FEDERAL COURT OF AUSTRALIA

Romanov v Minister for Home Affairs [2018] FCA 1494

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

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

REASONS FOR JUDGMENT

JAGOT J:

Introduction

1    This was an application for judicial review of a decision made by the Administrative Appeals Tribunal on 18 April 2018: Romanov and Minister for Immigration and Border Protection (Migration) [2018] AATA 937. The Tribunal affirmed a decision of the Minister’s delegate not to revoke a mandatory decision to cancel the applicant’s Class BC Subclass 100 Spouse Visa.

2    The mandatory cancellation decision was made under s 501(3A) of the Migration Act 1958 (Cth) as the applicant was serving a sentence of imprisonment for an offence and a delegate of the Minister was satisfied he did not pass the character test. The power to revoke the mandatory cancellation decision is provided by s 501CA(4). The power is available if the person makes representations in accordance with the invitation to do so (as the applicant did) and the Minister is satisfied (i) that the person whose visa has been cancelled passes the character test; or (ii) there is another reason why the original decision should be revoked. There was no dispute that the applicant failed the character test. Accordingly, the Tribunal had to consider whether there was “another reason” to revoke the mandatory cancellation decision. It decided that the decision under review should be affirmed.

3    Contrary to the applicant’s case, the Tribunal appears to have given careful consideration to all of the relevant material and to have concluded, on balance, that the decision should be affirmed. Its reasons for so deciding are clear and cogent. I am unable to discern any jurisdictional error affecting the Tribunal’s decision. Accordingly, the application must be dismissed.

Background

4    The material before the Tribunal disclosed that the applicant is from the Former Yugoslav Republic of Macedonia. He is 43 years old. He lives with his Australian-Macedonian wife and two Australian children, aged 13 and 9 years. He is a loving father who plays an active part in his children’s lives. He also has a substantial criminal record in Australia. On 11 November 2011, five years after he arrived in Australia, he was sentenced to four years’ imprisonment. In 2013 his visa was cancelled on character grounds, but the Tribunal set aside that cancellation: Romanov v Minister for Immigration and Citizenship [2013] AATA 63. In 2014 he was warned that his visa may be cancelled if he continued to offend. He subsequently committed multiple offences and was again sentenced to imprisonment. He was served with a notice of visa cancellation on 24 March 2017. He applied to have the mandatory cancellation decision revoked on 6 April 2017. The Tribunal made its decision on 18 April 2018. This is the decision subject to judicial review.

Discussion

5    The originating application identifies two grounds of review, each with multiple particulars. The first ground is that the Tribunal failed to give proper, genuine and realistic consideration to the material before it. The particulars concern the applicant’s claims relating to his children, the harm the applicant posed to the community (it being said the Tribunal engaged in supposition without “clear-cut evidence” and that he was denied procedural fairness by the Tribunal’s focus on his offending before his 2013 visa cancellation), and the failure to make a finding about whether the applicant’s wife and children would be able to live, find employment and go to school in Macedonia. The second ground is that the Tribunal’s decision is legally unreasonable or arbitrary. The particulars concern the Tribunal’s findings about the hardship that returning to Macedonia would involve, an alleged refusal to consider the subjective as opposed to the objective circumstances, the Tribunal having found that the applicant’s family and friends would support him when there was no evidence of this, and the Tribunal having no evidence about the living standards of other Macedonians or how long it would take the applicant and his family to achieve such a living standard.

6    The applicant provided detailed written submissions in support of these grounds of judicial review and made further oral submissions at the hearing. His oral submissions focused on the impact the Tribunal’s decision would have on him and his children and did not add to the substance of his written submissions. For example, the applicant said at the hearing that he did not pose a risk of harm to the community, his children would not cope well in Macedonia because they did not speak Macedonian, and if he was separated from his family they would all be very distressed. As I explained to the applicant, I do not have the power to re-consider the Tribunal’s decision. I can only decide if the Tribunal made a legal error in making its decision.

7    While the applicant’s submissions used the language of jurisdictional error, the substance of the submissions all concerned the weight which the Tribunal gave, or did not give, to the various relevant considerations, in particular the impact of the cancellation decision on the applicant and his children and the nature of his more recent offences which mainly involved driving offences. The applicant’s submissions invited me to undertake a re-assessment of the weight which should be allocated to each of the various considerations but this invitation must be rejected as such a process is impermissible. It was for the Tribunal alone to make factual findings. I cannot re-make them. The applicant also submitted that the Tribunal did not consider matters when it discussed those matters at length in its reasons. The applicant submitted that the Tribunal made “suppositions” when it was required to undertake an evaluation of the risk which the applicant represented to the Australian community, which is necessarily evaluative. The applicant submitted that the Tribunal should have characterised the facts differently and reached different conclusions when it was for the Tribunal alone to weigh all of the material and reach conclusions based on that material.

8    It will be apparent that many of the applicant’s contentions concerned the impact of his wife and children moving to Macedonia. However, the Tribunal referred to the evidence of the applicant’s wife that she and her children could not live in Macedonia. The Tribunal proceeded on the basis that the applicant’s wife and children would remain in Australia and that he would be deported to Macedonia. For example, it weighed the best interests of the applicant’s children as a factor in favour of revocation of the cancellation decision because they would remain in Australia: at [97]. It found that the applicant being required to return to Macedonia would involve a “very significant impact” on his family as a result of their separation from the applicant”: at [116]. The Tribunal then said this:

117. However, there is no evidence before the Tribunal to indicate that his family would not be permitted to visit the Applicant in Macedonia or that they could not relocate to Macedonia should they wish to do so, although the standard of living and education would be less favourable than that which they enjoy in Australia. The Applicant’s wife gave evidence that she and the children would not relocate to Macedonia due to the economic hardships they would face there should they do so.

118. The evidence before the Tribunal is that the Applicant and his family have previously lived in Macedonia, before 2005 and for an extended period when his father was unwell from May 2007 to August 2008. The Applicant’s wife and children also lived in Macedonia for the two years the Applicant was in prison from 2011 to 2013. There is no evidence to indicate that the Applicant’s family would not be able to maintain regular contact with him via phone and other forms of communication if he returns to Macedonia.

9    In saying this, the Tribunal was not finding that the applicant’s wife and children would accompany him to Macedonia. It was observing that there was no evidence they could not do so if they so wished, but accepted the evidence of the applicant’s wife that if they did so they would face economic hardship.

10    These considerations overall led the Tribunal to conclude that the strength, nature and duration of the applicant’s ties to Australia weighed in favour of revocation of the visa cancellation decision: at [119].

11    None of this discloses any legal error. To the contrary, it discloses a careful assessment of all of the available material leading to conclusions about the relevant considerations which had to be weighed in the balance overall.

12    The allegations that the Tribunal acted without evidence are also unfounded. The Tribunal did not find that the applicant’s family and friends would support him. It found only that the applicant has close family ties to Macedonia in that his mother, sister and some close friends reside there: at [125]. The applicant submitted that the Tribunal misunderstood the evidence about Macedonia’s welfare and medical system, did not consider information about access to welfare in Macedonia, and the evidence before the Tribunal demonstrated there were “negligible” prospects of the applicant supporting himself in Macedonia or receiving help there. The Tribunal had evidence, from the applicant and the applicant’s wife, that living standards were not as high in Macedonia as in Australia, but also had evidence that the applicant and his wife and children had lived in Macedonia for extended periods: at [118]. The Tribunal accepted the evidence of the applicant and the applicant’s wife about inferior living standards in Macedonia to the extent indicated in its reasons, in particular at [117] (quoted above) and [126]-[127]. The Tribunal said:

126. The Tribunal finds that, whereas the Applicant will face some initial difficulties in establishing himself in Macedonia and that living standards will be inferior to those in Australia, these are not insurmountable obstacles. The Applicant is aged 43 and has previous work experience, including as a forklift driver, flooring installer and rental car attendant and therefore he should be able to find paid employment. He will not face any language or cultural barriers on his return, and he will have the same access to welfare benefits as all Macedonian nationals.

127. The Applicant claims to suffer from a range of health conditions and he fears that these cannot be adequately treated in Macedonia and that he will not be able to access necessary medications. There is no evidence before the Tribunal to indicate that the Applicant’s medical conditions are such that his removal to Macedonia would cause immediate and/or irreversible harm to this health or that the medical treatment and medications he requires will not be available.

13    These considerations overall led the Tribunal to conclude that the extent of the impediments the applicant would face on return to Macedonia weighed against the revocation of the visa cancellation decision: at [128].

14    Again, none of this discloses any legal error. The Tribunal was not bound to accept the whole of the applicant’ evidence. It was reasonably open to the Tribunal to accept that the applicant would face hardship in Macedonia but not hardship of an insurmountable kind given his background, capacity to speak the language, age, skills and ties to Macedonia. Nor was the Tribunal bound to inquire into Macedonia’s health and welfare system. It was for the applicant to put his case before the Tribunal including such material about the Macedonian health and welfare system as he saw fit. Again, this all discloses the careful consideration the Tribunal gave to the material before it and the matters which had to be considered, as well as the detailed reasons the Tribunal gave for deciding whether those considerations weighed in favour or against revoking the visa cancellation decision.

15    The Tribunal found that “there is a not insubstantial risk of the Applicant engaging in further criminal conduct”: at [91]. In so doing it noted that although the applicant had taken part in rehabilitative programs and expressed regret for his conduct in the past, he continued to commit drug and driving offences despite being given a second chance by the Tribunal in 2013, a warning by the Department in 2014, and subsequent terms of imprisonment. The applicant said at the hearing that his recent offences were not violent. But the Tribunal was entitled on the evidence to reach the conclusion it did, that the applicant’s conduct “demonstrates a blatant disregard for Australian law and indicates the Applicant’s lack of respect for Australia’s law enforcement framework and disregard of judicial authority and Australian law”: at [82].

16    Contrary to the applicant’s submissions, it was not necessary for there to be a police or sentencing report before the Tribunal for it to reach the conclusions it did. It was bound to consider the risk of the applicant re-offending on the evidence it had, and did so. Its assessment was reasonably open on the evidence. The applicant’s submissions again dispute the weight which the Tribunal gave to his past conduct and its characterisation of the facts, which were matters for the Tribunal alone to decide.

17    The Tribunal accepted that the applicant was a loving father and that his children and wife would suffer if he was unable to remain in Australia. It found that the children’s interests weighed in favour of revoking the cancellation decision. The applicant submitted that this consideration should have weighed “heavily” in favour of revocation. As noted, however, it was for the Tribunal alone to decide what weight to give to the relevant considerations. The Tribunal’s conclusion was founded on the whole of the evidence. It explained that the applicant’s previous crimes and potential to engage in crimes in the future is “likely on balance to have a negative impact on the children, and is not therefore in their best interests”: at [96]. It was having regard to this and all other matters that the Tribunal concluded that the best interests of the children weighed in favour (rather than “heavily” in favour) of revocation of the visa cancellation decision. The Tribunal’s process of reasoning does not disclose any legal error, but rather a close consideration and balancing of all of the competing considerations.

18    The applicant disputed the Tribunal’s assessment of what the Australian community would expect to happen. The applicant said the “Australian community has always recognised the concept of rehabilitation and a second go.” The Tribunal expressly considered this matter in detail and concluded that “given the Applicant’s offending behaviour and his unwillingness or inability to learn from it and appreciate its consequences, the Australian community would expect that he should forfeit the privilege of staying in Australia which his visa confers”: at [109]. This conclusion was reasonably open on the evidence given, as the Tribunal also said:

107. The Applicant came to Australia as a mature adult. Within five years of arriving in Australia he committed a serious offence that attracted a two year prison sentence. Upon his release from prison in 2013, he recommenced offending in 2015 and this offending has since continued. His offending continued despite his visa being cancelled in 2013, him being given a ‘second chance’ following the decision of the first Tribunal to revoke this cancellation, and a warning by the Department in 2014 of the consequences for his visa status should he continue to engage in criminal activity.

108. Given the serious and repeated nature of the Applicant’s offending from 2011 and his apparent lack of insight into, or concern for, the seriousness and consequences of this behaviour, it is reasonable to assume that the Australian community would believe that the Applicant has demonstrated his disregard for Australian law, its institutions and its law enforcement framework. Further, that he has not respected the privilege conferred on him that is afforded by the grant to a non-citizen of an Australian visa entitling them to permanently remain in Australia.

19    The applicant’s procedural fairness submission was that he was not given a “fresh hearing” and that instead the Tribunal relied on the “old hearing” in 2013. The submission is misconceived. The Tribunal was entitled, indeed required, to consider all of the circumstances. The fact that the applicant succeeded in having another visa cancellation decision set aside in 2013 did not wipe the slate clean. When he re-offended, all of his conduct again became relevant. The applicant stressed that his more recent offences were less serious and were mainly driving offences but, as the Tribunal noted, he has an extensive history of offending after 2013 and his “recent criminal offending, which includes resisting a police officer, escaping police custody, drug possession, and failing to comply with bail, and various driving offences, indicates the seriousness of his conduct”: at [81]. The Tribunal cannot be criticised for having reached this conclusion. It was reasonably open on the evidence.

Conclusion

20    It is apparent from the Tribunal’s reasons that it carefully considered all of the material before it and decided that some factors weighed in favour and others against revocation of the visa cancellation decision. Having weighed all of the relevant considerations as required, the Tribunal decided to affirm the decision. It must be taken that in so deciding the Tribunal was not satisfied that there was another reason why the cancellation decision should be revoked. While it would have been preferable for the Tribunal to express its conclusion in the terms used by s 501CA(4)(b)(ii), that it was not satisfied that there was “another reason why the original decision should be revoked”, there cannot be any doubt that this is the conclusion the Tribunal reached on all of the material. I am unable to identify any jurisdictional error in the Tribunal’s decision.

21    For these reasons, the application must be dismissed, with costs.

Associate:

Dated:    5 October 2018