FEDERAL COURT OF AUSTRALIA

Ngati v Minister for Immigration and Border Protection [2014] FCA 1172

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 seeks judicial review of a decision of the respondent, the Minister for Immigration and Border Protection (the Minister) to cancel the applicant’s Class TY, Subclass 444, Special Category (Temporary) visa under s 501(2) of the Migration Act 1958 (Cth) (the Act) on the ground that he did not satisfy the Minister that he passed the “character test”, defined in s 501(6) of the Act.

Background

2    The applicant is 40 years of age and is a citizen of New Zealand. He first arrived in Australia on 11 October 1980, when he was six years of age, and departed on 24 October 1997. He returned to Australia on 2 January 1999 and has not departed since that date. He has an extensive criminal history in Australia, commencing from 1994. He has been convicted of a number of offences involving violence, which have resulted in significant sentences of imprisonment being imposed upon him.

3    On 9 April 2009, the applicant was convicted by the District Court of New South Wales for a specially aggravated break, enter and steal offence committed on 7 January 2007. He was sentenced to imprisonment for nine years, commencing on 19 September 2007, with a non-parole period of six years and seven months.

4    On 9 October 2013, a delegate of the Minister notified the applicant of the Minister’s intention to consider cancelling his visa. This was followed by further correspondence from delegates of the Minister in which various documents relevant to the Minister’s consideration were provided to the applicant for comment. The applicant also participated in a telephone interview and provided certain written information.

5    The Minister’s decision to cancel the applicant’s visa was given on 23 June 2014.

The Minister’s decision

6    The Minister found that the applicant did not pass the character test having regard to the sentence of imprisonment to which I have referred at [3] above.

7    When considering whether to exercise the discretion to cancel the applicant’s visa, the Minister had regard to the applicant’s history of violent criminal conduct, noting that a number of the offences that he had committed were very serious. The Minister found that the applicant’s criminal behaviour had caused significant harm to members of the Australian community.

8    The Minister accepted that the applicant’s substance abuse problems were a significant contributing factor to his criminal offending. The Minister noted the applicant’s attempts at rehabilitation. However, in light of the applicant’s relapse into drug abuse, the Minister considered that the applicant would face difficulty in attempting to remain drug-free.

9    The Minister accepted that the applicant’s academic and employment achievements during his latest period of imprisonment indicated a level of rehabilitation that would provide the applicant with career opportunities. Despite these steps towards rehabilitation, and the assurances that he would remain drug-free and not reoffend, the Minister concluded that there was a real chance that the applicant would commit further serious crimes that would cause significant harm to the Australian community. The Minister concluded that the risk of the applicant reoffending was unacceptable.

10    The Minister considered the applicant’s ties to Australia and concluded that those ties were strong. The Minister gave primary consideration to the best interests of the applicant’s four children under the age of 18 years, who reside in Australia. The Minister concluded that, having regard to the possible financial and emotional benefits to his children if the applicant were permitted to remain in Australia, as well as the psychological hardship they may suffer if he is removed from Australia, it was in the best interests of each of the applicant’s children less than 18 years of age, for his visa not to be cancelled.

11    The Minister also considered the applicant’s long de facto spousal relationship and accepted that his spouse would suffer emotional hardship if the applicant’s visa were to be cancelled. The Minister also accepted that the applicant’s two adult children, and his father and seven siblings, who all reside in Australia, would suffer some emotional hardship should the applicant be removed from Australia.

12    The Minister accepted that the applicant has no relatives or support in New Zealand. The Minister concluded, however, that the applicant would have access to the full range of economic, medical, social and welfare benefits provided by the New Zealand Government. The Minister expressed the belief that the applicant’s qualifications and experience, obtained in the hospitality industry, would enhance his prospects of obtaining employment in New Zealand. Further, the Minister considered it unlikely that the applicant would face any substantial language or cultural barriers if returned to New Zealand.

13    Finally, after noting the applicant’s substance abuse problems, the Minister concluded that the health care system in New Zealand is of a comparable standard to that available in Australia, such that it could be expected that the applicant would receive a satisfactory standard of treatment in that country for his substance abuse problems.

14    Taking all these matters into account, the Minister concluded:

In reaching my decision I conclude that Mr NGATI represents an unacceptable risk of harm to the Australian community. I consider that the protection of the Australian community outweighs any countervailing considerations above, including Mr NGATI’s ties to Australian [sic], the best interests of his children less than 18 years old and the hardship that will be suffered by his immediate family because of my decision.

15    I should also record that, on 31 January 2007, prior to his last conviction, the applicant was notified that his visa may be liable for cancellation under s 501 of the Act on character grounds. However, after taking into account all relevant considerations, a delegate of the Minister decided not to cancel the applicant’s visa. Nevertheless, the applicant was given a formal warning, in the following terms:

Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.

The application for a review

16    The applicant’s originating application for review, filed on 16 July 2014, contains seven grounds, stated as follows:

1.    The Minister for Immigration and Border Protection was not and did not act in good faith when he made his decision to cancel my Class TY, Subclass 444, Special Category (Temporary) visa on 23 June 2014.

2.    The Minister for Immigration and Border Protection decision is vitiated by jurisdictional error.

3.    The Minister for Immigration and Border Protection denied me procedural fairness and natural justice when he made his decision on 23 June 2014. Given the fact that the Minister for Immigration and Border Protection knew and ought to have known that pursuant to section 201(a)(b)(i)(ii)(A)(B)(C) of the Migration Act 1958, and by the operation and force and the strength of that section of the Migration Act 1958, I am protected and exempted from being deported from Australia.

4.    That section 501 of the Migration Act 1958 is inconsistent with the provisions of section 201(a)(b)(i)(ii)(A)(B)(C) and other parts of the Migration Act 1958.

5.    The decision of the Minister for Immigration and Border Protection to cancel my visa given the provisions of section 201(a)(b)(i)(ii)(A)(B)(C) and other parts of the Migration Act 1958 is beyond power, invalid and unconstitutional.

6.    The judgement in the matter of Nystrom was wrong and wrongly decided and this matter should be transferred to the High Court of Australia should the decides [sic] that it is unable to reach a clear and decisive decision due to Nystrom.

7.    The Minister for Immigration and Border Protection did not inform nor warn me that he was not going to have regards and take into consideration the provisions of section 201(a)(b)(i)(ii)(A)(B)(C) and other parts of the Migration Act 1958, and thereby put me on notice and give me adequate opportunity to make comments and put in submissions that the Minister for Immigration and Border Protection should not embark on such course.

17    Grounds 3 to 7 are premised on the power to cancel a visa under s 501 of the Act being unavailable where the power of the Minister to deport a non-citizen is not available by dint of s 201 of the Act, which relevantly provides that the Minister’s power to order the deportation of a non-citizen under s 200 of the Act 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.

18    Similar grounds were considered by Perry J in Taniela v Minister for Immigration and Border Protection [2014] FCA 375. Her Honour reasoned that, in light of the decision in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, those grounds must be rejected: see at [30]-[37]. Her Honour’s decision was upheld on appeal (Taniela v Minister for Immigration and Border Protection [2014] FCAFC 104), the Full Court stating (at [18]):

18    The Parliament had power to pass laws under s 51(xix) and (xxvii) of the Constitution with respect to naturalisation and aliens and immigration and emigration. The Act is a law with respect to those subject matters and each of ss 201 and 501 was validly enacted by the Parliament. As the High Court held in Nystrom 228 CLR 566, each of the provisions has a separate and distinct operation and nothing in the provisions of ss 200 and 201 controls or affects in any way the construction and operation of s 501. Her Honour was correct to have applied the principles in Project Blue Sky 194 CLR at 381-382 [70] in that regard. In any event, this Court, as was her Honour, is bound by, and must apply, the decision of the High Court that found that there is a separate operation of each of ss 201 and 501. For the reasons in Nystrom 228 CLR 566, the grounds of appeal in relation to inconsistency and unconstitutionality are hopeless and must be dismissed.

19    It follows that grounds 3 to 7 of the present application must also be rejected. This outcome, in light of the binding nature of the High Court’s decision in Nystrom, appears to be foreshadowed in ground 6 of the present application.

20    Grounds 1 and 2 of the present application remain to be decided.

21    At the commencement of the hearing, I asked the applicant, who was unrepresented, to specifically address me on those two grounds.

22    With respect to ground 1, which alleges that the Minister did not act in good faith when deciding to cancel the visa, the applicant said that the only ties he had were with Australia. He said that his only connection with New Zealand was the fact that he was born there. He also felt that he had not been given an opportunity to show that he had changed his life. By this last remark, I understood the applicant to mean that he felt he should have been given an opportunity to demonstrate, by remaining in Australia, that he had changed his ways.

23    These submissions do not make out ground 1 of the application. In any event, the Minister plainly accepted that the applicant had no relatives or support in New Zealand and took this factor into account when weighing up how his discretion under s 501 should be exercised. The Minister was not required to give the applicant a chance to demonstrate that he had changed his life. It follows that this ground of review must be rejected.

24    With respect to ground 2, which alleges that the Minister’s decision was vitiated by jurisdictional error, the applicant was unable to identify the error on which he sought to rely. Having carefully considered the Minister’s reasons, I am unable to see how the Minister’s decision was affected by jurisdictional error. It follows that this ground of review must also be rejected.

Disposition

25    The applicant has not identified any ground on which this Court can quash the Minister’s decision. The application will be dismissed with costs.

Associate:

Dated:    7 November 2014