FEDERAL COURT OF AUSTRALIA

Sauvao v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 827

THE COURT ORDERS THAT:

1.    A writ of certiorari issue to the Second Respondent quashing its decision dated on 20 November 2012 in Editor Sauvao v Minister for Immigration and Citizenship [2012] AATA 817.

2.    The proceeding be remitted to the Second Respondent to be heard and decided according to law.

3.    The First Respondent pay the Applicant’s costs of this application.

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

REASONS FOR JUDGMENT

1    The applicant applies to quash the decision of the Administrative Appeals Tribunal (‘the Tribunal’) delivered on 20 November 2012 in which the Tribunal upheld a decision of the Minister to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa (‘the visa’) on the ground that the applicant did not satisfy the character test set out in s 501 of the Migration Act 1958 (Cth) (‘the Act’): see Editor Sauvao v Minister for Immigration and Citizenship [2012] AATA 817.

FACTS

2    The applicant was born in 1985 in Western Samoa (‘Samoa’) and is a citizen of New Zealand. In December 1991 the applicant first arrived in Australia from Samoa and was cared for by his uncle, by whom the applicant had been adopted, in a family group of 16 members in Queensland. In February 1996, and at the age of 11, the applicant returned to New Zealand where he resided with an aunt, and thereafter with his mother upon her return from Samoa. When the applicant was 17, he moved with his mother back to Samoa.

3    The applicant returned to Australia in April 2003 where he remained until February 2005. He departed Australia again for Samoa for approximately four weeks, returning in March 2005, having been issued with the visa. At that stage he was 19 years of age.

4    In 2004 the applicant committed a driving offence. This offence, although duly recorded, does not appear to have resulted in any significant penalty. However, from 14 June 2006 the applicant engaged in numerous criminal offences including public nuisance, driving with low range prescribed concentration of alcohol, driving an uninsured and unregistered vehicle, driving with a high range prescribed concentration of alcohol, driving while disqualified and failing to appear in accordance with bail granted undertakings.

5    On 25 July 2007 the applicant was convicted of assaulting a police officer in the execution of his duty. On 19 January 2009 he was charged (but no conviction was recorded) of wilful damage and also received a penalty (unspecified) of assault occasioning bodily harm whilst armed/in company. In 2009 the applicant committed acts of public nuisance and common assault, and also breached his conditions of bail.

6    On 11 June 2010 the applicant was convicted of assaults occasioning actual bodily harm and in November 2010 convicted of urinating in a public place; on 20 April 2011 the applicant was convicted of assaulting or obstructing a police officer; on 31 October 2011 the applicant was convicted of a breach of suspended sentence and breach of probation order; and on 24 February 2012 he was again convicted of breaching the probation order.

7    Based upon this history, a delegate of the Minister determined to exercise the Minister’s discretion to cancel the visa on 16 July 2012 pursuant to s 501(2) of the Act given that the applicant did not satisfy the character test, as defined by ss 501(6) and 501(7) of the Act. The applicant accepts that he fails the character test, but challenges the decision of the Tribunal on discretionary considerations.

LEGISLATIVE PROVISIONS

8    Pursuant to s 499 of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if the directions concern the performance of those functions or the exercise of those powers.

9    Direction no. 55, which came into operation on 1 September 2012 (‘the Direction’), contains principles which are expressed to:

Provide a framework within which decision-makers should approach their task of deciding whether to exercise their discretion to cancel or refuse a person’s visa under s 501.

10    Those principles are contained within paragraph 6.3 of the Direction, which states:

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.

11    The Direction contains several ‘primary’ and ‘other’ considerations to which, where relevant, the decision-maker must pay regard when considering exercising the discretion to refuse or cancel a visa: paragraph 7(1)(a). The primary considerations for visa holders are contained in paragraph 9, and are as follows:

Primary considerations – visa holders

(1)    In deciding whether to cancel a person's visa, the following are primary considerations:

(a)     Protection of the Australian community from criminal or other serious conduct;

(b)     The strength, duration and nature of the person's ties to Australia;

(c)     The best interests of minor children in Australia;

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

12    The Tribunal found that the primary consideration most relevant to the applicant’s circumstances was the protection of the Australian community, given his conviction for the crimes of violence he committed. The second primary consideration relevant to his circumstances was the strength, duration and nature of the applicant’s ties to Australia. Further mandatory considerations attach to each of these primary considerations, namely:

(a)    In respect of the protection of the Australian community, clause 9.1(2) of the Direction states that a decision-maker should also give consideration to the nature and seriousness of the person’s conduct to date. In doing so, the decision-maker must have regard to, inter alia, the ‘sentence imposed by the courts for a crime or crimes’: paragraph 9.1.1(1)(e).

(b)    When considering strength, duration and nature of the applicant’s ties to Australia, a decision-maker must have regard to, inter alia, the ‘strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia’: paragraph 9.2(1)(b).

APPLICATION TO THIS COURT

13    The appeal against the decision of the Tribunal is made pursuant to s 476A(1)(b) of the Act. By s 476A(2), the jurisdiction of this Court is the same as that of the High Court under s 75(v) of the Constitution with the consequence that the applicant can only succeed on his application if he establishes that the decision of the Tribunal is affected by jurisdictional error: Plaintiff s157/2002 v Commonwealth (2003) 211 CLR 476 at [38], [76]; Bhullar v Minister for Immigration and Citizenship [2010] FCA 1337 at [5]; Oliver v Minister for Immigration and Citizenship [2011] FCA 534 at [3].

14    The applicant relies upon six grounds of review in establishing such jurisdictional error. For the reasons below, one such ground is successful, namely that the Tribunal failed to take into account applicant’s employment links to relevant people in Australia. The Court will address this ground at the outset.

Failure of the Tribunal to take into account the applicant’s employment links

15    As noted above at [12], by virtue of considering strength, duration and nature of the applicant’s ties to Australia, the Tribunal was required to have regard to the applicant’s employment links with relevant persons within Australia: the Direction, paragraph 9.2(1)(b).

16    There was evidence before the Tribunal that the applicant had been engaged by Action Formwork Construction as a full-time labourer since late 2010 until he was involved in a motor vehicle accident in November 2011. The applicant believes that he had a ‘very good relationship with [his] boss and co-workers’, and expressed certainty that he would again be employed by Action Formwork Construction should his visa not be cancelled. In April 2012 the applicant commenced working for four days a week on light duties, such work being performed for a host employer in return for Work Cover payments (‘the alternative employer’).

17    Further, there was a letter before the Tribunal from Ioamesone Sauvao, a sister of the applicant. Such letter incorporated the following paragraph:

I am currently employed by a well reputable formwork company called Mitcon Construction Pty Ltd based in Adelaide, South Australia. I have made arrangements with my company for Editor to precede [sic] permanent employment as soon as possible.

I feel Editor would do very well for himself if he were to work & reside here in Adelaide and that would benefit his future.

18    The decision of the Tribunal does not refer to either the applicant’s employment by Action Formwork Construction, his work with the alternative employer, nor his alleged prospective employment with Mitcon Construction Pty Ltd. Regardless, the Minister submits that this ground of review should fail because either the Tribunal did take into account the applicant’s employment circumstances by reference to ‘light work’, or the evidence adduced by the applicant before the Tribunal did not show any current employment links to relevant people within Australia as required by paragraph 9.2(1)(b) of the Direction. In the alternative the Minister submits that should the Court find that the applicant’s employment evidence was relevant, and that the Tribunal failed to take it into account, such evidence is not sufficiently significant to justify the decision of the Tribunal being quashed.

The Tribunal’s reference to ‘light work’

19    The Minister submits that the reference in the decision of the Tribunal at [56] to the fact that the applicant ‘suffers the continuing effects of his motor vehicle accident which currently restrict him to light work’ reflects that the Tribunal did take the applicant’s employment circumstances into account, but did not regard them as relevant.

20    The Tribunal’s statement reveals that the relevant statement goes towards the problems likely to be experienced by the applicant if returned to New Zealand, rather than any consideration of the applicant’s employment links to relevant persons within Australia. The Tribunal observed at [55]–[58]:

Impediments to re-establishment and Basic Living Standards

[55] Ms Pasene Dunn said Mr Sauvao would “backslide” if he were to return to New Zealand. She said his only family there would be his older brother whom she described as “bigger” than Mr Sauvao and as “in and out of jail” for robbery and armed robbery offences.

[56] Mr Sauvao said there is less work available in New Zealand and his chances of finding employment are limited. He also suffers the continuing effects of his motor vehicle accident which currently restrict him to light work.

[57] A further impediment may be the distress he would experience if he is returned to New Zealand. His evidence was that he would be shattered if he was forced to return to New Zealand.

[58] I consider that Mr Sauvao would face an impediment to his re-establishment in New Zealand by way of his physical injury and his distress at having to return. This consideration weighs against cancellation.

(Emphasis added)

21    Such reasons do not constitute consideration of the applicant’s employment links as required by paragraph 9.2(1)(b) of the Direction.

Current employment links

22    The Minister submits that paragraph 9.2(1)(b) of the Direction requires consideration of current links to relevant persons within the community, rather than a consideration of a person’s employment history or employment prospects. The evidence of the applicant’s previous employment, the Minister submits, does not show that the applicant has any present relationships with an employer. Rather, the relationship between the applicant and Action Formwork Construction had ceased and at its highest, the applicant merely had the anticipation of seeking to regain his employment.

23    The construction of paragraph 9.2(1)(b) of the Direction contended for by the Minister is unduly narrow. The fact that a person may not have continuing employment when their visa is cancelled does not as matter of course mean that they do not have any relevant employment links with Australian citizens, or with Australian permanent residents or persons who have an indefinite right to remain in Australia. The applicant only ceased working for Action Formwork Constructions due to injuries sustained in his motor vehicle accident in November 2011. The applicant commenced light duties with the alternative employer in April 2012. These events are in relatively close proximity to the cancellation of the applicant’s visa in July 2012. The Court finds that such evidence falls within the purview of paragraph 9.2(1)(b).

Significance of the applicant’s employment evidence

24    In support of the submission that the applicant’s employment evidence is not sufficiently significant to justify the questioning of the Tribunal’s decision the Minister relies upon the observations of Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (‘Peko-Wallsend’) at 40 and 42 as follows:

40. Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.

….

42. In the context of [appellate review of judicial discretion], it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice: Lovell v Lovell (1950) 81 CLR 513 at 519; Gronow v Gronow (1979) 144 CLR 513 at 519–520, 534, 537–538; Mallet v Mallet (1984) 156 CLR 605 at 614-615, 622. So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.

25    Such statements of principle must, of course, be considered in the particular context in which the issue arises. In this instance the circumstances of the case, outlined at [16]–[17] above, demanded consideration of the applicant’s employment prospects. It could not be said that the failure to consider such matter would not have made any material difference to the result.

26    The weight to be attributed to the employment evidence adduced by the applicant is a matter for the Tribunal. However the Tribunal must give such evidence genuine consideration. As was stated by Madgwick J in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [212]:

A decision-maker cannot be said to “have regard” to all of the information to hand, when he or she is under a statutory obligation to do so, without at least really and genuinely giving it consideration. As Sackville J noticed in Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 152 at [58], a “decision-maker may be aware of information without paying any attention to it or giving it any consideration”. In my opinion, it would be very surprising if the delegate had genuinely paid attention to the letter and given it genuine consideration — had in Black CJ’s phrase in Tickner v Chapman (1995) 57 FCR 451 at 462 engaged in “an active intellectual process” in relation to the letter — yet remained silent about such consideration in the reasons he gave. I am satisfied he did not do so.

27    For completeness, the Court notes that the Tribunal did consider ‘Australian business interests’ which is set out in paragraph 12(1)(c) of the Direction. However, such consideration does not relate to the mandatory requirement to consider the applicant’s employment links, which is a distinct and different subject matter for consideration by the Tribunal.

28    Although it is not strictly necessary to consider the other grounds of review raised by the applicant, the Court will briefly do so for completeness.

Other grounds of review

29    The applicant also relies on five additional grounds of review. Four of those grounds relate to the applicant’s date of arrival in Australia and will be addressed together. The final ground concerns the Tribunal’s consideration of the sentences imposed on the applicant for his crimes.

The applicant’s date of arrival in Australia

30    The applicant submits that the Tribunal misunderstood and misapplied paragraph 9.2(1)(a)(i) of the Direction by its reference to the applicant’s last date of arrival in Australia. Paragraph 9.2(1)(a)(i) states:

9.2 Strength, duration and nature of the person’s ties to Australia

(1)     Reflecting the principles at 6.3, decision-makers must have regard to:

(a)    How long the person has resided in Australia, including whether the person arrived as a young child, noting that:

(i)    Less weight should be given where the person began offending soon after arriving in Australia…

31    The applicant points to the fact that in [1] of the Tribunal’s decision, the Tribunal member stated that:

[Mr Sauvao] last arrived in Australia in March 2005 on a Special Category (Temporary) visa.

32    The Tribunal member also observed at [45]–[46]:

Mr Sauvao has lived half of his life in Australia. His first offence, a driving offence, was committed in 2004, the year after he last arrived in Australia. His offending escalated steadily from that time, culminating in his 2009 offence and conviction in 2010. His offending has continued after that, albeit without assaults on individuals.

This consideration, keeping in mind the strength of Mr Sauvao’s ties to Australia, weighs against cancellation of Mr Sauvao’s visa. The extent to which it does so is lessened by Mr Sauvao’s having commenced to offend so soon after his last arrival in Australia.

[Emphasis added]

33    Before briefly considering the applicant’s grounds of review, the Court notes what appears to be loose language in the decision of the Tribunal. On the facts, it is clear that the applicant last arrived in Australia in March 2005 after leaving in February 2005. The Tribunal’s decision at [45] however refers to the applicant last arriving in Australia in 2003. This difference may be explained by the length of the period that the applicant left Australia for in February 2005, being merely four weeks. It is likely that although the applicant had entered Australia on three occasions, the last occasion was to be treated as a continuation of his living in Australia from April 2003 to February 2005 in light of what could be referred to as the applicant’s one month trip. This discrepancy does not affect the applicant’s submissions however, which are directed toward the Tribunal’s alleged failure to consider his first period of residence in Australia.

34    Four of the grounds of review are connected to the applicant’s submissions relating to the Tribunal’s reference to the applicant’s last date of arrival. They are:

1.    The Tribunal failed to solely use the date of the applicant’s initial arrival in Australia in considering whether the applicant began offending soon after arriving in Australia;

2.    In the alternative to ground 1, the Tribunal failed to take into consideration date of the applicant’s initial arrival in Australia in considering whether the applicant began offending soon after arriving in Australia;

3.    In the alternative to grounds 1 and 2, the Tribunal erred in taking into account an irrelevant consideration in considering whether the applicant began offending soon after arriving in Australia, that consideration being the applicant’s arrival into Australia in April 2003; and

4.    The Tribunal failed to have regard to and consider that the applicant arrived in Australia as a young child.

35    It is useful to summarise these grounds of review into two questions. The first raises the question whether it was open to the Tribunal to give consideration to the applicant’s last date of arrival in relation to his offences. The Court finds that it was so open having regard to the scope and purpose of the Direction: see Peko-Wallsend at 39-40. Paragraph 9.2 of the Direction clearly evinces an important connection between the length of time that a person has resided in Australia and any offences committed by that person. This is supported by various other parts of the Direction, particularly at paragraph 6.3(4) as set out at [10] above. Given that, in effect, the applicant had resided in Australia for two periods of time, it was open to the Tribunal to consider his second arrival to Australia. The Court does not find that the words ‘last arrival’ is any more than identification of a second occasion when the applicant arrived in Australia. As such, the Court rejects grounds of review 1 and 3 set out at [34] above.

36    The more important question is whether the Tribunal was required to consider, and if so did consider, the initial period in which the applicant was in Australia in relation to his offences. A plain reading of paragraph 9.2 supports that such consideration is relevant. As to whether that consideration was overlooked by the Tribunal, a statement of French (as his Honour then was), Sackville and Hely JJ in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (‘WAEE’) is apposite. Their Honours said at [47]:

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

37    Although the reasons of the Tribunal are not explicitly clear in relation to the initial period that the applicant resided in Australia and his offences, the Court is satisfied that the Tribunal did consider the matter. The decision refers to the fact that the applicant was born in 1985 and had been in Australia from December 1991 to February 1996. Further, when considering the offences of the applicant, the Tribunal member stated at [45]–[46]:

Mr Sauvao has lived half of his life in Australia. His first offence, a driving offence, was committed in 2004, the year after he last arrived in Australia. His offending escalated steadily from that time, culminating in his 2009 offence and conviction in 2010. His offending has continued after that, albeit without assaults on individuals.

This consideration, keeping in mind the strength of Mr Sauvao’s ties to Australia, weighs against cancellation of Mr Sauvao’s visa. The extent to which it does so is lessened by Mr Sauvao’s having commenced to offend so soon after his last arrival in Australia.

[Emphasis added]

38    The issue of the offences committed by the applicant was comprehensively considered by the Tribunal, and from the reference to the fact that the applicant had spent more than half of his life in Australia, the Tribunal member was mindful of the initial period of the applicant’s residence in Australia. Unless the period spent in Australia between 1991 and 1996 is taken into consideration, such statement would have clearly been erroneous. It is apparent that further regard did not need to be paid to the initial period that the applicant was in Australia simply because there was no criminal conduct in which the applicant was engaged during his childhood years. Indeed, to find that the Tribunal had failed to take into account this consideration would be an over-zealous interpretation of the Tribunal’s decision of the kind envisaged in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

39    It follows that the Tribunal member also took into account that the applicant had arrived in Australia as a child. For these reasons, the Court rejects the grounds of review numbered 2 and 4 set out at [34] above.

Sentences imposed on the applicant for his crimes

40    The applicant submits that the Tribunal failed to take into account the sentences imposed by courts for the applicant’s crimes in considering the nature and seriousness of the applicant’s offending or other conduct as it was required to do by paragraph 9.1.1(e) of the Direction.

41    This contention cannot be sustained in view of the fact that the decision clearly identifies not only the offences but also the outcomes. The statement of French, Sackville and Hely JJ in WAEE at [47] is again relevant: see [36] above.

42    The Tribunal referred to each of the offences with which the applicant was charged. The decision contains a schedule referring to each incident, the date of the Court hearing and critically, each resultant penalty. The Tribunal member then considered each of the offences involving violence or assault in considerable detail. Whilst it is correct that the Tribunal member concentrated on the detailed facts giving rise to each offence, the Court cannot conclude that the penalties imposed were ignored when they were clearly stated in tabular form in the decision and the offences of the applicant were otherwise considered comprehensively. Accordingly this ground is rejected.

CONCLUSION

43    In light of the Tribunal’s failure to consider the applicant’s employment links with relevant people in Australia, it follows that the decision of the Tribunal must be set aside and that the Minister’s decision be re-determined by the Tribunal. Accordingly the Court will order that the Tribunal’s decision be quashed and that the proceeding be remitted to the Tribunal to be heard and determined according to law.

Associate:

Dated:    16 August 2013