FEDERAL COURT OF AUSTRALIA

Tran v Minister for Immigration and Border Protection [2018] FCA 342

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

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

REASONS FOR JUDGMENT

BROMWICH J:

1    This is an application for judicial review of a decision made by the Parliamentary Secretary to the Minister for Immigration and Border Protection not to revoke the cancellation of the applicant’s visa under s 501CA(4) of the Migration Act 1958 (Cth).

2    The applicant, Mr Ba Giang Tran, is a citizen of Vietnam. He arrived in Australia on 7 June 1990 at the age of 15 as the holder of a Funded Special Humanitarian (subclass K4B12) visa. Since his arrival, he has departed Australia only once, returning to Vietnam in 1994 to visit his parents for a period of two months. On 15 November 1994, he was granted a Class BB Subclass 155 Five Year Resident Return visa.

3    On 26 April 2018, the applicant’s visa was cancelled on mandatory character grounds by a delegate of the Minister acting pursuant to s 501(3A) of the Migration Act. The applicant was taken not to pass the character test by reason of his substantial criminal record, as defined in ss 501(6)(a) and (7).

4    The applicant was given an opportunity to seek revocation of the cancellation decision under s 501CA(4) of the Migration Act. He did so on 12 May 2016. As part of his representations to the Minister, he accepted that he did not pass the character test, but advanced other reasons in support of revocation. On 17 January 2017, the Parliamentary Secretary, using the unofficial title “Assistant Minister”, decided not to revoke the delegate’s decision to cancel the applicant’s visa.

5    By application filed in the Federal Circuit Court of Australia on 3 February 2017, the applicant sought judicial review of the Parliamentary Secretary’s decision. On 17 February 2017, the proceedings were transferred to this Court.

6    The applicant is not legally trained and does not have legal representation.

7    At the hearing of the application, counsel for the Minister raised as an issue the possible consequences of an ongoing challenge in the High Court as to the constitutional validity s 501(3A) of the Migration Act. Given that s 501(3A) formed the legislative basis for the cancellation of the applicant’s visa, it was suggested by the Minister that this Court should proceed to deal with the applicant’s grounds and otherwise reserve its decision pending the High Court’s judgment. This course of action was explained to the applicant, who asked that the Court defer its decision accordingly. I acceded to that request.

8    On 7 February 2018, the High Court handed down the decision in question: see Falzon v Minister for Immigration and Border Protection [2018] HCA 2. In light of that decision, there is no question outstanding as to the validity of the power exercised to cancel the applicant’s visa.

The Parliamentary Secretary’s decision

9    As he accepted, the applicant did not pass the character test by reason of his criminal convictions. Accordingly, the only question before the Parliamentary Secretary was whether there was another reason why the cancellation of his visa should be revoked: s 501CA(4)(b)(ii).

10    The Parliamentary Secretary took into account a number of considerations weighing in favour of revocation of the applicant’s visa cancellation, including

(1)    the best interests of the applicant’s two children, and his minor nieces and nephews;

(2)    the applicant’s ties to Australia, noting the applicant’s lengthy residence in Australia and his marriage of 22 years to an Australian citizen; and

(3)    the hardship the applicant and his family would face if the applicant’s visa were to remain cancelled, noting the period of adjustment he would have to undergo in Vietnam and the emotional hardship that would be caused by separation from his family.

11    The Parliamentary Secretary then considered the expectations of the Australian community and the applicant’s risk of harm to the Australian community. He took into account the applicant’s long criminal record, which included more than five break-and-enter offences, a number of drug related offences, a range of driving offences, and two counts of assault on officer in the execution of duty. He accepted that the applicant had been a frequent offender commensurate with a “drug addict who committed offences in order to fund his addiction”, quoting the remarks of a sentencing judge of the District Court of New South Wales in September 2013.

12    The Parliamentary Secretary also considered the factors going to mitigation of the applicant’s offending. Among other things, he noted the difficult experiences the applicant would have faced having fled Vietnam at the age of eight and spent eight years in a refugee camp in Hong Kong. He accepted the applicant’s contrition as genuine. He accepted that the applicant had sought treatment for his drug addiction. He acknowledged the applicant’s submission that he had completed a number of courses in prison in areas such as “OHS policies and procedures”, “food safety” and chainsaw use and maintenance.

13    On balance, however, the Parliamentary Secretary was not satisfied that there was another reason why the cancellation of the applicant’s visa should be revoked. In particular, he concluded that:

… [the applicant] 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 other, minor family members, as a primary consideration, his residence in Australia for over 26 years, the significant hardship [the applicant] and his family will endure in the event the original decision is not revoked.

14    Accordingly, the Parliamentary Secretary decided not to revoke the original decision to cancel the applicant’s visa.

The application for review

15    The applicant’s grounds of review were stated as follows:

1.    I was granted Parole and states I am not a risk of re-offending and threat to the Australian community.

2.    I have lived in Australia for 27 years. My entire family resides in Australia.

3.    I have done numerous courses in my rehabilitation.

16    The applicant did not rely on written submissions, save for a letter dated 26 April 2017 that was filed with the Court the following day. The applicant’s letter advanced reasons in support of the “possible revocation” of his visa cancellation under s 501CA of the Migration Act. The applicant indicated that he was a “changed man” and wished to make up for his actions and behaviour. He expressed his desire to provide for his wife and children, and his fear that his wife and children would be the ones to pay for his actions. He said that there is nothing for him, or his family, in Vietnam. He said that he has a better understanding of mental health and the effects of trauma, and why he has turned to drugs to help cope with his inner demons. He said he has not touched drugs for more than fifteen years, and has used his time in prison and detention centres to better himself, working towards a number of qualifications in horticulture, agriculture, tourism, hospitality, automotive repair, retail, Occupational Health and Safety, food handling and anger management. The letter also annexed a number of statements of attainment and transcripts of academic record issued by the TAFE NSW in respect of the applicant.

17    At the hearing of the matter, the applicant made a number of similar submissions with the assistance of an interpreter. The applicant said that he had tried to change himself during his time in prison and had learnt a lot. He said that, while in prison he had not committed any other crime, and, when released, would contribute more to the Australian community. He said that he had abided by the law while in detention centres. He said his wife and children need him very much.

18    As may be seen, the applicant has not identified any jurisdictional error in the decision of the Parliamentary Secretary and his case does not rise higher than inviting the Court to consider the merits of revoking the cancellation of his visa. It is well established that this is not a permissible part of the Court’s limited role in judicial review, and the Court is not to substitute a decision it considers preferable for that of the proper decision-maker: see, eg., Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 per Mason J at 40.

19    For completeness, however, the following observations may be made about the applicant’s individual grounds.

20    By ground 1, the applicant states that he has been “granted parole” and is not a risk of re-offending or a threat to the Australian community. This ground must fail. It does not more than invite consideration of the merits of the decision. It may also be observed that the applicant’s representations to the Parliamentary Secretary did not include any submission raising the issue of parole as a matter to be considered. In those circumstances it is to be seriously doubted that the issue of parole was of any great significance to the Parliamentary Secretary’s decision warranting explicit reference, especially given the different legislative and factual context in which any parole decision would have been made.

21    By ground 2, the applicant makes the assertion that he has lived in Australia for 27 years and that his entire family resides in Australia. This ground must also fail. It also does no more than invite consideration of the merits of the decision. Moreover, there can be no suggestion that the Parliamentary Secretary failed to take these matters into account, given his detailed consideration of the applicant’s ties to Australia and the express statement at [54] that the he had “considered [the applicant’s] lengthy residence in Australia for some 26 years and the effect of non-revocation upon his immediate family”.

22    By ground 3, the applicant makes the assertion that he has done numerous courses in his rehabilitation. However, there can be no suggestion that these matters were not taken into account, given that the Parliamentary Secretary acknowledged the applicant’s participation of those courses at [89] of his reasons. It follows that this ground must also fail.

23    For these reasons, the applicant has not identified any jurisdictional error in the decision of the Parliamentary Secretary and his grounds of review must fail.

Conclusion

24    The application must be dismissed with costs.

Associate:

Dated:    19 March 2018