FEDERAL COURT OF AUSTRALIA

Hoang v Minister for Home Affairs [2019] FCA 956

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is dismissed.

2.    The applicant is to pay the respondent’s costs of the application as assessed or agreed.

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

REASONS FOR JUDGMENT

NICHOLAS J:

1    Before me is an application for an extension of time within which to lodge an application for judicial review of a decision of the Minister cancelling the applicant’s Return (Residence) Class BB, (Subclass 155 Five year Resident Return) visa under s 501(2) of the Migration Act 1958 (Cth) (“the Act”) on the basis that the decision was tainted by jurisdictional error. The Minister’s decision was made on 26 February 2018. The applicant was notified of that decision by letter dated 14 March 2018. The application now before me was not filed until 19 December 2018.

2    Section 501(2) of the Act provides that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes that test.

3    The applicant is a citizen of Vietnam. He arrived in Australia in 1993 at the age of 19 and has since that time spent a considerable amount of time either in immigration detention or in prison. He does not dispute that he did not pass the character test. He has an extensive criminal record dating back to October 1995 when he was convicted of a number of serious offences involving robbery with violence in respect of which he was sentenced to a term of imprisonment. Since that time he has been convicted and sentenced for other offences involving the use or supply of drugs. It is apparent from the material included in the application book that the applicant, over a lengthy period of time, committed many of these offences on account of, or for the purpose of financing, his drug addiction.

4    A previous decision to cancel the applicant’s visa was set aside by the Honourable Brian Tamberlin QC sitting as Deputy President of the Administrative Appeals Tribunal (“AAT”) on 23 December 2013. In reaching that decision he was influenced by the degree and duration of the applicant’s ties to Australia and his relationship to his relatives and partner who are also living in Australia.

5    Mr Tamberlin QC’s reasons for decision are referred to in the Minister’s reasons for decision together with some remarks favourable to the applicant made by Judge Dive during the course of a sentencing hearing in the Drug Court of New South Wales on 12 December 2016 in relation to some drug and motor vehicle offences committed by the applicant in 2015.

6    In his reasons for decision the Minister states at para 20:

… Mr HOANG’s criminal history in Australia spans some 21 years from 14 February 1995 to 12 December 2016. He has offended on a habitual basis over that period, and has rarely spent 12 months in the community without further convictions. In addition to the drug supply and robbery offences discussed above, Mr HOANG’s convictions have included drug possession, fraud, theft, and driving offences. While some of these offences may be viewed as less serious when considered individually, given the frequency of his offending over an extensive period of time, I consider the cumulative effect of Mr HOANG’s offending to be serious, taking into account the overall financial and psychological impact on the victims, and the costs borne by the community in terms of law enforcement and criminal justice processes.

7    The Minister also states at para 28:

Taking into account the serious nature of offences involving violence and supplying illicit drugs, the cumulative effect of his repeated offending over a period exceeding 20 years, and the sentences imposed by the courts, including sentences of imprisonment up to four years, I find Mr HOANG’s overall criminal conduct in Australia to be very serious.

8    The Minister’s reasons show that he gave express consideration to various matters relevant to the exercise of his discretion under s 501(2) of the Act including what he referred to as the expectations of the Australian community, the applicant’s criminal history, the applicant’s ties to Australia, the applicant’s prospects of rehabilitation, and the extent of the impediments that the applicant will face if he is removed from Australia to Vietnam.

9    Ultimately, it was not suggested by counsel for the applicant that the Minister failed to take into account any relevant consideration or that he took into account any irrelevant consideration in the course of determining how to exercise his discretion. Rather, it was submitted that the Minister’s decision to cancel the applicant’s visa was, in counsel’s words, “illogical and unfair, and for that reason, there has been jurisdictional error”: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]-[131] per Crennan and Bell JJ.

10    The Minister’s reasons make clear that while the Minister accepted that the applicant’s family and partner would incur hardship if his visa was cancelled, this was not a matter that outweighed the seriousness of the applicant’s offending, the risk to the community should he reoffend, and the expectations of the Australian community. The Minister also had regard to the evidence proffered by the applicant as to his efforts at rehabilitation, including Judge Dive’s sentencing remarks in December 2016 and the AAT’s decision in December 2013. However, having regard to the applicant’s past efforts towards rehabilitation and his history of relapse and recidivism, the Minister was not satisfied that the applicant’s more recent rehabilitative efforts rendered him unlikely to reoffend. It was open to the Minister to have regard to the applicant’s past conduct in assessing whether he would reoffend in the future.

11    The weighing exercise engaged in by the Minister was a matter within the legal constraints that applied to the exercise of the statutory power, and his conclusions were open on the material before him, and for the reasons he gave. The applicant’s arguments are, in substance, directed towards the merits of the Minister’s conclusion, rather than whether it was permissible in a legal sense.

12    In his submissions in support of his client’s application counsel for the applicant did not identify any specific aspect of the Minister’s reasoning process capable of being characterised as irrational, illogical or unreasonable in the relevant sense. The argument as developed by counsel for the applicant involved what were in substance complaints about the weight that the Minister gave to the material before him relevant to the exercise of his discretion.

13    While it is possible that a decision-maker may act illogically or irrationally in the relevant sense in his or her assessment of the weight to be given to relevant material, there is nothing to suggest that the Minister has so acted in his consideration of the applicant’s circumstances.

14    I am satisfied that the proposed application for judicial review of the Minister’s decision for jurisdictional error has no reasonable prospects of success. I propose to dismiss the application for an extension of time on that basis. In those circumstances, it is not necessary for me to consider other arguments relied upon by the applicant directed to the delay that occurred in bringing the application.

15    The applicant must pay the Minister’s costs of the application.

16    Orders accordingly.

Associate:

Dated:    20 June 2019