FEDERAL COURT OF AUSTRALIA

Anaki v Minister for Immigration and Border Protection [2018] FCAFC 195

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant 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

THE COURT:

Introduction

1    This appeal is from the judgment and orders of a single judge of this Court (the primary judge), given and made on 14 February 2018. The primary judge dismissed an application for judicial review of a decision of the respondent Minister to cancel the appellant’s Class TY Subclass 444 special category visa, the Minister’s decision having being made on 13 February 2017.

2    As stated by the primary judge, the appellant is a New Zealand citizen who was born in October 1969. He first arrived in Australia as a 16 year old child. He has a lengthy criminal record. Over a 29 year period he has been convicted of 127 criminal offences, 81 of which involved drug offences. He has been sentenced to custodial sentences on 33 occasions; seven sentences were suspended, 22 were with terms of imprisonment from two to 10 months, and four were for 12 month terms.

The grounds of review before the primary judge

3    The appellant advanced two grounds of review before the primary judge, a third ground being abandoned at the outset of the hearing. Those two grounds were as follows:

1.    The Respondent erred in finding that the Applicant would have access to drug rehabilitation programs in New Zealand when there was no evidence before him in relation to that issue.

2.    The Respondent erred in failing properly to consider the impediments to the Applicant’s return because he could not undertake such consideration in circumstances where there was no evidence before him in relation to the accessibility of drug rehabilitation programs in New Zealand.

The grounds in the notice of appeal

4    The grounds in the notice of appeal to this Court are as follows (as written):

1.    The primary judge at the Federal Court erred by failing to recognise the applicant’s grounds which relied on the fact that the respondent’s decision was affected by a jurisdictional error.

2.    The primary judge erred by failing to recognise that the Respondent’s decision was affected by unreasonableness.

The statutory power

5    The statutory basis in the Migration Act 1958 (Cth) for the Minister’s decision and against which any claim of jurisdictional error must be assessed was as follows:

501BA    Cancellation of visa—setting aside and substitution of non-adverse decision under section 501CA

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister—natural justice does not apply

(2)    The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e); and

(b)    the Minister is satisfied that the cancellation is in the national interest.

(3)    The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

(4)    The power under subsection (2) may only be exercised by the Minister personally.

Decision not reviewable under Part 5 or 7

 (5)    A decision under subsection (2) is not reviewable under Part 5 or 7.

    Note:    For notification of decisions under subsection (2), see section 501G.

6    The Administrative Appeals Tribunal had, on 8 September 2016, made a decision under s 501CA of the Migration Act to revoke a decision under s 501(3A) to cancel a visa that had been granted to the appellant. There was no issue that the appellant did not pass the character test because of the operation of s 501(6)(a) on the basis of s 501(7)(c) and that the Minister did not err in being so satisfied. The next statutory question was whether the Minister was satisfied that the cancellation of the appellant’s visa was in the national interest. No challenge was made to the Minister’s conclusion in this respect. If so satisfied, the Minister may set aside the decision of, in this case, the Tribunal and cancel a visa granted to the appellant.

The Minister’s decision

7    The Minister identified the visa as the Class TY Subclass 444 Special Category (Temporary) visa held by the appellant at the time of the Minister’s decision.

8    In his reasons for decision, the Minister first considered the meaning and content of the “national interest”, and the appellant does not complain about that. The Minister, having satisfied himself that it was in the national interest to cancel the appellant’s visa, went on to consider whether there were relevant considerations which might support not cancelling the appellant’s visa. The Minister was considering his discretion to cancel the appellant’s visa even where he was satisfied that the cancellation was in the national interest.

9    The Minister first considered protection of the Australian community and whether the appellant posed a risk to the Australian community through reoffending, together with any mitigating or causal factors in his previous offending. The Minister gave primary consideration to the best interests of any children less than 18 years of age and whose best interests would be affected by the cancellation of the visa. The Minister also considered the expectations of the Australian community.

10    Under the heading “Other Considerations” the Minister first considered the strength, nature and duration of the appellant’s ties to Australia.

11    The Minister then considered the extent of the impediments that the appellant would face in New Zealand if removed there. The Minister’s reasons were as follows:

[71] I have had regard to the impediments that Mr ANAKI will face in New Zealand in establishing himself and maintaining basic living standards such as are generally available to other citizens.

[72] Mr ANAKI is 47 years of age and the available information indicates he is in relatively good health. The AAT considered that the only extant health issue experienced by Mr ANAKI is his ongoing substance abuse issues which require ongoing support, such as treatment services and counselling. I accept that Mr ANAKI’s removal from Australia may cause a disruption to the support he currently receives for his substance abuse issues. However, I have also considered that substance abuse services are available in New Zealand and these services may be available to Mr ANAKI.

[73] I am of the view that any economic hardship Mr ANAKI may face in being removed to New Zealand must be placed in context of his existing economic situation and transient lifestyle. Mr ANAKI has been unemployed since approximately 1999, and without stable accommodation for some ten years. The available information indicates that he has relied primarily on unemployment benefits as a source of income and this has been supported on occasion with the proceeds of his criminal activities. I am mindful that Mr ANAKI has been supported by social support organisations such as the Wayside Chapel and Neami National Way2Home Service with accommodation, health services, substance abuse services and other needs. I accept that if Mr ANAKI is removed from Australian (sic) this may involve some disruption to his unemployment benefits, housing assistance and access to his existing support and welfare agencies. Nonetheless Mr ANAKI will have access to the same welfare services which are available to all New Zealand citizens, and these services are broadly comparable to what he might expect to receive in Australia. I accept that he will experience some economic hardship, at least initially, however this may diminish over time.

[74] Mr ANAKI has returned to New Zealand on a number of occasions, and as recently as 2007. The AAT found there would be no substantial language or cultural barriers that would cause Mr ANAKI hardship and I am in agreement with the AAT on this point. I accept that Mr ANAKI may face an initial period of adjustment to New Zealand society, given he has not resided permanently there for some 31 years.

…

[82] I find that the considerations favouring non-cancellation, in particular Mr ANAKI’s ties to Australia and the hardship he and his family will face if returned to New Zealand, are outweighed by the national interest considerations referred to above and I have decided to exercise my discretion to set aside the decision of the Administrative Appeals Tribunal of 8 September 2016, and to cancel Mr ANAKI’s Class TY, Subclass 444 Special Category (Temporary) visa on s 501BA of the Act.

The parties’ submissions

12    The appellant filed no written submissions. In oral submissions the appellant indicated that he disagreed with the Minister’s decision on the basis that he was a no risk offender and he had been in Australia for 30 years.

13    The respondent Minister submitted that the first ground of appeal claimed the primary judge erred, but without relevant particulars. The Minister adopted the reasons of the primary judge and submitted that those reasons were supported by the analysis of the relevant case law in Buchwald v Minister for Immigration and Border Protection [2016] FCA 101; 242 FCR 65 at [34]-[39].

14    In addition, the Minister relied on the submission the primary judge noted at [24]-[25] relying on Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at [69] that the Minister did not need to have specific evidence about the existence of substance abuse services in New Zealand. The Minister also referred to McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 at [37] and Hands v Minister for Immigration and Border Protection [2018] FCA 662 at [38].

15    The Minister submitted that the second ground of appeal claimed that the Minister’s decision was unreasonable. That was essentially the same as the third ground of the Amended Application, which was abandoned below and should not be permitted to be raised on appeal. There was no basis to suggest that the Minister’s decision was legally unreasonable within the relevant principles in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 and Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158.

Consideration

16    Both the grounds of appeal are vague. The first claims that the primary judge erred but gives no particulars. The second ground claims error on the part of the primary judge in failing to hold that the Minister’s decision was (legally) unreasonable.

17    As to the first ground, assuming in favour of the appellant that the ground is intended to incorporate the two grounds before the primary judge which centred on what the Minister had said as to the appellant’s access to substance abuse services in New Zealand, we see no error on the part of the primary judge.

18    We agree with the primary judge who said, at [20], that the threshold difficulty with the appellant’s argument is that it is apparent that the Minister did not regard the availability of substance abuse services in New Zealand as a critical fact in the exercise of his discretion. The observation in [72] of the Minister’s decision was that substance abuse services “may be” available to Mr Anaki. The Minister did not make a factual finding that Mr Anaki would have access to substance abuse services upon his return to New Zealand, rather he found that he may have access to such services.

19    As the primary judge said at [22]-[23]:

22    The difficulty [with the submission that the “no evidence” ground applied] is that the reasoning of the Minister, as noted above, does not reflect a view that the services will be available to Mr Anaki, but only that they “may be”. The Minister did not make the requirement of availability a precondition to the exercise of his discretion. As I have noted, by observing that the services “might” be available, the Minister also contemplated that they might not be. Accordingly, the Minister did not himself make the existence of such services a prerequisite.

23    The consequence of this analysis is that, contrary to Mr Anaki’s submission, a lack of evidence about the type of services available in New Zealand would not amount to jurisdictional error; [Minister for Immigration and Multicultural and Indigenous Affairs v] SGLB [[2004] HCA 32; 207 ALR 12] at [40].

20    We also see no error in the reasoning of the primary judge at [28] rejecting the then second ground, which was a further way of putting the “no evidence” ground. The primary judge said:

… this submission relies on the same incorrect premise as ground 1, namely that the Minister was required to consider the availability of substance abuse services to Mr Anaki. Again, the authorities do not support that proposition; see Madafferi [v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220; 118 FCR 326] and Gbojueh [v Minister for Immigration and Citizenship [2012] FCA 288; 202 FCR 417]. Nor did the reasoning of the Minister make it a requirement that he do so. I am not satisfied that, in the circumstances, the Minister fell into jurisdictional error on the basis asserted.

21    No challenge was made to the correctness of the authorities relied on by the primary judge.

22    We do not regard it as necessary in this appeal to analyse the “no evidence” ground in judicial review for jurisdictional error. In our opinion, whether the fact is required to be a precondition to the exercise of the power (jurisdictional in that sense) or a critical step in the ultimate conclusion, neither of those descriptions or characterisations apply to the findings in [72] of the Minister’s reasons. On that basis we distinguish Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162: see the judgment in Schmidt at [27] and [32].

23    As to the second ground in the notice of appeal before the Full Court, this is a different way of expressing the ground which was abandoned at the hearing before the primary judge, when the appellant was represented by counsel. That ground was: “The Respondent’s decision was illogical, irrational and/or unreasonable because he did not balance the Australian community’s tolerance of the Applicant’s criminal conduct against the national interest.” The appellant would require leave to depart from the manner in which his case was conducted at first instance. No grounds appear on which such leave should be granted. The claim that the Minister’s decision was affected by unreasonableness has no substance either at all or once regard is had to the relevant principles, now well-established, in Stretton and Eden.

Conclusion and orders

24    We would dismiss the appeal. The appellant is to pay the respondent’s costs, as agreed or assessed.

Associate:

Dated:    13 November 2018