FEDERAL COURT OF AUSTRALIA

Paerau v Minister for Immigration and Border Protection [2013] FCA 1119

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration and Border Protection.

2.    The application is dismissed.

3.    The applicant is to 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    This is an application for review under subs 476A(1)(b) of the Migration Act 1958 (Cth) (the Act). The decision the subject of the application was made by the Administrative Appeals Tribunal (the Tribunal) on 15 November 2012. By its decision the Tribunal affirmed a decision of a delegate of the first respondent to cancel the applicant’s Special Category (Temporary) (Class TY) visa pursuant to subs 501(2) of the Act.

2    The applicant is a citizen of New Zealand who first arrived in Australia in December 1992. After returning to New Zealand for a few months, the applicant took up residence in Australia in April 1993. The applicant has a lengthy criminal record, and has spent many periods in and out of prison as a result of his convictions. He has been sentenced to terms of imprisonment for 12 months or more on at least 7 separate occasions.

3    The Tribunal found that the applicant had a “substantial criminal record” for the purposes of s 501 of the Act. Having reached that conclusion, the Tribunal was required to consider whether to exercise its discretion to either cancel or not cancel the applicant’s visa.

The Direction

4    Subsection 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act about the performance of those functions or the exercise of those powers. Subsection (2) provides that subs (1) does not empower the Minister to give directions that are inconsistent with the Act or the Regulations. Subsection (2A) provides that a person or body must comply with a direction given under subs (1).

5    In exercising the discretion under s 501 of the Act, the Tribunal was required to comply with Direction No 55 (the Direction) given by the Minister pursuant to s 499 of the Act. The Direction was given by the Minister on 25 July 2012 but is expressed to apply from 1 September 2012.

6    According to cl 6.1(3) of the Direction:

The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act to refuse to grant a visa to, or to cancel the visa of, a person who does not satisfy the Minister that the person passes the character test. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

7    Part A of the Direction identifies the “primary considerations” that must be taken into account by a person exercising the discretion to cancel a visa pursuant to s 501. The primary considerations are:

9.1    Protection of the Australian community;

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

9.3    Best interests of minor children in Australia affected by the decision; and

9.4    International non-refoulement obligations.

8    Clause 9.3 of the Direction provides:

Best interests of minor children in Australia affected by the decision

(1)    Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child.

(2)    This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.

(3)    If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4)    In considering the best interests of the child, the following factors must be considered where relevant:

    (a)    The nature and duration of the relationship between the child and the person. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    (b)    The extent to which the person is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    (c)    The impact of the person’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    (d)    The likely effect that any separation from the person would have on the child, taking into account the child’s ability to maintain contact in other ways;

    (e)    Whether there are other persons who already fulfil a parental role in relation to the child;

    (f)    Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    (g)    Evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

    (h)    Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.

The application for review

9    The applicant was not legally represented at the hearing before me. His application for review refers to “the best interest of the children” but does not postulate any jurisdictional or other legal error which the Tribunal is alleged to have made. The grounds and the applicant’s supporting affidavit instead focus on the merits of the Tribunal’s decision. This is also true of the submissions that were made by the applicant in support of his application. It was explained to the applicant at the hearing, and on a prior occasion when the matter was before the Court, that the Court is not entitled to engage in merits review and that if the applicant was to obtain an order setting aside the Tribunal’s decision, it would be necessary for him to show that it was affected by jurisdictional error.

THE TRIBUNAL’S DECISION

10    It is apparent from the Tribunal’s reasons that the children referred to in the application for review and the supporting affidavit are likely to be three of six, or possibly eight, children of the applicant. The three children in question, according to material referred to by the Tribunal, are children the applicant had to a partner from whom he is separated. Two of the three children are said in this material to be twins aged two and a half years and the third is said to be an eight month old baby.

11    In its reasons for decision the Tribunal provided a detailed account of the legal framework in which it was required to reach its decision. This included a consideration of the requirements of the Direction.

12    The Tribunal’s reasons for decision include an explanation of the legislative history and the effect of subss 500(6A)-(6L) of the Act. These provisions, as the Tribunal correctly explained, require an application for review of a decision under s 501 to be lodged within 9 days after the day on which the person is notified of the decision. Moreover, the time within which such an application may be lodged cannot be extended. These provisions also limit the information that the Tribunal may have regard to when considering any such application.

13    Subsection 500(6H) provides that the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information is set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing. Similarly, subs 500(6J) provides that the Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document is given to the Minister at least 2 business days before the Tribunal holds a hearing.

14    In the course of explaining the effect of subss (6H) and (6J) the Tribunal referred to the decision of the Full Court in Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378. The Tribunal quoted the following passage from the reasons of Gray J (with whom RD Nicholson and Stone JJ agreed) at [25]:

The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant’s case unless the Minister has had two business days’ notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the 84 day time limit for the whole process, laid down in subs (6L).

15    Subsections (6H) and (6J) were relevant to the applicant’s case before the Tribunal because he did not file or serve any statements or documents on the Minister before the hearing. In spite of this omission, the applicant sought to give oral evidence about his children and his relationships with them at the hearing before the Tribunal.

16    The Tribunal noted the applicant had not filed or served any written statement at least 2 days before the hearing. It therefore declined to permit the applicant to give oral evidence. The Tribunal said:

[27]    In previous cases before the Tribunal, the Tribunal has allowed oral evidence from an applicant to explain or amplify material contained in a written statement (for example, Reedy) and has allowed oral evidence from one witness in respect of the written statement of another and in respect of matters raised in the applicant’s Statement of Facts, Issues and Contentions (see SAAC and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1209). In both these cases written statements were served on the Minister within the period contemplated by the two day rule. In this case, there were no such written statements served on the Minister. There were reports from the New South Wales Probation and Parole Service that included some information about Mr Paerau’s personal circumstances but there was very little information about Mr Paerau’s relationship with his family and his children in Australia.

[28]    Mr Paerau would have liked to give oral evidence about these matters but regrettably there was no written material provided to the Minister or the Tribunal in respect of which he could justifiably explain or amplify. As set out in Goldie, the purpose of s 500(6H) and (6J) is to ensure the Minister is given adequate opportunity to answer the case put by the applicant in the context of the strict time limits on the determination of these matters. Having regard to those provisions and the fact that no written statements were provided to the Minister by Mr Paerau at least two business days before the hearing, Mr Paerau was not given leave to give oral evidence in support of his case but nonetheless made submissions by reference to the material tendered by the Minister.

17    As to the information available to it concerning the applicant’s children, the Tribunal said (at [40]):

[40]    Little is known about Mr Paerau’s relationship with his children, although included in the documents tendered by the Minister was a Report of a reasonable suspicion of child abuse and neglect dated 2 April 2011. There was no further detail about this report or whether the suspicion referred to in the report was investigated. As such, little could be drawn from this information. However, there was a report provided by the Queensland Police Service recording a temporary domestic violence order made on 24 November 2009 against Mr Paerau in respect of his former partner and four of her children, two of which were the twins from Mr Paerau’s relationship with his partner. It appears that a protection order was made against Mr Paerau in respect of this matter on 23 November 2011.

18    After considering the matters referred to in cl 9.1 of the Direction (protection of the Australian community) and cl 9.2 (strength, duration and nature of ties to Australia) the Tribunal then turned to consider the matters referred to in cl 9.3 (best interests of minor children in Australia affected by the decision). On this issue the Tribunal said (at [59]-[61]):

[59]    Direction no. 55 requires that the decision-maker determine whether visa cancellation is or is not in the best interests of a relevant child or children under 18 years old (cl 9.3(1)-(2)). Clause 9.3(4) lists a number of factors that must be considered where relevant. They include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in the future, the impact of the person’s prior conduct and any likely future conduct, the likely effect that any separation from the person would have on the child, whether there are other persons who already fulfil a parental role, any known views of the child, evidence that the person has abused or neglected the child and evidence that the child has suffered or experienced any physical or emotional drama arising from the person’s conduct.

[60]    As noted above, there is little evidence about Mr Paerau’s contact with his children, although there appears to be no dispute that the only children with whom Mr Paerau has any regular contact are his three children to his former partner. The nature and extent of this contact is unclear but it is relevant to note that two of those children were the subject of domestic violence orders in 2009 and 2011.

[61]    Given the paucity of evidence, I cannot be satisfied about whether it is in the best interests of Mr Paerau’s minor children for Mr Paerau to remain in Australia or whether it would be in their best interests for him to be removed to New Zealand. As such, this consideration does not weigh against cancellation and, at best, is neutral.

FAILURE TO MAKE DETERMINATION PURSUANT TO CLAUSE 9.3(1) of THE DIRECTION

19    The first respondent drew my attention to a number of decisions of other judges of the Court which suggest that the requirements of cl 9.3(1) of the Direction must be strictly complied with and that, as a consequence, the Tribunal is bound to make a determination about whether visa cancellation is, or is not, in the best interests of the child. The first is a decision of Robertson J in Spruill v Minister for Immigration and Citizenship [2012] FCA 1401; the second a decision of Cowdroy J in Tauariki v Minister for Immigration and Citizenship [2012] FCA 1408.

20    In Spruill Robertson J (at [18]) found that cl 9.3(1) of the Direction required the decision-maker (in that case the Tribunal) to make a determination, expressly or impliedly, about whether cancellation is, or is not, in the best interests of the applicant’s child. His Honour added that “[i]t is not enough merely to have regard to those interests.” He held that the Tribunal committed a jurisdictional error in failing to make the necessary determination. Similarly, in Tauariki, Cowdroy J accepted that the Tribunal had regard to the best interests of the child but nevertheless committed jurisdictional error by failing to reach a conclusion on that matter.

CONSIDERATION

21    It is important to note that there is no suggestion in either Spruill or Tauariki that the failure on the part of the Tribunal to make a determination as to the best interests of the children was explained by the absence of information that might permit the Tribunal to make such a determination.

22    In the present case the Tribunal found that it was unable to make a determination as to whether the cancellation of the applicant’s visa was or was not in the best interests of his children. This finding is hardly surprising given what the Tribunal described as the paucity of the material relevant to the children’s best interests. That material, referred to at [40] and [60] of the Tribunal’s reasons, although suggesting that the applicant had regular contact with his three children to his former partner, did not reveal the nature or extent of that contact.

23    As the Tribunal explained, the reason why there was so little material relevant to the best interests of the applicant’s children available to it was due to the operation of subss 500(6H) and (6J) of the Act. Consistently with the Full Court’s decision in Goldie, the Tribunal interpreted these provisions as precluding it from receiving from the applicant material relevant to its consideration of the best interests of his children.

24    In Goldie, Gray J was very clear as to the effect of subss 500(6H) and (6J). As his Honour said in the passage extracted at [14] above:

The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant’s case unless the Minister has had two business days’ notice of the information or the document before the hearing.

(emphasis added)

Whether or not the Tribunal may dispense with or waive the requirements of subss 500(6H) or (6J) with the consent or acquiescence of the Minister is not a question that arises in this case. There is no suggestion that there was any relevant consent or waiver in the applicant’s case.

25    The decision in Goldie was recently approved by the Full Court in Uelese v Minister for Immigration and Citizenship [2013] FCAFC 86 (Jagot, Griffiths and Davies JJ). The Full Court said (at [29]) that the effect of subs 500(6H) of the Act is clear and that:

Where the pre-conditions to its engagement are satisfied, the provision operates to preclude the AAT from having regard to any information presented orally in support of an appellant’s case where the information was not set out in a written statement given to the Minister at least two business days before the AAT holds a hearing.

26    In Uelese the Tribunal found that it was unable to determine whether or not visa cancellation would be in the best interests of two of the applicant’s five children given the limited information available to it. As in the present case, the applicant had not laid the necessary foundation that would permit the Tribunal to have regard to the information that the applicant wished to rely upon because he had not given the Minister the requisite notice.

27    The trial judge in Uelese held that the Tribunal did not commit jurisdictional error either by giving no weight to the interests of the applicant’s two other children or by not adjourning the hearing to allow it to make further inquiries about the children’s circumstances: see Uelese v Minister for Immigration and Citizenship [2013] FCA 342 (Buchanan J) at [18]-[23].

28    On appeal, the appellant in Uelese was permitted to rely upon some arguments not put below based upon what was said to be a failure to warn. The Full Court held (at [33]) that:

    There was no obligation on the Tribunal to warn the applicant that it would not consider the best interests of his two other children. This was because the Tribunal was not permitted to rely upon the limited oral evidence given on that matter due to the operation of subs 500(6H) of the Act.

    It was not open to the Tribunal to adjourn the hearing to enable the applicant to comply with subs 500(6H).

    There was no obligation on the Tribunal to conduct its own inquiries in order to seek out additional information relating to the applicant’s two other children.

29    The Full Court then turned to what the appellant in that case submitted was a conflict between ss 499 and 500(6H) of the Act. The Full Court said (at [34]-[36]):

[34]    Secondly, contrary to the appellant’s contention, there is no irreconcilable contradiction between the AAT’s statutory obligation imposed by s 499 of the Act to comply with Direction 55 (including its relevant mandatory requirements concerning children and their best interests) and the statutory constraint imposed on the AAT by s 500(6H). The Act is to be construed “on the basis that its provisions are intended to give effect to harmonious goals” (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [70] per McHugh, Gummow, Kirby and Hayne JJ). And as their Honours further observed in that paragraph:

    Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. (Footnotes omitted).

[35]    In our opinion, there is no irreconcilable conflict between the relevant provisions of the Act here. By virtue of s 499 and the text of Direction 55, in conducting a review of a s 501 visa cancellation decision, the AAT is obliged in relevant circumstances to consider the best interests of minor children as a primary consideration in carrying out the balancing exercise described in Direction 55. But that obligation is subject to certain qualifications, including the procedural qualifications and constraints imposed by various provisions in s 500. Section 500(6H) is one of those constraints.

[36]    Because there is no irreconcilable conflict between the relevant provisions, we do not consider that this is a case where the Court is required to determine “the hierarchy of the provisions” as referred to in Project Blue Sky. If it were such a case, we have little doubt that s 500(6H) is to be viewed as a “leading provision”, to which s 499 must give way. To use the language of Project Blue Sky, that construction best gives effect to the purpose and text of the provisions, while preserving the unity of the legislative scheme.

30    I do not think there is any room to doubt that it was the operation of subs 500(6H) that prevented the Tribunal making a determination as to whether cancellation of the applicant’s visa was or was not in the best interests of his children. It would be perverse to require the Tribunal to make such a determination in circumstances where it was duly satisfied that it could not properly do so.

31    In my opinion, the Tribunal’s failure in this case to make a determination as required by cl 9.3(1) of the Direction did not constitute jurisdictional error.

DISPOSITION

32    The application will be dismissed with costs.

Associate:

Dated:    31 October 2013