FEDERAL COURT OF AUSTRALIA

Baleiovalau v Minister for Immigration and Border Protection [2018] FCA 462

ORDERS

THE COURT ORDERS THAT:

1.    The application is dismissed, with costs.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    The applicant, Mr Baleiovalau, seeks judicial review of a decision of the Assistant Minister for Immigration and Border Protection made under s 501CA(4) of the Migration Act 1958 (Cth) on 13 December 2017 not to revoke the decision to cancel Mr Baleiovalau’s visa under s 501(3A). The decision under s 501(3A) was made on 16 February 2017. The visa was a Class BF Transitional (Permanent) visa.

2    In these reasons, I shall refer to the Assistant Minister as the Minister: see s 19 of the Acts Interpretation Act 1901 (Cth).

Grounds of review

3    The originating application for judicial review was filed on 29 December 2017. The grounds were as follows:

There is a matter in the High Court in a case called Falzon S31/2017, which is going to determine a technical legal and constitutional issue (that the framework for cancellation of a visa under s 501 and revocation under s 501CA is unconstitutional).

1.    Grounds are set out in the accompanying affidavit.

4    In an affidavit sworn on 28 December 2017, Mr Baleiovalau set out the following, as written:

1.    I am the applicant in this proceeding before court.

2.    The respondent’s decision on 16 February 2017 to be quashed.

3.    The respondent’s decision on 18 December 2017 to be quashed.

4.    The respondent took into account irrelevant considerations.

5.    The respondent failed to take relevant consideration into account.

6.    The respondent in making its decision did not comply with rules of natural justice/procedural fairness.

7.    The respondent decision involved an error of law.

8.    The respondent failed to properly exercise the discretion under s 501 CA and s 501 CA (4) of the migration act 1958 (Cth).

9.    The respondent did not properly apply s 501 CA and s 501 CA (4) of the Migration Act 1958 (Cth).

5    On 7 February 2018, the High Court delivered judgment in Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 351 ALR 61, dismissing the constitutional challenge to s 501(3A). Thus the articulated ground in Mr Baleiovalau’s application must fail.

Background

6    As I have indicated, on 16 February 2017 a delegate of the Minister was satisfied that Mr Baleiovalau did not pass the character test on the ground that he had a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(c) of the Migration Act. Under s 501(7)(c), a person has a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more.

7    On 21 August 2014, Mr Baleiovalau was convicted of attempted robbery while being armed with a dangerous weapon and sentenced to 5 years imprisonment with a non-parole period of 3 years, commencing on 11 April 2013. He appealed the sentence and on 2 December 2015, the sentence imposed on 21 August 2014 was quashed and he was sentenced to a term of imprisonment of 5 years with a non-parole period of 2 years commencing on 11 April 2012. The information on the basis of which the delegate was satisfied that Mr Baleiovalau did not pass the character test was the sentencing remarks of the Court of Criminal Appeal of the Supreme Court of New South Wales on 2 December 2015.

8    The delegate was also satisfied that, at the time of the decision, Mr Baleiovalau was 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. In particular, regard was had to a Conviction, Sentences and Appeals report from the New South Wales Department of Corrective Services dated 15 February 2017.

9    In the circumstances, s 501(3A) obliged the delegate to cancel the visa.

10    Mr Baleiovalau then made representations, in response to an invitation made on 16 February 2017, about revocation of the decision of 16 February 2017 as contemplated by s 501CA(3).

The decision under s 501CA(4)

11    The Minister found, at [3], that on 10 March 2017, Mr Baleiovalau made representations seeking revocation of the 16 February 2017 decision. The Minister found the representations were made within the period and in the manner ascertained in accordance with the regulations. Thus the Minister concluded that Mr Baleiovalau had made representations in accordance with the invitation, as required under s 501CA(4)(a).

12    The Minister noted, at [8], that in the representations and documents that Mr Baleiovalau submitted he did not dispute the information in the National Police Certificate dated 25 July 2017 regarding his criminal convictions and sentences and conceded that he did not pass the character test. The Minister found that he was not satisfied that Mr Baleiovalau passed the character test as defined by s 501, with the result that s 501CA(4)(b)(i) was not met.

13    This then raised the question whether the Minister was satisfied that there was another reason why the original decision should be revoked, within s 501CA(4)(b)(ii).

14    The Minister set out, at [12], the reasons Mr Baleiovalau had articulated as to why the 16 February 2017 decision under s 501(3A) should be revoked. Those reasons were:

–    the emotional and practical hardship his mother will endure if he is removed;

–    the emotional hardship his other family members will experience in the event of a non-revocation decision;

–    his remorse for his offending and the rehabilitation he has achieved during his prison sentence, with specific training and personal reflection; and

–    the hardship he would endure if removed to Fiji, with little personal support available and only a limited knowledge of the Fijian language.

15    The Minister first had regard to the strength, nature and duration of Mr Baleiovalau’s ties to Australia.

16    The Minister, at [15], gave less weight to Mr Baleiovalau’s long residence in Australia, some 26 years, as he had spent all but six months of the 18 year period since April 1999 in criminal or immigration custody.

17    At [18], the Minister found that Mr Baleiovalau’s permanent removal from Australia would cause emotional and practical hardship to his mother. The Minister acknowledged that Mr Baleiovalau’s removal from Australia would be a severe emotional burden for his mother and that she would then need to rely largely on telephone, email and similar means to contact him.

18    At [19], the Minister considered the effect of non-revocation upon Mr Baleiovalau’s other extended family in Australia, which included both biological and cultural relatives. The Minister accepted that Mr Baleiovalau’s family may experience emotional hardship in the event of a non-revocation decision.

19    At [20], the Minister found that Mr Baleiovalau’s contributions to the community had been very limited at best.

20    The Minister then considered, at [21] and following, the extent of the impediments Mr Baleiovalau would face if removed from Australia to his home country of Fiji, in establishing himself and maintaining basic living standards.

21    At [26], the Minister found, overall, that Mr Baleiovalau would be likely to endure emotional, practical and financial hardship if permanently removed to Fiji.

22    The Minister, at [27] and following, then had regard to the consideration of the protection of the Australian community, noting in particular Mr Baleiovalau’s claim that he did not pose an unacceptable risk of reoffending and was rehabilitated.

23    At [38], the Minister found that Mr Baleiovalau had a record of repeated instances of very serious criminal offending over a relatively limited period, as indicated by the details of the offences and the penalties imposed for them.

24    At [39] and following, the Minister considered whether Mr Baleiovalau posed a risk to the Australian community through reoffending by having regard to any mitigating or causal factors in his offending, and giving consideration to the steps Mr Baleiovalau had undertaken to reform and address his behaviour. The Minister also took into account Mr Baleiovalau’s overall conduct in the custodial and non-custodial environment, and his insight into the offending.

25    The Minister, at [48], attached little weight to the fact that Mr Baleiovalau had not reoffended since 2005, since he had been in custody or immigration detention for the entirety of that time.

26    The Minister noted, at [56], that it was not the first time Mr Baleiovalau had submitted that he would not reoffend. The Minister noted that in 2004 and 2007, when previously considered for visa cancellation, Mr Baleiovalau made similar statements regarding his remorse, rehabilitation, ceasing drug use and his desire to remain in Australia to support his mother. Following his submission in 2004, Mr Baleiovalau committed further armed robberies and was sent back to prison. Following his 2007 submission, Mr Baleiovalau was involved in various incidents in prison of an anti-social nature. Thus, the Minister said, he had pause accepting Mr Baleiovalau’s current assertions that he would not reoffend.

27    At [58], the Minister found that there was a likelihood that Mr Baleiovalau would reoffend. Should he reoffend in a similar manner, such as armed robbery, it could result in physical and/or psychological harm to members of the Australian community.

28    In reaching his decision about whether he was satisfied that there was another reason why the original decision should be revoked, the Minister concluded, at [66], that Mr Baleiovalau represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any other considerations. Those other considerations included Mr Baleiovalau’s length of residence in Australia and bonds, and the hardship Mr Baleiovalau, his mother and other family would endure in the event the original decision was not revoked.

29    At [67], the Minister stated he was not satisfied that there was another reason why the 16 February 2017 decision should be revoked. Thus his power to revoke was not enlivened and Mr Baleiovalau’s Class BF Transitional (Permanent) visa remained cancelled

Submissions

30    Mr Baleiovalau made no written or oral submissions, although he did today apply for an adjournment which I refused, for reasons which I have given separately.

31    The Minister filed written submissions dated 29 March 2018 and made short oral submissions in support of them.

Consideration

32    I see no basis for the challenge to the decision of 16 February 2017. Mr Baleiovalau put no submissions in that respect. I also accept the Minister’s submission that the delegate’s decision of 16 February 2017 was not “a privative clause decision, or a purported privative clause decision, made personally by the Minister under section 501” and is therefore not within the grant of jurisdiction to this Court under s 476A(1)(c) of the Migration Act.

33    In relation to the decision made on 13 December 2017 under s 501CA(4), I shall consider the grounds in the affidavit separately.

34    Mr Baleiovalau has not identified any irrelevant (prohibited) considerations which the Minister took into account and I reject that ground.

35    Mr Baleiovalau has not identified any relevant (mandatory) considerations which the Minister failed to take into account and I reject that ground. There was no evidence as to minor children who may be affected. I also note the Minister’s references in his reasons, particularly at [11], [12] and [51], to the consideration the Minister gave to the representations by and on behalf of Mr Balieovalau.

36    In relation to these two grounds, the Minister was not bound by Direction No 65 issued under s 499 of the Migration Act. Further, the Minister had regard to the representations made by the applicant, assuming those to be a mandatory relevant consideration.

37    Mr Baleiovalau has not identified any failure on the part of the Minister to comply with the rules of procedural fairness. It was not put on behalf of the applicant that the Minister failed to provide particulars of any “relevant information” for the purposes of s 501CA(2) or the opportunity to make representations about the revocation of the cancellation decision for the purposes of s 501CA(3). As I have said, representations by and on behalf of the applicant were made and considered. I reject that ground.

38    Mr Baleiovalau has not identified an error of law and I reject that ground.

39    Mr Baleiovalau has not identified a failure on the part of the Minister “to properly exercise the discretion” under s 501CA(4). Indeed, the Minister found that because he was not satisfied under s 501CA(4)(b) as to Mr Baleiovalau passing the character test or there being another reason why the 16 February 2017 decision should be revoked, his discretion was not enlivened. I reject that ground.

40    Mr Baleiovalau has not identified a respect in which the Minister did not properly apply s 501CA and I reject that ground.

Conclusion and orders

41    The application for judicial review should be dismissed, with costs.

Associate:    

Dated:    5 April 2018