FEDERAL COURT OF AUSTRALIA

Taufahema v Minister for Immigration and Citizenship [2010] FCA 328

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the first respondent’s costs of the application.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

INTRODUCTION

1                          This is an application under section 476A of the Migration Act 1958 (Cth) (“Migration Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) constituted by Deputy President Handley;  see Taufahema v Minister for Immigration and Citizenship [2009] AATA 987.  The decision of the Tribunal was given on 23 November 2009.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship (“delegate”) cancelling the applicant’s class BB resident return visa under section 501(2) of the Migration Act.  The decision of the delegate was given on 27 August 2009. 

2                          The applicant has a lengthy criminal record.  It was plain that he failed the character test stated in section 501(6) of the Migration Act and no suggestion was made to the contrary either here or before the Tribunal.

3                          The ground on which the present application is made is that the decision of the Tribunal was affected by jurisdictional error.  In particular the applicant contends that the Tribunal failed to accord him procedural fairness by failing to set aside the decision and remit the matter to a delegate for reconsideration with a direction pursuant to section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”).  The direction which was sought was that the applicant be allowed a full opportunity to make submissions on why his visa should not be cancelled with regard to his prospects for further rehabilitation following his completion of a Violent Offenders Therapeutic Program (“VOTP”).  This issue arises because at the time when the Tribunal’s decision was made the applicant was (and still is) in prison serving a term of imprisonment for a crime of manslaughter, the details of which I will refer to below.

4                          One of the primary considerations which the Tribunal was required to take into account was the protection of the Australian community and the risk that the conduct may be repeated.  The Tribunal took into account the evidence before it of the applicant’s steps toward rehabilitation.  It noted that the applicant was scheduled to attend the VOTP “soon” but after making further observations was of the view that the applicant presented a high risk of re-offending. 

5                          The essence of the applicant’s case is that when considering the statutory framework within which the Tribunal exercised its power, it was bound to give him a fair opportunity to present information and argument on the question of his risk of re-offending.  Thus, on the applicant’s case, without an opportunity to complete the VOTP he could not be given a fair hearing.

BACKGROUND

6                          The relevant background to the matter is set out in the decision of the Tribunal.  The applicant was born in Tonga in 1978.  He arrived in Australia with his family in April 1988, aged nine.  Since then he has lived in Australia almost continuously.  He was the holder of a five year resident return visa.  Since arriving in Australia the applicant has been convicted of a number of criminal offences.  The earliest of the convictions dated from July 1993, when he was aged 14.  His record includes a number of other offences carrying terms of imprisonment which included property offences, assault and possession of a prohibited drug. 

7                          In March 2002 the applicant was charged with a range of serious offences arising out of an incident on 27 March 2002 in which a police officer was killed.  The applicant was convicted of aggravated assault and other offences relating to this incident but he was also charged with murder in relation to the incident and was convicted on this charge in October 2003.  However, the conviction was quashed on appeal and in December 2007 the applicant was convicted of manslaughter (to which he pleaded guilty) and was sentenced to a term of imprisonment of 11 years with a non-parole period of seven years.

8                          The applicant’s visa was cancelled before the incident to which I have referred but following a decision of this Court in a similar matter the decision to cancel his visa was revoked.  Nevertheless in April 2007 the Department of Immigration and Citizenship sent a further notice of intention to consider cancellation of the applicant’s visa.  Subsequently, as I have said, on 27 August 2009 a delegate found that the applicant failed the character test and exercised his discretion under section 501(2) of the Migration Act and cancelled the applicant’s visa.

THE TRIBUNAL’S REASONS

9                          The Tribunal set out the relevant provisions of the Migration Act and referred to the Minister’s Direction No. 41 which the Tribunal was required to take into account when considering whether to exercise the discretion.  Direction No. 41 contains a number of primary considerations as well as other considerations to which the decision-maker must have regard.  The primary considerations include the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence.  Direction No. 41 also identifies as a relevant factor in the exercise of the discretion a risk that the conduct may be repeated. 

10                        The Tribunal considered at some length the question of the protection of the Australian community.  The Tribunal member set out the remarks on sentencing of Grove J when sentencing the applicant for manslaughter.  I do not need to refer to those remarks but I should observe that Grove J also referred in his observations to the remarks on sentencing of Wood CJ at CL whose remarks on sentencing, though made in relation to the murder charge which was later quashed, remained germane to the sentencing on the charge of manslaughter.

11                        The Tribunal observed at [32] that while the applicant was in prison he had taken a number of courses to rehabilitate himself.  The Tribunal Member also observed at [33] that the applicant is deeply sorry and regrets the death of the Senior Police Constable and that the applicant thinks about this every day.  The Tribunal Member went on to observe that the applicant is scheduled to attend the VOTP soon, this being a reference to the fact that the VOTP would not be available to the applicant until shortly before his release from prison. 

12                        The Tribunal Member apparently accepted a submission at [35] that there was very little evidence of the applicant’s rehabilitation but the substance of the Tribunal’s reasons on this question may be found at [36] which I will set out in full:

In my view, on the evidence before the Tribunal, I agree there is a high risk of Mr Taufahema re-offending. There is evidence to suggest that Mr Taufahema may have begun the path to rehabilitation, and he has expressed remorse for his past actions, particularly in relation to incident on 27 March 2002 in which a police officer was killed. However, given that he expressed similar remorse and good intentions in 2001, and then committed serious crimes while on parole, there is insufficient evidence to satisfy me that, given his record, he may not commit further serious crimes, including those involving violence, if he is released into the community.

13                        The Tribunal’s conclusions are set out at [52] to [56].  I do not need to repeat what was there said.  The Tribunal observed that it was required to give greater weight to the primary consideration of the protection of the Australian community which strongly favoured the cancellation of the applicant’s visa.

THE APPLICANT’S SUBMISSIONS 

14                        The submission put by Mr Gormly, who appeared for the applicant, rests on the undisputed proposition that in the circumstances of the case and in the light of the statutory framework the Tribunal was bound to accord the applicant a fair opportunity to present information and argument against the cancellation of his visa;  see M238/2002 v  Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 936 at [41];  see also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (“SZBEL”) at [26].

15                        Mr Gormly also relied in particular on the provisions of Direction No. 41 which he submitted forms part of the statutory context which the Tribunal was bound to consider.  The most pertinent parts of Direction No. 41 include paragraph 5.2(4) which states that in some circumstances, it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australia community owing to their having spent their formative years or a major portion of their life in Australia.  The other pertinent parts of Direction No. 41 are the primary considerations relating to the protection of the Australian community which are referred to in paragraph 10 of the Direction.  Paragraph 10(1) provides that in deciding whether to cancel a visa, a primary consideration to be taken into account is the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence.

16                        Paragraph 10.1.2 states that the factors relevant to assessing the level of risk of harm to the community include the risk that the conduct may be repeated.  Paragraph 10.1.2(2)(b) provides that a factor to be considered as particularly relevant to the assessment is evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. 

17                        Mr Gormly relied on paragraph 10.1.2(2)(b) of Direction No. 41 and submitted that the Tribunal knew at the time of its decision that the applicant was scheduled to do the VOTP course and that this involved professional counselling.  Mr Gormly also referred to a number of other circumstances said to be relevant to the question of rehabilitation, including the remarks of Wood CJ on sentencing which indicated that the applicant would benefit from counselling in order to gain insight into his behaviour and to control his anger.  Mr Gormly also pointed to the observation of the Tribunal in its reasons at [36] which I have set out above in which the Tribunal found that there was evidence to suggest that Mr Taufahema may have begun the path to rehabilitation.

DISCUSSION 

18                        It seems to me that the answer to Mr Gormly’s submission is to be found in the authorities which have considered the nature of the review function conferred on the Tribunal.  The authorities were recently referred to by the High Court in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (“Shi”).  That case seems to me to confirm a long line of authorities commencing with the decision of a Full Court of this Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60. 

19                        The principle which is established by that line of authorities is that the function of the Tribunal is to reach the correct or preferable decision on the material before the Tribunal:  see Shi at [35] and [98].  As Hayne and Heydon JJ said at [100], a decision to set aside the decision under review and remit the matter for reconsideration pursuant to section 43(1)(c)(ii) of the AAT Act requires the repository of the powers and discretions to exercise them afresh, but this is subject to the qualification that the Tribunal’s task is “to do over again” what the original decision‑maker did.

20                        That is to say, the provisions of sections 25 and 43 of the AAT Act demonstrate that the function of the Tribunal is a review function.  It is required to address the material before it and make a decision on that material.  It is not consistent with this principle to say that the Tribunal is required to wait for circumstances to change so that it can consider material that is not, and indeed in this case could not, be before the Tribunal. 

21                        What seems to me to be embodied in the review function is stated in section 43(1) of the AAT Act and the authorities to which I have referred.  The Tribunal is “to do over again” the matter on the material before it.  If the Tribunal agrees that the decision is the correct or preferable one, it is to affirm the decision:  see section 43(1)(a) of the AAT Act.  If the Tribunal considers that the decision is not the correct or preferable one on that material, it is to set aside the decision under review and make a decision in substitution or remit the matter for reconsideration:  see in particular section 43(1)(c) of the AAT Act. 

22                        The flaw in Mr Gormly’s argument, attractive though it may appear at first sight, is that the power to set aside the decision under review is not open to the Tribunal if it considers that it might be better to wait for a period of time to see whether new circumstances come to light.  The power to set aside the decision and remit the matter to the delegate only arises if the Tribunal considers that looking at the primary decision and the material before the Tribunal, the decision is not the correct or preferable one.

23                        That this is so is supported by section 500(6L) of the Migration Act.  That subsection provides that if the Tribunal has not made a decision on an application in relation to the decision under review within a period of 84 days after the day on which the person was notified of the decision, the Tribunal is taken at the end of that period to have made a decision under section 43 of the AAT Act to affirm the decision under review. 

24                        It seems to me to follow from this that the Tribunal is expected to come to its decision within a relatively short period of 84 days, because if it has not made a decision within that period, the Tribunal is taken to have affirmed the decision under review.  It is true that Direction No. 41 points towards a more beneficial exercise of the power in favour of persons who have lived in Australia for a major portion of their life:  see Direction No. 41, paragraph 5.2(4).  It is also true that the relevant risk factors are to include evidence of the extent of rehabilitation and the prospect of further rehabilitation:  see Direction No. 41, paragraph 10.1.2(2)(b).  But I do not consider that these statements indicate that the Tribunal is to wait until all possible evidence as to the prospects of further rehabilitation are before it.

25                        What the Tribunal was required to do was to consider the prospects of rehabilitation on the material before it.  In my opinion, the thrust of Mr Gormly’s argument is contrary to what the High Court said in SZBEL at [25].  What underlies Mr Gormly’s submission is that in order to obtain a fair outcome, the decision ought to be made after evidence is available of the applicant’s attendance at the VOTP, but as the High Court said in SZBEL at [25], what is required by procedural fairness is a fair hearing, not a fair outcome.  There is nothing in the statutory scheme, including Direction No. 41, which required the Tribunal, as a matter of procedural fairness, to wait until after the applicant completed the VOTP.

26                        The fair opportunity to which the applicant was entitled was to present his case on the evidence available to him, at the time he appeared before the Tribunal.  There is no suggestion that he was not given such an opportunity.  The observations of Brennan J in Kioa v West (1985) 159 CLR 550 (“Kioa”) at 627, seem to me to support that conclusion.  In my view, they do not, as Mr Gormly submitted, favour the argument which he advanced.

27                        In Kioa at 627, Brennan J said that what the principles of natural justice require in particular circumstances depends on the circumstances known to the repository of the power at the time of the exercise, or the further circumstances which, had the repository acted reasonably and fairly, he or she would then have known.  In my opinion, the emphasis is upon what the repository of the power knew or would then (that is, at the time he or she exercises the review function) have known.

CONCLUSION AND ORDERS

28                        For these reasons, I propose to order that the application be dismissed.  I am indebted to counsel who appeared before me for their clear and succinct submissions, both written and oral, which enabled me to give this judgment today.  I am particularly indebted to Mr Gormly for accepting the brief for the applicant on a pro bono basis.

29                        The orders that I will make are that:

1.         The application be dismissed.

2.         The applicant pay the first respondent’s costs of the application.

Associate:

Dated:         6 April 2010