Federal Court of Australia

Gent v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 204

ORDERS

THE COURT ORDERS THAT:

1.    The time for the applicant to lodge an application for review of a migration decision be extended to 19 March 2024.

2.    Leave be granted to the applicant to file in court the originating application for review of a migration decision in the form of exhibit MM2 to the affidavit of Marta Mamarot dated 19 March 2024.

3.    The application for review of a migration decision be dismissed.

4.    The applicant pay the Minister’s costs.

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

REASONS FOR JUDGMENT

Delivered ex tempore, revised from transcript

JACKMAN J:

1    Before me is an application for an extension of time pursuant to s 477A(2) of the Migration Act 1958 (Cth) (the Act) and r 31.23 of the Federal Court Rules 2011 (Cth) to make an application seeking review of a decision of the Administrative Appeals Tribunal (the Tribunal) made on 12 February 2024. The tribunal affirmed a decision of a delegate of the first respondent (Minister) to cancel the applicant’s subclass 444 special category visa pursuant to s 501(2) of the Act.

2    Given the delay is only one day and there is an explanation for it, the Minister does not oppose the extension of time. It may be thought that the Minister might have opposed the extension of time on the basis that the underlying application lacks sufficient merit to justify the grant of an extension, but that contention was not made. In light of the Minister’s decision not to oppose the extension of time, I will grant the extension such that the time for the applicant to lodge an application for review of the migration decision be extended to 19 March 2024, and I grant the applicant leave to file in court the originating application for review of a migration decision in the form provided to me by the applicant’s solicitor.

3    I will proceed then to deal with the underlying application as set out in the draft originating application exhibited to the affidavit of the applicant’s instructing solicitor, noting that only grounds 1 and 2 of that application are pressed. Both parties before me today concur with that approach.

4    The applicant is a citizen of New Zealand who first arrived in Australia in 2004, aged 30. He has subsequently been convicted of a number of offences in 2007, 2011, 2012, 2015 and 2021.

5    On 14 June 2023, the applicant was sent a notice of intention to consider cancellation of his visa under s 501(2) of the Act. He responded on 24 July 2023. On 20 November 2023, the delegate cancelled the applicant’s visa under s 501(2) of the Act.

6    The applicant sought review by the Tribunal. The Tribunal held a hearing on 31 January 2024 and, on 12 February 2024, affirmed the delegate’s decision. It was accepted by the applicant that he did not pass the character test by reason of his sentence of imprisonment for the offending conduct, and thus the determinative issue was whether to exercise the discretion in s 501(2) of the Act to cancel his visa. That required consideration of the primary and other relevant considerations under Direction No 99, which was made on 23 January 2023 pursuant to s 499 of the Act.

7    The Tribunal considered the matters in Direction No 99, finding the protection of the community and the family violence engaged in by the applicant weighed significantly and strongly (respectively) in favour of cancellation: [14]-[45]. It found the applicant’s ties to Australia and the best interests of his son weighed against cancellation: [46]-[61]. It found the expectations of the community weighed in favour of cancellation: [62]-[63]. It found the extent of impediments to removal weighed against cancellation: [65]-[69]. Overall, it concluded that the primary considerations in favour of cancellation outweighed the primary and other considerations against cancellation and affirmed the delegate’s decision: [71]-[72].

8    The first ground of review claims that the Tribunal erred at [68] in noting that there was no evidence that the applicant would not receive appropriate treatment in New Zealand. The Tribunal’s reasons at [68] are as follows:

The applicant has a treatment plan in Australia and has follow up appointments scheduled. These may be difficult to organise and arrange initially should the applicant return to New Zealand. In his evidence, the applicant explains difficulties he faces as a result of his medical conditions on a daily basis. Kelly has been the applicant’s carer and he relies on her to help him around the house and take her [sic: him] to appointments. Should the applicant return to New Zealand, he would need to find additional support for his daily needs resulting from his medical conditions. This would pose some difficulty for the applicant but there is no evidence that the applicant would not receive appropriate treatment for his ailments in New Zealand and in any event, the applicant would be entitled to any medical and social welfare support available to other New Zealand citizens.

9    The Minister submits, and I accept, that while there is no onus of proof before the Tribunal, as a practical matter, if the applicant wished to demonstrate that he would not receive appropriate treatment in New Zealand, then it was for him to provide such evidence. In its absence, it was open to the Tribunal to infer that such treatment would be provided, and in that regard, the Tribunal was entitled to act on the basis of common knowledge or its own knowledge about New Zealand’s health services: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 at [18] (Keane, Gordon, Edelman, Steward and Gleeson JJ); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Mukiza [2022] FCAFC 89; (2022) 291 FCR 568 at [37]–[61] (Markovic, Thawley and Cheeseman JJ); XRZG v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 131; (2024) 305 FCR 349 at [56] (Markovic, Cheeseman and Horan JJ). Contrary to the applicant’s submission, the relevant matter was not an unwarranted assumption of the kind discussed by Perram J in BOH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 573 at [3]-[8].

10    Mr Berg, who appeared for the applicant, also referred to evidence in the statutory declaration made by the applicant to the effect that the applicant has family in New Zealand but no one who could provide the level of care which he needs and will need in the future, and said that it would be hard for him to access doctors in New Zealand without help and ongoing support. Mr Berg relied on that evidence in support of a submission that the applicant would not receive appropriate treatment in New Zealand because of the need for him to have a carer in order to get him to medical appointments.

11    Mr Berg did not submit that it would be impossible for the applicant to find a carer. Indeed, the contention raised previously by way of the applicant’s statement of facts, issues, and contentions was only that the applicant would face significant impediments in getting the daily care he needs and receives from Kelly and being able to access all the different medical professionals he is currently engaged with. The Tribunal observed at [66] that:

The applicant has siblings, adult children, and grandchildren and friends in New Zealand. He has a particularly close relationship with his daughter, Storm, with whom he is in regular contact [and with whom he stayed] for [a period of] 10 months in 2013 when he travelled to New Zealand.

12    In my view, the Tribunal’s finding expressed in terms of difficulty at [68] was plainly open to the Tribunal on the material before it.

13    Accordingly, the first ground relied upon must fail.

14    The second ground claims that the Tribunal erred at [38] in finding that the applicant had not rehabilitated since 2015, given his offence in 2021 for driving while his licence was suspended was less serious than his previous offences. Paragraph [38] of the Tribunal’s reasoning is as follows:

I note that the sentencing Magistrate in 2015 accepted an independent professional assessment of the probation officer that the applicant presented a low to medium risk of re-offending. The Magistrate stated “there is a real prospect he will rehabilitate, there is a real prospect he will not. Now it looks unclear, I find.” The applicant has since re-offended.

15    The Tribunal made no finding in that passage or elsewhere as to whether the applicant had ever rehabilitated. At [38], the Tribunal referred to the magistrate’s 2015 sentencing comments, which simply indicated that it was unclear whether the applicant would rehabilitate or not. In my view, the Tribunal was entitled to find that there was a real risk that the applicant would engage in further criminal or other serious conduct, as it did at [31].

16    The applicant sought to go beyond the way in which this second ground is expressed by arguing that the Tribunal overlooked his argument that he had been in the community for nine years without re-offending except for the driving offence in 2021. The Minister did not submit that I should not deal with that aspect of the argument concerning ground 2.

17    In my view, the argument of the applicant was not overlooked. In [32] of the Tribunal’s reasons, the Tribunal noted that there had been “breaks” in the applicant’s criminal history and that it had been some time since his last criminal offence involving violence, which occurred in January 2013. Accordingly, it cannot be contended that the Tribunal overlooked the fact that a lengthy period had passed since the last time that the applicant had committed a criminal offence involving violence. What the Tribunal did do was make the following finding at [39]:

The applicant’s repeated crimes of a violent nature are very serious and any likelihood that they may be repeated is unacceptable. The potential harm caused by further acts of criminal or other serious conduct committed by the applicant could involve significant harm to members of the Australian community.

18    That aspect of the Tribunal’s reasoning plainly rejected the submission that the fact that the applicant had been in the community for about nine years without re-offending, except for the driving offence in 2021, established that he had been rehabilitated to such a degree that the potential for further crimes of a violent nature could be disregarded or given very limited weight.

19    Accordingly, in my view, the second ground of appeal must also fail.

Associate:

Dated:    14 March 2025