that attempts made by the Court in Perth to find a pro bono lawyer without success were inadequate. He said that the search should have been Australia wide and the appeal should be heard in Brisbane. He refused to make any other submissions on the appeal, saying that he would rather wait for a lawyer and that the conduct of the appeal in the circumstances was procedurally unfair because, as a person without legal training, he is not in a position to address legal argument without legal representation.

15    The Minister opposed the adjournment application, noting that Mr Timu had made the same application to the primary judge who correctly refused the application.

16    The presiding Judge indicated that the Court would reserve its decision on whether to grant an adjournment and would hear argument on the appeal. The presiding Judge told Mr Timu that this was his opportunity to state his case in relation to the grounds of his appeal. Mr Timu refused the opportunity to say anything more. The Minister relied on his written submissions filed on 7 August 2018. The presiding judge said that the Court would reserve its decision on the adjournment application and on the appeal.

Consideration of grounds in the notice of appeal and the application for adjournment of the hearing of the appeal

17    The Minister submitted that:

(1)    In relation to the first paragraph of the notice of appeal, the primary judge’s reasons for refusing the adjournment do not disclose any appellable error and Mr Timu both had the opportunity to make submissions in relation to his grounds of review at the hearing on 1 March 2018 and he took that opportunity so that the first paragraph of the notice of appeal is not made out. Further, even if Mr Timu was denied procedural fairness by reason of the primary judge’s refusal to grant an adjournment, there was no “practical injustice” because the second paragraph of the notice of appeal does not establish jurisdictional error.

(2)    The ground set out in the second paragraph of the notice of appeal raises an issue which was not raised in the proceedings before the primary judge, no adequate explanation was given for Mr Timu’s failure to do so and the ground lacks merit. Where there is no adequate explanation for the failure to take the point in those proceedings and it seems to be of doubtful merit, leave to raise the new ground on the appeal should generally be refused: see Hossam v Minister for Immigration and Border Protection (2016) 70 AAR 320; [2016] FCA 1161 at [38]-[40] relying on the decision of the Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [48]. Addressing the detail:

(a)    Mr Timu’s submissions to the Department in 2012 indicate that he has two brothers. When, in 2012, consideration was given to cancellation of Mr Timu’s visa, his two brothers lived in New Zealand: AB 166, 199-200. More recent material provided by Mr Timu (following the Assistant Minister’s decision which is the subject of the appeal) indicates that his younger brother, Jamie, now resides in Australia. The fact that Mr Timu has a brother in Australia is referred to in representations made to the Minister at:

(i)    AB 120 and 136, the Family Details section of the request for revocation dated 12 August 2016 and Mr Timu’s personal circumstances form of the same date indicate that his mother, father, sister and brother Jamie resided in Australia;

(ii)    AB 146 and 150, part of a handwritten letter dated 21 August 2016, refers to the same group of people in Australia (that is the letter referred to in the second paragraph of the notice of appeal);

(iii)    AB 245, a file note dated 16 January 2017, in which a case officer records a conversation with Mr Timu’s mother which indicates that he “does not have any family in New Zealand”;

(iv)    AB 252 and 261, being pages of a handwritten document dated 23 January 2017, in which Mr Timu refers to his brother in Australia and the hardship his son and nephew will suffer if he is deported and his gratitude for the support from his family that he has drawn on.

(b)    Any error by the Assistant Minister about whether Mr Timu has one or two brothers in New Zealand at the time his decision was made is not material to his decision and, in all of the circumstances, it does not amount to jurisdictional error because:

(i)    The Assistant Minister made no express finding that Mr Timu has two brothers living in New Zealand but simply noted (at R[44]) that it had been submitted that he had two brothers residing in New Zealand and that in 2012, his parents stated that the two brothers were the only family left in New Zealand and they would not support him. There is nothing incorrect at R[44] which is plainly referring to the situation in 2012;

(ii)    R[44] appears under the heading “Extent of impediments if removed”; relevantly it records that Mr Timu’s parents say that the two brothers would not support him. If there was an error, it was not material to the Assistant Minister’s decision because there was no suggestion that the difficulties or hardship Mr Timu would face on his return to New Zealand would be alleviated because of his brothers. Rather, at R[47], the Assistant Minister accepted that he would not have family support in New Zealand and found that he would experience significant emotional hardship due to leaving his children and family members in Australia and he would need a period of adjustment having been absent from New Zealand for over 28 years;

(iii)    The findings at R[47], which weighed in favour of revocation of the original decision, could not have been affected by Mr Timu now having one brother in Australia and could not have denied him the possibility of a successful outcome, relying on Buchwald v Minister for Immigration and Border Protection (2016) 242 FCR 65; [2016] FCA 101 at [57] and [74]-[75];

(iv)    Even if it can be inferred that, at R[44], the Assistant Minister erroneously considered that Mr Timu still had two brothers living in New Zealand, this was a mere error of fact which does not, of itself, normally constitute error of law let alone jurisdictional error: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-56; and

(v)    R[44] should not be read in isolation. At R[29], the Assistant Minister states that he has considered the “strength, nature and duration” of Mr Timu’s ties to Australia. At R[30], the Assistant Minister notes that Mr Timu states that he has family members residing in Australia, including “his brother” which reflects the references in the Appeal Book (for instance, at AB 124) to the fact that his brother Jamie now resides in Australia. Having regard to these statements, the statement at R[44] referring to two brothers in New Zealand should be taken to refer to the position in 2012.

The question of adjournment and the first paragraph of the notice of appeal

18    We accept the Minister’s submission that the hearing of Mr Timu’s appeal should not be adjourned and that the primary judge did not err in his decision not to adjourn the hearing on 1 March 2017.

19    It is undoubtedly true that a litigant in person who is not a lawyer faces substantial difficulty in prosecuting a claim. Legal representation is plainly highly desirable, both in the interests of Mr Timu and the due administration of justice. However, lack of legal representation is not, of itself, a reason to adjourn the hearing of a long scheduled application or appeal.

20    At the instigation of the primary judge, the Court made efforts to seek out legal representation for Mr Timu in Perth on a pro bono basis. It is unfortunate that pro bono assistance was not able to be secured. It might be speculated that the difficulty faced by Mr Timu is that it is not obvious from the Assistant Minister’s reasons that judicial review of his decision would have sufficient prospects of success to attract that assistance, which is a scarce resource. We do not accept that Mr Timu can have a reasonable expectation that pro bono assistance would be sought Australia wide, rather than in the capital city in which his application was to be heard. Further, the primary judge’s reasons disclose that, at an earlier time, Mr Timu had contacted lawyers and they were either unaffordable or unable to attend to his matter in a timely way. The primary judge found that Mr Timu took no steps after that to secure legal representation and he was not entitled to do nothing further and request an adjournment when the matter came on for hearing. The primary judge also considered Mr Timu’s grounds of review and found that they lacked merit so that it would be inappropriate to grant an adjournment on the speculative basis that a lawyer might discover further grounds of review to found a jurisdictional error. We see no appellable error in the primary judge’s approach to the decision whether to grant Mr Timu an adjournment as explained in the reasons for judgment.

21    Insofar as the first paragraph of the notice of appeal suggests that the proceedings on 7 March 2018 lacked procedural fairness because Mr Timu did not have an opportunity to raise the matters addressed in the second paragraph of the notice of appeal, we accept the Minister’s submission that Mr Timu both had and took the opportunity to make submissions in relation to his grounds of review at the scheduled hearing of the application for review on 1 March 2018: see J[47], [68]-[70]. The judgment does not suggest that Mr Timu sought to make further submissions on 7 March 2018 and there is no transcript in evidence. Despite Mr Timu’s asserted confusion about the process, there was no appellable error in the approach taken by the primary judge on 1 March 2018. That approach was to hear argument about an adjournment and submissions on the grounds of review and then deliver judgment on both the adjournment application and the review application on 7 March 2018 without affording Mr Timu an opportunity to raise new grounds of review. We find that Mr Timu has not made out the ground set out in the first paragraph of the notice of appeal.

22    In relation to the application to adjourn the appeal to allow Mr Timu to obtain legal representation, Mr Timu has not suggested that any efforts were made by him or his family in Australia since 7 March 2018 to obtain assistance in relation to the appeal or that such assistance might be obtained within a reasonable time. For the reasons which follow, we see no merit in the grounds or proposed grounds of appeal. We do not consider that this is an appropriate case to renew the attempt to obtain pro bono assistance for Mr Timu. Accordingly, the application for adjournment should be refused.

Second paragraph of the notice of appeal

23    Insofar as the second paragraph of the notice of appeal addresses the adequacy of the Assistant Minister’s consideration of Mr Timu’s ties to Australia, we do not accept the Minister’s submission that this raises a new ground. The issue was raised as a ground in the second paragraph of Mr Timu’s application for judicial review considered by the primary judge, albeit that there were no particulars of the ground then pleaded. His Honour therefore did not have the benefit of the greater detail in the second paragraph of the notice of appeal. However, having regard to the fact that Mr Timu was not legally represented before the primary judge or in relation to the appeal, we will consider whether the interests of justice require us to consider that ground as explained in the second paragraph of his notice of appeal.

24    Having said that, we find that the ground in the second paragraph of the notice of appeal is not made out. No error is revealed in the primary judge’s finding at J[74].

25    At R[30] under the heading “Strength, nature and duration of ties”, the Assistant Minister notes Mr Timu’s statement that for “the following adult family members residing in Australia: his mother, father, sister and brother” his visa cancellation would be “life changing and physically, emotionally, mentally will effect my family in Australia” (as written). That accurately reflects the submissions made by Mr Timu to the Assistant Minister in 2016 and 2017 mentioned in the Minister’s written submissions. If the ground of complaint is that the Assistant Minster did not adequately consider his ties to Australia by reason of misunderstanding whether Mr Timu has a brother in Australia, the ground must fail.

26    The last sentences of the second paragraph of the notice of appeal may seek to raise a new ground: that R[44] reveals an error by the Assistant Minister in his consideration of the impediments faced by Mr Timu if he is removed to New Zealand because “it was not judged on the facts that myself submitted”, that from at least August 2016 he has one brother in Australia, not two in New Zealand. It would be necessary for this Court to grant leave for Mr Timu to raise it for the first time on appeal. It is our view that no such leave should be given because the ground lacks sufficient merit to be considered on appeal.

27    Paragraph [44] of the Assistant Minister’s reasons appears under the heading “Extent of impediments if removed”. It states:

Mr TIMU states that he does not know his family in New Zealand. I note that it has been submitted that Mr TIMU has two brothers residing in New Zealand and in 2012 his parents stated that the two brothers were the “only family we have left in New Zealand” and that they “will not support him there as they have families of their own” and are “not happy at all with him causing pain and anguish to us”.

28    While there is ambiguity in R[44], we accept the Minister’s submission that this accurately reflects submissions (set out in AB 166, 199-200) made in 2012, a time which is expressly referred to in the paragraph.

29    We also accept the Minister’s submission that, even if the Minister made the error of thinking that Mr Timu had two brothers in New Zealand at the time he made his decision, on a fair reading of the reasons, he did not regard that information as weighing in favour of refusing to revoke the original decision. At R[47] and [48], the Assistant Minister said:

I find that Mr TIMU will experience significant emotional hardship, due to having to leave his children and family members behind in Australia and that this is likely to be exacerbated by his mental health issues. Furthermore he will undergo a period of adjustment due to his absence from New Zealand of over 28 years, as well as the practical changes to his life, such as accommodation and other familial and social networks.

However, I find such hardships will not be insurmountable in light of New Zealand’s similar culture, language and health system standards.

30    We accept the Minister’s submissions that, on a fair reading of the reasons taken as a whole, including R[30] and [44], the Minister did not make the factual error suggested by Mr Timu, but even if he did, having regard to the cited authorities, that error cannot be characterised as going to jurisdiction.

Consideration of additional grounds

31    In relation to the six grounds set out in Mr Timu’s affidavit faxed to the Court on 3 August 2018, the Minister submitted that leave to raise these grounds should be refused because they were not raised before the primary judge and they do not allege any error by his Honour. Mr Timu has not provided an explanation for his failure to raise the grounds previously and they lack sufficient merit to warrant the grant of leave.

32    The first ground is that the Assistant Minister failed to consider the “full and till this day how affected my family is in a negative emotional feelings and sycological feelings and the physical feelings and the hardship my family and children are feeling” (as written).

33    The Assistant Minister considered the best interests of minor children at R[13]-[28] and in that context, he considered the nature and extent of contact between Mr Timu and his two children and his nephew and niece, and issues that his children would face if he was deported and his “elderly” parents were unable to care for them. The Assistant Minister noted the submissions that the children’s mother had no contact with them and she came from a remote community which was a “very violent place”. At R[26], the Assistant Minister concluded that it was in the best interests of Mr Timu’s minor children that the original decision be revoked so that they can have personal contact with him. At R[28], the Assistant Minister found that it was in the best interests of Mr Timu’s nephew and niece that the original decision be revoked so that they can have personal contact with him, but the Assistant Minister gave less weight to that consideration because Mr Timu does not have a parental relationship with them.

34    The Assistant Minister considered Mr Timu’s relationships with his other family members in Australia at R[30]-[35]. At R[30], he noted Mr Timu’s submissions that Mr Timu’s visa cancellation would be “life changing” and would affect his mother, father, sister and brother “physically, emotionally, mentally” and that he said that “they will be hurting”. At R[31], he noted Mr Timu’s statement that his family “will all be emotionally distraught, physically, mentally spiritually as I am of New Zealand Maori decent and we have a very strong culture I love my family very very much as they do me” (as written). At R[32], he noted that, in 2012, Mr Timu stated that close family ties are “part of our heritage and culture and as such it would be devastating both to me and my family to have to separate”. At R[34], he noted that Mr Timu states that his sister loves him and phones him and tells him that she needs him here in Australia. At R[35], the Assistant Minister stated that he had considered the effect of non-revocation on Mr Timu’s immediate family in Australia and accepted that “those persons would experience emotional hardship”. In particular, “Mr Timu’s parents would suffer significant hardship as Mr Timu’s removal would seemingly end any chance of him resuming custody and primary responsibility for his children”. In light of Mr Timu’s parents’ age, the Assistant Minister accepted that “this would exacerbate their hardship”.

35    It is plain that the Minister did consider the submissions made to him concerning the effect of Mr Timu’s deportation on his family in Australia, including the interests of minor children, and he actively engaged with those submissions. This ground has insufficient merit to warrant leave to raise it on appeal.

36    The second and third proposed grounds are that the Assistant Minister failed to consider a representation or a claim and that he made a critical finding that lacked an evidentiary foundation. Both of these grounds are unparticularised so that there is an insufficient basis for them to be considered on appeal.

37    The fourth ground is that the Assistant Minister’s decision not to revoke the original decision was “[not] reasonable and/or [was] disproportionate and lacked an evident and intelligible justification that the Minister stated in his decision on 7th March 2018”. The fifth proposed ground is that the Assistant Minister “misapplied a legal test that the minister stated in his decision on 7th March 2018”.

38    The primary judge delivered his decision on 7 March 2018. We infer that it is not that decision to which Mr Timu refers but the Assistant Minister’s reasons.

39    In the absence of Mr Timu stating in what respects he makes these claims about the Assistant Minister’s reasons, having read the reasons, we have not been able to discern a basis for a finding of legal unreasonableness or that the decision lacks evident and intelligible justification.

40    Mr Timu does not state what “legal test” the Assistant Minister failed to apply. The Assistant Minister considered whether Mr Timu passed the “character test” (as required by s 501CA(4)(b)(i) of the Migration Act) at R[4]-[8] and correctly concluded at R[9] that he did not. The Assistant Minister then went on to consider, for the purposes of s 501CA(4)(b)(ii), whether there was “another reason” why the original decision should be revoked, taking into account the best interests of minor children, the strength, nature and duration of Mr Timu’s ties to Australia including the effect of non-revocation of the original decision on his family members resident in Australia, the time he has lived in Australia and the extent of his positive contribution to Australia, the extent of impediments Mr Timu will face if removed from Australia, his criminal conduct (including the violent nature of that conduct, including domestic violence) and the protection of and risks to the Australian community. The Assistant Minister concluded at R[91] and [92]:

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 TIMU 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 length of residence in Australia and familial bonds, and the hardship Mr TIMU and his family will endure in the event the original decision is not revoked.

Having given full consideration to all of these matters, I am not satisfied, for the purposes of s501CA(4)(b)(ii), that there is another reason why the original decision to cancel Mr TIMU’s visa should be revoked. Accordingly, I have decided not to revoke the original decision to cancel Mr TIMU’s Class TY Subclass 444 Special Category (Temporary) visa.

41    It is not evident from this reasoning process that the Assistant Minister applied the wrong “legal test”. This ground also discloses insufficient merit to warrant consideration on appeal.

42    The sixth ground is that the Assistant Minister “relied on fact of conviction but failed to consider the evidence”. As indicated previously, a fair reading of the Assistant Minister’s reasons discloses that he did consider and engage with the submissions which were made by Mr Timu and did not rely simply on his extensive criminal record. In the absence of particulars, this ground also discloses no basis for its consideration on appeal.

Conclusion

43    We refuse Mr Timu’s application for adjournment. We refuse leave to rely on the additional grounds identified in Mr Timu’s affidavit affirmed on 2 August 2018 or (to the extent that a new ground is raised for the first time on appeal) in the second paragraph of the notice of appeal. The appeal should be dismissed with costs.

Associate

Dated:    17 September 2018