FEDERAL COURT OF AUSTRALIA

Pallas v Minister for Home Affairs [2019] FCA 523

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:

1    Before me is an application filed in the Court’s original jurisdiction pursuant to s 476A of the Migration Act 1958 (Cth) (Act) on 13 March 2018 by the applicant, Mr Pallas. Mr Pallas seeks judicial review of a decision made by the Assistant Minister for Home Affairs (the second respondent) not to revoke an earlier decision to cancel his visa. The Assistant Minister has filed a submitting notice save as to costs in this proceeding, and the application for judicial review is defended by the Minister for Home Affairs (the first respondent). For simplicity I shall refer to the respondents collectively as the Minister.

Background

2    Mr Pallas arrived in Australia with his parents and brothers in 1973 when he was 11 years old and received a permanent entry visa. On 1 September 1994, Mr Pallas was assigned a “Class BF transitional (permanent) visa” (visa) under the Migration Reform (Transitional Provisions) Regulations (Cth), being the substantive visa the subject of this proceeding. Despite not leaving Australia since his arrival some 45 years ago, Mr Pallas has not obtained Australia citizenship and remains a French national.

3    Mr Pallas’ National Police Certificate reveals an extensive criminal history during his adult life in Australia, including offences committed whilst on bail or parole. Though the majority of his infractions comprise offences involving dishonesty, Mr Pallas’ conduct also includes weapons possession, drug and driving offences, serious offences of violence and attempted escape from custody.

4    As a result of his criminal activity, Mr Pallas has been imprisoned on numerous occasions, as summarised by the Minister’s written submissions:

    March 1981 to August 1983;

    March 1998 to May 1998;

    February 1999 to July 2012;

    August 2013 to November 2014; and again in

    November 2014 until around November 2017, when he was transferred to immigration detention.

Mandatory cancellation of Mr Pallas’ visa

Decision to cancel visa

5    On 2 February 2017, the Department of Immigration and Border Protection (now the Department of Home Affairs) (Department) wrote to Mr Pallas informing that his visa was cancelled under the provisions of s 501(3A) of the Act (original decision).

6    Section 501(3A) of the Act relevantly provides:

501    Refusal or cancellation of visa on character grounds

Decision of Minister or delegate — natural justice applies

…

(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) [of s 501 of the Act] (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)

…; 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.

7    In the original decision, the Department explained the circumstances surrounding Mr Pallas’ failure to pass the character test (contained in s 501(6) of the Act) and his full-time incarceration:

Failure to pass the character test

Based on the information before the Department, the decision maker (who is a delegate of the Minister) was satisfied that you do not pass the character test on the following ground/grounds:

You have a substantial criminal record within the meaning of s501(6)(a) on the basis of s501(7)(a), (b) or (c) of the Act.

Under s501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 31 May 2016 you were convicted of offences including Receiving [sic] tainted property and received sentences including a term of imprisonment of three years.

The information based on which the decision maker was satisfied that you do not pass the character test is the Transcript of Proceedings of the Queensland Magistrates Court at Innisfail on 31 May 2016.

Imprisonment on a full-time basis

Based on the information available, the decision maker was also satisfied that, at the time of the decision, you were 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. In particular, regard was had to the Integrated Offender Management System, Sentence Calculation Details report from the Queensland Department of Corrective Services, created on 6 June 2016.

Mr Pallas’ representations in response to the visa cancellation

8    Mr Pallas was invited by the Department to make representations in support of revoking the original decision that cancelled his visa, which he did within the requisite period and in the specified manner. In a departmental form titled Request for revocation of a mandatory visa cancellation under s501(3A) that he signed on 19 February 2017 (form), Mr Pallas provided comprehensive details about his circumstances. For instance, Mr Pallas outlined the reasons why he believed the mandatory cancellation of his visa should be revoked as follows:

All of my family and friends are here in Australia, as I have lived here for 45 years. My family includes my current partner, our 5 children and 3 grandchildren, my own 6 children and 6 grandchildren to a former relationship, my parents and my two brothers. I don’t know anything about my birth country, including how to speak the language, and feel it would be wrong to be sent away from my family, and to be made to live alone in a foreign country. My two sons and I have a joint company … that we manage together, which shows that I have a way of being financially stable while in Australia. I also have my own land and various assetts [sic] both by myself and with my company.

This country is all I have known as a home, and although I have struggled with the law at times, I feel I am at the age now where my responsibility to my family comes first, and I intend to do only the right thing by them, myself, and the community in the future. I would ask the minister to please take these things into account when making a decision, and to show leniency to a man that wants to live out his life quietly, with his family by his side.

9    He also described the relationships he has with his children:

My first child, [name], was born in Cairns on [date]. His mother and I separated, but I tracked him down when he was 15, and we have maintained a regular and close relationship since then. He has since married, and I now have 3 grandkids to share my life with also.

My second child, [name], was born in Sydney on [date]. She lived with myself and my partner [name], for the first 3 years of her life, before returning to live with her mother. We have maintained regular contact through letters and by phone and she is a big part of my life here in Australia.

My third child [name] (DOB [date]), my fourth child [name] (DOB [date]), and my fifth child [name] (DOB [date]) all lived with myself and their mother, [name], for 13 years until we separated. They still live close by in Yeppoon and I maintain regular and close contact with all of them. They have also been reunited with their brother, [name of first child], in Cairns, and continue to stay in contact with him regularly. These three children were raised by [mother’s name] and myself, and I have a very close bond with them all, and have had since birth.

My most recent child, [name], (DOB [date]) was only 2 months old when I was put in prison, but I remained in close contact with his mother, and still do. He was taken away from her by Child Services for 12 months, but with my help, I was able to reunited them for a while. I have just been informed that Child Services have again taken [sixth child’s name], and they are in the process of discussing custody rights for me upon my release.

My current partner, [name] has 5 children of her own: [names and dates of birth], that also look up to me as a step father. The two younger ones, [names], are especially close to me, and we share a unique and close bond that has taken many years to form. We have daily phone calls, share letters, and they are keen to have me come home as soon as possible to continue our growing relationship. These two children would be shattered, as would I, if I had to be made to live apart from them.

…

My youngest two step children have had me raise them for the past 10 years, and would suffer emotionally [if] we were to be kept apart. As well as that, I have the chance to gain full custody of [sixth child’s name] if Child Services sees fit, and so my deportation would not only affect the life of [sixth child’s name], but would also have a flow-on effect in that he wouldn’t have the chance to live with his father and his 2 brothers. My other children would all suffer emotionally by me not being around any more, and they don’t deserve to go through all the heartache of separation just because of my past mistakes. As a whole, I have a large gamily, with a lot of kids that look to me for support and guidance, and I feel I can still offer them so much in the way of life skills in the future, but I need to be around them to achieve that. Please take into account the need of a child to have his father around, as it really does play a big part in this whole process.

(Personal details removed.)

10    With respect to the impact the cancellation of his visa would have on his family, Mr Pallas described as follows:

The impact on my family would be significant, particularly to my parents. They both live here in Australia, and are getting on in age, so if I was to be deported, they would never get to see me again, as they are too old to travel any more. We have a very close relationship, and they have both stuck by me through all my pitfalls, which has really helped me to cope in this negative environment. I really want to be given the chance to repay them for all their loyalty once I am released, but I won’t be able to do that if I am no longer in the country. Both my brothers and their familys [sic] also live here in Australia, and are all standing by me and maintaining a positive relationship with me. We all have a close family unit and have had for 40 years, and to split this family now would be so sad and final as I would never get to see them again.

11    Reflecting upon his criminal offences and risk of reoffending, Mr Pallas said:

While buying and selling goods, certain stolen goods were presented to me, and I ended up inadvertently being caught up in this unlawful activity. I didn’t go out looking for stolen goods and really was trying to run a legitimate business, but the quick dollars offered to me got the better of me.

…

I feel a lot more mature now, and feel that trying to get rich quick is not the best thing in life, and I now treasure my family over everything, including money.

12    When prompted to list the positive contributions he has made to Australia, Mr Pallas noted:

Started my own company – financially stable. Volunteer for Clean-Up Australia Day, Menshed, and collecting for Salvos Red Shield Appeal. Donated to Salvos and Red Cross.

13    A further question on the form asked Mr Pallas to contemplate what hardship his removal from Australia would cause to members of the Australian community. Mr Pallas said:

It would cause Australian Company to close down, less money for Australia. It would go against Australian motto of sticking together (by separating family).

14    In the form, Mr Pallas stated that he holds concerns and fears about returning to his country of citizenship and expects to face challenges if he returns:

I have fears that I will live in isolation with no family around, and the inability to speak the language will cause ongoing anxiety problems trying to gain employment and deal with day to day life in that country.

…

Trying to start a new life at my age with no support or friends to help is going to really affect me mentally. I dread having to try to start again in a foreign country.

15    Finally, Mr Pallas provided on the form the following information he thought the Minister ought to consider in the decision-making process:

I would like to appeal to the Minister’s sense of compassion in my case, and look at this application with leniency. As you would know, family is everything in this world, and I’m sure you would agree that to be separated from everyone I’ve ever known and loved for the past 45 years, would break my heart and my spirit. I would never be able to see my parents again, not even for their funerals. I would never get to watch my son take his first steps, or watch him on his first day of school, and would never again be able to pick one of my kids up after an accident, dust them off, and tell them it’s going to be okay. The worse thing would be trying to explain to my children why they would never see their dad again, why I’m deserting them, and why I could never look them in the eye and tell them how very much I love them. My family is my whole world Minister, and I plead with you to give me this chance to show my family, and the community that my morals and ethics have changed for the better, and I can be a productive member of society and a good family man.

16    I have also noted throughout the court book many documents attesting to Mr Pallas’ history, character and personal achievements including copies of the records of the Pallas family’s arrival in Australia obtained from the National Archives of Australia, letters of support for Mr Pallas and certificates confirming his commendable tertiary education qualifications.

Decision not to revoke cancellation of visa

17    On 8 February 2018, the Department wrote to Mr Pallas informing him that, despite the representations he provided Department, the Minister had decided not to revoke the original decision to cancel Mr Pallas’ visa (revocation decision).

18    Section 501CA(4) of the Act relevantly provides:

501CA    Cancellation of visa — revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

…

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

19    Attached to the revocation decision was, inter alia, the Minister’s decision record which relevantly stated:

REVOCATION UNDER S. 501CA OF THE MIGRATION ACT 1958 – DECISION BY THE ASSISTANT MINISTER FOR CITIZENSHIP AND MULTICULTURAL AFFAIRS

I have considered all relevant matters including an assessment of the character test as defined by s501 of the Migration Act 1958 (the Act), and all evidence before me provided by, or on behalf of, or in relation to Gilles Roger Andre PALLAS in connection with the possible revocation under s501CA(4) of the Act, of the original decision under s501(3A) of the Act to mandatorily cancel Mr Pallas’s Class BF transitional (permanent) visa.

…

Non-revocation outcome

Mr Pallas has made representations about revocation of the original decision in accordance with the invitation and I am not satisfied that Mr Pallas passes the character test (as defined by s501). Nor am I satisfied that there is another reason why the original decision should be revoked. Accordingly, the power in s501CA(4) of the Act to revoke the original decision is not enlivened and Mr Pallas’s Class BF transitional (permanent) visa remains cancelled. My reasons for this decision are set out in the attached Statement of Reasons.

20    The decision record was signed by the Minister on 7 February 2018. Further attached to the revocation decision was the Minister’s statement of reasons.

Character test: s 501CA(4)(b)(i)

21    At [4]-[9] of the statement of reasons, the Minister considered whether Mr Pallas satisfied the character test (as prescribed by the criterion in s 501CA(4)(b)(i) of the Act).

22    Having been sentenced to a term of imprisonment of 12 months or more for his past activities, the Minister noted that Mr Pallas had a “substantial criminal record” as defined by s 501(7)(c) of the Act and therefore he failed to satisfy the criterion in s 501(6)(a). The Minister also noted that in the representations and documents submitted by Mr Pallas, he did not dispute the information in the transcript of the proceedings at the Innisfail Magistrates Court regarding his criminal convictions and did not dispute that he did not pass the character test.

23    On balance, the Minister found that Mr Pallas did not meet the standards required by the character test.

Any other reasons: s 501CA(4)(b)(ii)

24    As Mr Pallas had not passed the character test, the Minister considered at [10]-[67] of his statement of reasons whether there were any other reasons why the original decision should be revoked pursuant to s 501CA(4)(b)(ii) of the Act.

25    At [11] of the statement of reasons, the Minister explained he “assessed all of the information set out in the attachments” and had given particular regard to Mr Pallas’ representations and supporting documentation. The Minister summarised at [12] the key representations articulated by Mr Pallas which included:

•    He has a relationship with his Australian citizen son from a previous relationship, [name removed], aged three years and two step sons aged 16 and 14 years from his current relationship. These children need him to be a father figure in their lives.

•    He arrived in Australia in 1973 at the age of 11 years with his parents and two brothers and has never since departed, so he has lived in this country continuously for 44 years and regards himself as Australian.

•    His parents, two brothers, four adult sons and an adult daughter, and three grandchildren, as well as two minor stepsons all reside in Australia.

•    He has undertaken several training and educational courses whilst in custody, including the Transitions Program and being registered with Pathways 2 Employment program. He considers that he is more mature now and is not at risk of reoffending.

•    He was inadvertently caught up in his most recent unlawful activity when certain stolen goods were presented to him whilst he was conducting his business of buying and selling goods.

26    The Minister proceeded to consider in detail whether any other reasons existed to justify revoking the original decision. These included the best interests of Mr Pallas’ minor children, the strength, nature and duration of Mr Pallas’ ties to Australia, the extent of the impediments Mr Pallas would face if he were removed from Australia, and consideration of the need to protect the Australian community.

Best interests of minor children

27    The Minister, as a primary concern in light of Art 3 of the Convention on the Rights of the Child, considered whether it would be in the best interests of Mr Pallas’ minor son, stepsons and grandchildren for the original decision to be revoked.

28    He found at [17] that it would be in the best interests of Mr Pallas’ youngest son, who was two months old when Mr Pallas was incarcerated, for the original decision to be revoked so the child “could have direct contact with him during his minor years, if he wishes and this is permitted.”

29    The Minister at [20] concluded that it would be in the best interests of Mr Pallas’ minor stepsons, with whom he shares close relationships, for the original decision to be revoked “to allow them to continue having a direct and personal relationship with their stepfather and for Mr Pallas to continue providing them with emotional, financial and practical support and care.”

30    Though Mr Pallas did not provide full details about his grandchildren, the Minister at [21] accepted that Mr Pallas has minor grandchildren. At [22] the Minister found that it would also be in their best interests to revoke the original decision “to facilitate contact … with him”, but not the extent that Mr Pallas would “fill an important developmental need that is not already met by their parents.”

Strength, nature and duration of ties

31    At [24] the Minister reflected on Mr Pallas’s circumstances – that he arrived in Australia as a young child, has resided in Australia for over 40 years and has not left Australia during this time – and took the view that “the Australian community may afford him a higher tolerance for criminal conduct” for these considerations.

32    At [25]-[30] the Minister noted Mr Pallas’ familial and social ties to Australia, the letters of support from his family, the care and assistance he used to provide to his mother, his educational achievements, contribution to Australian businesses and voluntary contributions to Australian charities.

33    At [31] the Minister found that, overall, Mr Pallas has “strong family and social ties to Australia”, that he “has made some positive contribution to the Australian community through his past employment and contributions to voluntary organisations” and that he took these findings into account in coming to his decision.

Extent of impediments if removed

34    The Minister at [32]-[35] considered the hindrances Mr Pallas might face in establishing a new life and maintaining a basic standard of living if he were to be removed from Australia to France, his country of citizenship. The Minister accepted that it “would make it harder” for Mr Pallas to settle in France with the absence of his family and the language and cultural barriers he would experience, having not lived in France since he was young.

35    The Minister also noted Mr Pallas is approximately 55 years of age and suffers from a physical ailment, but observed that Mr Pallas would be eligible for medical treatment, accommodation and financial assistance as a citizen of France.

Protecting the Australian community and risk of reoffending

36    At [36] to [57] the Minister had regard to the need to protect the Australian community from harm, and considered the risk and likelihood of Mr Pallas reoffending. The Minister discussed the nature of Mr Pallas’ past offending, taking the view that “violent offences are very serious” (at [37]) and noted Mr Pallas had been convicted of such offences:

38.     On 5 August 1999 Mr PALLAS was convicted of attempted escape by person in lawful custody and sentenced to six months imprisonment. This matter related to offences of which he was convicted on 20 March 2000 in the Supreme Court of Queensland: unlawful wounding for which he was sentenced to four years imprisonment, and wounding with intent to resist lawful detention for which he was sentenced to 10 years imprisonment, concurrent. On the same day Mr PALLAS was also convicted and sentenced for a number of offences committed between 14 July 1998 and 21 February 1999. These were five counts of stealing, one of entering a vehicle with intent, two counts of wilful damage, two counts of housebreaking, one of entering premises with intent, one of unlawful use of a motor vehicle with a circumstance of aggravation, four counts of breaking and entering premises and stealing and one of unlawful use of a motor vehicle. These convictions incurred terms of imprisonment of between six months and three years, with an effective sentence of three years imprisonment. This was made cumulative upon the 10 year term for the violent offences, resulting in an effective term of 13 years imprisonment.

39.    The offences of violence and attempted escape were committed on 21 February 1999 against an unarmed police officer who was a member of a team investigating stolen property traced to Mr PALLAS’s home. Mr PALLAS was found on the premises and told to get dressed, but managed to arm himself with an automatic pistol and ran away. The officer gave chase and tackled Mr PALLAS, who then spun around and pointed the pistol at the police officer, telling him to ‘get down on your knees, cunt’. There was a struggle, the gun discharged and the bullet entered the police officer’s upper right leg, passing through the knee area into his calf. The struggle continued in a creek, during which the gun discharged twice more without hitting anyone. Mr PALLAS forced the police officer’s head under water, before the officer managed to wrestle the gun away and attempted to fire it, but it did not discharge. Mr PALLAS then attacked the police officer with a piece of wood or a rock, striking him several times on the head, then struck the victim several more times around the head with the pistol and escaped, leaving the police officer wounded and bleeding in the creek. The other offences involved the stealing of property valued at over $1,000,000 in total, including a substantial quantity of explosives ‘presumably for use by the applicant in his criminal activities’.

40.    I regard these as very serious examples of violent offending. Not only was a firearm used to threaten the victim, but it was discharged and inflicted an injury on a police officer in the course of his duties. Furthermore Mr PALLAS struck the victim to the head a number of times and tried to drown him. Even more seriously, the victim was a police officer, who was particularly vulnerable to violence because of the type of work he must do, and Mr PALLAS’s assaults thus represented a challenge to the law enforcement system.

41.    I note that Mr PALLAS does not have any other very serious violent offending in his criminal history, though he does have multiple instances of weapons possession. The most common type of offending in his history is dishonesty offending, which features from his first recorded offence through to his most recent convictions.

42.    On 31 May 2016 Mr PALLAS was convicted in the Magistrates Court of Queensland of the following offences (committed between 2012 and 2014), for which he was sentenced as shown:

•    Receiving tainted property (two counts) – three years imprisonment

•    Possess tainted property (two counts) – 18 months imprisonment

•    Possession of implements that had been used in relation to particular offences – one year imprisonment

•    Authority required to possess explosives – six months imprisonment

•    Receiving tainted property (nine counts) – two years and six months imprisonment

•    Receiving tainted property (eight counts), unlawful possession of weapons category d/h/r weapon and unlawful possession of weapons – two years imprisonment

•    Breach of bail condition (three counts) and Possessing dangerous drugs – conviction recorded and not further punished

43.    The sentencing remarks of 31 May 2016 state that the offending consisted of a ‘large number of charges’ involving over $40,650 worth of property, which included a brush cutter, excavator, truck-driven slasher, nine rifles and explosive. Mr PALLAS had kept the stolen property and buried it to hide it, but the police found it by chance some years later.

44.    Between 1980 and 2016 Mr PALLAS has been convicted of a large number of offences of dishonesty, particularly in the nature of theft, burglary and receiving. I regard these dishonesty offences as serious, as the cumulative value of property stolen is considerable, as shown by the total losses involved in the offences considered in 2000 and 2016 alone, apart from all his other offending. In his most recent offending, Mr PALLAS deprived the rightful owners of valuable equipment and went to some lengths to try to prevent the police finding this property.

45.    Mr PALLAS also has a record of repeated drug offences and driving offences.

46.    I find that the sentences Mr PALLAS received are a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy and I have considered that the court viewed the offending as very serious. Mr PALLAS has received many sentences of imprisonment, with a number of them being for 12 months or more, up to a maximum of 13 years.

(Original formatting.)

37    With respect to the consideration of the protection of the Australian community, the Minister summarised Mr Pallas’ criminal history as being “very serious” in light of the “nature of his violent offending and the volume and cumulative effect of his dishonesty offending” (at [47]).

38    In assessing whether Mr Pallas poses a risk to the Australian community through reoffending, the Minister considered any mitigating or causal factors that weighed in Mr Pallas’ favour, including the steps Mr Pallas took to reform and address his behaviour, his overall conduct in custodial and non-custodial environments, Mr Pallas’ own insight into his offending, his remorse, his participation in rehabilitation programs, employment history, involvement with volunteer organisations and his family support. In doing so, the Minister noted, in summary, that Mr Pallas:

    completed a number of training and educational course (at [49]-[50]);

    considered himself to have matured and be rehabilitated since his last period in custody, and has not tested positive for drugs nor committed any violations since June 2016 (at [51]); and

    was compliant and well-mannered in custody, and held a position as a Peer Support Worker (at [51]).

39    The Minister, however, contrasted the encouraging characteristics of Mr Pallas’ recent conduct with the contents of a report prepared by the Queensland Department of Corrective Services in relation to a number of punishable incidents Mr Pallas was involved in whilst imprisoned between July 2001 and June 2016 (at [52]):

… These included substance - prisoner possession, drugs - positive confirmatory test result/fail to provide, disobeys a lawful direction of a corrective services officer, uses indecent, insulting, obscene, threatening etc language, possesses or conceals something without proper approval, acts contrary to the security or good order of the facility, substance - non-prisoner - supply/possession, suspension - unacceptable risk of committing further offence, safety and security incident and prohibited article - smoking product or smokeless tobacco. Mr PALLAS recorded four positive urine test results between February 2010 and January 2016 …

(Original formatting.)

40    Despite Mr Pallas’ recent drug test results and positive behaviour records, the Minister also observed that:

    he retained doubts as to Mr Pallas’ rehabilitation: particularly that his ability to refrain from using drugs has not been demonstrated in unsupervised community environments (at [52]);

    Mr Pallas committed many of the offences for which he was most recently convicted whilst on bail and on parole (at [53]);

    Mr Pallas’ explanation for his most recent convictions did not reduce the seriousness of the offences and were inconsistence with the sentencing remarks which suggested “he still lacks some insight into his offending” (at [54]).

41    The Minister found at [56]-[57] that notwithstanding the possibility that the likelihood of Mr Pallas’ reoffending may have “reduced somewhat” after undertaking rehabilitative training, the nature of his offending was substantial, particularly in light of his offences involving dishonesty and the “very violent act of wounding a police officer in the course of his duty and resisting arrest”. The Minister took the view that should Mr Pallas reoffend, it would likely cause psychological, physical and financial harm to the Australian community which, overall, ought to be considered serious.

Minister’s conclusion

42    In reaching his conclusion, at [61]-[62] the Minister considered the factors that weighed in Mr Pallas’ favour for revoking the original decision:

    as a primary consideration, the best interests of Mr Pallas’ children, step-children and grandchildren;

    as additional considerations, the effect the decision would have on Mr Pallas’ other family members; and

    the positive contributions Mr Pallas made to the Australian community through his employment.

43    However, at [63]-[66] the Minister gave significant countervailing weight to the “very serious nature” of the crimes Mr Pallas committed which involved violence, again noting in particular the offence against the police officer. The Minister found that even if a higher level of tolerance was applied in recognition of Mr Pallas’ 40 years of local residency, Mr Pallas continues to pose an unacceptable risk to the Australian community and the need to protect the Australian community …

… outweighed the best interests of his son, minor step sons and grandchildren, as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds, employment, and the hardship Mr PALLAS, his family and social networks will endure in the event the original decision is not revoked.

44    The Minister was not satisfied there was any other reason for the purpose of s 501CA(4)(b)(ii) of the Act why the original decision ought to be revoked; therefore the power revocation power provided in s 501CA(4) was not enlivened and Mr Pallas’ visa remained cancelled under s 501(3A).

Application for review

45    Through his application filed at the Federal Court on 13 March 2018 and amended on 12 June 2018, Mr Pallas seeks the following relief:

1.    Reconsider the Appellants Application for revocation according to law, 2 February 2017

2.    Certiorari to quash the decision made on 7 February 2018 by the Responded.

3.    Such Further Orders at the Court Consider Appropriate.

(Errors in original.)

46    Mr Pallas abandoned his first and second grounds of review in his amended application and advanced only the following three grounds:

3.    The Minister’s decision was legally unreasonable in that:

a.    He decided that the Applicant represented an unacceptable risk of harm to the Australian community, and therefore not to revoke the cancellation of the Applicant’s visa, on the basis that the Australian community could be exposed to great harm should the Applicant reoffend in a similar fashion and that he could not rule out the possibility of further offending by the Applicant;

b.    In coming to this conclusion, he placed significant weight on offences of violence occurring some 19 years ago (1999);

c.    He gave no consideration to the fact that these offences of violence were isolated and historical in nature;

d.    As such, he has illogically, unreasonably or capriciously given undue weight to the ‘possibility’ of future criminal offending over the detriment his family caused by his deportation (particularly his younger minor children); and

e.    In these circumstances, his decision was clearly illogical, unjust, arbitrary and/or capricious.

4.    The Minister’s decision was legally unreasonably as he failed to apply his mind to, or give any weight to, the applicant’s current age, good behaviour whilst recently incarcerated and the lack of any positive drug tests since 2016.

5.    The Minister in making his decision did not comply with rules of natural justice/procedural fairness in that whilst:

a.    the decision outlines in detail the Applicant’s personal circumstances; and

b.    and finds the interests of his minor children justify the revoking of the order;

c.    it does not explain the process of reasoning as to why the interests of the minor children are outweighed by the ‘possibility’ of future offending

d.    it is not evident from the decision that the Minister has done any more than ‘pay lip service’ to these considerations.

Application for adjournment

47    By way of order on 11 April 2018, I listed this matter for final hearing on 20 June 2018. However a week before the scheduled hearing on 12 June 2018, Mr Pallas filed an affidavit in which he, inter alia,:

    explained he sought “an extension of time” (I note that a Form 67: Application for extension of time was attached to the affidavit, which in the circumstances of this proceeding I treated as a request for an adjournment);

    claimed he had been “beaten in the Christmas Island Detention Centre” on 19 May 2018 and was “flown to the Royal Perth Hospital” where he remained in a neck brace before being discharged on 24 May 2018; and

    described how he was then transferred to the Perth Immigration Detention Centre and was unable to access his personal belongings until they arrived at the new facility.

48    Due to these challenging circumstances, Mr Pallas deposed that he had been unable to open his email account to view the legal documents necessary to proceed with this case.

49    With both the overarching purpose (see s 37M of the Federal Court of Australia Act 1976 (Cth) and [7] of Central Practice Note: National Court Framework and Case Management (CPN-1) issued by Allsop CJ on 25 October 2016) and the paramount interest of justice in mind, I ordered on 15 June 2018 that the hearing originally scheduled for 20 June 2018 be vacated and adjourned to a date to be fixed to afford Mr Pallas adequate preparation time. On 17 July 2018, I made subsequent orders allowing for the filing of written submissions by Mr Pallas and the Minister, and fixed the final hearing for 16 August 2018.

Interlocutory application for adjournment and pro bono assistance

50    On 9 August 2018, a week before the rescheduled hearing, Mr Pallas lodged at the Queensland Registry via facsimile an interlocutory application in which he sought the following orders:

1.    I would like to request to the courts to be put on the Lawyers Pro Bono Listing

2.    I request to the court to have my case adjourned for Pro Bono Lawyers

51    No further information was provided with the interlocutory application.

52    The Registry referred the document to my Chambers for consideration. I directed that it was to be rejected for filing at this time because, in circumstances where there was no affidavit or documentation to support the interlocutory application, it would be more appropriate for Mr Pallas to explain his position at the hearing the following week.

53    At the substantive hearing on 16 August 2018, Mr Pallas appeared in person and Ms Forder of Counsel appeared for the first respondent. As a preliminary issue, I brought the parties’ attention to the interlocutory application of 9 August 2018 and noted that parties were not entitled to apply to the Court for referrals for pro bono legal advice: r 4.13 of the Federal Court Rules 2011 (Cth) (Rules).

54    However, in the interest of justice I permitted Mr Pallas the opportunity to explain orally why the merit of his case was such that the Court ought to refer his matter for pro bono legal advice. Mr Pallas explained:

MR PALLAS: I’ve tried – I’ve tried to get legal advice and – and I can’t get no one to take the case on. I’ve rang – I’ve rang lots lawyers. I’ve tried everything I can. I’ve emailed. I’ve tried Legal Aid in Queensland. I’ve tried Legal Aid in Western Australia. No one wants to take it on.

…

MR PALLAS: And Legal Aid in Western Australia told me to ask the judge for pro bono listing.

(Transcript p 2 ll 32-40)

55    I temporarily adjourned the hearing to consider the issue before me. Upon resuming Court I ruled that I was not prepared to make an order pursuant to r 4.12 of the Rules to issue a referral certificate for pro bono assistance because, in the circumstances of Mr Pallas’ case:

    it was too late at this stage of the litigation given that the issue had been raised a week before the substantive hearing, in circumstances where the substantive hearing had already been rescheduled;

    I was not satisfied there was utility in making such a referral;

    Mr Pallas had stated from the Bar Table that he had already spoken to many lawyers without success in obtaining pro bono assistance; and

    there are community legal centres, some which specialise in migration law, that Mr Pallas could have approached for assistance since filing his application.

56    I further observed that it appeared Mr Pallas had already received some legal assistance:

HER HONOUR: … It seems to me that you have had some legal advice in redrafting your application for review because you have new grounds of application; is that so?

MR PALLAS: Yes, your Honour.

HER HONOUR: All right. So you managed to get some legal advice to redraft the grounds of the application.

MR PALLAS: Yes, your Honour.

(Transcript p 3 ln 47 – p 4 ln 9)

57    In relation to Mr Pallas’ request for a further adjournment, I was not persuaded there was any utility in such course of action, and ruled that the hearing would proceed.

Consideration of substantive application

58    As a procedural issue, Ms Forder for the Minister properly brought to my attention that Mr Pallas required leave of the Court to rely on his amended application for judicial review. I granted leave on the basis that, although I had concerns about the merit of the amended grounds of review, I was satisfied the underlying issues were worthy of argument and the Minister was prepared to respond to such grounds at the hearing.

59    Mr Pallas had not filed written submissions to support his application, and I invited Mr Pallas to make oral submissions addressing the new grounds of review in the proceeding. Mr Pallas did not seek to say anything further and agreed to my proposal that it would be helpful to first hear from Minister and then permit Mr Pallas an opportunity to reply.

Grounds 3 and 4: legal unreasonableness

60    The third and fourth grounds of review as pressed by Mr Pallas argued that the Minister’s decision was legally unreasonable. Mr Pallas made no submissions either in writing or orally, stating at the hearing that he lacked understanding of the issues.

61    In Minister for Immigration and Border Protection v Mohammed [2019] FCAFC 49 at [21]-[26], the Full Court of the Federal Court summarised in detail the general principles of legal reasonableness, including Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1, as well as the recent decision of the High Court in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30. It is clear that it is only in limited circumstances that the exercise of a discretionary power could be found to be unreasonable, namely where a conclusion is reached that no reasonable person could ever come to, or where no sensible decision-maker acting with due appreciation of his or her responsibilities would so decide. In particular in Stretton Allsop CJ observed:

11    The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.

12    Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.

13    The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.

(Emphasis added.)

62    In this case it cannot be said that the decision of the Minister to refuse revocation of the original decision fails to disclose an evident and intelligible justification, or was inadequate. The Minister was required to consider whether Mr Pallas passed the character test, or whether there was another reason why the original decision should be revoked. In this case the Minister clearly had regard to:

    The fact that Mr Pallas had come to Australia aged 11 years old and had been in Australia for 44 years since then;

    Mr Pallas’ extensive criminal history as an adult for offences committed between 1980 and 2014, and the multiplicity of his criminal convictions between 1980 and 2016, accumulating to 13 years’ imprisonment out of 19 years, including for weapons offences, dishonesty offences involving stolen property of over $1 million;

    The very serious nature of his offence of violence against a police officer, including use of a weapon, trying to drown the police office, and hitting him in the head;

    His involvement in punishable incidents while in custody between 2001 and 2016, including numerous positive urine tests such that the Minister retained some doubts as to the extent of Mr Pallas’ rehabilitation;

    The Minister’s observation that, although Mr Pallas had not tested positive for drugs in the 18 months before the revocation decision, his ability to refrain from drug use had not been demonstrated in the unsupervised community environment;

    The fact that Mr Pallas had, in the past, continued to commit offences while on bail and on parole;

    Statements of Mr Pallas which suggested he still lacked some insight into his offending, including that his most recent offending was a result of being inadvertently caught up in unlawful activity (which statement was made against the background of Mr Pallas having buried stolen goods, indicating that he knew exactly what he was doing); and

    The Minister’s view that while the likelihood of Mr Pallas reoffending may have reduced somewhat by the rehabilitative training he undertook in prison, and also in view of his apparent good behaviour since 2016, the likelihood of his reoffending remained substantial.

63    Ms Forder submitted at the hearing that Mr Pallas’ allegations as to legal unreasonableness went to the process of the Minister’s reasoning rather than the outcome, and that in fact Mr Pallas simply disagreed with how the Minister assessed those factors (as distinct from how the Minister applied his mind). I agree.

64    Grounds 3 and 4 are not substantiated.

Rules of natural justice and procedural fairness

65    The fifth ground of review argued that the Minister did not comply with the rules of natural justice and procedural fairness when making his decision, particularly with regard to the weight accorded by the Minister to the interests of Mr Pallas’ minor children. In particular Mr Pallas contended that it was not evident from the Minister’s decision that the Minister had paid more than “lip service” to those considerations.

66    I reject this proposition. In his decision the Minister gave detailed consideration to the interests of Mr Pallas’ minor children (and grandchildren) at for example [12], [13]-[22], and [61]. At [65]-[66] the Minister concluded:

65.    I am cognisant that where significant harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr PALLAS than I otherwise would, because he has lived in Australia for over 40 years from the age of 11 years.

66.    In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr PALLAS represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his son, minor step sons and grandchildren, as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds, employment, and the hardship Mr PALLAS, his family and social networks will endure in the event the original decision is not revoked.

67    I am satisfied that the Minister had due regard to the interests of Mr Pallas’ minor children and other family members, and, to the extent required, there was no absence of procedural fairness in the reasoning process of the Minister. Ground 5 is not substantiated.

Conclusion

68    The appropriate order is to dismiss the application with costs.

Associate:

Dated:    16 April 2019