FEDERAL COURT OF AUSTRALIA

Hona v Minister for Immigration and Border Protection [2018] FCA 1564

ORDERS

THE COURT ORDERS THAT:

1.    The Originating Application filed on 7 May 2018 is dismissed.

2.    The Applicant is to pay the costs of the First Respondent, either as agreed or assessed.

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

REASONS FOR JUDGMENT

1    The Applicant in the present proceeding, Mr Petera Hona, is a New Zealand citizen. He has lived in Australia since September 1989 when he was three years old. Mr Hona held a Class TY Subclass 444 Special Category (Temporary) visa.

2    On 31 January 2017, a decision was made by a delegate of the Minister for Immigration and Border Protection (“Minister”) to cancel Mr Hona’s visa under s 501(3A) of the Migration Act 1958 (Cth). In February 2017, Mr Hona requested that the Minister revoke the mandatory cancellation decision pursuant to s 501CA(4). In January 2018, a delegate of the Minister made a decision not to revoke the cancellation decision.

3    Mr Hona then filed with the Administrative Appeals Tribunal (the “Tribunal”) an Application for Review seeking review of the delegate’s decision. The Tribunal in April 2018 published its reasons for its decision affirming the delegate’s decision: Re Hona and Minister for Immigration and Border Protection (Migration) [2018] AATA 773.

4    In May 2018, Mr Hona filed in this Court an Originating Application seeking judicial review of the Tribunal decision. The Minister is the First Respondent; the Tribunal was presumably intended to be the Second Respondent. The Tribunal has filed a Submitting Notice, save as to costs. The jurisdiction being exercised by this Court is that conferred by s 476A(1)(b) of the Migration Act.

5    At the hearing of the Application, Mr Hona appeared on his own behalf. The Respondent Minister appeared by Counsel.

6    The Originating Application is to be dismissed with costs.

The Tribunal decision & Ministerial Direction No 65

7    Decisions about visa refusal and cancellation under s 501 and decisions about revocation of a mandatory visa cancellation under s 501CA of the Migration Act, other than decisions made personally by the Minister, are subject to a Ministerial Direction given under s 499 of that Act, namely Direction No 65.

8    When undertaking the review requested by Mr Hona, the Tribunal was bound to comply with that Direction: cf. BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104 at [9] per Collier, Flick and Perry JJ. Compliance with the Ministerial Direction of relevance in that case, it was there said, was “no mere formality” but was rather a means of “achieving consistency in decision-making” and served “as a useful touchstone for decision-makers to ensure that their task is undertaken in accordance with law”: [2018] FCAFC 104 at [18].

9    Clause 9 of Direction No 65 sets forth what are there characterised as “primary considerations”. When deciding whether to cancel a non-citizen’s visa, those “primary considerations” are stated to be:

    “[p]rotection of the Australian community from criminal or other serious conduct”;

    “[t]he bests interests of minor children in Australia”; and

    “[e]xpectations of the Australian community”.

Similarly, cl 13(2) of that Direction again states that those same three consideration are “primary considerations” when deciding whether to revoke a mandatory cancellation of a non-citizen’s visa. Clause 14 provides that “other considerations must be taken into account where relevant”, those considerations including (but not limited to):

    “[i]nternational non-refoulement obligations”;

    “[s]trength, nature and duration of ties”;

    “[i]mpact on Australian business interests”;

    “[i]mpact on victims”; and

    “[e]xtent of impediments if removed”.

10    The Tribunal’s reasons for decision in the present proceeding expressly recognises that the “revocation discretion, when exercised by … this Tribunal, is subject to the discipline of compliance with any current Ministerial direction”, relevantly in this case Direction No 65: [2018] AATA 773 at [6]. The Tribunal’s reasons for decision then set forth (at paras [12]) the three “primary considerations” and (at para [13]) the three “other considerations” which it considered were of relevance to Mr Hona’s application, namely:

[13]    The three “other” considerations specifically discussed in Part C of Direction no. 65, and relevant to Mr Hona’s circumstances, are:-

(a)    the strength, nature and duration of his Australian ties;

(b)    the impact of any revocation decision on persons affected by his offending, and

(c)    the nature and extent of any difficulties he would be likely to encounter as a result of being removed from Australia.

11    The Tribunal’s reasons for decision thereafter canvass the evidence and make findings on the following issues:

    Mr Hona’s criminal record (at paras [14] to [27]);

    Mr Hona’s risk of re-offending (at paras [28] to [32]);

    community expectations (at paras [33] to [36]);

    Mr Hona’s domestic situation (at paras [37] to [41]);

    the best interests of Mr Hona’s children (at paras [42] to [51]);

    Mr Hona’s family ties in Australia (at paras [52] to [58]); and

    impediments to Mr Hona’s removal (at paras [59] to [60]).

Each of these segments of the Tribunal’s reasons expose a detailed and disciplined approach being given to the materials before it.

12    The Tribunal’s reasons, it is thus considered, direct attention to each of the relevant considerations set forth in Ministerial Direction No 65 and canvas the issues in considerable detail.

13    The Tribunal’s reasons also conclude as follows:

DECISION

[61]    The primary considerations of protection and community expectation point in favour of a non-revocation outcome. The children’s best interests point in the other direction, but they do so somewhat equivocally. The equivocation relates to two considerations. The first is the likelihood that, if the relationship between Ms Farr and Mr Hona is as committed as they assert, she and the children are likely to follow him to New Zealand. The second is that if the relationship between them were to continue with similar levels of discord and violence to the episodes that have occurred in the past, the children’s individual interests are likely to be best served by Mr Hona’s removal. When the three primary considerations are assessed together their balance favours, and I think strongly favours, non-revocation.

[62]    None of the “other” relevant considerations that bear on the exercise of the non-revocation merit being accorded a weight that, with the equivocal consideration of each of the children’s best interests, countervails the impact of the protective and expectation considerations.

[63]    Accordingly, the decision under review is affirmed.

Both the reasons and findings made in respect to each of the issues the Tribunal canvassed, and these concluding remarks when making its decision, expose the Tribunal exercising the discretion entrusted to it. In doing so, the Tribunal has given “proper, genuine and realistic” consideration to the matters before it: cf. Khan v Minister for Immigration and Ethnic Affairs (unreported, Gummow J, 11 December 1987). See also: Williams v Minister for the Environment and Heritage [2003] FCA 535 at [29], (2003) 74 ALD 124 at 130 per Wilcox J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 at [212], (2005) 147 FCR 51 at 92 to 93 per Madgwick J (Conti J agreeing); MZZSL v Minister for Immigration and Border Protection [2015] FCA 178 at [11], (2015) 145 ALD 669 at 671 per Middleton J.

The Grounds of Review & and the absence of legal error

14    The Grounds of Review set forth in the Originating Application filed in this Court state (without alteration) as follows:

1.    I was in prison at the time I received my revocation letter stating my visa cancellation. I felt like I was at a disadvantage as I had no legal advice when needed. So I submitted my paperwork to the N.C.C.C. With the help of a welfare officer. The N.C.C.C. Affirmed there decision not to revoke my visa, so I submitted an appeal to the A.A.T. and they affirmed there decision as well, which leads me to the federal court to review my case.

2.    I have been in Australia since 1988, at this time I was 2 years old. I done all my schooling in Australia, I have great community ties, I have three beautiful children, a loving and very supportive partner who visit me quite regularly, I always look forward to the times they come and visit me. Keeping in contact and being blessed by the lord for having visits means everything to me, because family is everything.

15    The manner in which these Grounds are expressed, perhaps more so in respect to the latter Ground rather than the former Ground, expose a failure to appreciate the limited role entrusted to this Court when undertaking the task of judicial review – rather than merits review. That limited role is generally confined to a review of the legality of the decision and not whether the Court would itself have made different findings of fact or assessed those facts in a different manner: cf. Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50, (2015) 258 CLR 173 at 184 to 185. French CJ, Bell, Keane and Gordon JJ there observed:

[23]    … the scope of judicial review of administrative action … is confined to the legality of the Delegate’s decision. In particular, judicial review is concerned with whether the Delegate’s decision was one which he was authorised to make; it is not:

“an appellate procedure enabling either a general review of the … decision … or a substitution of the … decision which the … court thinks should have been made.”

(Footnote omitted.)

Quoting: Craig v South Australia (1995) 184 CLR 163 at 175 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. See also: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [58], (2016) 237 FCR 1 at 18 per Griffiths J.

16    But that misconception on the part of the present Applicant may presently be left to one side, at least in the circumstances of the present case. He is an unrepresented litigant.

17    Of considerable importance, it is respectfully considered, is that a reasonable observer of the workings of this Court should be able to conclude that all litigants who invoke the Court’s jurisdiction are treated fairly and that their individual cases have been properly considered. Such an objective, obviously enough, has the potential to create very real tensions. The Court self-evidently has to act within the jurisdiction entrusted to it. And the Court cannot be seen to be “running the case” for one party, even an unrepresented party, to the prejudice of his opponent. The Court’s duty “is not solely to the unrepresented party”: SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 at [37], (2013) 216 FCR 445 at 452 per Robertson J (Allsop CJ and Mortimer J agreeing) citing with approval Hamod v New South Wales [2011] NSWCA 375 at [310] per Beazley JA (Giles and Whealy JJA agreeing). All litigation is to be conducted in a manner which facilitates “the just resolution of disputes … as quickly, inexpensively and efficiently as possible”: Federal Court of Australia Act 1976 (Cth) s 37M(1). The parties to disputes are required to conduct proceedings in such a way: s 37N(1). In proceedings of the present kind, where the Minister or his delegate is most often a party, the obligations of being a “model litigant” impose an even more onerous obligation to “act with complete propriety, fairly and in accordance with the highest professional standards”: cf. LVR (WA) Pty Ltd v Administrative Appeals Tribunal [2012] FCAFC 90 at [42], (2012) 203 FCR 166 at 176 per North, Logan and Robertson JJ; Legal Services Directions 2017 (Cth) Sch 1 Appendix B. Those advising the Minister, it should be noted, frequently seek to identify at the outset those cases in which a legal error is exposed and frequently consent to those decisions being set aside. Individual legal representatives also quite frequently take the further step of trying to assist both the Court and an unrepresented party by identifying potential arguments so that they can be exposed to judicial scrutiny. The taking of such steps is consistent with the obligations of a “model litigant” and should be encouraged.

18    Notwithstanding such mandates to the parties and their representatives, litigation and the judicial resolution of disputes remains adversarial. Legal representatives continue to owe obligations to their clients and the Court itself must remain an independent and impartial arbiter.

19    Given the competing tensions that inevitably arise, it is no wonder that different Judges each individually seek to resolve these tensions in their own way. The objectives remain the same but consistency in the method of their pursuit is questionable. One thing is nonetheless certain: the Court should not be placed in the position of providing a de facto legal aid service to unrepresented litigants. Nor should the legal representatives of the Minister, albeit “model litigants”, be placed in the position of taking an even further step of advancing potential legal arguments that run counter to the duties those representatives owe as lawyers to their client.

20    It is within this context of competing objectives that the present proceeding is to be resolved.

21    The first Ground of Review seizes upon the fact that Mr Hona suffers the not inconsiderable “disadvantage” suffered by many unrepresented litigants, namely the absence of legal skills and an inability to access legal advice. But there is, perhaps regrettably, no legal entitlement to be provided with legal assistance in the present context: cf. Commissioner of Taxation v La Rosa [2002] FCA 1036 at [120], (2002) 196 ALR 139 at 161 per Nicholson J. See also: Rivera v United States of America [2004] FCAFC 154; Re Ugur and Australian Human Rights Commission [2010] AATA 144 at [29] to [30], (2010) 114 ALD 192 at 196.

22    The second Ground of Review, expressed as it is, seeks impermissible merits review. The reasons for decision of the Tribunal have nevertheless been separately considered with a view to determining whether the Tribunal has complied with Direction No 65 and made a decision in accordance with law. Having so approached the second Ground of Review, no legal error on the part of the Tribunal is discernible and the Ground is without merit.

CONCLUSIONS

23    The proceeding is without merit and is to be dismissed. Neither Ground of Review has been made out. Nor has an independent scrutiny of the Tribunal’s reasons exposed legal error.

24    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The Originating Application filed on 7 May 2018 is dismissed.

2.    The Applicant is to pay the costs of the First Respondent, either as agreed or assessed.

Associate:

Dated:    18 October 2018