FEDERAL COURT OF AUSTRALIA

Teuila v Minister for Immigration and Citizenship [2012] FCA 1056

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 Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) which affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel the applicant’s visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Act).

2    Section 501(2) of the Act provides:

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.

The findings and conclusion of the Tribunal

3    At the hearing in the Tribunal it was not disputed that the applicant did not pass the character test. The applicant’s criminal history as it involved Queensland courts was not in dispute and was summarised in [15] of the Tribunal’s reasons. Her criminal history involved not only property offences but also offences involving physical violence. She had been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c) of the Act. She had also been sentenced to two or more terms of imprisonment where the total of the terms was two years or more: s 501(7)(d) of the Act. The only issue before the Tribunal was whether the discretion in s 501(2) of the Act should be exercised to cancel the visa.

4    The Tribunal’s findings in relation to the applicant’s background and circumstances included the following:

    The applicant was born in New Zealand on 12 January 1991 and came to Australia with her parents and three siblings on 21 December 2004. The applicant returned to New Zealand with her parents from 9 September 2005 until 9 October 2005 and from 3 December 2005 until 11 June 2006. The applicant has been in Australia since 11 June 2006.

    The applicant gave birth to a son, Ezekiel, on 8 October 2010 in Australia. She has had no dealings with the child’s father since his birth. Ezekiel’s father was said to be an Australian citizen.

    The applicant was sentenced to imprisonment by the District Court at Brisbane on 20 October 2011. Three sentences of imprisonment were imposed in relation to five charges. Four of those charges related to events on 27 June 2008. Two of those charges were for assault occasioning bodily harm whilst in company. The fifth charge was also for assault occasioning bodily harm whilst in company. It related to events on 9 January 2010.

    The applicant’s parents and siblings live in Mt Isa. They have been caring for Ezekiel, in a voluntary arrangement, since the applicant was imprisoned. The applicant’s position is that, if her visa is cancelled, she will take Ezekiel back to New Zealand with her.

    Apart from the applicant’s parents and siblings, she has other relatives in Australia. The applicant also has relatives in New Zealand.

5    In considering whether the discretion in s 501(2) of the Act should be exercised to cancel the applicant’s visa, the Tribunal considered the directions provided by Part B of Direction [41] given under s 499(1) of the Act as those directions applied to the applicant’s circumstances as the Tribunal found them to be.

6    Paragraph 10 of Direction [41] provides:

The primary considerations

(1)    In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

(a)    the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b)    whether the person was a minor when they began living in Australia;

(c)    the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d)    relevant international obligations, including but not limited to:

(i)    the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii)    the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

7    Paragraph 11 of Direction [41] provides a list of other discretionary considerations – which are not primary considerations – which may be relevant to an applicant’s circumstances. These include whether a person has been formally advised in the past by an officer of the Department of Immigration and Citizenship (the Department) about conduct that brought the person within the deportation or character provisions of the Act: see paragraph 11(3)(g).

8    Of the primary considerations, the Tribunal was satisfied that the protection of the Australian community (paragraph 10(1)(a)) was the most significant in the applicant’s case. It found that the nature and frequency of the applicant’s criminal conduct, and the likelihood of re-offending, were in conflict with the objective of protecting the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by a non-citizen. In coming to this conclusion the Tribunal took into account not only the offences for which the applicant had been imprisoned but also a range of other offences for which non-custodial sentences had been imposed. Some of these were offences committed by the applicant while she was a minor and in respect of which no conviction was recorded. The Tribunal found that the applicant’s criminal history, which was not in dispute, demonstrated her willingness to ignore orders imposed upon her by the courts, including breaches of probation, community service and bail conditions, failures to appear in accordance with undertakings, and contraventions of directions or requirements. The Tribunal was satisfied that her history of defying court orders was such that it was probable that, once released from custody, the applicant would continue in that manner: see [29] of the Tribunal’s reasons. Thus the Tribunal found (at [46]) that the consideration in paragraph 10(1)(a) weighed heavily in favour of the cancellation of her visa.

9    The Tribunal also considered that the primary considerations in paragraph 10(1)(b) and (c) weighed in favour of cancellation of the applicant’s visa. In this connection the Tribunal found that the applicant’s criminal conduct commenced when she was still a minor in February 2008 and continued until January 2010 when she was an adult. She had had three convictions in 2008, whilst a minor. She had barely spent two and a half years in Australia before her first offence. Moreover, the majority of her formative years were not spent in Australia and this was to be taken into account in comparing the extent of her ties and linkages to Australia with her ties and linkages to New Zealand.

10    The Tribunal was satisfied that, in the applicant’s case, the consideration in paragraph 10(1)(d) was, at best, neutral as a matter of weight. It considered this consideration to be more finely balanced than the other three considerations. It found that Ezekiel would not be separated from the applicant if she were to be deported although he would be separated from his grandparents who have cared for him since the applicant has been in custody. The Tribunal found, however, that means of communication and contact between them is available and that the applicant has relatives in New Zealand to turn to for assistance in adjusting to her return to life in New Zealand with Ezekiel.

11    In the case of the other considerations relevant under paragraph 11 of Direction [41], the Tribunal accepted that the applicant was provided with no warning that her conduct may activate the deportation or character provisions of the Act. The Tribunal also took into account the applicant’s links with New Zealand, the effect of deportation on family members, and the effect of deportation on the applicant’s employment prospects.

12    On the question of the effect of deportation on family members, the Tribunal accepted that cancellation of the applicant’s visa would involve some disruption to her family. It found, however, that there was no evidence of a marital relationship between the applicant and Ezekiel’s father and that the applicant’s contact with her parents and Ezekiel had already been disrupted because of her incarceration. The Tribunal found that the major disruption would be between Ezekiel and his grandparents. In that connection, however, no evidence had been provided by them; there appeared to be no obstacle to communication by telephone or other electronic means; and there remained the prospect of travel by the grandparents to New Zealand from time to time.

13    On the question of links to New Zealand, the Tribunal accepted that the applicant had relatives in both Australia and New Zealand, including uncles, aunts and cousins. The Tribunal noted, however, that there was no evidence from the relatives in either country as to their support for the applicant or Ezekiel.

14    On the question of her employment prospects, the Tribunal noted that although there was no evidence that the applicant had undertaken any formal education program since leaving school in Year 12, she had engaged in forms of employment (such as in customer service with KFC and McDonald’s, in telemarketing with Bartercard and as a sales representative with Avon) which would have equivalents in New Zealand. It noted that the applicant had expressed a desire to undertake training in hairdressing and beauty care but found that it was likely that these options could be pursued in New Zealand: see [43] of the Tribunal’s reasons.

15    The Tribunal concluded that the considerations under paragraph 11 of Direction [41] that were relevant to the applicant’s circumstances were factors that were to be weighed no higher than neutrally on the issue of visa cancellation: see [49] of the Tribunal’s reasons.

16    The Tribunal concluded as follows (at [50]):

I am satisfied that the primary considerations weigh in favour of cancellation of the visa and that this clearly outweighs all other relevant considerations in this case which, at best, are neutral to the extent that they impact on the issue of Ms Teuila ’s deportation. I am satisfied that the cancellation of the visa in this case would accord with the standards, values and expectations of the Australian community. Accordingly, the preferable decision in this case is that the visa be cancelled pursuant to s 501(2) of the Act.

The proceeding in this Court

17    The application for judicial review is brought pursuant to s 476A(1)(b) of the Act. The Court’s jurisdiction is the same as that of the High Court under s 75(v) of the Constitution: s 476A(2). The applicant must establish that the Tribunal’s decision is affected by jurisdictional error: see Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358 at [3]-[6].

18    The applicant has advanced six grounds of review, which she has stated as follows:

1.    The Tribunal was in error for taking into account without inform me that it was going to and giving me an opportunity to respond to the offences I committed as a minor of which no conviction was recorded. This was a denial of procedural fairness.

2.    The Tribunal was in error for making a finding that my son’s father was not Australian without any evidence on which that finding was based contrary to the provisions of the Act and Directions 41 regarding the best interest of my son Ezekiel as a primary consideration.

3.    The Tribunal was in error for failing to make inquiry into critical matters of relevance the existence of which was easily ascertained through medical expert examinations.

4.    The Tribunal was in error for not finding that the fact that given I had not been provided with any warning that my conduct may activate the deportation or character provisions of the Act weighed in my favour that my visa should not be cancelled.

5.    The Tribunal was in error for affirming the decision of the delegate.

6.    The Tribunal constructively failed to exercise jurisdiction in that it had failed to act according to the provisions of Act. But rather had attended my review with a closed mind and not in good faith.

19    The Minister contends that these grounds do not disclose jurisdictional error by the Tribunal and that the application should be dismissed.

20    The applicant appeared without legal representation. She informed me that her application for review in this Court had been prepared with the assistance of someone who “was experienced within legal areas”. I am satisfied that she had little understanding of what was stated in it.

21    Although directions had been given for the filing of written submissions, no written submissions had been filed by the applicant. When invited to do so, the applicant did not seek to advance oral submissions in support of her application.

22    The Minister did file written submissions. The applicant acknowledged having seen them. The solicitor appearing for the Minister, Mr Swan, also addressed me orally. I then invited the applicant to respond. In doing so, the applicant said that the Tribunal erred by failing to take into account that she had not re-offended. This was not a ground of her application, but the Minister was content to deal with it. I will also deal with it in the context of dealing with ground 1.

23    I now turn to consider each ground relied upon by the applicant.

Ground 1

24    In reaching its decision the Tribunal took into account the entirety of the applicant’s criminal history as revealed in a Police Certificate dated 8 December 2011 issued by the Australian Federal Police (the Certificate). That history included offences which were committed by the applicant when she was a minor in respect of which no conviction had been recorded. In this connection it is to be noted that paragraph 10.1.2(1) of Direction [41] provides that a person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.

25    The applicant contends that the Tribunal did not inform her that it would take into account the offences committed by her as a minor for which no conviction was recorded and that she was denied an opportunity to “respond” to them. She contends that she was thereby denied procedural fairness by the Tribunal.

26    In my view this ground cannot be sustained for a number of reasons.

27    First, the written notice given to the applicant advising that her visa was being considered for cancellation under s 501(2) of the Act plainly stated that the Department had information which the Minister’s delegate might rely upon. The itemised information specifically included a reference to the Certificate.

28    Secondly, the subsequent statement of reasons in relation to the delegate’s decision to cancel the applicant’s visa, in respect of which the applicant sought review by the Tribunal, records that the delegate took into account the applicant’s criminal history as shown in the Certificate.

29    The Minister submits, and I accept, that the prior reliance by the delegate on the offences committed by the applicant as a minor for which no conviction was recorded was made clear in the delegate’s decision and should have indicated to the applicant that these offences would likely be taken into account in the subsequent review of that decision by the Tribunal: Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417 at [84]-[89]; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. Indeed, as I have noted, paragraph 10.1.2(1) of Direction [41] required the decision-maker, including the Tribunal, to consider the applicant’s criminal history in toto.

30    Thirdly, the Statement of Facts, Issues and Contentions dated 9 May 2012 on which the Minister relied in the hearing before the Tribunal set out the applicant’s criminal history as shown in the Certificate. In that Statement the Minister contended that the Tribunal must take into account all of the offences committed by the applicant because the cumulative effect of them highlighted the objective seriousness of the applicant’s overall criminal conduct and was a particularly relevant factor for assessing the risk of the applicant re-offending (ie the paragraph 10.1.2(1) requirement). The Minister submits, and I accept, that from the Statement alone, the applicant should have been aware that the Minister intended to place weight on all offences – including those committed by the applicant as a minor for which no conviction was recorded – and that all of these offences would be something that the Tribunal may take into account in making its decision.

31    Fourthly, in this connection, the applicant was cross-examined in the hearing before the Tribunal. The cross-examination included questions in relation to one offence that had been committed by the applicant as a minor for which no conviction had been recorded. This was another instance which must have alerted the applicant to the fact that the entirety of her criminal history was a matter that was before the Tribunal in reviewing the delegate’s decision.

32    Fifthly, the Minister submits, and I accept, that the Tribunal did not deny the applicant an opportunity to “respond” in relation to these offences. The applicant provided a written submission to the Tribunal prior to the hearing. That submission did not address her criminal offending in any detail. However, at the hearing, the applicant was provided with the opportunity to give evidence and to make submissions. The presiding member of the Tribunal directed the applicant’s attention to her criminal history, including what had been stated in the Certificate. The applicant confirmed the accuracy of her criminal history as recorded in the Certificate. The applicant’s oral submissions included her acceptance that she had “messed up” as a minor, “but that doesn’t give me an excuse”.

33    The applicant’s oral submission that she had not re-offended and that the Tribunal had erred in failing to take this into account is somewhat illusory. Her contention that she had not re-offended really meant that she had not re-offended since she was last convicted. This is not entirely surprising because, when last convicted, she was imprisoned. The simple fact is that the Tribunal had the entirety of the applicant’s criminal history before it which showed that she was a re-offender. Importantly the Tribunal found that, given that history, she was likely to re-offend. This finding was one that was open to be made by the Tribunal.

34    No reviewable error has been established under this ground. I am not satisfied that the applicant was denied procedural fairness as alleged.

Ground 2

35    The basis for this ground is that the Tribunal made an erroneous finding of fact that Ezekiel’s father was not an Australian citizen. In my view this is not a viable ground of review. In any event, the ground cannot be sustained and fails at the outset because, on any fair reading of the Tribunal’s decision, it did not find that Ezekiel’s father was not an Australian citizen.

36    In this connection, the Tribunal (at [11]) recorded the applicant’s evidence that Ezekiel’s father was an Australian citizen. The Tribunal (at [37]) repeated that evidence and concluded that “Ezekiel may well be an Australian citizen on that basis”. The Tribunal did, however, record that there was no independent evidence of the father’s status in this regard. This observation was accurate: the only person who gave evidence in the applicant’s interests at the hearing before the Tribunal was the applicant herself. The observation cannot be translated into a finding that Ezekiel’s father was not an Australian citizen. Thus the factual premise on which this ground of review is formulated is lacking.

37    In any event, errant fact-finding does not constitute jurisdictional error on the part of the Tribunal: Waterford v The Commonwealth of Australia (1987) 163 CLR 54 at 77.

38    Accordingly, no reviewable error has been established under this ground. I should nevertheless record that it is plain from reading the Tribunal’s reasons that consideration was given to the “best interests of the child”: see [37] and [38] of the Tribunal’s reasons.

Ground 3

39    By this ground the applicant contends that the Tribunal was in error for failing to inquire into “critical matters of relevance” the existence of which was easily ascertained through “medical expert examinations”. This ground was not particularised. I invited the applicant to tell me what the “critical matters of relevance” were. The applicant’s response was that the Tribunal did not take into account the fact that she had not re-offended. Plainly that response did not engage the balance of ground 3, which was that these matters were easily ascertained through “medical expert examinations”.

40    I have already dealt with the applicant’s contention that the Tribunal did not take into account the fact that she had not re-offended. In the absence of the applicant being able to identify the “critical matters of relevance” that could be ascertained through “medical expert examinations”, ground 3 cannot be sustained. I should add, however, that the material before the Tribunal did not raise the applicant’s health as a relevant issue to be considered. The applicant’s evidence both before the delegate and the Tribunal was that she had no health issues. Moreover, there is no evidence before me that the applicant requested the Tribunal to engage in any further inquiry into her health or any other matter. The Minister submits, and I accept, that there is no basis for concluding that the Tribunal failed to perform its statutory function of reviewing the delegate’s decision. Accordingly, no reviewable error has been established under this ground.

Ground 4

41    Under this ground the applicant contends that the Tribunal erred by not weighing in her favour the fact that she had not been provided with any warning that her conduct might activate the deportation or character provisions of the Act.

42    There is no doubt that paragraph 11(3)(g) of Direction [41] identifies, as a relevant consideration, whether a person has been formally advised in the past by an officer of the Department about conduct that would bring the person within the deportation or character provisions of the Act. However, paragraph 11(1) makes clear that this consideration is “not primary” and paragraph 11(2) provides that, generally, this and the other identified considerations in paragraph 11 “should be given less weight than that given to primary considerations”.

43    It is plain from the Tribunal’s reasons that it took into account, as a relevant consideration, the fact that the applicant had not been formally advised about her conduct that had brought her within the deportation provisions or character provisions of the Act: see [44] and [49] of the reasons. The Tribunal weighed this and the other relevant factors identified in paragraph 11 as “no higher than neutrally on the issue of visa cancellation from [the applicant’s] perspective”. Having identified and taken into account the absence of formal advice concerning the significance of the applicant’s conduct, it was for the Tribunal to weigh that consideration, along with all other considerations it was required to take into account, and to make its own evaluation as to whether the applicant’s visa should be cancelled in all the circumstances. As the Minister submitted, there was no requirement to weigh the paragraph 11(3)(g) consideration in the applicant’s favour or to give it some particular or specified weight.

44    For these reasons, no reviewable error has been shown under this ground.

Ground 5

45    This ground simply makes the bland statement that the Tribunal was in error by affirming the decision of the delegate. It would appear that this ground is either a conclusion based on the applicant’s other grounds (and is thus dependent on one or more of those other grounds being established) or invites, impermissibly, the Court to engage in a review of the Tribunal’s decision on the merits. If the latter constitutes the thrust of ground 5 then it is plainly not the role of this Court to engage in a review of the Tribunal’s decision on the merits: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36. No reviewable error has been established under this ground.

Ground 6

46    Under this ground the applicant contends that the Tribunal constructively failed to exercise its jurisdiction by failing to act in accordance with the provisions of the Act. She also contends that the Tribunal acted “with a closed mind and not in good faith”. Once again, no particulars of this ground have been provided by the applicant.

47    I am unable to see how the Tribunal failed to act according to the provisions of the Act. I am equally unable to see how the Tribunal acted with a “closed mind and not in good faith”. Indeed, as to the latter contention, I should record that a fair reading of the Tribunal’s reasons shows that it gave careful and detailed consideration to the applicant’s circumstances without any apparent predisposition to whether or not the applicant’s visa should be cancelled. There is nothing in the Tribunal’s reasons, and no other matter to which my attention has been drawn, from which it could reasonably be contended that the Tribunal did not bring an impartial mind to the task before it. Thus, in my view, no reviewable error has been established under this ground.

Disposition

48    None of the applicant’s grounds for judicial review has been established. It follows that the application must be dismissed. The applicant is to pay the Minister’s costs.

Associate:

Dated:    28 September 2012