FEDERAL COURT OF AUSTRALIA

James v Minister for Immigration and Border Protection [2017] FCA 410

ORDERS

THE COURT ORDERS THAT:

1.    The application filed in NSD 56 of 2017 stand as the application in NSD 156 of 2017.

2.    Grant leave to the applicant, if so advised, to amend his application within 21 days to add a ground in or substantially in the following form:

Ground 6

The decision of the respondent was invalid because s 501(3A) of the Migration Act 1958 (Cth), on which it depended, was itself invalid as purporting to confer judicial power on the respondent Minister, contrary to Ch III of the Constitution.

3.    Pursuant to s 477A of the Migration Act, an extension of time to make that amendment be granted.

4.    Grounds 1-5 of the application be heard separately from questions arising from Ground 6, if the applicant amends pursuant to orders 2 and 3.

5.    In so far as it concerns Grounds 1-5, the application be dismissed.

6.    If the applicant amends his application pursuant to orders 2 and 3, any questions arising from Ground 6 be stood over until two weeks after the determination of Falzon v Minister for Immigration and Border Protection, No S31 of 2017, by the High Court of Australia.

7.    The applicant pay the respondent’s costs, as agreed or assessed, of the application in so far as it concerns Grounds 1-5.

8.    Costs be otherwise reserved.

9.    Liberty to apply on 24 hours notice.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This application, under s 476A of the Migration Act 1958 (Cth), is for judicial review of the decision of the respondent Minister made on 29 November 2016 not to revoke the decision to cancel the applicant’s visa.

2    The decision to cancel the applicant’s visa was made by a delegate under s 501(3A) of the Migration Act which deals with the mandatory cancellation of a visa of a person serving a sentence of imprisonment, as there set out.

3    On 29 November 2016, the Assistant Minister for Immigration and Border Protection decided not to revoke the decision to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa. The Minister recorded that the applicant had made representations about revocation of the visa cancellation decision in accordance with the invitation given under s 501CA(3)(b) and the Minister was not satisfied that the applicant passed the character test. Nor was the Minister satisfied that there was another reason why the original decision should be revoked. It is this condition of revocation which is the subject of the present judicial review proceedings: see s 501CA(4), set out at [4] below.

The legislation

4    The relevant provisions of the Migration Act were 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.

Note:    For notification of decisions under subsection (4) to not revoke, see section 501G.

The Minister’s reasons for decision

5    The Minister provided a statement of reasons of 92 paragraphs for his decision not to revoke the decision to cancel the applicant’s visa. In substance, the Minister was not satisfied that the applicant passed the character test as defined by s 501 with the result that s 501CA(4)(b)(i) was not met, and the Minister was not satisfied that there was “another reason” why the original decision should be revoked. In summary, those reasons were as follows.

6    At [12], the Minister set out reasons submitted by the applicant as to why the original decision should be revoked, which included some 15 matters. These 15 matters were: the applicant’s children in Australia who were minors; his minor grandchild; his relationship with his current partner; the maintenance of his important relationship with his father and his father’s family; his criminal history not being high in the scale of seriousness; that he grew up in a physically abusive home with his mother and was a ward of the state from 10-15 years of age; he was manipulated by older adolescents to begin offending in New Zealand; he had always accepted his mistakes and tried to address his problems; alcohol and marijuana had been key factors leading to his offending, however he had not smoked marijuana or consumed alcohol since 2012 and he completed two drug and alcohol programs while imprisoned; regarding his domestic violence offence: he was in the process of separating from his partner, drinking excessively, and smoking a lot of marijuana at the time; as to his driving while disqualified offences, he was trying to work additional hours before the birth of his son and thus made the decision to drive while disqualified; he had now sold his car to eliminate access to a vehicle – he had employment on release from detention and had organised lifts to work.

7    The Minister concluded, at [13] that it was in the best interest of the applicant’s children in Australia for the visa cancellation decision to be revoked. The applicant has three minor children in Australia, two from a previous relationship and a child from his current relationship. The Minister also found, at [24] that revocation of the visa cancellation would be in the best interests of the applicant’s one grandchild in Australia.

8    The Minister had regard to the strength, nature and duration of the applicant’s ties to Australia. He said that the applicant had resided in Australia for 16 years, having commenced residence as an adult of 26 years. The applicant was convicted of his first offences one year and four months after his arrival.

9    At [30], the Minister accepted that non-revocation would impose serious emotional and probably financial hardship on the applicant’s partner if she remained in Australia, noting that the available information did not include any statement from her that she would not be prepared to move to New Zealand with the applicant.

10    The Minister 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.

11    At [39], the Minister took into account that the applicant referred to having two children in New Zealand who would now be adults. The applicant described his relationship with them as positive, saying they understand his reasons for leaving New Zealand and they have since visited him in Australia. The Minister found, at [39], that the applicant has ongoing positive relationships with his adult children in New Zealand and that they would be a source of some support.

12    At [40], the Minister said he had had regard to the consideration of the protection of the Australian community, noting in particular the applicant’s claims he did not pose an unacceptable risk of reoffending and was rehabilitated. The Minister said he considered the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens.

13    In the context of his consideration of protecting the Australian community, the Minister considered the applicant’s offences and did so from [41]-[57] of his reasons. The Minister said the applicant had more than 40 convictions in New Zealand and over 60 convictions in Australia. The Minister agreed with the view of the courts that the applicant’s criminal history was a very extensive record and not one that would entitle him to any leniency at all.

14    The Minister stated that the applicant had a record of multiple violent offences, including domestic violence assault resulting in bodily harm and assault of police officers. The Minister said that he was of the view that violent offences must generally be considered very serious. The Minister also referred to the applicant’s other criminal history, including assault, dishonesty, drug possession and supply, and driving offences which, he said, should be taken as serious offences.

15    The Minister referred to an assault in respect of which the applicant was convicted in 2010, the victim of the assault being the applicant’s partner at the time, and found that that was a very serious offence. The Minister also referred to the applicant’s multiple convictions for assaulting police.

16    At [56], the Minister found the cumulative effect of the applicant’s offending further increased the seriousness of his offences, and he took into consideration the considerable burden this placed on Australian legal and law enforcement institutions and accompanying financial cost.

17    The Minister therefore formed the opinion that the nature and seriousness of the applicant’s offending was very serious. The Minister noted that the applicant had been previously warned that further criminal offences may result in his visa being cancelled and he continued to re-offend following that warning. At [60], the Minister noted the applicant was convicted of another 10 offences after being formally warned by the Department in 2011 that any further criminal convictions could result in his visa being cancelled in the future.

18    The Minister then considered the issue of risk to the Australian community.

19    At [58] and following, the Minister referred to the applicant’s reference to a dysfunctional upbringing and how being made a ward of the state and subsequently falling under the influence of older youths, lead to his initial offending. The Minister accepted that this background contributed to the applicant’s early offending but agreed with the remarks of a judge in 2010 who said “there has to come a time when you stop blaming other things that have happened in your life for your own behaviour and that has to come about now”.

20    The Minister found, at [59], on the basis of the applicant’s criminal record, that he displayed an ongoing disregard for Australian law and this is been a consistent feature through his offending history. Courts in both Australia and New Zealand had given the applicant repeated opportunities in the almost 28 years he had been offending, including supervision orders, suspended sentences, periodic detention, fines, and bonds, but he had continued to offend.

21    At [72], after reciting evidence as to the applicant’s alcohol and marijuana use, the Minister found that the applicant minimised the seriousness of, and his responsibility for, his offending. He made that finding based on the applicant repeatedly attributing blame for his offences to external factors. The Minister also expressed the view that the applicant may continue offending as he did not consider his offending serious or take responsibility for his own actions.

22    The Minister, at [73], noted the applicant’s submission that he was extremely remorseful and will not repeat the mistakes of his past. However, the Minister noted at [74], in each submission the applicant framed his remorse within the context of how his imprisonment and/or detention had impacted on his relationships with his partner and children, rather than considering Australian law, the impact on the community, or the victims of his assaults. The Minister considered that the applicant expressed very similar sentiments in 2011 in his submission in response to his Notice of Intent to Consider Cancellation. The Minister therefore found that the applicant’s remorse did not reflect remorse for his crimes or victims thereof.

23    At [80], the Minister found the applicant demonstrated an ongoing disregard and disrespect for Australian law, including court outcomes. The Minister expressed the view that the applicant had been given multiple opportunities by the courts to rehabilitate and address his drug and alcohol issues and he had not complied with the majority of those orders.

24    On the basis of the evidence before him, the Minister found, at [82], there was a likelihood the applicant will reoffend and he considered further offending of a violent nature, or further unlicensed or other driving offences by the applicant, could result in physical harm to members of the Australian community.

25    The Minister stated his conclusion at [83]-[92]. At [91], the Minister said the following:

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 JAMES 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 family members, as a primary consideration, and any other considerations as described above. These include the 16 years he has lived in Australia, having worked for approximately three years, an employment opportunity if released, his bond to his family and Australia, and the hardship Mr JAMES, his family and social networks will endure in the event the original decision is not revoked.

The application for judicial review

26    The grounds of the application are as follows (emphasis in original):

Ground 1

The Respondent failed to consider properly how the Applicant’s deprived and disadvantaged background was relevant to assessing the Applicant’s criminality and sentences passed upon the Applicant.

Particulars

a.    Once a decision-maker selects a particular matter for consideration, he or she is bound to consider that matter properly.

b.    The Respondent decided to have regard to the Applicant’s dysfunctional and disadvantaged background (as a child and teenager) in assessing the Applicant’s criminality (para [58]).

c.    In having regard to the Applicant’s dysfunctional and disadvantaged background in assessing the Applicant’s criminality, the Respondent erroneously applied an incorrect legal principle; namely, that with the passage of time, the extent to which social deprivation and disadvantage in a person’s youth and background can be taken into account (as related to that person’s criminality) must diminish (para [58]).

d.    To consider this matter properly, the Respondent was required to have regard to the correct legal principle; namely, profound deprivation and disadvantage of an offender (as a whole and/or teenager) does not necessarily diminish over time and must be given full weight in considering the offender’s sentence and criminality in every case.

Grounds 2-3

The making of the proposed decision was an improper exercise of the power conferred by the enactment in pursuance of which the decision was proposed to be made.

The exercise of power by the Respondent was so unreasonable that no reasonable person could have so exercised the power.

Particulars

a.    The Respondent misconstrued the mandatory consideration of “risk of harm to the Australian community” under s 501CA(4) of the Migration Act 1958 (Cth).

b.    The Applicant repeats particulars in Ground 1 (c)-(d) above.

Ground 4

The decision by the Respondent that he had regard to the impediments that the Applicant would face if deported to New Zealand (in establishing himself and maintaining basic living standards) was illogical, irrational, or determined on findings or inferences of fact not supported by logical grounds:

Particulars

a.    The Respondent found that he had regard to the impediments to the Applicant would face if removed from Australia to New Zealand (para [37]).

b.    The Respondent made no finding as to the extent of impediments the Applicant would face if he was deported to New Zealand.

c.    Unlike other considerations, the Respondent did not outline what weight he accorded to the consideration of the extent of impediments the Applicant would face if deported (i.e. significant, moderate or limited weight).

d.    Accordingly, the balancing process of weighing the “protection of the Australian community” consideration against the “other considerations” (para [91]) lacked a legally defensible foundation in logic.

e.    The inference or conclusion drawn by the Respondent that the Applicant’s adult children in New Zealand “would be a source of some support” (para [39]) to the Applicant if he were deported lacks a legally defensible foundation in factual material and/or logic:

-    Merely because A has a “positive relationship” with B does not mean B will be a “source of support” to A (para [39]); and

-    The nature of the support to be provided by the adult children to the Applicant was not made clear (i.e. financial, emotional or otherwise).

Ground 5

The Respondent denied the Applicant natural justice or procedural fairness in making the decision:

Particulars

a.    The Respondent found that the “cumulative effect” of the Applicant’s criminality placed a considerable burden on the Australian legal and law-enforcement institutions and brought about company financial cost (para [56]);

b.    The Respondent should have informed the Applicant of the consideration taking into account in Ground 3(a) in advance of making the decision; and

c.    Consequently, the Applicant was not given an opportunity to address the adverse conclusion outlined in Ground 3(a).

The submissions to this Court

27    The applicant did not file written submissions. In oral submissions the applicant said that the effect of the Minister’s decision was to tear him and his family apart. He said he had not seen his children in New Zealand for many years. His family was here. He had paid his debt by doing jail time. If removed to New Zealand, he would not be able to see his infant son.

28    In response to the applicant’s oral submissions, counsel for the respondent Minister submitted that the Minister’s statement of reasons showed that the Minister took into account the best interests of the applicant’s minor children, his grandchild, his nieces and nephews and the two children in respect of whom he had been asked to be their godfather. The Minister also took into account the hardship on the applicant’s partner if she remained in Australia.

29    The respondent submitted, as to ground 1, that the premise that the Minister was bound to consider the applicant’s background in assessing his criminality, and the sentences passed upon him, in a particular way was incorrect. Further, the Minister’s consideration of the applicant’s criminality was not deficient in the alleged respect.

30    As to ground 2, the Minister submitted that his decision did not involve an improper exercise of the power on the claimed basis that by reason of the error pleaded in ground 1 he misconstrued the mandatory consideration of “risk of harm to the Australian community”.

31    As to ground 4, the Minister submitted that in having regard to the impediments the applicant would face if removed to New Zealand his decision was not illogical or irrational.

32    As to ground 5, the Minister submitted that he was not required to give the applicant an opportunity to comment on his conclusion that the cumulative effect of his criminality placed considerable burden on Australian legal and law enforcement institutions and accompanying financial cost.

Consideration

Ground 1

33    By this ground, in my opinion, the applicant seeks impermissibly in judicial review proceedings to convert mere fact-finding and discretionary evaluation into legal principle. This may be seen in the proposition in paragraph a. of the particulars: “Once a decision-maker selects a particular matter for consideration, he or she is bound to consider that matter properly.” There is then a reference in particular d. to the respondent being required to have regard to the correct legal principle which is said to be that profound deprivation and disadvantage of an offender as a child/or teenager does not necessarily diminish over time.

34    This may be an attempt to import a mandatory relevant consideration into the discretion in s 501CA(4), but no legal basis for so doing is disclosed. In my opinion, the principle is not a mandatory relevant consideration in the exercise of the broad discretionary power in s 501CA(4).

35    The Minister was not here purporting to apply any legal principle from criminal sentencing and was not required to do so. In my opinion, the Minister was making a judgment as to whether the adverse effect of the applicant’s upbringing excused him from responsibility for, or diminished his responsibility for, his actions as an adult. The Minister was considering risk to the Australian community. Part of that consideration was whether the applicant tended to minimise his responsibility for his offending. That in turn was a basis for the Minister’s conclusion at [72] that the applicant may continue offending. The Minister was not engaged in criminal sentencing.

36    This ground does not demonstrate legal error on the part of the Minister.

Grounds 2 and 3

37    By these grounds the applicant seeks to give an alternative legal characterisation to the consequence of the Minister’s failure to have regard to the “correct legal principle” alleged in ground 1. It appears that legal unreasonableness is raised and, perhaps, a misconstruction of the expression “risk of harm to the Australian community”.

38    As to the former, I see no basis on which it could be said that the process of reasoning did not fall within the broad discretion conferred by s 501CA(4) or as legally unreasonable within the principles in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332. As I have said in relation to ground 1, the Minister was considering risk to the Australian community and, in that context, whether the applicant may continue offending.

39    As to the latter, the “risk of harm to the Australian community” is a mandatory consideration: Moana v Minister for Immigration and Border Control [2015] FCAFC 54; 230 FCR 367, but it is not a statutory expression so as ordinarily to found a claim that misconstruction would demonstrate relevant legal error.

40    These grounds do not demonstrate legal error.

Ground 4

41    Again, the applicant seeks impermissibly in judicial review proceedings to convert mere fact-finding and discretionary evaluation into legal principle.

42    In my opinion, there was no legal obligation on the Minister to make findings as to the extent of the impediments the applicant would face if removed from Australia to New Zealand. The background is that the applicant did not himself raise the issue of impediments that he would face in New Zealand and it followed that there was limited information before the Minister in that respect. The Minister referred to impediments the applicant would face in establishing himself and maintaining basic living standards in New Zealand. No quantitative approach was required. Neither was it legally necessary for the respondent Minister to outline the weight he accorded to the impediments. The use of the metaphor “balancing process” should not be taken to suggest a quantitative approach was involved or required. In my view it cannot be said to be illogical to reason that impediments which a person may face if a visa cancellation decision is not revoked may be alleviated by the relationship that person has, on his own account, with two of his children who live in his country of nationality, New Zealand. It is to be recalled that the Minister had found, at [39], that the applicant had ongoing, positive relationships with his adult children in New Zealand. It was in that context that the Minister observed that they would be a source of some support.

43    This ground discloses no legal error.

Ground 5

44    In my opinion the Minister did not deny procedural fairness to the applicant in taking into consideration, at [56], the considerable burden, the Minister stated, that the cumulative effect of the applicant’s offending placed on Australian legal and law-enforcement institutions, together with the accompanying financial cost.

45    The Minister had extensive information relating to the applicant’s offence history and the applicant had had the opportunity to comment on it, that opportunity having been given by letters reproduced at pages 193 (apparently undated), 203 (17 October 2016) and 207 (24 May 2016) of the Court Book.

46    The burden on Australian legal and law enforcement institutions, and accompanying financial cost, of the cumulative effect of the applicant’s offending was not, in my opinion, a matter personal to him in the sense of the information involved in Kioa v West [1985] HCA 81; 159 CLR 550. It was also an obvious inference from the material. To say that it was obvious does not mean that every decision-maker would have drawn that inference but that it was obvious that a decision-maker may draw that inference. The Minister’s consideration was an obvious and natural evaluation of the material known to the applicant or a conclusion obviously open on the known material: Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074; 49 FCR 576 at 591-592.

47    This ground discloses no legal error.

A procedural question

48    There is a proceeding pending in the High Court of Australia, Falzon v Minister for Immigration and Border Protection, No S31 of 2017, challenging the validity of s 501(3A) of the Migration Act on the basis that it confers non-judicial power on the Minister contrary to Ch III of the Constitution. Arguably, a decision under s 501CA(4) in a case such as the present is dependent upon s 501(3A). I granted the applicant, who is self-represented, leave to amend to add such a ground if so advised, and an extension of time to do so. I made an order referring the applicant to a lawyer for legal assistance under r 4.12 of the Federal Court Rules 2011 (Cth). I proposed procedural orders, noting that counsel for the Minister did not have instructions to consent to that course.

Conclusion

49    The application as presently framed is dismissed, with costs.

Associate:

Dated:    20 April 2017