ABDULIMY v Minister for Immigration
[2005] FMCA 1202
•29 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ABDULIMY v MINISTER FOR IMMIGRATION | [2005] FMCA 1202 |
| MIGRATION – Cancellation of visa – application to review decision of Administrative Appeals Tribunal affirming decision of Minister's delegate to the effect that the applicant's visa should be cancelled pursuant to s.501(2) of the Migration Act – applicant has substantial criminal record – applicant convicted of two counts of sexual penetration without consent and sentenced to imprisonment for eight years – no reviewable error found. |
Migration Act 1958
Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151
Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85
Re F: Litigants in Person Guidelines [2001] FLC 93-072
| Applicant: | AKRAM ABDULIMY |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | PEG 75 of 2005 |
| Delivered on: | 29 June 2005 |
| Delivered at: | Perth |
| Hearing date: | 29 June 2005 |
| Judgment of: | Walters FM |
REPRESENTATION
| Applicant | In Person |
| Counsel for the Respondent: | Mr Allanson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant do pay the respondent’s costs of the proceedings fixed in the sum of $3,000.00
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 75 of 2005
| AKRAM ABDULIMY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application to review a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 23 March 2003. The Tribunal affirmed the decision of a delegate of the Minister to the effect that the applicant’s visa (being a refugee visa — and being his sole authority to remain in Australia) should be cancelled pursuant to s.501(2) of the Migration Act.
I accept the following statement of background facts and information contained in paragraphs 1 to 6 (inclusive) of the written submissions prepared by Mr Allanson on behalf of the respondent:
1.The applicant is a national of Iraq. He arrived in Australia in 1994, and was granted a BF-200P547 visa, which was the applicant’s authority to remain in Australia.
2.The applicant has a substantial criminal record within the meaning of s501(6) and (7) of the Migration Act 1958. On 11 July 2000, he was convicted of 2 counts of sexual penetration without consent and sentenced to imprisonment for 8 years.
3.On 20 March 2003, the applicant was given a notice of intention to consider cancelling his visa under s501(2) of the Act: see at CB 47. He responded to that notice on 26 March 2003: see at 59-60.
4.On 27 October 2004 he was given a further notice of intention to cancel his visa: at CB 53. Again he was invited to respond and on 8 December 2004 a submission was sent by lawyers acting on his behalf: see at 61-63, including a statement by the applicant (at 64-71); a reference by his employer (at 72); a statement by his fiancé (at 73-77); and a statement by her 17 year old son (at 78-82).
5.The delegate also received an “International Obligations and Humanitarian Concerns Assessment”: see 83-97. This assessment included an assessment of non refoulement obligations, and humanitarian considerations.
6.On 6 January 2005, a delegate of the Minister cancelled the applicant’s visa under s501(2) of the Act. The delegate concluded that the seriousness of the applicant’s crimes, the disruption these have caused others, and the expectations of the Australian community outweighed any other considerations.
I also accept the following summary of the Tribunal’s decision as contained in paragraphs 7 to 8 (inclusive) of Mr Allanson’s submissions:
7.The applicant sought review in the Tribunal under s500(1) of the Act. On 23 March 2005, the Tribunal held that the applicant’s visa should be cancelled, and affirmed the decision of the delegate.
7.1The applicant had a substantial criminal record and did not pass the character test.
7.2The first primary consideration – the protection of the Australian community was strongly in favour of cancellation:
7.2.1the nature and seriousness of the offences weighed heavily against the applicant. The offences were not only serious sexual assaults, but accompanied by serious violence against a defenceless person;
7.2.2there remained a risk that the applicant would re-offend in the future, which also weighed against the applicant. Apart from the sexual assaults, the applicant had been convicted of 4 breaches of restraining orders taken out by women, and had in 2005 been convicted of traffic matters, indicating a lack of respect for the law. The Tribunal accepted the applicant had made some progress towards rehabilitation, and in particular had completed a sex offenders program in prison. It commented, however, that he had not received counselling with respect to alcohol and still had an alcohol problem;
7.2.3the cancellation of the visa may also act as a deterrent, so general deterrence also weighed against the applicant .
7.3The second primary consideration, the expectations of the Australian community, was also clearly in favour of cancellation:
7.3.1the offences, having regard to the circumstances of the victim and the violence that accompanied them, were such that reasonable fair minded members of the community would expect that the applicant should be removed from Australia.
7.4The Tribunal had regard to the best interests of any relevant child: the only possibly relevant child was the 17 year old son of the applicant’s fiancé. The Tribunal did not find the relationship of the applicant and the child to be such that it made this consideration applicable.
7.5The other relevant considerations, including in particular the hardship which removal from Australia would cause to the applicant, his fiancé and her son, weighed against cancellation.
8.The Tribunal held that the two relevant primary considerations clearly outweighed the other relevant considerations. The correct and preferable decision was that the applicant be removed from Australia.
The grounds of the application and discussion
Once again, I accept the following summary as contained in paragraphs 9 to 15 (inclusive) of Mr Allanson’s submissions:
9.The application contains a single ground, although it is set out as 4 grounds. The ground, in substance, is:
The Tribunal erred in fact and law in failing to find the decision of the delegate was made without jurisdiction and was void in that:
(i)the delegate failed to accord natural justice by failing to consider all aspects of the applicant’s character when applying the character test under s501;
(ii)the delegate failed to accord natural justice when considering the impact of the ICCPR, Article 7;
(iii)the delegate failed to accord natural justice when considering the impact of the ICCPR, Article 14.
10.The hearing before the Tribunal was a full review. The Tribunal was required to review the decision of the delegate, and to arrive at the correct and preferable decision. It was not required to review the lawfulness of the delegate’s decision: see Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; 211 ALR 561 . That is, there is no error in the tribunal failing to review alleged errors in the procedure followed by the delegate.
11.In any event, neither the Tribunal nor the delegate made the alleged errors. First, the character test as defined in s501(6)(a) and (7) is objective. As the section states:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)).
The delegate (and the Tribunal) was required to apply that test. Once it is found the applicant has a substantial criminal record, no inquiry into other aspects of the applicant’s character arises under s501(6).
12.Second, both the delegate and the Tribunal considered the hardship to be faced by the applicant if returned to Iraq. Both decision makers had before them the “International Obligations and Humanitarian Concerns Assessment.” That assessment included the advice that there was not a real risk the applicant would face violation of fundamental human rights under ICCPR article 6 or 7 as a necessary or foreseeable consequence of return to Iraq. Both decision makers found that the primary considerations outweighed the hardship to the applicant and others. That finding was both open on the evidence and lawfully reached.
13.Finally, the cancellation of the applicant’s visa is not a violation of ICCPR article 14. Cancellation of a visa under s501 is not punitive in character. In Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151; (2004) 206 ALR 488, the Full Court considered whether the exercise of power under s501 was punitive, and an exercise of the judicial power of the Commonwealth under Chapter 3 of the Constitution. The court summarised the authorities at [66]:
The following propositions can be derived from the authorities:
1. Section 51(xix) of the Constitution empowers Parliament to make a law providing for the deportation of aliens for whatever reason Parliament thinks fit, unless the Constitution otherwise prohibits the making of the law.
2. Under Chapter III of the Constitution, the adjudication and punishment of criminal guilt by reason of an alleged breach of a law of the Commonwealth appertains to the judicial power of the Commonwealth and cannot be entrusted to the Executive. If, therefore, Commonwealth legislation on its proper construction, purports to authorise the Executive to impose punishment for criminal conduct, the legislation, to that extent, will infringe Chapter III of the Constitution.
3. Whether legislation conferring power to cancel the visa or order the deportation of a non-citizen is punitive in character is to be determined by construction of the legislation, not by a consideration of the consequences of detention or removal of the individual.
4. Accordingly, the power to cancel a visa or order the deportation of a non-citizen is not to be regarded as punitive in character merely because exercise of the power involves interference with the liberty of the individual or imposes what the individual may see as sanctions consequential on his criminal connections. Neither can detention incidental to deportation of a non-citizen be characterised as punitive merely because it involves deprivation of liberty.
5. Legislation conferring a discretion on the Executive to cancel the visa of a non-citizen or to deport a non-citizen is not characterised as punitive if it can fairly be said to protect the Australian community. This is so even where the pre-condition that must be satisfied for the exercise of the power is the conviction of the non-citizen for a criminal offence or the imposition of a minimum period of imprisonment.
6. Nonetheless, if in a particular case the decision-maker purports to exercise a statutory power to cancel the visa of a non-citizen or to deport the non-citizen or order to punish the non-citizen and not for protection of the Australian community or some other legitimate objective, the exercise of the power may be ultra vires the statute.
14.Neither the decision of the delegate nor that of the Tribunal can be characterised as punishing the applicant again for the offences for which he was imprisoned.
15.The applicant identifies no other error in the decision of the Tribunal and none is evident on the papers.
The applicant is unrepresented
The applicant was not represented at the hearing before me. That being the case, I was conscious of the general principles governing the role of a judicial officer in proceedings involving an unrepresented litigant. In particular, I was conscious of the principles discussed in Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 at paragraphs 26 to 29, including that –
a)a judicial officer should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation; and
b)notwithstanding (a) above, the boundaries of legitimate intervention are flexible, and will be influenced by the need for intervention to ensure a fair and just hearing.
I was also conscious of the guidelines set out (in the context of Family Law proceedings) in Re F: Litigants in Person Guidelines [2001] FLC 93-072. In particular, I did my best to ensure that procedural fairness was afforded to the applicant, and I attempted to clarify the substance of his submissions.
The applicant was present with an interpreter. Before hearing from the applicant in any formal sense, and having regard to the fact that he had not filed written submissions, I stood the matter down to enable the interpreter to translate Mr Allanson’s written submissions. The hearing did not recommence until I was satisfied that the applicant understood the nature of the proceedings in this court and the case that the respondent had made in answer to his application.
During the course of the hearing, I invited the applicant (through his interpreter) to put to me anything that might assist in identifying a legal – or, relevantly, a jurisdictional – error. Apart from reiterating his dispute with the ultimate decision made by the Tribunal, however, he was unable to expand upon the grounds contained in his application.
I gave the applicant a further opportunity to address me after Mr Allanson had summarised his submissions. The applicant’s interpreter was present at all relevant times, and everything that was said by either the Bench or Counsel was interpreted for the applicant. Similarly, everything that he had to say was duly interpreted.
Conclusion
I accept Mr Allanson’s submission that the applicant failed to identify any relevant error of law. I also accept that the Tribunal’s decision cannot fairly or appropriately be characterised as the imposition of a further “punishment” on the applicant. The same can be said of the delegate’s decision.
In my opinion, it is apparent from an examination of the Tribunal’s decision that it gave careful (and, indeed, appropriately compassionate) consideration to the applicant’s assertions and concerns.
I have reread the Tribunal’s decision carefully. I am unable to identify any basis upon which the Tribunal’s decision can be interfered with. It acted in good faith, its decision is reasonably capable of reference to the power given to it, its decision relates to the subject matter of the legislation and there can be no suggestion that any relevant constitutional limits were exceeded.
Further, in my opinion there has been no apparent breach of procedural fairness which could amount to jurisdictional error.
In my opinion, the findings of fact contained in the Tribunal’s decision, and the conclusions drawn from those findings, were reasonably open to it.
For the preceding reasons, the grounds for review (to the extent that they can be identified from the material now before the court) must fail, and the application must be dismissed with costs.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Walters FM
Deputy Associate: Barbara Mendleson
Date: 23 August 2005
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