FEDERAL COURT OF AUSTRALIA

Tusitala v Assistant Minister for Immigration and Border Protection [2016] FCA 845

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

introduction

1    On 15 October 2015 the applicant commenced proceedings in this Court seeking review of a decision of the respondent (the Assistant Minister) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) refusing to revoke a mandatory decision by a delegate of the Minister for Immigration and Border Protection (the Minister) to cancel the applicant’s visa under s 501(3A) of the Act. On 4 November 2015 those proceedings were dismissed on the basis that this Court did not have jurisdiction: Tusitala v Assistant Minister for Immigration and Border Protection [2015] FCA 1188.

2    As a result, on 12 November 2015 the applicant commenced the proceedings now before me by filing an application seeking review of the Assistant Minister’s decision under s 501CA(4) of the Act in the Federal Circuit Court of Australia. On 17 December 2015, on the application of the Assistant Minister, the applicant’s application was transferred to this Court: Tusitala v Assistant Minister for Immigration and Border Protection [2015] FCCA 3482.

3    Thus the application now before the Court is that filed by the applicant in the Federal Circuit Court on 12 November 2015.

statutory scheme

4    Before proceeding further I set out below the statutory scheme relevant to the decision the subject of these proceedings.

5    Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of, relevantly in the case of the applicant:

(1)    paragraph (6)(a) (substantial criminal record), on the basis of para (7)(a), (b) or (c); and

(2)    the person is serving a sentence of imprisonment, on a fulltime basis in a custodial institution for an offence against a law of a State.

6    Section 501(6)(a) provides that:

Refusal or cancellation of visa on character grounds

…

Character test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

And s 501(7) relevantly provides that:

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

…

7    The Assistant Minister considered whether she should revoke the decision made by the Minister’s delegate under s 501(3A) to cancel the applicant’s visa under s 501CA of the Act. That section relevantly provides:

501CA    Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

…

8    Pursuant to s 499(1) of the Act the Minister may give written directions to a person or body having functions or powers under the Act about the performance of those functions or the exercise of those powers. Section 499(2A) provides that a person or body must comply with a direction under s 499(1). Direction 65 – visa refusal and cancellation under s 501 and revocation of a mandatory cancellation under s 501CA (the Direction) was made pursuant to s 499. It is binding on a delegate exercising the Minister’s power under, relevantly, s 501CA but not binding on the Minister personally.

Background

9    The applicant is a citizen of New Zealand. He first arrived in Australia on 28 August 2003, aged nine, as the holder of a Class TY Subclass 444 Special Category (Temporary) visa. Commencing on 7 May 2004 he was absent from Australia for periods of time until 21 January 2012 when he finally returned. At that time he was granted a further Class TY Subclass 444 Special Category (Temporary) visa. That visa allows the holder to remain in Australia as long as he or she continues to be a New Zealand citizen. The applicant has not departed Australia since 21 January 2012.

10    On 5 November 2014 the applicant was convicted in the Burwood Local Court of the offence of breaking and entering and related offences, including attempt to break and enter and receiving stolen property. On the charge of breaking and entering the applicant was sentenced to a term of twelve months’ imprisonment with a non parole period of seven months. Cumulatively, for all offences, he was sentenced to fourteen months’ imprisonment with a non parole period of nine months.

11    On 15 December 2014 a delegate of the Minister cancelled the applicant’s visa under s 501(3A) of the Act because, based on the evidence, the decision maker was satisfied that the applicant did not pass the character test. This was because the applicant:

(1)    had a substantial criminal record within the meaning of s 501(7)(c) of the Act in that he had been sentenced to a term of imprisonment of twelve months or more; and

(2)    was serving a full time sentence of imprisonment in a custodial institution for an offence against Australian law.

12    On 20 December 2014 the applicant was released on parole. Because of the cancellation of his visa pursuant to s 501(3A) of the Act he was immediately taken into immigration detention.

13    By letter dated 2 January 2015 the applicant was formally notified by the Department of Immigration and Border Protection (the Department) of the cancellation of his visa pursuant to s 501(3A) of the Act and the reasons for the cancellation. In that letter the applicant was informed that he had an opportunity to request that the decision to cancel his visa (the original decision) be revoked. The letter also informed the applicant:

(1)    that s 501CA(4) of the Act allowed the applicant to make representations about the possible revocation of the original decision on the grounds that the applicant passes the character test as defined by s 501 of the Act or because there is another reason why the original decision should be revoked;

(2)    how he should proceed should he wish to request revocation of the original decision and enclosed a Revocation Request Form and a copy of the Direction; and

(3)    of the time frame within which he needed to make any representations for revocation of the original decision.

14    On 27 January 2015 the applicant responded to the invitation in the Department’s letter to make representations about possible revocation of the original decision under s 501CA(4) of the Act. The applicant provided a statement in support of revocation in which he said, among other things, that:

I believe I am young educated man with a family to raise and I have potential to give my young daughters and my partner a life that I never had I have made arrangement to get employment if my visa cancellation was to be revoked. So ill be able to get straight back into employment to help out my family I would like to give back to the Australian community in a way I can pay back the community for my previous wrong doings. I have my immediate family, witch consist my partner and two daughters, I also have four sisters that permanently reside in Australia, and are all Australian citizen I have two brothers and a sister in new Zealand. I am a soul provider for my immediate family including my sisters and I believe my deportation would have a devastating effect on my daughters who are minors, my partner who is already struggling since I have been detained I would never be able to physically be with my children and partner as they are already established in Australia and cannot leave here. This would put my children, partner and myself in a difficult predicament as my family would have to cut their ties to to Australia to come join me In New Zealand witch I would not want them to do. As I am aware on how low the economy in New Zealand is and how much of a struggle day to day life is over there.

And:

I would kindly like to request the respected Delegate of the National Character Consideration Centre to please consider the best interests of my two young daughters (Kavarna, one year old), (Maliya, two months old), my young partner (Kristy lee , twenty four years old), my four sisters present in Australia and the burden and the hardship they would face if I was to be deported to New Zealand , I believe that I have built strong social ties to the Australian community through work employees at various employment agencies and I have a lot of good Australian peers present in Australia I also believe that I have committed some quite serious offences and its for that reason I am being considered to be deported I take full responsibility of my actions however I believe I can make strong efforts to reform myself given this opportunity.

15    In support of his request for revocation of the original decision the applicant attached letters of support from three of his sisters who reside in Australia and a letter of support from his partner who is an Australian citizen.

16    On 15 April 2015, 20 May 2015 and 24 August 2015 the Department wrote to the applicant enclosing further information which it had received and which it informed the applicant may be taken into account when making the decision whether to revoke the original decision under s 501CA of the Act. The Department invited the applicant to comment on the information enclosed with each of its letters which comprised:

(1)    a National Police Certificate dated 27 November 2014;

(2)    New South Wales Department of Corrective Services Conviction, Sentences and Appeals report dated 7 November 2014;

(3)    extract of “his Honour’s decision in the Local Court of New South Wales” in Burwood on 5 November 2014;

(4)    an undated list of incidents recorded during the applicant’s period of immigration detention; and

(5)    a file note of a telephone conversation between a departmental officer and the applicant’s partner dated 21 August 2015.

17    The applicant did not respond to any of the Department’s letters inviting him to comment on the further information.

18    A Submission for Decision dated 31 August 2015 was provided to the Assistant Minister which attached to it an issues paper and a draft statement of reasons. The issues paper:

(1)    attached to it, among other things:

(a)    the notice of cancellation of visa sent to the applicant which, among other things, invited the applicant to make representations for possible revocation of the original decision and enclosed the Direction;

(b)    the material that the applicant had provided in support of his application for revocation of the original decision; and

(c)    the additional material which had been provided to the applicant for comment by the Department;

(2)    set out the applicant’s immigration history, information relevant to the character test and information relevant to the exercise of discretion under s 501CA(4)(b)(ii) of the Act. In relation to that last matter the issues paper addressed:

(a)    the impact of the applicant’s removal to New Zealand on his two young children;

(b)    the impact of the applicant’s removal to New Zealand on his nieces and nephews living in Australia;

(c)    the strength, nature and duration of the applicant’s ties to Australia;

(d)    the extent of any impediments the applicant would face if he was removed from Australia; and

(e)    the protection of the Australian community.

19    On 7 September 2015 the Assistant Minister exercised her discretion not to revoke the original decision under s 501CA(4) of the Act.

the Assistant Minister’s decision

20    In the statement of reasons for her decision under s 501CA of the Act not to exercise discretion to revoke the original decision the Assistant Minister:

(1)    found that she was not satisfied that the applicant passed the character test as defined by s 501. Accordingly, s 501CA(4)(b)(i) of the Act was not met;

(2)    then turned to consideration of whether she could be satisfied that there was another reason why the original decision should be revoked as set out in s 501CA(4)(b)(ii) of the Act. In doing so the Assistant Minister assessed all of the information set out in the issues paper and its attachments and considered the applicant’s representations in the documents he submitted in support of his representations pursuant to s 501CA of the Act. The Assistant Minister:

(a)    considered the best interests of the applicant’s two minor children, both under two years old. She accepted that the applicant’s partner was unlikely to relocate to New Zealand with her daughters in the event of the applicant’s removal and that non revocation of the visa cancellation would likely result in a physical separation of the children from their father. This in turn would have a significant impact upon the children’s relationship with their father and prevent the applicant from assisting his partner to care for the children. The Assistant Minister concluded that it was in the best interest of the applicant’s two daughters for the visa cancellation to be revoked;

(b)    also considered the best interests of the applicant’s nieces and nephews noting that the applicant’s removal would deprive those children of regular direct contact with their uncle which may cause them sadness and disappointment. However, the Assistant Minister considered that any negative effect upon their best interests would be mitigated to an extent by their relationship with their own parents;

(c)    considered the strength, nature and duration of the applicant’s ties to Australia and found that, through his employment and his familial, spousal and parental relationships, the applicant had been making some positive contributions to the community, which she took into account. The Assistant Minister also noted that the applicant has family and social ties to Australia in that his current partner and the mother of his daughters is an Australian citizen and three of his sisters live in Australia. The Assistant Minister found that the applicant’s partner was “likely to experience significant hardship, including practical and emotional hardship”, if the original decision was not revoked and that removal would prevent the applicant from having regular direct contact with his sisters which would likely cause them “worry, sadness and disappointment which may amount to emotional hardship”. The Assistant Minister found that, despite his limited residence, the applicant has relatively strong ties to the Australian community;

(d)    had regard to the impediments that the applicant would face if removed from Australia to his home country of New Zealand in establishing himself and maintaining basic living standards. However, she found that, although the applicant has not lived in New Zealand as an adult he was likely to retain some familiarity with the customs, language and culture of New Zealand and thus is unlikely to face any significant barriers;

(e)    accepted that the applicant’s separation from his daughters, his spouse and his Australian family members had the potential to cause him significant emotional hardship and may adversely affect his rehabilitation;

(f)    considered protection of the Australian community and concluded that the applicant’s criminal conduct was serious, having regard to the nature of his offending, the sentences imposed, the sentencing remarks of the Magistrate and the applicant’s record of prior offending;

(g)    was of the view that, were the applicant to reoffend by committing further breaking and entering offences, his victim or victims could sustain the significant personal loss referred to by the Magistrate in his sentencing remarks and could suffer financial loss;

(h)    in the context of risk to the Australian community, considered that the applicant has the strong support of his family and partner in Australia, that he has accommodation available to him and claimed to have organised employment for his release. While noting that the applicant had the support of his family and partner when he committed at least some of his offending, on balance, the Assistant Minister found that this was a protective factor likely to reduce his risk of reoffending;

(i)    had regard to the applicant’s conduct in correctional and immigration custody and that he had been implicated, including as an alleged offender, in a range of incidents in immigration detention. The Assistant Minister noted that the applicant had not disputed the information regarding these incidents, which was sent to him for comment, but also noted that the report was based on allegations and that the applicant had not been charged for his conduct in immigration detention. However, the Assistant Minister observed that the applicant’s conduct in criminal custody and in immigration detention caused her to have concern about his progress to rehabilitation, as it suggested a lack of respect for authority;

(j)    having had regard to all of the factors, including those that should reduce the likelihood of the applicant reoffending, formed the view that the likelihood of the applicant reoffending is ongoing;

(k)    concluded that she was not satisfied that there was another reason why the original decision should be revoked. In that regard, the Assistant Minister said at [52] of her statement of reasons for decision that:

In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr TUSITALA represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children and other, minor family members, as a primary consideration, and any other considerations as described above. These include his residence and employment and his strong familial and spousal ties to Australia, and the hardship Mr TUSITALA, his partner, family members and social networks will endure in the event the original decision is not revoked.

the applicant’s grounds of review

21    In his application filed in the Federal Circuit Court, which is before this Court for consideration, the applicant advances three grounds namely:

1.    Revocation outcomes.

2.    Argue the fact my kids need me.

3.    Best interests of kids and family.

22    The applicant filed an affidavit in support of his application which annexed the Assistant Minister’s decision, letters from the applicant, the applicant’s partner and three of his sisters.

23    In his original application filed in this Court the applicant advanced a different ground to the effect that his family and children were not consulted about the possible revocation of the original decision.

24    The applicant did not provide any written submissions in support of the grounds contained in his application filed in the Federal Circuit Court. However, at the hearing he made the following submissions:

(1)    he did not know that the Assistant Minister had the power that was exercised by her that is the power under s 501CA(4);

(2)    the Assistant Minister did not take into consideration his ties to Australia namely that he has family here, his children were born here and his wife is an Australian citizen;

(3)    the applicant does not have a serious criminal history. This was the first time that he was sentenced and served time in jail; and

(4)    he would like to give his children a life that he had never known, he will have work, should he be released into the community, and he wants to contribute and to give something back to Australia by doing community work, should he be entitled to stay.

consideration

The best interests of the children

25    The grounds raised by the applicant in his application before this Court raise the issue of the interests of the applicant’s children.

26    In Brown v Minister for Immigration and Border Protection [2015] 235 FCR 88 (Brown) a Full Court of this Court (Rares, Flick and Perry JJ) recognised at [28] that, in line with article 3.1 of the Convention on the Rights of the Child 1989 (the Convention), the best interests of the child would be “a primary consideration”. Thus, the Full Court observed that in those cases where article 3.1 of the Convention is to be considered, it does not of itself dictate the outcome of the exercise of discretion.

27    The exercise that the Assistant Minister undertook was in conformity with the approach identified in Brown. That is, at [13] of her statement of reasons the Assistant Minister said that:

In considering whether or not I am satisfied that there is another reason why the original decision should be revoked, I acted in conformity with Article 3 of the United Nations Convention on the Rights of the Child, and treated the best interests of any affected children under 18 in Australia as a primary consideration.

28    It is clear from the Assistant Minister’s statement of reasons that she accepted that it was in the best interests of the applicant’s two children for the original decision to be revoked.

29    As submitted by the Assistant Minister the discretion conferred by s 501CA(4) is broad and the consideration relevant to the exercise of the statutory power is informed by context and contingent on object, scope and purpose: see Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566 at [128] (Heydon and Crennan JJ; Gleeson CJ agreeing).

30    An aspect of the scope and purpose of s 501CA(4) is the protection of the Australian community. In Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 (Stretton) at [15] Allsop CJ observed that an aspect of the “scope and purpose” of s 501 of the Act is the protection of the Australian community and at [16], after noting that statutory context is important, his Honour further said that “purposes of the provision (s 501) include the protection of the Australian community”. The protection of the community from criminal or other serious conduct is at the forefront of the considerations referred to in the Direction.

31    The discretion conferred by s 501CA(4) of the Act must be viewed in its statutory context. In that regard, s 4(1) of the Act provides that the object of the Act is to “regulate, in the national interest, the coming into, and presence in, Australia of non citizens”.

32    In Stretton (Griffiths J with whom Allsop CJ and Wigney J agreed) said at [70(b)]:

(b) the statement of the object of the legislation in s 4 of the Migration Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”. The concept of the “national interest” is necessarily broad. It is a concept which implicitly informs many of the individual provisions in the Migration Act. It permeates the legislation as a whole and is not confined to s 501(3), where the “national interest” is an express criterion for the purposes of the exercise of the Minister’s power to refuse to grant or cancel a visa in the circumstances specified. The concept of the “national interest” is necessarily a broad one and involves an evaluative judgment on a wide range of potentially relevant matters. Some of those considerations will relate to the rights and interests of the individual visa-holder and his or her family and associates, while other considerations will relate to broader community and policy interests;

33    In Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 a Full Court of this Court (French, O’Loughlin and Whitlam JJ) observed at [86] there may be circumstances in which the “seriousness of the person’s criminal history will be sufficient to satisfy the Minister that the refusal of a visa is in the national interest”.

34    In this case, the Assistant Minister concluded that the applicant represented an “unacceptable risk of harm to the Australian community” and that “the protection of the Australian community outweighed the best interests of his children and other, minor family members, as a primary consideration and any other consideration as described above” (at [52] of the Assistant Minister’s statement of reasons). It is clear from the statement of reasons that the Assistant Minister reached that conclusion taking into account all of the material before her, including the material provided by the applicant, and having accepted that the interests of the applicant’s children would be better served by a revocation of the original decision. Having done that, it was open for the Assistant Minister to reach the conclusion that she did.

Revocation outcomes

35    Contrary to the applicant’s grounds of review, the Assistant Minister also considered the effect of non revocation on the applicant’s sisters and his partner, accepting that they would likely experience practical and emotional hardship as a result.

Grounds raised by the applicant in his oral submissions

36    Each of the matters raised by the applicant in his oral submissions was also considered by the Assistant Minister. As I have noted above, the Assistant Minister:

(1)    considered the best interests of the applicant’s two minor children and reached the conclusion set out at [17] of her statement of reasons that it was in the best interests of his two daughters for the visa cancellation decision to be revoked;

(2)    also considered the applicant’s relationship with his nieces and nephews at [18] of her statement of reasons and found that any negative effect on their best interests would be mitigated to an extent by their relationship with their own parents; and

(3)    considered the applicant’s relationship with his family and his social ties to Australia, and noted at [22] to [24] of her statement of reasons that his removal is likely to cause significant hardship to his partner and some detriment to his sisters and other family members, and concluded that the applicant had relatively strong ties to the Australian community.

37    The applicant raised an issue about whether the Assistant Minister could exercise the discretion under s 501CA(4) of the Act. In Tusitala v Assistant Minister for Immigration and Border Protection [2015] FCA 1188 Perry J considered the same issue. At [2] her Honour said:

On 15 October 2015, the applicant lodged an originating application in this Court for review of a decision by the Assistant Minister under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) to refuse to revoke a decision by the Minister’s delegate under s 501(3A) to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa. Section 501(3A) provides for mandatory cancellation in certain circumstances, said to be applicable to the applicant. Section 19 of the Acts Interpretation Act 1901 (Cth) provides that:

Where in an Act any Minister is referred to, such reference is deemed to include any Minister or member of the Executive Council for the time being acting for or on behalf of such Minister.

As the Minister submits, this provision together with s 19A, would seem, subject to any proof to the contrary, apt to pick up the Assistant Minister, such that the Assistant Minister is treated as the Minister for the purposes of administering the Act.

38    That is having regard to ss 19 and 19A of the Acts Interpretation Act 1901 (Cth) in force at the time the Assistant Minister made her decision, the Assistant Minister was able to exercise the discretion under s 501CA(4) of the Act.

39    The balance of the grounds raised by the applicant in his oral submissions, namely that the applicant does not have a serious criminal history and that this was the first time he was sentenced and served a prison sentence and that he wishes to give his children a life he has never known and to contribute to the Australian community do not disclose any error in the Assistant Minister’s decision and seek impermissible merits review.

Ground raised by the applicant in his original application filed in this Court

40    For completeness, the Assistant Minister addressed the ground raised by the applicant in his original application filed in this Court which was dismissed for lack of jurisdiction. That ground was to the effect that the Assistant Minister failed to consult with the applicant’s children and family. However, it is clear that in considering whether to exercise the discretion under s 501CA(4)(b)(ii) of the Act, the Assistant Minister noted that she had assessed all of the information set out in the issues paper and attachments and that she had considered the applicant’s representations in the documents he had submitted. The Assistant Minister had regard to the letters of support from each of the applicant’s three sisters and his partner in determining whether to revoke the original decision. On three separate occasions, prior to the Assistant Minister making her decision, the applicant was invited to comment on further information, including a file note of a telephone conversation with the applicant’s partner made by a departmental officer. The applicant did not respond to any of those invitations. Had the applicant wished to respond or to provide further information from his family he had ample opportunity to do so.

41    As submitted by the Assistant Minister, it was not necessary for her to make further inquiries of the applicant’s family. She was aware of their views and gave genuine consideration to those views and their interests, including those of the applicant’s two children, for the purpose of deciding whether to exercise the discretion in s 501CA(4) of the Act.

Conclusion

42    The Assistant Minister submitted that her decision was the product of an evaluative judgment as to which reasonable minds may differ and referred to Stretton at [17] where Allsop CJ recognised that the decision to be made under s 501 of the Act called for “an evaluative balancing of unquantifiable … risk, possibly serious harm to a person or persons unknown if reoffending occurred, and known immediate human hardship if removal takes place. … The decision as made was one that can be seen to have been reached by reasoning which was intelligible and directed towards, and related intelligibly to, the purposes of the power”. In my opinion the same can be said of the decision that was made in the present case.

43    The applicant has not, in my opinion, identified any error in the Assistant Minister’s decision. To the extent that the grounds he raises invite merits review, that is not the role of this Court. To the extent they allege that the Assistant Minister exercised the power unlawfully because she failed to take into account relevant considerations, those grounds are not made out.

disposition

44    In light of the matters I have set out above, I will make orders dismissing the applicant’s application and that the applicant should pay the Assistant Minister’s costs as agreed or taxed.

Associate:

Dated:    28 July 2016