FEDERAL COURT OF AUSTRALIA

Vaokakala v Minister for Home Affairs [2019] FCA 1979

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs of the application.

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

REASONS FOR JUDGMENT

BURLEY J:

1.    INTRODUCTION

1    The applicant is a citizen of New Zealand aged 39. He first arrived in Australia in 1979 when he was approximately 1 month old, and has lived here since then. He has an extensive criminal history, and committed his first criminal offence at the age of 17. He has committed drug supply, kidnapping, and driving offences, among others.

2    On 12 April 2017, the applicant’s visa was cancelled by a delegate of the first respondent, the Minister for Home Affairs, pursuant to s 501(3A) of the Migration Act 1958 (Cth). The applicant was serving a sentence of imprisonment at the time. The applicant was invited to make representations to the Minister contending for the revocation of the decision, which he did in accordance with s 501CA(4)(a) of the Act. On 12 September 2018, a delegate of the Minister decided not to revoke the decision. On 13 September 2018, the applicant applied to the Administrative Appeals Tribunal for a merits review of the decision, and on 30 November 2018 the Tribunal affirmed the decision of the delegate.

3    The applicant then filed an application under s 476A of the Act in this Court, seeking orders that the decision of the Tribunal be set aside. The application, amended as of 6 May 2019, contains the following four grounds of review:

1.    The Tribunal failed to consider probative evidence readily available to it before making its decision.

Particulars

(i)    In its reasons for decision, the Tribunal stated that:

a.    there was no evidence as to the nature and strength of the applicant's relationships with his family members (at [53]): and

b.    the applicant had not filed any character references in support from community members (at [55]).

(ii)    The Tribunal had available before it documentary material about the nature and strength of the applicant's relationships with his family members and character references from community members.

2.    The Tribunal made a critical finding without logically probative evidence.

Particulars

(i)    In its reasons for decision at [58], the Tribunal stated that in New Zealand the applicant would have access to a social welfare and a public health system comparable to those in Australia which would be available to him if he were to suffer any financial or medical hardship in New Zealand.

(ii)    There was no evidentiary material before the Tribunal which logically supported this conclusion.

3.    The Tribunal misapplied or misconstrued "Direction No 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA".

Particulars

(i)    In its reasons for decision at [52], the Tribunal stated that:

a.    the applicant had arrived in Australia shortly after he was born: and

b.    the Tribunal gave less weight to the duration of the applicant's residence in Australia because he had started criminal offending at age 18.

(ii)    Paragraph 14.2(1)(a)(i) of Direction No 65 instead required the Tribunal to give less weight to the duration of the applicant's residence in Australia if he began offending "soon" after arriving in Australia.

4.    The Tribunal failed to consider relevant evidence available to it misconstrued or misapplied Direction No 65 or otherwise committed jurisdictional error.

Particulars

(i)    Paragraph 14(1) of Direction No 65 required the tribunal to consider other considerations in revocation requests including victim impacts, Australian business interest impacts and non-refoulement obligations "where relevant".

   (ii)    The Tribunal had evidence before it about these other considerations.

(iii)    It ought to be inferred from the absence of any relevant findings or reasons in its decision that the tribunal failed to take into account or properly consider these other considerations.

4    The applicant was represented in this Court by Dr S Tully of counsel (appearing pro bono), who filed written submissions in advance of the hearing. The Minister was represented by Ms A Douglas-Baker of counsel who also filed written submissions in advance of the hearing.

5    For the reasons set out below the application must be dismissed.

2.    THE DECISION OF THE TRIBUNAL

6    The Tribunal first set out the basic details of the applicant’s application and the relevant legislative context, before confirming that the applicant failed the character test due to having a substantial criminal record pursuant to s 501(7)(c) of the Act. It then proceeded to consider the relevant framework provided by Ministerial Direction 65, to which decision-makers must adhere to in exercising their discretion: s 499 of the Act.

7    The Tribunal referred to Primary Consideration A in Direction 65, which concerns the protection of the Australian community from criminal or other serious conduct. It noted that the applicant had an extensive history of criminal offending over a lengthy period, dating back to 1998. It examined in more detail multiple offences committed during February 2009, including an offence of taking/detaining a person with intent to gain an advantage, and an offence of aggravated break and enter and inflict grievous bodily harm, which involved the applicant standing guard outside a room whilst two accomplices menaced a person inside. The Tribunal noted that this was a “serious violent event” and the “applicant’s criminal conduct is viewed very seriously”. The Tribunal then examined the applicant’s conviction on 22 May 2012 for another offence of taking/detaining a person with intent to gain an advantage that the applicant committed whilst on parole, which involved the threatening of a man in a motel room due to a dispute over missing drugs. The Tribunal summarised a string of driving offences the applicant committed during December 2016 and January 2017 that led to the applicant’s most recent sentence of imprisonment, and noted that the seriousness of the applicant’s criminal conduct was reflected in the sentences of imprisonment that had been imposed on him throughout the years.

8    The Tribunal found that it was significant that the applicant had been given two warning letters following the commission of offences, which noted that his “visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future”, and yet he continued to re-offend. The Tribunal found at [29] that:

Having regard to the circumstances of the applicant’s criminal behaviour and the nature of his offences, I find that the applicant’s conduct is to be viewed very seriously. The applicant’s history of criminally offending spans nearly 20 years and appears to be well entrenched. He has had previous warnings about the potential impact to his visa status and had numerous periods of incarceration; neither had any impact on his offending behaviour. The significant extent of the applicant’s criminal offending over many years and his repeated disregard for the law is alarming. I find that the nature and seriousness of the applicant’s criminal conduct should be viewed very seriously.

9    In relation to the risk to the Australian community should the applicant commit further offences or engage in other serious conduct, the Tribunal noted that the applicant’s offending was often drug-related, including his kidnapping and break and enter offences. The Tribunal noted the applicant’s extensive history of drug and alcohol dependence, as well as problematic gambling. It went on to examine the evidence regarding treatment the applicant had received for his drug and alcohol use, and stated it “was not satisfied that the applicant has adequately addressed his substance abuse issues”.

10    The Tribunal then addressed the applicant’s prospects of rehabilitation and chances of re-offending. After considering the evidence, the Tribunal took a “dim view of the applicant’s prospects of rehabilitation”, due to: his repeated offending; his offences committed whilst on a bond or parole; and the prior warnings issued to him regarding the potential cancellation of his visa. It found that the nature of the harm to victims that would occur if the applicant re-offended was serious and could include physical, psychological, and financial harm to other citizens and the community as a whole.

11    Overall, the Tribunal found at [42] in relation to Primary Consideration A that:

…there remains a real risk of the applicant reoffending I am not convinced that any risk, let alone a medium risk, is an acceptable risk, particularly in regards to criminal conduct involving aggravated kidnapping, aggravated break and enter and supplying prohibited drugs on an ongoing basis. As such this primary consideration weighs heavily against a decision to restore the applicant's visa status.

12    After finding that Primary Consideration B, being the best interests of minor children, did not apply to the applicant, the Tribunal turned to Primary Consideration C, the expectations of the Australian Community. It noted cl 6.3(5) of Direction 65 that states “…Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life”, and acknowledged the applicant had resided in Australia since shortly after he was born. It found that the nature of the applicant’s criminal conduct was such that it was “satisfied that the community would now expect that the applicant would be denied the opportunity to remain in Australia”. It stated that the community would now expect that Australia should not bear the cost of the resources expended in the criminal justice system due to the applicant’s offending, and despite the applicant’s residence in Australia from a young age, “the tolerance of the Australian community has surely run out”.

13    The Tribunal then turned to the Other Relevant Considerations aspect of Direction 65. Paragraph 14 of Direction 65 reads:

14.    Other considerations - revocation requests

(1)    In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

a)    International non-refoulement obligations;

b)    Strength, nature and duration of ties;

c)    Impact on Australian business interests;

d)    Impact on victims;

e)    Extent of impediments if removed.

14    The Tribunal went on to address how b) and e) related to the applicant.

15    The following paragraphs of the Tribunal’s reasons are of particular relevance to the current application:

Strength, nature and duration of ties to Australia

[51]    Paragraph 14.2(1) of the Direction sets out two main factors to be considered in assessing the strength, nature and duration of a person’s ties to Australia:

a.    How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i.    less weight should be given where the person began offending soon after arriving in Australia; and

ii.    more weight should be given to time the non-citizen has spent contributing positively to the Australian community; and

b.    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents, and/or persons who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

[52]     The applicant has resided in Australia for the majority of his life; having arrived in Australia shortly after he was born. However, less weight is given to this consideration because the applicant started criminally offending at the age of 18 and has continued to commit criminal offences since that time; a period spanning nearly 20 years. He has been criminally offending in Australia for most of his adult life.

[53]    The applicant says that he is close to his mother and siblings, who all reside in Australia, however there is no evidence as to the nature and strength of his relationships with his family members and there have been no statements in support of the applicant provided by any members of his family. A number of the applicant’s family members were present at the hearing to support him and it is reasonable to assume that they will be impacted in some way if the applicant is deported. In any event, the applicant will be able to maintain contact with his Australian based family were he to be removed to New Zealand.

[54]    In regards to specific impact, the applicant states in his Personal Circumstances Form dated 22 March 2018, that his parents are disabled and that he was applying to be their full-time carer before he was taken into custody. Notwithstanding this, there is evidence that this carer role is being undertaken by the applicant’s sister and I also note that the applicant has been incarcerated for many years and most recently since February 2017 prior to immigration detention. During this time his family has not been dependent on him financially or otherwise. This was accepted by the applicant at hearing.

[55]    The applicant’s employment history demonstrates limited contribution to the Australian community. He has not filed any character references in support from community members.

[56]     While the applicant’s strength, nature and duration of ties to Australia may slightly favour the applicant, this consideration is significantly outweighed by the relevant primary considerations of the risk to the Australian community and the community’s expectations.

16    The Tribunal then turned to consider the extent of impediments that the applicant would face if removed to New Zealand. It noted that the applicant had concerns about returning to New Zealand because he claims that he has no family or social support in New Zealand and found:

[58]    There is no substantive language or cultural barrier to the applicant returning to New Zealand. As a New Zealand citizen he would have access to a social welfare and a public health system, comparable to those of Australia, which would be available to him if he were to suffer any financial or medical hardship in New Zealand. I accept that the applicant will face a period of adjustment in New Zealand and will face certain impediments. The challenges likely faced by the applicant upon his arrival in New Zealand are not insurmountable.

[59]    Overall, this factor favours revocation of the cancellation decision; however it is significantly outweighed by the primary considerations of the risk to the Australian community and the Australian community’s expectations.

17    After its consideration of the Other Relevant Considerations, the Tribunal concluded:

[60]    …the two primary considerations of the protection of the Australian community and the expectations of the Australian community, weigh heavily against revocation of the mandatory cancellation of the applicant’s visa. Those Principles and considerations significantly outweigh the other considerations in favour of revocation.

3.    CONSIDERATION OF THE APPLICATION

3.1    Ground 1: failure to consider probative evidence

18    In ground 1 the applicant contends first, that the Tribunal failed to consider evidence that supported his claim as to the nature and strength of his relationships with his family members (at [53]) and secondly that it failed to consider character references from community members in reaching its finding at [55]. The applicant submits that the alleged failure to consider that evidence amounted to a failure on the part of the Tribunal to consider the mandatory relevant consideration found in paragraph 14(1) of Direction 65, or alternatively, amounted to a failure to engage in an active intellectual process in reviewing the material before it, citing Burgess v Minister for Home Affairs [2018] FCA 69; 259 FCR 197 at [81] – [85] (Charlesworth J).

19    The applicant’s case must be considered in light of the way that it was advanced before the Tribunal. In the Personal Circumstances Form upon which he relied, the contention relevant to the strength nature and duration of his ties to Australia (i.e. paragraphs 14(1)(b) and14.2(1) of Direction 65) was directed to the relationship that he had with his parents and his claim that he intended to be their carer once released from detention. He also says that he has a stable home to stay in Australia and that he will have no accommodation and no support from his family if removed from Australia. In a statement submitted to the Department he says that he misses his family and that his parents are sick and that “all I want to do is look after them there [sic] struggling without me as I am struggling without them”. He says that his mother and father miss him which stresses his mother out, and he reiterates that he wishes to focus on both of them.

20    These matters, to which the applicant draws particular attention, demonstrate a claim made by the applicant that he has close ties with his parents and that he wishes to remain in Australia to support them as their carer. They are addressed by the Tribunal in [54] of its reasons. There the Tribunal took into consideration his proposed role as carer. It noted that despite his intentions, there is evidence that the carer role has been undertaken by the applicant’s sister and that the applicant had been incarcerated for many years, and most recently since February 2017, during which time the family has not been dependent on him either financially or otherwise.

21    The Tribunal also assessed the applicant’s claim that he is close to his mother and siblings. In this regard it states at [53] that there is no evidence (beyond that of the applicant) as to the nature and strength of his relationship with his family members and that there have been no statements in support of the applicant provided by any members of his family. The reference to an absence of evidence and statements in support is criticised by the applicant, because various other documents before the Tribunal were nevertheless relevant to this consideration. However, the majority of those documents were not current (dated 2009 and 2010), and were statements from the applicant as to his relationship with his parents, which the Tribunal clearly considered. One potentially relevant document that the applicant points to in this regard (not written by the applicant himself) is an Intensive Correction Order Co-Resident Form dated April 2017. It appears to have been completed by Corrective Services and/or Community Corrections and simply states “all family supportive”. It appears from the context that the family (apparently, his parents and siblings) are supportive of the applicant living at his parents’ home. This adds little to any rational consideration of the strength of the applicant’s relationship with his siblings. Taken together, the document and evidence as a whole is opaque as to the nature and strength of the applicant’s relationship with his siblings. The Tribunal was entitled to make the findings it did in this regard.

22    Having regard to these matters, in my view it cannot be said at the level of factual analysis that the Tribunal failed to consider the relevant evidence in finding at [54] that the strength, nature and duration of the applicant’s ties to Australia “slightly favour” him.

23    The applicant relies on the following passage in Burgess:

[81]    In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 347 ALR 172 the Full Court identified some of the salient features of the power to cancel a visa conferred by s 501(3) of the Act, including the reposing of the power in the Minister personally, the nature of the enquiry as to what the national interest requires and the statutory exclusion of the rules of natural justice, particularly as they affect a person who cannot in fact satisfy the Minister that he or she passes the character test: see at [53] – [59]. Reflecting upon those features, the Full Court said (at [60]):

These features of the statutory framework, particularly the displacement of the requirements of natural justice and the limited scope of the representations which an affected person may make in seeking to have the Minister revoke a visa cancellation decision, highlight the need for the Minister to exercise his important power under s 501(3) of the Act with appropriate care and attention, including by engaging in an active intellectual process in reviewing relevant materials placed before him to assist in the discharge of this significant statutory function.

24    In my view, having regard to the matters to which I have referred above, it is not the case that the Tribunal failed to engage in an active intellectual process in reviewing the materials placed before it. As the Minister correctly submits, the Tribunal must, of course, consider the applicant’s personal circumstances. However, it is not necessary for it to mention every item of evidence advanced in support of a claim. A finding of fact may not be required if the claim or issue is irrelevant or if it is subsumed within a claim or issue of greater generality: Minister for Home Affairs v Buadromo [2018] FCAFC 151; 362 ALR 48 at [46] (Besanko, Barker and Bromwich JJ).

25    The second aspect of this ground concerns the statement at [55] of the reasons of the Tribunal that the applicant has not filed any character references in support from community members. In this regard the applicant draws attention to evidence concerning medical practitioners; a pastoral leader, who considered the applicant’s criminal charges to be out of character and had always found the applicant to be reliable, friendly and respectful; a friend, who considered the applicant would go out of his way to do someone a good turn; two priests and an academic, who said that he was a mature person, was regretful for the trouble he had caused and was ready to change his ways, and was always respectful to the church; and a correctional centre skills teacher who listed the units the applicant had completed. In this regard he submits that the Tribunal failed to have regard to relevant evidence.

26    However, the Tribunal’s statement at [55] was factually correct (as the applicant quite rightly accepts). The applicant did not file in the application before the Tribunal any character references in support from community members. That statement should be understood to mean that no character references prepared in support of the current revocation application had been filed by the applicant. The matters to which the applicant draws attention are references provided by people in 2009 and 2010 for the purpose of sentencing hearings conducted in the District Court of New South Wales. The only exception to this is the two letters the applicant refers to originating from medical practitioners in 2017 and 2018, the first being a confirmation that documents had been faxed to the National Character Consideration Centre, and the second stating that the applicant was the only one looking after his parents. Neither can be considered to be “character references”. The fact is that no character references were supplied to support the applicant in his present, 2018 application for revocation of the cancellation of his visa is a matter that the Tribunal considered to be relevant in considering the strength and nature of his ties to the community in Australia. Although it could have been more fully expressed, it is apparent that the Tribunal considered that there were no more recent references concerning his ties to the community, the most recent being some 8 years out of date. That is a matter that the Tribunal was entitled to take into account.

27    In the first sentence of [55] the Tribunal observes that the applicant’s employment history demonstrates a limited contribution to the Australian community, a finding that is not challenged.

28    Having regard to the foregoing, in my view it is not apparent that the Tribunal failed to engage in an active intellectual process in reviewing the relevant materials as contended by the applicant in the second aspect of ground 1. Furthermore, in relation to both aspects of ground 1 in my view the applicant has not demonstrated that the Tribunal failed to have regard to the strength, nature and duration of the applicant to Australia in accordance with Direction 65 at paragraph 14.2(1).

29    Accordingly, ground 1 of the application for review fails.

3.2    Ground 2: critical finding without logically probative evidence

30    In ground 2 the applicant contends that the Tribunal made a critical finding without logically probative evidence by stating, at [58] of its reasons, that in New Zealand the applicant would have access to social welfare and public health systems broadly comparable to those in Australia which would be available to him if he were to suffer any financial or medical hardship in New Zealand. In his submissions, the applicant contends that because the impugned conclusion lacked any rational connection to the materials before the Tribunal and upon which it made its decision, citing Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; 255 FCR 81 at [33] – [35] (per Charlesworth J, with whom Flick and Perry JJ agreed).

31    In my view it was not a jurisdictional error for the Tribunal to reason as it did in relation to the extent of impediments that the applicant would face if removed from Australia.

32    Direction No 65 relevantly provides that the Tribunal was required to consider the matters set out in paragraph 14.5(1) as follows:

(1)    The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   a)    The non-citizen’s age and health;

   b)    Whether there are substantial language or cultural barriers; and

c)    Any social, medical and/or economic support available to them in that country.

33    The “no evidence” ground advanced concerns an absence of evidence to underpin the conclusion reached by the Tribunal that as a New Zealand citizen, the applicant would have access to a social welfare and a public health system comparable to those of Australia, which would be available to him if he were to suffer any financial or medical hardship in New Zealand.

34    No specific evidence is required to support the Tribunal’s conclusion that the applicant would have access to a public health system and social welfare if he were returned to New Zealand: see Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at [69] (Robertson J); McLachlan v Assistant Minister for Immigration and Border Protection [2018] FCA 109 at [35] – [37] (McKerracher J); Hands v Minister for Immigration and Border Protection [2018] FCA 662 at [38] (Griffiths J) (and on appeal in [2018] FCAFC 225; 364 ALR 423 at [44] per Allsop CJ); ZGWQ v Minister for Home Affairs [2019] FCA 1096 at [9] (Robertson J). As noted by Robertson J in ZGWQ at [11], Ministerial Direction 79 (or in this case, Direction 65) does not as a matter of language or of construction, require a comparison between the health and welfare systems of New Zealand and Australia.

35    Furthermore, the applicant did not before the Tribunal submit that he would be unable to access the public health and social welfare systems of New Zealand. There was evidence before the Tribunal to indicate that he had in the past suffered from some mental illness issues, including a report in 2011 suggesting that he suffered from stress, anxiety and depression, but as the submissions made on his behalf before this Court indicate, since he was incarcerated he had not experienced any serious life-threatening medical issues, and it is apparent that he did not submit otherwise before the Tribunal. In this regard, the position is different to that which I considered in Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162; 162 ALD 495 at [27] – [32].

36    Accordingly, ground 2 must fail.

3.3    Ground 3: misconstruction of Direction 65

37    In ground 3 the applicant contends that at [52] of its reasons the Tribunal misconstrued paragraph 14.2(1)(a)(i) of Direction 65 by stating that the applicant had arrived in Australia shortly after he was born and then subsequently giving less weight to the duration of his residence in Australia because he had started his criminal offending when he was aged 18.

38    Paragraph 14.2(1)(a) of Direction 65 reads:

14.2    Strength, nature and duration of ties

(1)    The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

a)    How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i.    less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii.    More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

39    In my view this ground must be rejected because it involves a misreading of the reasoning of the Tribunal. In [52] the Tribunal notes, as it is required to do, that the applicant has resided in Australia for the majority of his life having arrived shortly after he was born. It then says that less weight is given to this consideration “because the applicant started criminally offending at the age of 18 and has continued to commit criminal offences since that time; a period spanning nearly 20 years”. The applicant’s submissions ignore the balance of the sentence commencing “and”. When those words are given proper weight, it is apparent that the Tribunal here is balancing the fact that the applicant arrived in Australia as a young child against the fact that he has continued to commit criminal offences for a period of 20 years, commencing when he was aged 18. The stipulation at paragraph 14.2(1)(a)(i) of Direction 65 that less weight should be given where the non-citizen began offending soon after arriving in Australia is not inconsistent with the Tribunal giving less weight to this consideration in circumstances where the applicant has frequently committed offences throughout his adult life. No jurisdictional error is demonstrated in this approach.

3.4    Ground 4: failure to consider relevant considerations

40    In ground 4 the applicant contends that the Tribunal failed to consider or misconstrued or misapplied Direction 65 by failing to consider relevant considerations. The applicant submits that in deciding not to revoke the cancellation of the applicant’s visa, the Tribunal failed to take into account the impact on Australian business interests, impact on victims and international non-refoulement obligations. Each of these is listed in Direction 65 at paragraph 14(1).

41    The difficulty with this submission is that none of these matters arose for consideration before the Tribunal. The applicant accepts that he did not raise them. The chapeau to paragraph 14(1) of Direction 65 provides that in deciding whether to revoke the mandatory consideration of a visa, other considerations must be taken into account “where relevant”, including (a) international non-refoulement obligations, (c) impact on Australian business interests and (d) impact of victims. There is no basis upon which it may be inferred that these matters were of relevance to the decision-making of the Tribunal or that the Tribunal failed to consider their relevance when arriving at its conclusions: cf Minister for Home Affairs v HSKJ [2018] FCAFC 217; 363 ALR 325 at [44] – [48] (Greenwood, McKerracher and Burley JJ).

42    Accordingly, ground 4 must be rejected.

4.    DISPOSITION

43    For the reasons set out above the appropriate orders are:

(1)    The application be dismissed.

(2)    The applicant pay the first respondent’s costs of the application.

Associate:

Dated:    26 November 2019