FEDERAL COURT OF AUSTRALIA

Vaofusi v Minister for Immigration and Border Protection [2018] FCA 1939

ORDERS

THE COURT ORDERS THAT:

1.    The originating application be dismissed.

2.    The applicant pay the first 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    The applicant, Mr John Vaofusi, is a 28-year-old citizen of New Zealand. He came to Australia with his parents and five siblings in 2003, when he was 13 years of age. His visa to remain in Australia was the subject of mandatory cancellation on character grounds arising from his imprisonment for a series of criminal offences. That mandatory cancellation decision was made by a delegate of the first respondent, the Minister for Immigration and Border Protection, now the Minister for Home Affairs. Mr Vaofusi applied to have the mandatory cancellation decision revoked on grounds other than character, referring to his asserted prospects of successful rehabilitation and not reoffending, and the accepted adverse impact of his removal from Australia on his three young daughters. This application was refused by another delegate of the Minister. An application for merits review of that non-revocation decision by the second respondent, the Administrative Appeals Tribunal, was also unsuccessful.

2    The Tribunal’s decision was made on 7 December 2017. On 21 December 2017, Mr Vaofusi signed an originating application for judicial review of the Tribunal’s decision. That application was filed on 8 January 2018. A scheduled hearing of that application in September 2018 was vacated after communications with his then pro bono counsel, who subsequently withdrew. Mr Vaofusi was not legally represented after that time. A rescheduled hearing took place on 28 November 2018.

3    Mr Vaofusi’s originating application relied upon one overt ground, which relied upon a High Court challenge to the validity of the mandatory visa cancellation provisions being successful. That challenge did not succeed: see Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 351 ALR 61. Accordingly, that ground of review does not need to be considered further. The originating application also referred to grounds set out in an accompanying affidavit of Mr Vaofusi. That affidavit included the following grounds:

(1)    taking into account irrelevant considerations – particularised and submissions made orally as detailed below;

(2)    failure to take into account relevant considerations – particularised and submissions made orally as detailed below;

(3)    failure to comply with the rules of natural justice or procedural fairness – neither particularised nor submissions made orally;

(4)    error of law – neither particularised nor submissions made orally;

(5)    failure to properly exercise the discretion under s 501CA, and more specifically s 501CA(4), of the Migration Act 1958 (Cth) – neither particularised nor submissions made orally;

(6)    failure to properly apply s 501CA, and more specifically s 501CA(4), of the Migration Act – particularised and submissions made orally as detailed below, by reference to the terms of [9.2(3)] of Direction No. 65, made by the Minister under s 499 of the Migration Act – as noted below, that has been taken to be a reference to [13.2(3)] of Direction 65.

4    Taking those grounds of review as they appear, the Minister submitted in writing the following (being part of submissions that were provided to both Mr Vaofusi and to his former counsel; footnotes embedded in the text in square brackets):

The applicant’s … grounds [in his affidavit] are un-particularised assertions of jurisdictional error, which are vague and without substance. The nature of the legal error committed by the Tribunal is not identified. The failure to particularise a ground of review is a sufficient basis for it to be dismissed [: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; WZATH v Minister for Immigration [2014] FCA 969 at [60]; BYM16 v Minister for Immigration [2018] FCA 326 at [12]-[13]; CNN15 v Minister for Immigration [2017] FCA 579 at [20]-[22]].

As Justice Beach stated in AIR15 v Minister for Immigration and Border Protection [2016] FCA 1425 at [19]:

It is not incumbent on the Court to independently consider for itself whether such generic grounds might be capable of being particularised so as to identify a specific error made by the primary judge or a jurisdictional error made by the Tribunal.

The applicant was extended a full opportunity to give evidence to the Tribunal, and his counsel made both written and oral submissions in presenting the applicant's case. The hearing extended over two days, and several witnesses were called on behalf of the applicant. At no time was any issue raised by the applicant's counsel as to the applicant having been denied procedural fairness.

In its Decision Record the Tribunal summarised the factual context accurately, had regard to the provisions of Direction 65, applied the relevant law correctly, and having weighed the factors for and against cancellation reached a conclusion that was open to it on the materials.

5    Each of the above submissions must be accepted, except insofar as the grounds listed above were further developed at the hearing on 28 November 2018. At that hearing, Mr Vaofusi was not legally represented. However, he made oral submissions, assisted by typewritten notes, which were mostly directed to the decision of the delegate not to revoke the cancellation decision, rather than to the merits review decision of the Tribunal that is the sole remaining decision that can be challenged in this proceeding. A copy of those notes, which were given by Mr Vaofusi to the Minister’s counsel, were provided to the Court.

6    The Minister was represented by counsel, who assisted the Court by treating submissions made by Mr Vaofusi about the delegate’s non-revocation decision and reasons as though they had been made about the Tribunal’s decision and corresponding reasons. On this beneficial approach, Mr Vaofusi may be seen to have advanced three intelligible grounds of review, the first two of which relate to the same topic, cast as follows so as to raise a question of jurisdictional error:

(1)    taking into account irrelevant considerations in determining whether Mr Vaofusi was an ongoing risk to the Australian community, which may be treated as particularising and making submissions in relation to the ground listed at [3(1)] above;

(2)    failing to take into account relevant considerations in determining whether Mr Vaofusi was an ongoing risk to the Australian community, which may be treated as particularising and making submissions in relation to the ground listed at [3(2)] above;

(3)    failure to comply with the requirement contained in [13.2(3)] of Direction 65 concerning the best interests of minor children in Australia affected by the decision by failing, in a case involving two or more relevant children, to give individual consideration to the best interests of each child to the extent that their interests may differ, which may be treated as particularising and making submissions going to the ground listed at [3(6)] above.

7    The grounds listed at [3(3)], [3(4)] and [3(5)] above were not particularised or the subject of any submissions. They do not raise any real ground of review, and are therefore to be disregarded. For completeness, none of those purported grounds is of any apparent substance in any event because there was, on the part of the Tribunal, no discernible failure to comply with the rules of natural justice or procedural fairness, no other apparent error of law (even if that could constitute a jurisdictional error), and no other failure to properly exercise the discretion under s 501CA, and, more specifically, under s 501CA(4) of the Migration Act. I therefore turn to the grounds raised by Mr Vaofusi at the hearing.

The assessment of the risk Mr Vaofusi posed to the Australian community

8    Mr Vaofusi does not take issue with the findings made by the Tribunal about his criminal history or conduct. Rather, on the topic of irrelevant considerations, he took issue with the way in which his past was used to make predictions about his future risk of reoffending. He submits that his past was irrelevant because it relied upon “facts which were correct about me in 2013, but not now and not at the time this assessment was made” and that it was “irrelevant to apply facts to a current assessment, which do not reflect my current state”. He further submits:

I am sober and do not partake in any form of substance abuse. It would be mere speculation to suggest given my history of substance abuse, that this correlates to me being a threat or risk to the Australian community, therefor[e] I believe the weight given to my history of substance abuse is irrelevant and is inconclusive to suggest that this could deem me a risk to the Australian community. I have been clean for quite a few years now and this fact alone contradicts the findings that my history of substance abuse is evidence relevant to be applied …

9    Mr Vaofusi relies upon the terms of [9.1.2(2)(b)] of Direction 65, which is in the section dealing with visa refusal and cancellation, rather than revocation of a cancellation decision. The corresponding provision in Part C of Direction 65 dealing with the same topic in relation to revocation, and cast in substantially the same terms, is [13.1.2(2)(b)]. It is best to reproduce all of [13.1.2]:

13.1.2    The risks to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(1)    In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)    In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

a)    The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b)    The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

10    Mr Vaofusi submits that it was an error to find that he remained at risk of re-offending. He submits that the information and evidence that was used provided no factual or concrete basis for reaching that conclusion, but, rather, was no more than speculation “based on a time in my life which is no longer relevant to me and has not been relevant to me for a number of years, and certainly not relevant to me at the time of this assessment”. He characterises this as a failure to comply with [9.1.2(2)(b)] (being properly [13.1.2(2)(b)]) of Direction 65.

11    Mr Vaofusi’s argument as to an alleged failure to take into account relevant considerations turns on the delegate’s reasons not considering the reference made by the sentencing judge to Mr Vaofusi being remorseful and having prospects of rehabilitation largely due to a good work history and family support. However, that aspect of the sentencing remarks was expressly quoted by the Tribunal and so was in fact considered. This submission therefore fails at the first, factual, threshold, and does not require further consideration.

12    The problem with Mr Vaofusi’s submissions on taking into account irrelevant considerations is that they overlook the requirement imposed on the Tribunal by [13.1.2(2)(b)] of Direction 65 to make a prediction, based on the evidence and other material before it, as to the likelihood of him engaging in further criminal conduct. The Tribunal was specifically required to take into account information and evidence on the risk of that occurring and as to his rehabilitation. That is precisely what the Tribunal did. That process would ordinarily and legitimately include consideration of any past offending and the circumstances in which it occurred, because that is capable of being relevant to the risk of reoffending, which in this case it was. Far from being a forbidden consideration, it was a consideration legitimately to be taken into account by the Tribunal.

13    Before turning to that specific risk assessment task, the Tribunal considered Mr Vaofusi’s offending in some detail, including submissions made on his behalf by counsel and evidence called by him from a clinical psychologist that sought to demonstrate that this conduct was attributable to past circumstances that no longer applied. The Tribunal then turned to [13.1.2] of Direction 65, quoting it in full, and noting that the psychologist’s evidence at the hearing was that his prospect of reoffending was low. The Tribunal quoted from parts of the psychologist’s report and from evidence given by Mr Vaofusi, by his partner, by his aunt and by his father.

14    The Tribunal considered the effect of family support that was now available, but noted that this had been available at the time of the offending to no avail. The Tribunal noted the paucity of rehabilitation programs that Mr Vaofusi had participated in, and considered submissions made on his behalf. However, taking into account community expectations (which were not challenged), the Tribunal concluded that there was a real risk of him reoffending, despite the improvements in his behaviour since his offending had taken place. The Tribunal remained concerned with his “tendency to self-medicate on alcohol and drugs and to engage in violence when frustrated”, and with his clinical diagnosis of depression because it “heightens his risk of future offending”.

15    The Tribunal reached the following conclusions:

(1)    at the point of assessing risk (at [71]):

Taking into account both the nature of the harm that Mr Vaofusi may cause and the likelihood of him re-engaging in criminal or serious conduct, the Tribunal is of the view that Mr Vaofusi represents an unacceptable risk of harm to the Australian community. The risk that Mr Vaofusi presents to the Australian community, coupled with the nature and seriousness of his offending outlined earlier in these reasons for decision, leads to a conclusion that the protection of the Australian community consideration weighs in favour of not revoking the mandatory cancellation of Mr Vaofusi’s visa.

and

(2)    at the point of reaching its overall conclusions (at [86]-[88]):

There are considerations that weigh in favour of revoking the mandatory cancellation of Mr Vaofusi’s visa. The foremost of these is the primary consideration of the best interests of minor children in Australia. It is in the best interests of Mr Vaofusi’s three biological children that he remains in Australia and this weighs strongly in favour of revoking the mandatory cancellation of his visa. The best interests of Ms Sinfield-Smith’s son also weigh slightly in favour of revoking the mandatory cancellation of his visa, though the Tribunal notes that if Mr Vaofusi were to return to New Zealand, Ms Sinfield-Smith and her son would likely move to New Zealand to be with him. Beyond this primary consideration, the strength, nature and duration of Mr Vaofusi’s ties to Australia also weigh strongly in favour of revoking the mandatory cancellation of his visa, with Mr Vaofusi exhibiting strong familial ties to Australia over a long period. The strength, nature and duration of Mr Vaofusi’s ties to Australia are also evident in his employment history and his relationship with Ms Sinfield-Smith. Finally, the Tribunal notes the impediments Mr Vaofusi may face upon return to New Zealand also weigh slightly in favour of revoking the mandatory cancellation of his visa.

Although there are considerations weighing in Mr Vaofusi’s favour, the Tribunal found that these considerations do not outweigh the two other primary considerations, being the protection of the Australian community and expectations of the Australian community, both of which weigh in favour of not revoking the mandatory cancellation of Mr Vaofusi’s visa. Mr Vaofusi’s offending was serious and there remains an unacceptable risk of Mr Vaofusi reoffending. If he were to offend further if he remained in the Australian community, the consequences for a victim could be serious and possibly fatal. Furthermore, it is the expectation of the Australian community that someone with an extensive, often violent, criminal record and poor behavioural record in prison, and who remains an unacceptable risk of repeating that conduct, would not be allowed to stay in Australia.

Overall, the Tribunal finds that having regard to all of the primary and other relevant considerations required by the decision maker to take into consideration under the Direction, the correct and preferable decision is to not revoke the mandatory cancellation of Mr Vaofusi’s Visa.

16    There is no discernible legal or factual error in the approach taken by the Tribunal or in the conclusions reached, let alone any jurisdictional error. This ground of review must therefore fail.

[13.2(3)] of Direction 65 – individual consideration to the best interests of each child

17    Mr Vaofusi made reference to [9.2(3)] in respect of his three daughters. As noted above at [9], paragraph 9 of Direction 65 is directed to visa cancellation. The corresponding provision in Part C of Direction 65 dealing with the same topic in relation to revocation, which is cast in the same terms, is [13.2(3)]. Paragraph 13.2(3) of Direction 65 provides:

13.2    Best interests of minor children in Australia affected by the decision

…

(3)    If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

18    Mr Vaofusi submits that separate consideration was not given to each of his three young daughters. He submits that this was:

… of high importance as the best interest of minor children is considered a primary consideration and the absence of this consideration, did not determine the appropriate weight which should have been applied to this consideration. Therefore, it cannot be said, that the protection of the Australian community outweighed the best interest of my minor children.

19    Mr Vaofusi further submits that while the expectations of the Australian community was a primary consideration, the best interests of minor children was also a primary consideration, and that, in considering whether one primary consideration outweighs another, all aspects of Direction 65 should be applied.

20    The problem with this ground of review is again that it fails at the first factual hurdle. That is because there is nothing to suggest that the interests of Mr Vaofusi’s three young daughters in relation to him was different as between them in any way, let alone that any case was advanced by him below to that effect. That was particularly so in circumstances in which, as the Tribunal observed, he had had limited contact with them since being incarcerated on 26 February 2016. There was no identified point of differentiation by which the asserted individual consideration of the best interests of his three daughters could take place. Moreover, the Tribunal did separately consider differences when they were apparent, namely as to best interests of the five-year-old child of Mr Vaofusi’s partner, who had indicated that she and her son would relocate to New Zealand to be with him if his visa was not restored.

21    This ground of review must therefore also fail.

Conclusion

22    The originating application must be dismissed with costs.

Associate:

Dated:    6 December 2018