FEDERAL COURT OF AUSTRALIA

Pallas v Minister for Home Affairs [2019] FCAFC 149

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs of the appeal to be taxed or as agreed.

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

REASONS FOR JUDGMENT

GREENWOOD J:

1    I have had the benefit of reading the reasons for judgment of Derrington J. I agree with the orders proposed by his Honour and I generally agree with his Honour’s reasons explanatory of the making of those orders.

2    I simply wish to add these observations. The standard of appellate review to be discharged by the Full Court, in this case, in conducting an appeal by way of rehearing, within the limits of the grounds of appeal identified by the appellant, is the “correctness” standard discussed by Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 (“SZVFW”). Thus, the question is whether the primary judge was correct or incorrect, within the limits of the contended grounds of error, in dismissing the application for supervisory review of the decision of the Assistant Minister within the principles defining the grant of the constitutional writs for the purposes of para 75(v) of the Constitution.

3    The decision of the Assistant Minister engaged the exercise of a statutory discretion under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) (the “Act”). The Assistant Minister was required to take into account, in the exercise of the discretion, the matters put to him by the appellant in response to the invitation under s 501CA(3)(b) for the purposes of s 501CA(4)(a) of the Act.

4    Before the primary judge, the appellant challenged the exercise of the discretion on grounds of unreasonableness (grounds 3 and 4) and also on the footing that the Minister failed to provide the appellant with “procedural fairness and natural justice”. There is no ground of contended error on the part of the primary judge in relation to the primary judge’s rejection of the grounds of unreasonableness.

5    The only ground of challenge to the correctness of the primary judge’s decision, by way of rehearing, is ground 2 of the grounds of appeal contained within the short phrase “Procedural fairness and natural justice”. There are no particulars of that ground and no submissions have been put on by the appellant.

6    Submissions have been made, and received with leave, on behalf of the appellant, from a social worker who is assisting the appellant, Ms Marleen Charan. Those submissions are essentially directed to factors on the merits which are said to support a decision that ought to have been made by the Minister in the exercise of the discretion leading ultimately to a preferred decision of the revocation of the cancellation of the appellant’s visa.

7    The appellant’s ground of challenge to the correctness of the primary judge’s decision on the basis of a failure to provide the appellant with procedural fairness and natural justice has two limbs to it.

8    The first is that the appellant was denied procedural fairness and natural justice by the primary judge in failing to adjourn the principal proceeding because the appellant was not represented by a lawyer: see T, p 8, lns 1-10. For the reasons identified by Derrington J, no error on the part of the primary judge is demonstrated in the exercise of the discretion not to adjourn the proceeding. In the primary judgment, her Honour identifies, in short form, the reasons for refusing the adjournment.

9    The second is that the appellant was denied procedural fairness and natural justice by the Assistant Minister in failing to explain, in the reasons for his decision, a process of reasoning which caused the Assistant Minister to decide that the best interests of the appellant’s son, minor step-sons and grandchildren were outweighed by an unacceptable risk of harm to the Australian community represented by Mr Pallas’s presence within the community should the cancellation decision be revoked.

10    That challenge requires the Full Court to decide for itself, on all the evidence before the primary judge, whether the primary judge was right or wrong in deciding whether the Assistant Minister has a statutory obligation to expose in the reasons a path of reasoning leading to the conclusion reflecting that balance and whether the reasons are required to expose the factors informing the balance struck in the exercise of the discretion: SZVFW, Gageler J at [56]

11    As a matter of statutory construction of s 501CA(3) and (4), the Assistant Minister is required to consider the representations made by Mr Pallas and to identify the factors leading to the conclusion that Mr Pallas represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighs the best interests of his son, minor step-sons and grandchildren (and any other considerations described in the appellant’s representations). The Assistant Minister identified those factors in a conclusionary way at paras 63 and 64 of the decision which are discussed more comprehensively throughout the reasons for the decision, in particular paras 37 to 47. To the extent that this second limb of the ground of appeal is the true focus of the appellant’s concern as to the correctness of the primary judge’s decision, I am satisfied that no error is made out.

Associate:

Dated:    27 August 2019

REASONS FOR JUDGMENT

LOGAN J:

12    I agree with the reasons for judgment of Derrington J, which I have had the advantage of reading in draft.

Associate:

Dated:    27 August 2019

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

13    On 2 February 2017, the Department of Immigration and Border Protection (the department) wrote to Mr Pallas informing him that the visa which entitled him to remain in Australia, being a Class BF Transitional (Permanent) Visa, had been cancelled. The cancellation occurred pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) as Mr Pallas did not then satisfy the character test contained in s 501(6) of the Act. His inability to satisfy that test arose as a consequence of his incarceration in a correctional facility.

14    On 19 February 2017, Mr Pallas signed a form entitled, “Request for revocation of a mandatory visa cancellation under s 501(3A)” and gave it to the department. By that he sought that the original decision, which had cancelled his visa, be revoked.

15    By a decision made on 7 February 2018, the Assistant Minister for Home Affairs refused to revoke the cancellation decision.

16    Pursuant to s 476A of the Act, on 13 March 2018 Mr Pallas applied to this Court in its original jurisdiction seeking judicial review of the Assistant Minister’s decision. On 16 April 2019, a judge of this Court refused his application. He filed a notice of appeal in relation to that decision on 3 May 2019 and the appeal was heard on 20 August 2019.

17    For the reasons which follow it is apparent that there is no merit in the appeal and it ought to be dismissed with costs.

Background

18    Mr Pallas arrived in Australia from France in 1973 with his parents and his brothers. He was 10 years old at the time. He has remained living in Australia for the following 46 years, but he remains a French national and he has never obtained Australian citizenship.

19    Mr Pallas’ National Police Certificate discloses the existence of a substantial criminal history during his adult life. His convictions extend to committing offences whilst on bail, numerous offences involving dishonesty, offences for the illegal possession of firearms and explosives, drug and driving offences and, perhaps worst of all, serious offences of violence and attempted escape from custody. His record shows that he has been convicted of over 100 offences from August 1980 through until 2016. He has been imprisoned on many occasions, for at least 13 years. His property offences alone involve stolen property to a value in excess of $1 million.

20    His most recent term of imprisonment was consequent upon his conviction on 31 May 2016 in relation to receiving tainted property for which he was sentenced to a term of 3 years in prison. It was during that period of incarceration that the Minister, by his decision of 2 February 2017, cancelled his visa.

21    By his application requesting revocation of the cancellation decision, Mr Pallas provided comprehensive details as to his personal circumstances, being those on which he relied as the foundation for his request that the Minister exercise his discretion in his favour. He relied upon his residency in Australia for 45 years, his current family relationship which allegedly included five step-children with his current partner and three grandchildren, his own six children and six grandchildren from a former relationship, and his connection with his parents and two brothers who live in Australia. He also claimed that he was unfamiliar with France, having not returned since leaving, and not speaking the language. He claimed that he was presently involved in business with his sons and that he was financially stable in Australia. In his written submission to the Minister he detailed his relationship with his various children and step-children. He also detailed his relationship with his parents and his brothers.

Decision not to revoke cancellation of visa

22    As mentioned, on 7 February 2018 the Assistant Minister determined not to revoke the cancellation decision. He was not satisfied that Mr Pallas passed the character test as defined in s 501(6) of the Act or that there was another reason why the cancellation decision should be revoked: s 501CA(4)(b) of the Act.

23    There is no need at this point to assay the Assistant Minister’s reasons in any detail. Whilst he recognised that it was in the best interests of Mr Pallas’ minor son, stepsons and grandchildren for the decision to be revoked, that Mr Pallas had strong and lengthy ties with Australia and faced a number of hindrances were he to be removed to France, the protection of the Australian community from the risk of Mr Pallas reoffending was sufficient to outweigh the ameliorating considerations. In relation to the risk of reoffending, the Assistant Minister identified that Mr Pallas’ criminal history was “very serious” particularly in light of the “nature of his violent offending and the volume and cumulative effect of his dishonesty offending”. The Assistant Minister took into account Mr Pallas’ claims of insight into his offending, his claimed remorse, his participation in rehabilitation programs, employment history and involvement in volunteer organisations. However, the Assistant Minister also took into account the contents of a report prepared by the Queensland Department of Corrective Services in relation to a number of punishable incidents in which Mr Pallas had been involved whilst in prison between July 2001 and June 2016. It suffices to say that they were not inconsiderable. The Assistant Minister found that although the risk of Mr Pallas reoffending may have “reduced somewhat”, that was outweighed by the nature of his offending which involved dishonesty on many occasions and violence. He also took into account that any further offending by Mr Pallas would be likely to cause psychological, physical and financial harm to the Australian community which, overall, would be considered to be serious. In the result the Minister was not satisfied that there was any other reason for the purposes of s 501CA(4)(b)(ii) of the Act as to why the cancellation decision ought to be revoked.

Application for review to the Federal Court

24    The grounds of the application advanced to the Court below are set out in paragraph [46] of the learned primary judge’s reasons. They were founded in the alleged jurisdictional errors of unreasonableness and breach of natural justice. When the latter is considered it is apparent that the substance of the complaint was, in fact, unreasonableness in the decision-making process.

25    It is relevant to note that shortly prior to the date initially set for hearing before the primary judge, Mr Pallas sought and was granted an adjournment of the hearing. The need for that arose as a result of him having sustained injuries at the Christmas Island Detention Centre. The application was then fixed for final hearing on 16 August 2018.

26    On 9 August 2018, being one week before the scheduled hearing, Mr Pallas lodged an interlocutory application in which he sought the reference of his matter to pro bono lawyers and an adjournment of the matter such that he could obtain legal representation. That application was heard at the commencement of the hearing on 16 August. Mr Pallas explained to the primary judge that he had contacted many lawyers seeking assistance but he was unable to secure their services. He claimed that he needed more time in which to obtain legal representation.

27    On appeal Mr Pallas again requested that the Court make a referral for pro bono assistance under r 4.12 of the Federal Court Rules 2011 (Cth). That rule provides:

4.12     Referral for legal assistance

(1)     The Court may refer a party to a lawyer for legal assistance by issuing a referral certificate, in accordance with Form 9.

(2)     When making a referral under subrule (1), the Court may take the following matters into account:

(a)     the means of the party;

(b)     the capacity of the party to otherwise obtain legal assistance;

(c)     the nature and complexity of the proceeding;

(d)     any other matters the Court considers appropriate.

(3)     The referral certificate may state the kind of legal assistance for which the party has been referred.

(4)     A Registrar will attempt to arrange for the provision of legal assistance in accordance with the referral certificate to a Pro Bono lawyer.

28    The determination of whether to make a referral is at the discretion of the Court. That is emphasised by r 4.13 which provides:

4.13     A party has no right to apply for a referral

A party is not entitled to apply to the Court for a referral under rule 4.12.

29    The primary judge declined to make any referral order under r 4.12. Of particular relevance to that determination was that there was unlikely to be any utility in making such an order. Mr Pallas had made numerous attempts to secure the services of a lawyer but failed to do so. He told the Court:

MR PALLAS: I’ve tried — I’ve tried to get legal advice and — and I can’t get no one to take the case on. I’ve rang — I’ve rang lots lawyers. I’ve tried everything I can. I’ve emailed. I’ve tried Legal Aid in Queensland. I’ve tried Legal Aid in Western Australia. No one wants to take it on.

…

MR PALLAS: And Legal Aid in Western Australia told me to ask the judge for pro bono listing.

(Transcript p 2 ll 32–40)

30    There was nothing before her Honour which suggested that the making of a referral order would advance the matter in any way. There was nothing to demonstrate that Mr Pallas had utilised his time since the filing of the application to contact community legal services dealing in migration matters. Indeed, it appeared that he had received the assistance of lawyers in drafting the application for relief.

31    The primary judge also refused to grant any adjournment of the proceedings on the basis that she was not persuaded that there would be any utility in doing so.

Reasons of the primary judge

32    The reasons of the learned primary judge for dismissing the application for review are succinct but are not wanting for that. Her Honour considered the grounds of unreasonableness articulated in the application for review. Those grounds appeared to have been drafted with the assistance of a lawyer and provided some intelligible basis for complaint. Mr Pallas was not able to offer any submissions in support of the grounds.

33    In relation to the express unreasonableness ground, the primary judge identified the matters to which the Assistant Minister had regard in reaching his conclusion and set them out. There were weighty factors which supported the Assistant Minister’s conclusion. Her Honour noted that, in substance, the gravamen of Mr Pallas’ complaint was his disagreement with the conclusion reached by the Assistant Minister. Her Honour concluded that no unreasonableness had been established.

34    The ground of review founded on an alleged breach of procedural fairness was, in effect, a complaint as to the weight accorded by the Assistant Minister to the interests of Mr Pallas’ minor children. It was suggested that the Minister had only paid “lip service” to that consideration. As mentioned, in substance, such a ground is at best one of unreasonableness and, at worst, a mere cavilling with the outcome. The primary judge rejected the ground. Her Honour noted that the Assistant Minister had given detailed consideration to the interests of Mr Pallas’ minor children and, indeed, of his grandchildren. There was nothing to suggest that the consideration of those matters expressed in the reasons was not genuinely had by the Assistant Minister.

35    In the result the primary judge could detect no error in the reasons of the Assistant Minister which might support this ground of review.

36    The application was dismissed with costs.

Appeal to this Court

The grounds raised in the Notice of Appeal

37    The grounds of appeal to this Court do not articulate any sustainable ground of appeal. They are:

1.    Reconsider the appellant’s application for revocation according to law, 16 April 2019.

2.    Procedural fairness and natural justice.

3.    Such further orders at the Court conceder appropriate.

(errors in original)

38    It would appear that the purported grounds of appeal seek to agitate for the existence of errors in the decision of the Assistant Minister. On its face there is nothing to support the contention that ground 2 is concerned with the process which occurred at the hearing in the Court below. To the extent the grounds are directed to the Assistant Minister’s decision, it is not the function of this Court to consider, afresh, whether that decision is attended by jurisdictional error. In the hierarchy of the court system, this Court sits on appeal from the primary judge to correct any errors appearing in the reasons of that judge. Its role is not to ascertain, in effect at first instance, the existence of error in a primary decision-maker’s decision. A valid notice of appeal needs to identify some alleged error in the reasons of the primary judge which has led to the orders made. It was the task of the primary judge to determine whether the Assistant Minister’s decision was affected by jurisdictional error under s 476A of the Act, and it is the task of this Court to ascertain whether the primary judge’s judgment is affected by appellable error: SZVBT v Minister for Immigration and Border Protection (2017) 72 AAR 1, [10]; BZAHB v Minister for Immigration and Border Protection [2015] FCA 1205, [33]. Having the benefit of reading Greenwood J’s reasons, none of this is to deny that the obligation of this Court is to ascertain whether the decision of the Assistant Minister is within his authority as is required by the several reasons for judgment in Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713. But its obligation is to do so within the structure of the Migration Act and the Federal Court of Australia Act 1976 (Cth) which include limitations on the ability of certain courts to review the exercise of power by the Minister and limitations on the scope of appeals. The scope of the review sought by the appellant and the conduct of the matter before the primary judge restrict the matters to which this Court can have regard. In determining whether the Assistant Minister’s decision was affected by jurisdictional error, no special weight is given to the views of the primary judge and the question is not whether the conclusion reached by the primary judge was open. That said, there is nothing in SZVFW which has the consequence that, on an appeal from a determination of an application for review, the appellate court is entitled to look beyond the scope of the grounds advanced below so as to satisfy itself, in some inquisitorial way, that the original decision below was not affected by jurisdictional error.

Application for an adjournment before this Court

39    On 7 May 2019, Registrar McCormick of this Court made directions in relation to the conduct of the appeal. One of those directions was that the appellant was to file and serve a written outline of submissions no later than ten business days prior to the hearing date. No submissions were filed by him. However, a week prior to the hearing, Mr Pallas filed an affidavit in which he seemed to seek an adjournment of the appeal. He provided the foundation of that request as being that he was awaiting a response from LawRight for pro bono assistance. The Court treated that affidavit as an application for an adjournment and at the hearing of the appeal Mr Pallas confirmed that, indeed, was what he was seeking. He was given an opportunity to advance arguments in support of it although his only substantive ground was that he was unrepresented.

40    It is relevant to the adjournment application that on 16 July 2019 this Court made a referral under r 4.12 for legal assistance for the appellant. It was directed to LawRight. That organisation was not able to find assistance for the appellant in relation to his appeal.

41    The Court refused to grant Mr Pallas an adjournment. No valid reason had been established which might warrant the deferral of the hearing of this appeal. There was no sufficient evidence as to Mr Pallas’ financial circumstances nor of his attempts, if any, to obtain legal assistance. His statements from the Bar table, which reiterated that he had contacted hundreds of lawyers seeking assistance but had not been able to find anyone to help him, were accepted for the purposes of the application, but their lack of detail rendered their probative value weak. Further, it was not shown that the granting of an adjournment would result in Mr Pallas obtaining legal assistance so as to advance the proper articulation of any case which he might agitate. Mr Pallas’s statement to the effect that he had contacted numerous lawyers but none were willing to assist him supported that conclusion. The procedure under r 4.12 had been activated by the Court, but no pro bono legal representation was forthcoming. That provided further justification for the view that granting an adjournment would lack any utility.

Denial of procedural fairness

An alleged denial of procedural fairness in the hearing before the primary judge

42    In the course of the hearing of the appeal Mr Pallas suggested that he was denied procedural fairness by the primary judge on the basis that he was denied an adjournment to allow him to seek legal representation. In general terms his complaint was one of general unfairness. There are, however, many difficulties with this submission:

(a)    Firstly, the only basis on which Mr Pallas founded his application for an adjournment before the primary judge was his desire to seek to obtain legal representation. That, of itself, is an insufficient basis for the granting of an adjournment. Other than in the case of persons appearing before a court for a serious criminal offence: Dietrich v The Queen (1992) 177 CLR 292; there is no “right” to legal representation in this country. In Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20 at 26 [24], the Court (Sackville, Marshall and Lehane JJ) said:

As these passages show, there is nothing in the reasoning in Dietrich to suggest that the decision applies otherwise than to a court hearing a prosecution for a serious criminal offence under Commonwealth, State or Territory law. In particular, there is nothing to suggest that the reasoning applies to administrative hearings, including a hearing by the AAT in the course of reviewing a deportation order made by the Minister's delegate. On the contrary, the rationale underlying Dietrich, namely the power of a court to stay proceedings in order to prevent an unfair criminal trial taking place, does not apply to an administrative review conducted by a tribunal no matter how serious the consequences for the individual concerned.

See also New South Wales v Canellis (1994) 181 CLR 309, 328.

(b)    Secondly, the application for review of the Assistant Minister’s decision had been filed on 13 March 2018 and an amended application, which appears to have been prepared with the assistance of lawyers, was filed on 12 June 2018, such that there had been ample time for Mr Pallas to secure legal representation if it were available.

(c)    Thirdly, as was the position before this Court, it had not been shown that the granting of an adjournment would have been of any utility. There was no evidence before the primary judge to suggest that there existed any probability that if an adjournment were granted the appellant would have been able to secure legal representation or assistance. As mentioned, the appellant’s own statements to the Court indicated that there was no real prospect that any lawyer would be willing to assist him.

(d)    Fourthly, the appellant had no entitlement to apply to the Court to request a referral under r 4.12. The primary judge had concluded that it was too late in the proceedings to make a referral and that it would have been inutile in any event.

43    For the above reasons there was no error on the part of the learned primary judge in refusing to grant the appellant an adjournment. On the contrary, they demonstrate that no valid basis was established on which the primary judge might have exercised her discretion to grant one. The hearing of the application had previously been adjourned when Mr Pallas was indisposed so as to allow him more time to adequately prepare his appeal and there was no unfairness in the refusal to grant the adjournment at the subsequent hearing of the application.

Procedural fairness directed to the Assistant Minister’s decision

44    As mentioned, the ground alleging denial of natural justice in the notice of appeal appears to be directed at the decision of the Assistant Minister. In that respect it may been intended to replicate ground 5 of the application for review which expressly raised a denial of procedural fairness on the basis that the Assistant Minister did not properly consider the appellant’s personal circumstances and the impact on his minor children. However, as articulated in that application, the ground is not easy to understand. It appears to be an assertion that the Minister did not accord more weight to his conclusion that it was in the best interests of the appellant’s minor children that his visa not be cancelled. If that is the true basis of this ground of appeal, it cannot succeed. The learned primary judge dealt with this at [65]-[67] of her reasons. Her Honour had noted that the Assistant Minister had positively found that it would in the best interests of Mr Pallas’ younger son, who was two months old when he was incarcerated, for the original decision to be revoked. Her Honour noted that the Minister also concluded it would be in the interests of Mr Pallas’ minor stepsons, with whom he had close relationships, for the cancellation decision to be revoked. However, as her Honour also noted, despite the Minister having those matters in mind, he was cognisant of the significant harm which could be inflicted on the Australian community if the cancellation decision was revoked and those factors, which had been identified as falling in Mr Pallas’s favour, did not outweigh the other strong countervailing considerations. The Assistant Minister identified that Mr Pallas represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his son, stepsons and grandchildren. He did not act beyond his authority in doing so.

45    The appellant cannot establish that the Assistant Minister failed to take into account the best interests of his minor children: cf Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; Viane v Minister for Immigration and Border Protection (2018) 162 ALD 13. It is apparent from the face of the Assistant Minister’s reasons that he considered, in the sense of actively thinking about, the interests of those children. The Assistant Minister was not obliged in his reasons to articulate the minutiae of his consideration or his weighing processes. All he was required to was to set out his findings of fact and refer to the evidence on which they were made: s 501G(1)(e) of the Act. This he did.

46    The learned primary judge identified the process undertaken by the Assistant Minister and concluded that the he had due regard to the interests of Mr Pallas’ minor children and other family members to the extent required. No error has been demonstrated in her Honour’s conclusions.

47    In the result, there is no merit in this ground.

Unreasonableness

48    Before the primary judge the ground of unreasonableness had been raised by Mr Pallas. No submissions were advanced in support of it. The primary judge nevertheless considered the substance of the Assistant Minister’s decision. As her Honour identified, the foundation of Mr Pallas’ complaint in this respect was merely that he disagreed with the manner in which the Minister assessed the factors which he had identified. In that sense there was no true allegation of unreasonableness as to the outcome of the decision-making process.

49    Here, the Assistant Minister’s reasoning did not lack an evident and intelligible justification: Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713. The clear and patent reasoning of the Assistant Minister was that, whilst there were some significant factors in favour of revoking the cancellation decision, particularly those arising from the hardship which will be suffered by Mr Pallas’ minor children, the significant risk to the Australian community posed by Mr Pallas — who, to date, has a long criminal history spanning many years and whose offences include several serious matters — overwhelmed those other considerations. On no basis could it be suggested that the Assistant Minister’s determination was one which no reasonable decision-maker could reach.

50    The learned primary judge correctly identified there was an absence of legal unreasonableness and nothing has been shown on this appeal to suggest that conclusion was in error.

51    For the purposes of the appeal the appellant sought rely upon material which was delivered to the Court by a friend of Mr Pallas. It consisted of what might be regarded as submissions, factual assertions and material apparently obtained from the internet concerning homelessness in France. Although the material was received it did not advance any ground of appeal specified in the notice of appeal. Largely, it merely raised disagreements with the merits of the Assistant Minister’s decision, and it neither identified nor established any jurisdictional error in that decision. Nor did it identify error in the primary judge’s reasons.

Conclusion on appeal

52    It follows that there is nothing in the reasons of the learned primary judge which is suggestive of appellable error. On the contrary, the primary judge’s reasons carefully and logically identified the basis on which the Assistant Minister had determined the matter before him and, correctly in my view, ascertained that no jurisdictional error had occurred.

53    In the result the appeal must be dismissed. The appellant must pay the first respondent’s costs of the appeal to be taxed or as agreed.

Associate:     

Dated:    27 August 2019