FEDERAL COURT OF AUSTRALIA
Taualii v Minister for Home Affairs [2020] FCAFC 102
ORDERS
Appellant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appeal be dismissed, with costs to be agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
THE COURT:
introduction
1 The appellant is a national of Tonga. He first arrived in Australia on 23 November 1976, when he was 20 months old.
2 On 12 January 2016, the appellant’s Class BF transitional (permanent) visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act), because a delegate of the Minister was satisfied that the appellant did not pass the character test under s 501(6)(a), having been sentenced in 2014 to a term of imprisonment of six years for the offence of armed robbery.
3 On 1 February 2016, the appellant made representations seeking revocation of the cancellation decision pursuant to s 501CA(4) of the Act. Up to March 2018, the appellant provided further material to the Department in support of his request for revocation.
4 On 18 June 2018, the Minister made a decision not to revoke the cancellation decision and produced a statement of reasons.
5 The appellant then sought judicial review of the Minister’s decision.
6 On 15 August 2019, the application was heard by the learned primary judge, who dismissed it: Taualii v Minister for Home Affairs [2019] FCA 2013.
7 The appellant now appeals to the Full Court on the following three grounds:
1. The primary judge erred in failing to find that the Minister’s satisfaction was based on a misconception that the appellant’s rehabilitation had not been tested in the community, or alternatively, that the Minister’s finding that the appellant’s rehabilitation had not been tested in the community was irrational [ground five below].
2. The primary judge erred in failing to find that the Minister failed to give proper consideration to the prospect that the appellant may suffer hardship from his health conditions if returned to Tonga, in that the Minister failed to complete the necessary assessment of the extent of hardship or asked himself the wrong question [ground nine below].
…
3. The primary judge erred in finding that any error by the Minister in relation to [ground nine] below was not material to the Minister’s decision.
8 The appellant acknowledges that if he succeeds on ground two, he must also succeed on ground three before he would be entitled to any remedy.
background
9 The appellant arrived in Australia as an infant in 1976. With the exception of his infancy, and certain periods between 1988 and 1992, he has lived in Australia all his life.
10 During this time, the appellant has fathered 11 children. Nine of these children were minors at the date of the Minister’s decision, each aged between 4 and 17. Each is an Australian citizen.
11 The appellant has had a long history of membership of, and involvement in, outlaw motorcycle gangs (or OMCGs). He acknowledges that he was formerly a member of the Rebels, Bandidos and Hells Angels. This includes at various times being the President of certain Chapters of the Rebels and Bandidos.
12 In January 2009, the appellant, with others, invaded the home of someone known to the appellant and his co-offenders through their membership of outlaw motorcycle gangs.
13 One of the appellant’s co-offenders kicked down the front door of the victim’s home. The victim was forced to his knees in his bedroom. He was held by his shoulders by the co-offenders, while the appellant placed the victim in a headlock and put a handgun into the victim’s mouth, telling him he was going to die.
14 The appellant then counted “one, two, three” and pulled the trigger. The victim heard a “click”. Unbeknown to the victim, the gun was not loaded.
15 The appellant then loaded the gun. He then put the gun to the victim’s limbs, and said: “Where do you want it? You’re gonna cop one today, where do you want it?”
16 The victim pleaded for his life and was then hit from one side of the room to the other by the appellant and one of his co-offenders.
17 The offenders fled, stealing, among other things, the victim’s car and motorcycles. Before leaving, the appellant and his co-offenders told the victim that if he went to the police, they would kill him.
18 On 19 July 2013, the appellant and two of his co-offenders were found guilty in the County Court of Victoria of armed robbery, aggravated burglary and intentionally causing serious injury.
19 They were sentenced on 31 January 2014: DPP (Vic) v Tangaloa [2014] VCC 36. The appellant was sentenced to a total effective sentence of eight years’ imprisonment, with a minimum non-parole period of five years. The appellant had served 307 days of pre-sentence detention in the meantime.
20 As noted above, on 12 January 2016, the appellant’s visa was cancelled pursuant to s 501(3A) of the Act. The delegate of the Minister was satisfied that the appellant did not pass the character test under s 501(6)(a) of the Act because the appellant had a “substantial criminal record”, having been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c) of the Act.
21 The appellant subsequently made a series of representations seeking revocation of the cancellation of his visa.
the minister’s decision
22 On 18 June 2018, the Minister decided not to revoke the cancellation of the appellant’s visa under s 501CA(4) of the Act.
23 The Minister provided a statement of reasons for his decision (Minister’s Reasons). The Minister was not satisfied for the purposes of s 501CA(4)(b)(i) that the appellant passed the character test because, as explained, he was serving a term of imprisonment of over 12 months: Minister’s Reasons at [4]-[9] and [97]. The Minister was also not satisfied that there was “another reason” why the visa cancellation should be revoked for the purposes of s 501CA(4)(b)(ii).
24 The Minister acknowledged that the appellant articulated various reasons why the cancellation decision should be revoked (at [12]), including that:
• it is in the best interests of his nine minor Australian citizen children
• he has substantial familial ties to Australia including his two adult children, fiancée, parents, six siblings, and extended family
• he has resided in Australia since he was an infant
• he has contributed to the Australian community through his employment
• he and his family will suffer hardship if he is returned to Tonga
• he has no familiarity with Tonga and he would struggle to financially support himself there
• his motivation for offending was to protect his family
• he is remorseful for his actions and he is now a practising Christian
• he is rehabilitated and is no longer affiliated with any outlaw motorcycle gangs.
25 As the primary judge said in his reasons (at [19]), the Minister considered the claims raised by the appellant and found, in summary, that:
(1) it was in the best interests of the appellant’s minor children that the visa cancellation be revoked: Minister’s Reasons at [13]-[35];
(2) the appellant had made a positive contribution to the Australian community through his employment and that non-revocation of the visa cancellation would have an adverse effect on the appellant’s two adult children and his extended family: ibid at [36]-[49];
(3) having regard to the appellant’s lengthy residence in Australia, the absence of family support in Tonga, his lack of familiarity and cultural knowledge, and his health issues, non-revocation would involve significant hardship to him: ibid at [50]-[57];
(4) having regard to the remarks of the judge who sentenced the appellant, which referred to the appellant’s level of violence, use of firearms, deliberate and brazen conduct and the harm suffered by the victim, the appellant’s offending was very serious: ibid at [59]-[69];
(5) having regard to the Victoria Police Report, the appellant was a member of an outlaw motorcycle gang which has been involved in criminal conduct: ibid at [70]-[73]; and
(6) although the appellant had submitted that he had ceased all associations with outlaw motorcycle gangs, and his intention is to lead a law abiding life, there is an ongoing likelihood that the appellant will engage in criminal conduct in the future that could result in serious harm to members of the Australian community: ibid at [74]-[94].
26 It is necessary at this point to set out, in full, the Minister’s Reasons, in so far as they are relevant to the grounds of appeal. Those reasons are:
Extent of impediments if removed
50. In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the impediments that Mr TAUALII will face if removed from Australia to his home country of Tonga in establishing himself and maintaining basic living standards.
51. I have regard to Mr TAUALII’s health concerns, stating he has asthma as well as suffering from cardiomyopathy, for which he takes several medications. He states he has suffered from mild heart attacks previously.
52. I accept that health and other social services in Tonga may not be of the same standard as those available to him in Australia. Although Tongan health services are not ranked as highly by the World Health Organisation as those of Australia, I find that Mr TAUALII will have similar levels of access to health and other social services as generally available to other citizens of Tonga in the same position as Mr TAUALII.
…
57. Having considered Mr TAUALII’s circumstances, his lengthy residence in Australia, the absence of family support in Tonga, his lack of familiarity and cultural knowledge, and health issues, I find that a decision not to revoke the mandatory cancellation of his visa and his subsequent return to Tonga will involve significant hardship for him. I accept Mr TAUALII will face emotional hardship and experience isolation in being separated from his family and establishing a life in Tonga.
…
Risk to the Australian community
74. I have considered whether Mr TAUALII poses a risk to the Australian community through re-offending by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps Mr TAUALII has undertaken to reform and address his behaviour. I have also taken into account Mr TAUALII’s overall conduct in the custodial and non-custodial environment, and his insight into the offending.
75. I have had regard to the Judge’s comment stating ‘You have no prior criminal history and are a man of good character’, and he took that into account in sentencing Mr TAUALII. However I note the Judge found Mr TAUALII played a leadership role during the offending and remarked ‘Your moral culpability and your legal culpability is thus heightened’.
76. I have had regard to Mr TAUALII’s submission that this is his first term of imprisonment, and that ‘Up until my incarceration I lived a quiet life and have made a mistake that has cost my Family and myself dearly’.
77. I note Mr TAUALII submits that the motivation for his offending was to protect his family, and in the future he would contact the police to resolve ‘these matters’ rather than taking the law into his own hands.
78. In response to the Target Profile - Person report Mr TAUALII submits that ‘most of these allegations made against me are False and Untrue.’ I note however Mr TAUALII admits he was a former member of the Rebels, Bandidos, and Hells Angels, and states he was involved with outlaw motorcycle gangs until ‘mid 2014’ when he left that life behind him.
79. I accept that prior to his conviction in 2014 Mr TAUALII was a contributing member of the community, however I note with concern his membership of OMCGs since 2006, and I consider his 2009 offences were contemporaneous to his membership of the Hells Angels OMCG. I am also mindful that the Judge noted Mr TAUALII and his co-offenders knew their victim ‘through membership of motorcycle clubs’.
80. I have considered Mr TAUALII’s assertion that ‘I have never taken part in any extortion and any violence I had used was to protect myself and my Family, which I now know is wrong…’ I have regard to Mr TAUALII’s admission that he was President of the Bandidos Sunshine Chapter in 2007 and President of the Rebels Sunshine Chapter in 2006, which he states he left after a dispute with the national President.
81. I note that in regards to letters sent to Mr TAUALII in prison from OMCG members, Mr TAUALII submits he received numerous correspondence from many people that he does not recall, and explains ‘All I can say is that people would often joke about patching up the whole yard.’ Mr TAUALII states he received letters despite writing to ‘Stace who was secretary for the Hells Angels, around mid 2014, to let everyone know and made it clear that I had left the Hells Angels…’, and explains that he could not return the letters due to ‘our prison mail being opened, screened and addresses removed’.
82. I note Mr TAUALII also refutes the following intelligence holdings and has made the below representations:
• 28 May 2014 – Mr TAUALII states he never made threats to any Hells Angel member.
• 17 August 2013 – As he was in custody at that time Mr TAUALII asserts [it] is impossible for him to have been found with firearms.
• 6 March 2013 – He had two minor heart attacks around this time and was not in a physical condition to ride his motorcycle. Mr TAUALII states when he was fit to ride he did not ride recklessly or abuse the people of Bacchus Marsh.
• 15 January 2009 – Mr TAUALII admits he was in possession of a ‘.32 hand gun’ which he states he had for protection and never used. He submits he left the Bandidos on good terms and that he never shot ‘anybody or anything’.
83. I also have considered Mr TAUALII’s assertion that he has not had any affiliation with OMCGs since he left the Hells Angels in 2014, and states he is not trying to join the Comancheros.
84. I have had regard to Mr TAUALII’s assertion that he is no longer associated with OMCGs, however I remain concerned that he is a person who has admitted to associating with OMCGs for some nine years, and in particular has had held [sic] high-profile positions in these gangs previously. I take a guarded view about his prospects for extricating himself from gangs and leading a law-abiding life in the future.
85. I am cognisant that the Judge found Mr TAUALII had ‘good prospects of rehabilitation’, and His Honour had regard to the lengthy delay of some five years that the offenders had to wait until the court matters were concluded, stating ‘this delay provides a powerful mitigating circumstance’.
86. Mr TAUALII asserts that prison has had a salutary effect on him and that he wishes to return to being a constructive member of the community. I note Mr TAUALII completed the Talking Change Program whilst in prison, and he is a Peer Listener to other inmates. As a Peer Listener Mr TAUALII encourages inmates to do the right thing by staying out of trouble and being respectful of others. I have regard to the report submitted from Ms Katie McKenzie, Complex Needs Unit Clinician at Marngoneet Correctional Centre, who writes that Mr TAUALII satisfied the criteria for being employed as a Peer Listener, which included having nil current or previous (for a period of three months) Identified Drug User Status, having nil involvement in prison incidents, and having nil outstanding security issues.
87. I note he also participated in the prison’s school programme where he spoke to students to discourage them from criminal behaviour. Mr TAUALII believes he is a ‘Role Model’ prisoner, and looks forward to being a role model for young teens and his own children. I note Mr TAUALII has been involved in various prisoner activities, he has remained engaged with clinical staff at the prison, and he follows the rules and interacts politely with staff whilst in recreation at Marngoneet Correctional Centre.
88. I have considered Mr TAUALII’s expression of remorse stating ‘I deeply regret my past and want nothing to do with any OMCG’s or any criminal element whatsoever.’ I also note Mr TAUALII has expressed deep regret for the damage he has done to his family by not being there for them, and believes he will ‘never fall foul of any Australian Law ever again.’ I have had regard to Mr TAUALII’s request for a second chance, stating ‘what occurred in my situation is totally out of character and will never happen again’.
89. I note Mr TAUALII has expressed that his family and children are everything to him, and he is now a ‘born again Christian’, and attends church services regularly. He submits that members of the Church of All Nations have visited him in prison, and have asked him to be an ambassador for them to help children and ex-prisoners turn their lives around as Mr TAUALII has done. I note Mr TAUALII would like to become a youth worker through the Church.
90. I have considered that Mr TAUALII has ‘a few jobs lined up’ through the ‘Church and Family friends’ upon his release into the community. I also note that he will have support in the community through his family and religious leaders. I find this support will act as a positive influence upon Mr TAUALII and may reduce his risk of reoffending.
91. I take into account Mr TAUALII’s remorse for his past actions, his efforts at self-improvement and rehabilitation, his behaviour in prison, his resolve to be a role model for his children, and his employment prospects upon release into the community. Notwithstanding this, I also note the very serious nature of his offending, and the fact that his employment and children did not serve as protective factors against his offending previously. I also note Mr TAUALII’s rehabilitation has not been tested in the community.
92. While I have regard to Mr TAUALII’s submissions that he has ceased all associations with OMCGs and his stated intention to lead a law abiding lifestyle, I view his lengthy association with numerous OMCGs and their suspected involvement in criminal activity with great concern, as well as his very serious and particularly violent offending. I therefore find there is an ongoing likelihood that Mr TAUALII will engage in criminal conduct in the future.
93. Mr TAUALII’s offending resulted in the physical injury to his victim, including multiple lacerations, fractures to his cheekbone and eye socket, and damage to his teeth. The offending has left the victim profoundly mentally affected. I find that Mr TAUALII’s offending has resulted in serious physical and psychological harm to a member of the Australian community.
94. I consider that should Mr TAUALII engage in further conduct of a similar nature or reoffend in a similar manner, it could result in serious financial, psychological and/or physical harm to members of the Australian community.
…
CONCLUSION
…
98. In considering, in light of Mr TAUALII’s representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of Mr TAUALII’s minor children … I found that their best interests would be served by the revocation of the original decision.
99. In addition, I have considered the length of time Mr TAUALII has made a positive contribution to the Australian community throughout his education and periods of employment and the consequences of non-revocation of the original decision for his other family members.
100. On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by Mr TAUALII, that are of a violent nature.
101. Further, I find that the Australian community could be exposed to significant harm should Mr TAUALII reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr TAUALII.
102. I am cognisant that where significant harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr TAUALII, than I otherwise would, because he has lived in Australia for most of his life, and from a very young age.
103. In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr TAUALII represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children, as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds, his claims that he will suffer hardship if returned to Tonga, his employment and ties to Australia, and the hardship Mr TAUALII, his family and social networks will endure in the event the original decision is not revoked.
104. Having given full consideration to all of these matters, I am not satisfied, for the purposes of s501CA(4)(b)(ii), that there is another reason why the original decision under s501(3A) to cancel Mr TAUALII’s visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and Mr TAUALII’s Class BF transitional (permanent) visa remains cancelled.
(Italicisation in original.)
the reasons of the primary judge
Ground one
27 The primary judge observed (and the appellant does not dispute) that the legality of the Minister’s consideration of the appellant’s claims regarding his rehabilitation must be assessed against the context and nature of the representations made by, and on behalf of, the appellant: at [33].
28 The primary judge identified the relevant representations as:
(1) a handwritten submission received by the Department on 1 November 2017 (identified as the First Handwritten Letter) in which the appellant “emplore[d] [the Minister] for a second chance” and claimed that “[j]ail ha[d] changed [him] and [his] life” and that he was “definitely a better person and wish[ed] to return to be a constructive community member if [his] visa [were] granted…”; and
(2) a handwritten letter dated 27 December 2017 that was responsive to an invitation for further comment sent by the Department on 6 December 2017 (identified as the Second Handwritten Letter), in which the appellant claimed that “[s]ince leaving the Hells Angels around mid 2014, [he had] absolutely nothing to do with any OMCG’s” and asked “again Please Please give me the opportunity to show who I really am and that, Yes, people can change and be rehabilitated”.
29 The primary judge made “two critical observations” about these submissions.
30 The first critical observation was that the appellant was not stating that he had, as a matter of fact as at December 2017, achieved rehabilitation from his previous offending behaviour. Instead, he was expressing that he had become a better person through his time in prison and that he sought the opportunity to demonstrate his rehabilitation: at [37].
31 The second critical observation was that the appellant himself viewed the extent of his rehabilitation as connected to, or correlated with, his association with outlaw motorcycle gangs, and that to demonstrate the departure from his previous violent behaviour, the appellant repeatedly stated that he had cut ties with outlaw motorcycle gangs in 2014: at [38].
32 The primary judge noted (at [39]-[41]) that the appellant’s rehabilitation had been considered by the Minister at “various intervals” throughout the Minister’s Reasons, including:
(1) at [12], where the Minister identified the reasons articulated by the appellant for why the visa cancellation should be revoked, in terms that connected the appellant’s rehabilitation with his ability to separate himself from gangs;
(2) at [58], under the heading “Protecting the Australian Community”, where the Minister noted that he had regard to the appellant’s claim that he was rehabilitated;
(3) at [85], where the Minister referred to the sentencing remarks of the County Court judge, who in January 2014 noted that the appellant had “good prospects of rehabilitation”;
(4) at [86]-[87], where the Minister referred to the appellant’s assertion that prison had a salutary effect on him and that the appellant wished to return to being a constructive member of the community, and noted the appellant’s participation in various programs while in prison; and
(5) at [89]-[90], where the Minister noted that the appellant aspired to work closely with his church upon release into the community.
33 Against this background, and having regard to the manner in which the appellant’s representations regarding his rehabilitation had been advanced and the way that the Minister had considered the appellant’s claims as a whole, the primary judge concluded that the statement which the appellant sought to emphasise – namely, that his rehabilitation had not been tested in the community – did not evidence a misconception of the appellant’s claims: at [43].
34 The primary judge acknowledged that whilst the appellant had spent most of the period between his offending in 2009 and sentencing in 2014 living in the community and, in that sense, had experienced an opportunity to “rehabilitate” himself by not engaging in further criminal conduct, this was not the sense in which the Minister had referred to the appellant’s rehabilitation. Instead, the Minister had responded to the particular representations made by the appellant. The primary judge observed that by these representations, the appellant had himself tied his rehabilitation to his degree of separation from the gangs in which he had previously participated, and that the appellant’s evidence was that he had only disassociated himself from the gangs in the middle of 2014, by which time he was already serving his term of imprisonment: at [44]-[45].
35 The primary judge’s reasons at [43]-[48] were as follows:
Having regard to the manner in which the applicant’s representations regarding his rehabilitation were advanced, and the way that the Minister considered the applicant’s claims as a whole, my view is that the statement emphasised in the passage above—that the applicant’s rehabilitation had not been tested in the community—does not evidence a misconception of the applicant’s claims.
It is true that the applicant had spent most of the period between his offending in 2009 and sentencing in 2014 living in the community. In that sense, the applicant had experienced an opportunity to ‘rehabilitate’ himself by not engaging in further criminal conduct. But that is not the sense in which the Minister referred to the applicant’s rehabilitation. Contrary to the submission of the applicant, the Minister was not stating that the applicant had not experienced any period living in the community since his offending conduct.
The Minister was instead responding to the particular representations made by the applicant. Those representations were made in November and December 2017. As at those dates, the applicant did not state he had been rehabilitated. Properly construed, he was instead imploring the Minister to provide another chance in the community to demonstrate that he was rehabilitated. In doing so, the applicant himself tied his rehabilitation to his degree of separation from the gangs in which he had previously participated. As at November and December 2017, the applicant had not had an opportunity to test his rehabilitation (i.e. separation from the gangs) in the community. It will be recalled that the applicant’s evidence was that he had only disassociated himself from the gangs in the middle of 2014, by which time he was already serving his term of imprisonment.
The substance of the Minister’s consideration of the applicant’s claims regarding his rehabilitation is consistent with the way in which those claims were advanced. The Minister’s consideration at [74]-[94] of the ‘Risk to the Australian community’ was primarily focussed on responding to the applicant’s own assertions about separating himself from the outlaw motorcycle gangs. It is within this context that the Minister considered the applicant’s rehabilitation. As extracted above, the Minister recognised the applicant’s expressions of remorse and his willingness not to associate with the gangs. He further recognised the applicant’s new engagement with his church community. However, the Minister concluded with words of caution. The applicant’s employment and children had not stopped the applicant from offending in the past. And, in the statement criticised by the applicant, the Minister said that the applicant’s rehabilitation had not been tested in the community. Construed in the manner described above, that statement was correct. The applicant had not had an opportunity in the community to demonstrate the improvements that he claimed in his submissions. Thus, in making the relevant statement, the Minister did not misconceive the applicant’s claims.
It should be noted, however, that aspects of the Minister’s Reasons did misstate the applicant’s claims in relation to his rehabilitation. The Minister stated at [12] and [58] that the applicant claimed to be rehabilitated. However, as explained above, the applicant had not submitted that he had achieved rehabilitation. The Minister’s unqualified statements in these paragraphs are incorrect. Nevertheless, my view is that these misstatements did not adversely affect the exercise of the Minister’s jurisdiction. The substance of the Minister’s consideration did not misconceive the claims made by the applicant regarding his rehabilitation.
For these reasons, ground five [ground one in this appeal] must be dismissed.
(Emphasis in original.)
Ground two
36 The appellant contended below (and contends on appeal) that the Minister failed (at [50]-[52]) to give active intellectual consideration to his claim that he would suffer hardship from his health conditions if returned to Tonga.
37 The primary judge referred in some detail to Pennie v Minister for Home Affairs [2019] FCA 489 (affirmed in Pennie v Minister for Home Affairs [2019] FCAFC 129) (Pennie). His Honour noted that there were “evident parallels” between the facts of that case and this case, and one key aspect of factual distinction: at [120]-[121]. His Honour also noted that “[t]he relevant principle to be derived from Pennie, in light of the particular facts of that case, is the extent to which a decision-maker under s 501CA(4) of the Act is required to address representations and take them into account in considering whether to revoke the cancellation decision”: at [122].
38 His Honour continued (at [123]-[126]):
To explain, it is important to appreciate the form of error alleged in Pennie and the present case. The applicants in each case did not frame their criticism on the basis that the Minister had engaged in irrational reasoning or fact finding. They instead argued that the Minister had not given the requisite consideration to certain representations.
As explained by Kiefel J (as her Honour then was) in Tickner v Chapman [(1995) 57 FCR 451] at 495, to “consider” a matter
requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate.
See also [Minister for Home Affairs v Omar [2019] FCAFC 188 (Omar)] at [35]-[36], citing [Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 (Carrascalao)]. As noted in the final sentence of these remarks of Kiefel J, the attribution of weight to particular representations is a matter for the Minister, not the Court. For this reason, courts have warned that use of an expression such as ‘proper, genuine and realistic’ consideration can, if taken out of context, encourage a ‘slide’ into impermissible merits review by the court upon judicial review: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [30] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Carrascalao at [32]; Omar at [36(a)]. Courts must respect the limits of their judicial review function.
Recognising these principles, my view is that the circumstances of Pennie and this case are relevantly similar such as to conclude that the Minister gave ‘proper consideration’, in the relevant legal sense, to the extent of hardship that the applicant would experience from his health conditions in Tonga. This is evident from the Minister’s Reasons. The Minister gave express regard to the applicant’s health concerns at [51], including that he had asthma and suffered from cardiomyopathy. The Minister recognised at [52] that the health services in Tonga may not be of the same standard as in Australia. In these circumstances, the Minister concluded at [57] that the applicant’s health issues, in addition to other matters, would involve significant hardship for him. This factor supported revocation of the cancellation decision.
Although the Minister’s assessment was concise, it evidenced sufficient consideration of the applicant’s health issues. This is particularly so given the manner in which the applicant’s health was raised … in his representations, as discussed further below. The final sentence of [52] of the Minister’s Reasons, as impugned by the applicant, was only one aspect of the Minister’s consideration. The existence of the finding in that sentence does not erase or undermine the consideration otherwise given by the Minister to the applicant’s health.
Ground three
39 Ground three relates to the materiality of ground two.
the appellant’s submissions
Ground one
40 The appellant’s submission on ground one is as follows.
41 The criminal conduct for which the appellant was ultimately convicted and sentenced took place in January 2009. He was not sentenced until five years later, in January 2014. Aside from a relatively brief period on remand, the appellant spent that five year period living in the community. He was not charged with any additional offences during that time.
42 At [88]-[91] of his decision record, the Minister referred to the appellant’s remorse and professed rehabilitation, before finding at [91] “Mr Taualii’s rehabilitation has not been tested in the community”.
43 The appellant’s short point, which is the same point rejected by the primary judge, is that the single sentence “Mr Taualii’s rehabilitation has not been tested in the community” is “plainly incorrect in light of the time the appellant spent living in the community between being charged with the relevant offence in 2009 and being sentenced in 2014, during which time he was not charged with any offence. His remorse and personal rehabilitation were thus ‘tested in the community’ during those intervening years”.
44 It is submitted that the statement “Mr Taualii’s rehabilitation has not been tested in the community” “was irrational, in the sense that it could not rationally be supported from the material before the Minister or lacked a logical connection to the evidence” (citing Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45]), and that the finding in turn affected the consideration of the likelihood the appellant would reoffend and was material to the Minister’s decision.
45 The appellant’s written submission continued:
The primary judge erred in finding at [46] that the Minister’s statement that the appellant’s rehabilitation had not been tested in the community ‘was correct.’
His Honour reached that conclusion because the Minister’s reference to “rehabilitation” was construed as responding exclusively to the appellant’s representation that he had extricated himself from membership of outlaw motorcycle gangs while in prison. So much is clear from his Honour’s definition of ‘rehabilitation’ in parentheses in [45] as ‘(i.e. separation from the gangs)’.
His Honour explained that construction by reference to the handwritten submissions from the appellant to the Minister, extracted at [34] and [36] of the judgment below.
However, the terms of the appellant’s submission are not so limited. In the submission extracted at [34] of the judgment below, the appellant says:
This is my first time in jail. Up until my incarceration I have lived a quiet life and have made a mistake that has cost my Family and myself dearly. I emplore you for a second chance and assure you that what occurred in my situation is totally out of character and will never happen again.
The appellant thus emphasised the quiet life, free from reoffending, that he had lived up until the time of his incarceration in 2014 as evidence that he would not reoffend in a similar manner to the 2009 incident, being the ‘mistake’ that had cost the appellant and his family dearly.
Accordingly, the primary judge was in error in construing the reference to ‘rehabilitation’ in the finding at [91] of the decision record as exclusively relating to the appellant’s involvement in motorcycle gangs. It follows that, properly construed as referring to all the appellant’s conduct since the 2009 offending, the Minister’s finding that the appellant’s rehabilitation had not been tested in the community was irrational in the sense that it could not rationally be supported by the evidence before the Minister that the appellant had lived in the community for five years after his relevant offence without any further criminal charges in that time, or lacked a logical connection to that evidence.
That irrational finding was plainly a finding along the way to the Minister’s conclusion as to the risk of the appellant reoffending in a similar manner, which in turn was critical to the Minister’s ultimate decision not to revoke the cancellation of the appellant’s visa. The reliance on the irrational finding has thus led the Minister into jurisdictional error.
(Emphasis in original.)
Ground two
46 The appellant submits that his representations required the Minister to consider the extent to which his health conditions would pose hardship to him if removed to Tonga, including in relation to his access to health care, and to consider whether such hardship constituted “another reason” for revoking the cancellation. Having “purported to address” the appellant’s access to health care if he were removed to Tonga, the Minister was obliged to give actual intellectual consideration to the issue, and then to weigh the claims so considered in the balancing exercise under s 501CA(4)(b)(ii) of the Act.
47 The appellant submits that although the Minister accepted (at [52]) that the “health and other social services in Tonga may not be of the same standard as those available to [the appellant] in Australia”, he “failed to go on to make a finding as to whether that lesser standard of health and social services would pose hardship to the appellant in his personal circumstances, and if they did, whether that hardship was a reason that the cancellation of the appellant’s visa should be revoked”. Instead, the Minister found (at [52]) that the appellant would “have similar levels of access to health and other social services as generally available to other citizens of Tonga in the same position as Mr Taualii”.
48 The appellant submits that the finding that the appellant would have comparable access to health care as other Tongan citizens cannot dispose of the question as to whether the appellant would face hardship from reduced access to health care because in this case, unlike Pennie, the Minister accepted that there was a differential standard of health services between Tonga and Australia. It follows, so it is submitted, that “[h]aving accepted that differential standard, and having found that the appellant would have the same access to the lower standard Tongan health services as other Tongans, the Minister failed to consider whether that constituted hardship in the context of the appellant’s health issues which was ‘another reason’ why the visa cancellation should be revoked”. It was further submitted that:
The Minister has thus failed to complete the assessment. An alternative formulation of the error is that the Minister has asked himself the wrong question by asking whether the appellant would face any hardship in terms of access to health services compared to other Tongans, rather than comparing the situation that would face the appellant in Tonga to the status quo if the cancellation were revoked and the appellant were permitted to remain in Australia.
Ground three
49 The appellant submits that in order for ground two, if established, to be considered immaterial, “it would be necessary to conclude that there was no realistic possibility that the Minister may have reached a different conclusion if the issue of access to health services had been the subject of proper consideration and a proper finding”, and says:
On the facts of this case, such a possibility cannot be ruled out, given the nature of the balancing act to be performed by the Minister and the possibility that an additional factor, properly considered, might shift the balance. It is not enough that the trial judge be of the opinion that it is not likely that the balance would shift.
the minister’s submissions
Ground one
50 The Minister points to the fact that the primary judge approached his analysis of this ground by construing the Minister’s Reasons as a whole (especially that part directed at “Risk to the Australian community” at [74]-[94]), and by closely examining the material that was before the Minister and which formed the basis for the appellant’s representations directed at his efforts at rehabilitation. He submits that his “evaluation revealed that the Minister’s consideration of the appellant’s rehabilitation was principally aligned to the appellant’s membership of an outlaw motorcycle gang and that this consideration was consonant with the representations advanced by the appellant”.
51 Counsel for the Minister points in particular to certain passages from the Minister’s Reasons, as follows:
The approach adopted by the Minister finds its expression in the following references from the statement of reasons:
1. (at [78]) where the Minister noted the admission made by the appellant that he was a former member of the Rebels, Bandidos, and Hells Angels and that ‘he was involved with outlaw motorcycle gangs until mid 2014 when he left that life behind him’;
2. (at [79]) where the Minister recorded a finding that the appellant’s 2009 offences were ‘contemporaneous to his membership of the Hells Angels OMCG’;
3. (at [81]) where the Minister referred to the appellant’s statement that he had received letters in prison from OMCG members, despite writing ‘to Stace who was secretary for the Hells Angels around mid 2014, to let everyone know and made it clear that I had left the Hells Angels…’; and
4. (at [83]) where the Minister considered the appellant’s assertion that he had not had any affiliation with OMCGs since he left the Hells Angels in 2014 and that he stated he was not trying to join the Comacheros.
The Minister’s analysis, which identified (on the appellant’s own account) his ability to disassociate himself from the OMCGs as a significant measure of rehabilitation, is crystallised at [84] of the Minister’s statement of reasons, where it is stated:
I have had regard to Mr Taualii’s assertion that he is no longer associated with OMCGs, however I remain concerned that he is a person who has admitted to associating with OMCGs for some nine years, and in particular has held high- profile positions in these gangs previously. I take a guarded view about his prospects for extricating himself from gangs and leading a law-abiding life in the future.
(Emphasis in original, cross-references omitted.)
52 The Minister submits that “[i]t is apparent that the Minister had these considerations in mind when [he] noted that the appellant’s rehabilitation had not been tested in the community” and that he was correct in saying so because “[t]he appellant’s efforts to distance himself from OMCGs had not been challenged outside of the custodial environment as such efforts commenced (on the appellant’s own evidence) whilst he was serving a custodial sentence”.
53 In any case, the Minister submits that, as the primary judge recognised, the Minister did have regard to the appellant’s conduct in a non-custodial environment and in the years that preceded his incarceration. This is said to be evident from the Minister’s express statement to this effect at [74] of the Minister’s Reasons and the references made at [76], [79] and [85].
Ground two
54 The Minister submits that the appellant’s contention with respect to ground two “ignores the clear statement by the Minister at [57] … that matters and circumstances (including the appellant’s ‘health issues’) will involve significant hardship for the appellant and that this hardship was capable (although ultimately not of sufficient weight to counterbalance the unacceptable risk of harm posed by the appellant to the Australian community) of constituting a reason for the revocation of the cancellation decision” (emphasis in original).
55 The Minister also submits that the contention that the primary judge misapplied the Pennie decisions is without merit, because “[t]he primary judge acknowledged the points of factual distinction but understood (correctly) that the decisions fixed upon the question of the extent to which a decision-maker under s 501CA(4) of the Act is required to address representations and to take them into account in considering whether to revoke a cancellation decision”.
Ground three
56 The Minister submits that this ground is without merit, and that the primary judge correctly framed the question of materiality as whether there would have been a “realistic possibility” of a different conclusion. It is submitted that his Honour identified two reasons why this “possibility” could be discounted, which were responsive to the material that was before the Minister and the Minister’s Reasons.
consideration
Ground one
57 The appellant’s case on ground one homes in on a single sentence in paragraph 91 of the Minister’s Reasons: “I also note [the appellant’s] rehabilitation has not been tested in the community”. The appellant contends that that finding was based on a misconception, or was irrational, because the appellant had lived in the community for a lengthy period of time between the date of offending and the date of sentencing.
58 In our view, the primary judge was correct to reject that contention. We agree with the conclusion of the primary judge at [43] of his reasons for judgment that, having regard to the manner in which the appellant’s representations regarding his rehabilitation were advanced, and the way that the Minister considered the appellant’s claims as a whole, the Minister’s statement does not evidence a misconception of the appellant’s claims or any irrationality.
59 In our view, it is clear from the two letters that the appellant wrote to the Department (the First and Second Handwritten Letters referred to at [28] above), that the appellant submitted that his rehabilitation was founded on a number of matters, particularly that: prison had changed his life; he had left the Hells Angels outlaw motorcycle gang in around mid-2014; since then, he had had nothing to do with outlaw motorcycle gangs and had not tried to join another such gang; prison had “broken [him] down” and he had become a Christian. Those submissions of the appellant were referred to by the Minister at paragraphs 83 to 89 of the Minister’s Reasons. It was in the context of those submissions, and in response to those submissions, that the Minister observed that the appellant’s rehabilitation had not been tested in the community. That observation does not indicate any misconception or any irrationality. The observation was correct in light of the appellant’s submissions – the asserted rehabilitation that had come about through his time in gaol and the asserted disassociation from outlaw motorcycle gangs.
60 In the end, the appellant’s case as articulated in oral argument was that his representation to the Minister in the First Handwritten Letter that he had “until [his] incarceration … lived a quiet life” should be read as a representation that he had rehabilitated before he went to prison. But that letter makes it plain that the appellant was claiming that “[j]ail ha[d] changed … [his] life”. Further, given that the appellant: (a) had been, up until the time he commenced his term of imprisonment in January 2014, for many years a member of and involved in multiple outlaw motorcycle gangs; (b) had between January 2009 and January 2014 served 307 days in detention; and (c) had in 2009 committed crimes of horrific violence, it is difficult to know what the Minister would have made of a claim that “until his incarceration he had led a quiet life”, in the sense that the appellant now contends for.
61 Like the primary judge, we do not read anything the appellant claimed in either the First or Second Handwritten Letters as amounting to a claim that he had rehabilitated before commencing his term of imprisonment. It follows that the Minister did not misconceive the appellant’s claims.
62 For those reasons, ground one has no merit.
Ground two
63 Ground two is also without merit.
64 Paragraphs [52] and [57] of the Minister’s Reasons, which appear under the rubric “Extent of impediments if removed”, must obviously be read as a whole. It will be recalled that those paragraphs are in these terms:
52. I accept that health and other social services in Tonga may not be of the same standard as those available to him in Australia. Although Tongan health services are not ranked as highly by the World Health Organisation as those of Australia, I find that Mr TAUALII will have similar levels of access to health and other social services as generally available to other citizens of Tonga in the same position as Mr TAUALII.
…
57. Having considered Mr TAUALII’s circumstances, his lengthy residence in Australia, the absence of family support in Tonga, his lack of familiarity and cultural knowledge, and health issues, I find that a decision not to revoke the mandatory cancellation of his visa and his subsequent return to Tonga will involve significant hardship for him. I accept Mr TAUALII will face emotional hardship and experience isolation in being separated from his family and establishing a life in Tonga.
65 It is obviously implicit in the first and second sentences of [52] that the Minister understood that the standard of health care available to the appellant in Tonga was below the standard of care available in this country. The Minister also explicitly recognises at [57] that a decision not to revoke the mandatory cancellation of the appellant’s visa and his subsequent return to Tonga would involve significant hardship for him, including because of his “health issues”, and that this hardship was capable of constituting a reason for the revocation of the cancellation decision. It follows that the appellant’s submission, that the Minister failed to make a finding as to whether the lesser standard of health and social services in Tonga would pose hardship to the appellant in his personal circumstances, and if they did, whether that hardship was a reason that the cancellation of the appellant’s visa should be revoked, must be rejected. Those findings were made by the Minister.
66 The contention about Pennie decisions is also without merit. It was probably unnecessary for the learned primary judge to have mentioned the cases, and he doubtless did so because both parties referred to them. But in any event, his Honour’s observations about Pennie go nowhere, other than to lead him to make the unimpeachable observation that the decisions in Pennie fixed upon the question of “the extent to which a decision-maker under s 501CA(4) of the Act is required to address representations and to take them into account in considering whether to revoke the cancellation decision”: at [122].
67 It follows that ground two fails.
Ground three
68 Ground three does not arise.
disposition
69 In our view, the appeal should be dismissed, with costs.
I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Davies, O'Callaghan and O'Bryan. |
Associate:
