FEDERAL COURT OF AUSTRALIA

Graff v Minister for Immigration and Border Protection [2014] FCA 1125

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1    The applicant, Julius Graff, is a New Zealand citizen but a long term resident of this country who has recently completed a lengthy prison term. On 28 February 2014, four months before he was due to be released from custody, the Minister for Immigration and Border Protection cancelled his visa on character grounds. Mr Graff wants the Court to review the Minister’s decision. More particularly, he wants the Court to issue a writ of certiorari to have the decision brought into the Court to be quashed and an injunction preventing the Minister and his officers, servants and agents from acting upon or giving effect to it.

2    Mr Graff contends that the Minister’s decision was beyond power. First, however, he seeks an extension of time to make the application because it was brought two months after the period within which it had to be made. It is his contention that an extension of time should be granted because the delay has been satisfactorily explained and the substantive case has merit. It may be doubted whether the delay has been satisfactorily explained. Regardless, the case is entirely without merit. For this reason it must be dismissed.

The relevant legislation

3    Under s 501(2) of the Migration Act 1958 (Cth) the Minister may (though is not obliged to) cancel a visa granted to a person if he reasonably suspects that the person does not pass “the character test” and the person does not satisfy him that he does. For this purpose a person does not pass the character test if, amongst other reasons, he or she has “a substantial criminal record”: s 501(6). Relevantly, a person has a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).

4    Historically, at least, decisions of this kind were routinely made by delegates of the Minister rather than the Minister, himself. In those cases the Minister issued statutory directions which the delegates were bound to follow in determining whether to exercise the statutory discretion to cancel the visa, and which included considerations which they were bound to take into account (see Migration Act, s 499). Where, as here, however, the Minister makes the decision personally, there are no such express constraints on the exercise of the discretion. The only limits are those implied by the subject matter, scope and purpose of the enabling legislation. See Djalic v Minister for Immigration and Multicultural Affairs (2004) 139 FCR 292 (“Djalic”); NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [6]–[8].

5    A decision of the Minister to cancel a visa is a “privative clause decision” within the meaning of s 474(2) of the Migration Act. Section 474(1) states that such a decision is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called into question in any court and is not amenable, amongst other things, to a writ of certiorari or mandamus. Nevertheless, the effect of the High Court’s judgment in Plaintiff S157 v Commonwealth of Australia (2003) 211 CLR 476 and s 476A(1)(c) of the Migration Act is that this Court has a limited jurisdiction to review the decision and to issue the writs if it is satisfied that the decision was affected by jurisdictional error. But any application for a remedy to be granted in the exercise of this jurisdiction must be made to the Court within 35 days of the date the decision is made: Migration Act, s 477A(1). Section 477A(2) provides that the Court may, by order, extend that period if:

(a)    an application for an order has been made in writing to the Court specifying why the applicant considers that it is “necessary in the interests of the administration of justice” to make the order; and

(b)    the Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

Background

6    At the relevant time Mr Graff held a Class TY, Subclass 444 Special Category Visa which allowed him to remain in Australia indefinitely as long as he continued to be a New Zealand citizen.

7    On 25 September 1998, then aged 22, Mr Graff was convicted of the offences of murder, robbery in company, assault occasioning actual bodily harm and maliciously inflict grievous bodily harm. He was sentenced to the following terms of imprisonment: 23 years for murder (with an 18 year non-parole period) and 8 years for robbery in company. The robbery in company took place on 15 May 1996 and the murder some 10 days later. The other two offences (which occurred at different times) were taken into account in connection with the sentence imposed for the murder. Mr Graff appealed against the severity of the sentences but his appeal was unsuccessful.

8    No amount of sugar-coating can disguise the seriousness of the offences. As Mr Graff’s counsel candidly put it, they “cannot be sanitised”.

9    On 15 May 1996, in company with two others, Mr Graff attacked the driver of a taxi they had hired. According to the description of the offence in the summary given in the Court of Criminal Appeal, they beat him into a state of unconsciousness and continued attacking him. They then stole his takings and his wallet, pushed him onto the road and drove off in his cab. As a result of a punch from Mr Graff, he suffered permanent brain damage and was severely handicapped.

10    On 25 May 1996, once again, together with the other two offenders, they attacked another taxi driver. They punched him and, while he lay helpless on the ground, kicked him in the head and body, stripped him of his clothing and whipped him with his belt. They then drove off in his taxi. The driver died as a result of his injuries. All three pleaded guilty to both offences and were found by the sentencing judge to be equally culpable.

11    The other two offences, which were taken into account by the sentencing judge, occurred in the following circumstances. On 23 January 1994 Mr Graff was one of five people who repeatedly punched and kicked a person at Bankstown railway station. The victim lost consciousness and suffered fractures to the nose and face. On 8 September 1995 Mr Graff “came across two men having an argument. Believing that one had been or was about to be assaulted, the applicant punched the other in the face. The victim fell heavily, striking his head on the footpath. His injuries were at the least permanent and severely handicapping brain damage”. See R v Graff [2001] NSWCCA 3.

12    The three most recent offences were committed while Mr Graff was on bail.

13    On 17 October 2013 a Notice of Intention to Consider Cancellation of a Visa was sent to Mr Graff. It set out the grounds for the proposed decision and invited Mr Graff to respond. In his response Mr Graff noted that he had lived in Australia for 21 years, that in that time he had fathered a child and he is now a grandfather. He said his parents also live here and they will need his care once he is released. He said he had no family or close friends in New Zealand. He submitted, in effect, that he had rehabilitated himself and was no longer a danger to society. He provided a number of testimonials to support his submission.

The Minister’s decision

14    The Minister took into account the matters in Mr Graff’s favour, but considered that the criminal offending was of such a serious nature that the visa should be cancelled.

15    After discussing the conduct at some length, the Minister said at [15]:

I consider MR GRAFF’s violent crimes, resulting in one person dead, one injured and one permanently incapacitated, are very serious and not in line with community values. In this case, I find Mr GRAFF’s criminal conduct to be repugnant.

16    He also observed (at [16]) that the length of both the head sentence and the non-parole period were indicative of the seriousness of the offences.

17    The Minister then proceeded to examine the factors said to have contributed to the offences, those bearing upon the risk of reoffending (including Mr Graff’s attempts to rehabilitate himself), Mr Graff’s ties to Australia, the best interests of his son and granddaughter and the effects on both him and his parents if he had to return to New Zealand.

18    At [39]–[40] he said:

39    …[G]iven the serious nature of Mr GRAFF’s criminal offending his visa should be cancelled. I find that Mr GRAFF’s violent crimes, especially his involvement in the murder of a taxi driver, are abhorrent and contrary to values held by the Australian community.

40    I also considered the countervailing considerations in Mr GRAFF’s case including his employment and close familial ties to Australia, as well as the best interests of his son and grandchild. However, I note that Mr GRAFF spent a small part of his formative years in Australia and first offended about 13 months after his arrival. In making my decision, I have taken the view that despite his extended absence from that country and a lack of family and social links, Mr GRAFF’s return to New Zealand would not cause him undue hardship given his age, good health and skills.

19    A letter conveying the Minister’s decision and his reasons was sent to the authorised recipient, Mr Graff’s father, Josefa, on 4 March 2014.

Why the applicant says the decision should be quashed

20    In the originating application Mr Graff states:

The Minister acted beyond his power and took into account a consideration legally irrelevant to the exercise of his jurisdiction.

Particulars

(a)    The Minister utilised s 501 of the Migration Act to impose a punishment upon the applicant, additional to that imposed by a Court.

21    Mr Graff noted that s 501 of the Migration Act does not authorise punishment “other than for a legitimate non punitive object”, citing Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 27-33, 71. Yet, he submitted, the Minister used s 501 in this case “at least partly to impose an extra judicial punishment on him” and, for this reason, his decision was beyond power. The submission is based on two statements in the Minister’s reasons: the Minister’s description of Mr Graff’s crimes in [15] as “repugnant” and in [39] as “abhorrent”. Mr Graff argued:

Describing conduct, even serious criminal conduct, in such emotive terms goes beyond a desire to protect the community, which is at the heart of the discretionary power to cancel a visa of a non-citizen convicted of serious criminal offences (see Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 at [68]). It is indicative of a desire to punish, or to use the power granted under s. 501(2) to cancel a visa and thus remove a person from Australia for reasons of personal dislike. Whether or not others, or many others, may agree with the Minister’s opinions, the use of the discretion for such reasons is beyond power.

The explanation for the delay

22    The application was not filed until 2 June 2014. The explanation for the delay was given by Mr Graff’s solicitor, Robert Balzola, and by Mr Graff’s father, Josefa, in affidavits not filed until 30 September in Mr Balzola’s case and in court today in Mr Graff snr’s case, although Josefa Graff had filed an affidavit on 8 October which was not read. The affidavits were supplemented by oral evidence from Mr Balzola. Both Mr Balzola and Josefa Graff were cross-examined. In substance, the explanation is that the family sought legal advice from one solicitor in March but never received any written advice. Josefa Graff said that he never discussed the limitation period, by which I assume I am to infer that he was unaware of it. In mid-March contact was made through an intermediary with Mr Balzola. Mr Balzola was sent a number of documents, which were never properly identified in the evidence but Mr Balzola conceded they would have included a copy of the Minister’s decision. Mr Balzola did not read all of the documents. Indeed, it is far from clear that he read any of them. He met Josef Graff on 3 April 2014 (as it happened, the day before the limitation period expired) and took instructions from him. There is no evidence that he ever met his son, Julius. At the time, Mr Balzola said had still not read all the documents. He said he believed that the Minister had only given notice of his intention to cancel the visa and had not yet made a decision to do so. He said he thought that he had been retained to draft submissions in support of the exercise of the discretion not to cancel the visa. In his affidavit Mr Balzola said that it was not until 12 May 2014, when he received a bundle of documents in the mail from Josefa Graff, that Mr Balzola realised the decision had already been made. Mr Balzola stated:

I then understood that neither the applicant nor the supporting family members understood the efficacy of the said notification nor the import of the bundle of documents forwarded to me.

23    Upon receiving the documents Mr Balzola said he immediately contacted Josefa Graff, told him that this was “an appeal matter” and that the only remedy was in this Court. He then briefed counsel to prepare this application, although he did not disclose precisely when that was.

Why the application must be dismissed

24    There are problems with the explanation for the delay. The solicitor’s failure to read the documents when they were sent to him or at least by the time of the initial meeting or shortly thereafter is troubling and it is unexplained. Moreover, there is an internal conflict in Mr Balzola’s evidence. And there is also a conflict between his evidence and the evidence given by Josefa Graff which cannot easily be reconciled.

25    As I have already noted, in his affidavit Mr Balzola said that he did not realise that the Minister had made his decision until 12 May 2014 when he received the bundle of documents from Josefa Graff. In his oral evidence, however, he said he received a copy of the Minister’s decision in the mail on 22 April 2014.

26    In his oral evidence Mr Balzola also said that on 3 April 2014, when he first took instructions, he was informed by Mr Graff’s family that no decision had yet been made to cancel Mr Graff’s visa. Josefa Graff, on the other hand, said that when he met with Mr Balzola that day, he told him that the Immigration Department had cancelled his son’s visa. There is no reason to doubt what Josefa Graff said. It is crystal clear from his evidence that he sought legal advice in order to see what could be done about the Minister’s decision to cancel his son’s visa. It would be extraordinary in those circumstances if (whatever else he might have said to Mr Balzola) he did not mention that the Minister had decided to cancel the visa. Mr Karp, counsel for Mr Graff, invited the Court to infer that there had been a misunderstanding.

27    Troubled as I am by the inconsistencies in Mr Graff’s case and, in particular, the evidence given by Mr Balzola, the contemporaneous documents tend to support the conclusion that Mr Balzola did misunderstand the nature of his retainer, although quite how or why that came about is difficult to understand.

28    On 8 April 2013 Mr Balzola sent an initial advice to Mr Graff (that is, Julius Graf), headed “Re: Response to character assessment – Direction 55”. It begins with the sentence:

Thank you for our (sic) family attending our offices last week concerning your proposed response to a notice from the Department of Immigration and Border Protection to cancel your temporary visa in Australia.

29    This statement is ambiguous. The statement that follows it is odd, to say the least, and it is also inconsistent with the evidence of Josefa Graff:

You advise that you seek my migration assistance in the lodgement of a permanent residency visa and furthermore seek advice on the most appropriate visa for your circumstance.

30    Nevertheless, later in the letter of advice Mr Balzola referred to Mr Graff’s criminal history and his imprisonment and observed:

These combinations (sic) of facts has triggered discretionary statutory powers to consider cancellation on character grounds of your existing visa. As a temporary visa holder the weight of discretion is more against you than if you were a holder of a permanent residency visa…

Discretion available to a departmental decision maker in considering whether to cancel your visa or not is prescribed in a ministerial instrument as Direction 55. I reviewed those provisions with your family at our interview…

The migration assistance to be given is to make representations on Direction 55…

31    Mr Balzola not only laboured under the misconception that there had been no decision to cancel the visa, he also mistakenly assumed that the decision would be made by “a departmental decision maker”. Mr Balzola admitted he was aware that decisions of this kind may be taken by the Minister personally. Quite why he assumed otherwise in this case is yet another unexplained circumstance.

32    In all these circumstances, and despite the gaps in the evidence, I accept that the delay was caused by Mr Balzola’s errors and omissions and I would not fix Mr Graff with them. The delay is not slight but neither is it considerable and the Minister did not submit that he had been prejudiced by it.

33    Be that as it may, I am not persuaded that it is necessary in the interests of the administration of justice to make the order extending the time to appeal. That is because the substantive application is hopeless.

34    The Minister’s statutory task was to consider whether he should exercise his discretion in Mr Graff’s favour. To that end he took into account the nature and seriousness of his offences and the risk that Mr Graff would re-offend. It is not suggested (nor could it be) that these matters were irrelevant. To the contrary, having regard to the object of the Act (“the regulation, in the national interest, of the coming into, and presence in, Australia of non-citizens”: s 4(1)) they were relevant. In Djalic at [71] the Full Court held:

the legislation is designed to protect the community from criminal or other undesirable conduct and to permit the Minister to give effect to what might loosely be described as community expectations that perpetrators of such conduct, should not be permitted to remain in Australia.

35    The Court in Djalic accepted that it may be “ultra vires the statute” for a decision-maker to purport to exercise a statutory power to cancel the visa of a non-citizen in order to punish him or her “and not for protection of the Australian community or some other legitimate objective” (at [66]). But to make out such a case, the Court said (at [65]) that it was necessary to adduce evidence of the decision-maker’s actual purpose. The passages in the Minister’s reasons upon which Mr Graff relies fall far short of this.

36    Counsel for the Minister submitted that the epithets “repugnant” and “abhorrent” may fairly be seen as expressions of community values. I accept the submission. Read in context that appears to be precisely what the Minister is saying. The finding in [15] that the criminal conduct is “repugnant” appears immediately after the observation that his crimes are “not in line with community values”. The finding in [39] that the crimes are “abhorrent” is immediately followed by a finding that they are “contrary to values held by the Australian community”. These findings do not connote an intention to cancel the visa in order to punish Mr Graf for the offences. The Minister’s concern was with the interests of the Australian community. Mr Karp acknowledged that the Minister was entitled to have regard to community values. In Djalic at [74] the Full Court held:

To take account of community expectations is to give effect to the Minister’s conception of the public interest. Sometimes this consideration may work in favour of the non-citizen … Often, however, the Minister’s assessment of community expectations will work against the non-citizen. This will be so, for example, where the Minister gives effect to his or her assessment of “community expectations” in determining that the non-citizen has engaged in behaviour that is unacceptable to the Australian community. To take account of such a consideration, however, is not to impose punishment for a criminal offence. There is therefore no occasion to read down s 501(2) to exclude consideration of community expectations from the scope of the Ministerial discretion to cancel the visa of a non-citizen.

(Emphasis added.)

37    I accept that the Minister’s remarks are likely to also reflect his personal opinion about the seriousness of the offending. But that opinion is not legally irrelevant where the Act confers the discretion on the Minister and he exercises it personally. Far from it. In considering the seriousness of a non-citizen’s offending for the purpose of determining whether he should exercise his discretion to cancel (or for that matter refuse) a visa, the Minister is entitled to express himself in a manner appropriate to the circumstances of the particular case. The Minister’s language was strident. It might even have been be characterised as emotive. But as Mr Karp, himself, conceded, in the circumstances of the present case, it was not inappropriate. Nor was it disproportionate.

38    Mr Graff’s case is untenable.

Conclusion

39    The application must be dismissed. Mr Graff should pay the Minister’s costs. Orders will be made accordingly.

Associate:

Dated:    21 October 2014