FEDERAL COURT OF AUSTRALIA

Tera v Minister for Immigration & Citizenship [2013] FCA 371

THE COURT ORDERS THAT:

1.    The appeal be dismissed as not competent.

2.    The application in lieu be dismissed.

3.    The appellant/applicant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

1    Rimaati Tera is a New Zealand citizen. He came to Australia in February 2010 on a Class TY Subclass 444 Special Category (Temporary) visa. In October last year, after notifying Mr Tera of an intention to consider cancelling his visa and giving him an opportunity to respond, a delegate of the Minister for Immigration and Citizenship cancelled the visa on character grounds. The decision was based on Mr Tera’s substantial criminal record. Mr Tera has a long criminal history, spanning over 30 years. Violence was a feature of many of the offences. Some of them involved sexual violence. He has more than 50 convictions in New Zealand and has been sentenced to terms of imprisonment of 12 months or more on at least seven occasions. Mr Tera did not disclose any of these convictions before coming here. Indeed, on his incoming passenger card he declared that he had no criminal convictions. In the short time he has been in Australia, he has been convicted of four offences involving violence and dishonesty and sentenced on the first two to 12 months imprisonment and on the second two to two years imprisonment.

2    Mr Tera applied to the Administrative Appeals Tribunal for a review of the delegate’s decision. The application was heard by Handley DP, who dismissed it.

3    On 20 December 2012 the tribunal sent Mr Tera a letter advising him of the decision and enclosing a copy of the reasons for it. At the same time it told him that if he thought the decision was wrong he could appeal to this Court on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) and that he had 28 days in which to do so. Within 28 days Mr Tera filed a notice of appeal. But the tribunal’s advice was wrong. Mr Tera had no right to appeal. Section 474 of the Migration Act 1958 (Cth) deprived him of the right he otherwise would have had under s 44 of the AAT Act. For this reason the appeal is not competent. But s 44 did not deprive Mr Tera of his right to have the tribunal’s decision set aside for jurisdictional error, including because of a failure to afford him procedural fairness: cf. Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476. In this instance the Court’s jurisdiction is conferred by s 476A(1)(b) of the Migration Act.

4    As Mr Tera is unrepresented, I propose to treat the notice of appeal as an application for judicial review. If Mr Tera has a remedy, the remedy is a writ of certiorari to quash the tribunal’s decision for jurisdictional error and mandamus to require it to reconsider it according to law. See Migration Act, s 476A(2). Quite properly, this was a course to which the Minister consented.

5    The notice of appeal identifies the question of law as “procedural prejudice/discrimination”. The ground of appeal is expressed in the same way. The Court is invited to make a finding in the following terms:

Unfair due to no proper legal representation provided and no financial contribution.

6    Although orders were made for the filing of submissions, Mr Tera filed no submissions in support of his case. At the hearing, he complained that he was unable to say anything as he had no lawyer. He said he had applied for legal aid but had heard nothing about his application. With Mr Tera’s consent, inquiries were made of the Legal Aid Commission of NSW. Those inquiries revealed that Legal Aid was refused on 5 March 2013 and Mr Tera was informed the next day. Legal Aid advised that no appeal was filed and no further application received. Mr Tera provided no proof that any such application had been made.

7    When this matter first came before me for directions on 20 February 2013 Mr Tera said he had applied for legal aid but had not heard back. At that time I said he should have the opportunity to make further attempts to obtain legal assistance. At the same time I expressed my concern not to let the matter languish. Mr Tera was then and remains in detention in Villawood Immigration Detention Centre. On 6 March 2013 Mr Tera told me that he had been refused legal aid and I referred Mr Tera for pro bono legal assistance under r 4.12 of the Federal Court Rules 2011 (Cth). I fixed the hearing date with a view to ensuring that there was sufficient time for assistance to be obtained. But attempts to find a lawyer willing to take the case were unsuccessful.

8    Mr Tera did not formally apply for an adjournment but it was reasonable to infer that that is what he wanted. In all the circumstances I was not disposed to adjourn the hearing. Mr Tera has had sufficient opportunity to obtain legal representation. I did not believe that an order for an adjournment would be likely to ensure that he would receive it. I therefore determined to proceed with the hearing.

9    At this time Mr Tera said he had five points to make:

1.    Racial discrimination;

2.    Racial prejudice;

3.    Conflict of interest;

4.    Professional negligence; and

5.    Incompetence.

10    He did not expand upon these points, save to say that he had not been given proper representation for his case. He said this psychologically affected him and prejudiced his chances. Again he pleaded that he needed legal representation.

11    The delegate’s decision was made under s 501 of the Migration Act. Section 501 entitles the Minister to cancel a visa if the Minister reasonably suspects that the visa-holder does not pass the character test and the visa-holder does not satisfy the Minister that he (or she) does. Section 501(6) relevantly provides that a person does not pass the character test if the person has a substantial criminal record (as defined in subs (7)). Subsection 7 defines a substantial criminal record for the purpose of the character test to include being sentenced to a term of imprisonment of 12 months or more. Mr Tera plainly meets this definition. The Minister therefore had the power, though not the obligation, to cancel the visa.

12    Although the power is conferred on the Minister, the Minister may delegate its exercise (see s 496). The delegate, like the Minister, had a discretion whether or not to do so.

13    On review the tribunal was entitled to exercise all the powers and discretions of the delegate (AAT Act, s 43(1)). It stood, in effect, in the shoes of the delegate (Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40]). Both the delegate and the tribunal were bound to exercise the discretion as to whether to cancel the visa in accordance with Direction No. 55 – Visa refusal and cancellation under s 501 (“Direction 55”). This is a direction that was issued by the Minister under s 499(1) of the Act. Section 499(2A) provides that “a person or body” must comply with such a direction. Direction 55 came into effect on 1 September 2012 and affects all decisions on the exercise of the discretion to refuse or cancel a visa under s 501 from that date.

14    After satisfying himself that Mr Tera did not pass the character test, the Deputy President considered whether or not to exercise the tribunal’s discretion not to cancel the visa by reference to Direction 55. He referred to the principles set out in the Direction and the considerations it mandates, foremost among which is the protection of the Australian community. Having considered all the evidence, he concluded that there was a need to protect the Australian community from the sort of harm which Mr Tera had inflicted over an extended period of time and that there was a significant risk of him further offending which should not be tolerated. The Deputy President noted that Mr Tera had been in Australia for less than three years and has spent more than half that time in prison. He found that he has limited connections with the Australian community and substantial family ties in New Zealand. He referred to evidence Mr Tera had given about a threat to his life from New Zealand gang members. He neither accepted nor rejected that evidence, merely noting the absence of independent evidence to support it. Nevertheless, he said that “one would assume this is a problem that can be managed by the New Zealand police”. He also referred to Mr Tera’s medical problems but said there was no evidence to suggest that they could not be adequately addressed by New Zealand health services.

15    There is no basis to conclude that Mr Tera was denied procedural fairness. I take it that he was given access to all the material upon which the delegate relied and which was placed before the tribunal. He certainly made no complaint that he had not. He had a proper opportunity to put his case. There is no evidence of prejudice or discrimination. Neither, as the Minister submitted, is there any indication that the tribunal failed to approach its task with an open mind. Mr Tera appeared before the tribunal without the benefit of legal representation. That undoubtedly put him at a disadvantage. But the disadvantage does not amount to a denial of procedural fairness. In a civil proceeding procedural fairness does not require that legal representation be afforded to a person at risk of an adverse determination. Although the tribunal was bound by the requirements of procedural fairness, it was not bound to see that Mr Tera had legal representation: Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20 at [24]. There is no reason to disturb the tribunal’s decision.

16    The appeal must be dismissed as not competent. The application in lieu must also be dismissed. Mr Tera should pay the Minister’s costs.

Associate:

Dated:    23 April 2013