FEDERAL COURT OF AUSTRALIA

Demillo v Minister for Immigration and Citizenship [2013] FCA 629

THE COURT ORDERS THAT:

1.    The amended application filed 25 February 2013 be dismissed.

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

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

REASONS FOR JUDGMENT

BACKGROUND

1    The applicant was born in the Philippines in 1976. He arrived in Australia in 1990 at the age of 14. On 21 August 2012 a delegate of the first respondent (the Minister) decided to cancel the applicant’s class BF Transitional (Permit) visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Act). Any other visas held by the applicant were also cancelled as a result of this decision by virtue of s 501F(3) of the Act.

2    The delegate found that the applicant did not pass the character test prescribed by s 501(6). In making this finding the delegate relied upon the applicant’s numerous criminal convictions including, in particular, for a large number of offences for which the applicant was sentenced on 1 July 2011 to terms of imprisonment of 12 months or more. The delegate then considered whether or not the discretion to cancel the applicant’s visa should be exercised. He concluded that the visa should be cancelled.

3    The applicant applied to the Administrative Appeals Tribunal (the Tribunal) for merits review of the delegate’s decision by application filed with the Tribunal on 6 September 2012. After a Tribunal hearing held on 25 October 2012, the Tribunal gave its decision on 16 November 2012. By its decision the Tribunal affirmed the delegate’s decision.

4    The proceeding now before me was commenced by the applicant on 3 December 2012. On 25 February 2013 the applicant filed an amended application raising 14 grounds of review.

5    The decision of the Tribunal was one made under s 500 of the Act. It is therefore a “privative clause” decision pursuant to s 474 of the Act. Accordingly, jurisdiction to review the Tribunal’s decision lies under s 476A of the Act.

THE TRIBUNAL’S DECISION

6    The Tribunal was satisfied the applicant did not pass the character test. It therefore considered whether or not it should exercise the discretion to cancel the applicant’s visa. In doing so, the Tribunal had regard to Ministerial Direction No 55 (the Direction) and the following “primary” considerations referred to in the Direction:

(1)    Protection of the Australian community from criminal or other serious conduct.

(2)    The strength, duration and nature of the person’s ties to Australia.

(3)    The best interests of minor children in Australia.

(4)    Whether Australia has international non-refoulement obligations to the person.

7    The Tribunal took each of these considerations into account before arriving at its decision. As to primary consideration (1), the Tribunal observed that the applicant showed “high frequency repetitive disregard for the law with his offences increasing in seriousness”. The Tribunal also observed that “the applicant’s continual law-breaking makes it appear that the risk of re-offending is very high”.

8    The Tribunal then turned to primary consideration (3) which was relevant in the applicant’s case because he had a young daughter (A), then about eight years of age, who lived with her mother (Ms H), the applicant’s partner. In relation to this consideration the Tribunal said:

35    A primary consideration is the best interests of the applicant’s daughter, A, born in 2004 and now aged eight and a half years. A has always lived with her mother Ms H. By contrast, the applicant has been in jail during A’s lifetime: 13 February to 16 March 2005, 6 April to 16 April 2005, 28 July 2005 to 13 August 2006, 9 January to 8 July 2007, 26 March to 24 October 2008, 10 February to 13 February 2010 and 13 April 2010 to September 2012 (and thereafter in Immigration detention). That is, of A’s approximately 102 months of life the applicant has been out of jail for just 29, separated from her mother for about two of those years and drug addicted and/or in fear of arrest during the balance.

36    In general, children’s best interests are best served by living with their natural parents. Applying Ministerial Direction 55 clause 9.3, I take into account the long periods of absence, lack of actual parenting behaviour, the fact that A has a constant and caring mother, the likelihood that the applicant will re-offend and be absent from the relationship in the future, and the dubious nature of the quality of parenting that the applicant would be able to provide if he were to remain in Australia. I find that only a minor degree of weight should be given to the likelihood of detriment to A if the applicant were to be deported.

9    After referring to the two other primary considerations (which the Tribunal considered did not assist the applicant) the Tribunal turned to consider other non-primary considerations which it was required by the Direction to take into account. In this context, the Tribunal concluded that there would not be any serious impact on the applicant’s immediate family if he was deported except, it said, for Ms H and A. The Tribunal expressed its ultimate conclusion in these terms:

40    The applicant fails the character test and, applying the Ministerial Direction in the exercise of my discretion, it is my view that his visa should be cancelled. The applicant has a long criminal history escalating in seriousness and showing little sign of reformation. There are significant risks of re-offending with an unacceptable risk of harm to the community if he were allowed to remain. I have taken into account as a primary consideration the best interests of A, and my view is that those interests are not likely to be seriously affected by cancellation of the visa.

JURISDICTIONAL ERROR

10    The 14 grounds relied upon by the applicant in his application for judicial review do not expressly assert the Tribunal committed jurisdictional error. Most of the grounds specify what is referred to as an error of law as if that was itself an available ground of review. As already mentioned, the jurisdiction invoked in this proceeding arises under s 476A of the Act. Accordingly, for the applicant to succeed in the proceeding, it is necessary for him to establish that the Tribunal’s decision was affected by jurisdictional error.

11    Many of the grounds relied upon by the applicant assert that he was “denied justice” by the Tribunal. Some of these complaints may be taken as raising allegations that the applicant was denied natural justice with a consequence that the Tribunal fell into jurisdictional error. The argument that took place before me proceeded on that basis.

12    The main complaints raised by the applicant in his grounds were essentially as follows:

    The Tribunal excluded evidence which was critical to the decision under review (Grounds 2 and 4).

    The Tribunal failed to consider evidence which was critical to the decision under review (Ground 3).

    The Tribunal permitted the Minister to deliver a large volume of documentary material (consisting of approximately 575 pages of subpoenaed material which became Exhibit R2, and the Minister’s Statement of Facts, Issues and Contentions) without allowing the applicant sufficient time to consider or respond to such material (Grounds 5 and 6).

    The Tribunal failed to allow the applicant additional time to seek legal advice (Grounds 9 and 10).

Other grounds relied upon by the applicant may be put aside on the basis that they do no more than complain about the merits of the Tribunal’s decision or the applicable law (Grounds 12, 13 and 14), quibble with the Tribunal’s evaluation of factual matters (Ground 1), or complain in a general way about the Tribunal’s approach to fact finding (Ground 7) and matters of practice and procedure (Grounds 8 and 11).

PROCEDURAL HISTORY IN THE TRIBUNAL

13    Before considering the possibility that there may have been a denial of natural justice by the Tribunal, it is necessary to say something more concerning the procedural history of the applicant’s application for merits review.

14    On 28 September 2012, the Tribunal made a number of procedural directions. These provided:

1.    By 10 October 2012, the applicant must give to the Tribunal and the respondent any evidence on which he intends to rely, including statements from any witnesses he intends to call to give evidence at the hearing.

2.    By 17 October 2012, the respondent must give to the Tribunal and the applicant a Statement of Facts and Contentions and any further evidence on which it intends to rely, including a document setting out the applicant’s record of convictions with the dates of both the offence and the conviction.

3.    By 22 October 2012, the applicant must give to the Tribunal and the respondent any further evidence in reply.

15    On Friday, 12 October 2012, Mr Khalsa, a registered migration agent, wrote to the Tribunal advising that he had recently been appointed to act for the applicant in the matter. Mr Khalsa indicated that he was seeking access to relevant documents and that, although he had statements of witnesses, he did not have all the evidence that he intended to rely upon and therefore required additional time. He indicated that he could produce such evidence on Monday, 15 October 2012 but that some of the evidence he needed to rely on would take longer to obtain. He did not indicate what that evidence was or how much additional time would be required to obtain it.

16    On Tuesday, 16 October 2012, Mr Khalsa forwarded to the Tribunal a number of “letters in support” of his client, from people who he said he would like to call to give evidence. The letter indicated that it might present a problem for some of them if required to attend the hearing on the appointed date due to work issues. The letter did not seek any adjournment of the scheduled hearing.

17    Early in the afternoon of Monday, 22 October 2012, Mr Khalsa was contacted by the Tribunal. According to Mr Khalsa, he was told that the Tribunal would make a decision in relation to his request for an adjournment on the morning of Thursday, 25 October 2012, that being the day upon which the hearing was scheduled to commence. Mr Khalsa said that he was also told that the Tribunal was still expecting the applicant’s evidence to be served by 5.30pm that day.

18    Mr Khalsa then prepared a written submission dated 25 October 2012 described as a “Request for Adjournment”. In this document Mr Khalsa advanced three reasons in support of an adjournment application on behalf of the applicant. Mr Khalsa said:

Firstly, I am only a Migration Agent and do not have experience in the Administrative Appeals Tribunal. I took on this matter thinking that a Solicitor would run the Hearing. However, the Solicitor requires additional time to prepare for the Hearing. By allowing me to run the Hearing Robert Demillo would be disadvantaged.

Secondly, there is the amount of documents that need to be covered. The second lot of Documents I only received after 5:30 on 23 October. This gives me only one day to read the documents and no time to put on evidence.

Thirdly there have been problems obtaining evidence to support Robert Demillo as neither his partner or myself has standing with State Government Departments. By allowing time for a Solicitor to be instructed, he will be able to obtain documents.

19    The Tribunal hearing commenced on 25 October 2012. Mr Khalsa appeared for the applicant and Mr Temby, solicitor, appeared for the Minister. At the commencement of the hearing, Mr Khalsa handed up a copy of his submissions concerning the adjournment sought by the applicant.

20    During exchange between Mr Khalsa and the Tribunal, Mr Khalsa indicated that Ms H had been attempting to obtain access to documents relevant to two particular matters, first, the applicant’s behaviour while in prison and, second, the extent of the applicant’s contact with his daughter while he was in prison. Some of the documents that were served on Mr Khalsa on 23 October 2013 related to these matters.

21    The Tribunal asked Mr Temby whether documents that were the subject of late production by the Minister related to either of the matters referred to by Mr Khalsa. Mr Temby indicated that they did. However, he also indicated, in response to questioning by the Tribunal, that it was accepted by the Minister that the applicant had been visited by his daughter on a regular basis while he was in prison. Mr Temby also accepted that there was no “controversy” about the applicant’s behaviour while he was in prison.

22    The Tribunal refused the application for an adjournment. It gave oral reasons for doing so. In summary the Tribunal said:

    The applicant was notified of the hearing date on 6 September 2012.

    The matter was before the Tribunal for directions on 28 September 2012. No application to adjourn the hearing was made on that occasion.

    Though it was said that a solicitor who might be retained required more time to prepare, no reasons were given as to why this was so.

    The problems referred to by Mr Khalsa fell away once it was accepted that there were records relating to the applicant’s behaviour in prison in the documents tendered by the Minister and that there was no dispute that there had been regular visits by the applicant’s daughter when he was in prison.

    The applicant had ample notice of the hearing date.

23    The Tribunal also observed that it appeared unlikely that there would be any prejudice to the applicant in anything that was put to the Tribunal by Mr Khalsa.

24    It was in those circumstances that the hearing of the review then commenced. Mr Khalsa began by identifying the main issue as “the rights of the child” which the Tribunal agreed was a primary consideration. The following exchange then took place:

MR KHALSA: Yes. I think if we proceed to hear the daughter’s statement, verbal statement. She didn’t make a written statement because of her age.

SENIOR MEMBER: Mr Khalsa, there’s a requirement which is set out in the Act, which is that notice of evidence or documents must be given not less than two days before the hearing. I’m not aware of any statement or intimation of what it might be that you would request the daughter - how old is she?

MR KHALSA: Eight years old.

SENIOR MEMBER: Eight years old. I don’t know what it is that you would want or why you would want an eight year old girl to be giving evidence in a case such as this, but I am bound by the Act, as you are. Mr Temby, what do you say about the suggestion that the daughter should be called to give oral evidence?

MR TEMBY: My position is that it’s not permitted because her statement hasn’t been provided two days before the hearing. I don’t have any submissions beyond that about the merits or otherwise of it occurring.

SENIOR MEMBER: Yes. Mr Khalsa, the Act provides that no evidence be given unless that notice is given more than two days before the hearing. Unless you can point to some notice that has been given in terms of the evidence that she would give, I’m not going to permit you to call her.

MR KHALSA: Right. Well, the only matter in there was on the Monday in there I requested that she be one of the – that the daughter give evidence, and said because she was only eight years old, written evidence by her would not - I didn’t think would be appropriate.

SENIOR MEMBER: The Act doesn’t provide that a witness has to give written evidence. The Act provides that a statement or notice of the content needs to be given. That hasn’t been given. I’m not sure what you’re referring to about notice on Monday. What are you referring to?

MR KHALSA: When I sent the statement by his father, in there I also said that the daughter would be a witness.

25    The hearing then continued. No evidence was given by the daughter. Ms H gave evidence as did the applicant and the applicant’s father.

26    After the Tribunal completed the taking of the evidence of the applicant and his witnesses the Tribunal commenced to examine the documentary evidence including, in particular, Exhibit R2. Early in the course of Mr Temby’s discussion of the documentary evidence it became apparent that the Minister’s Statement of Facts, Issues and Contentions (Statement of Facts), which had been received by the Tribunal on 18 October 2012, may not have reached the applicant or Mr Khalsa. The Tribunal then suggested that Mr Khalsa would be given “some time in which to absorb” what was set out in the respondent’s Statement of Facts and Exhibit R2. Mr Temby agreed that he was content to proceed in that way. Mr Temby then took the Tribunal through at least some of the documents in Exhibit R2. The transcript shows that this took a little less than one hour. The Tribunal then took a luncheon adjournment.

27    After the hearing resumed, the Tribunal raised with Mr Khalsa the matter of the Statement of Facts and Exhibit R2, asking Mr Khalsa whether he needed time to respond to them. Mr Khalsa sought a week which the Tribunal suggested was not feasible. After further discussion the Tribunal indicated that it would require Mr Temby to address it that afternoon, following which the applicant would be given further time to respond in writing and orally. However, Mr Khalsa indicated that it would be sufficient if he was given an opportunity to respond in writing, and that he did not wish to respond orally. The Tribunal then required the applicant to submit a written submission by 11.00am the following Monday, 29 October 2012. Mr Temby then made oral submissions. The following Monday, in accordance with the Tribunal’s direction, the applicant lodged his written submission prepared by Mr Khalsa.

28    The submission prepared by Mr Khalsa was both detailed and thoughtful, extending to some 23 pages. It acknowledged that the applicant failed the character test, but sought to persuade the Tribunal that it should refrain from cancelling the applicant’s visa on discretionary grounds.

CONSIDERATION

29    The first matter to be considered is whether the applicant was denied procedural fairness. The relevant principles were recently considered by the High Court in Minister for Immigration and Citizenship v Li (2013) 297 ALR 225. That case concerned the refusal of an adjournment by the Migration Review Tribunal (MRT) pursuant to the exercise of its statutory power to adjourn the review of a decision under s 363(1)(b) of the Act. It was recognised that an unreasonable refusal by the MRT to grant an adjournment could result in jurisdictional error if it was established that the Tribunal did not conduct a review in the manner required by the Act: see Hayne, Kiefel and Bell JJ at [77]-[87].

30    There was nothing unreasonable about the Tribunal’s decision to refuse the adjournment sought by the applicant in this matter. The concession obtained by the Tribunal from the Minister concerning the content of Exhibit R2 and the additional time given to the applicant within which to make submissions accommodated all of the applicant’s concerns regarding the late service of Exhibit R2. Indeed, no attempt was made before me to demonstrate that the late service of any of this material or the late service of the Statement of Facts caused the applicant any genuine prejudice.

31    A related matter concerns the failure of the Tribunal to adjourn the hearing so that the applicant could be represented by a solicitor instead of a registered migration agent. There was nothing unreasonable in the Tribunal proceeding to hear the applicant’s application for review in circumstances where he was not represented by a solicitor. The applicant had ample opportunity to arrange to be represented by a solicitor at the hearing on 25 October 2012. He was first notified of the hearing date on or about 6 September 2012.

32    The final matter to be considered is whether the Tribunal committed a jurisdictional error by failing to permit the applicant to call oral evidence from his daughter. In my view there is no substance to this complaint. As the Tribunal noted at the time Mr Khalsa informed it that the applicant proposed to call A, the Tribunal’s hands were tied by s 500(6H) of the Act because no written statement had been given to the Minister in accordance with the requirements of that provision. Moreover, Mr Khalsa did not say what evidence he wished to elicit from A. As the Tribunal asked rhetorically: “I don’t know … why you would want an eight year old girl to be giving evidence in a case such as this [?]”. Both the applicant and his partner gave evidence as to the applicant’s relationship with his daughter, none of which was challenged. In particular, both gave evidence directed to showing that A’s interests would be best served if the applicant was not deported. Even so, it seems clear that the Tribunal was heavily influenced by the significant amount of time the applicant had spent away from his daughter while he was in prison coupled with what the Tribunal assessed to be a very high risk of the applicant re-offending: see those paragraphs from the Tribunal’s decision extracted at [8] above.

DISPOSITION

33    The amended application filed 25 February 2013 will be dismissed. The applicant must pay the Minister’s costs.

Associate:

Dated:    27 June 2013