FEDERAL COURT OF AUSTRALIA

Manihera v Minister for Immigration and Border Protection [2017] FCA 1567

ORDERS

THE COURT ORDERS THAT:

1.    This matter be stood over until two weeks after the determination of Falzon v Minister for Immigration and Border Protection [2017] HCATrans 230 (No S31/2017).

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

REASONS FOR JUDGMENT

BARKER J:

1    The applicant, who is a citizen of New Zealand, applies to quash a decision made by the Assistant Minister for Immigration and Border Protection, not to revoke a decision to mandatorily cancel his visa.

2    The applicant has resided in Australia for 37 years since first arriving, with his parents, as an 11 year old boy in 1981 on a Class TY Special Category (Temporary) visa. He is now 48 years of age.

3    Relevantly, on 18 June 2004, the applicant was convicted of malicious inflict grievous bodily harm, for which he was sentenced to a term of 2 years imprisonment, wholly suspended.

4    Eleven years later, on 30 June 2015, the applicant was further convicted of the offences of common assault and contravene prohibition/restriction in apprehended domestic violence order, and was sentenced to eight months imprisonment. The applicant was also sentenced on call ups of those earlier offences to a concurrent term of four months imprisonment.

5    As noted below, the applicant convicted had been as a minor and subsequently of other offences, but not to any terms of imprisonment.

6    On 15 September 2015, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) on the basis that he did not pass the character test because he had a substantial criminal record and was serving a sentence of imprisonment on a full-time basis in a custodial institution (the original decision).

7    The applicant made representations seeking revocation of the original decision under s 501CA(4) of the Act. The Assistant Minister decided not to revoke the decision on 23 February 2017.

8    The result of the original decision and the decision of the Assistant Minister now the subject of this review proceeding, is that the applicant is being held in immigration detention on Christmas Island.

9    The applicant filed a judicial review application in the Federal Circuit Court and sought an extension of time to make the application pursuant to s 477 of the Act.

10    By consent orders made on 13 July 2017, an extension of time was granted and the proceeding was transferred to this Court.

ASSISTANT minister’s decision

11    Section 501CA(4) of the Act provides:

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.

12    The Assistant Minister, who lawfully made the decision, was not satisfied the applicant passed the character test as defined by s 501 of the Act. In determining whether there was “another reason” why the original decision should be revoked, the Assistant Minister considered the applicant’s representations and supporting documents.

13    The Assistant Minister noted that the applicant submitted the following reasons for revocation of the original decision:

    he arrived as an 11 year old child with his parents in 1981;

    his parents and sister are deceased and buried in Australia, and he would like to be buried near them;

    his remaining family all reside in Australia;

    his two minor children are Australian citizens and reside in Australia with their Australian citizen mother;

    he has no familial or social ties in New Zealand; and

    he has a long history of mental health issues which have caused a sustained period of drug and alcohol abuse, which in turn drove his offending, but he is now rehabilitated and drug and alcohol free.

14    The Assistant Minister found it was in the best interests of the applicant’s two minor children, who were born in Australia and reside with their mother, for the original decision to be revoked. The Assistant Minister stated that removing the applicant from Australia will, to an extent, deprive his children of the opportunity to have direct, personal contact with their father.

15    The Assistant Minister considered the applicant’s residence in Australia for some 35 years, at that point, and that the applicant has some familial and social ties to Australia, but gave less weight to these considerations because the applicant had started to offend soon after arriving in Australia and had continued to offend throughout his time as an Australian resident.

16    The Assistant Minister had regard to the impediments that the applicant will face if removed from Australia to New Zealand, noting that he has lived in Australia since he was 11 years of age and has not listed any education or employment which may provide him with transferrable skills to assist with his integration into the New Zealand community. The Assistant Minister accepted the applicant’s mental health condition would likely limit his ability to find work in New Zealand, and that he lacked social and familial support in New Zealand. The Assistant Minister concluded the applicant would suffer some emotional, practical and economic hardship if he were returned to New Zealand.

17    As to the applicant’s criminal conduct, the Assistant Minister noted that, in addition to his 2015 convictions for common assault and contravene prohibition/restriction in apprehended domestic violence order, the applicant had verbally and physically abused his former partner on separate occasions and that some of this offending occurred in front of her children. The applicant’s other violence offences, the Assistant Minister considered, comprised malicious inflict grievous bodily harm in 2004, assault related convictions (including as a child), robbery, breaching domestic violence orders, as well as drug possession and driving offences. The Assistant Minister considered the applicant’s domestic violence offences and the cumulative impact of his offending were serious.

18    In considering whether the applicant posed a risk to the Australian community through re-offending, the Assistant Minister noted the applicant’s offending had been driven by a combination of his mental health issues and his abuse of drugs and alcohol. The Assistant Minister said the applicant advised that he was clean from any addiction for 12 months, but noted such abstinence had been within a custodial immigration detention environment and that his ongoing ability to refrain from substance abuse in the community remained untested. The Assistant Minister did not accept the applicant was fully rehabilitated.

19    The Assistant Minister added the applicant was diagnosed with schizophrenia in 2008 and had provided little detail of his current treatment and support. The Assistant Minister found that if he failed to manage his illness properly, there was a reasonable chance he would again slip into substance abuse.

20    The Assistant Minister questioned the applicant’s level of insight into his offending and found that his record listed numerous breaches and persistent offending over a sustained period. This, the Assistant Minister said, indicated a lack of respect for Australian law and weighed toward a likelihood of him reoffending. The Assistant Minister stated further that if the applicant were to reoffend in a similar manner, it could result in physical and/or psychological harm to members of the community, particularly his former partner and her children, or any future domestic partners of the applicant.

21    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, as a primary consideration, and any other considerations identified.

22    The Assistant Minister was accordingly not satisfied, for the purposes of s 501CA(4)(b)(ii) of the Act, that there was another reason why the original decision to cancel the applicant’s visa should be revoked and, accordingly, decided not to revoke the original decision.

judicial review in this court

23    In his application now before this Court, the applicant seeks judicial review on the following grounds:

1.    In 2015 I went to jail for 6 months & 2 months parole first and only time.

2.    Minister has not given proper consideration.

3.    Rehabilitation course and no longer use drugs and alcohol as an emotional crutch for my offences.

24    He did not file further affidavits or written submissions in support of his application. He was self-represented at the hearing.

25    The Assistant Minister filed written submissions on 1 December 2017.

26    With respect to grounds 1 and 2, the Assistant Minister suggests the applicant may be seeking to submit that the Assistant Minister failed to take into account a relevant consideration, namely, that it was the first time he went to jail and that he spent only 6 months in prison of the 8 month sentence.

27    In response, the Assistant Minister submits the ground of failure to take into account a relevant consideration can only be established if a decision-maker fails to take into account a consideration which he or she is bound to take into account in making that decision. See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40.

28    The Assistant Minister notes that the factors which an administrative decision-maker is bound to take into account are determined by the construction of the statute conferring the discretion and if the factors are not stated, they are to be determined by implication from the subject matter, scope and purpose of the statute. See Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505; [2004] FCAFC 256 at [71]; Peko-Wallsend at 39-40.

29    The Assistant Minister says there is no express requirement in s 501CA(4)(b)(ii) of the Act for the decision-maker to consider the duration of the time the person actually spends in prison or whether it is his or her first time in prison. The Assistant Minister further says there is nothing in the subject matter, scope and purpose of the statute to suggest that these are mandatory considerations when applying the test in s 501CA(4)(b)(ii) of the Act.

30    As to ground 3, the Assistant Minister says it is not clear whether the applicant is alleging this ground was a relevant consideration not taken into account by the Assistant Minister. In any event, the Assistant Minister submits, he did note the applicant had sought rehabilitation and medication for his sustained drug and alcohol abuse; had been free from any addiction from 12 months; and abstains from drugs and alcohol. However, he found that the applicant’s abstinence had been in a custodial or immigration detention environment and his ability to refrain from substance abuse in the community remains untested.

31    The Assistant Minister contends that it was open to conclude, for the reasons that the Assistant Minister gave, that he was not satisfied that there was another reason why the original decision should be revoked.

32    Additionally, the Assistant Minister notes that this matter is potentially affected by the High Court proceeding in Falzon v Minister for Immigration and Border Protection [2017] HCATrans 230 (No S31/2017), which deals with a challenge to the validity of s 501(3A) on the ground that it purports to confer judicial power contrary to the Constitution. Falzon was heard by the High Court on 14 November 2017 and judgment was reserved.

33     The Assistant Minister was content to proceed with the hearing of this application, but submits the Court should not make final orders pending the High Court determination in Falzon. See Hooton v Minister for Immigration and Border Protection [2017] FCA 586 at [69]-[72].

CONSIDERATION

34    At the hearing, as noted above, the applicant was self-represented. He appeared by video link from detention on Christmas Island.

35    In relation to his three grounds of review set out above, the applicant emphasised his concern that the decision materially depended on his convictions in Australia whilst still a minor, and not just his adult convictions.

36    He said it was relatively easy for a person in detention to engage in substance abuse and so his claim to be “clean” should have been afforded more weight by the Assistant Minister.

37    It was also reasonably plain from the grounds he advanced and his submissions at the hearing that the applicant considered the decision of the Assistant Minister to be legally unreasonable, in a Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 sense.

38    Recently, a Full Court of this Court has found, in the particular circumstances of that matter arising under s 501(2) of the Act, that the Minister’s decision to cancel a visa on character grounds was illogical, effectively applying the ground of legal unreasonableness.

39    In that case – Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200 – the Full Court (Flick, Perry and Charlesworth JJ) held that, in light of findings made by the Minister concerning the likelihood of the relevant applicant to reoffend, a decision to cancel the visa on the grounds of the need to protect the Australian community from his reoffending disclosed jurisdictional error.

40    At [35], the Full Court stated the following general principles:

(1)    the power conferred under s 501(2) of the Act is implicitly confined by the subject matter, scope and purpose of the legislation: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 (Dixon J);

(2)    as Allsop CJ explained in Stretton (at [11]), the task of reviewing a decision for legal unreasonableness is not definitional, but one of characterisation:

… the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. …

(3)    the Court is to look to the reasons given for the decision to understand why the power was exercised as it was: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437;

(4)    as the Full Court explained in Singh, the process of review of legal unreasonableness “will inevitably be fact dependent”. The Court continued (at [48]):

… That is not to diminish the importance of the supervising court maintaining an approach which does not involve the substitution of its own judgment for that of the decision-maker. Rather, it is to recognise that any analysis which involves concepts such as ‘intelligible justification’ must involve scrutiny of the factual circumstances in which the power comes to be exercised.

(5)    in a different review context, Deane J spoke of the requirement that a statutory tribunal act rationally and reasonably: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 — 368. His Honour’s explanation of the content of that obligation applies equally to the Minister in the exercise of the power conferred by s 501(2) of the Act (at 367):

When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact.

(6)    nevertheless, as Wigney J said (with respect correctly) in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 (at [55]):

… allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship (2013) 140 ALD 78 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276 at [66]; SZWCO at [64]-[67].

41    In this regard, see my discussion of Muggeridge in Elara v Assistant Minister for Immigration and Border Protection [2017] FCA 1565 at [53]-[62]. I consider this dicta generally to be relevant to a case such as the present where the Minister exercises his power under s 501CA(3) and (4) concerning the revocation of an originating decision mandatorily cancelling a visa on character grounds under s 501(3A).

42    In many circumstances it might be said, as a matter of administrative policy, that it is unfortunate, and in some respects unfair, that a person who has spent many years of their life in Australia since arrival as an infant with their parents, and who has no obvious continuing connections with the country of their birth, should be sent to that country to recommence their life as an adult many years later following their offending in Australia. In this case, this might be thought to be particularly so in circumstances where the applicant plainly suffers, as the Assistant Minister accepted, from mental health issues and a lack of insight into his offending behaviour. It seems unfortunate that Australia should seek to transfer responsibility for a person with the difficulties and problems that this applicant has, and who has been a resident of Australia for 37 of his 48 years, including all his adult life, to another country just because he was born there.

43    Nonetheless, as a matter of law, in light of his offending since he was an adult, which has continued until recent years – as late as 2015 – and which involves domestic violence, it may be said that the Assistant Minister’s decision in this case is not illogical, in that it cannot be said there is no basis to the expressed concern that members of the Australian community, particularly persons who may be in a domestic relationship with the applicant, may be at risk of harm should the applicant remain the Australian community. The offending relied on by the Assistant Minister substantively occurred during his adult life, not when a minor.

44    The fact that the applicant had only spent a relatively short time in a custodial institution is not relevant in these circumstances.

45    While it was not expressly contended that the decision taken was so disproportionate to the purpose or the intention by Parliament of the power not to revoke a mandatory cancellation order, I do not think that conclusion can be reached in the circumstances of this case for the same reasons.

46    It is one thing to say, as I have as an individual judge, that the decision under judicial review might be viewed as unfair as a matter of administrative policy, it is another to say that it is legally unreasonable on the basis of the principles recently canvassed in Muggeridge.

Conclusion

47    For these reasons, subject to resolution of the Falzon issue mentioned above, I would dismiss the application for review of the Assistant Minister’s decision.

48    I will, however, delay the making of the final orders pending the delivery of the decision in Falzon.

49    As a result, I order:

1.    This matter be stood over until two weeks after the determination of Falzon v Minister for Immigration and Border Protection [2017] HCATrans 230 (No S31/2017).

Associate:

Dated:    22 December 2017