FEDERAL COURT OF AUSTRALIA

Taniela v Minister for Immigration and Border Protection [2014] FCA 375

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1.    INTRODUCTION

1        This is an application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) to affirm the decision of a delegate of the Minister for Immigration and Border Protection (as the Minister is now known) to cancel the applicant’s Special Category (Temporary) (Class TY) visa under s 501 of the Migration Act 1958 (Cth) (the Act).

2        The applicant filed written submissions in support of his application for judicial review, including submissions in reply to those filed by the Minister. The applicant was unrepresented at the hearing before me (at which he appeared via videolink) and did not wish to supplement his written submissions by oral submissions in chief or in reply. The Solicitor for the Minister elaborated orally upon his submissions at the hearing.

3        In his application for judicial review, the applicant challenges the decision of the Tribunal on four grounds. As I explain below, each of those grounds is premised on the assumption that the power to cancel a visa under s 501 of the Act is unavailable in circumstances where the power to deport would not be available under s 200 by virtue of the exemption in s 201.

4        In addition, in his written submissions the applicant contended that the Minister’s delegate and the Tribunal ought to have exercised the discretion under s 501 of the Act in accordance with the principles of proportionality in human rights law, and ought to have weighed the relative danger that the applicant posed to the Australian community against his rights to liberty and not to be separated from his family. While these additional matters were not expressly pleaded in the application for review, the Minister fairly did not object the applicant relying also on these further grounds.

5        For the reasons given below, none of the grounds raised in the application or written submissions of the applicant reveal the existence of jurisdictional error. The application must therefore be dismissed.

2.    BACKGROUND

2.1    The decision of the Minister’s delegate

6        The applicant is a citizen of New Zealand. He arrived in Australia in 1987 at the age of six and has resided in Australia since that time.

7        On 20 August 2004, the applicant was convicted of two counts of robbery in company and was sentenced to four years imprisonment with a non-parole period of two years. He was released from custody in February 2006.

8        Whilst still on parole, the applicant participated in the attempted armed robbery of a bank with three other young men. All were armed. Two of the young men carried firearms including the applicant who carried a sawn-off shotgun, while the other two carried crow bars. While endeavouring to escape, the offenders fired shots into the perimeter wall, wounding two pedestrians who later made a full recovery.

9        On 9 October 2009, the applicant was convicted of a number of offences in connection with the attempted robbery, including robbery while armed with a dangerous weapon and discharge of loaded arms in company with intent to resist apprehension. He was sentenced to a term of ten years and three months imprisonment with a non-parole period of six years and three months.

10        By letter dated 26 April 2007, the Minister’s Department notified the applicant that consideration was being given to cancelling his visa. Although the applicant wrote to the Department in response to the notification letter, the applicant initially stated to the Tribunal that he did not recall receiving the notification letter. However, the applicant’s visa was not cancelled on that occasion.

11        A second letter was sent by the Minister’s Department to the applicant on 20 February 2013 notifying the applicant of the intention to consider the cancellation of his visa. The Minister’s delegate subsequently cancelled the applicant’s visa on 31 May 2013.

12        The applicant applied to the Tribunal for a review of that decision on 19 June 2013. The Tribunal affirmed the delegate’s decision on 4 September 2013. At the hearing before the Tribunal, the applicant had legal representation and evidence was given by the applicant and a number of his close family members. Among other matters, the applicant gave evidence that:

(a)    if released into the Australian community he intended to reside in the family home with his parents;

(b)    one of his sisters, her husband and her four children live next door;

(c)    while he has no children of his own, five children would be affected if he were to be deported, namely, his younger sister aged 15 and the children of the older sister who were aged respectively 10 months old, and three, seven and ten years of age; and

(d)    it would be in the best interests of those children if he remained in Australia.

13        The applicant is currently serving the remainder of his sentence in prison.

2.2    The Tribunal’s decision

14        The Tribunal found that the power to cancel the applicant’s visa was enlivened because he failed to pass the “character test” by reason of having a “substantial criminal record”: ss 501(2) and (7)(c) of the Act. The central question identified by the Tribunal was whether that power should be exercised in the circumstances of the particular case. In making that decision, the Tribunal correctly accepted that Ministerial Direction No. 55 – Visa refusal and cancellation under s 501 (the Direction) must be taken into account by force of s 499(2A) of the Act.

15        The Tribunal found that three of the four primary considerations identified in the Direction were relevant, namely: protection of the Australian community from criminal or other serious conduct; the strength, duration and nature of the person’s ties to Australia; and the best interests of any minor children in Australia.

16        Following a careful evaluation of the evidence, the Tribunal found with respect to each of the primary considerations as follows.

(a)    There had been positive developments in the applicant’s circumstances since he reoffended in 2007 including in the extent of family support available to him, his rehabilitation and his level of maturity. Nonetheless, the Tribunal accepted the opinion of the forensic psychologist, whose opinion was sought at the applicant’s request, that the applicant posed a low to moderate risk of reoffending. The Tribunal concluded that there is a real and significant risk that the applicant will reoffend which weighed heavily in favour of the cancellation of his visa.

(b)    The applicant has significant family ties with Australia. The second primary consideration was therefore strongly against cancelling the applicant’s visa.

(c)    The removal of the applicant from Australia would have a limited impact on each of the five children. Thus while the consideration of the best interests of minor children favoured the applicant, it did not do so to any great extent.

17        As to the non-exhaustive list of “other considerations” that must, where relevant, be taken into account under paragraph 10 of the Direction, the Tribunal found that:

(a)    with respect to the effect of cancellation on the applicant’s immediate family in Australia, all family members would feel a deep sense of loss if the applicant were to be deported, particularly his parents, his younger sister and two of the children of his older sister, and this consideration weighed strongly against cancellation;

(b)    with respect to the extent of any impediments the applicant may face if removed, the applicant is assisted by this consideration but not to any great extent;

(c)    the applicant was not assisted by the consideration of the impact of removal on Australian business interests, there being no evidence to suggest he would be working in an area where his skills and qualities are in short supply; and

(d)    the Tribunal was unable to make any findings about the impact of a decision not to cancel the applicant’s visa on the victims of his crimes in the absence of any evidence suggesting that he has any contact with them. However, if the applicant remained in Australia and were to reoffend, this would have an adverse impact on the Australian community.

18        In accordance with the Direction, the Tribunal considered that it “must take into account any relevant Consideration (and generally give greater weight to primary Considerations), and determine whether the risk of future harm by Mr Taniela is ‘unacceptable’, and conduct a ‘balancing exercise’.”: citing Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690 at [49] (Justice Downes, President, and Senior Member McCabe).

19        Given the Tribunal’s findings as to the nature of the harm and significant risk of the applicant reoffending, the Tribunal decided that he poses an “unacceptable risk” for the purposes of paragraph 6.3(3) of the Direction. Paragraph 6.3(3) states:

“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.”

20        Taking that paragraph into account, the Tribunal found that the primary consideration of the protection of the Australian community in this case outweighed those considerations which favoured the applicant’s visa not being cancelled. For those reasons, the Tribunal concluded that the preferable decision was to cancel his visa and affirm the decision under review.

21        In this regard, among other matters, the Tribunal found that the applicant “is not a hardened or vicious criminal” and expressed the view that, were it not for the use of arms during the robberies, it might have concluded that the considerations favourable to the applicant were sufficient to justify a decision not to cancel his visa and would have afforded his risk of reoffending a higher level of tolerance.

3.    CONSIDERATION

22        The application is brought in the original jurisdiction of this Court pursuant to s 476A of the Act. That jurisdiction is the same as that vested in the High Court under s 75(v) of the Constitution, and therefore limited to a consideration only of the validity of the Tribunal’s decision. As such, this Court has no jurisdiction to undertake a review of the merits of the Tribunal’s decision to cancel the applicant’s visa. The question is not, therefore, whether this Court would have exercised the discretion vested in the Tribunal in the same way on the facts of this particular case, but is confined to the different question of whether the Tribunal’s decision is tainted by jurisdictional error.

23        There was no challenge on judicial review to the finding by the Tribunal that the applicant had failed to pass the “character test” in s 501(6) of the Act. That being so, there was no challenge to the finding by the Tribunal that its discretion to cancel the applicant’s visa under s 501(2) was enlivened.

24        It is convenient, having set out the reasons of the Tribunal immediately above, to consider first the additional contentions raised in the applicant’s written submissions before turning to the specific grounds identified in the application for judicial review.

3.1    Matters raised in the written submissions

25        It will be recalled that the applicant contended that the delegate and the Tribunal ought to have exercised the discretion under s 501 of the Act in accordance with the principles of proportionality in human rights law, and to have weighed the relative danger that the applicant posed to the Australian community against his rights to liberty and not to be separated from his family. In my view, these matters do not establish the existence of any jurisdictional error.

26        First, by reason of s 476A(2), this Court has no jurisdiction to review the initial decision of the delegate. Its jurisdiction is limited relevantly to judicial review of the decision by the Tribunal. This means that, by the stage that any application for judicial review is made, the delegate’s decision will have been the subject of a full external merits review with the Tribunal being required to make the correct and preferable decision on the material before it at the time that it makes its decision: Shi v Migration Agents Regulatory Authority (2008) 235 CLR 286.

27        Secondly, by virtue of s 499, the matters to which the Tribunal must have regard in exercising its discretion under s 501 are the primary and other considerations set out in the Direction. As explained above, it is apparent from the reasons of the Tribunal that it did have regard to those considerations. There is nothing in the circumstances of this case which indicates that the Tribunal ought to have had regard to any other consideration.

28        I also note in this regard, as the Minister submitted, that the considerations in the applicant’s favour to which the Tribunal had regard in accordance with the Direction give effect, at least to some extent, to Australia’s human rights obligations under international conventions such as the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

29        Thirdly, it is apparent from its reasons that the Tribunal did in fact weigh the danger that the applicant posed to the Australian community against those considerations in his favour. In so doing, the Tribunal lawfully discharged its statutory task irrespective of whether or not the task as defined in the Direction fully accords with international human rights principles of proportionality or otherwise. Those principles do not apply in Australian domestic law of their own force: Horta v Commonwealth (1994) 181 CLR 183.

3.2    The Grounds contained in the application for judicial review

30        The applicant identified four grounds of review in his application for judicial review, namely:

1.    he had been denied procedural fairness and natural justice by the Tribunal on the ground that the Tribunal should have been aware that he was “protected and exempted from being deported from Australia” under s 201 of the Act;

2.    s 501 of the Act is inconsistent with s 201 and “other parts of” the Act;

3.    given s 201 of the Act and “other parts of” the Act, the Tribunal’s decision is “beyond power”, invalid and unconstitutional; and

4.    the Tribunal failed to advise the applicant that it was not going to have regard to s 201 and thereby afford him an opportunity to make submissions that the Tribunal should instead reinstate his visa in accordance with s 201 and the “safety net” that the provision was said to provide.

31        While reference is made in grounds 2 and 3 to “other parts of the Act”, no provisions other than s 201 were relied upon by the applicant.

32        As the Minister submitted, each of the four grounds is premised upon the power to cancel a visa under s 501 of the Act being unavailable in circumstances where the power of the Minister to deport a non-citizen is not available by virtue of s 201. Section 201 provides that the Minister’s power to order the deportation of a non-citizen under s 200 does not apply where the non-citizen is a New Zealand citizen who has been in Australia for a period of 10 years or more as a permanent resident, notwithstanding that the non-citizen has been convicted of an offence in Australia.

33        However, the premise upon which the applicant’s grounds rely was rejected in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 (Nystrom). In that case the High Court unanimously held that the conditions imposed by s 201 of the Act on the deportation power in s 200 do not limit the availability of the separate power in s 501 to cancel a visa on character grounds for the reasons that they do not deal with the same subject-matter. As Heydon and Crennan JJ (with whose reasons Gleeson CJ agreed) held at 615-616 [162]-[164]:

“…The power under s 200, as restricted by s 201, to deport non-citizens is a power in respect of the continuing presence in Australia of non-citizens convicted of certain crimes. The power under s 501(2) to cancel a visa of a non-citizen on character grounds (based on a ‘substantial criminal record’) and thereby remove that non-citizen is a much wider power, although it is also for the protection of the Australian community. The powers are distinct and cumulative.

Not only do the powers have different purposes, different criteria apply for their exercise…

Moreover, it was not disputed that different consequences follow when the powers are exercised. A person who is subject to a deportation order is subject to discretionary rather than mandatory detention during any challenge (s 253(8) and (9)), but will then be deported unless the Minister revokes the order. A person who has a visa cancelled is subject to mandatory detention and removal (s 189) but may apply for a protection visa (s 501E).”

See also at 571-572 [2] (Gleeson CJ) and at 592 [69] (Gummow and Hayne JJ) to similar effect.

34        It follows that s 201 of the Act does not “protect and exempt” the applicant from the operation of s 502 or provide him relevantly with a “safety net”, contrary to the assumptions underpinning grounds 1 and 4 of the application for judicial review.

35        Furthermore, the Court in Nystrom held that there was no repugnancy or inconsistency between ss 201 and 501 of the Act. To the contrary, the Court held that those provisions were consonant with each other: at 616 [165] (Heydon and Crennan JJ, with whose reasons Gleeson CJ agreed). It follows that grounds 2 and 3 of the application cannot succeed. Furthermore, while s 109 of the Commonwealth Constitution provides that a State law is invalid to the extent that it is inconsistent with a law of the Commonwealth, that provision has no relevance where the alleged inconsistency is between different provisions of a Commonwealth law. Rather, where conflict appears to arise between particular provisions of an Act, the question is resolved through the process of statutory construction, as the decision in Nystrom itself illustrates: see also Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [70] (McHugh, Gummow, Kirby and Hayne JJ).

36        Finally, while the applicant contended that Nystrom was wrongly decided, this is not an issue which can be determined by this Court which is bound by decisions of the High Court.

4.    CONCLUSION

37        For the reasons set out above, the application must be dismissed with costs.

Associate:

Dated:    15 April 2014