FEDERAL COURT OF AUSTRALIA

Paszkiewicz v Minister for Home Affairs [2019] FCAFC 198

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    On 13 November 2019, the Court ordered that the appeal be dismissed with costs. These are the reasons for those orders.

2    The appellant, a citizen of Poland, appeals from the first instance decision of this Court in Paszkiewicz v Minister for Home Affairs [2019] FCA 390. The primary judge dismissed an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the ‘Tribunal’) under s 476A of the Migration Act 1958 (Cth) (the ‘Migration Act’) not to revoke the cancellation of the appellant’s visa on character grounds.

3    The appellant contended that the primary judge erred in reaching various conclusions.

4    For the reasons which follow, we are of the view that the primary judge was correct to dismiss the appellant’s application for judicial review of the Tribunal’s decision. The appellant’s appeal must accordingly be dismissed.

BACKGROUND

5    The following statement of the background facts is substantially based on the reasons of the primary judge. There was no challenge on appeal to any of the primary judge’s findings of fact.

6    The appellant is a citizen of Poland.

7    In 1985, he entered Australia with his immediate family. Until 16 September 2015, he was the holder of a Transitional (Permanent) (Class BF) visa.

8    Since 1988, the appellant has been convicted of numerous criminal offences including thefts, burglaries, assaults and armed robbery. In particular, the County Court of Victoria convicted him on 21 December 2012 of various offences including armed robbery. In respect of the armed robbery, the County Court sentenced the appellant to three years’ imprisonment.

9    On 16 September 2015, a delegate of the Minister for Home Affairs (the ‘Minister’) cancelled the appellant’s visa pursuant to s 501(3A) of the Migration Act. The Minister found that the appellant did not pass the character test because he had a substantial criminal record.

10    On 22 September 2015, the appellant made representations to the Minister about revocation of the visa cancellation. He subsequently lodged further materials in support of those representations.

11    On 3 January 2018, another delegate of the Minister for Home Affairs decided, pursuant to s 501CA of the Migration Act, not to revoke the cancellation of the appellant’s visa.

12    The appellant applied to the Tribunal for review of the non-revocation decision. The appellant and his representative lodged various materials with the Tribunal. These included witness statements of the appellant, his mother, his aunt, his fiancée and a friend. As will become relevant later in these reasons, the appellant’s family also includes his two Australian citizen children from a previous relationship, with whom the appellant appears to have little if any contact. The appellant’s solicitors filed a Statement of Facts, Issues and Contentions.

13    On 16 March 2018, the Tribunal conducted a hearing. The appellant was represented by counsel at the hearing. The first respondent was represented by a solicitor. The appellant and a number of his family members gave evidence.

14    On 27 March 2018, the Tribunal handed down its decision, which affirmed the non-revocation decision.

THE TRIBUNAL DECISION

15    The Tribunal found at [15] that the appellant did not pass the character test due to his substantial criminal record. The Tribunal therefore considered whether there was another reason why the cancellation of the visa should be revoked: see s 501CA of the Migration Act.  In doing so, the Tribunal had regard to Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 65’), a direction made by the Minister pursuant to s 499(1) of the Migration Act.

16    The Tribunal noted at [20] that in deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, Direction 65 required a decision-maker to take into account the considerations set out in Part C, which were divided into “primary considerations” and “other considerations”. The Tribunal then noted at [21] that the primary considerations were:

(1)    protection of the Australian community;

(2)    the best interests of minor children in Australia affected by the decision; and

(3)    expectations of the Australian community.

17    At [22], the Tribunal noted that the “other considerations” set out in Direction 65 were:

(1)    international non-refoulement obligations;

(2)    strength, nature and duration of ties;

(3)    impact on Australian business interests;

(4)    impact on victims; and

(5)    extent of impediments if removed.

18    The Tribunal summarised the appellant’s contentions at [24]-[31] of its decision.  At [24], the Tribunal stated:

The Applicant submitted that, notwithstanding the seriousness of his past offences, the Tribunal should find that there is another reason why the mandatory visa cancellation decision should be revoked. [Counsel] argued that [the Applicant] has two young Australian citizen children who need his care and support. They would be adversely affected if the decision was not revoked. [Counsel] also submitted that his many family members in Australia and his fiancée would also be adversely affected. She drew the Tribunal’s attention to the fact that the Applicant’s parents are both elderly and his father is suffering from a terminal disease and, as such, would not be able to visit his son should he be removed to Poland.

19    The Tribunal noted at [30] that the appellant’s counsel had submitted that the appellant had two minor Australian children; until he separated from their mother in 2011, the appellant had been highly involved in their lives; and the appellant sought to re-establish contact on release from incarceration.

20    At [32]-[36], the Tribunal summarised the Minister’s contentions. As set out at [36], the Minister accepted that non-revocation of the cancellation of the appellant’s visa would have a detrimental impact on his family, especially his fiancée and his parents.

21    The Tribunal discussed the various considerations referred to in Direction 65 at [37]-[70] of its decision.  The Tribunal considered at [37]-[56] protection of the Australian community, being one of the primary considerations.  The Tribunal began by considering the nature and seriousness of the appellant’s conduct.  The Tribunal stated that it was clear that the appellant had a long history of serious criminal conduct; the appellant had been warned by the Department of Immigration and Border Protection about his criminal conduct, but he had disregarded the warning; the appellant appeared in court in May 2009, in relation to driving a vehicle with false registration plates at high speed and striking another car from behind; in sentencing the appellant, the Judge noted that the appellant was at the time suspended from driving and had 103 prior convictions from 16 court appearances between 1995 and 2007; the Judge decided to wholly suspend the 36 months’ imprisonment then imposed; regrettably, less than 10 months later, the appellant was in court again, on 38 fresh charges; he went on to appear in court on four more occasions.  After discussing the connection between the appellant’s drug addiction and the offending and aspects of Direction 65, the Tribunal stated that the appellant’s offences had involved dishonesty, threatening people, perpetrating violence as well as several driving offences, one of which led to serious injury of another road user through no fault of that person.  In relation to the nature and seriousness of the appellant’s conduct, the Tribunal therefore concluded at [47] that applying the provisions set out in Direction 65, “this consideration weighs heavily against the Applicant”.

22    The Tribunal also considered the risk to the Australian community should the appellant commit further offences or engage in other serious conduct.  The Tribunal discussed the evidence of a clinical and forensic psychologist who had examined the appellant.  The Tribunal referred to the evidence of the appellant’s mother and fiancée.  The Tribunal noted at [55] that the County Court Judge who sentenced the appellant in 2012 concluded that the appellant had a “high risk of re-offending”.  The Tribunal stated at [55] that the risk of the applicant re-offending was “not insignificant”.  The Tribunal stated at [56] that “the risk to the community… is unacceptable; people had been threatened, and in one instance badly injured, directly as a result of the applicant’s conduct”.  The Tribunal was not satisfied that strategies put in place to deter the appellant from re-offending in the same serious manner were durable.  In relation to the risk to the Australian community, at [56], the Tribunal therefore concluded that this “consideration weighs against revocation of the mandatory cancellation decision”.

23    The Tribunal then considered the primary consideration of the best interests of minor children in Australia affected by the decision at [57]-[58].  The Tribunal there stated:

•    The Tribunal notes that [the Appellant] has two Australian citizen children who are minors.  He gave evidence he had not seen them for six years.  The Tribunal is aware that he had previously arranged, through the Salvation Army, to send gifts to his children but on the last occasion the parcel had been returned.  The Applicant does not know where his former partner or the children currently are.

•    The Direction requires me to take into account whether there have been long periods of absence or limited meaningful contact. That is so in this case. However, I accept [the Applicant] is genuine in his desire to make contact with his children, including if necessary by court orders. On balance, I find that this consideration weighs in favour of revoking the mandatory cancellation of the Applicant’s visa, but given the lack of regular contact, not heavily so.

24    The Tribunal then went on to consider the expectations of the Australian community (as a primary consideration) and other considerations.

25    The Tribunal concluded as follows, at [71]:

The Tribunal finds that the delegate’s decision should be affirmed.  In coming to this conclusion, the Tribunal is aware that the consequences of the Applicant’s removal will have a greatly detrimental effect on his family, in particular his parents and fiancée.  There are certain considerations that weigh in favour of the Applicant but the Tribunal concludes that on balance that the seriousness of his criminal conduct coupled with the risk to the community of the Applicant re-offending is not an acceptable one, given his past propensity to return to drug-use (and, therefore, offending to fund it) and the considered professional opinion that his skills to equip him not to relapse are not strong.

APPLICATION FOR JUDICIAL REVIEW

26    The appellant applied to the Federal Court for judicial review of the Tribunal’s decision. By an amended originating application, the appellant sought to advance three grounds of review. The appellant contended that the Tribunal had failed to take into account claims or evidence. The first ground concerned a primary consideration, the best interests of minor children and the second and third concerned the “other consideration” of the strength, nature and duration of the appellant’s ties to Australia. The primary judge found none of the grounds was made out. The first and third grounds of review advanced before the primary judge substantially overlap with the two grounds that the appellant now raises on appeal.

27    The primary judge dismissed the appellant’s judicial review application. The relevant aspects of the primary judge’s reasons for that decision are addressed below by reference to the grounds of review advanced by the appellant.

28    The first and third grounds of review before the primary judge are the only matters in contention on appeal.

First ground of review

29    The first ground of review advanced before the primary judge was that the Tribunal did not consider: first, the financial support (as distinct from support generally) he could provide to his children; and second, his children’s connection to their paternal family in assessing the best of interests of minor children. In relation to these two issues the primary judge held that:

(1)    The Tribunal referred to the submission that the appellant’s children needed his “care and support” at [24] of its reasons. His Honour read this statement as inclusive of potential financial support. His Honour held the Tribunal’s finding at [57]-[58] – that the consideration should be given less weight given the long period of separation of the appellant from his children – was responsive to the appellant’s submission.

(2)    The primary judge noted that the issue had not been raised in the appellant’s Statement of Facts, Issues, and Contentions. His Honour therefore held that in the context of the material as a whole the submission that the appellant’s children would not have interaction with their paternal family was not a “substantial, clearly articulated argument relying upon established facts”.

30    In broad terms the appellant’s complaint is that the Tribunal did not delineate the particular nature of the potential support and connections the appellant’s children would lose if he were removed. The appellant submits that without that detailed analysis the Tribunal could not properly determine what “interests” of the children were to be considered. The Tribunal therefore overlooked two significant aspects of those “interests”: financial support, and relationships with paternal family and grandparents. Given that, the appellant submitted the Tribunal’s failure to consider these aspects of the appellant’s children’s interests in revocation is sufficiently significant to constitute a jurisdictional error.

Financial support

31    The appellant submits that in relation to the first particular – that the appellant would provide financial support for his children – the Tribunal’s findings at [57]-[58] were not responsive to the appellant’s submissions. The appellant submits that the Tribunal’s findings made no specific reference to the appellant’s intention or capacity to provide financial support for his children.

32    The appellant submits that the Tribunal’s acceptance at [58] that the appellant was “genuine in his desire to make contact with his children” left unanswered the question whether the appellant could provide his children financial support. The appellant submits that while financial support would generally follow from the appellant establishing visitation rights, the two were not necessarily linked. The appellant submits that he could provide financial support for his children without contact. For these reasons, the appellant submits that the primary judge was in error in holding that the Tribunal’s reasons were responsive to the appellant’s submission that he would provide financial support to his children.

33    We note, as the primary judge accepted, the appellant raised with the Tribunal a contention that he would be better able to provide financial support if he remained in Australia. The Tribunal recorded at [24] that it was submitted that the appellant has two young children “who need his care and support” and they “would be adversely affected if the decision was not revoked”. Undoubtedly, as the primary judge found, “support” is capable of including financial support in light of the submissions made to the Tribunal, and similarly, the reference to the children being adversely affected is capable of including adverse effects due to the absence of that financial support.

34    In our view, as the primary judge found, the Tribunal responded generally to the contention raised. The Tribunal accepted the appellant was genuine in his desire to provide “support” and found that this primary consideration weighed in favour of revocation but given the lack of regular contact not heavily so. Further, the Tribunal noted that the appellant had not seen the children for six years and did not know where the children or their mother were. This was relevant to the issue of the prospect of any financial support for the children that the appellant had not had any contact with them for six years.

35    Then, as the primary judge additionally found at [38], it is difficult to see how a failure to respond to the contention could realistically have made a difference to the outcome, given the Tribunal’s findings in relation to the primary consideration of the protection of the Australian community, and the favourable finding that it was in the interests of the children to revoke the cancellation: see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29]-[30] per Kiefel CJ, Gageler and Keane JJ.

Relationship with paternal family

36    The appellant submitted that the denial of an opportunity for his children to have a relationship with their paternal family if revocation was not granted was in issue before the Tribunal. This was in issue by reason of the appellant and his mother’s evidence before the Tribunal, and submissions of the appellant’s representatives to the Tribunal and Minister. The evidence of the appellant and his mother is as follows:

(1)    the appellant gave evidence in his witness statement dated 23 February 2018 that he intended to re-establish a relationship with his children upon release;

(2)    the appellant’s mother confirmed in her witness statement dated 26 February 2018 that the appellant wanted to re-establish his relationship with his children; and

(3)    the appellant’s mother in oral evidence stated that the appellant’s ex-partner had refused to allow her contact with her grandchildren since the appellant’s incarceration.

37    Counsel for the appellant referred to the appellant and his family’s desire to have a relationship with the appellant’s children in closing submissions. Counsel expressly used the language of the consideration in Direction 65 in making those submissions. For instance, in closing counsel argued:

In evidence today you heard Mr Paszkiewicz’s mother, Danuta, talk about her desire to have a role in the life of her Australian citizen grandchildren, Jasmine and Blake. If Mr Paszkiewicz is – remains with his visa cancelled and has to move back to Poland, it's hard to see how these two children’s Australian citizen grandparents will have any role in their lives, nor this extended family. It would be most unlikely that the family would be able to obtain any significant role in those children’s lives. So it’s in the interests of those children that they have their father here and that they have access to this quite lovely family through their father, and if he’s not here, they won't have that. [emphasis added]

38    Further, the issue was also raised in the appellant’s submissions to the Minister dated 8 June 2016. Those submissions argued that revocation was in the interests of his children because of the importance of the relationship with their paternal grandparents.

39    The appellant submits that the primary judge erred in finding that the claim was not clearly articulated for the following reasons:

(1)    The primary judge considered the submission in the context of the “material as a whole”, in particular the written Statement of Facts, Issues, and Contentions. However, the submission should have been viewed in the context of the Tribunal hearing. That hearing was a critical opportunity for the appellant to present his case directly to the decision-maker. In the context of that hearing the submission was significant. As extracted above, counsel for the appellant raised the issue in closing and reply. Counsel used the language of the primary consideration in Direction 65, plainly indicating that the submission was being made in reference to the “best interests of minor children”.

(2)    Additionally, the primary judge did not take into account the written submissions to the Minister, which had also articulated the argument at the first stage in the revocation process.

40    The appellant submits that it can be inferred the Tribunal did not consider the children’s relationship with their paternal family as:

(1)    the Tribunal made no reference at all in its reasons to the appellant’s family or grandparents’ relationship with the children; and

(2)    the Tribunal’s analysis of the “best interests of the child” at [57]-[58] referred only to the appellant’s relationship with his children.

41    We agree with the primary judge that in the context of the material as a whole before the Tribunal the contention that non-revocation would result in the appellant’s children not having contact with his extended family and the evidence presented did not constitute a substantial, clearly articulated argument relying on the established facts. Accordingly, there was no error in the Tribunal not specifically addressing it.

42    The Tribunal was not required to refer to every matter in the representations in order to complete its jurisdictional task: Navoto v Minister for Home Affairs [2019] FCAFC 135 at [88]; Carrascalao v Ninister for Immigration and Border Protection [2017] FCAFC 101; 242 FCR 352 at [45].

43    To the extent the appellant submits the primary judge erred in considering the contention made in the context of the “material as a whole” rather than in the context of the Tribunal hearing, it seems clear that the primary judge was referring to evidence given at the Tribunal hearing. This is evident from the reference to the appellant’s mother’s oral evidence at the Tribunal hearing and to the submissions made to the Tribunal by counsel in closing.

44    As to the submission that the primary judge erred in not taking into account the written submissions to the Minister, the relevant part of those submissions to the Minister reflect what was contended at the Tribunal hearing in any event and was taken into account by the Tribunal.

Third ground of review

45    The third ground of review advanced before the primary judge was that the appellant raised a clearly articulated argument that the decision should be revoked due to the impact on his mother. The impact of the decision on the appellant’s mother would be compounded as her husband had terminal cancer.

46    The primary judge held that, in the context of the material considered as a whole, the claim was not clearly articulated, and in any event the Tribunal had considered the issue.

47    The appellant submits that the appellant’s argument that he could provide support for his mother was raised in the following additional material:

(1)    in the appellant’s mother’s witness statement she said at [17]:

I need [Bart] here to help me… His father is in a lot of pain and suffering and he needs his family around him to help him through, including Bart.

(2)    the appellant stated in his witness statement that he wanted to support his mother after his father passed away;

(3)    the appellant’s fiancée – Ms Smith – stated in her witness statement dated 20 February 2018 that if the appellant returned to Poland his mother would have a “nervous breakdown” due to all the “stress”; and

(4)    in oral submissions counsel for the appellant argued the appellant had an incentive to remain drug-free to support his mother “as she faces the difficulty of the terminal illness of her husband”.

48    Therefore, the appellant submitted that – through evidence from himself, his fiancée and his mother – before the Tribunal as a reason for revocation was the assistance he could provide to his mother in dealing with the difficult circumstances she faced.

49    It is then necessary to look at the Tribunal’s decision and references to the appellant’s parents.

50    At [24] of its reasons the Tribunal referred to counsel’s submissions that the appellant’s parents are elderly, and his father could not visit the appellant in Poland due to his terminal disease.

51    Then, the Tribunal addressed the impact of the decision on the appellant’s family and fiancée under the consideration “[s]trength, nature and duration of ties”. The Tribunal found the consideration weighed in favour of revocation. The Tribunal expressly gave weight to the impact of the decision on the appellant’s fiancée, Ms Smith, and on the fact the appellant’s father had a terminal illness that would make it impossible to travel to Poland to see the appellant. The Tribunal made no specific reference to the appellant’s mother in its assessment of this consideration.

52    The Tribunal, in its conclusion, noted that the appellant’s removal would have a detrimental effect on the appellant’s family “in particular his parents and fiancée” (at [71]). The primary judge held that this conclusion was responsive to the appellant’s submission regarding his capacity to support his mother.

53    The appellant submits that it can be inferred the Tribunal did not consider the support the appellant could provide his mother from the absence of any reference to the point in the consideration of “[s]trength, nature and duration of ties”. The Tribunal made express reference to other persons who would be significantly impacted by the appellant’s removal: his fiancée and father. The impact of the decision on the appellant’s mother would be similarly significant to the appellant’s father and fiancée. The challenges she faced in the future were distinctive: caring for her ailing husband and dealing with his passing. Given the significant and distinctive nature of the impact of the decision on the appellant’s mother, the appellant submits that is a matter that required express consideration in the reasons of the Tribunal.

54    Further, the appellant submits that the appellant’s mother’s concerns did not completely overlap with those of her husband’s. For this reason, the Tribunal’s reference to the impact of the decision on the appellant’s parents was not responsive to the submission regarding the appellant’s support for his mother. The Tribunal’s reasons disclosed an awareness of the appellant’s mother and father’s circumstances, however, do not reveal any specific consideration of how the decision would personally impact the appellant’s mother. The appellant submits that the Tribunal’s reasons do not reveal a genuine and honest confrontation of the impact of non-revocation on the appellant’s mother: Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].

55    The appellant submits that given the centrality of the appellant’s mother’s circumstances to the review, the failure to consider the matter was sufficiently serious to constitute a jurisdictional error.

56    We see no error in the primary judge’s approach or that of the Tribunal. In considering this aspect the primary judge made reference to both the appellant’s witness statement and to the appellant’s mother’s oral evidence.

57    In respect of the appellant’s submission that additional material that supported his claim was not referred to by the primary judge, we make the following observations by reference to [47] above:

(1)    As to [47(1)], being the appellant’s mother’s witness statement, this refers to the assistance she needed to assist her with the appellant’s seriously ill father, and does not refer to the impact of the appellant’s removal on her after the death of the appellant’s father.

(2)    As to [47(2)], the primary judge did consider the appellant’s witness statement. The primary judge specifically mentioned the claim that he wanted to support his mother after the death of his father.

(3)    As to [47(3)], the primary judge did not refer to this speculative statement, but it was of no probative value.

(4)    As to [47(4)], this refers to assistance for the appellant’s mother with the illness of her husband, and not to the impact of the appellant’s removal on his mother, after the death of his father.

58    Therefore, the additional material does not support a case to contradict the finding that in the context of the material as a whole, there was no substantial, clearly articulated argument relying on established facts in respect of the effect of the impact of the appellant’s removal on his mother after the death of his father.

59    In any event, as the primary judge found, the Tribunal at [71] specifically accepted in its conclusion that the appellant’s removal will have a greatly detrimental effect on his family, in particular his parents and fiancée, and was responsive to the issue to be determined. That acceptance was directly related to the issue of the strength, nature and ties to the community, which the Tribunal had found weighed in favour of revocation of the cancellation.

DISPOSITION

60    As each of the grounds of appeal have no merit, as we have already indicated, the appeal should be dismissed with costs.

Associate:

Dated:    14 November 2019