FEDERAL COURT OF AUSTRALIA

Taurua v Minister for Immigration and Citizenship [2008] FCA 1950

Administrative Appeals Tribunal Act 1975 (Cth) s 44

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 5E, 474, 483, 499, 501

Federal Court Rules O 53 r 2

Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 referred to

Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1985) 162 CLR 24 applied

Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 referred to

Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 cited

STANLEY TAURUA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL

NSD 875 of 2008

PERRAM J

22 DECEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the costs of the first respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     The applicant is a citizen of New Zealand.  He has a substantial criminal record.  He held a class TY subclass 444 special category visa which, broadly speaking, is a temporary visa given to New Zealand citizens.  Section 501 of the Migration Act 1958 (Cth) (“the Migration Act”) authorises the Minister administering the Act to cancel a visa if satisfied that a person has not passed the “character test”.  A person fails the character test if, inter alia, the person has been sentenced to a term of imprisonment of 12 months or more: see s 501(7).

2                     On 19 January 2008 a delegate of the Minister concluded that the applicant did not pass the character test and decided to cancel the applicant’s visa.

3                     On 28 February 2008 the Applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for a review of that decision.  The Tribunal decided on 16 May 2008 that the delegate’s decision should be affirmed.  From that determination the applicant now appeals to this Court.

The appeal

4                     The applicant was notified of the Tribunal’s decision by a letter dated 16 May 2008.  That letter informed him of the Tribunal’s decision.  It also informed him of his right to review the Tribunal’s decision in the following terms:

If you think the decision is wrong, you have the right to apply to the Federal Court for review of the decision.  Please note that the review is limited to certain legal errors, and does not apply to errors of fact.  The Federal Court will decide if the Tribunal has made a relevant legal error in reaching its decision.  If you are considering an appeal, you may wish to obtain legal advice without delay.

5                     On 5 June 2008 the applicant sent a handwritten facsimile to the Federal Court from the Villawood Detention Centre where he is currently detained and sought a review.  That facsimile said in part:

my name is Stanley TAURUA And I am applying for an application for review on the descion to the Federal Court.

6                     On the same day an official of the Federal Court sent to the applicant, by facsimile, a document titled “Form 55A Notice of Appeal” for completion.  Order 53 r 2(1) requires the filing of a notice of appeal in the form provided for by form 55A where an appeal is brought from the Tribunal.

7                     The applicant completed the form and set out in it a number of questions of law said by him to be raised on the appeal.  Relevantly, the right to appeal in such cases is limited by s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to an appeal involving a question of law.

8                     Section 483 of the Migration Act provides:

Section 44 of the Administrative Appeals Tribunal Act 1975 does not apply to privative clause decisions or purported privative clause decisions.

9                     The expression “privative clause decision” is defined by s 474(2) of the Migration Act.  Broadly speaking, a privative clause decision is one of an administrative character made, proposed to be made, or required to be made under the Migration Act, other than certain types of decision set out in s 474(4) and (5).  The current decision of the Tribunal, which was made on review under s 500 of the Act, does not appear in s 474(4) or (5).  Section 5E(1) defines the expression “purported privative clause decision” to mean effectively a privative clause decision the making of which involved an excess of jurisdiction or a failure to exercise jurisdiction.  It follows that the present decision falls within s 483 so that s 44 of the AAT Act does not permit the applicant to bring an appeal to this Court.  The only jurisdiction that this Court has in respect of such a decision of the Tribunal is the jurisdiction set out in s 476A(1)(b), being the jurisdiction derived from s 39B of the Judiciary Act 1903 (Cth).   That jurisdiction arises only in cases of jurisdictional error.

10                  It follows that the notice of appeal filed by the applicant is incompetent.  It is hardly surprising, however, that the applicant filed such a notice of appeal since it was the document provided to him by this Court.  On two separate occasions the applicant was directed by judges of this Court to file an amended application seeking relief under s 39B of the Judiciary Act 1903 (Cth).  He did not comply with those directions and the only originating process before me was a notice of appeal pursuant to s 44 of the AAT Act.  The Commonwealth properly took the position that it would not oppose the Court treating the application as if it were an application pursuant to s 39B.  I asked the applicant during the hearing whether he wished me to treat his notice of appeal as an application pursuant to s 39B and he answered that he did.  Thus, although there was no written application pursuant to s 39B before the Court, there was an oral application.

Facts  

11                  The applicant disagreed with some factual matters found by the Tribunal, however, the following matters were not in dispute.  He was born in New Zealand in or around 1963 and is a citizen of that country.  The Commonwealth’s records show that he first arrived on 4 April 1977.  In 1980 he left Australia and returned to New Zealand where he remained until 1983.  Whilst in New Zealand he was twice convicted of burglary, once of disorderly behaviour likely to cause violence and once of common assault before the Dannevirke District Court.  Upon his return to Australia, the applicant was convicted of a number of other matters between 1993 and 2007.  He has an extensive criminal record involving serious offences to the person, drug offences, stalking, demanding money with menaces and some fighting matters whilst in prison.  He has served a number of substantial terms of imprisonment and in 2002 had imposed upon him an effective sentence of imprisonment of six years and six months for assaulting a woman and her child.

Legislative framework

12                  Section 501(2) provides:

(2)        The Minister may cancel a visa that has been granted to a person if:

(a)       the Minister reasonably suspects that the person does not pass the character test; and

(b)       the person does not satisfy the Minister that the person passes the character test.

13                  Section 501(6) provides:

(6)        For the purposes of this section, a person does not pass the character test if:

(a)       the person has a substantial criminal record (as defined by subsection (7)); or

…

14                  Section 501(7) provides:

(7)       For the purposes of the character test, a person has a substantial criminal record if:

…

(c)       the person has been sentenced to a term of imprisonment of 12 months or more; or

…

15                  The scheme of s 501 is, therefore, that upon satisfaction of the jurisdictional prerequisite to the power in subsection (2), a discretionary power to cancel a visa is enlivened.  The jurisdictional prerequisite is a failure by a visa holder to pass the character test.  There is no doubt in this case that the applicant did not pass the character test.  Accordingly, the cancellation power was enlivened.

16                  The discretion conferred by s 501(2) is unfettered.  However, s 499(1) of the Migration Act provides:

(1)       The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)       the performance of those functions; or

(b)       the exercise of those powers.

Subsection 2A provides that the person or body must comply with any such directions.

17                  Pursuant to s 499(1) the Minister, on 23 August 2001, issued Direction No. 21 which was entitled “VISA REFUSAL AND CANCELLATION UNDER SECTION 501”.  It is not presently necessary to set out the terms of that instrument.

The Tribunal’s decision

18                  The matter came before the Tribunal for hearing on 6, 7 and 8 May 2008.  The application had been set down for hearing at the Balmain courthouse commencing on 6 May 2008.  The Tribunal recorded that at the first day of the hearing it became apparent that the applicant wished to call a witness, Ms Audra Hall, who lived in Bellingen in New South Wales, to give oral evidence by telephone.  The Tribunal recorded that the Balmain courthouse had no facilities for taking telephone evidence.  The Tribunal said (at [7]):

After hearing the applicant’s evidence, the tribunal adjourned the hearing part-heard to 7 May, in hearing room 3, Level 5, 55 Market Street, Sydney where telephone evidence facilities are available.  The hearing was resumed on 8 May.

19                  The Tribunal reviewed the statutory structure in a way which was unexceptional.  It recorded the submissions that the applicant made to it.  The first question which the Tribunal asked itself was whether the applicant passed the character test set out in s 501.  On the basis that he had been sentenced to an aggregate of six years imprisonment it concluded, correctly in my opinion, that the applicant did not pass the character test.

20                  The Tribunal then turned its mind to the exercise of the discretion conferred by s 501(2).  In doing so, it specifically took into account the provisions of Direction No. 21 including the three “primary considerations” set out in that direction.  The primary considerations are set out at paragraph 2.3 and they are the protection of the Australian community, and members of the community; the expectations of the Australian community; and, in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.  The Tribunal specifically adverted to the necessity of taking into account the three primary considerations but also of adopting a balanced approach which took into account all relevant considerations.

21                  The Tribunal had regard to paragraph 2.4 of Direction No. 21 which explains the Government’s position as being one where it seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.

22                  The Tribunal also analysed the relationship between the need to protect the Australian community and the position of the applicant.  It considered in detail his criminal record which was extensive and concluded that the applicant had an explosive temper.  It took into account the applicant’s submissions that he had been uprooted from his original background in New Zealand and moved to Australia against his will and a number of other mitigating factors.  At [106] the Tribunal said:

In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11.  The deterrent effect of a particular decision is impossible to prove in advance.  The concept can perhaps also be expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it.  That is a principle well known to parents, teachers, managers and most other members of the community.

23                  The Tribunal then considered the expectations of the Australian community.  It noted that some members of the community would undoubtedly have had compassion for the applicant as he had lived in Australia for most of his life.  However the Tribunal concluded that the majority of the community would be likely to expect that non-citizens who repeatedly commit serious acts of violence, especially against children, even after being punished repeatedly by the justice system, should not be allowed to remain members of its community. 

24                  The Tribunal next turned to the question of the best interests of the child as was required by Direction No. 21.  It analysed the position of the applicant’s son, Rhion, noted that the applicant was not sure of Rhion’s date of birth and that there was no statement before the Tribunal by Rhion.  Instead, there was a statement by his mother.  During the hearing, after Rhion had taken an affirmation, the statement was read to him and he adopted its contents as true and correct.  It appeared from that account and the subsequent cross-examination that Rhion knew little about his father, except his criminal record.  He could not remember the last time he saw his father before January 2008 but thought it was some eight years earlier when he was aged six or seven.  He made strenuous efforts to locate his father and arranged a meeting with him in January 2008.  It was arranged that they should spend a week together, and consideration was given to living together in the future.

25                  At the hearing, the applicant said that he had not asked Rhion to provide a statement because he had been regarded as slow at school and could not write a statement himself.  He proffered no reason as to why he had not asked his other son, who was by then 18, to give a statement.  The Tribunal noted that there was no suggestion that Rhion had ever been a victim of abuse by the applicant.  However it accepted that his brother Uhlan had been such a victim.  It also noted that the applicant had been convicted of assaulting a child.

26                  The Tribunal accepted that the applicant apparently had nothing but good intentions in relation to Rhion but took into account the possible consequence of a relapse into violence.  It noted that the relationship to date had not been a close one and that the evidence, such as it was, related more to the prospect of developing a better relationship in the future.  I note that this would normally be given relatively less weight than a proven history of a relationship based on past conduct: see Direction No. 21 at paragraph 2.16(b).  Ultimately, the Tribunal was not satisfied that Rhion’s best interests would be served by setting aside the delegate’s determination to cancel the applicant’s visa.

27                  The Tribunal also took into account the position of the applicant’s nephew, Jay Ellard, who was 17.  The Tribunal concluded that that relationship was tenuous.  It treated as minimal and vague evidence given to it by the applicant that he had a relationship with about 200 other children who called him “uncle”.   It took into account that the applicant had many relatives in Australia and that he did not know who his relatives in New Zealand were.  The Tribunal accepted that the fact that the applicant had been in Australia since the age of 14 gave him compassionate claims.  Ultimately, however, the Tribunal thought that the delegate’s decision should be affirmed.

The applicant’s submissions

28                  The applicant submitted that he had been unable to prove the position of his son Rhion and other witnesses because he had been denied the opportunity to call them by telephone.  He said that he had attended the hearing on the day understanding that he would be able to call witnesses by telephone and that this had not been allowed to occur.

29                  It is apparent from the reasons of the Tribunal that this is not so.  On the first day of the hearing the applicant sought to call a witness by telephone and it was discovered that there were no telephone facilities at the Balmain courthouse.  The matter was then specifically adjourned to a hearing in the city where telephone services were available and were, in fact, used.  Accordingly, it seems to me that this submission is not made out.

30                  The applicant next submitted that the Tribunal had relied upon the fact of his having been convicted of assault in March 2007 when that conviction had been overturned by the time the matter came on for hearing before the Tribunal.  There was no complete criminal record of the applicant available at the time of the hearing before me.  I directed that a full criminal record be obtained and provided to the Court.  I have perused the criminal record.  It appears to show that on 20 March 2007 the applicant was convicted of two counts of common assault and sentenced to six months imprisonment commencing on 19 March 2007.  On 30 October 2007, it appears that the conviction was confirmed.  It does not seem to me, therefore, that the applicant’s contention is factually correct.

31                  The applicant also submitted that he had not received any notice of an intention to cancel his visa.  On 18 April 2007, the delegate of the Minister sent a facsimile to the applicant at the John Morony Correctional Centre.  On 19 April 2007, the applicant signed an instrument appointing a migration agent.  It is difficult to imagine why that document was completed on that day unless the facsimile apparently sent by the delegate the day before had been received.  I reject this submission.  However, what occurred prior to the application to the Tribunal is not material in view of the fact that the Tribunal reperforms the delegate’s function.

32                  The applicant then made a number of related submissions.  He submitted he was raised in Australia and that he was an Australian citizen, that he had married an Australian and that if he was repatriated to New Zealand he would be unable to visit his sister’s grave.  I reject the submission that the applicant is an Australian citizen.  It was based on a contention that he had been here a long time and had become “more Australian than Australians”.  This argument is not legally sound.  The other submissions are not pertinent to the issue of whether there has been a jurisdictional error on the part of the Tribunal.

Other matters

33                  I raised with counsel appearing for the Commonwealth the possibility that the Tribunal may have taken into account an irrelevant consideration by considering the deterrent effect that the applicant’s deportation may have on other non-citizens with criminal records.  Mr Potts correctly pointed out that the Tribunal was required to take that into account by Direction No. 21.  Further, two decisions of the Full Court of this Court establish that it is permissible to take into account general deterrence where it is not the sole or substantial factor justifying deportation: see Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 at 312 [76] per Tamberlin, Sackville and Stone JJ; Tuncok v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 172 at [42]-[45] per Moore, Branson and Emmett JJ.  It was not the sole or substantial factor in this case.  Accordingly no error is thereby disclosed.

34                  Following the hearing, the applicant sent a letter to the Court in the following terms:

To whom this may concern:

Stan Taurua came to Australia in 1983 and has since been a resident until 2008.

We content that the minister in making his judgement to cancel his ty 444 Visa is incorrect.

We state that he arrived in 1983 and has since only left once for 72 hrs and in fact was entitled to be classified under Section 34.3.82 of the migration Act and is in fact a Absorbed persons.

We content the minister in cancelling his Visa was in fact the wrong visa.

I have Continuely stated I am an Australian Citizen and fall clearly within Section 34 of the Act.

I have 2 australian born children   one Serving in the Australian Cadels

My Mother and younger Sister buried in Australia

I have a job before being detained in Villawood, and have made significant Contributions to the Community working In homeless shelters, church groups feeding helping the less off in Society.

We therefore Content that the wrong visa was Cancelled and in fact he was an Absorbed person who continues to Live and will continue to Live in Australia.

We wish to dismiss the judgement as and administrative Error – or jurisdictional Error give me back my freedom so I can grow old with my Sons and grandaughter   Be able to visit my mothers and sisters gravesite which I haven’t yet

Thank you.

Stan Taurua.

P.S.  and an Order to pay Costs to me.

35                  There are, I think, two arguments contained in this letter.  The first is the claim that the applicant is an Australian citizen.  I have already dealt with that matter above.  The second is the suggestion that the applicant was entitled to an absorbed person’s visa pursuant to s 34 of the Act so that when the Minister – and, inferentially, the Tribunal – purported to cancel his visa it erroneously cancelled the incorrect visa.  Presumably the consequence of that error would be that the applicant continues to be entitled to reside in Australia pursuant to the absorbed person’s visa.  The history and effect of s 34 was explained by Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at 576-578 [18]-[22].  It is not necessary to revisit that history here.  It sufficies rather to note that s 34(1) provides for there to be a class of permanent visa to “remain in”, but not re-enter, Australia, to be known as “absorbed person visas”.   It will be apparent from the applicant’s letter to the Court that there is no dispute that he did in fact leave the country for 72 hours which, for present purposes, is sufficient to dispose of the present argument.  Having departed even for that brief period, the right of re-entry was lost.

36                  There are two further matters which relate to that conclusion which should be mentioned.  First, it is unclear how the argument fits into an application for prerogative writs against the Tribunal (as I have treated the application).  The argument was not put to the Tribunal and it may be that there is a real question as to whether a jurisdictional error was committed by the Tribunal in failing to appreciate that which was not put to it.  However, given my conclusions that the argument is unsound it is not necessary to reach a view on that matter.

37                  Secondly, one view of the matter is that by the mere act of departing the country for three days the applicant has effectively done himself out of a right to reside in Australia.  I have no doubt that the Tribunal would have been within its rights to take that misfortune into consideration in dealing with the application before it.  However, I do not think that it can be said that the Tribunal was bound to take that matter into account in the sense used in Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1985) 162 CLR 24 at 39 per Mason J.  The Minister may now wish to consider this aspect of the matter.  He is not bound to do so.  If the matter is considered it may make no difference.  It may be – one does not know – that the applicant’s reason for the three day departure may be relevant.  It may be that the applicant’s prior actions were such that his visa should still be cancelled.  In any event, these are not matters for the Court and are entirely for the Minister in whom these functions are reposed.

38                  The application must be dismissed with costs.

Associate:

Dated:         22 December 2008