Ai v Minister for Immigration

[2016] FCCA 2

FEDERAL CIRCUIT COURT OF AUSTRALIA

AI v MINISTER FOR IMMIGRATION [2016] FCCA 2

Catchwords:
MIGRATION – Review of decision of a delegate of the Minister to cancel a permanent residence visa – “mandatory cancellation” – whether the circumstances necessary to enliven the cancellation provision in the Migration Act 1958 (Cth) were present, considered.

Legislation:

Migration Act 1958 (Cth), s.501
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)

Applicant: CHUN HAI AI

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2691 of 2015

Judgment of: Judge Driver

Hearing date: 9 December 2015

Date of Last Submission: 30 December 2015

Delivered at: Sydney

Delivered on: 2 February 2016

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms H Dejean of Australian Government Solicitor

ORDERS

1. The application filed on 1 October 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2691 of 2015

CHUN HAI AI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant, Mr Ai, seeks judicial review of a decision of a delegate of the respondent Minister made on 17 March 2015. The decision was a decision to cancel Mr Ai’s visa, pursuant to s.501(3A) of the Migration Act 1958 (Cth) (Migration Act). It is common ground between the parties that the Court has jurisdiction to review the decision. The application was filed late on 1 October 2015 but I extended time for the filing of the application by order made on 29 October 2015.

2. The application contains the following two grounds:

   1. The decision-maker failed to comply with the Migration act 1958, which request the decision-maker must take into account all primary or other considerations before the decision was made.

   Particulars

   (a) failed to consider the best interest of minor children in Australia affected by the decision.

   (b) failed to consider the applicant’s strength, nature and duration of ties in Australia.

   (c) failed to consider the relevant factors about the applicant’s reform and the seriousness of offences.

   2. The decision was invalid due to the procedure fairness concerned with the decision making.

   Particulars

   (a) the decision was not generally sufficient and appropriate, because it was not signed off by any decision-maker, the person who exercised the power should be identifiable.

   (b) the decision was made on 17 March 2015, but the decision letter was dated on 16 March 2015, that’s means the letter was sent out one day before the decision was actually made.

3. The application is supported by an affidavit made by Mr Ai on 28 September 2015.  The Minister relies upon his response filed on 21 October 2015, the affidavit of Hervee Dupont Dejean made on 12 November 2015, to which are annexed documents bearing upon the decision of the delegate, and a further affidavit by Ms Dejean made on 9 December 2015 which addresses the authority of the delegate to make the decision. 

4. Both Mr Ai and the Minister prepared written submissions and made oral submissions. 

5. Mr Ai was at the time of the hearing of this matter held at the Christmas Island Immigration Detention Centre.  There had been disturbances, apparently serious, at the detention centre.  Those disturbances impacted upon Mr Ai and affected his ability to prepare for the hearing of this matter.  In particular, Mr Ai only shortly before the trial received the Minister’s submissions and Ms Dejean’s first affidavit and, at the trial of this matter, had not received Ms Dejean’s second affidavit.  I directed that the latter be re-served and provided Mr Ai with further time to provide additional submissions.  He took up that opportunity.

Consideration

1. Mr Ai addressed the Court eloquently concerning his surprise at learning of the cancellation of his visa, his determination to have that cancellation revoked, and various difficulties he encountered at the detention centre at Christmas Island. He has found his situation a very difficult one to bear. Many matters put to the Court by Mr Ai might bear upon a consideration by the Minister whether to revoke the cancellation. I understand that Mr Ai has sought that revocation and that it is being considered. To that extent, those matters are beyond the scope of this proceeding. The Court must confine itself to considering the validity of the decision to cancel Mr Ai’s visa made pursuant to s.501(3A) of the Migration Act[1].  

   [1] The record of that decision is annexure HDD-1 of the Dejean affidavit, made on 12 November 2015, at page 5

2. Such a decision is a mandatory decision, provided the Minister is satisfied of two criteria. The first is that the person does not pass the character test because of, among other things, s.501(6)(a) on the basis of s.501(7)(c) of the Migration Act and the second is that the person is serving a sentence of imprisonment on a full time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.

3. Mr Ai satisfied the first criterion as he was sentenced to a term of imprisonment of 12 months on 6 December 2006 for the offence of Assault Occasioning Actual Bodily Harm[2].

   [2] see annexure HDD-2 of the Dejean affidavit, page 12

4. Mr Ai satisfied the second criterion as, at the date of the decision to cancel his visa, he was serving a full time custodial sentence in relation to the crime of Embezzle as a Clerk or Servant More Than $2,000 and Less Than or Equal to $5,000[3].

   [3] see annexure HDD-2 of the Dejean affidavit, pages 12 and 20

5. Mr Ai was notified of the decision to cancel his visa[4] and, pursuant to s.501CA(3), was invited to make representations to the Minister about revocation of the cancellation decision. Mr Ai exercised his right to request revocation and his submission was received by the Minister’s Department on 30 March 2015. Further material has also been provided by Mr Ai since that time. No decision has yet been made in relation to that request.

   [4] see Annexure HDD-2 of the Dejean affidavit , pages 7 – 27

6. Section 501(3A) was introduced into the Migration Act by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) by item 8 of Schedule 1 with effect from 11 December 2014. The relevant transitional provision, being item 32 of Schedule 1 states as follows:

   (1)The amendment made by items …8….of this Schedule apply to a decision made on or after the commencement of this item to cancel a visa under subsection 501(3A) of the Migration Act 1958, whether the sentence of imprisonment on the basis of which the visa is cancelled was imposed before, on or after the commencement of this item.

   (2)Despite subitem (1), the Minister must not, under subsection 501(3A) of the Migration Act 1958, cancel the visa of a person who is serving a sentence of imprisonment, if:

   (a)before the commencement of this item, but during that imprisonment, the Minister considered cancelling the person’s visa under subsection 501(2) of the Migration Act 1958 and decided not to cancel the visa; and

   (b)since that decision, no further sentence of imprisonment has been imposed on the person. 

7. The transitional provisions make clear that s.501(3A) applies to a situation where a person has been sentenced to a term of imprisonment imposed before the commencement of the provision. In relation to the proviso in sub-item (2) of item 32, while it is true that Mr Ai had been previously considered for cancellation and no cancellation occurred[5], no decision was taken not to cancel Mr Ai’s visa during his most recent term of imprisonment. In any event, Mr Ai has been sentenced to a further term of imprisonment after those decisions not to cancel had been made. Therefore, that proviso has no application to him.

   [5] as to this see the reference to two warning letters dated 5 November 2007 and 6 February 2006 at annexure HDD-2 of the Dejean affidavit, page 10

8. The grounds of the application are misconceived, as the decision which is being challenged is a decision which is mandatory once the two criteria are satisfied. It would appear that Mr Ai does not challenge that he has been convicted of a sentence of 12 months or more and that he was serving a sentence of imprisonment when the cancellation decision was made as he has accepted as much in the affidavit he filed in these proceedings made on 28 September 2015. Mr Ai complains that the Minister has failed to take into account various matters which are personal to him, but I accept the Minister’s submission that there is no legal obligation to do so when the power under s.501(3A) is being exercised. Different considerations may apply when the power being exercised is the revocation power available under s.501CA(4) but this is not the decision which is being reviewed in these proceedings. It is also not apposite for Mr Ai to complain that he has been denied procedural fairness in relation to the initial decision to cancel as s.501(5) expressly excludes the rules of procedural fairness and the code of procedure set out in the Migration Act to a decision made under s.501(3A).

9. Mr Ai also complains that the date of the letter of notification predates the date of the decision (by one day). While unfortunate, I accept that this is simply a typographical error, as the document evidencing the decision is dated 17 March 2015[6] and the letter itself references the decision as being made on 17 March 2015[7]. This error in the notification letter has no bearing on the validity of the cancellation decision. The notification letter was the trigger for Mr Ai to make a request for revocation of the cancellation decision, which he did in any event.

   [6] see the Dejean affidavit, page 5

   [7] see the Dejean affidavit, page 7

10. Mr Ai also complains that the decision was not signed off by an identifiable person. Mr Ai’s criticism appears to be directed to the notification letter. While the document evidencing the decision was not included in the material provided to Mr Ai under cover of that letter, the document evidencing the decision is found at page 5 of the first Dejean affidavit. This decision record is signed by an officer whose position number is provided. There is nothing to suggest that there is anything irregular in the decision-making process in relation to the decision to cancel.

11. In his post hearing submission Mr Ai revisits the various matters he had already raised orally and in writing and raised some new issues not material to this proceeding.  Unfortunately for him, his submissions do not advance his argument of asserted jurisdictional error.

12. The grounds raised by Mr Ai do not disclose any jurisdictional error in the decision to cancel his visa under s.501(3A) of the Migration Act. The application should therefore be dismissed with costs.

13. I will so order.

14. I will hear the parties as to costs.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  2 February 2016