FEDERAL COURT OF AUSTRALIA
Denizgezen v Minister for Immigration and Border Protection [2017] FCA 457
ORDERS
Applicant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the first respondent’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
TRACEY J:
1 This is an application to review a decision of the Administrative Appeals Tribunal (“the Tribunal”) to affirm a decision of a delegate of the Minister: see Denizgezen v Minister for Immigration and Border Protection [2016] AATA 727. That decision was to refuse an application by the applicant, Mr Denizgezen, for a partner (temporary) (class UK) visa pursuant to s 501(1) of the Migration Act 1958 (Cth) (“the Act”). The visa was refused because the Minister’s delegate considered that Mr Denizgezen did not pass the character test as particularised in s 501(6)(d)(i) of the Act.
2 The proceeding was commenced in the Federal Circuit Court and later transferred to this Court pursuant to s 39(1) of the Federal Circuit Court of Australia Act 1999 (Cth).
THE BACKGROUND FACTS
3 Mr Denizgezen was born in Cyprus. He came to Australia in April 2003, entering on a visitor’s visa. He was accompanied by his first wife.
4 Mr Denizgezen and his first wife had two children who were born in Australia in July 2003 and November 2004, respectively. Mr Denizgezen subsequently separated from his wife.
5 In December 2006, Mr Denizgezen met another woman whom he married in July 2007. They have a daughter who was born in January 2008.
6 At the time of the Tribunal hearing, Mr Denizgezen had entered into a relationship with another lady.
7 Mr Denizgezen also has son to a former Australian girlfriend. He has since lost contact with her and his son.
8 Between 2007 and 2015, Mr Denizgezen was convicted of recklessly causing injury and assaulting two of his female partners, as well as contravening a family violence intervention order in relation to another. He was also found guilty of driving a motor vehicle whilst his authorisation to do so was suspended.
THE LEGISLATION
9 Section 501(1) of the Act provides that the Minister may refuse to grant a visa if the applicant does not satisfy the Minister that he or she passes the character test. The character test is set out in s 501(6). Relevantly, a person is deemed not to pass the character test if:
(d) in the event that the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; …
DIRECTION NO. 65
10 In December 2014, the Minister issued Direction No. 65 — Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (“Direction No. 65”) pursuant to s 499(1) of the Act. Under s 499(2A) of the Act, decision makers are required to comply with the Direction. The Direction provided guidance for decision makers (including the Tribunal) when making decisions under s 501 to refuse or cancel visas. One of the matters dealt with in the Direction was the exercise of the Minister’s discretion to determine whether a non-citizen should be permitted to remain in Australia in circumstances where the non-citizen does not pass the character test. Decision makers are required by the Direction to take into account primary and other considerations relevant to an individual case.
THE TRIBUNAL’S DECISION
11 The Tribunal provide detailed and carefully considered reasons for its decision.
12 It referred to the relevant legislative provisions, the relevant parts of Direction No. 65 and details of Mr Denizgezen’s conduct whilst in Australia. It set out his criminal convictions and personal history and then turned to the considerations which it was bound, by the Direction, to take into account in reaching its decision as to the exercise of the discretion under s 501(1).
13 At [42], the Tribunal found that Mr Denizgezen’s risk of re-offending was low to moderate, but not insignificant.
14 The Tribunal referred to the three primary considerations, identified in the Direction, and to other potentially relevant considerations. It then examined the facts relevant to each consideration. Some of these considerations weighed in favour and some against the granting of the visa.
15 Having weighed the competing considerations the Tribunal expressed its conclusions as follows:
57. The primary consideration regarding protection of the Australian community from criminal or other serious conduct, which weighs in favour of refusal of the visa, should be given great weight given the nature of the conduct and the lengthy period over which the offences occurred. The expectations of members of the Australian community, as described in Direction no. 65, would also lead to refusal of the visa given the violent behaviour of Mr Denizgezen.
58. On the other hand, the primary consideration regarding Mr Denizgezen’s ties to his children and their rights to be with their parent, which weighs against refusal of a visa, should also be given significant weight. However, whilst the rights of the children are very important, their mothers and any future partners of their father should not have to fear or experience violence.
59. The balancing act in cases such as this one is difficult. However, the outcome will ultimately be determined in accordance with the Tribunal’s obligation, pursuant to Direction no. 65, to make a finding as to whether the risk of Mr Denizgezen causing future harm to members of the Australian community is unacceptable. The Tribunal finds that it would be unacceptable.
60. Having regard, in particular, to the principles referred to in Direction no. 65 and the findings made in relation to those principles, the Tribunal concludes, that the preferable decision in this case is that the application for the visa be refused.
THE GROUNDS OF REVIEW
16 Mr Denizgezen’s application for judicial review of the Tribunal’s decision listed four grounds. They were:
1. The interest of the Applicant is affected by the decision given by the Tribunal on 20 September 2016.
2. The Tribunal acted without or in excess of jurisdiction and/or identified wrong issues, asked wrong questions, relied on irrelevant material or ignored relevant material.
3. The Applicant was denied natural justice.
4. That the [Tribunal] ignored/failed to consider Section 424A(1) of the Migration Act 1958.
17 He sought orders quashing the Tribunal’s decision and remitting the application for further consideration according to law.
18 None of these grounds was particularised.
THE APPLICANT’S SUBMISSIONS
19 Mr Denizgezen appeared in person at the hearing of his application. He has, for some time, been in and remains in immigration detention.
20 Mr Denizgezen advised the Court that he had not drafted the grounds appearing in his application and was unable to assist the Court to understand how they arose in the course of the Tribunal dealing with and determining his application. Mr Denizgezen did mention that he has children in Australia. This factor was one which the Tribunal considered weighed in favour of his visa being granted.
CONSIDERATION
21 Ground 1 does not allege any error on the part of the Tribunal.
22 I have read the Tribunal’s reasons carefully and I cannot identify any error of the kind alleged in Ground 2.
23 There was no evidence before the Court of any procedural irregularity which would support the allegations that Mr Denizgezen was denied natural justice (as alleged by Ground 3) or that the Tribunal had failed to comply with its obligations under s 424A(1) of the Act (as alleged by Ground 4).
24 On reading the Tribunal’s reasons, I was concerned that it may not have followed the two step process mandated by s 501: see Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67 at 69; [2009] FCA 1098 at [16] (Edmonds J); Brown v Minister for Immigration and Citizenship (2010) 265 ALR 668 at 674; [2010] FCAFC 33 at [29] (Nicholas J, Moore and Rares JJ agreeing); Aksu v Minister for Immigration and Multicultural Affairs (2001) 65 ALD 667 at 674; [2001] FCA 514 at [24] (Dowsett J), quoted with approval in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at 523; [2004] FCAFC 256 at [72] (Kiefel and Bennett JJ). On reflection, I do not consider that the Tribunal failed to determine whether Mr Denizgezen had failed to meet the character test before determining whether the visa should be refused. The Tribunal’s finding that there was a low to moderate risk that Mr Denizgezen would re-offend, although made in the context of discretionary considerations, was, nonetheless, a finding that he had failed to satisfy the character test. The Tribunal’s treatment of the discretionary considerations disclosed no reviewable error.
DISPOSITION
25 The application must be dismissed with costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. |
