FEDERAL COURT OF AUSTRALIA

Uelese v Minister for Immigration and Citizenship [2013] FCA 342

THE COURT ORDERS THAT:

1.    The application filed on 18 December 2012 is dismissed with costs.

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

REASONS FOR JUDGMENT

1    Mr Peter Uelese was born in Samoa. He moved with his family to New Zealand when he was three years old. He is a citizen of New Zealand. In 1998, he came to Australia at the age of 14, but he is not a citizen of Australia. Since he has been in Australia, Mr Uelese has had an unfortunate history of criminal offences which began when he was 15 years old. A number of those offences have involved violence. He has been sentenced to terms of imprisonment. The nature of his offences and the terms of imprisonment which have been imposed are such that Mr Uelese does not satisfy the “character test” set out in s 501 of the Migration Act 1958 (“the Migration Act”). Accordingly, the first respondent (“the Minister”) had a discretion to cancel the visa which allowed Mr Uelese to remain in Australia while he remained a citizen of New Zealand.

2    On 10 May 2012, during his last period of imprisonment, Mr Uelese was advised that consideration was being given to the cancellation of his visa. On 6 September 2012, at the time that his last term of imprisonment came to an end, Mr Uelese was advised that his visa had been cancelled. The delegate of the Minister who took the decision to cancel Mr Uelese’s visa was of the understanding that Mr Uelese had three young children. The delegate accepted that the interests of those children would be served if Mr Uelese’s visa was not cancelled, but took the view that his criminal conduct outweighed any such consideration in favour of allowing him to remain in Australia.

3    Mr Uelese exercised his right to seek a review of the delegate’s decision by the Administrative Appeals Tribunal (“the AAT”). The deliberations of the AAT were guided by a direction made under s 499 of the Migration Act – Direction No 55: Visa Refusal and Cancellation Under Section 501 (“Direction 55”), which commenced on 1 September 2012. That direction gave guidance to decision-makers, including the AAT, about the matters to be taken into account when evaluating whether a visa should be cancelled under s 501 of the Migration Act. Under the headings “General Guidance” and “Principles” the following is said:

6.2    General Guidance

(1)    The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

…

(3)    The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizens [sic] visa under section 501. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B of this Direction.

6.3    Principles

(1)    Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2)    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(3)    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(4)    Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(5)    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(6)    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

4    The following directions are given about the way in which the discretion of a decision-maker is to be exercised:

8.    Taking the relevant considerations into account

(1)    Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B. Separating the considerations for visa holders and visa applicants recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

(2)    In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3)    Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa.

(4)    Primary considerations should generally be given greater weight than the other considerations.

(5)    One or more primary considerations may outweigh other primary considerations.

5    Further, more specific directions are then given about the assessment of particular considerations, both primary and secondary.

6    Mr Uelese was legally represented before the AAT. After a hearing on 30 and 31 October 2012, the decision of the AAT was given on 14 November 2012. The AAT dealt with both the primary and secondary considerations stated by Direction 55. The AAT concluded, having stated its view about those matters which weighed in favour of cancelling Mr Uelese’s visa (including the risk that he might commit further offences) and the matters which weighed against the cancellation of his visa (including the interests of the three children to whom he had referred in material in support of his case), that the risk of further harm to the Australian community by Mr Uelese was unacceptable. The AAT therefore affirmed the decision of the delegate.

7    On 18 December 2012, Mr Uelese commenced proceedings in this Court, relying on s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). The decision made by the AAT was a “privative clause decision” under the Migration Act and the procedure invoked by Mr Uelese was unavailable to him as a result. However, on 4 February 2013, Yates J ordered that the matter proceed on the basis that it was an application brought under s 476A(1)(b) of the Migration Act. The consequence is that the decision of the AAT is reviewable for jurisdictional error, but not otherwise. In particular, the merits of the decision to cancel Mr Uelese’s visa are not reviewable in this Court and the Court has no power to interfere with factual findings made by the AAT. Those restrictions have important consequences for some of the matters upon which Mr Uelese wishes to rely in this Court, which are referred to below.

Mr Uelese’s submissions

8    As earlier indicated, in the proceedings before the AAT Mr Uelese was legally represented. A number of written statements were presented to the AAT – from Mr Uelese, members of his family, his de facto partner and others, including a psychologist. Oral argument was advanced on his behalf. In the present proceedings, Mr Uelese was not legally represented. An application for legal aid was declined. However, at one stage I adjourned the proceedings so that he could construct some written submissions with the assistance of a member of his partner’s family. Those written submissions identified six criticisms of the decision of the AAT, and invited the Court to treat them as errors of law. Those six criticisms are identified and addressed hereunder.

1.    The AAT failed to consider the interests of two of Mr Uelese’s five children

9    Section 500(6H) of the Migration Act 1958 provides:

If:

(a)    an application is made to the Tribunal for a review of a decision under section 501; and

(b)    the decision relates to a person in the migration zone;

the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.

10    In the statements provided to the AAT shortly before it heard the matter, reference was made by a number of people to Mr Uelese having three children, the children of his relationship with Ms Peta Fatai. Mr Uelese’s statement said, for example:

I am Peter Uelese, 28 years off [sic] age born in Samoa went to NZ when I was 3 yrs off [sic] age then came to Australia at the age off [sic] 14 on June 1st 1998. I have 3 children two girls & one boy to my partner Peta Fatai & my relationship with all my children & with my family is very solid. I have a very strong bond with all my children, my parents, my siblings which one off [sic] my siblings have also had children. I also have a strong bond with all my extended family, my uncles aunties & all my cousins & their children who all reside here in Australia.

11    Mr Uelese’s father said:

Peter is engaged to Peta Fatai to which he shares 3 kids with her from the ages of 11 and younger. Peter being away from his children has had a major impact not only on him but most importantly his children. His family and kids have always been his first priority. I can see a change of heart in my son and that he wants to be more involved in his kids lifes [sic] as he has missed out so much already. Watching my grandchildren growing up without their father around kills me inside as he is missing out on important times where they need their father the most.

12    Mr Chris Probets, Forensic and Counselling Psychologist, said in a report:

Peter Uelese reported that he has a very good relationship with his fiancée Peta Fatai who was born in Australia and whose parents are from Tonga. She is the mother of his three children, Lauren aged 11, Ropati aged eight and Leilani aged six. He reported that his wife and children have been visiting him in prison and in the detention centre on a regular basis and that they plan to marry early next year.

13    Those statements about Mr Uelese’s family circumstances reflected a position Mr Uelese had taken earlier than the proceedings in the AAT. Judge Ashford of the New South Wales District Court was also told in a pre-sentence report in late 2011 that Mr Uelese had three children.

14    Despite these factual representations to the effect that Mr Uelese had three children whose interests required consideration, it emerged in the proceedings before the AAT that he also has two other children. Mr Uelese and Ms Fatai appear to have separated in late 2005. Apparently, during a relationship with Ms Jessie Vakauta, two further children were born. This circumstance formed no part of Mr Uelese’s intended case before the AAT. Information about the additional children emerged in the course of the cross-examination of Mr Uelese and Ms Fatai. The AAT dealt with this additional material early in its decision, saying (at [4]):

4     Mr Uelese has three children aged eleven, eight and six with Ms P Fatai whom he says he plans to marry early in 2013 if he is permitted to stay in Australia. Mr Uelese also has two other children aged approximately five and four. The information about the other two children came to light during cross-examination of Ms Fatai. The effect of s 500(6H) of the Migration Act 1958, which was acknowledged by Mr Uelese’s representative, was that the Applicant was prevented from eliciting oral evidence that may have supported his case in relation to these children as there was no reference to them in any written statements provided to the Minister at least two business days before the hearing.

15    In his written submissions, Mr Uelese made a number of criticisms of the approach taken by the AAT to this issue. First, he alleged that the failure to disclose the existence of his other two children was the result of advice from his legal representative, and therefore not his fault. Secondly, he argued that the AAT should have adjourned the hearing to permit the requirements of s 500(6H) (that the Minister have two days’ written notice) to be satisfied. Thirdly, he suggested that the AAT should have pursued the matter itself once it was aware of the existence of the two additional children. For the reasons which follow, none of these complaints identified a jurisdictional error in the present case.

16    The allegation against Mr Uelese’s legal representative has some echoes of the allegations made in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 (“SZFDE”). In that case, the Federal Magistrates Court of Australia found that a migration agent had acted fraudulently. The High Court found that the fraud of the migration agent acted as a fraud on the Refugee Review Tribunal, with the result that its review of certain claims for visas was affected by jurisdictional error. The High Court said (at [7]):

7    For the reasons that follow there was in this case fraud in the necessary sense which was perpetrated “on” the Tribunal, as well as upon the appellants. The result was that, in law, the jurisdiction of the Tribunal remained unexercised and mandamus and certiorari were appropriately ordered by the Federal Magistrates Court.

17    However, SZFDE is distinguishable from the present case for a number of reasons. First, in that case a fraud was found to have been practised on the applicants. Such a finding is not available in the present case. The allegations made in the submissions are insufficient to sustain a conclusion of that kind. Whatever advice was given and acted upon, it may not be concluded that the motivation of Mr Uelese’s legal representative was the fraudulent taking of fees, accompanied by conduct which served to divert the AAT from its statutory task. Secondly, there is no reason to conclude, for reasons which appear below, that the AAT was diverted from its task in the present case. On the contrary, it was confined in the steps it could take when the existence of the two additional children became known to it. Those restrictions were imposed by the Migration Act.

18    The submission that the AAT was diverted from its task of giving consideration to the interests of two of Mr Uelese’s five children relies on the guidance set out in Direction 55, which required that the interests of Mr Uelese’s children be treated as a primary consideration when assessing whether his visa should be cancelled. The AAT gave weight to the interests of three of Mr Uelese’s children. It found that their interests weighed against cancelling his visa. The AAT said (at [80] and [83]):

80    In regard to a consideration of clause 9.3 of Direction no. 55 the interests of minor children; I am satisfied from the evidence that if Mr Uelese deals with his alcohol and anger problems on his release as he has indicated he would, on balance he is likely to continue in a loving relationship with Ms Fatai and their children. Accordingly, I find that a consideration of the best interests of Mr Uelese’s children weighs against cancellation of Mr Uelese’s visa.

…

83    Notwithstanding that the best interests of Mr Uelese’s children weigh against cancelling his visa, and a consideration of clause 9.2, weighs somewhat in his favour, ultimately, an assessment of the primary considerations, and primarily the protection of the Australian community, weigh heavily in favour of cancellation.

19    It may be doubted whether that assessment would be markedly affected by taking the interests of the other two children also into account, but I need not speculate further about that. On one view, the AAT made a conscientious attempt to evaluate the material before it about the two remaining children, but found it inconclusive. As to the two further children, the AAT said (at [64]):

64    As already stated, Mr Uelese has been involved in an on and off relationship with Ms Fatai for approximately 12 years, and they have three children aged eleven, eight and six. No evidence was able to be led regarding a further two children of another woman, aged approximately five and four whose names appeared as visitors in a Department of Corrective Services Inmate Profile Document because there was no information relating to them contained in a written statement provided to the Minister at least two business days before the hearing as required by section 500(6H) of the Act. I cannot take any consideration of their situation into account in coming to a decision in this matter, although I note that Ms Fatai said that she knew their mother, and that the children come to the Uelese home. Without any information about these children, other than a small amount of information that was provided by Ms Fatai under cross-examination, I am unable to determine whether or not visa cancellation would be in the best interests of these children.

20    However, the real difficulty for Mr Uelese’s argument is that the statutory direction in s 500(6H) precluded the AAT, despite Direction 55, from paying any regard to oral evidence about matters not disclosed in writing to the Minister at least two days before the hearing. One suggested answer to this difficulty, which arises from Mr Uelese’s submissions, is that the AAT could adjourn the hearing, and should have done so. However, I appear to be bound by Full Court authority to conclude otherwise. In Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 (“Goldie”), the operation of s 500(6H) was given specific attention. Gray J (with whom R D Nicholson and Stone JJ agreed) described the purpose of s 500(6H) (and s 500(6J)) as “drastic”. His Honour said the scheme of which they were a part was “designed to disadvantage an applicant for review”. His Honour also took the view that an adjournment could not operate to overcome the effect of the scheme, saying (at [31]):

31    …Once the Tribunal began a hearing, the entitlement of the appellant to rely on information and documents crystallised. That entitlement was limited to information contained in a statement or statements given to the Minister, and to documents copies of which he had given to the Minister, at least two business days before the hearing began. The resumption of an adjourned hearing is not a new hearing.

21    Gray J applied some of these views at first instance in Milne v Minister for Immigration and Citizenship [2010] FCA 495; (2010) 52 AAR 1. On appeal, it was not necessary to deal with those matters (see Milne v Minister for Immigration and Citizenship [2011] FCAFC 41; 120 ALD 405 at [60]). In Mordechai v Minister for Immigration and Citizenship (2011) 196 FCR 509, Bennett J also applied the principles stated in Goldie saying (at [46]-[47]):

46    A further question arises whether the evidence relating to the mother's statement may have been admissible, if:

(a)    the expression “the Tribunal holds a hearing” could refer to the second day of the Tribunal hearing;

(b)    the Tribunal could have adjourned the hearing even for a few days to allow the 2 day time requirement to be fulfilled; or

(c)    the Minister had waived Mr Mordechai's need to comply with ss 500(6H) and (6J).

47    All three of these questions are answered by consideration of Goldie v Minister for Immigration & Multicultural Affairs (2001) 111 FCR 378 and Milne. …

22    Accordingly, I feel bound by authority, and by considerations of comity, to conclude that the AAT was obliged at all stages of the hearing before it (whether it was adjourned or not) to disregard any material emerging in oral evidence concerning Mr Uelese’s two youngest children.

23    For those reasons, the first of Mr Uelese’s submissions must be rejected. There was no jurisdictional error made by the AAT when it gave no weight to the interests of Mr Uelese’s two young children and did not adjourn the hearing to make further inquiries about their circumstances.

2.    Mr Uelese’s changed attitude

24    The next complaint was that the AAT failed to give sufficient weight to Mr Uelese’s claim to be a “changed man”. There are two difficulties with this submission. First, it concerns evaluation of the facts and does not identify any jurisdictional error. Secondly, it misunderstands the AAT’s findings. The AAT referred to Mr Uelese’s evidence that he had changed, but that reference did not constitute a finding to that effect by the AAT. On the contrary, the AAT went on to find that there was a real risk that Mr Uelese would re-offend. That factual finding is beyond review in the present proceedings.

3.    Misunderstanding cultural matters

25    The third criticism concerns a reference made in argument before the AAT to a pre-sentence report dated 24 November 2011. In part, referring to the matter for which Mr Uelese was to be sentenced by Judge Ashford, the report said:

…While trying to discuss the offence he laughed and his body language he was displaying was inappropriate. He did not appear to a [sic] take responsibility, comprehend the seriousness of his actions, or verbalise the affects [sic] his actions had on the victims.

26    Mr Uelese’s submission about this matter argued the following:

14.    The respondent (Minister) and the AAT have definitely misinterpreted Peter Uelese’s reaction. Peter Uelese is a migrant, originally from the South Pacific. In accordance to the customs and cultures of the South Pacific Islanders, when they felt so embarrassed and humiliated they smile to the extent that they may laugh. It is a sign of embarrassment and feeling so inferior. It is a sign of feeling guilty, disgusted and regretful of shortcomings. It is a sign of feeling so “stupid”. It is a sign of feeling so low and vulnerable.

15.    In addition, if Peter did not look directly into the eyes of interviewer of the DIAC., and if he made an odd body movement (remain looking away from the interviewer) it was a clear demonstration of feeling so guilty. If so, it is also a sign of wishing to disappear from the surface of the earth due to feeling so inferior and guilty. Peter had demonstrated in his body language as stated in the report of the Minister and the Tribunal that he is shameful of what he did.

27    I am not prepared to dismiss this suggestion. However, it does not appear to me to raise any jurisdictional issue. The reference to the pre-sentence report was only one of a number of matters referred to by the AAT in a discussion about the likelihood of Mr Uelese re-offending with serious violent conduct. That evaluation was a factual one. The possibility of a misunderstanding by the person who completed the pre-sentence report does not indicate jurisdictional error. Nor is it certain that there was such a misunderstanding in fact.

4.    The extent of an assault charge

28    One of the charges against Mr Uelese, which contributed to his criminal record, was that on 8 October 2010, in the early hours of the morning, he assaulted Ms Fatai’s mother. Mr Uelese pleaded guilty to the charge, admitting he had punched her. The prosecution had alleged that the offence was aggravated by Mr Uelese kicking her as well while she was prone on the floor. That element was found to be not proved. The Local Court therefore accepted a plea of guilty on the basis that the assault was constituted by a punch to the jaw.

29    Mr Uelese’s submission about that issue was that the AAT failed to understand that there was no (or insufficient) evidence of assault. The submission misunderstands the significance of the findings made by the Magistrate, and the significance of Mr Uelese’s plea of guilty. There was no error made by the AAT in taking this matter into account.

5.    Latest offence not “planned”

30    Mr Uelese’s submissions drew attention to the fact that in her sentencing remarks on 6 December 2011, Judge Ashford referred to a particular offence as not being a “planned offence”. The specific remarks which were referred to in Mr Uelese’s submission were not made in connection with Mr Uelese. They referred to a co-offender, who was then given a sentence of community service. In Mr Uelese’s case, Judge Ashford said there was “probably no planning”. However, her Honour obviously regarded the offence committed by Mr Uelese as a serious one nevertheless. He was already in prison serving a 16 month sentence for assault occasioning actual bodily harm. Judge Ashford sentenced Mr Uelese to a further period of full-time imprisonment of three years, but directed that he be released after a non-parole period of 18 months. Nothing in this aspect of Mr Uelese’s criminal history assists him. There was no error made by the AAT in relation to it.

6.    “On and off relationship” with Ms Fatai

31    Mr Uelese’s written submissions argued that the AAT had equated a finding that the relationship between Mr Uelese and Ms Fatai was “on and off” with a conclusion that he had no ongoing relationship with their children. The AAT did not make such a finding. The AAT found to the contrary. Apart from its finding at [80], set out earlier, the AAT said (at [69]):

69.    I am satisfied from the evidence that if Mr Uelese were to deal with his alcohol and anger problems on his release as he indicated he would, on balance he would be likely to continue in a loving relationship with Ms Fatai and their children. Mr Probets put the risk of re-offending at 20 percent if Mr Uelese undertakes the appropriate treatment and training. However, given the history to date, there is no assurance he will do so. Nevertheless, if Mr Uelese takes his role as a father seriously as he says he intends to do, then a consideration of the best interests of Mr Uelese’s children weighs against cancelling Mr Uelese’s visa.

Conclusion

32    None of the suggested errors for which Mr Uelese contended serves to identify a jurisdictional error made by the AAT. On a fair reading of the AAT decision, it does not seem to me to be the case that the AAT failed in any respect to address the matters it was obliged to take into account, or that any error has been identified, or otherwise appears, in the way it went about its task. The merits of the decision to cancel Mr Uelese’s visa, and whether he should have been given a further opportunity to comply with a reasonable standard of behaviour in this country, is not a matter with which this Court may deal.

33    The application filed on 18 December 2012 will be dismissed with costs.

Associate:

Dated:    18 April 2013