FEDERAL COURT OF AUSTRALIA

Uasi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1924

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The application for judicial review be dismissed.

3.    The applicant pay the first respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

GLEESON J:

1    The applicant (Mr Uasi) has applied to this Court for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 2 April 2019. By its decision, the Tribunal affirmed a decision of a delegate of the first respondent (delegate) not to revoke the cancellation of the applicant’s class BB (subclass 155) Five Year Resident Return visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (Act).

2    The Court has jurisdiction in relation to the Tribunal’s decision by s 476A(1)(b) of the Act.

Background

3    On 13 April 2016, Mr Uasi was convicted in the Supreme Court of the Northern Territory of supplying a commercial quantity of kava (kava offence) and sentenced to 4 years’ imprisonment, with a non-parole period of 3 years.

4    On 10 March 2017, Mr Uasi’s visa was cancelled under s 501(3A) of the Act (cancellation decision).

5    After Mr Uasi made representations to the Minister about revoking the cancellation decision, on 8 January 2019, the delegate decided not to revoke that decision. On 14 January 2019, Mr Uasi applied to the Tribunal for merits review of the delegate’s decision.

Tribunal decision

6    The Tribunal found that Mr Uasi does not pass the “character test” in s 501(6) of the Act.

7    The Tribunal noted that, by s 499(2A) of the Act, it was bound to comply with “Direction No 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction).

8    In assessing the nature and seriousness of the Mr Uasi’s conduct to date, the Tribunal made findings that included:

(1)    Mr Uasi’s offending was “undeniably frequent” and “escalating in seriousness”;

(2)    Mr Uasi’s offending was “very serious”;

(3)    Mr Uasi’s offending was “broad in scope”, “not respectful of the harm that his very serious offending relating to the supply of commercial quantities of kava could have caused both to remote Aboriginal communities and the broader Australian community” and “demonstrates that he is not respectful of the lawful authority governing the Australian community to which he seeks to be readmitted”; and

(4)    “the nature and seriousness of the [Mr Uasi]’s conduct to date is of a very serious nature”.

Risk of re-offending

9    Concerning the risks were Mr Uasi to be returned to the Australian community, the Tribunal made the following findings:

58.    There is little or no evidence before the Tribunal to convincingly demonstrate that [Mr Uasi] has learned to moderate his conduct such as to respect the lawful authority governing the community to which he seeks re-admission. Likewise, there is little or no evidence to convincingly demonstrate that, if confronted with a physical or other confrontation that would require him to “walk away”, [Mr Uasi] would do so. Finally, the Tribunal cannot be convinced that, faced with similar financial stricture to that which he experienced after the forced closure of his meat processing business in 2012 he would not again resort to the lure of “easy money” available in unlawful activity involving commercial supply and distribution of illicit substances.

59.    Were he to be returned to the Australian community, I am of the view that [Mr Uasi] will most likely return to his offending ways and, if so, such offending would, at the very least, be of a similar nature and severity as the offending which brought him before lawful authority between 2005 and 2016. Although perhaps a presumptive stretch, given the escalating nature of his offending, the nature of harm arising therefrom could well be very serious.

60.     I have difficulty in accepting any submission to the contrary. In this regard, I am mindful of the principle that the community’s tolerance for any risk of re-offending becomes lower as the seriousness of potential harm increases. Were [Mr Uasi]to re-offend, the resulting harm would be very serious and it could conceivably involve the occasioning of very serious and even catastrophic harm to members of, in particular, the Australian Indigenous community and the Australian community more broadly.

10    Concerning the likelihood of Mr Uasi re-offending, the Tribunal considered that the assessment must commence with an examination of Mr Uasi’s insight into what he has done wrong in the past. The Tribunal expressed the view that:

62.    [T]he most significant demonstrator of a propensity to re-offend is his blatant disregard of the very favourable and almost wholly suspended sentence imposed on him for the first episode of kava-related offending in 2014. … This sentence had no deterrent effect on [Mr Uasi] from re-engaging in the unlawful kava trade in the Northern Territory, because less than 12 months later he re-offended and did so in a very significant way.

11    The Tribunal considered that Mr Uasi had demonstrated a lack of insight into his offending by his statements in a clinical assessment interview, including that he “does not see Kava as a drug, believes there are no victims to his offending behaviour and blames his mate for ‘dobbing him in’”, and his view that kava is “an almost harmless vice, deserving of a change in government policy such that it be decriminalised in the Northern Territory”.

12    The Tribunal found that there were four “key characteristics” of Mr Uasi’s offending history that pointed towards the “convincing likelihood of his re-offending”, namely:

(1)    The frequency of his offending since arriving in Australia in 2004.

(2)    His “consistent refusal to accept and respect lawful authority and to otherwise respect certain privileges that became available to him as a member of” the Australian community.

(3)    Mr Uasi “talks down the severity of his offending” in the unlawful supply and commercial sale of kava in the Northern Territory.

(4)    There is next to no expert or other evidence that the factors giving rise to his propensity to offend have either been conclusively diagnosed or are otherwise the subject of effective remedial treatment by suitably qualified medical professionals. Further, Mr Uasi has “next to no insight into the nature of the causative factors behind his offending or the nature and potentially catastrophic harm resulting from that offending”.

13    On this issue, the Tribunal concluded:

72.    To summarise, my finding is that [Mr Uasi]’s demonstrated lack of insight into his offending, coupled with the frequency of his offending, points to a convincing likelihood that he will engage in further very serious conduct if returned to the Australian community. This is despite the best efforts of sentencing courts in their respective efforts to deter him from further unlawful conduct. Were he to re-offend, particularly in the realm of the unlawful possession and commercial supply of kava, the harm that would be occasioned to others would be both physically and psychologically substantial, very serious and, quite conceivably, catastrophic. In consideration of all of the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs heavily in favour of non-revocation.

Best interests of minor children in Australia

14    The Tribunal addressed this issue at paras 73 to 98 of its decision record. Among other things, the Tribunal found that:

(1)    Mr Uasi’s main purpose in agitating the application for revocation of the cancellation decision was to try and remain in Australia to provide for his family. Mr Uasi made it clear that his wife, his two biological children and his stepdaughter will experience significant financial difficulty were he to be removed from their lives as the principal breadwinner.

(2)    It is important for the children to maintain a strong link with their father’s culture and for them both to have a significant father figure in their lives until they both attain the age of 18 years.

(3)    The nature and duration of the relationship between Mr Uasi and his two biological infant children is a factor militating in favour of restoration of Mr Uasi’s visa rights being in the best interests of those two infant children.

(4)    The extent to which Mr Uasi is likely to play a parental role in the lives of his two infant children in the future is a matter which weighed in favour of restoration of Mr Uasi’s migration status being in the best interests of those children.

(5)    Mr Uasi had played “the most active and extensive role he can play as a father in the lives of the two infant children during his time in both criminal custody and immigration detention” and therefore, the likely effect that any separation of the two infant children from Mr Uasi was a matter that weighs in favour of restoration of his migration status being in the best interests of those children.

15    On this issue, the Tribunal concluded:

98.    Having regard to:

(a)    the [Mr Uasi]’s evidence about wanting to re-establish his quite active and involved parental role in the lives of his two infant children;

(b)    the consistent and extensive contact (both telephonic/electronic and face-to-face) maintained by [Mr Uasi] with his two infant children during his time in both criminal custody and immigration detention;

(c)    the risk of a shortfall in the care of the two infant children were their mother compelled to act as the sole breadwinner, having particular regard to the advanced age of her parents and the prospects of their future inability to maintain a supportive role for the care of the children;

(d)    the moderate level of weight to be taken from factors (a), (b), (d), and (e) of paragraph 13.2(4) of the Direction;

(e)    the Respondent’s concession that limited weight should be allocated to Primary Consideration B in favour of revocation as it is in the children’s best interests for the cancellation of [Mr Uasi]’s visa to be revoked;

I am of the view that the best interests of [Mr Uasi]’s two infant children in Australia, aged six and four respectively, weigh moderately in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B does not outweigh the heavy level of weight I have attributed to Primary Consideration A.

16    At para 116 of its decision record, the Tribunal found that the community’s expectations in respect of Mr Uasi would endorse a finding of non-revocation of the mandatory cancellation of his visa and, accordingly, that this consideration weighed heavily in favour of non-revocation.

17    At para 141 of its decision record, the Tribunal concluded that a holistic view of the considerations set out in the Direction favoured non-revocation of the cancellation of Mr Uasi’s visa.

Application to this Court

18    Mr Uasi’s amended application sets out two grounds of review.

Ground 1: risk of reoffending

Mr Uasi’s submissions

19    Mr Uasi contends that the Tribunal failed to discharge its statutory task and/or its decision was legally unreasonable in the following two respects:

(1)    The Tribunal erred in finding that it could not rule out the possibility of further offending by Mr Uasi, because this was “a logical impossibility”.

(2)    The Tribunal reached its conclusion on reoffending notwithstanding findings made by it that Mr Uasi’s rehabilitation to date was “impressive”, which was a finding supported by the weight of the evidence before the Tribunal.

20    In his application, Mr Uasi referred to Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620 (Ogbonna). In that case, the Court found (at [47]-[49]) that the Minister’s state of satisfaction as to the risk of reoffending was not reasonably formed where it was “not supported by probative material and the conclusion of a likelihood of reoffending was logically disconnected from the favourable findings as to why the possibility or risk of recidivism, perhaps present in every case, was low”.

21    Mr Uasi argued that he has not been given an opportunity to return to the community to demonstrate that he will not re-offend. He also said that he had been a “role model prisoner”, who was placed in positions of trust and had motivated others to do good things.

Consideration

22    As the Minister noted, the ground of review does not accurately record the Tribunal’s findings.

23    In particular, the Tribunal did not find that it “could not rule out the possibility of further offending by the applicant”. To the contrary, and unlike the situation in Ogbonna, the Tribunal found that there was a “convincing likelihood” of re-offending.

24    Further, the Tribunal did not find that Mr Uasi’s rehabilitation to date was “impressive”. Rather, it found that Mr Uasi had “demonstrated [a] lack of insight”. The Tribunal’s findings that a character reference given for Mr Uasi was impressive and that he had completed an impressive number of courses while in criminal custody do not amount to a finding of impressive rehabilitation.

25    The Tribunal was entitled to speculate as to what might happen in the future by reference to evidence of what had occurred in the past, although the hypotheses underlying the decision must bear some rational connection to the evidentiary materials upon which the Tribunal relied: Ogbonna at [46]; Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 255 FCR 81 at [36].

26    Mr Uasi’s criminal history provided a rational basis for the Tribunal’s finding as to the likelihood of re-offending: Moana v Minister for Immigration and Border Protection [2014] FCA 1084 at [18] and [20]; Vaofusi v Minister for Immigration and Border Protection [2018] FCA 1939 at [12]. Similarly, Mr Uasi’s attitude towards his offending also provided a rational basis for the Tribunal to conclude that he was likely to re-offend.

27    Accordingly, I am not satisfied that ground 1 discloses any legal error on the part of the Tribunal.

Ground 2: best interests of minor children

28    Mr Uasi’s second ground of review contends that the Tribunal failed to make a genuine finding as to what the best interests of his three children required. Two of the three children were and are minors.

29    Mr Uasi relied on the following matters in support of this ground:

(1)    He continues to be supported by his partner; they wish to expand their family in the future; his partner and his children depend on him financially and emotionally; and in his absence if deported they are likely to face hardship.

(2)    His partner and the children would not relocate to Tonga or Fiji.

Mr Uasi’s submissions

30    Mr Uasi submitted that the Tribunal “gave less weight to this consideration” despite the facts found, which included that that the best interests of the two minor children favoured revoking the visa cancellation.

31    Mr Uasi submitted that the children would be homeless if he is removed from Australia because their mother cannot pay for their rents and provide for them. He also made detailed submissions, both orally and in writing, about the extent of his care and support for the children, why it is in the best interests for the children that his visa cancellation be revoked and why their interests should outweigh other considerations.

32    Mr Uasi relied on the decision in Nweke v Minister for Immigration and Citizenship [2012] FCA 266 (Nweke), in which the Court set aside the Minister’s decision, concluding that the Minister did not in fact treat the best interests of the applicant’s children in that case as a primary consideration in deciding whether or not to cancel the applicant’s visa.

Consideration

33    As appears from its reasons above, the Tribunal made detailed findings concerning the best interests of the two minor children, including findings which accepted Mr Uasi’s claims concerning the support he provides to the family and which acknowledged that the children would face hardship if he was deported.

34    As to the third child, her interests were not a primary consideration because she was no longer a minor. Even so, the Tribunal acknowledged that Mr Uasi had been her primary father figure since she was five years old.

35    The Minister conceded that it was in the best interests of the children for the cancellation of Mr Uasi’s visa to be revoked, and the Tribunal recorded this concession at para 98 of its decision record. Accordingly, the case is quite unlike Nweke, where the Court found that the Minister addressed the best interests of the children at the level of mere hypothesis, making such limited findings as that the children’s interests “may be significantly affected by cancellation of [the applicant’s] visa”.

36    In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Mortimer J set out the requirements for a decision-maker applying cl 13.2 of Direction 65 (which is in identical terms to the relevant part of the Direction). At [34] her Honour said:

The structure of para 13.2 is that para 13.2(1) imposes a positive obligation on decision­makers to make a determination about whether revocation is, or is not, in the best interests of the child. The use of the phrase “make a determination” is unequivocal. It requires a positive finding or conclusion to be made. So much is also apparent from the use of the phrase “whether revocation is, or is not...”. The decision-maker (here, the Tribunal) must reach a conclusion, one way or the other, on this matter. Combined with the Tribunal’s obligation to provide reasons for its decision, including its material findings of fact and the evidence or material on which those findings were based (see s 430 of the Act), it is clear that the Tribunal’s task will involve it examining the evidence and material before it in order to make this determination, and then reasoning out, in a written form, what its findings and conclusions are on this determination.

37    As appears from the Tribunal’s reasons above, the Tribunal engaged in a process of considering Mr Uasi’s claims and evidence and made a “positive finding” of the required kind at para 98 of the Tribunal’s decision record.

38    Accordingly, I am also not satisfied that ground 2 discloses any legal error on the part of the Tribunal.

Conclusion

39    The application must be dismissed. Costs should follow the event.

Associate:

Dated:    22 November 2019