FEDERAL COURT OF AUSTRALIA

Paszkiewicz v Minister for Home Affairs [2019] FCA 390

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of the proceeding, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement:

(a)    within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MOSHINSKY J:

1    The applicant has applied for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) not to revoke a cancellation of the applicant’s visa on character grounds.

2    The applicant contends that the decision of the Tribunal is affected by jurisdictional error. In particular, he argues that the Tribunal did not take into account certain claims and evidence and, in doing so, failed to accord him procedural fairness or otherwise constructively failed to exercise its jurisdiction.

3    For the reasons that follow, the applicant’s grounds are not made out.

Background facts

4    The applicant is a citizen of Poland.

5    In 1985, he entered Australia with his immediate family. Until 16 September 2015, he was the holder of a Transitional (Permanent) (Class BF) visa.

6    Since 1988, the applicant has been convicted of numerous criminal offences including thefts, burglaries, assaults and armed robbery. In particular, the County Court of Victoria convicted him on 21 December 2012 of various offences including armed robbery. In respect of the armed robbery, the County Court sentenced the applicant to three years’ imprisonment.

7    On 16 September 2015, a delegate of the Minister cancelled the applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth). The delegate found that the applicant did not pass the character test because he had a substantial criminal record.

8    On 22 September 2015, the applicant made representations to the Minister about revocation of the visa cancellation (Court Book pages 66-70). He subsequently lodged further materials in support of those representations (see, eg, Court Book pages 71-127, 152-169).

9    On 3 January 2018, another delegate of the Minister decided, pursuant to s 501CA, not to revoke the cancellation of the applicant’s visa.

10    The applicant applied to the Tribunal for review of the non-revocation decision. The applicant and his representative lodged various materials with the Tribunal. These included witness statements of the applicant, his mother, his aunt, his fiancée, and a friend. The applicant’s solicitors filed a statement of facts, issues and contentions.

11    On 16 March 2018, the Tribunal conducted a hearing. The applicant was represented by counsel at the hearing. The first respondent was represented by a solicitor. The applicant and a number of his family members gave evidence.

12    On 27 March 2018, the Tribunal handed down its decision, which affirmed the non-revocation decision.

The Tribunal decision

13    The Tribunal found (at [15]) that the applicant did not pass the character test due to his substantial criminal record. The Tribunal therefore considered whether there was another reason why the cancellation of the visa should be revoked: see s 501CA of the Migration Act. In doing so, the Tribunal had regard to Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65), a direction made by the Minister pursuant to s 499(1) of the Migration Act.

14    The Tribunal noted, at [20], that in deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, Direction 65 required a decision-maker to take into account the considerations set out in Part C, which were divided into “primary considerations” and “other considerations”. The Tribunal then noted at [21] that the primary considerations were:

(a)    protection of the Australian community;

(b)    the best interests of minor children in Australia affected by the decision; and

(c)    expectations of the Australian community.

15    At [22], the Tribunal noted that the “other considerations” set out in Direction 65 were:

(a)    international non-refoulement obligations;

(b)    strength, nature and duration of ties;

(c)    impact on Australian business interests;

(d)    impact on victims; and

(e)    extent of impediments if removed.

16    The Tribunal summarised the applicant’s contentions at [24]-[31] of its decision. At [24], the Tribunal stated:

The Applicant submitted that, notwithstanding the seriousness of his past offences, the Tribunal should find that there is another reason why the mandatory visa cancellation decision should be revoked. [Counsel] argued that [the Applicant] has two young Australian citizen children who need his care and support. They would be adversely affected if the decision was not revoked. [Counsel] also submitted that his many family members in Australia and his fiancée would also be adversely affected. She drew the Tribunal’s attention to the fact that the Applicant’s parents are both elderly and his father is suffering from a terminal disease and, as such, would not be able to visit his son should he be removed to Poland.

17    The Tribunal noted, at [30], that the applicant’s counsel had submitted that: the applicant had two minor Australian children; until he separated from their mother in 2011, the applicant had been highly involved in their lives; and the applicant sought to re-establish contact on release from incarceration.

18    At [32]-[36], the Tribunal summarised the Minister’s contentions. As set out at [36], the Minister accepted that non-revocation of the cancellation of the applicant’s visa would have a detrimental impact on his family, especially his fiancée and his parents.

19    The Tribunal discussed the various considerations referred to in Direction 65 at [37]-[70] of its decision. The Tribunal considered (at [37]-[56]) protection of the Australian community, being one of the primary considerations. The Tribunal began by considering the nature and seriousness of the applicant’s conduct. The Tribunal stated that: it was clear that the applicant had a long history of serious criminal conduct; the applicant had been warned by the Department of Immigration and Border Protection about his criminal conduct, but he had disregarded the warning; the applicant appeared in court in May 2009, in relation to driving a vehicle with false registration plates at high speed and striking another car from behind; in sentencing the applicant, the Judge noted that the applicant was at the time suspended from driving and had 103 prior convictions from 16 court appearances between 1995 and 2007; the Judge decided to wholly suspend the 36 months’ imprisonment then imposed; regrettably, less than 10 months later, the applicant was in court again, on 38 fresh charges; he went on to appear in court on four more occasions. After discussing the connection between the applicant’s drug addiction and the offending and aspects of Direction 65, the Tribunal stated that the applicant’s offences had involved dishonesty, threatening people, perpetrating violence as well as several driving offences, one of which led to serious injury of another road user through no fault of that person. In relation to the nature and seriousness of the applicant’s conduct, the Tribunal therefore concluded at [47] that, applying the provisions set out in Direction 65, “this consideration weighs heavily against the Applicant”.

20    The Tribunal also considered the risk to the Australian community should the applicant commit further offences or engage in other serious conduct. The Tribunal discussed the evidence of a clinical and forensic psychologist who had examined the applicant. The Tribunal referred to the evidence of the applicant’s mother and fiancée. The Tribunal noted at [55] that the County Court Judge who sentenced the applicant in 2012 concluded that the applicant had a “high risk of re-offending”. The Tribunal stated at [55] that the risk of the applicant re-offending was “not insignificant”. The Tribunal stated that “the risk to the community … is unacceptable; people had been threatened, and in one instance badly injured, directly as a result of the applicant’s conduct”. The Tribunal was not satisfied that the strategies in place to deter him from re-offending in the same serious manner were durable. In relation to the risk to the Australian community, at [56], the Tribunal therefore concluded that this “consideration weighs against revocation of the mandatory cancellation decision”.

21    The Tribunal subsequently considered, as a primary consideration, the best interests of minor children in Australia affected by the decision at [57]-[58]. The Tribunal stated:

57.    The Tribunal notes that [the Applicant] has two Australian citizen children who are minors. He gave evidence he had not seen them for six years. The Tribunal is aware that he had previously arranged, through the Salvation Army, to send gifts to his children but on the last occasion the parcel had been returned. The Applicant does not know where his former partner or the children currently are.

58.    The Direction requires me to take into account whether there have been long periods of absence or limited meaningful contact. That is so in this case. However, I accept [the Applicant] is genuine in his desire to make contact with his children, including if necessary by court orders. On balance, I find that this consideration weighs in favour of revoking the mandatory cancellation of the Applicant’s visa, but given the lack of regular contact, not heavily so.

22    The Tribunal then went on to consider the expectations of the Australian community (as a primary consideration) and other considerations.

23    The Tribunal concluded as follows, at [71]:

The Tribunal finds that the delegate’s decision should be affirmed. In coming to this conclusion, the Tribunal is aware that the consequences of the Applicant’s removal will have a greatly detrimental effect on his family, in particular his parents and fiancée. There are certain considerations that weigh in favour of the Applicant but the Tribunal concludes that on balance that the seriousness of his criminal conduct coupled with the risk to the community of the Applicant re-offending is not an acceptable one, given his past propensity to return to drug-use (and, therefore, offending to fund it) and the considered professional opinion that his skills to equip him not to relapse are not strong.

Application for judicial review

24    By this proceeding, the applicant seeks judicial review of the Tribunal’s decision, pursuant to s 476A of the Migration Act. The grounds set out in his amended originating application are as follows:

1.    The [Tribunal] failed to take into account a claim and/or evidence relevant to a primary consideration of Ministerial Direction 65 made under s 499 of the Migration Act (Cth) (“the Act”) and in doing so failed to accord procedural fairness / discharge its duty of review pursuant [to] the Act.

Particulars

(a)    The Applicant raised a clearly articulated claim that a decision not to revoke cancellation of his visa would not be in the bests interest of minor children in Australia. [Specifically] evidence was given that:

i.    The Applicant’s children would not be able to have any contact with the Applicant’s extended family; and

ii.    The Applicant would be better able to provide financial support if he remained in Australia.

  (b)    These claims were ignored by the [Tribunal].

2.    The [Tribunal] failed to take into account a claim and/or evidence relevant to a secondary consideration of Ministerial Direction 65 made under s 499 of the Act and in doing so failed to accord procedural fairness / discharge its duty of review pursuant [to] the Act.

Particulars

(a)    The Applicant raised claims regarding the strength, nature and duration of ties in Australia with respect to his aunt.

  (b)    The [Tribunal] failed to consider this claim.

3.    The [Tribunal] failed to take into account a claim and/or evidence that his departure would have a harsh impact on his mother following the impending death of his seriously ill father. That claim / evidence was relevant to a secondary consideration of Ministerial Direction 65 made under s 499 of the Act. The [Tribunal] failed to consider a significant submission and so failed to accord procedural fairness / discharge its duty of review pursuant [to the Act].

25    The material before the Court on the hearing of the application comprised a Court Book and an affidavit of Patrick O’Connor, the solicitor for the applicant, annexing the transcript of the hearing before the Tribunal.

Consideration

26    The applicant contends, in each of his three grounds, that the Tribunal failed to take into account a claim or evidence and thereby failed to accord the applicant procedural fairness or failed to carry out the required statutory task. The applicant contends that the Tribunal failed to take into account the following claims or evidence (setting these out in the order addressed in oral submissions):

(a)    in relation to the best interests of the applicant’s minor children:

(i)    a contention that the applicant would be better able to provide financial support for the children if he remained in Australia (and evidence relating to this contention); and

(ii)    a contention that the children would not be able to have any contact with the applicant’s extended family if the cancellation decision were not revoked (and evidence relating to this contention);

(b)    in relation to the strength, nature and duration of the applicant’s ties in Australia, the applicant’s relationship with his aunt; and

(c)    a contention that the applicant’s departure from Australia would have a harsh impact on his mother.

27    The statutory scheme applicable to the decision of the Tribunal included, in particular, ss 501 and 501CA of the Migration Act. The applicant’s visa was cancelled under s 501(3A) on the basis that he had a substantial criminal record. No issue arises in relation to the cancellation of the applicant’s visa under that provision. Section 501CA deals with revocation of a decision to cancel a person’s visa under s 501(3A). Section 501CA(3) provides that, as soon as practicable after making the cancellation decision, the Minister must: (a) give the person a written notice that sets out the cancellation decision and particulars of the “relevant information” (an expression defined in s 501CA(2)); and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the cancellation decision. Section 501CA(4) provides that the Minister may revoke the cancellation decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied that the person passes the character test or “that there is another reason why the original decision should be revoked”.

28    In the present case, a delegate of the Minister (rather than the Minister personally) made the decision under s 501CA(4) not to revoke the cancellation decision. Accordingly, it was open to the applicant to apply to the Tribunal for review of the non-revocation decision: see s 500(1)(ba). In conducting the review of the non-revocation decision, the Tribunal was required to comply with Direction 65: see s 499(2A).

29    The applicant relies on the principles discussed in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE (No 2)). In NABE (No 2), the Full Court of this Court said, at [55], that where the Tribunal fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” (quoting Dranichnikov at [24]), that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction. The Full Court stated that the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. (See also NABE (No 2) at [58], [61] and [63]). The principle discussed in Dranichnikov and NABE (No 2) has been applied in the context of s 501CA(4): see Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [17], [25] and [30] per Rangiah J with whom Reeves J generally agreed (at [3]). I accept that the principle is applicable to the review conducted by the Tribunal in the present case. I did not understand counsel for the respondent to contest this.

30    In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, the Full Court stated at [47] that the inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. The Full Court also stated: “It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality”.

31    Although the applicant’s written submissions also include a contention that the Tribunal failed to give “proper, genuine and realistic consideration” to the applicant’s submissions, it appears that this contention was largely based on the judgment at first instance in Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592. However, that decision was reversed on appeal after the applicant’s written submissions had been filed: Minister for Home Affairs v Buadromo [2018] FCAFC 151. At the hearing of the present application, counsel for the applicant relied principally on the judgment of Rangiah J in Viane at [16], [17] and [22]-[30]. In these paragraphs, Rangiah J referred to and applied the principle in Dranichnikov and NABE (No 2) referred to above. Accordingly, I take the applicant’s case to be based on the principle discussed in Dranichnikov and NABE (No 2).

32    Having set out the applicable principles, I now turn to consider whether the Tribunal failed to make a finding on “a substantial, clearly articulated argument relying upon established facts” in respect of the matters raised by the applicant and set out at [26] above.

33    The first matter raised by the applicant is a contention, in connection with the best interests of the applicant’s minor children, that the applicant would be better able to provide financial support for his children if he remained in Australia. It should be noted at the outset that there is no issue that the Tribunal did consider, at least to some extent, the best interests of the applicant’s minor children: see [57]-[58] of the Tribunal’s decision, set out above. As for the specific contention that the applicant would be better able to provide financial support for his children if he remained in Australia, this contention does not appear to have been made in the applicant’s written representations to the delegate in support of revocation of the cancellation decision. (I was not taken, by counsel for the applicant, to any part of the written representations in support of a submission that the matter had been raised in those representations.)

34    The contention regarding financial support was not directly raised in the applicant’s statement of facts, issues and contentions filed for the purposes of the Tribunal hearing. That document contained a contention, in the “summary” at the beginning, that it was in the best interests of the applicant’s minor children that the applicant be allowed to stay here because “[i]f he has to live in Poland they will not have a father in their lives” (at [6]). The topic of the best interests of the applicant’s two Australian children was addressed in a single paragraph ([39]) later in the document. That paragraph stated that the applicant wished to re-establish a parental role in the children’s lives, but it was difficult to do so from prison. The paragraph continued: “Given that he is estranged from the children’s mother, it is likely that if his cancellation is not revoked, he will never see the children again as their mother would not facilitate their travel to Poland to see him”.

35    The contention that the applicant would be better able to provide financial support for the children if he remained in Australia was, however, raised in oral submissions during the Tribunal hearing: see transcript pages 7-8, 50 and 58. For example, in opening submissions, counsel for the applicant stated that the “second main issue” in relation to the best interests of the children was that if the applicant is “able to stay in Australia and do the job he has waiting for him … he will be able to financially support those children, and indeed, he wants to do that and he will be required to do that under child support law”.

36    There was some evidence to support this contention. In particular, at [22] of the applicant’s witness statement he stated: “I would like to earn money to help provide for my children financially.” In his oral evidence at the Tribunal hearing, the applicant said that, although he had not seen the children since 2013, prior to that he used to see them every weekend, “stay at the house, pay my child support” (transcript, pages 19-20).

37    I accept that the applicant raised with the Tribunal a contention that he would be better able to provide financial support for the children if he remained in Australia, and provided some evidence in support of that contention. However, in my view the Tribunal did respond to this material, albeit generally. At [24] of the Tribunal’s decision, as part of the summary of the applicant’s contentions, the Tribunal noted that counsel for the applicant argued that he “has two young Australian citizen children who need his care and support” and that they “would be adversely affected if the decision was not revoked”. The reference to “support” is capable of including financial support and I would read it this way in light of the submissions that had been made to the Tribunal. Further, the reference to the children being “adversely affected” is capable of including adverse effects due to the absence of financial support and, again, I would read it this way. In the section of the Tribunal’s reasons dealing with the best interests of the children ([57]-[58] of the Tribunal decision, set out above) the Tribunal did not refer to potential financial support from their father. The Tribunal referred to the fact that the applicant had not seen the children for six years and that he did not know where his former partner or the children were. The Tribunal accepted that the applicant was genuine in his desire to make contact with his children “including if necessary by court orders”. It concluded that, on balance, “this consideration weighs in favour of revoking the mandatory cancellation of the Applicant’s visa, but given the lack of regular contact, not heavily so”. In my view, the Tribunal’s findings at [57]-[58] of its decision responded, albeit in general terms, to the contention regarding financial support for the children. The fact that the applicant had not had contact with his children for several years and did not know where they were was relevant in assessing the prospect of the children receiving financial support from their father. In accepting that the applicant was genuine in his desire to make contact with his children, the Tribunal may be taken (in light of the reference to “support” at [24]) to be referring also to a desire to provide support. In expressing the conclusion that “this consideration”, that is, the best interests of the children, weighed in favour of revoking the cancellation, the Tribunal may be taken to be responding to the contention (at [24]) that the children needed the applicant’s “support”. Accordingly, this aspect of ground one is not made out.

38    Further, and in any event, it is difficult to see how any failure to respond to this contention and this evidence could realistically have made a difference to the outcome in this case, given the findings against the applicant in relation to protection of the Australian community (summarised at [19]-[20] above) and the fact that the Tribunal did conclude that the consideration concerning the best interests of the children weighed in favour of revoking the cancellation (albeit not heavily so).

39    The other aspect of ground one concerns a contention that the children would not be able to have any contact with the applicant’s extended family (in particular, the applicant’s parents, being the children’s grandparents) if the cancellation decision were not revoked. Again, this contention was not directly raised in the applicant’s statement of facts, issues and contentions. The point was mentioned in the applicant’s mother’s oral evidence (transcript, pages 23, 25). In closing submissions, counsel for the applicant referred to the applicant’s mother’s evidence “about her desire to have a role in the life of her Australian citizen grandchildren” and submitted that, if the applicant has to move back to Poland it was “hard to see how these two children’s Australian citizen grandparents will have any role in their lives, nor this extended family” (transcript, page 54; see also, page 58). In the context of the material as a whole before the Tribunal, I do not consider these submissions and this evidence to constitute a “substantial, clearly articulated argument relying upon established facts”. Accordingly, I do not consider that the Tribunal erred by not specifically addressing these submissions and this evidence.

40    The next matter raised by the applicant is that the Tribunal failed to take into account his claims regarding the strength, nature and duration of ties in Australia with respect to his aunt. The applicant’s aunt gave evidence in her witness statement that the applicant was like a son to her (at [9]). However, it does not appear that any substantial submission was developed before the Tribunal based on the applicant’s relationship with his aunt. The applicant’s statement of facts, issues and contentions referred (at [36]) to the deaths of the applicant’s two cousins (the sons of the aunt), but did not directly rely on the applicant’s relationship with his aunt in the section dealing with “strength, nature and duration of ties to Australia”. Accordingly, I do not consider the applicant to have presented a “substantial, clearly articulated argument relying on established facts” in respect of his relationship with his aunt.

41    The final matter raised by the applicant is that the Tribunal failed to take into account that his departure would have a harsh impact on his mother following the impending death of his seriously ill father. In the applicant’s witness statement, at [28], he referred to his father’s terminal illness and stated that he wanted “to be able to be there for my mother to support her after my dad passes away”.

42    In the applicant’s mother’s oral evidence she said that her husband was sick and she required some assistance, which her son would be able to provide (transcript, page 23). The point does not otherwise appear to have featured in the applicant’s material before the Tribunal. In the context of the material as a whole, I do not consider the applicant to have presented a “substantial, clearly articulated argument relying on established facts” in respect of the effect of the applicant’s departure on his mother. Further, and in any event, the Tribunal noted in its conclusion (at [71]) that the applicant’s removal “will have a greatly detrimental effect on his family, in particular his parents and fiancée” and may thus be taken to have responded to this matter.

43    I would add that the Tribunal’s decision is clear and logically expressed. It responds with an appropriate level of detail to the contentions and evidence that were presented to it. This overall impression of the Tribunal’s decision reinforces my view that the Tribunal did not fall into jurisdictional error as alleged by the applicant.

44    For these reasons, the application is to be dismissed. There is no apparent reason why costs should not follow the event. Accordingly, I will also make an order that the applicant pay the first respondent’s costs of the proceeding, to be fixed by way of a lump sum.

Associate:

Dated:    22 March 2019