FEDERAL COURT OF AUSTRALIA

Parker v Minister for Immigration and Border Protection [2017] FCA 314

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed.

2.    The Applicant is to pay the costs of the Respondent.

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

REASONS FOR JUDGMENT

1    The Applicant, Mr Keith Parker, is a citizen of the United Kingdom. He arrived in Australia when he was 12 years old. He has remained in Australia ever since, a period of time being approximately 48 years.

2    On 31 August 2015 a delegate of the Minister cancelled Mr Parker’s Class BF transitional (permanent) visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the “Migration Act”). At the time, Mr Parker was serving a sentence of imprisonment for being in possession of child abuse material and failing to comply with reporting obligations. He had previously been sentenced for four convictions of indecent assault of a minor under the age of 16 years, three convictions of homosexual intercourse with a minor and two convictions of gross acts of indecency.

3    The Minister has the power to revoke the delegate’s decision pursuant to s 501CA(4) of the Migration Act. As permitted by that section, representations were made by Mr Parker to the Minister on 8 September 2015. On 16 September 2016 the Minister decided not to revoke the delegate’s decision to cancel his visa.

4    Mr Parker thereafter sought judicial review of the Minister’s decision in the Federal Circuit Court of Australia. That proceeding was transferred to this Court on 9 November 2016 pursuant to r 8.02 of the Federal Circuit Court Rules 2001 (Cth).

5    Before this Court both Mr Parker and the Respondent Minister were represented by Counsel.

6    At the outset of the hearing, leave was granted to file an Amended Application for Review of a Migration Decision. The Application as amended raised four grounds of challenge, namely:

    a failure to consider the claim made that Mr Parker would be rendered homeless if he were to be removed to the United Kingdom;

    a failure to consider the claim made that Mr Parker’s mother would not be “adequately” cared for if he were to be removed to the United Kingdom;

    the taking into account by the Minister of an irrelevant consideration, namely that his ability to remain in Australia was a “privilege”; and

    a misconstruction of the law when exercising his discretion by reason of the “principle” that the right to remain in Australia was a “privilege”.

Only the first two grounds were agitated in this Court. Neither of these grounds have been made out. When considering the first two grounds, it was common ground that the Minister was being called upon to:

    consider the representations which were made;

and that such a consideration required:

    an actual intellectual engagement on the part of the Minister with such representations (cf. Tickner v Chapman (1995) 57 FCR 451 at 462 per Black CJ and 495 to 496 per Kiefel J).

What divided the parties was whether the Minister had, in accordance with such constraints, properly considered the representations which had been made.

7    The proceeding is to be dismissed with costs.

The transfer of the proceeding from the Federal Circuit Court

8    The jurisdiction of the Federal Circuit Court in relation to migration matters, at least as the law currently stands, is set forth in s 476 of the Migration Act. The “[l]imited” jurisdiction of this Court is set forth in s 476A. Section 476A(1)(c) vests in this Court jurisdiction to review decisions “made personally by the Minister”.

9    However, applications to review decisions of the Minister made pursuant to s 501CA(4) would fall within the ambit of the jurisdiction vested in the Federal Circuit Court at the time this Application was made.

10    The reason why the Federal Circuit Court transferred Mr Parker’s Application to this Court remained unstated.

11    There had, however, emerged a “practice” of transferring from the Federal Circuit Court to this Court applications seeking review of decisions “made personally by the Minister”. The state of the law at the time of the Application, whereby the Federal Circuit Court had jurisdiction to review decisions made by the Minister pursuant to s 501CA, had been said to be attributable to “a legislative oversight”: Tusitala v Assistant Minister for Immigration and Border Protection [2015] FCA 1188. Perry J there observed:

[6]    … It was said that it was only because of a legislative drafting oversight that the Federal Circuit Court is currently the court with jurisdiction to hear the application.

This position had been described as “unsatisfactory”: Poroa v Minister for Immigration and Border Protection [2015] FCA 1313 at [17]. Griffiths J there called for “[u]rgent consideration” to be given to legislative amendment. The decision of Perry J in Tusitala was handed down on 4 November 2015; the decision of Griffiths J in Porora was handed down on 24 November 2015.

12    The call for “urgent consideration” has ultimately been met. The Government in February 2017 passed the Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth). Decisions made by the Minister after 23 February 2017 are now reviewable by this Court alone.

13    Notwithstanding the fact that the 2017 amendments do not apply retrospectively to the decision made by the Minister in respect to Mr Parker, his Application has in fact been transferred to this Court. Mr Parker remains in immigration detention. It is only appropriate in such circumstances that this Court proceeds to hear his case without further delay.

Section 501CA

14    Section 501CA of the Migration Act provides as follows:

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.

(5)    If the Minister revokes the original decision, the original decision is taken not to have been made.

(6)    Any detention of the person that occurred during any part of the period:

(a)    beginning when the original decision was made; and

(b)    ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)    A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

15    Section 501CA(1), it will be noted, refers to a decision having been made under s 501(3A). Section 501 confers the power to cancel a visa if a person does not satisfy the Minister that the person passes the “character test”. And s 501CA(3)(b), in turn, provides that the Minister “must cancel” a visa if a “person is serving a sentence of imprisonment, on a full-time basis in a custodial institution”.

16    As at the time of the delegate’s decision pursuant to s 501(3A), Mr Parker was “serving a sentence of imprisonment”.

A failure to consider – the exchange rate & homelessness

17    The first ground of review contends that the Minister failed to consider a representation that had been made pursuant to s 501CA(4) with the consequence that the process of consideration required by s 501CA had not been completed.

18    The representation made to the Minister which was relied upon was to be found in a facsimile sent to the Minister on 10 December 2015. At the end of that facsimile appeared the following representation (without alteration):

… I see myself as a Australian living here all my life and my parents are Australian citizens this makes me to be a Australian, a piece of paper does not make a person a Australian no matter what the government says, what would I do if I went to the UK well at forty cents to the pounds and every thing at least double the price of Australia that’s in the realest e market I would be homeless, and I believe after paying taxes for some forty five years I would had paid in the sum of many millions of dollars in taxes I would be entitled to have some of this money back I would prefer a lump sum I know how the government works they hit the poor working class man and give to the wealthy like our multi millionaire politicians, thank you Keith Parker.

19    Such consideration as was given to this representation by the Minister is to be found (if at all) in the following statement in his reasons:

Extent of impediments if removed

…

26.    I accept that in the absence of his support network in Australia, Mr PARKER may experience emotional, psychological, practical and financial hardship in his attempts to resettle in the United Kingdom

27.    The United Kingdom is culturally and linguistically similar to Australia and has comparable standards of health care, education and social welfare support. Mr PARKER will have equal access to these as other British citizens. Nevertheless, given the presence of his immediate family in Australia, the absence of family support in the United Kingdom, and the lengthy period of time he has lived in Australia, some 47 years, I find that non-revocation of the cancellation decision will involve substantial hardship for him.

20    Although not expressly addressed in terms of the then current exchange rate or like words, it is respectfully concluded that such reference as is made in the statement of reasons to “financial hardship” is a sufficient reference to disclose consideration being given by the respondent Minister to the financial circumstances in which Mr Parker would find himself if he were forced to leave Australia. Although Mr Parker may well have wished for greater weight to have been given by the Minister to his financial circumstances, indeed he may well have wished that such consideration would have prevailed and persuaded the Minister to have revoked the delegate’s decision, that is a challenge going to the merits of the Minister’s decision. This Court cannot intervene merely because it may have reached a different conclusion on the facts.

21    The first ground of review is rejected.

The failure to consider the mother’s need for adequate care

22    The second ground of review relied upon was an alleged failure on the part of the Minister “to consider whether the applicant’s mother’s need for care could be adequately met without him”.

23    The representations made by Mr Parker and on his behalf repeatedly put before the Minister the concern that his removal from Australia would have a serious impact upon whether the needs of his elderly mother would be met.

24    In an email sent by Mr Parker in December 2015 he thus stated in part as follows (without alteration):

I consider myself to be Australian and proud of this even after what your organisation has done to me and my family, my mother suffers every single day the longer you drag this out the less chance there is of me being able to see my mother not only in body but of mind as well and look after her she is in her eighty fourth year and a Australian citizen and does not deserve to be treated this way she spent last night in my house and all day today on her own with no one to look after her this is a national dissgrace to treat our senior citiszens this way I have always looked after my parents as they have always looked after me when I was in need and this is the western way off thinking not the way of the new generations coming to this country and worshiping the dollar.

25    A letter by Mr Parker’s brother dated 27 November 2015 stated in part as follows (without alteration):

We as a family have lived in Australia 47 years, and in that time have losted our younger brother Mark, my son Nick and now dad passed away 28th October 2015, witch has put an astronomical amount of presssure on my self residing in Tweed Heads and my sister Jacque liveing St George west QLD to provide adequate care for mum as Keith has been providing for the last four to five years and the deteriorating health of mum, and the recent death of dad and with the possibility of never seeing one of her sons again is takeing a huge toll on her, and also Keith with the real possibllitys of him never seeing his mother again if Keith is unable to remain living in his home of Australia

26    Such are not the only representations made to the Minister addressing the subject matter of the consequences to the mother (and the family more generally) if Mr Parker were removed from Australia.

27    The consideration given by the Minister to the needs of the mother were those expressed as follows in his statement of reasons (without alteration):

19.    I have considered the sentencing remarks from the New South Wales District Court at Tamworth on 12 August 2005 which indicate that Mr PARKER’s mother is virtually disabled by knee and hip problems and unable to drive, and that Mr PARKER was at that time the primary carer for his parents. Mr PARKER’s father has since died, though his mother is 85 years old and is in full time care, which only her family can provide. He further states she suffers from dementia, Parkinsons disease, has heart problems, is wheel chair bound and has ‘numerous other health problems’. As part of his submissions Mr PARKER has provided a medical report for his mother which confirms her medical conditions and medication.

20.    I note that Mr PARKER indicated in an email dated 17 December 2015 that his sister currently provides care to their mother in his absence and will continue to help Mr PARKER to do so should he be released into the community, though needs him to return as she also needs to care for her own family, and is unable to do so while she is her mother’s sole carer.

21.    I consider that Mr PARKER’s mother will suffer emotional hardship should he not be allowed to remain in Australia. I also accept that she requires care and that he has been her primary carer prior to his incarceration. However I note that Mr PARKER’s mother receives care from at least two of Mr PARKER’s siblings, which I consider will reduce the impact of Mr PARKER not being involved in his mother’s daily care, at least to some extent. I find non revocation of Mr PARKER’s visa will place a significant burden on his siblings in caring for their ailing mother.

22.    I have considered the effect of non revocation upon Mr PARKER’s immediate family in Australia and accept that those persons would experience emotional, practical and financial hardship. I find that Mr PARKER has been making a positive contribution for the majority of his 47 years residing in Australia years to the community and I have taken this into account, and also recognise the effect of non revocation for family members in Australia.

28    The second ground of review is rejected for any of three reasons.

29    First, such consideration as was given by the Minister to the needs of the mother – it is respectfully considered – more than adequately exposes an “active intellectual engagement” with the claims made. The needs of the mother were taken into account.

30    Secondly, to the extent that it is accepted on behalf of Mr Parker that the Minister did in fact adequately take into account the needs of the mother more generally expressed but failed to take into account the more specific representation that the needs of the mother could not “be adequately met without him”, such a representation was not so clearly raised either by Mr Parker or by others on his behalf that it needed to be separately addressed. Indeed, it may be queried whether there is any real difference between the needs of the mother more generally expressed and the need to consider whether she would receive “adequate” care. On one view, the former would encompass the latter. The reference to “adequate care for mum” in the brother’s letter dated 27 November 2015, it is concluded, was not a claim so distinct from the claim more generally expressed that it attracted the need for separate consideration by the Minister.

31    It is the substance of the representations made pursuant to s 501CA(4) which should be considered by the Minister when exercising the discretionary power there conferred. For reliance to be placed upon the reference in the November 2015 letter to “adequate care” and the absence of any express reference to “adequate care” in the Minister’s statement of reasons would be to scrutinise the Minister’s reasons in an overly critical manner and with a view to discerning error where none truly exists: Minister for Immigration and Ethnic Affairs v Liang (1996) 185 CLR 259 at 271 to 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The substance of the representations made to the Minister in the present case were in fact taken into account.

32    Just as it would be impermissible for the Minister to take an overly broad approach to the content of representations made and thereby fail to take into account the substance of representations that had been made, it is equally impermissible for a representation to be parsed and analysed by legal representatives who may thereafter be retained by the visa holder with a view to discerning what is perceived to be a separate claim that did not receive express consideration.

33    Finally, concurrence is expressed with the following observations of Robertson J in Goundar v Minister for Immigration and Border Protection [2016] FCA 1203:

[56] … While I accept that under s 501CA(4) representations as a whole constitute a mandatory relevant consideration, I do not accept that any particular statement in the representations should be so characterised.

To the extent that a specific representation was made that the needs of the mother could not “be adequately met” if Mr Parker were not to remain in Australia, it was not a matter which mandated separate consideration.

A privilege to remain in Australia

34    The third and fourth grounds of review contended that the Minister either took into account an irrelevant consideration or “misconstrued the law in considering the exercise of his discretion pursuant to s 501CA(4)” by reason of his reference to the “privilege” enjoyed by persons to remain in Australia.

35    In his statement of reasons, the Minister stated in part as follows (without alteration):

Protecting the Australian Community

28.    In coming to my decision about whether or not there is another reason why the original decision should be revoked I have had regard to the consideration of the protection of the Australian Community, noting in particular Mr PARKER’s claim he has falsely convicted of his offences. I considered the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens. I also took into consideration that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are law abiding.

…

CONCLUSION

…

48.    On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by Mr PARKER, that of sexual abuse of a minor over a protracted period and more recently, possessing child pornography. I note these offences involved vulnerable persons, with the victims being minors. I find that the risk of Australian children being harmed may be increased if Mr PARKER reoffended. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.

36    There is authority in support of the proposition that the Minister may fall into error in taking into account the “privilege” enjoyed by a person of remaining in Australia: Tesic v Minister for Immigration and Border Protection [2016] FCA 1465. Collier J there concluded, upon an analysis of the reasons provided by the Minister in that case, that jurisdictional error was exposed. Her Honour concluded (in part) as follows:

[53]    In his statement of reasons before me, the Minister referred to this “principle” of a “privilege” a number of times. Critically, I note his statement at paragraph 31 where he said, in relation to the issue of protecting the Australian community:

I also took into consideration that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are law abiding.

[54]    This statement was complemented by paragraph 55 in the Conclusion to the statement of reasons where the Minister said:

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

[55]    I do not accept that the statements of the Minister in respect of “privilege” in this case could properly be confined to rhetoric expounding the relevant considerations concerning Mr Tesic’s criminal history and the importance of protecting the Australian community.

[56]    The fact that the Minister “took into consideration” that remaining in Australia is a privilege that Australia confers on non-citizens indicates that the decision-making process was distorted. The “principle” coloured the Minister’s reasoning process. The Minister approached the decision from that perspective.

The decision in Tesic has subsequently been distinguished in Tupkovic v Minister for Immigration and Border Protection [2017] FCA 73 and Nigam v Minister for Immigration and Border Protection [2017] FCA 106.

37    The position adopted on behalf of Mr Parker was that these two grounds could be dealt with together and were only “formally” pressed. The position adopted by the Respondent Minister was that given the grounds were only “formally” pressed, there was no need to deal with them.

38    Whatever be the status of these grounds, they are nevertheless to be rejected. No submission was advanced that on a proper consideration of the Minister’s statement of reasons such reference as was made at paras [28] and [48] to the “privilege” enjoyed by Mr Parker was but a passing reference which played no operative part in his reasoning process or that the Minister did not apply the concept of a “privilege” as a “principle”. But such is the conclusion reached.

CONCLUSIONS

39    Neither of the two grounds of review which were pressed have been made out. The remaining two grounds of review which were only “formally” pressed are to be rejected.

40    The proceeding is to be dismissed.

41    Counsel for both the Applicant and the Respondent Minister were in agreement that costs should follow the event.

THE ORDERS OF THE COURT ARE:

1.    The proceeding is dismissed.

2.    The Applicant is to pay the costs of the Respondent.

Associate:

Dated:    29 March 2017