FEDERAL COURT OF AUSTRALIA

Berney v Minister for Immigration and Border Protection [2016] FCA 1544

ORDERS

THE COURT ORDERS THAT:

1.    The application for extension of time filed on 3 November 2016 be allowed.

2.    The originating application be dismissed.

3.    The applicant pay the respondent’s costs of this proceeding, to be taxed if not otherwise agreed.

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

REASONS FOR JUDGMENT

COLLIER J:

1    Mr Berney is a New Zealand citizen, born 7 August 1979. He has lived in Australia since he was five years old. He is currently in detention at Christmas Island, his Class TY Subclass 444 Special Category (Temporary) visa having been cancelled by a delegate of the Minister on 8 January 2015 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act). Section 501(3A) provides:

Refusal or cancellation of visa on character grounds

…

…

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

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

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

2    Pursuant to s 501CA(4) of the Migration Act the Minister has a discretionary power to revoke visa cancellations. Mr Berney applied to the Minister to revoke his visa cancellation, however on 25 August 2016 the Minister decided not to revoke the cancellation decision.

3    On 3 November 2016 Mr Berney filed an application in the Federal Court of Australia for an extension of time in which to seek review of the Minister’s decision. At the same time Mr Berney filed an originating application for review of the Minister’s decision. When the matter came before me on 16 November 2016 I ordered that it be transferred to the Federal Circuit Court, on the basis that the Federal Court currently lacks jurisdiction to hear applications for review of decisions of the Minister under s 501CA: Tusitala v Assistant Minister for Immigration and Border Protection [2015] FCA 1188 and Poroa v Minister for Immigration and Border Protection [2015] FCA 1313. In the Federal Circuit Court on 21 November 2016 the Minister successfully applied to have the matter retransferred to this Court. On 23 November 2016 I made programming orders to have the matter listed expeditiously in the Federal Court on 7 December 2016.

4    While the application before the Court is an application for an extension of time, the Minister did not oppose the extension of time being granted. The Minister was represented by Counsel; Mr Berney appeared in person by video. The Court proceeded to hear the originating application including oral submissions by both the Minister and Mr Berney. Both parties consented to this course of action.

5    Before turning to those submissions it is convenient to first examine the decision of the Minister the subject of this application.

Decision of the Minister

6    The Minister’s statement of reasons for his decision under s 501CA of the Migration Act, being a decision not to exercise discretion to revoke a mandatory cancellation visa decision under s 501(3A), is dated 15 August 2016.

7    The Minister noted that Mr Berney had made representations seeking revocation of his visa cancellation.

8    The Minister was not satisfied that Mr Berney passed the character test (as defined by s 501) with the result that s 501CA(4)(b)(i) of the Migration Act was not met. This was because of the operation of s 501(6)(a) (substantial criminal record) and because Mr Berney was serving a sentence of imprisonment for unlawful use of motor vehicles, aircraft or vessels; receiving tainted property and unlawful possession of motor vehicles, aircraft or vessels (for which he was sentenced to 18 months prison). Mr Berney was also convicted of contravention of domestic violence orders and possessing dangerous drugs.

9    The Minister then considered whether, in light of Mr Berney’s representations and the documents he had submitted, whether there was another reason why the original mandatory visa cancellation decision should be revoked. Reasons submitted by Mr Berney were that:

    he did not wish to be separated from his two minor children who were in Australia;

    he feared the unknown;

    he did not wish to go back to a country he did not remember or know anything about;

    he was truly remorseful for his past conduct.

10    First, so far as concerned Mr Berney’s minor children, the Minister concluded that it was in the best interests of Mr Berney’s children for the visa cancellation decision to be revoked. The Minister also found that any harm to Mr Berney’s other minor relatives, including his partner’s four children and his nephews and nieces, as well as children of friends, would be reduced because Mr Berney was not their primary carer, although the Minister also noted that Mr Berney’s removal from Australia would preclude him establishing a direct relationship with them.

11    Second, the Minister had regard to the strength, nature and duration of Mr Berney’s ties to Australia. In particular the Minister noted that Mr Berney had lived in Australia for approximately 30 years since he was a child of five years and 10 months, and formed the view that the Australian community may afford a higher tolerance of Mr Berney’s criminal conduct because of the length of his stay in Australia and the fact that he spent his formative years in Australia. The Minister noted that Mr Berney began to offend from the early age of 15 years. The Minister also noted Mr Berney had many relatives and friends in Australia, that his friends would support him if he were released back into the Australian community, and that his family would suffer distress if Mr Berney were removed to New Zealand. The Minister concluded that Mr Berney had strong family and social ties to the Australian community.

12    Third, while the Minister noted that Mr Berney was not familiar with New Zealand, and that his removal would cause him emotional hardship, the cultural similarities between Australia and New Zealand were such that any hardships Mr Berney suffered from returning to New Zealand would not be serious.

13    Fourth, the Minister had regard to the issue of the protection of the Australian community. In his reasons the Minister noted:

    In Mr Berney’s more recent convictions of 3 September 2014 the Court had noted that Mr Berney had 10 pages of criminal offending, had been given periods of imprisonment for identical or similar offending, and the Court viewed Mr Berney’s conduct as “very serious”.

    Mr Berney had a history of violent offending in Australia, with his National Police Certificate dated 8 January 2015 listing the following offences:

•    31 October 2013 assault or obstruct police officer (convicted, no further penalty imposed);

•    21 June 2011, assaults occasioning bodily harm (imprisonment for six months);

•    4 August 2008, common assault (imprisonment for four months);

•    14 July 2006, assaults occasioning bodily harm (imprisonment 18 months);

•    9 July 2001, assaults occasioning bodily harm (two counts) (imprisonment three years suspended to be of good behaviour for for yours after having served 336 days);

•    4 November 1998, assault police (fined $200);

•    8 December 1997, assault occasioning bodily harm (imprisonment two years);

•    25 September 1997, assault police office in performance of duty (fined $200).

(Errors in original.)

14    The Minister noted that Mr Berney had been subject to domestic violence orders and had been in breach of those orders.

15    The Minister also noted that Mr Berney had a very poor traffic history.

16    The Minister observed:

47.    Mr Berney has a consistent pattern of offending since 1994, featuring violent offending, stealing, possessing dangerous drugs and breach of order. He has received sentences of imprisonment for his offending, the longest being three years, which reflect the gravity of his offending. Mr Berney has continued his pattern of violent offending despite receiving formal warnings in 2004, 2008, 2011 and 2013. I find that Mr Berney’s violent and violence related convictions are very serious.

17    In respect of Mr Berney’s potential risk to the Australian community, the Minister noted that Mr Berney had a history of substance abuse, that he had expressed remorse for his offending and that his partner would help him. The Minister noted that Mr Berney had been previously considered for visa cancellation in 2004, 2008, 2011 and 2013, and that “Mr Berney had been warned four times that further criminal convictions could result in reconsideration of cancellation of his visa”.

18    The Minister noted that Mr Berney had attended courses to assist him in dealing with his problems, and that despite this positive attitude Mr Berney had continued to offend over a lengthy period up to 3 September 2014. The Minister continued:

55.    Mr Berney has been held in immigration detention since his release from prison on 26 March 2015 and his rehabilitation has not been tested in the community. I note that while in immigration detention Mr Berney has had a number of minor incidents involving abusive/aggressive behaviour and contraband.

56.    I find that Mr Berney’s breaches of judicial orders show a disregard for judicial authority, law enforcement and judicial processes.

57.    Mr Berney’s criminal history, substance abuse, past breaches of judicial orders and the failure of four past warnings to curtail his offending, suggests there is a likelihood that he will re-offend. While Mr Berney is remorseful for his offending and has attended programs in the past aimed at addressing his substance abuse issues, these programs attendances failed to stop his offending behaviour. I consider that further offending of a violent nature by Mr Berney could result in physical harm to members of the Australian community.

19    In conclusion the Minister noted while there were factors supporting revocation of the visa cancellation decision (including the interests of his minor children, the length of time he had lived in Australia, and the consequences of his decision for Mr Berney’s family members) the Minister gave significant weight to the very serious nature of crimes committed by Mr Berney, which had been of a violent nature. The Minister noted:

63.    I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the opportunity of remaining in Australia.

20    The Minister noted that he could not rule out the possibility of further offending by Mr Berney, and that members of the Australian community could be exposed to great harm should Mr Berney reoffend in a similar fashion. The Minister continued:

65.    I am cognisant that where great harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr Berney, than I otherwise would because he has lived in Australia for most of his life, or from a very young age.

21    The Minister concluded that Mr Berney represented an unacceptable risk of harm to the Australian community, and protection of the Australian community outweighed the best interests of Mr Berney’s two minor children, and other minor family members, as well as other considerations including Mr Berney’s lengthy residence and bonds, employment in Australia, and hardship he would endure following repatriation to New Zealand.

Grounds of the application

22    The grounds of review set out in Mr Berney’s application were as follows:

1.    The Decision of the Respondent amounts to Jurisdictional Error in that the Decision was Legally unreasonable, Unjust, illogical, and irrational in that the Respondent failed to have serious regard and failed to properly consider relevant critical Primary considerations:

PARTICULARS

a.    I Have Learnt from My Past and Regret My Unlawful actions from the incarceration rehabilitation programs and I am Not a risk of re-offending and threat to the Australian Community, as I Have ALL the Support from My Family

b.    I arrived in Australia as a Minor when I was 5 years old (now I am 36 years of age) and My entire Family resides in Australia and No Family in New Zealand

c.    The Best Interests of ALL of My Children and step-Children and young Family members according to Article 3 of the United Nations Conventions on the Rights of the Child

d.    I have Full-time Employment to return to after release.

2.    The Decision of the Respondent amounts to Jurisdictional Error in that the Decision was Legally vitiated with Error as the Respondent did Not Consider that ‘I am an Absorbed Person’ under SECT 34 of the MIGRATION ACT.

(as per original.)

23    Orders sought by Mr Berney in his application were:

1.    A writ of prohibition in respect of the Minister’s decision.

2.    A writ of certiorari quashing the decision of the Minister made on 15 August 2016.

3.    A writ of mandamus ordering the Minister to determine Mr Berney’s application for review according to law.

4.    An injunction restraining the Minister or his officers from relying on the decision of 15 August 2016 and from removing Mr Berney from Australia.

5.    Leave to file additional material.

6.    Costs.

Consideration

24    Mr Berney appeared in person by video from Christmas Island at the hearing, while the Minister was represented by Counsel in Court. The day before the hearing Mr Berney filed material which can be summarised as:

    three pages setting out what appear to be excerpts from Ministerial Direction 65 issued pursuant to s 499 of the Migration Act on 22 December 2014;

    a three page statement describing his domestic life with his partner, the likely effect on his family of his removal from Australia, his remorse and his strategies going forward;

    a one page statement responding to comments by the Minister in his statement of reasons;

    a one page letter from Woodford Correctional Centre;

    an unsworn affidavit by Mr Berney annexing a copy of the decision to refuse revocation of the cancellation of his visa.

25    I have considered this material in the course of considering Mr Berney’s application for review.

26    At the hearing Mr Berney read from Direction 65, which contains (in essence) policy guidance for decision-makers in approaching their task of deciding whether to exercise the discretion to cancel or refuse a non-citizen’s visa under s 501 or to revoke a mandatory cancellation under s 501CA. He also submitted, in summary:

    his stepfather had been very violent and abusive;

    he is very caring towards his children and wants to be there for them;

    he was abused himself as a child;

    he has been endeavouring to improve his attitude towards life;

    when he was young no-one showed him the right way to live his life;

    he is remorseful;

    he is certain that he arrived in 1984 rather than 1985, as he had contacted his mother and she confirmed that he arrived in 1984;

    he was entitled to an “absorbed person visa” under the Migration Act;

    his convictions for assault arose from acting immaturely, being under the influence of drugs and alcohol, or trying to resist and not co-operating with police. He has paid his dues to society, and has had time to have a long hard look at himself;

    he has no connection with New Zealand, and has not visited there since 1994;

    people who have committed much worse offences than him have been successful in judicial review of the Minister’s decision.

27    The critical question before me is whether, in applying s 501CA(4) of the Migration Act, the Minister erred. Relevantly s 501CA provides:

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)    …

(3)    …

(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.

28    Mr Berney’s is a sad story. He points out that Australia is the only home he has ever known. He has clearly had difficulties in his life. The Minister recognised the new difficulties Mr Berney would face if he were sent back to New Zealand. Indeed I speculate whether this recognition may have previously influenced the Minister not to remove Mr Berney from Australia.

29    At the end of the day however, the decision to remove Mr Berney lies with the Minister. As I told Mr Berney at the hearing, this Court can only interfere in decisions such as these in the most limited circumstances. The Minister’s decision is in the nature of a privative clause decision in the Migration Act: cf Poroa [2015] FCA 1313 at [11]. It follows that the decision can only be overturned if the Minister’s decision is affected by error going to the power of the Minister to make the decision. The Court cannot investigate the merits of the case before the Minister.

30    Mr Berney argued first that the Minister’s decision was unreasonable, unjust, illogical, and irrational in that the Minister allegedly failed to have serious regard and failed to properly consider relevant critical primary considerations referable to Mr Berney’s remorse, support from his family, strength of ties to Australia, the best interests of his children and other family members, and the full time employment he could return to.

31    I do not accept Mr Berney’s submissions in this respect.

32    Mr Berney relied on Ministerial Direction 65. As I pointed out to Mr Berney at the hearing, Direction 65 does not bind the Minister, although the Minister is entitled to consider issues set out in Direction 65 in the exercise of his discretion (cf Picard v Minister for Immigration and Border Protection [2015] FCA 1430).

33    More specifically, it is clear from the statement of reasons that the Minister carefully and methodically considered Mr Berney’s circumstances, and clearly had regard to all the issues identified by Mr Berney. The Minister noted that Mr Berney had been warned many times about the possibility that he would be removed from Australia, but that Mr Berney had continued to offend, and that Mr Berney’s criminal history was serious. The Minister clearly gave considerable weight to the fact that Mr Berney had spent most of his life in Australia, that his only family (including his children) were in Australia, and that removing him to New Zealand would cause hardship for Mr Berney and his family. Ultimately after deliberation, the Minister concluded that the possible risk to the Australian community from Mr Berney’s continued presence outweighed the reasons to permit Mr Berney to continue to remain in Australia.

34    It was open to the Minister to form this view. There was nothing unreasonable about the Minister’s decision in the terms explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, (that is, it could not be said that the exercise of power by the Minister in this case lacked an evident and intelligible justification: Li 249 CLR 332 at [76]). Similarly it cannot be said that the decision of the Minister was illogical within the meaning of the term explained by the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. As Kiefel and Bell JJ pointed out in SZMDS 240 CLR 611, a key question is:

131.    … whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

35    The fact that Mr Berney emphatically disagrees with and rejects the statements of the Minister in the statement of reasons does not mean that the Minister’s decision was unreasonable, illogical, irrational or unjust, to warrant an order setting aside the Minister’s decision.

36    As I noted earlier, Mr Berney has clearly had difficulties in his life and also very clearly is concerned about losing contact with his children. However what Mr Berney fundamentally seeks from this Court in his first ground of review is for the Court to reopen and reassess, on the facts, his application for revocation of the visa cancellation decision. As I explained to Mr Berney the Court has no power to do this under the Migration Act.

37    Mr Berney’s second ground of review concerned his submission that he was an “absorbed person” within the meaning of the Migration Act.

38    At the hearing Mr Berney maintained his understanding that he had arrived in Australia in 1984, not 1985. “Absorbed person visas” are recognised by s 34 of the Migration Act, and apply to persons who (inter alia) were in Australia on 2 April 1984 and before that date had ceased to be immigrants. Mr Berney was unable to take the Court to any material supporting that claim. On the other hand, Departmental material before the Minister and the Court indicated that Mr Berney arrived on 20 June 1985. I am not satisfied that Mr Berney arrived in Australia before 2 April 1984 or that is entitled to an “absorbed person” visa under the Migration Act.

39    Finally I note that the Minister observed in his decision that:

63.    I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the opportunity of remaining in Australia.

40    While this is not a “principle” to which the Minister is entitled to have regard in the context of s 501CA, in this case I am satisfied that the Minister’s comments were in the nature of policy commentary and did not infect the exercise of his power in refusing to revoke the cancellation of Mr Berney’s visa.

41    Costs should follow the event.

Associate:

Dated:    19 December 2016