FEDERAL COURT OF AUSTRALIA

Broadbent v Minister for Immigration and Border Protection [2018] FCA 173

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The applicant pay the respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J:

Introduction

1    Mr Broadbent is a citizen of the United Kingdom who arrived in Australia in 2006. He was then 13 years old. He was granted a Class BT Subclass 802 Child (Residence) visa.

2    On 26 February 2016, a delegate of the Minister for Immigration and Border Protection decided to cancel Mr Broadbent’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (cancellation decision). Section 501(3A) provides that:

501    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.

3    At the time the cancellation decision was made, Mr Broadbent was serving a sentence of imprisonment on a full-time basis in Junee Correctional Centre for the offence of reckless wounding. He had a “substantial criminal record” within s 501(6)(a) on the basis of s 501(7)(c), having been sentenced to a term of imprisonment of 12 months or more. He therefore did not pass the character test and the Minister’s delegate was compelled by s 501(3A) to cancel the visa.

4    Under s 501CA(4) of the Migration Act, the Minister may revoke the cancellation decision if:

(a)    the person in relation to whom the cancellation decision was made makes representations in response to an invitation made by the Minister in accordance with s 501CA(3)(b); and

(b)    the Minister is satisfied either that the person passes the character test (as defined by s 501) or that there is another reason why the cancellation decision should be revoked.

5    Following an invitation from the Department, Mr Broadbent made representations to the Minister on 2 and 9 March 2016 concerning his visa cancellation. The representations included submissions from Mr Broadbent’s partner, his half-sister and his brother-in-law in support of revoking the cancellation decision. Those submissions indicate that Mr Broadbent has a daughter who resides with his estranged former partner and that his current partner has a son from an earlier relationship.

6    The Department wrote to Mr Broadbent in August, September and October 2016 and on another unidentified date to advise him that there was additional information that the Minister may take into account when considering whether to revoke the cancellation decision and invited his comment. That material included a National Police Certificate dated 1 March 2016, incident reports dated 3 August, 21 August, 5 June, 3 September and 5 October 2016, sentencing remarks dated 22 May and 19 June 2015, movement records, visitation records, an application for migration for a child dated 27 January 2016 and a request for information concerning residence and contact agreements in relation to Mr Broadbent’s daughter.

7    These materials disclose that since he turned 18, Mr Broadbent has been convicted of a number of offences. He has been incarcerated since 2013. The most serious offence was a conviction for reckless wounding pursuant to s 35(4) of the Crimes Act 1900 (NSW). The victim of that offence was the father of Mr Broadbent’s current partner’s son. While intoxicated, Mr Broadbent brought a sword to a confrontation with the victim following disputes between Mr Broadbent’s current partner and the victim over parenting of their son. Mr Broadbent cut the victim’s hand between the thumb and forefinger with the sword, inflicting permanent injury. On 22 May 2015, he was sentenced to a term of three years and seven months imprisonment commencing on 17 May 2014 and ending on 16 December 2017. This sentence took into account Mr Broadbent’s early guilty plea.

8    The sentencing judge accepted that Mr Broadbent was shocked at his offence and that he was remorseful and contrite. The sentencing judge found Mr Broadbent to have experienced “a significant degree of social deprivation whilst growing up” and difficulties with alcohol dependency. The sentencing judge also found that Mr Broadbent showed genuine willingness to address these issues through counselling but his prospects of rehabilitation were “guarded at best, given his history of alcohol consumption and his re-offending soon after being placed on a suspended sentence”.

9    Mr Broadbent’s other offences included:

    Driving without a licence, convicted August 2011, fined $500;

    Destroy or damage property, convicted April 2012, fined $1,000;

    Convictions in May 2012 and January 2013 for stalk/intimidate intend fear of physical/mental harm and common assault. The conviction in May 2012 included possession of a prohibited drug. The conviction in January 2013 included larceny. In each case, Mr Broadbent was released on a 12 month bond. In May 2012 he was fined $200 and in January 2013 he was fined $600. The January 2013 convictions were called up during 2013;

    Robbery in company, convicted in August 2013 and sentenced to 15 months imprisonment suspended on entering into a 15 month bond; and

    Destroy or damage property, common assault and assault occasioning actual bodily harm, convicted in June 2015, sentenced to imprisonment for six months commencing on 19 June 2015 and ending on 18 December 2015.

10    On 8 November 2016, the Assistant Minister for Immigration and Border Protection, the Honourable Alex Hawke MP, decided not to revoke the cancellation decision because he was not satisfied that Mr Broadbent passed the character test (as defined by ss 501(6) and (7) of the Migration Act); or that there is another reason why the cancellation decision should be revoked.

Assistant Minister’s reasons for decision

11    The Assistant Minister’s reasons for his decision are set out in a statement of reasons sent to Mr Broadbent under cover of a letter dated 9 November 2016.

12    After concluding that Mr Broadbent did not pass the character test (having regard to his conviction for reckless wounding), the Assistant Minister turned to consider whether there was another reason why the cancellation decision should be revoked. The Assistant Minister summarised the representations received from or on behalf of Mr Broadbent as being:

    He has a five-year-old daughter who lives in Australia with his estranged ex-partner. He remains in contact with her by telephone and letters during his incarceration and wishes to develop a closer relationship with her upon his return to the general community;

    His current partner has a four-year-old son living in Australia to whom he has had a parental role, having lived with his partner and her son from the boy’s infancy until the time of his incarceration;

    His mother, half-sister and their husbands live in Australia;

    He has lived in Australia since 2006;

    He experienced trauma in his childhood and adolescence which led him to abuse alcohol and in turn to engage in criminal offending;

    He has some record of employment in Australia;

    He is rehabilitated, having taken some courses in prison; and

    He does not know anyone in the United Kingdom if he were to return there.

13    In summary, the Assistant Minister found:

    It is in the best interests of Mr Broadbent’s daughter and the son of his current partner, who are minors, that the cancellation decision be revoked.

    Given the very serious nature of the offences committed by Mr Broadbent, the Australian community would expect that he should not hold a visa. In making this finding, the Assistant Minister took into account the views of Mr Broadbent’s partner, his half-sister and her husband which supported revocation of the cancellation decision.

    Having arrived in Australia at the age of 13, Mr Broadbent had spent some of his formative years in Australia but did not live the majority of his childhood or life to date in Australia. He started offending at the age of 18 years and offended repeatedly until his imprisonment in 2013. While Mr Broadbent stated that he had worked in various labouring roles between 2010 and 2013, and although it was not clear how regular this work was, he had made a limited contribution to the community through employment. Mr Broadbent had family and social ties to Australia, and his immediate family would experience emotional difficulty should the cancellation decision not be revoked.

    Mr Broadbent would not face substantial impediments in returning to the United Kingdom although he would face some level of initial difficulty in establishing himself.

    Violent offences should generally be regarded as serious and the circumstances of Mr Broadbent’s offending (attacking the victim with a sword and later threatening to “slice up” and “finish off” the victim) added weight to the seriousness with which the offence must be viewed. Mr Broadbent’s common assault, assault occasioning actual bodily harm and destroy or damage property offences were in the nature of domestic violence. Three of these offences were committed against his mother and stepfather and a two-year apprehended violence order was put in place as a result of the offences. This form of violence is particularly serious in view of the widespread and profound adverse consequences of domestic violence on members of the Australian community and the community’s strong concern about it. The sentences received are a further indication of the seriousness of Mr Broadbent’s offending.

    There was an ongoing likelihood that Mr Broadbent would reoffend if he was released into the general community and further offending of a violent nature by Mr Broadbent could result in physical and psychological harm to members of the Australian community. The overall risk he represents must be considered to be serious.

14    After weighing these matters, the Assistant Minister concluded that he was not satisfied that there was another reason why the cancellation decision should be revoked.

Application for review

15    In January 2017, Mr Broadbent sought review of the Assistant Minister’s decision by application to the Federal Circuit Court of Australia (FCCA) and an extension of time to file his application for review. Before the application for an extension of time was decided, on 10 February 2017, a Judge of the FCCA referred the matter to this Court under s 39(1) of the Federal Circuit Court of Australia Act 1999 (Cth) and r 8.02(1) of the Federal Circuit Court Rules 2001 (Cth). However, s 477A of the Migration Act does not confer jurisdiction on this Court to extend time in proceedings transferred to it by the FCCA. The matter was accordingly remitted back to the FCCA. On 28 July 2017, the FCCA amended its orders made on 10 February 2017 so as to grant Mr Broadbent an extension of time to file his application for judicial review.

16    The matter was listed for hearing before me on 15 September 2017. The matter was adjourned on that day because Mr Broadbent submitted that had no access to his papers concerning this application. Mr Broadbent told the Court that the papers had been misplaced when he was transferred to Goulburn Correctional Centre from Parklea Correctional Centre. The Minister undertook to arrange for a copy of Mr Broadbent’s application and supporting affidavit, the Court Book and the Minister’s written submissions to be provided to Mr Broadbent at the Goulburn Correctional Centre, and the Minister confirmed that this had been done on 17 October 2017. The matter came on for hearing on 30 November 2017. Mr Broadbent was not legally represented. He appeared by video link from the Goulburn Correctional Centre. The Minister was represented by counsel.

Grounds

17    The ground on which Mr Broadbent sought review as set out in his application is (as written):

The reasons of my revocation being denied was untrue and can be proven with evidence.

18    At the hearings of Mr Broadbent’s application on 15 September 2017 and 30 November 2017, Mr Broadbent indicated that he wished to rely on a ground that s 501(3A) is constitutionally invalid on the same basis as the then pending application to the High Court in Falzon v Minister for Immigration and Border Protection. The hearing on 30 November 2017 proceeded on the basis that evidence and argument on the ground set out at [17] above would be heard that day and the matter would be adjourned pending the outcome of the challenge to the constitutional validity of s 501(3A).

19    On 7 February 2018, the High Court dismissed the application in Falzon v Minister for Immigration and Border Protection (see [2018] HCA 2).

Mr Broadbent’s submissions

20    Mr Broadbent did not file written submissions. He made further oral submissions at the hearing on 30 November 2017. The submissions primarily cavil with aspects of the statement of reasons which he says are “not quite correct”. Those aspects concern:

(1)    His contact with his children and his support outside gaol. He submitted that he has had contact with his daughter through “father daughter days”, “parent days” and “family days” while in gaol. He says that he tried to show that he loves her and that he does not want her to grow up without her father, as Mr Broadbent grew up without his father.

(2)    His rehabilitation while in gaol, having completed a number of courses, including courses relating to the abuse of alcohol. He submitted that documents which would have supported his claims to have completed those courses were not preserved while he was in gaol. Mr Broadbent says that since he came to gaol at age 21 he has learned a lot and “losing a good chunk of adult life” and “losing a big chunk of” his daughter’s life in gaol made him wake up to himself. He has done his best to rehabilitate and better himself.

(3)    The impact on him if he is returned to England. He submitted that he does not have memories of living in England, his mother is Australian and he does not understand how he is not Australian. He is concerned that his plan, developed in the last two years, to work to build better family relationships and be a better person in society will be overturned if he is returned to the United Kingdom.

Consideration

21    In view of the High Court’s decision in Falzon v Minister for Immigration and Border Protection, Mr Broadbent’s ground which relied on the claim that s 501(3A) was unconstitutional must fail.

22    As to the ground set out in his application, Mr Broadbent filed one affidavit which was dated 24 January 2017. Attached to the affidavit was a copy of the letter notifying Mr Broadbent of the Assistant Minister’s decision and a copy of the Assistant Minister’s Statement of Reasons for the decision. The affidavit stated only that Mr Broadbent sought to “appeal” the revocation of his visa. Mr Broadbent filed no other evidence.

23    On a plain reading of the statement of reasons and the other material in the Court Book, the Minister addressed the submissions made to him by Mr Broadbent and members of his family.

24    Turning to address Mr Broadbent’s oral submissions: the Assistant Minister noted at [46] that Mr Broadbent’s partner had submitted that, while in prison, Mr Broadbent had done “everything in his power to rehabilitate himself” and he had done courses in “Positive Lifestyle Program, Access to Work & Training and Food Handling”. The Assistant Minister noted, however, that none of these courses dealt with alcohol dependency or family violence. Mr Broadbent’s submissions indicate that to the extent that he may have completed other courses, he was not in a position to provide evidence to the Minister of them. As submitted by counsel for the Minister, the findings made by the Assistant Minister in this regard were open to be made by him for the reasons that he gave based on the evidence then before him. There is no legal error disclosed by the Assistant Minister’s failure to deal with information which was not before him.

25    For the same reason, it was open to the Assistant Minister to conclude that Mr Broadbent had only had a very limited role in his daughter’s life. Based on the evidence before the Assistant Minister, it was open to him to conclude that Mr Broadbent had not been in a position to provide daily care or control of his daughter for much of her life, since he commenced a marital de facto relationship with his current partner 10 months after his daughter was born. His relationship with his former partner was not good. Although Mr Broadbent’s submission to the Minister made reference to telephone contact and letters, it did not refer to contact at family days, father and daughter days or other physical contact while he has been incarcerated and Mr Broadbent did not produce a copy of any of the letters. The Assistant Minister accepted that Mr Broadbent loved both his daughter and the son of his current partner and wished to have contact with them when he is released from prison. The Assistant Minister’s statement of reasons does not suggest that Mr Broadbent would not have support from his family (at least his half-sister and brother-in-law, and his current partner) in Australia.

26    While I do not doubt that Mr Broadbent is concerned about the impact on him of being returned to the United Kingdom, including the impact on his capacity to build better relationships with his family and be a valuable contributor to society, that is a matter which goes to the merit of the Assistant Minister’s decision. Mr Broadbent’s disagreement with the Assistant Minister’s assessment of this factor and the weight to be accorded to it does not disclose a jurisdictional error.

27    Although Mr Broadbent’s submissions were heartfelt, they addressed the merit of the Assistant Minister’s decision. The submissions reveal no jurisdictional error in the Assistant Minister’s decision-making which would vitiate his decision to not revoke the cancellation decision.

Conclusion

28    Mr Broadbent’s application must be dismissed. He should pay the respondent’s costs as agreed or taxed.

Associate:

Dated:    1 March 2018