FEDERAL COURT OF AUSTRALIA

Timu v Minister for Immigration and Border Protection [2018] FCA 214

ORDERS

THE COURT ORDERS THAT:

1.    The oral application for an adjournment of the hearing be dismissed.

2.    The application be dismissed.

3.    The applicant pay the costs of the respondent, to be assessed if not agreed.

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, a citizen of New Zealand, applies to quash a decision of the Assistant Minister for Immigration and Border Protection not to revoke a decision of a delegate of the Minister for Immigration and Border Protection to mandatorily cancel his Australian visa.

2    The applicant originally arrived in Australia in October 1988 aged 14 and subsequently became a Class TY Special Category (Temporary) visa holder. He is now 43 years of age.

3    On 15 July 2016, he was convicted of a range of offences, including assaults occasioning bodily harm in the Magistrates Court of Queensland and sentenced to 18 months imprisonment concurrently with six months non-parole. He had a criminal record dating back to 1991.

4    On 5 August 2016, the applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) because the delegate was satisfied the applicant did not pass the character test on the basis that he had a substantial criminal record and because he was serving a sentence of full-time imprisonment at the time of the decision (original decision).

5    The applicant has been in immigration detention since 6 September 2016, when he was released from criminal custody. He is currently being detained on Christmas Island.

6    On 18 September 2016, the applicant requested the Minister to revoke the original decision under s 501CA(4) of the Act, attaching a nine page hand written document in support of his request.

7    On 16 January 2017, the Department of Immigration and Border Protection sent the applicant an invitation to comment letter, notifying the applicant of information which might be taken into account by the Assistant Minister in making the decision whether to revoke the original decision. This information was described to the applicant as follows:

•    A Detention Placement Assessment which details your Involuntary Treatment Order in September 2016

•    A summary of the phone conversation with your parents on 16 January 2016 regarding minor children in their care

8    The applicant responded to the invitation with an 18 page letter dated 23 January 2017.

9    On 8 February 2017, the Assistant Minister decided not to revoke the original decision, for reasons discussed below.

10    On 13 March 2017, the applicant lodged an application for judicial review in the Federal Circuit Court regarding the Assistant Minister’s decision, however this was not accepted for filing.

11    Subsequently, the applicant successfully filed an application for judicial review in the Federal Circuit Court on 9 May 2017 and also sought an extension of time.

12    On 18 August 2017, Lucev J made orders under s 477(2) of the Act extending the time for making an application until 9 May 2017, and transferring the proceeding to the Federal Court.

ASSISTANT MINISTER’s DECISION

13    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.

14    The Assistant Minister was not satisfied the applicant passed the character test under s 501 of the Act meaning that s 501CA(4)(b)(i) was not met.

15    The Assistant Minister then considered whether there was another reason why the original decision should be revoked under s 501CA(4)(b)(ii) of the Act, taking into account the applicant’s representations and supporting documents.

16    The Assistant Minister stated that the applicant had articulated the following reasons why the original decision should be revoked:

    the negative effect upon his two minor Australian citizen children;

    the hardship his removal will cause his parents and other family members;

    the mitigating circumstances of his offending;

    his remorse and the rehabilitation he has achieved; and

    the hardship he will face if the cancellation is not revoked.

17    In considering the best interests of the applicant’s children the Assistant Minister noted that both children had been in the care of the applicant’s parents since they were approximately six months old, and that the applicant stated he had been in both of their lives since they were born.

18    The Assistant Minister referred to the applicant’s assertions regarding the strength of his relationship with his children and his ongoing role in the children’s lives. The Assistant Minister stated this was a theme of the applicant’s correspondence in both this and earlier character considerations.

19    The Assistant Minister formed the view that it was in the best interests of the applicant’s children to revoke the cancellation of the applicant’s visa to enable personal contact between the applicant and his children in the future.

20    The Assistant Minister also found that it was in the best interests of the applicant’s niece and nephew, who were minors, to revoke the visa cancellation decision to allow them personal contact with the applicant. However, this factor was given less weight because the Assistant Minister stated that there was no evidence the applicant had a parental or equivalent role in their lives, but noted that he spoke to them regularly and that the family was very close.

21    With respect to the strength, nature and duration of the applicant’s ties to Australia, the Assistant Minister accepted that not revoking the decision would cause the applicant’s immediate family emotional hardship. The Assistant Minister considered that the applicant’s parents, particularly, would suffer significant hardship because the applicant’s removal would seem to end any chance of him resuming custody and primary responsibility for his children. The Assistant Minister accepted that the applicant’s parents’ age would exacerbate this hardship.

22    Because the applicant had lived in Australia for most of his life, the Assistant Minister was of the view that the Australian community may therefore afford a higher tolerance toward his criminal conduct. The Assistant Minister gave less weight to this consideration, however, because the applicant’s record of adult offending started only three years after arriving in Australia.

23    The Assistant Minister accepted that the applicant’s employment as a builder’s labourer and store person constituted some level of positive contribution to the community, but found that the applicant’s positive contribution had been limited and did not weigh strongly in his favour.

24    In assessing the extent of impediments the applicant would face if removed from Australia, the Assistant Minister noted that the applicant has been diagnosed with a “schizophrenic disorder”. The Assistant Minister accepted that the applicant could face hardship if his new medical practitioners in New Zealand did not have access, immediate or otherwise, to all of his medical records, but stated that New Zealand had a comparable health system to Australia which the applicant would have the same access to as other New Zealand citizens.

25    Regarding employment, the Assistant Minister noted that New Zealand has a social welfare system in the event that the applicant required assistance.

26    The Assistant Minister found that a decision not to revoke the original decision would mean the applicant would experience significant emotional hardship, based on leaving his children and family in Australia, and that this would likely be exacerbated by his mental health issues.

27    The Assistant Minister also noted that the applicant would undergo a period of adjustment given he had not been to New Zealand for 28 years. However, he found that the hardships would “not be insurmountable in light of New Zealand’s similar culture, language and health system standards”.

28    The Assistant Minister had regard to the consideration of the protection of the Australian community and noted the applicant’s claim that he was rehabilitated.

29    He considered that the applicant’s “recidivist offending over a long period that includes multiple violent, drug and dishonesty offences” was serious. He noted that the applicant’s criminal history was lengthy, commencing in 1991 when the applicant was 17 years of age, through to 2016.

30    The Assistant Minister outlined recent sentencing remarks as follows:

In relation to his most recent offending as set out above, I had regard to the sentencing remarks of the Magistrates Court of Queensland which provide the background and the circumstances surrounding these offences. Mr TIMU attacked Mr Launder as he lay sleeping next to Ms Johnston at 3 or 4am in Ms Johnston's unit. Ms Johnston 'was or is a partner' of Mr TIMU, they have two children together but they were not living together at the time. Mr TIMU punched Mr Launder in the head whilst he was asleep and then kicked him in the backside and hit him on the ears as he went downstairs. Mr Launder sustained 'significant eye injury and a lot of (his) blood was spilt'.

The Sentencing Judge stated, 'you're a man who has, for a long, long time, been quite violent to members of the public and also your family, and people who get in your way —for example, Mr Launder'.

Mr TIMU states that the person he assaulted was his children's mother's boyfriend and he had heard that Mr Launder had been to prison for assaulting Ms Johnston and 'smashing her place'.

31    The applicant’s history of violence was described by the Assistant Minister as “prolonged” and stated that this included domestic violence and violence against officials.

32    In this regard, the Assistant Minister concluded that the applicant had a significant criminal history with repeat violent offending, noting this included multiple violent offences against women.

33    In considering whether the applicant posed a risk to the Australian community, the Assistant Minister noted that the applicant’s offending had largely occurred “against a backdrop of mental health issues, compounded by drug and alcohol abuse”. He also referred to the applicant’s remorse for offending, the programs he had completed in prison regarding his offending and substance abuse, and the “salutary” impact of his imprisonment and visa cancellation.

34    The Assistant Minister did not accept, however, that the applicant’s role as a father had proven to be a deterrent for the applicant and he did not have faith this would change.

35    The Assistant Minister noted that the applicant was sent a notice of a decision not to cancel his visa and a warning on three occasions between 1997 and 2012 by the Department, and that his offending continued despite these warnings.

36    He also noted that the applicant’s criminal record included breaching judicial orders and found that this showed a disregard for judicial authority.

37    Given the applicant’s history of substance abuse, recent offending and history of recidivism and breaching judicial orders, the Assistant Minister found there remained a risk that the applicant would reoffend, which may result in physical or psychological damage to members of the Australian community.

38    For these reasons, he decided not to revoke the original decision.

judicial review in this court

39    In his application filed 9 May 2017, the applicant states the following grounds for judicial review:

1.    Not enough consideration given to the rights of a child (child support assessment act 1989)

2.    Not enough consideration given to my ties in Australia

3.    The lack of assessment made for my mental stability in the future if deported.

40    The applicant’s accompanying affidavit, also filed on 9 May 2017, attached a “Notice of Intention to Remove from Australia” letter from the Australian Border Force and a “Notice in Respect of Removal Costs” from the Department dated 2 May 2017.

41    On 4 September 2017, I made orders programming dates for any amended application and affidavits to be filed. No amended application or affidavits have been filed. I also issued a pro bono certificate to facilitate legal representation by the applicant, if required and available.

42    The applicant did not file an outline of written submissions in the matter.

43    As it transpires, the applicant did not obtain legal representation and appears at all material times to have remained self-represented.

44    When the application was called on for hearing at 11.30am on 1 March 2018, the hearing to be by telephone from the Christmas Island detention facility, he did not appear. The Court was advised by an officer at the detention facility that the applicant had earlier indicated a lack of interest in attending the hearing. At that point, the Court adjourned the hearing to 2.15pm on 1 March 2018 and asked the officer to indicate to the applicant that if he wished, he could appear at the hearing either by video conference or telephone.

45    Prior to 2.15pm the Court was advised that the applicant had been under some confusion as to the nature of the hearing and that he would appear by telephone at 2.15pm.

46    The applicant duly appeared by telephone when the hearing was resumed at 2.15pm.

47    The applicant, at the invitation of the Court, orally addressed the three grounds of his application, as set out above. He also confirmed he did not have a lawyer but would like to and indicated that he would like an adjournment in that regard. In the course of the applicant making submissions he also indicated that he had spoken with at least one lawyer, but that he could not afford the lawyer’s fees, or that the lawyer, or another lawyer, was too busy to consider his materials.

48    As a matter of fact, following the issue of a pro bono certificate by the Court on 4 September 2017, enquiries were made to ascertain if legal representation on a pro bono basis was available for the applicant. The Court was advised that enquiries had not been successful.

49    On 27 October 2017, an email was sent by the Court to the applicant at haydntimu@hotmail.com (being the email address the applicant provided with his application to the Court) and copied to the solicitors for the Minister advising:

Dear Sir

I refer to the Pro Bono referral made by Justice Barker on 4 September 2017 referring the matter to a lawyer on the pro bono scheme for legal assistance.

In accordance with the rules attempts have been made to arrange for a legal practitioner on the Pro Bono scheme to provide you with legal assistance in this matter. However, all attempts to obtain such legal assistance have been unsuccessful. Accordingly, I am unable to arrange for a legal practitioner to assist you under the Court’s Pro Bono scheme. Therefore you may wish to make your own arrangements for legal representation.

50    When this was brought to the applicant’s attention at the hearing, he said it was the first he had heard of that communication and suggested he had experienced some difficulties with emails at the detention facility.

51    In response to the applicant’s application for an adjournment, counsel on behalf of the Minister opposed the adjournment, essentially on two grounds. First, that attempts had been made to obtain pro bono assistance, without success. Secondly, that the merits of the application were so lacking that there would be no point in granting an adjournment.

52    To the latter submission, the applicant, in reply, in effect submitted that if he were able to obtain legal assistance it might be that a lawyer would find additional grounds on which the application could proceed.

53    Counsel for the Minister then briefly made oral submissions that addressed the written submissions of the Minister.

54    The Minister filed written submissions on 22 February 2018.

55    With respect to the three grounds of judicial review, the Minister submits that the grounds impermissibly seek to attack the merits of the decision and do not assert or establish jurisdictional error, noting the Federal Court does not have jurisdiction to engage in merits review. See NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6.

56    In relation to ground 1, the Minister argues that clear consideration was given to the best interests of affected children as a primary consideration, consistent with Art 3 of the Convention on the Rights of the Child. Opened for signature 20 November 1989. 1577 UNTS 3 (entered into force 2 September 1990). However, the Minister noted that the Child Support (Assessment) Act 1989 (Cth), which the applicant referred to, was not a relevant consideration the Assistant Minister was bound to take into account.

57    With regard to ground 2, the Minister states consideration was given to the strength, nature and duration of the applicant’s ties to Australia and the hardship the applicant would likely face if removed to New Zealand.

58    In addressing ground 3, the Minister submits the Assistant Minister noted the applicant had been diagnosed with a “schizophrenic disorder” and accepted that he could face hardship if new medical practitioners did not have access to his records, but noted the health system in New Zealand, to which the applicant would have the same access as other New Zealand citizens, was comparable to Australia.

59    Similarly, the Minister contends that the Assistant Minister had found the applicant would experience significant emotional hardship which was likely to be exacerbated by the applicant’s mental health issues, but such hardship was not insurmountable due to New Zealand’s similar culture, language and health system standards.

60    In submitting that the application should be dismissed with costs, the Minister contends, at [31] to [33] of his submissions:

31.    Notwithstanding his findings regarding the best interests of minor children, the strength, nature and duration of the applicant’s ties to Australia and the extent of impediments if removed to New Zealand, 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 those other considerations: [91].

32.    It was open to the Assistant Minister, for the reasons that he gave, to conclude that he was not satisfied, for the purposes of s 501CA(4)(b)(ii) of the Migration Act, that there was another reason why the original decision to cancel the applicant’s visa should be revoked.

33.    The Assistant Minister’s conclusions were not irrational or unreasonable and have an ‘evident, transparent and intelligible’ justification, and were within his ‘area of decisional freedom’: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28], [66], [76] and [105]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44]-[45].

CONSIDERATION

61    First, I consider the application of the applicant for the proceeding to be adjourned so that he can obtain legal advice and representation.

62    I have set out above the factual circumstances concerning pro bono legal representation following the issue of the certificate on 4 September 2017 culminating in the Court’s email advice of 27 October 2017.

63    While some question is raised by the applicant about his receipt of that email, the facts also appear clear, from what he told the Court, that he has in fact consulted with one or more lawyers about his case.

64    The applicant has been aware for a number of months that the hearing was scheduled but seemingly took no other steps with a view to obtaining or acting on legal advice or arranging representation for the hearing.

65    In my view, the applicant was not entitled effectively to do nothing further by way of obtaining legal representation with a view to the hearing. He has taken the step simply of arriving at the hearing and then requesting an adjournment.

66    In all the circumstances, I do not consider it unreasonable to proceed with the hearing without granting an adjournment to the applicant. Not only has there been quite some time for him to obtain advice and representation if he required it, but it also appears that he did seek to obtain a lawyer at some earlier stage, but for one reason or another did not engage a lawyer to assist him.

67    But additional to those factors is the question of the lack of any obvious merit in the grounds put forward by the applicant. As the Minister suggests, they do invite “merits review” and do not raise issues going to the identification of jurisdictional error by the Assistant Minister. I explain that further below. While the applicant suggests that if he were to be granted an adjournment and obtained legal advice and representation, a lawyer might discover further grounds of review in order to found a jurisdictional error, that speculative approach to the grant of an adjournment is not appropriately adopted. A court will often grant an adjournment, in the interests of justice, where there is no prejudice to any party of any great note, where there appears to be some reason to think that there may be proper grounds to be identified in advancing a case. Here, the submission for an adjournment of the applicant simply amounts to a request for further time to see if he can find a lawyer in the hope and eventuality that some further ground or grounds for setting aside the Assistant Minister’s decision can be articulated.

68    There is no basis that I can see to recommend the adoption of that approach in this case. The grounds that have been advanced do not reveal jurisdictional error by the Assistant Minister. In the further explanation of those grounds, given orally by the applicant at the hearing, nothing emerged to suggest anything approaching jurisdictional error. He again emphasised the nature of his relationship with his two children, who are now 17 and 13. His explanation emphasised the emotional connection between the children and himself, but did not raise any issue that would go to jurisdictional error by the Assistant Minister in his decision-making.

69    Similarly, in describing his ties to Australia where he has lived since he was 14 years of age – approaching some 30 years – he said he did not know New Zealand and considered himself to be an Australian. All that may well very much be the case – and probably is – but the Assistant Minister took those factors into account, as noted below, but considered that he still posed an unacceptable risk to the Australian community by reason of his criminal conduct and for that reason, the cancellation of his visa should not be revoked.

70    He also addressed the question of his mental instability and the fact that he has paranoid schizophrenia and that he cannot be sure what effect deportation will have on that health condition. But, once again, the Assistant Minister took those representations into account, as explained below.

71    All in all, I do not consider that the circumstances in which the application for an adjournment was made, taking into account the merits of the application, justify the grant of an adjournment. For that reason, I refuse the oral application for an adjournment of the proceeding.

72    Turning to the grounds more directly, as the Minister has accurately submitted, the grounds by which judicial review is sought do not raise any matters of jurisdictional error. Only if jurisdictional error in the decision-making of the Assistant Minister is demonstrated will orders be made, on judicial review, quashing the original decision.

73    Ground 1 complains that not enough consideration was given to the rights of the child, including the Child Support Assessment Act 1989. The question of what weight should be given to the relevant consideration was something for the Assistant Minister to assess. I accept the submission made on behalf of the Minister that the Child Support Assessment Act 1989 was not, of itself, a relevant consideration that the Assistant Minister was bound to take into account. The rights of the relevant children were plainly considered and given weight by the Assistant Minister in the relevant decision-making.

74    Similarly, in relation to ground 2 which complains that not enough consideration was given to the applicant’s ties in Australia, the Assistant Minister again plainly did give consideration and weight to these factors. However, in the decision-making the Assistant Minister gave greater weight to the protection of the Australian community from the potential violent and criminal conduct of the applicant in the future, having regard to his violent and criminal conduct since the age of 17 in Australia. He considered the applicant represented an unacceptable risk to the Australian community.

75    In relation to the third ground, the Assistant Minister also plainly gave attention to the question of the “mental stability” of the applicant in the future, noting, as set out above, that health services and social security services in New Zealand were comparable to those in Australia and would be available to the applicant as a citizen of New Zealand should he need to take advantage of them. The Assistant Minister again plainly accepted that the applicant had a mental health condition and took this into account when making the decision not to revoke the original decision.

76    All these matters go to the merits of the decision of the Assistant Minister not to revoke the original decision. None of them disclose that the decision made by the Assistant Minister was in any sense illogical or irrational or legally unreasonable. The decision had a logical and evident basis to it.

77    For these reasons, the application should be dismissed.

CONCLUSION

78    The Court orders:

(1)    The oral application for an adjournment of the hearing be dismissed.

(2)    The application be dismissed.

(3)    The applicant pay the costs of the respondent, to be assessed if not agreed.

Associate:

Dated:    7 March 2018