FEDERAL COURT OF AUSTRALIA

Brown v Minister for Immigration and Border Protection

[2015] FCA 75

THE COURT ORDERS THAT:

1.    The amended application dated 1 September 2014 be dismissed.

2.    The applicant pay the respondents’ costs.

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

REASONS FOR JUDGMENT

1    By an amended application dated 1 September 2014 Mr Brown seeks review of a decision by the Minister for Immigration and Border Protection (Minister) on 30 May 2014 to cancel Mr Brown’s Class BF Transitional (Permanent) visa (Visa) (Decision). The Visa was cancelled by the Minister pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Act).

2    Mr Brown seeks orders that the Decision ‘be Quashed’ and that the Decision be ‘redetermined … according to law’ pursuant to s 476A of the Act.

facts

3    Mr Brown’s history is set out in the Minister’s written submissions. The following facts are not in dispute:

    Mr Brown is a 49 year old citizen of the United Kingdom.

    He first came to Australia on 12 March 1968 and has not departed since.

    From 1 September 1994 he held the Visa which was deemed to have been granted to him under the Migration Reform (Transitional Provisions) Regulations. The Visa was a permanent visa which gave Mr Brown permission to remain in Australia on an indefinite basis (s 30(1) of the Act).

    Furthermore, as he was regarded as having ceased to be an “immigrant” before 2 April 1984, and as he did not leave Australia before 1 September 1994, he was recognised by the Department of Immigration and Citizenship (as it then was) (Department) as having been the holder of an Absorbed Person visa (s 33 of the Act).

    Although considered a member of the Australian community, permission for the holder of an Absorbed Person visa to remain in Australia continues to be regulated by the Act.

    Mr Brown is married to an Australian citizen, with whom he has a 10 year old child, also an Australian citizen.

    He has two children from a previous relationship, aged 25 and 23, and is the step-father to three children, aged 13, 20 and 22, all of whom are Australian citizens.

    He has three grandchildren, who are Australian citizens.

    His mother, three brothers and sister, although citizens of the United Kingdom, all live in Australia.

4    Relevantly, on 18 October 2006, Mr Brown was convicted in the District Court of New South Wales of shooting with intent to murder and was sentenced to 15 years imprisonment, including a non-parole period of 10 years. The NSW Court of Criminal Appeal refused leave to appeal the District Court decision and dismissed the appeal (Brown v R [2008] NSWCCA 306).

5    The facts of the offence are set out in the District Court’s sentencing remarks. Mr Brown and his co-offender had been members and officer holders of the Outcast Motorcycle Club, as was the victim of the offence. Mr Brown was the Sergeant-at-Arms in charge of discipline in the club. The victim and Mr Brown's co-offender had been travelling from Brisbane to Sydney in the victim's truck on the premise that there was work for the victim in Sydney. The truck was driven to a place on the Pacific Highway about 10 kilometres south of Grafton where the victim and the co-offender were to meet Mr Brown. Mr Brown shot the victim while the victim was seated in the cabin of the truck.

6    As a result of this sentence of imprisonment, Mr Brown has a substantial criminal record under s 501(7) of the Act. The Minister found that Mr Brown did not pass the character test under s 501(6) of the Act, and that Mr Brown had not satisfied the Minister that he passed the character test.

7    Mr Brown’s criminal history includes other offences, but of a less serious nature, including:

    On 27 February 1984, possession and smoking of Indian hemp.

    On 12 October 1989, driving whilst his licence was cancelled and exceeding the speed limit.

    On 17 March 1998, cultivation of a prohibited plant, possession of equipment for administering prohibited drugs, possession of a prohibited drug and administeringIattempting to administer prohibited drug to another.

    On 21 April 1998, driving with a low range of prescribed concentration of alcohol.

8    These offences, each of which resulted in a fine, are not presently relevant and were not relevant to the Minister’s decision.

The Minister’s decision

9    Mr Brown held both the Visa and an Absorbed Person visa, both of which were cancelled as a result of the Decision. The Visa was cancelled in the exercise of the Minister’s discretion under s 501(2) of the Act, which enables the Minister to cancel a visa if:

    He reasonably suspects that the person does not pass the character test; and

    The person does not satisfy the Minister that the person passes the character test.

10    The Absorbed Person visa was cancelled by operation of law pursuant to s 501F(3) of the Act.

11    The Decision followed a period of correspondence between the Department and Mr Brown in relation to the possible exercise of the cancellation of power under s 501(2). It commenced with a letter from Mr Brown to the Minister dated 3 January 2012 headed “Review for Residential Status and an allocated Case Manager”. The applicant noted that he was eligible for certain programs in prison but that the General Manger of Grafton Correctional Centre (where he was held) was unable to process his case until his immigration status was finalised. Mr Brown requested ‘an expedient review of my residential status so I can participate in rehabilitation programs and support my Family’.

12    On 5 April 2012, the Minister sent to Mr Brown a “Notice of intention to consider cancellation of your visa under subsection 501(2) of [the Act]” (Notice). The Notice stated that:

Your visa is to be considered for cancellation under subsection 501(2) of [the Act] on the grounds that you appear to have a substantial criminal record. This does not mean that your visa will necessarily be cancelled when a decision-maker considers your case. The decision-maker will take all relevant available information into account when making the decision about your visa.

Before any decision is made, you have the opportunity to comment on the information that will be considered by the decision-maker and to submit extra information if you wish.

13    In the Notice, Mr Brown was informed that he had the opportunity to provide information in relation to whether he passed the character test in s 501 of the Act. The Notice further said that ‘it is in your interest to provide any information of relevance that we may not have’; giving examples of appropriate information including statements from family members, welfare officers etc. The Notice also enclosed a copy of Direction No. 41 – Visa Refusal and Cancellation under s 501 (Direction 41).

14    Mr Brown responded to the Notice on 27 April 2012. The response attached various documents, including documents from the NSW Department of Corrective Services. In particular, Mr Brown’s response included a work report from Grafton Correctional Centre which stated, inter alia, that Mr Brown had commenced employment in corrective services, with Corrective Services Industries, Grafton Correctional Centre in which period he ‘has excelled in the areas of general maintenance due to his hands on skills’. The manager of Industries has also stated that Mr Brown was always ‘very polite and helpful’, that he had undergone a work readiness assessment which the manager endorsed and that he was of ‘very good character’ with no misconduct while at Grafton.

15    On 26 November 2012, a case officer from the Department wrote to Mr Brown offering the opportunity to comment on new information, being a National Police Certificate dated 26 April 2012.

16    Mr Brown provided his response to the National Police Certificate by dated 6 December 2012, in which he noted that the National Police Certificate listed four offences over a 22 year period, three of which were minor offences and the fourth being the offence for which he was incarcerated. Mr Brown gave a detailed explanation of his personal circumstances at the time of the offence, the offence itself and his family. He explained why he believed that he had been rehabilitated and referred to his goals on release.

17    On 23 May 2013, a case officer from the Department’s National Character Consideration Centre again wrote to Mr Brown to give him an opportunity to comment on new information, being a National Police Certificate dated 13 May 2013 and a NSW Department of Corrective Services Conviction, Sentences and Appeals Report dated 23 April 2013.

18    The 23 May 2013 letter was followed by another letter to Mr Brown on 13 June 2013, which gave him the opportunity to comment on further new information comprising:

    A letter from Stuart Murray dated 7 June 2013. Mr Murray wrote on behalf of the Glen Innes Correctional Centre. The letter expressed positive views about Mr Brown saying, inter alia, that he had ‘good work and custodial reports’ that he was considered ‘a mature and complaint [sic] inmate’.

    A certificate of achievement – CALM (Controlling Anger and Learning to Manage it) dated 5 September 2011, being a course completed at the Grafton Correctional Centre on 5 September 2011.

    A memo dated 9 January 2012 concerning the VOTP Program (Violent Offenders Therapeutic Program). Mr Brown had been referred to that program but he was found to be ineligible, as his risk assessment placed him in the low/medium range of risk of re-offending category, and that he did not appear to have a history of violent convections.

    The urinalysis history report dated 7 June 2013.

    An Alerts Detailing Report dated 7 June 2013.

    An Integrated Case plan screen printout sent on 7 June 2013.

    Offence In Custody printout sent on 7 June 2013.

    A Case Note Report dated 7 June 2013.

19    That Case Note Report consisted of a number of entries over a period of time from various staff members in the NSW Department of Corrective Services noting, among other things, that Mr Brown:

    Had completed certain courses;

    Had no issues;

    Received regular visits from family and phone calls;

    Was working well with good reports;

    Was continuing to do an excellent job as a workshop foreman and building maintenance;

    Had been proactive in trying to sort out a character assessment check through the department with the view to becoming an Australian Citizen;

    Indicated no requirement for alcohol or other drug intervention.

20    It could be said that all of the material to which Mr Brown was being asked to respond consisted of positive statements about him both personally and as to his work history.

21    On 19 June 2013, Mrs Brown sent three emails to the Department attaching a number of documents. She forwarded further documents via email on 20 June 2013. Those documents included statements from Mrs Brown and other members of his family, including his children, as well as various documents concerning Mr Brown’s work performance, behaviour and courses undergone while in prison.

22    On 28 June 2013, the Department wrote to Mr Brown inviting him to comment on the information that had been attached to the emails from his wife. In particular, the letter noted that ‘as Mrs Brown sent the above materials attached to a number of emails, I would ask that you examine them to ensure that all were received and advise us if you consider that any are missing’.

23    On 9 July 2013, Mr Brown acknowledged receipt of the Department’s letter of 13 June 2013, saying that he had read everything in that package and was ‘agreeable to its contents’. He also directed the case worker to contact Mrs Brown if she required any further information.

24    A NSW Department of Corrective Services case note entry on 17 December 2013 records that Mr Brown’s parole officer, Mary Deen, had tried to contact the current case officer from the Department but that the latter was on leave, and that a decision was still pending.

25    A case note entry dated 1 January 2014 notes the work that Mr Brown had been undertaking in various areas and that he was reintegrating into the community well and looked forward to entering the workforce and providing for his family on release.

26    A further case note entry dated 6 January 2014 records that the NSW Department of Corrective Services had received a contact from the Department’s case officer, who had advised that Mr Brown was under consideration and that she would advise of the outcome.

27    The Department made contact with Mrs Brown on 7 January 2014. Mr Brown had authorised the Department to contact Mrs Brown for further information. A file note of the conversation shows that Mrs Brown was advised that the Department had neglected to enclose the current Ministerial Direction (No. 55) (Direction 55) with the Notice. Direction 55 replaced Direction 41. Mrs Brown was advised that the Direction 55 would be sent to Mr Brown for his comment. Mrs Brown was asked what she would do in the event that Mr Brown’s Visa was cancelled. Mrs Brown advised as follows:

•    She doesn’t know.

•    She has thought about it a lot.

•    Her son is going to the army, they have grandkids and another grandkid due in mid 2014.

•    No one in the family has a passport.

•    She has ‘honestly never considered leaving this country’.

•    Her parents and grandparents are here.

•    They have no connection to the UK – not even [Mr Brown].

•    If [Mr Brown]’s visa is cancelled, she and their family members will experience a lot of hardship either way (whether they go with him or stay in Australia).

•    She does not want either of these outcomes.

•    She is waiting for the department to make its decision.

•    If the decision is to cancel, she will be forced to make a decision then – she is unable to at present.

28    Mrs Brown agreed to a copy of the record of the conversation being provided to Mr Brown for his information and possible comment.

29    On 7 January 2014, the Department wrote to Mr Brown enclosing Direction 55. The Department noted that if the decision maker is a delegate, the delegate must follow Direction 55 but that if the Minister makes the decision personally, he is not required to give consideration to the Direction although it provides a broad indication of the types of issues that the Minister may take into account. Mr Brown was instructed to read Direction 55 carefully and to address each paragraph in Part A of Direction 55 that was relevant to his circumstances.

30    At the time of this letter, Mr Brown’s most recent response to the Department was over 6 months old. He was therefore invited to comment about his current situation including any recent rehabilitation or educational courses that he had completed, his recent present conduct and his current contact with family members and friends. He was invited to provide any other information ‘that you feel the Minister or his delegate ought to take into account’. The letter also enclosed a copy of the file note of the Department’s conversation with Mrs Brown on 7 January 2013, and gave Mr Brown the opportunity to comment.

31    A lengthy case note dated 7 January 2013 by Ms Deen sets out an interview with Mr Brown. The case note records that:

    Ms Deen had been in contact with the Department.

    The Department had advised that it was unsure whether a decision would be made.

    The delay in the Department’s decision would not impact on Mr Brown’s release date, although he may be placed into detention until the decision was made.

32    Ms Deen also discussed with Mr Brown his role in the offence for which he had been convicted and sentenced. This element of the discussion appears to have been the primary purpose of the interview.

33    On 14 January 2014, the Department received a telephone call from Ms Bennett at Grafton Correctional Centre. A file note of the conversation records that Ms Bennett advised the Department case officer that Mr Brown had received the “further information letter” (presumably the letter dated 7 January 2014 enclosing Direction 55) and that he was now at Grafton Correctional Centre not at Glen Innes. The Department case officer advised that while the Department invited Mr Brown’s response ‘to satisfy natural justice’, he was not obliged to respond. However, if Mr Brown wanted the Department to consider his case at Grafton, for instance, ‘he should respond in writing’. The Department case officer also asked Ms Bennett to remind Mr Brown that he could respond with any changes to his general circumstances and ‘anything he thinks it is relevant for the decision maker to consider’; including that he was expecting another grandchild. The Department asked that Mr Brown confine himself to material not currently before it, as it had already received a large volume of information which had been a subject of invitation for further comment.

34    Ms Deen conducted another interview with Mr Brown on 22 January 2014. The case note records that Ms Deen advised Mr Brown that information had been forwarded to the Department as requested and noted that Mr Brown was preparing a letter to the Department.

35    On 23 January 2014, Mr Brown wrote to the Department in response to the letter of 7 January 2014. Mr Brown noted that he was commenting on different sections of Direction 55 and addressed sections 9.1.2, 9.2, 9.3 and 10 of Part A. This included the risk to the community, in respect of which the applicant said:

I do not believe I represent any risk of harm to any individuals, groups or institutions within the Australian community because I have learned so much while being in prison through a variety of courses and I have become a stronger and better person. There is no likely possibility of me reoffending because of the rehabilitation I have received and achieved. I have progressed to the absolute lowest classification that can be achieved which is C3 Stage 2 which allows me to go home every weekend and I have been doing this for quite some time and it means the world to me and my family.

36    Mr Brown also explained his arrival in Australia with his family and his personal history, including meeting his present wife and the members of the family. He explained that he and Mrs Brown have four children; two of whom are under the age of 18, one being 12 and one being 9. He explained that his mother lives in Sydney with a brother and his family. Mr Brown also explained that, despite being in prison for over 9 years, he had continued to play an active role as a father to his children and that he believed would not be in the best interest of his children if he were to be deported, because they:

… would lose any possible chance of personal contact with their father who would be on the other side of the world… If I was to be deported, it would be absolutely devastating to me and my family because all my family and support all live in Australia.

37    Mr Brown also said that if he were to be deported, he would encourage Mrs Brown not to go with him ‘as much as that would tear my heart out’ because of the presence of ‘family, social. medical and economic support’ in Australia and the fact that it would be ‘foreign to us’ in another country.

38    On 5 February 2014, Mrs Brown wrote to the Department saying it would not be possible for her to go with Mr Brown if he left Australia and returned to Ireland. In that letter, Mrs Brown said that they have 6 children (two being Mr Brown’s biological children with Mrs Brown, and the other four being step children whom, as Mr Brown had previously explained, he regarded as his own) who were all Australian citizens and that none of them had ever thought of leaving Australia as ‘we are all very proud of being Australian, we have a grandchild on the way’.

39    Further, Mrs Brown noted, ‘our son is due for intake in the Australian Army in 2015. Our youngest two girls are still at school and doing very well. All of my family and David’s family are here in Australia. Neither of us have any family outside of Australia’. Mrs Brown also explained that the costs associated with obtaining passports and moving were ‘way out of our savings or earning ability’.

40    On 30 May 2014, the Minister provided a statement of reasons for cancellation of the Visa under s 501(2) of the Migration Act (Reasons). It should be noted that the materials before the Minister in making the Decision for the stated Reasons included all of the material sent to and received from Mr Brown. It also included summaries of some of that material, in particular the sentencing remarks of the District Court judge.

41    In the Reasons the Minister noted the class of visa held by Mr Brown and that he was also the holder of an Absorbed Person visa. In summary, the Reasons were stated to be as follows:

Character Test

42    Mr Brown has a substantial criminal record and does not pass the character test. That is not in dispute. Mr Brown has not satisfied the Minister that he passes the character test.

Discretion

43    The Minister considered whether to exercise his discretion, mindful of the Government’s commitment to use s 501 to protect the Australian community from harm that may result from criminal activity or other serious conduct by non-citizens.

Criminal Conduct

44    It is the general view that violent crimes involving physical force against another person and resulting in significant harm are considered to be very serious and contrary to community values and that Mr Brown was convicted of the offence of Shooting with Intent to Murder. The sentencing remarks indicated that Mr Brown actually shot and wounded his victim and that Mr Brown acted with the co-offender and that both were armed. The sentencing remarks described the offence as ‘[o]bjectively … a very serious offence’ and ‘a crime that was a cold-blooded assassination attempt pre-planned by the offenders who were each armed, and the victim was so seriously injured that he required five operations to save his life’. The judge had found the offence did not fall into the worst category but fell above the midrange of seriousness for that category of offence. The judge sentenced Mr Brown to a term of imprisonment of 15 years with a non-parole period of 10 years; the maximum penalty being 25 years. The Minister said in the Reasons that he considered the ‘great harm’ caused by Mr Brown to his victim and adopted the Court’s finding that Mr Brown’s offending was ‘objectively very serious’.

Mitigating factors and risk of reoffending

45    The Minister had regard to information presented as factors relevant to Mr Brown’s offending including his childhood experiences, his drug use and his reference to peer pressure and intimidation by fellow motorcycle club members. The Minister also noted that while there was no expression of remorse by Mr Brown at the time of his sentencing in 2006, he was now genuinely remorseful. The Minister noted that Mr Brown claims to have been rehabilitated, and that he has not returned a positive drug test or been a subject of a prison incident. The Minister also noted Mr Brown’s ‘very good employment history’ and that he had ‘received excellent work reports’ such that his security classifications enabled him to perform work outside the centre and to participate in weekend leave. Mr Brown had the strong support of family members through his incarceration. The Department had received advice in early 2012 that Mr Brown had been assessed as posing a low to medium risk of reoffending. The Minister said that he considered that Mr Brown had continued his efforts of rehabilitation since that assessment. Despite this, the Minister concluded that:

… if Mr Brown were to reoffend by committing a serious, violent offence with the intent to murder, the consequences of his offending are likely to be grave. While I have found the risk of reoffending posed on Mr Brown is low, I found that great harm is attached to this low risk, should he reoffend.

Ties to Australia

46    Mr Brown arrived in Australia in 1968 aged two and that he had not since departed, meaning that he had lived in Australia for 46 years, approximately 10 of which were spent in jail. Mr Brown committed his only offence to result in a sentence for a term of imprisonment after 38 years of residence in Australia. He had a lengthy history of employment, had performed volunteer work and had extensive ties to Australia.

47    The Minister concluded that he found Mr Brown has long standing and significant ties to Australia.

Best interests of the children

48    The Minister gave primary consideration to the best interest of any children who were less than 18 years of age and whose best interests may be significantly affected by the cancellation of Mr Brown’s visa. After stating details of Mr Brown’s children and Mr Brown’s contact with them, as well as the letters and support of their non-cancellation of the visa and written by the children and Mrs Brown, the Minister said:

I accept that, despite his lengthy period of imprisonment, [Mr Brown] has a close, paternal relationship with [the two children] which has been fostered through his frequent telephone and personal contact with each girl. I found that the best interests of [the two children] are served by the non-cancellation of [Mr Brown]’s visa.

49    The Reasons then referred to Mr Brown’s three minor grandchildren and their contact with Mr Brown. The Minister then found that ‘while it is in the best interest of [the three grandchildren] and the other minor children in [Mr Brown]’s extended family, that his visa is not cancelled, any negative effects upon their best interests are mitigated by their relationship with their own parents or carers’.

International Obligations

50    There were no claims that required this assessment.

Other considerations

51    The Minister noted that Mr Brown was married to an Australian citizen, Mrs Brown, with whom he has ‘a genuine, committed, close, spousal relationship’. The Minister accepted that, as Mrs Brown had indicated, she does not intend to depart Australia and that the cancellation of the Visa would cause her significant hardship, which the Minister accepted. The Minister concluded that the cancellation of the Visa and Mr Brown’s removal ‘is likely to result in emotional hardship …’ to his mother, siblings, adult members of his extended family and friends. Mr Brown had been absent from the United Kingdom for around 46 years (since he was 2 years old) and he had no living family members remaining in Northern Ireland and no familial support available to him. All of Mr Brown’s education and employment has been undertaken in Australia.

52    The Minister accepted that Mr Brown would be likely to experience difficulty establishing himself in the United Kingdom and that the cancellation of the Visa will result in physical separation from his family. The Minister found that the cancellation of the Visa was likely to cause Mr Brown significant emotional hardship.

The Minister’s conclusion

53    Having considered all relevant matters, the Minister formed the view that Mr Brown ‘poses an unacceptable risk of harm to the Australian community’ and that he still poses ‘some risk of reoffending’. The Minister continued:

While I accept that [Mr Brown] has participated in rehabilitation and other activities to reduce his risk of reoffending, the seriousness of his offending, and the harm that would be caused if it were to be repeated, makes even a low risk of further offending unacceptable.

I conclude that the protection of the Australian community outweighed [Mr Brown]’s remorse and rehabilitation to date, the best interest of his minor daughters and the other minor family members, his strong ties to the Australian community, and any hardship he and his adult family members in Australia would experience if his visa is cancelled.

54    The Minister decided to exercise his discretion to cancel the Visa.

55    As a result of the Decision, both the Visa and the Absorbed Person visa were cancelled; the Visa being the subject of the exercise of the Minister's discretion under s 501(2) and the Absorbed Person visa through the operation of s 501F(3) of the Act.

The grounds of appeal

56    The application for review is made pursuant to s 476A of the Act. It is necessary for Mr Brown to establish that the Decision was affected by jurisdictional error.

57    The grounds of the application as set out in the amended application are:

(1)    The Minister fell into Jurisdictional error in that he misconstrued the terms of paragraph 9.21(1)(a)(1) of Direction No.55 – Visa Refusal and cancellation under section 501 of the Migration Act (Direction).

Particulars

(a)    Pursuant to paragraph 9.2(1)(a)(1) of the Direction, the Minister was required to determine whether I began offending soon after arriving in Australia in order to assess the strength, duration and nature of my ties to Australia.

(b)    The Minister was required to use the date of my arrival in Australia as the reference date for his determination under paragraph 9.2(1)(a)(1) of the Direction.

(2)    In the alternative to prayer 1, the Minister fell into Jurisdictional error in that he failed to take into account a relevant consideration when determining whether I began offending soon after I arrive in Australia. [sic]

…

(3)    In the alternaive3 [sic] to prayer 1 and 2, the Minister fell into Jurisdictional error in that he took into account an irrelevant consideration when determining whether I began offending soon after arriving in Australia.

…

(4)    The Minister denied me procedural fairness and fell into Jurisdictional error in that he failed to take into account a relevant consideration when determining the cancellation of my visa in that he refused me the opportunity to put in reports from my Parole Officer regarding my parole report.

Particulars

(a)    The Minister refused my parole officer from sending in my parole reports saying to the officer that he does not require and he does NOT need the parole report.

(b)    The Minister was bound by law and indeed Directions 55 to have regard and consider the parole report from my parole officer when determining whether or not to cancel my visa.

(c)    The parole report is very critical and relevant material and material documentation that was relevant to the risk that pose to Australia and my conduct since I was released into the community and would have been and is relevant to the Ministers determination whether or not I still pose a risk to the Australian Community given that report from my parole officer.

(5)    The Minister denied me procedural fairness and fall into Jurisdictional error in that he failed to consider the best interests of my minor children as a Primary consideration even though he said he did.

Particulars

(a)    The Ministers consideration of the best interests of my minor children was done and left at a hypothetical level in other words a mere hypothesis.

58    The asserted grounds were characterised by the Minister in the following terms:

    Grounds 1-3 are concerned with findings the Minister is said to have made concerning the length of time between Mr Brown’s arrival in Australia and when his offending began. Mr Brown claims the Minister misconstrued paragraph 9.2(1)(a) of Direction 55, failed to take into account a relevant consideration (namely the date of his arrival in Australia) and took into account a consideration that was irrelevant to whether Mr Brown began offending soon after arriving in Australia;

    Ground 4 is a claim of denial of procedural fairness on the basis that Mr Brown was refused an opportunity to put in parole reports from his parole officer;

    Ground 5 states that the Minister failed to consider the best interests of Mr Brown’s minor children – from the particulars, however, the real claim appears to be that the consideration of the children’s interests was done “at a hypothetical level”.

59    It is helpful to consider the grounds of review by reference to this characterisation.

sUBMISSIONS and consideration

Grounds 1-3

60    Mr Brown submits that the Minister was bound by law to follow Direction 55 and paragraph 9.2(1)(a)(1) of that Direction in the exercise of his discretion to cancel the Visa. Mr Brown further submits that the Act is binding on the Minister himself as well as his delegates.

61    Grounds 1-3 are not supported by the facts or the law.

62    Direction 55 is the direction given by the Minister with the purpose of ‘guid[ing] decision-makers performing functions or exercising powers under section 501 of the Act to refuse to grant a visa to, or cancel the visa of, a person who does not satisfy the Minister that the person passes the character test’. Direction 55 is given in the exercise of the power under s 499(1) of the Act. Direction 55 does not bind the Minister where the Minister exercises a power under s 501 personally (Graff v Minister for Immigration and Border Protection [2014] FCA 1125).

63    Mr Brown’s contentions centre on paragraph 9.2(1)(a)(i) of Direction 55. Paragraph 9.2 provides that a decision maker must have regard to ‘[h]ow 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; and

(ii)    More weight should be given to time the person has spent contributing to the Australian community.

64    Even if the Minister were bound by Direction 55, the Reasons show that the Minister did in fact give consideration to the length of Mr Brown’s residence in Australia and the timing of his offences, noting (at [14]-[15] of the Reasons), that Mr Brown arrived in Australia on 12 March 1968 and that his earliest conviction was recorded in 1984, when Mr Brown had lived in Australia for around 16 years. The Reasons further noted that the only offence by Mr Brown to result in a sentence to a term of imprisonment was committed after 38 years of residence in Australia (at [15]). Indeed, the Minister ultimately concluded that Mr Brown had ‘long-standing and significant ties to Australia’ (at [17]).

65    On a fair reading of the Reasons, it is clear that the fact that Mr Brown had been in Australia for 16 years before his first recorded offence and 38 years before the only offence to result in imprisonment were considered and that the Minister did not reduce the weight given to Mr Brown’s ties to Australia.

66    These grounds have not been established.

Ground 4

67    Mr Brown submits that the Minister ‘refused’ him the opportunity to put before the Minister relevant documents. At the hearing, Mr Brown took the Court to his Parole Pre-Release Report and a Prison Case Note Report issued by the NSW Department of Corrective Services (additional documents) and submitted that had the Minister ‘had regard and taking into account these critical relevant materials and consideration, the decision of the Minister would have been a different one’.

68    Mr Brown notes that in considering the cancellation of the Visa, the Minister had before him a memorandum headed “Issues for Consideration for Possible Visa Cancellation under Subsection 501(1) of the Migration Act 1958” (Memorandum). Mr Brown asserts that none of the letters sent to him by the Minister, nor the Memorandum, noted the fact that Mr Brown had requested that the additional documents be put before the Minister for his consideration. Particularly, Mr Brown says, he was given no opportunity to put submissions to the Minister as to the relevance of the information contained in the additional documents. He says that this constitutes a denial of natural justice and procedural fairness and also constitutes a failure by the Minister to ask a relevant question and to take into account critical relevant material. Therefore, Mr Brown submits, the Minister fell into jurisdictional error.

69    The Minister rejects the allegation that Mr Brown, or Mr Brown’s parole officer, were denied the opportunity to submit the additional documents. Mr Brown points to the reference in the additional documents to the low risk of his reoffending and the fact that he was granted parole on his first attempt. He submits that these matters would have established that he had been “rehabilitated”. He also says that he assumed that the Department would have ensured that it had access to all relevant documents, including the additional documents. He also says that he assumed that the Minister would have contacted his case workers, including Ms Deen, who would have reinforced the fact that he presented a very low risk to the community and that he had participated in thirteen months of weekend release in the lowest classification.

70    Mr Brown, in his affidavit of 22 September 2014, asserts without any supporting evidence from Ms Deen, that she had offered information concerning Mr Brown’s status and that the offer was rejected or not accepted. The Minister objected to the admissibility of this evidence. It is not in dispute that Ms Deen had been in contact with the Department but there is no evidence from her, or in her case notes, supporting the assertion.

71    The chronology shows that Mr Brown was repeatedly invited, without restriction, to provide any information he sought to place before the Minister, including the content of case reports. For example, in the letter dated 7 January 2014, Mr Brown was invited to comment on the substance of the case worker’s conversation with Mrs Brown and also as to his ‘current situation, including…your recent prison conduct’. The letter requested a response by 7 February 2014 but it also provided for Mr Brown to request an extension of the period to respond. The submission to the Minister did refer to the expected date of release and it was open to Mr Brown to note that this was the earliest date possible.

72    The Minister has no obligation to seek information. In any event, when the additional documents are compared to the information that was before the Minister, including other case reports (such as that dated 7 June 2013 and referred to in the letter of 13 June 2013), it is clear that there is nothing in the additional documents of which the Minister was not informed. A failure to consider a piece of evidence does not in itself establish jurisdictional error if the claims on which the person relies have been fully considered (Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [28]; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46]). It is apparent that all of the claims on which Mr Brown relies in support of the non-cancellation of the Visa were before the Minister and were considered.

73    This ground is not established.

Ground 5

74    Mr Brown submits that the Minister’s reasons as a whole indicate that ‘the Minister either found or assumed it is not clear … only that it may be in the children’s best interests for my visa not to be cancelled, presumably on the basis that their interests may be significantly affected again, presumably adversely by reason of the fact they may suffer emotional and financial hardship by the cancellation of my visa’.

75    The Reasons demonstrate that the Minister considered the interests of the children.

76    The thrust of Mr Brown’s submission on this ground seems to be that the children’s best interests were left at the level of mere hypothesis, such that the Minister did not in fact treat the best interests of Mr Brown’s children as a primary consideration, even though the Minister said that he did in the Reasons. Mr Brown submits that the Minister could not have done so because ‘he was never confronted [with] the central question of what the best interests of my children required him to decide with respect to the proposed cancellation of my visa’. Mr Brown says that, not having done so as a starting point, the Minister ‘also could not then assess whether any other considerations outweighed the best interests of my children understood as a Primary consideration’.

77    Mr Brown submits that he had a legitimate expectation that the children’s interests would in fact be considered and balanced against other considerations. As they were not, he says, he was denied procedural fairness.

78    Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273 (Teoh) requires the Minister to give primary consideration to the best interests of any children who are less than 18 years of age and whose interests may be significantly affected by cancellation of the Visa. The Minister, at [18] of the Reasons, indicated his compliance with the Teoh obligation. The Reasons contain consideration of Mr Brown’s relationship with his daughters with Mrs Brown, including noting the daily contact between Mr Brown and his daughters, the regular and frequent visits made by his daughters to see him in prison, and that since mid-2013 Mr Brown had accessed weekend leave to stay with his family. The Minister then noted the letters received from Mr Brown’s daughters supporting the non-cancellation of the Visa and that both Mr and Mrs Brown had submitted that the cancellation would result in his separation from his daughters and would have a detrimental effect on them. The Minister expressly acknowledged that the best interests of Mr Brown’s children would be served by the non-cancellation of the Visa, and that the interests of Mr Brown’s grandchildren, nephews and nieces would also be affected by the cancellation of the Visa.

79    The Reasons set out and make repeated reference to Mr Brown’s children, step-children and granddaughters. The Minister accepted the paternal relationship between Mr Brown and his children. The Minister found that the best interests of the children would be served by non-cancellation of the Visa.

80    The Minister complied with his obligations concerning the best interests of the children. The complaint by Mr Brown in this regard seems not to be that the children’s best interests were not considered but that those interests did not outweigh countervailing considerations.

81    There are no particular aspects of Mr Brown’s claims regarding the best interests of the children that are said not to have been considered, or not considered adequately. It is more likely that this ground of review reflects a difference of opinion on the part of Mr Brown as to the weight that should be given to the interests of the children. Given that the Minister did determine what the best interests of the children entail and did take those interests into account in deciding upon the cancellation of the Visa, the Minister has complied with his obligations concerning those interests. The weight to be given to those interests was a matter for the Minister (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24). The conclusion that the protection of the Australian community outweighed other considerations, including the best interests of the children, was a finding that was open to the Minister in the exercise of his discretion. That others may disagree with that finding does not cause it to be affected by jurisdictional error.

82    This ground has not been established.

Australian citizen

83    Mr Brown submits that the Minister’s power to cancel and/or revoke the Visa was “unavailable”, and that the Minister had no power to cancel the Visa because he is an Australian citizen.

84    This ground of appeal was not contained in the amended application. The applicant advanced this ground in his written submissions which were filed on 17 November 2014, after the Minister had filed his submissions and a day before the hearing. Mr Brown elaborated his contentions at the hearing. The Minister did not have the opportunity to address this ground in his written submissions and said that there was insufficient opportunity to address the argument at hearing. For these reasons, the Minister was invited to provide additional written submissions addressing this ground. Mr Brown was given the opportunity to reply.

85    Mr Brown draws the Court’s attention to the following undisputed facts, that he:

    Is a citizen of the United Kingdom.

    First came to Australia on 12 March 1968 and has not departed since.

    Is married to an Australian citizen with whom he has a 10 year old child, also an Australian citizen.

    Has 2 children from a previous relationship, and is stepfather to 3 children, all of whom are Australian citizens.

    His mother, 3 brothers and sister all live in Australia.

    Has no family outside of Australia.

86     Mr Brown submits that the above factors mean that he is ‘a British Subject owing allegiance to the Crown who arrived in Australia as a child before 1984 and has become integrated into the Australian community [and therefore] is an Australia Citizen’, in reliance on Re Patterson; ex parte Taylor (2001) 207 CLR 391 (Patterson). Mr Brown submits that his case is the same as in Patterson, and that the Regulations made pursuant to the Act providing for deemed visas could not convert the status of a citizen to that of a non-citizen.

87    The facts of Patterson were very similar to the present case. In Patterson, a majority of the High Court held that a British subject was not an alien but was a subject of the “Queen of Australia” and therefore cannot be deported under the aliens or immigration powers conferred on the Parliament by s 51 of the Commonwealth of Australia Constitution Act 1901(Cth) (the Constitution).

88    Mr Brown submits that he is an Australian citizen and not an alien and is, therefore, ‘outside the reach of the [M]inister’s power either under section 501 or 201’ of the Act. In support of this proposition, he relies on and cites extensively from Patterson. He also cites support from the reasons of McHugh, Kirby and Callinan JJ in dissent in Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28. He submits that Shaw ‘was wrongly decided and the justices have clearly made their views known’.

89    The Minister submits that there is no basis for the Mr Brown’s assertion that he is an Australian citizen and that there is no authority for the proposition that a person can become an Australian citizen simply by having resided in Australia for a long period.

90    There is no evidence that Mr Brown has otherwise obtained Australian citizenship. Mr Brown was not born in Australia. There is no basis on which to find that he is an Australian citizen.

91    The Minister accepts that his power to cancel the Visa under s 501 of the Act extends only to persons who are “aliens” within the meaning of that term in the Constitution. It is in that context that Mr Brown’s reliance on Patterson arises.

92    Patterson overturned an earlier decision of the High Court in Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 where it had been held that Mr Nolan, a citizen of the United Kingdom who had moved to Australia in 1967 and had lived here continuously, was a “non-citizen” under the Act. However, after Patterson, the High Court again considered the question of the ambit of the word “alien” in the Constitution in Shaw. Mr Shaw was a British subject who had lived in Australia since his infancy and had not left Australia since his arrival in 1974. A majority of the High Court (Gleeson CJ, Heydon, Gummow and Hayne JJ) were of the view that Mr Shaw had entered Australia as an alien in the Constitutional sense and that he did not lose that status by reason of his subsequent personal history in this country. Consequently, upon the cancellation of his visa, he became an “unlawful non-citizen” within the meaning of the Act (at [31]). The three dissenting Judges (McHugh, Kirby and Callinan JJ) essentially supported their own reasoning in Patterson. Justice McHugh accepted at [49] that Patterson has no ratio decidendi.

93    Subsequent attempts to re-open the issue of the ambit of the aliens power were rejected in the High Court (Re MIMIA; ex parte Bridge [2004] HCATrans 161 per Heydon J and again six months later in Re MIMIA; ex parte Bridge [2004] HCATrans 408 per McHugh J).

94    The Minister submits, and I accept, that there is authority binding on this Court to the effect that persons in the position of Mr Brown are “aliens” within the meaning of the Constitution. The contention that, because he is not an alien, the Minister did not have power under s 501 of the Act to cancel the Visa is rejected.

95    I note that Notices of a Constitutional Matter were sent by the Minister to the Attorneys-General of the Commonwealth and each of the States and Territories pursuant to s 78B of the Judiciary Act 1903 (Cth). Each of the Attorneys-General indicated that he did not wish to intervene in the proceedings.

CONCLUSION

96    Mr Brown has failed to establish any of the grounds of review. Accordingly, the amended application is dismissed.

Associate:

Dated:    16 February 2015