FEDERAL COURT OF AUSTRALIA

Hawkins v Minister for Home Affairs [2019] FCA 437

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

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

REASONS FOR JUDGMENT

COLLIER J:

Background

1    Before me is an originating application from Mr Hawkins, a 47-year-old who arrived in Australia from the United Kingdom with his parents in 1973 when he was two years old. He has never become an Australian citizen: instead, he has resided in Australia on various visas and retains citizenship of the United Kingdom.

2    Mr Hawkins seeks judicial review at the Federal Court of a decision of the Administrative Appeals Tribunal (Tribunal) that in turn affirmed a decision of a delegate of the Minister for Home Affairs (Minister) not to revoke an earlier decision to cancel Mr Hawkins’ most recent Class BF transitional (permanent) visa (visa).

3    From the outset it is evident Mr Hawkins has suffered many challenges in his life. His four year old daughter was tragically killed in a motor vehicle accident in 2014. Further, Mr Hawkins’ elderly parents are unwell: his mother suffers from emphysema and arthritis, and his father has recently been diagnosed with terminal prostate cancer and lung cancer in addition to suffering from dementia and memory loss.

4    During the last 30 years, Mr Hawkins has been involved with drugs and has had many encounters with the law. In his submissions to this Court, the Minister set out a summary of Mr Hawkins’ criminal history in Australia based on a National Police Certificate dated 7 February 2018. There appears to be over 180 offences between 1989 and 2017, including:

•    one count of unlawful stalking;

•    six counts of assaults and two counts of assaults occasioning bodily harm;

•    15 counts of stealing/larceny;

•    27 counts of possessing prohibited drugs;

•    eight counts of possessing utensils or pipes/drug equipment and 11 counts of failure to properly disclose of needle and syringe; and

•    two counts of contravene domestic violence order.

Minister’s decision to cancel Mr Hawkin’s visa

5    On 17 August 2017, Mr Hawkins’ visa was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Act) (the cancellation decision), a mandatory cancellation power which provides:

501 Refusal or cancellation of visa on character grounds

…

(3A)    The Minister must cancel a visa that has been granted to a person if:

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

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

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

Character test

6    The Minister’s delegate noted in respect of s 501(3A)(a) of the Act that Mr Hawkins did not pass the “character test” in s 501(6)(a) because he has a “substantial criminal record”, having been imprisoned for a term of 12 months or more: s 501(7)(c). Relevantly, the delegate observed that on 11 August 2004, Mr Hawkins had been “convicted of two counts of Take & Drive Conveyance W/o Consent of Owner-T2 and sentenced to two years imprisonment on each count.”

Imprisonment on a full-time basis

7    The Minister’s delegate also explained in respect of s 501(3A)(b) of the Act that Mr Hawkins was “serving a sentence of imprisonment, on a full-time basis” at the time of the decision based on the following convictions:

On 24 April 2017 you were convicted of Two Counts of Possessing Dangerous Drugs for which you were sentenced to six months imprisonment fully suspended until 23 April 2018. You reoffended and on 04 August 2017 the suspension was fully invoked and you were order to serve the balance of the suspended sentence.

On the same date you were also convicted of Possessing Dangerous Drugs (two counts), Receiving Tainted Property, Assault or Obstruct Police Officer, Fail To Take Reasonable Care and Precautions In Respect of Syringe or Needle (two counts), and sentenced to seven months imprisonment on each count. The Court ordered you to be released on parole on 20 August 2017.

8    Mr Hawkins was invited to make representations to the Minister about revoking the cancellation decision.

Minister’s decision not to revoke the Cancellation Decision

9    On 22 August 2017, Mr Hawkins made a request to the Minister that the cancellation decision be revoked pursuant to s 501CA(4) of the Act. He provided his representations to the Minister in a personal circumstances form on 24 August 2017 in support of the request. In that form Mr Hawkins explained many aspects of his circumstances, including:

…

Please describe your relationship with each child including when it began, how often you contact/see the child/ren and the role you play in their lives.

I have not seen my daughter since the death of my eldest daughter back in December 2014 but I have kept in contact and I have sent birthday & Christmas presents and payed maintenance as well. However I have kept in contact over the phone and have been trying to get down and see and spend more time with her but have had one thing or another stopping me from doing so.

Please describe the impact the cancellation of your visa would have, or has had, on the child/ren listed.

This would really have a great impact on my child [name redacted] as she has already lost her older sister and to loose her father as well would be bad on her mentally and her state of well being. I really want to be a big part of my daughters life and really need to be here with my family and supports to do so.

…

Please describe the impact the cancellation of your visa would have, or has had, on your family.

They are all very shocked and concerned and cannot believe I’m in this predicament.

CRIMINAL HISTORY AND RISK OF REOFFENDING

Do you believe that there are any factors that help to explain your offences which should be taken into account by the decision-maker?

I very unfortunately lost my eldest daughter in a car accident in 2014 so all of my charges since that date are drug related. I’m still dealing with my emotions . She was my princess. She was only 4 when the accident happened. It was almost like I was in auto pilot and it has taken me to get put in jail and put in this situation for me to relize that I was out of control and that I need help from phycologist and drug and alchol and all my family.

…

What do you think is the likelihood that you may re-offend now? Please give reasons for your answer.

I feel that now I have become point of interest to border security I would think about everything. I have had time to reflect on my life and my actions and have realised that I need to deal with my grief in the appropriate manner.

Have you completed any courses or programs that will help you to avoid further offending and to make positive contributions to the community? Please provide evidence e.g. course completion certificates.

Yes I have been doing drug & alcohol counciling will send evidence when I recieve it. I suffer from post traumatic stress disorder from my loss and want to engage in grief counciling and to start seeing a psycologist to deal with things properly.

…

List positive contributions you have made to Australia for example, volunteer activities, participation in community and cultural activities, employment etc

Community services in Burliegh and with the Salvation Army in Palm Beach.

What hardship would your removal from Australia cause to members of the Australian community?

This would have a great impact on my child and my family as we are still coming to terms with the loss of my eldest daughter.

Do you have any concerns or fears about what would happen to you on return to your country of citizenship? [Mr Hawkins ticked a box indicating “yes”]

My concerns or fears would be that I would not be able to pay my respects to my daughter and I would be without my family & friends and my support network.

Are there any other problems you would face if you have to return to your country of citizenship?

The problems I would face would be that I don’t know anyone and all my family are all in Australia.

ANY OTHER INFORMATION

Please outline any other information you would like to Minister or delegate to consider when making their decision.

The effect that grief has on a person, the state of mind that it puts them in and not knowing how to cope or where to seek the support that is needed. The importance of realisation and comming to terms with and being able to admit that a problem is bigger than one can deal with on their own and seeking out the help that one needs to deal with grief in the appropriate way “ie” grief councilling, psycologist, drug & alchol and family supports.

(Errors in original)

10    Mr Hawkins attached further details to the form, including:

I am 46 years old and have got to this point in my life and realize that I need to change my ways. Buy holding onto the past and taking drugs to cover up my emotions is not the answer at all. I need to be honest and let the people in my life know where I’m at an what’s affecting me in order to move on. I realize if I am granted my visa that I would have to be of good behaviour for the rest of my life. I know that I would’nt cope without my daughter & my family supports. The last few years have been the hardest years in my whole life. Im really coming to terms with my loss and feel that if given the chance be the best father & son that a family could ask for. Both my mother & father are in there late 60’s and could really do with my help & care. My mother suffers early stages of emphisema & arthritis. My father is in a nursing home and suffers from dementure & memory loss. Since being in detention its been really hard talking to my daughter in fact she really wants to see me and I can’t give her a date or time as I’m unsure when that might be. Please consider that all my charges in the last 10 years are [illegible] & drug related and also reflect on being homeless at times.

(Errors in original.)

11    On 19 March 2018, a delegate of the Minister decided not to revoke the cancellation decision (revocation decision). The delegate was not satisfied pursuant to s 501CA(4)(b)(i) that Mr Hawkins passed the character test, nor was the delegate satisfied pursuant to s 501CA(4)(b)(ii) that there was any other reason why the cancellation decision ought be revoked.

Tribunal’s decision to affirm the revoation decision

12    On 23 March 2018, Mr Hawkins applied to the Administrative Appeals Tribunal (Tribunal) for review of the revocation decision pursuant to s 500(1)(ba) of the Act. On 1 June 2018, the Tribunal affirmed the Minister’s revocation decision. In its decision, the Tribunal at [6] identified that the critical issue in the review was “whether the discretion in s 501CA(4) of the Act should be exercised”: that is, whether Mr Hawkins passed the character test and if not, whether there was another reason the cancellation decision should be revoked.

Character test

13    At [9] of its decision, the Tribunal observed Mr Hawkins’ “extremely lengthy” criminal record with specific reference to his two-year sentence of imprisonment for the offence of “take & drive conveyance w/o consent of owner”. The Tribunal found that the length of this term of imprisonment was plainly within the meaning of a “substantial criminal record” prescribed by s 501(7)(c) of the Act, that Mr Hawkins was therefore unable to pass the character test by reason of s 501(6)(a) of the Act and as a result, it was appropriate for the Minister to have cancelled Mr Hawkins’ visa.

Any other reason to revoke the cancellation decision

14    At [10]-[14] of its decision, the Tribunal turned to whether there was any other reason to revoke the cancellation decision pursuant to s 501CA(4)(b)(ii) of the Act and acknowledged the requirement of s 499(2A) of the Act for the Tribunal to comply with any Ministerial Directions made under the Act. This included Direction No. 65 (Direction 65) which provides guidance on how the Tribunal ought to exercise its discretion and what factors can be considered. These elements include “primary considerations”: namely, the protection of the Australian community, the best interests of minor children in Australia (which, in this case, I understand is relevant to Mr Hawkins’ second daughter) and the general expectations of the Australian community.

Primary considerations

15    At [18]-[45] of its decision, the Tribunal addressed the primary considerations under Direction 65 in determining whether or not to revoke the mandatory cancellation decision. In relation to the risk Mr Hawkins poses to the Australian community, the Tribunal observed in summary:

    Between 1989 and 2017, Mr Hawkins committed over 180 offences, including 27 convictions for possessing drugs (at [20]).

    There is no doubt Mr Hawkins has had “serious issues” with drug addictions; however, he has been unable to demonstrate any substantial prospects that he will not relapse (at [22]).

    That Mr Hawkins’ criminal offending is a result of his drug use “does not, and cannot, detract from the overwhelming length of his criminal record” (at [23]).

    Although the majority of his convictions “were minor in and of themselves, the sheer frequency of offending over a sustained period of time is undoubtedly very serious” (at [23]) and this weighs heavily against the revocation of the cancellation decision (at [25]).

    In addition to Mr Hawkins’ drug and minor property offences, he has demonstrated a particularly serious “tendency towards violent outbursts and domestic violence, as well as more significant bursts of property crime, especially car theft” (at [27]).

    There is a considerable likelihood that Mr Hawkins would use drugs again and a corresponding high likelihood that Mr Hawkins would continue to engage in criminal conduct (at [28]-[29]).

    It is “highly doubtful” that Mr Hawkins will, as he asserted, “simply be able to escape from this 30-year maelstrom of drug use and criminal offending” (at [30]).

    It is the cumulative effect of Mr Hawkins’ violent and major property offences that “compounds the seriousness of the risk he poses to the Australian community” (at [30]).

16    In relation to the best interests of minor children in Australia affected by the cancellation of Mr Hawkins’ visa, the Tribunal noted in summary:

    Mr Hawkins’ second daughter, an Australian citizen, was born in 2012 (at [32]).

    He has not seen his daughter since late 2013; but has kept in contact by telephone (at [35]).

    Mr Hawkins was unable to see his daughter due to parole restrictions (at [36]), not wanting to cause conflict with his ex-partner, the mother of his daughter, when she was seeing a new partner and also because he was dealing with his drug use (at [37]).

    Mr Hawkins loves his daughter dearly and has given financial support over the years (at [38]).

    The possibility of Mr Hawkins relapsing would result in him not playing a positive role in his daughter’s future (at [39]).

    Should Mr Hawkins’ visa remain cancelled, the further separation would “merely maintain the status quo in terms of his relationship with his daughter” and he could “maintain regular phone contact with her” (at [39]).

    Mr Hawkins’ daughter has other people providing parental and supportive roles in her life, including her mother and grandparents (at [39]).

17    In relation to the expectations of the Australian community, the Tribunal explained in summary:

    The question to be assessed by the Tribunal in this consideration was whether the Australian community as a whole would expect a non-citizen with Mr Hawkins’ history of offending to retain the right to remain in Australia (at [43]).

    The Tribunal disagreed with evidence given by Mr Hawkins’ brother in which he supposed that the Australian community would support Mr Hawkins remaining in the country. Given the “overwhelming” and “lengthy” nature of Mr Hawkins’ criminal record, including his acts of domestic violence and stalking, the Tribunal found the Australian community would not expect a person in his circumstances ought to be allowed to continue to reside in Australia (at [44]).

18    The Tribunal ultimately found that although the consideration of the best interests of Mr Hawkins’ daughter weighed, for the most part, in favour of revoking the cancellation decision (at [40]), the overall risk Mr Hawkins presents to the Australian community and the expectations of the community weighed more heavily against revoking the cancellation decision (at [31] and [45]).

Other considerations

19    Direction 65 also sets out five “other considerations” to be examined when determining whether or not to revoke the cancellation decision:

(1)    Australian’s international non-refoulement obligations;

(2)    the strength, nature and duration of ties an applicant such as Mr Hawkins has to Australia;

(3)    the impact on Australian business interests;

(4)    the impact on victims of the criminal behaviour; and

(5)    the extent of any impediments an applicant may face if removed from Australia.

20    At [15] the Tribunal emphasised that the “other considerations” in Direction 65 were not secondary considerations. Rather, as Colvin J highlighted in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:

… Direction  65 makes clear that an evaluation is required in each case as to the weight to be given to the “other considerations” … It requires both primary and other considerations to be given “appropriate weight”. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains “generally” they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are “normally” given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both “primary” and “other considerations”. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

21    The Tribunal addressed each of the “other considerations” having regard to their relevance and weight of each factor:

    At [49] the Tribunal found that consideration of Australia’s international non-refoulement obligations was not relevant because Mr Hawkins did not raise any claims of refugee status relating to non-refoulement.

    At [50] the Tribunal acknowledged Mr Hawkins has “deep-seated” ties to Australia, he has lived in the country since arriving at two years of age, his close and extended family members all live in Australia and he considers himself to be an Australian. This factor was held to weigh “strongly” in favour of Mr Hawkins remaining in Australia.

    At [51] the Tribunal noted that to Mr Hawkins’ credit, he had been offered work as a landscaper should he return to the community. Though this pointed prima facie in favour of revoking the cancellation decision, there was no evidence before the Tribunal to show that Australian business interests would be negatively impacted by Mr Hawkins’ inability to undertake the work. This factor was afforded minor weight.

    At [52] the Tribunal noted the Minister did not lead any evidence about what impact Mr Hawkins’ return to the community would have on the victims of his crimes. No weight was given to this factor.

    At [53] the Tribunal found that although Mr Hawkins would be impeded by losing his personal support networks if he was returned to the United Kingdom, he would not face any language barriers and his ability to find employment would be equal to that in Australia. The Tribunal found this factor weighed neither in favour nor against revoking the cancellation decision.

22    In considering whether there was any other reason to revoke the cancellation decision pursuant to s 501CA(4)(b)(ii) of the Act, the Tribunal concluded:

54.    … primary consideration A overwhelmingly weighs against the revocation of the cancellation of the Applicant’s visa, whilst primary consideration B weighs in favour of it, albeit rather more weakly. Primary consideration C weighs against revocation, too. The balance of the other considerations weighs in favour of revocation. There are no relevant non-refoulement obligations, but the Applicant has strong ties to Australia, which adds some weight to the case in favour of revocation. The impact on Australian business interests only has a slight impact favouring revocation, but the impact on victims, to the extent that there is one, weighs against revocation. Finally, the extent of impediments is neutral on the question of revocation.

55.    Balancing these factors, the great weight of primary consideration A cannot be overcome by the close family ties the Applicant has to Australia, the impact it will have on his daughter, and any impact it will have on Australian business interests. He will face little impediment to living in the UK. Overall, then, I cannot find that there is another reason to revoke the cancellation of the Applicant’s visa.

23    Ultimately, the Tribunal decided at [56] that:

    it was “impossible to reconcile [Mr Hawkins’] criminal history and the risk of [Mr Hawkins] relapsing and reoffending with his remaining in Australia”;

    the “balance of the primary and other considerations does not weigh in favour” of revoking the cancellation decision; and

    the cancellation decision was to be affirmed.

Proceeding in the Federal Court

24    On 19 June 2018, Mr Hawkins lodged by facsimile an originating application for review of the Tribunal’s decision pursuant to s 476A of the Act and an affidavit attaching that decision.

25    At a case management hearing listed before me on 11 October 2018, I ordered that Mr Hawkins be referred to a lawyer for pro bono assistance and a referral certificate be issued pursuant to r 4.12(2) of the Federal Court Rules 2011 (Cth). The nature of the legal assistance involved:

    drafting any amended originating application for review to include complete particulars of each ground of review;

    providing legal advice whether orally and/or in writing;

    preparing any submissions; and, if possible,

    preparing for and appearing at any hearing.

26    On 3 December 2018, the Court was notified that a barrister had offered assistance to Mr Hawkins in response to the referral certificate. At the substantive hearing of this application, Mr Hawkins explained to the Court that the pro bono practitioner “helped me with my jurisdictional errors” and “had a brief conference with me, but, unfortunately, he’s not representing me today.”

27    On 21 December 2018, Mr Hawkins filed an amended originating application in which he relied on three grounds of review:

The Administrative Appeals Tribunal decision of 1 June 2018 is infected with the following jurisdictional errors:

1.    The Learned Senior Member failed to consider and take into account all of the factors listed in paragraph 13.1.1(1) of the Ministerial Direction no. 65: he was required by law to do so.

2.    The Learned Senior Member failed to consider and take into account “whether there is any trend of increasing seriousness” as referred to in paragraph 13.1.1(1)(d) of the Ministerial Direction no. 65: he was required by law to do so.

3.    The Learned Senior Member was required by law by failed to take into account the following considerations as part of paragraph 14 of the Ministerial Direction No. 65:

(a)    the impact that deportation and living in a foreign country was likely to have on the Applicant’s mental health. That is particularly so because of the evidence from QuIHN Gold Coast and the Applicant’s mother;

(b)    that, given the Applicant’s parents’ health conditions, it was most likely that the Applicant would never see his parents again.

(Formatting removed.)

Preliminary issue

28    On 9 October 2018 Mr Hawkins filed written submissions in which he advanced the following:

1.    I feel there wasn’t enough weight given to the fact I’ve got a 6 year old girl that is gonna need me in every way.

2.    The fact I’ve been here for 45 years and my whole family lives here also.

3.    I’ve got work & accommodation all worked out to give myself the best chance I’m only ask for one chance to turn my life around.

…

29    Mr Hawkins did not file any further submissions as permitted by my order of 7 November 2018.

30    I note, however, that Mr Hawkins filed an affidavit on 6 February 2019 in relation to his parents’ deteriorating health (medical affidavit). Attached to the medical affidavit are two medical reports. The first is a letter from McKid Medical regarding the health of Mr Hawkins’ mother, explaining that she will need assistance from her family in the near future due to the progressive nature of her emphysema/bronchiectasis. Mr Hawkins also deposed that he has elected to be a full-time carer for his father who, as described in the second attached report from the Tweed Hospital, has been diagnosed with metastatic prostate cancer and metastatic lung cancer, suffered an acute hip fracture and has been given a prognosis of less than 12 months based on his current terminal diagnosis.

31    The Minister in his written submissions filed 5 March 2019 formally objected to Mr Hawkins relying on the two medical reports relating to his parents’ health attached to the medical affidavit because the documents were not in evidence before the Tribunal. Although the material on which Mr Hawkins sought to rely refers to distressing personal circumstances for him, I accepted the Minister’s objection. I proposed at the substantive hearing not to admit the annexures, but rather to treat the body of the medical affidavit as further submissions by Mr Hawkins rather than as evidence in the proceeding. I understand that both Mr Hawkins and the Minister were satisfied with this approach.

Consideration

Increasing seriousness of offences (grounds of review 1 and 2)

32    In my view, grounds of review 1 and 2 are interrelated insofar as they assert that the Tribunal failed to consider whether there was any trend of increasing seriousness in Mr Hawkins’ offending, as referred to in item 13.1.1(1)(d) of Direction 65.

33    Mr Hawkins’ written material was not particularised and did not address these grounds. At the substantive hearing of the application, I asked Mr Hawkins if he wished to put any oral arguments in addition to the material that already appeared on the Court file. Materially, Mr Hawkins reiterated the grounds of review contained in his amended application. From the bar table he submitted, in summary, that one of the factors the Tribunal failed to consider was that his “crimes have … become somewhat less serious over the time since I was young and … they haven’t become more serious, in fact, overall. So … the seriousness … has become less serious.”

34    Mr Kyranis for the Minister was content to rely on his written submissions.

35    In my view, the Tribunal had regard to the overarching principles of item 13 of Direction 65 at [19] of its decision and applied the relevant factors for consideration in [20]-[25]. In doing so, however, it did not make a specific finding in relation to whether there was any trend of increasing seriousness in the offending. The Minister submitted that the proper inference to draw from this is that the Tribunal did not consider that there was any such trend. I agree with this position, noting that the Tribunal’s reasons, particularly at [20], [23] and [25], plainly show that the Tribunal considered the cumulative effect (referred to in item 13.1.1(1)(e) of Direction 65) of Mr Hawkins’ offending over the last 30 years was very serious.

36    Accordingly, no jurisdiction error is revealed and grounds of review 1 and 2 fail.

Mental health (ground of review 3)

37    In ground of review 3, Mr Hawkins contends that the Tribunal failed to take into consideration two issues when evaluating the “other considerations” contained in item 14 of Direction 65. Again, Mr Hawkins’ written material did not address this ground of review.

Mr Hawkins’ mental health

38    First, Mr Hawkins claims that the Tribunal failed to consider the impact that his removal from Australia would likely to have on his mental health, relying on a letter from the Queensland Injectors Health Network dated 28 August 2017 attached to his request to the Minister for revocation of the cancellation decision (QuIHN letter), as well as evidence from his mother.

39    In the QuIHN letter, a therapist assisting Mr Hawkins expressed that she had “significant concerns around [Mr Hawkins’] mental health should his support network be take away form [sic] him.” As to the unspecified evidence of Mr Hawkins’ mother, I take this to be a reference to her letters dated 28 March 2018 and 4 April 2018.

40    At the substantive hearing Mr Hawkins submitted from the bar table that with respect to his own mental health,

I might not have too much mental health … on paper, but my mental health wasn’t given any regards to because – like, I’ve – losing my daughter is pretty much very significantly very big mental health … if I was deported, I would effective be … losing my other daughter which I’ve still got remaining, which is my younger one, and even just the thought of it is … too much for me overall …

41    In his written submissions, the Minister explained that the Tribunal was not required to consider the claim relating to Mr Hawkins’ mental health because it was not the subject of substantial clearly articulated arguments relying on established facts or did not clearly emerge from the materials: see, eg, NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55] and [68]; AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 at [67]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46].

42    I am assisted by the decision of Allsop J (as the Chief Justice then was) in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] where his Honour explained:

… A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

43    What appears clear to me is that in his personal circumstances form referred to in [9] of these reasons, Mr Hawkins clearly indicated he was not suffering from a diagnosed medical or psychological condition, nor that he was being treated by a doctor, health professional or counsellor.

44    The mere attaching of the QuIHN letter and the letters from Mr Hawkins’ mother to Mr Hawkins’ paperwork does not give rise to a clearly articulated claim. Further to the documentary evidence, there is no material before this Court to show, for instance, that Mr Hawkins gave oral evidence at the Tribunal to support his claims relating to his mental health.

45    I find that this argument was not a substantial clearly articulated claim and it did not clearly emerge on the material before the Tribunal.

46    However, even if Mr Hawkins had articulated the claim in the appropriate manner before the Tribunal, I note that the Tribunal at [53] acknowledged the existence of Mr Hawkins’ support networks in Australia and that he would lose these if he were removed from the country. The Tribunal found this was a factor that weighed “neither in favour nor against” Mr Hawkins’ case. For current purposes, it was open to the Tribunal to make such a finding on the evidence and determine the appropriate weight and relevance of that finding: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [33] citing Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [197] per Gummow and Hayne JJ.

Parents’ health

47    Second, Mr Hawkins contends that the Tribunal failed to consider his parents’ age and health conditions, and that it was likely that he would never see them again if he were removed from Australia. At the substantive hearing, Mr Hawkins made the following oral arguments:

    In relation to his parents’ circumstances:

…it’s probably likely that I would never see them again if I was deported, and even more so now that I’ve got a doctor’s report specifying that my father has got cancer … which is terminal, and he has basically been given till the end of the year to live, and … this wasn’t put in front of the Tribunal at the time because I wasn’t aware of it at the time, but I’ve only just … found out in January that this occurred.

    Specifically in relation to his father’s health,

…since 2009 my father was with the Guardianship Tribunal because of his dementia … me and my brother were [asked] by the tribunal if we wanted to take him into our care because they wanted to put him in some sort of nursing … So me and my brother agreed to take on the guardianship of my father back in 2009 … and we signed an agreement … My brother … since I’ve been in here has had to quit his work because … he’s taking care of my father on a full-time basis. So he can’t work … it’s having a big toll on him, his relationship with his partner and his … daughters. … I just need to say that I need to be there to help look after my father … especially now … in his last days – last months of his life.

48    I have been unable to identify any evidence before this Court to suggest the issue of Mr Hawkins’ parents’ health was raised before the Tribunal, and if it was, that it was the subject of clearly articulated arguments based on established facts or clearly emerged from the material before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55] and [68]; AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 at [67].

49    In my view, ground of review 3 seeks to instigate impermissible merits review in this Court and must fail: see, eg, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

Duration in Australia (raised at substantive hearing)

50    Although it was not raised as a formal ground of review, Mr Hawkins further submitted at the substantive hearing before me that the Tribunal did not give enough weight to the duration of his time in Australia (that he has lived in Australia for almost 50 years) and the nature of his ties to the country (that all his family reside in Australia and all the medical and economic support he has in Australia “outweighs what [he] will have if [he is] returned to the UK”).

51    In relation this assertion, the Tribunal at [50] said:

There can be little doubt that the Applicant has deep-seated ties to Australia. He has resided here since he was two years of age, and clearly considers himself an Australian. It seems that his entire family, including both his parents, his surviving grandparents, daughter, brother and aunties and uncles also reside here. I consider that this constitutes strong ties, developed over the course of around 45 years …

(Emphasis added.)

Further, in considering the strength, nature and duration of Mr Hawkins’ ties to Australia, the Tribunal made a finding at [50] in Mr Hawkins’ favour:

… Consequently, I consider that this factor weighs strongly in favour of the Applicant’s remaining in Australia.

52    I agree with the Minister’s submission that the Tribunal did afford considerable weight to this factor. Accordingly, it remained open to the Tribunal to balance all of the considerations and find that this factor alone did not outweigh the other considerations for affirming the cancellation decision.

Notice of cancellation (raised at substantive hearing)

53    Mr Hawkins submitted orally that he was not given notice that his visa would be cancelled. In response, Mr Kyranis submitted that there is no legislative requirement for the Minister to give such notice and that s 501 of the Act operates in mandatory terms that require the Minister to cancel visas in certain circumstances. In Mr Hawkins’ case, this was due to his sentence of imprisonment for a term of 12 months or more. Having regard to the operation of ss 501(3A)(a), 501(6)(a) and 501(7)(c) of the Act, I am not persuaded that the Minister was required to give Mr Hawkins notice prior to cancelling his visa. This line of argument does not reveal error on the part of the Tribunal.

Conclusion

54    Mr Hawkins has come before this Court to seek judicial review of a decision that will have a significant impact on his life, and notably the lives of his elderly parents and young daughter. It is not for this Court to review the merits of his circumstances: Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at [65] (Sackville J, North J agreeing at [129]), [146] (Kenny J), or whether it agrees with the primary decision: Salapo v Minister for Home Affairs [2019] FCA 67 at [11]. Rather, the only question for consideration is whether or not the Tribunal reached its decision according to law.

55    I have considered the facts and circumstances of Mr Hawkins’ case and am not satisfied that the Tribunal erred in reaching its conclusion to affirm the decision under review. The appropriate order is that Mr Hawkins’ application for judicial review be dismissed with costs.

Associate:

Dated:    2 April 2019