FEDERAL COURT OF AUSTRALIA

Candemir v Minister for Home Affairs [2018] FCA 1360

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to the applicant to file the application for judicial review out of time.

2.    The application for judicial review be dismissed.

3.    The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

GLEESON J:

1    This is an application for judicial review of a decision made by the first respondent (“Minister”) on 8 November 2017 to exercise his power under s 501BA of the Migration Act 1958 (Cth) (“Act”) to cancel the applicant’s Class BB Subclass 155, Five Year Resident Return visa (“visa”).

2    The applicant required an extension of time to file the application, which was not opposed. Accordingly, I granted the extension of time sought.

3    The applicant sought to rely on a proposed amended originating application, annexed to his outline of submissions dated 12 June 2018. The proposed amendment appears to delete a particular to the first ground of review.

4    The originating application contains the following three grounds of review:

(1)    The Minister committed jurisdictional error by failing in his duty to consider relevant issues when deciding to cancel the applicant’s visa.

(2)    The Minister failed to treat the best interests of certain children as a primary criterion.

(3)    The Minister used the power in s 501BA for an improper purpose.

Background facts

5    The applicant was born in Turkey in January 1968 and is now 50 years old. He came to Australia with his family in 1969, when he was aged one year and eight months. He has lived in Australia since 1969, except for periods when he travelled to Turkey in 1988, 1991 and 1998.

6    The applicant’s family in Australia includes his wife and adult children, his parents, two brothers, two sisters and 14 nieces and nephews.

7    The applicant’s son, who is now 20 years old, suffers from Joubert Syndrome, a genetic disorder that causes physical and moderate to severe intellectual impairment. The applicant has two minor grandchildren.

8    The applicant has an extensive criminal history, recorded between 1985 and 2015. His most recent convictions were recorded on 6 November 2015. The sentences imposed by the District Court of New South Wales for those convictions were as follows:

•    supply prohibited drug (three counts) – on each count one year and six months imprisonment

•    supply prohibited drug > indictable quantity (two counts) – on each count two years imprisonment

•    supply prohibited drugs on an ongoing basis – four years and six months imprisonment, six months accumulated

•    knowingly dealing with proceeds of crime (two counts) – on each count two years imprisonment

•    possess prohibited drug (three counts) – convicted with no further penalty.

9    The effective sentence for the offences dealt with on that occasion was a total period of imprisonment of five years and a non-parole period of three years and eight months.

10    On 8 March 2016, the applicant’s visa was cancelled under s 501(3A) of the Act which provides for the mandatory cancellation of visas in certain circumstances. The applicant sought to have that decision revoked pursuant to s 501CA, but on 11 August 2016 a delegate of the Minister decided not to revoke the cancellation of the visa.

11    On 22 August 2016, the applicant sought to have the decision not to revoke the cancellation of the visa reviewed by the Administrative Appeals Tribunal (“Tribunal”). On 21 April 2017, the Tribunal set aside the delegate’s decision and revoked the cancellation of the applicant’s visa. As a consequence of this decision, the applicant’s visa was reinstated.

Minister’s decision to cancel visa

12    On 8 November 2017, the Minister exercised his discretion to cancel the applicant’s visa under s 501BA of the Act. The Minister was satisfied that the applicant did not pass the character test because of the operation of s 501(6)(a) of the Act, on the basis of s 501(7)(c) (that is, because the applicant has a “substantial criminal record” as defined by s 501(7)(c)). The Minister was also satisfied that cancellation of the applicant’s visa was in the national interest.

13    In particular, the Minister considered the applicant’s history of criminal offending, the warning the applicant had received in August 2006 about the potential consequences of future re-offending (to the effect that his visa could be cancelled) and the risk posed by the applicant to the Australian community. At para 90 of his reasons, the Minister found that the applicant is “a recidivist offender with a large number of varying convictions and sentences”.

14    At paras 91 to 93 of his reasons, the Minister set out the following conclusions:

91.    Given Mr CANDEMIR’s lengthy and repetitive offending history, his limited insight into his offending, what I consider to be his lack of respect for the law, and his chronic substance abuse history including multiple relapses into drug use, I find there is an ongoing risk that he will reoffend.

92.    I adopted the finding of the AAT that Mr CANDEMIR ‘has caused substantial harm to the general community through the supply of prohibited drugs’ and I find that, if he were to commit further offending of a similar nature, it would put members of the community at risk of physical and psychological harm. If Mr CANDEMIR were to commit any other offending it will also impose further costs upon the community associated with law enforcement and the administration of justice.

93.    In sum, having regard to the above, including his criminal history and the risk to the Australian community, I conclude that it is in the national interest to cancel Mr CANDEMIR’s visa.

15    At para 94 and following of his reasons, the Minister considered whether there were relevant considerations that might support not cancelling the visa despite the Minister’s conclusions that the applicant did not pass the character test and that cancellation of the applicant’s visa was in the national interest.

16    The Minister considered the following matters:

(1)    the best interests of minor children;

(2)    the expectations of the Australian community;

(3)    claims of harm if the applicant were returned to Turkey;

(4)    the strength, nature and duration of the applicant’s ties to Australia; and

(5)    the extent of impediments if the applicant was removed.

Legal framework

17    Section 501BA of the Act provides:

(1)    This section applies if:

(a)    a delegate of the Minister; or

(b)    the Administrative Appeals Tribunal;

makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

Action by Minister—natural justice does not apply

(2)    The Minister may set aside the original decision and cancel a visa that has been granted to the person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or

(ii)    paragraph 501(6)(e); and

(b)    the Minister is satisfied that the cancellation is in the national interest.

(3)    The rules of natural justice do not apply to a decision under subsection (2).

Minister’s exercise of power

(4)    The power under subsection (2) may only be exercised by the Minister personally.

Decision not reviewable under Part 5 or 7

(5)    A decision under subsection (2) is not reviewable under Part 5 or 7.

Ground 1: Failure to consider “relevant issues”

18    The applicant contended that the Minister erred by failing to take into account the following two issues:

(1)    the life lived by the applicant during the period between the Tribunal’s decision on 21 April 2017 and the Minister’s decision on 8 November 2017 (a period of six months and 17 days); and

(2)    the applicant’s status as the holder of an “absorbed person visa” pursuant to s 34 of the Act.

19    As to the former, the applicant contended that the Minister failed to consider the life lived by the applicant between 21 April and 8 November 2017 including:

(1)    his re-establishment with his family;

(2)    his contribution to the workforce; and

(3)    the lack of any criminal offending during that period.

20    The Minister submitted that the applicant did not identify any relevant legal obligation that the Minister is said to have breached, nor any mandatory relevant consideration not taken into account (cf. Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-40 (per Mason J, as his Honour then was)).

21    The Minister noted that, at para 13 of his reasons, he had acknowledged that five months had elapsed since the AAT’s decision and that the information before the Minister may not reflect all of the applicant’s current personal circumstances. At para 84 of his reasons, the Minister also stated that there was no information before him to suggest that the applicant had not complied with his parole conditions since being released from immigration detention on 21 April 2017.

22    As to the applicant’s position as the holder of an “absorbed person visa”, the Minister submitted that there was no evidence before the Court as to the existence of this visa but that, in any event, such a visa is not a (mandatorily) relevant matter for the purposes of the Minister’s decision. The Minister noted that in Minister for Immigration Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566 at [129], in relation to the exercise of an analogous cancellation power, Heydon and Crennan JJ said that there is no obligation on the Minister to take into account the nature of the visa held by an applicant (also in that case an absorbed person visa), because there was no consideration relevant to the absorbed person visa that was not relevant to and considered when the Minister cancelled Mr Nystrom’s other visa.

23    The matters of which the Minister must be satisfied for the purpose of exercising the power under s 501BA are whether the applicant has failed the character test, and whether it is in the national interest to cancel the visa. While the character test is the subject of clear legislative prescription, the national interest is not defined. In Anaki v Minister for Immigration and Border Protection [2018] FCA 77, a case that also involved a visa cancellation pursuant to s 501BA, Burley J explained the breadth of that statutory power as follows (at [12]):

The broad scope of the power conferred on the Minister by the relevantly similar power under s 501A(2) has been remarked on in many cases. In Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288; (2012) 202 FCR 417 Bromberg J helpfully summarised the effect of the authorities as follows:

43.    The authorities which have considered s 501A(2) (and in a similar context the reference to the national interest in s 501(3)), make it clear that the matters that the Minister may take into account in determining the national interest are largely matters for the Minister: Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220 at [89] (French, O’Loughlin and Whitlam JJ); Huynh at [74] (Kiefel and Bennett JJ); Tewao v Minister for Immigration and Citizenship [2011] FCA 1515 at [12] and [32] (Katzman J); Maurangi v The Honourable Chris Bowen MP, Minister for Immigration and Citizenship [2012] FCA 15 at [70] (Lander J); and see also Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [61] (Gleeson CJ and Gummow J); Re Paterson; Ex parte Taylor (2001) 207 CLR 391 at 418-419 (Gaudron J), 502-503 (Kirby J).

44.    The exercise calls for a broad evaluative judgment. It calls for the Minister’s satisfaction in relation to a power that may only be exercised personally by the Minister: s 501A(5). Political responsibility and accountability is reposed in the Minister in relation to a subject matter of wide scope. All of that strongly suggests that the Minister is left largely unrestrained to determine for him or herself what factors are to be regarded as relevant when determining whether the cancellation or refusal of a visa is in the national interest and thereafter whether to exercise the discretion conferred by s 501A(2).

24    Accordingly, I accept the Minister’s submission that this ground cannot succeed. There is no basis to conclude that the Minister was required to take into account either of the issues identified by the applicant. Further, as the Minister noted, there was no requirement to afford the applicant the opportunity to make representations or provide any further information: see s 501BA(3), which provides that the rules of natural justice do not apply.

Ground 2: Failure to treat best interests of children as a primary consideration

Applicant’s grandchildren

25    At para 107 of his reasons, the Minister concluded that the best interests of the applicant’s two grandchildren “are best served by the revocation of the mandatory cancellation”. The applicant submitted that the Minister failed, in a practical sense, to treat the best interests of the applicant’s grandchildren, as a primary consideration by then making the following finding:

However, I consider that the adverse effects upon their best interests would be mitigated to some degree by their relationships with their mother, biological fathers and, in Tyrese’s case, with his step-father, Mr. Peki.

26    I do not accept that there is any basis for finding that the Minister’s reasoning involves a failure of the kind identified. Rather, the Minister has explicitly taken into account the best interests of the grandchildren. The Minister was entitled to also consider that the detriment to those interests might be mitigated, as he found would be the case.

Applicant’s nephews and nieces

27    The Minister acknowledged that the applicant has 14 nephews and nieces and was “cognisant that some may be minor children”. The applicant contended that, in his conclusion at para 163, the Minister had no consideration of, nor did he mention, those children.

28    Paragraphs 108 and 109 of the Minister’s decision state:

108.    In the Personal Details Form he signed on 15 March 2016, Mr CANDEMIR indicated that he has 14 nieces/nephews living in Australia. I am cognisant that some may be minor children. Mr CANDEMIR does not detail any contact he has with them in the community, nor does he specify the negative effects, if any, upon the best interests of any minor members of his extended family, if his visa is cancelled.

109.    To the extent that his removal from Australia will prevent regular direct contact by any minor members of his extended family with Mr CANDEMIR, and also with his wife and son Gary should they chose [sic] to relocate to Turkey, I find that the best interest of any minor niece and/or nephew is best served by the revocation of cancellation of Mr CANDEMIR’s visa. However, I consider that the negative effects upon the best interests of any affected minor child in Australia would be mitigated, to an extent, by the relationship the child has with his or her parent/s or carer responsible for the child’s daily care and control.

29    Paragraph 163 of the Minister’s decision states:

In considering whether or not to cancel MR CANDEMIR’s visa, I gave primary consideration to the best interests of MR CANDEMIR’s two minor grandchildren, among other minor family members, and have found that their best interests would be best served by not cancelling the visa.

30    I do not accept that para 163 reveals any relevant error. In my view, when read with paras 108 and 109, it is plain that the “other minor family members” are the applicant’s nieces and/or nephews. I do not accept that the absence of more detailed information about these family members is indicative of a failure to give primary consideration to their best interests, where the Minister found (at para 109) that the best interests of any minor nieces or nephews would be served by the visa not being cancelled.

Applicant’s son

31    The applicant submitted that reg 1.03 of the Migration Regulations 1994 (Cth) operates to make the applicant’s son a “dependent child” of the applicant. Regulation 1.03 provides:

“dependent child”, of a person, means the child or step-child of the person (other than a child or step-child who is engaged to be married or has a spouse or de facto partner), being a child or step-child who:

(a)    has not turned 18; or

(b)    has turned 18 and:

(i)    is dependent on that person; or

(ii)    is incapacitated for work due to the total or partial loss of the child's or step-child's bodily or mental functions.

32    The applicant submitted that his son was, therefore, a child whose best interests should have been treated as a primary consideration and was not so treated.

33    However, the applicant did not refer to any authority for any such proposition, and neither did he identify any statutory basis for treating a “dependent child” as a “primary consideration” for the purposes of the Minister’s decision.

34    Accordingly, none of the matters raised by the applicant reveal a failure by the Minister to treat the best interests of children as a primary criteria.

Ground 3: Improper purpose

35    The applicant’s submission involved the following elements:

(1)    The Tribunal made a decision on 21 April 2017 to revoke the cancellation of the applicant’s visa. The practical effect of that decision was to give the applicant visa back.

(2)    Subsequently, the Minister again cancelled the applicant’s visa. In the absence of any new evidence, the practical effect of that decision was to set aside the decision of the Tribunal.

(3)    A decision of the Tribunal can only be lawfully set aside by a Court of competent jurisdiction.

(4)    The Minister therefore used the power in s 501BA of the Act for an improper purpose.

36    This argument must fail because s 501BA is expressed to apply, relevantly, if the Tribunal makes a decision under s 501CA to revoke a decision under 501(3A) to cancel a visa that has been granted to a person. Thus, s 501BA expressly provides for the Minister to set aside a decision of the Tribunal in certain circumstances. The Minister used his power conferred by s 501BA for the purpose for which it was intended to be used.

Conclusion

37    Each of the grounds of review fails. Accordingly, the applicant’s application for review must be dismissed. The applicant should pay the Minister’s costs of the application.

Associate:

Dated:    6 September 2018