FEDERAL COURT OF AUSTRALIA

Romanov v Minister for Home Affairs [2019] FCAFC 13

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent as assessed or agreed.

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

REASONS FOR JUDGMENT

(Revised from transcript)

THE COURT:

1    This is an appeal from orders made by a judge of this Court, dismissing an originating application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs, not to revoke the mandatory cancellation of the appellant’s spouse visa on character grounds. The cancellation decision was made under s 501(3A) of the Migration Act 1958 (Cth) as the appellant was serving a sentence of imprisonment for an offence and the delegate was satisfied he did not pass the character test. The power to revoke the mandatory cancellation decision is provided by s 501CA(4).

2    The primary judge found no jurisdictional error on the part of the Tribunal, despite the use of language asserting jurisdictional error in the grounds of review. Her Honour effectively characterised the application as little more than an attempt to engage this Court in impermissible merits review.

Relevant history

3    The appellant was born in the former Yugoslav Republic of Macedonia in January 1975. He married his wife, an Australian citizen, in Macedonia in 2004 and was granted a Class BC Subclass 100 spouse visa. He came to Australia on that visa in February 2005 when he was 30 years of age. He and his wife have two sons born in March 2005 and September 2008.

4    The appellant committed the first of many criminal offences in 2010. He was first convicted on drug supply charges at the end of 2011, and sentenced to four years’ imprisonment, with a two year non-parole period. The sentencing judge noted that his wife and two children had returned to Macedonia because of their lack of support in Australia with the appellant being in prison. His visa was cancelled on character grounds by a delegate of the Minister in November 2012. Early in 2013, the Tribunal set aside that decision.

5    In November 2013, the appellant was given notice that his visa may be liable to cancellation on character grounds. In April 2014, the Minister’s Department issued a notice of a determination not to cancel his visa, but warned him that this decision may be reconsidered if he committed further offences or otherwise breached the character test in the future. That warning was to no avail. Between July 2015 and October 2016 the appellant committed a range of further offences, receiving fines, disqualifications from driving and relatively short prison sentences.

6    On 24 March 2017, the appellant’s visa was cancelled while he was serving a sentence of full-time imprisonment. On 6 April 2017, he made a request for the revocation of the visa cancellation. On 10 April 2017, he received a further jail term of 12 months’ imprisonment with a non-parole period of six months. On 23 January 2018, a delegate of the Minister decided not to revoke the visa cancellation, giving detailed reasons.

7    On 31 January 2018, the appellant applied for merits review of the delegate’s decision not to revoke the visa cancellation. A hearing of that application took place in the Tribunal on 11 April 2018. The appellant was represented by a migration agent and was assisted by an interpreter. On 18 April 2018, the Tribunal affirmed the delegate’s decision not to revoke the cancellation decision, also giving detailed reasons.

Before the Tribunal

8    The Tribunal noted that it was not in dispute that the appellant did not pass the character test in s 501CA(4)(b)(i) of the Migration Act and that the sole issue before the Tribunal was therefore whether there was another reason why the original cancellation decision should be revoked as provided for by s 501CA(4)(b)(ii). The Tribunal outlined the evidence before it and then turned to the exercise of discretion to revoke the mandatory visa cancellation. The Tribunal considered:

(1)    as “primary consideration 1” the protection of the Australian community, having regard to the nature and seriousness of the appellant’s conduct to date and the risk to the Australian community should he commit further offences or engage other serious conduct;

(2)    as “primary consideration 2”, the best interests of the appellant’s minor children in Australia affected by the cancellation decision;

(3)    as “primary consideration 3”, the expectations of the Australian community; and

(4)    five “other” considerations as to Australia's international non-refoulement obligations, the strength, nature and duration of the appellant’s ties with Australia, any impact on Australian business interests, the impact on victims, and the extent of impediments the appellant would face if he was removed from Australia.

9    The Tribunal held that while primary consideration 2 weighed in favour of revoking the cancellation decision, this was not sufficient to outweigh primary considerations 1 and 3, which strongly supported non-revocation, and accordingly affirmed the delegate’s decision. It is convenient to reproduce the Tribunal’s conclusions (at [129]-[132]):

In summary, Primary Considerations 1 and 3 weigh strongly in favour of non-revocation of the Mandatory Visa Cancellation Decision. In particular, the nature and seriousness of the Applicant’s offences and the not insubstantial risk of him re-offending that is illustrated by his past criminal offences, the continued pattern criminal behaviour following his release from prison, and his blatant disregard for Australian law and institutions. Whereas the Applicant clearly regrets his past criminal behaviour, his apparent lack of appreciation of the consequences of such behaviour, coupled with the fact that the programs he completed in prison designed to address this behaviour and his addiction have not changed his behaviour, together with his disregard of the previous cancellation of his visa and the warning from the Department in relation to the consequences for his visa status of any future offending, indicates that there is a not insubstantial risk of him re-offending.

Primary Consideration 2, the best interests of minor children, weighs in favour of revocation of the Mandatory Visa Cancellation Decision. The Applicant’s sons will be emotionally impacted by the removal of their father from Australia at a time in their lives when they need the care and support of both their parents.

In regard to the Other Considerations, the strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation of the Mandatory Visa Cancellation Decision. The extent of the impediments the Applicant will face if he is removed from Australia on balance weigh in favour of non-revocation.

The Tribunal finds that Primary Considerations 1 and 3 weigh strongly in favour of non-revocation of the Mandatory Visa Cancellation Decision, and whereas Primary Consideration 2 and one of the Other Considerations weighs in favour of revocation, these are not sufficient to outweigh the Primary Considerations which support non-revocation of the Mandatory Visa Cancellation Decision.

Before the primary judge

10    On 30 April 2018, the appellant applied for judicial review of the Tribunal’s decision by an originating application which asserted that:

(1)    the Tribunal had failed to give proper, genuine and realistic consideration to the material before it and thereby constructively failed to exercise its jurisdiction; and

(2)    the Tribunal’s decision was legally unreasonable or arbitrary.

Both grounds of review were supported by particulars. They were also supported by what the primary judge described as detailed written submissions.

11    A hearing took place before the primary judge on 27 September 2018, with the appellant appearing for himself and counsel appearing for the Minister. Her Honour considered that the appellant’s oral submissions did not add to the substance of his written submissions.

12    The primary judge delivered judgment on 5 October 2018, addressing the issues raised concisely, but in some detail. Her Honour concluded (at [20]) that it was apparent from the Tribunal’s reasons that it carefully considered all the material before it, deciding that some factors weighed in favour of revocation of the visa cancellation decision and others against that taking place. Her Honour found that the Tribunal, having weighed all the relevant considerations as required, decided to affirm the delegate’s decision. Her Honour observed that while it would have been preferable for the Tribunal to express its conclusion in the language of s 501CA(4)(b)(ii) of the Migration Act that there was “another reason why the original decision should be revoked”, there could not be any doubt that this was the conclusion that the Tribunal reached on all of the material. Her Honour was therefore unable to identify any jurisdictional error in the Tribunal’s decision. Accordingly, her Honour dismissed the application for judicial review with costs.

Grounds of appeal

13    On 25 October 2018, the appellant filed a notice of appeal from the whole of the primary judge’s judgment and orders. That notice of appeal contains the following grounds, with particulars (verbatim):

Grounds of appeal

1.    The Applicant contends the courts below erred and constructively Misapplied Assessment made pursuant to s 501 CA(4) b (ii) of the migration act 1958 (Cth), and failed to discharged statutory functions by not providing adequate and active intellectual reasoning “shield from scrutiny” and relies on “noting” which has no implicit reasons and thereby denied the applicant procedural fairness.

Applicant relies on Minister for immigration and border protection v Nguyen (2017) FCAFC 149 at (32) Per Flick, Baker & Rangiah JJ & Nweke v Minister for Immigration and Citizenship [2012] FCA 266, 126 ALD 501.

Particulars

(a)    The applicant find that the courts below failed to properly discharged her functions by failing to realised that the delegate of the Minister reasoning process was fundamentally flaw by reason of jurisdictional errors by failure to sufficiently address the determinative effects of the applicant's children if he was to be deported.

(b)    The courts below erred in failing to sufficiently addressed the applicant claims that the Primary considerations has not be given proper consideration by the delegate of the Minister that only “noting” without given “shield from scrutiny” and without evaluating the impacts deportation will create in the life of each of the two applicant’s minor children without the applicant. Thereby misapplied the Migration Act.

2.     The decision of the courts below was not proper, genuine and real to the interest of appellant's 2 minor children and family unit. A relationship that is genuine, healthy and realistic.

(a)    the appellant's is financial supporter of his 2 minor children, if the appellant's were to be deported back to Macedonia, the 2 minor children will suffer and will be disadvantage.

(3)    The applicant contended the primary court and AAT should have found on evidence in AAT decision in 2013, that the appellant had a severe (Mild spondylotic chages) and Ulcerative colitis sickness and he relied on life medication to functions, whose treatment and presences can only be met in Australia because he is financially handicap in Macedonia to meet up with this responsibility.

(a)    The primary court and AAT did not give any determinative consideration to this factors as identify above thereby denied the applicant procedural fairness.

The applicant relies on McCutheon v Minister for immigration and border protection (2018) FCA by Kerr J & WAEE v Minister for immigration and multicultural and indigenous affairs (2003) FCAFC 184 (2003) 236 FCR 593 (WAEE) at [30]

14    The Minister’s written submissions (at [3]) recast the notice of appeal as giving rise to the following four grounds of appeal, to the effect that the primary judge and the Tribunal erred (emphasis added):

(a)    by not providing “adequate and active intellectual reasoning” which denied the appellant procedural fairness, particularly in relation to the consideration of the effect of the decision on the appellant’s children (ground 1);

(b)    by not giving “proper, genuine and real” consideration to the interests of the appellant’s children, particularly with respect to the financial support given by the appellant (ground 2);

(c)    by not finding that the appellant’s medical conditions could not be treated in Macedonia due to his “financially handicap” (ground 3); and

(d)    by denying the appellant procedural fairness because the “primary court and AAT did not give any determinative consideration to this factors as identify above” (ground 4).

15    The Minister characterises the grounds in the notice of appeal, as recast above, as alleging two errors on the part of the Tribunal that the primary judge was said to have erred in not detecting. Those alleged errors concern:

(1)    the best interests of the appellant’s children; and

(2)    the availability of treatment for his medical conditions.

The Minister correctly points out that the third ground as summarised above requires leave to be advanced on appeal as the issue of financial incapacity to pay for medical treatment was not raised before the primary judge.

16    The appellant did not file any written submissions. His submissions made orally at the hearing of the appeal expressed concerns about his family and his wish to remain in Australia. He said he was not a risk to the Australian community. He asserted that the Tribunal did not question his wife thoroughly and reiterated the issue as to his medication. The issue of medication is addressed below.

17    It is not apparent that any complaint about the Tribunal’s questioning of the appellant’s wife has ever been made before, let alone how that would constitute any error at all, let alone jurisdictional error on the part of the Tribunal. There is no transcript of the Tribunal hearing before this Court, and none was apparently before the primary judge. Thus this complaint is incapable of constituting any basis for the intervention of this Court’s appellate function.

Best interests of the appellant’s children

18    In relation to the two authorities referred to in the notice of appeal of Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149; 254 FCR 522 at [32] and Nweke v Minister for Immigration and Citizenship [2012] FCA 266; 126 ALD 501, the Minister submits, correctly:

(1)    That in Nguyen, the Full Court dismissed the Minister’s appeal from a judge of the Federal Circuit Court of Australia, holding (at [32]) that the requirement to make findings on material questions of fact was not discharged by stating only conclusions without disclosing the critical evidence that had been relied upon. That is not the present case in which the evidence relied upon was spelt out, and findings made in respect of that evidence.

(2)    That in Nweke, a judge of this Court found that the Minister had only treated the best interest of children as a mere hypothesis, not as a primary consideration, whereas in this case the Tribunal had accepted the appellant’s relationship with his children and that their interests was a primary consideration in favour of revocation.

These cases therefore do not assist the appellant.

19    The Minister submits that insofar as reliance is now placed on an assertion that the Tribunal did not give “proper, genuine and realistic” consideration to the interests of his children with respect to the financial support given by him, this was not raised before the primary judge, nor in submissions before the Tribunal. The assertion that this was not raised is not completely accurate because:

(1)    the application for judicial review before her Honour asserted that “the AAT only relied on the past evident of been to Macedonia without the present circumstances that the family dependent on the applicant financially and emotionally”; and

(2)    the appellant’s submissions before her Honour did refer to the family needing two incomes to live comfortably and be able to pay for the children’s sporting events, and referred to his wife’s statutory declaration describing the difficulty she experienced living without him and parenting alone.

While her Honour did not separately and expressly refer to the above detail, it is clear that she had regard to the totality of the appellant’s submissions. It is equally clear that this part of the grounds of review was incorrect because the Tribunal did consider the substance and effect of this aspect of the appellant’s case for revocation in a forward looking way by referring expressly to this evidence at [68] and observing, at [70], that the evidence of the appellant’s wife was that it would “only ever be a daily struggle to manage” in his absence and that the children needed both parents.

20    The Minister further submits that, in any event, the Tribunal made the following findings on the topic of employment and thus earning capacity and ability to provide financial support to his children (at [125]-[126]):

The Applicant claims that if he is returned to Macedonia that he will have limited support from family and friends and he will find it difficult to find employment. The evidence before the Tribunal is that the Applicant was born and lived in Macedonia until the age of 30 and that he has maintained family and social ties in the country in that his mother, sister and some close friends reside there.

The Tribunal finds that, whereas the Applicant will face some initial difficulties in establishing himself in Macedonia and that living standards will be inferior to those in Australia, these are not insurmountable obstacles. The Applicant is aged 43 and has previous work experience, including as a forklift driver, flooring installer and rental car attendant and therefore he should be able to find paid employment. He will not face any language or cultural barriers on his return, and he will have the same access to welfare benefits as all Macedonian nationals.

21    The Minister submits that the primary focus of the appellant’s case before the Tribunal was on the emotional impact of his children losing day to day physical contact with him. That topic was amply addressed by the Tribunal. Further, as noted by the primary judge at [8], the Tribunal weighed the best interests of the applicant’s children as a factor in favour of revocation of the cancellation decision upon the basis that he would be deported, and his family would remain in Australia.

22    Properly considered, there is no substance to the suggestion that the Tribunal failed to have regard to the best interests of the appellant’s children as raised by the appellant. The necessary error on the part of the primary judge has not been established on this topic. The grounds of appeal on this topic should therefore fail.

The appellant’s medical conditions

23    The appellant asserts error on the part of the Tribunal, and thereby on the part of the primary judge, by not finding that the appellant’s medical conditions could not be treated in Macedonia due to his “financially handicap”. The Tribunal addressed the issue of the appellant’s health conditions as follows (at [127]):

The [appellant] claims to suffer from a range of health conditions and he fears that these cannot be adequately treated in Macedonia and that he will not be able to access necessary medications. There is no evidence before the Tribunal to indicate that the [appellant]’s medical conditions are such that his removal to Macedonia would cause immediate and/or irreversible harm to this health or that the medical treatment and medications he requires will not be available.

24    The Minister correctly points out that the only prescribed medication disclosed by the appellant as being needed by him is Imuren (in the personal circumstances form accompanying his revocation cancellation request), and that he did not adduce any evidence as to why this medication (or any other medication) would not be reasonably available to him in Macedonia. The reference to Imuren was the extent of the information provided by the appellant in response to the question “Do you have any diagnosed medical or psychological conditions?” It may be observed that it appears that the closest the appellant came to this issue was in his revocation application where he stated as part of the reasons he advanced for requesting revocation that “I also have some health conditions that I fear could not be addressed appropriately without the Australian health-care systems”.

25    The primary judge addressed this topic as follows (at [14], emphasis added):

… The Tribunal was not bound to accept the whole of the [appellant]’s evidence. It was reasonably open to the Tribunal to accept that the [appellant] would face hardship in Macedonia but not hardship of an insurmountable kind given his background, capacity to speak the language, age, skills and ties to Macedonia. Nor was the Tribunal bound to inquire into Macedonia’s health and welfare system. It was for the [appellant] to put his case before the Tribunal including such material about the Macedonian health and welfare system as he saw fit. Again, this all discloses the careful consideration the Tribunal gave to the material before it and the matters which had to be considered, as well as the detailed reasons the Tribunal gave for deciding whether those considerations weighed in favour or against revoking the visa cancellation decision.

26    No error may be discerned on the part of the primary judge. To the contrary, the sentence that has been emphasised addresses the very point: the appellant cannot complain about an issue that he did not see fit to raise before the Tribunal, let alone make any headway in asserting the necessary error on the part of the primary judge. Thus, to the extent that the grounds of appeal seek to raise health issues that were not raised before the Tribunal, or before her Honour, that should not be permitted, principally because it is incapable of establishing any error at all, let alone jurisdictional error.

27    Properly considered, there is no substance to the suggestion that the Tribunal failed to have regard to issues as to the appellant’s health that he chose to raise for consideration. The necessary error on the part of the primary judge has not been established on this topic. The grounds of appeal on this topic should also fail.

Conclusion

28    No error on the part of the Tribunal has been demonstrated, let alone one that was raised and overlooked by the primary judge so as to constitute any error on the part of her Honour. The appeal should be dismissed with costs.

Associate:

Dated:    8 February 2019