Aul v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1209
•13 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Aul v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1209
File number(s): PEG 286 of 2024 Judgment of: JUDGE STREET Date of judgment: 13 November 2024 Catchwords: MIGRATION –bridging E (class WE) bridging E general, subclass 050 visa cancellation – application seeking constitutional writ of Ministers decision – no jurisdictional error - application dismissed Legislation: Migration Act 1958 (Cth) Cases cited: Buck v Bavone [1976] HCA 24
Burgess v Assistant Minister for Home Affairs [2019] FCAFC 152
Djokovic v Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
Division: Division 2 General Federal Law Number of paragraphs: 43 Date of hearing: 30 October 2024 Place: Perth For the Applicant: The Applicant appeared in person Counsel for the Respondent: Ms H Hoffman Solicitor for the Respondent: Australian Government Solicitor ORDERS
PEG 286 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JOOSEP AUL
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
13 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “Minister for Immigration and Multicultural Affairs”.
2.The Application filed on 1 August 2024 is dismissed.
3.The Applicant pay the Ministers costs in accordance with the scale fixed in the amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
On 1 August 2024, the applicant filed an application in this Court seeking a constitutional writ in respect of the decision of the Minister, the Honourable Andrew Giles MP, made on 18 July 2024 exercising his power to cancel the applicant's visa relying on s 133C(3) of the Migration Act 1958 (Cth) (“the Act”).
The initiating application identified one ground as follows:
1.The Respondent denied the Applicant procedural fairness by failing to give primary consideration to the best interests of his Australian citizen child.
At the commencement of the hearing, the Court explained to the applicant the nature of the hearing. The Court admitted into evidence the affidavit filed on behalf of the applicant on 31 July 2024 and had the court book marked exhibit A and the applicant's submissions and two references collectively marked exhibit B, subject to relevance.
BACKGROUND
The applicant is a citizen of Estonia who arrived in Australia in 2015 on a working holiday visa. The applicant applied for a combined partner UK820/BS801 visa in August 2018. The applicant was granted a bridging E (class WE) bridging E general, subclass 050 (“bridging subclass 050 visa”) in relation to his partner visa application. The applicant's partner visa application has not yet been determined.
On 23 January 2023, the applicant was sentenced to a term of imprisonment for 10 months and received multiple fines having been convicted of a number of criminal offences. On 24 January 2023, the applicant’s bridging subclass 050 visa was re-granted as a result of the applicant applying for permission to work.
A delegate of the Minister, on 10 October 2023, decided to cancel the bridging subclass 050 visa under ss 116(1) and 116(2) of the Act. The applicant applied for a review of the decision but did not pay the fee and the tribunal found it had no jurisdiction. The applicant’s application for a review was dismissed.
The applicant applied to the Full Court of the Federal Court of Australia on 8 May 2024 for review of that decision but later withdrew that application. On 19 June 2024, the applicant applied for a review of the delegate's decision in the High Court of Australia and, on 18 July 2024, the High Court of Australia, by consent, quashed the delegate's decision. On the same day being 18 July 2024 at approximately 5.14 pm, the Minister cancelled the applicant's bridging subclass 050 visa.
STATUTORY CONTEXT
The decision to cancel by the Minister was made under s 133C(3) of the Act which relevantly provides:
(3) The Minister may cancel a a visa held by a person if:
(a) the Minister is satisfied that a ground for cancelling the visa under s 116 exists; and
(b) the Minister is satisfied that it would be in the public interest to cancel the visa
Note: The Minister’s power to cancel a visa under this subsection is subject to section 117 (see subsection (9) of this section)
(4) The rules of natural justice, and the procedures set out in Subdivision E and F, do not apply to a decision under subsection (3).
(5) The Minister may cancel a visa under subsection (3) whether or not:
(a) the visa holder was given notification under section 119 in relation to the ground for cancelling the visa; or
(b) the visa holder responded to any such notification; or
(c) the ART, former Administrative Appeals Tribunal, former Migration Review Tribunal or former Refugee Review Tribunal or a delegate of the Minister:
(i) decided that the ground did not exist; or
(ii) decided not to exercise the power in section 116 to cancel the visa (despite the existence of the ground); or
(d) a delegate of the Minister decided to revoke, under subsection 131(1), a cancellation of the visa in accordance with section 128 in relation to the ground.
Section 116(1)(g) of the Act provides the Minister may cancel the visa if satisfied a prescribed ground for cancelling a visa applies to the holder and, in that regard, reg 2.43 of the Migration Regulations 1994 (Cth) sets out the prescribed grounds, relevantly, as follows: -
(1) For the purpose of paragraph 116(1)(g) of the Act (which details with circumstances in which the Minister may cancel a visa), the grounds prescribed are the following:
(p) in the case of the holder of a Subclass 050 (Bridging (General) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa the Minister is satisfied that the holder:
(i) has been convicted of an offence against a law of the Commonwealth, a State or a Territory or another country (other than if the convictions resulted in the holder’s last substantive visa being cancelled under paragraph (oa)); or
(ii) has been charged with an offence against a law of the Commonwealth, a State or a Territory or another country; or
…
In Djokovic v Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3, the Full Court of the Federal Court identified the principles applicable for judicial review of a decision of the Minister under s133C of the Act.
The Full Court noted that the issue on judicial review is not the fact of whether the applicant has been charged or convicted of an offence against the Commonwealth but the state of satisfaction of that fact for the purpose of s 133C(3) of the Act, relevantly saying:
The satisfaction of the Minister is not an unreviewable personal state of mind. The law is clear as to what is required. If, upon review by a Court, the satisfaction is found to have been reached unreasonably or was not capable of having been reached on proper material or lawful grounds, it will be taken not to be a lawful satisfaction for the purpose of the statute. In such a case the precondition for the exercise of the power will not exist and the decision will be unlawful and will be set aside. That is, the lawful satisfaction is a jurisdictional precondition, a form of jurisdictional fact, for the exercise of the power or discretion.
The Full Court in that case explained that the satisfaction depends upon a satisfaction of a factual state of affairs which is one involving an opinion as was identified by the learned Gibbs J, as he then was, in Buck v Bavone [1976] HCA 24, where the matter of which the decision-maker is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that ... [the]decision could not reasonably have been reached.
The satisfaction that the visa holder has been charged or convicted against the law of the Commonwealth for the purposes of s 116(1)(g) of the Act must be reached on a legally reasonable basis and the power must be exercised in accordance with legal reasonableness.
APPLICANT’S SUBMISSIONS
The applicant, in his first set of written submissions, identified that his son was three years old and an Australian citizen and deserves the right to maintain a meaningful relationship with both parents. The applicant referred to Ministerial Decision, number 104, and contested the best interests of his child and his child's emotional and psychological well-being required consideration.
The applicant identified the consequence of the decision to cancel would lead to separation causing emotional and psychological harm to his child who he says is at a critical age for his development. The applicant contended that, while the Minister acknowledged the relationship, he did not give the child's best interests the primary consideration it deserves and also relied on the Convention on the Rights of the Child (1989) to which Australia is a signatory.
The applicant also sought to complain as to the failure to properly take into account the impact on his family and his First Nations wife. The applicant submitted that his family relies on him for emotional, financial and social support and that separating the applicant from his wife will disproportionately affect her well-being, in that she will have to raise their son alone, already facing significant historic and systemic disadvantages as an Indigenous Australian.
The applicant contended the Minister had given insufficient weight to the cultural and humanitarian impact of his removal on his wife and his son who deserves both parents in his life.
The applicant also submitted that the Minister had relied upon unverified and incorrect information in respect of a newspaper article that he contended falsely claimed he had assaulted a man multiple times and that the Minister should not have taken into account an unsubstantiated media report.
The applicant also submitted that the Minister's decision to cancel was unreasonably reached, alleging a wanted proportionality and legal unreasonableness. The applicant submitted that the decision maker failed to adequately balance public interest with the significant humanitarian and compassionate considerations of his family. The applicant submitted that no reasonable decision-maker could conclude that the public interest in this case outweighs the impact on the applicant's son and wife.
The applicant also contended that his substantial commitment to rehabilitation during his time in prison and in immigration detention should be taken into account. The applicant referred to various programs he had undertaken, and his progress dedicated to personal growth. The applicant also identified being on medication to advance his mental health rehabilitation which underscores his capability to positively contribute to his family and the community.
The applicant asked for the decision to be set aside on grounds of procedural unfairness, failure to adequately consider his son's best interests, and reliance on fulsome unverified information, as well as contending the disproportionate impact of the decision.
The applicant provided a second set of submissions, again, directed to contending that the decision was legally unreasonable due to the decision maker’s failure to consider the best interests of his son, his documented rehabilitation efforts, and the disproportionate focus on his criminal history.
The applicant focused on authority said to support the requirement of decision-makers to weigh the welfare of Australian citizens and children when assessing public interest in visa matters. The applicant maintained that the Minister failed to properly assess his rehabilitation and treatment efforts. The submissions also contended the Minister disproportionately emphasised his past criminal conduct without adequately weighing mitigating factors such as rehabilitation and family unity. It was submitted that the Minister failed to give adequate weight to the family circumstances and the importance of family unity.
The applicant put on oral submissions in support of the ground in his application and in support of the expanded grounds in his written submissions maintaining that the cancellation would have a detrimental effect on his three-year-old son and that the best interests of the child were for the visa not to be cancelled.
The applicant also made reference to his son having ADHD, which he complained had not been balanced against his criminal record. The applicant said he was doing programs and made reference to taking medication. The applicant contended that it was unfair to take into account the newspaper article and that the focus should instead be on the importance of family unity which the applicant contends was not properly taken into consideration.
RESPONDENT’S SUBMISSIONS
The Minister relied on their written submissions, which were summarised orally. In relation to procedural fairness, the Minister pointed out that under s133C(4) of the Act, the rules of natural justice do not apply to decisions under subsection (3) and made reference to the decision in Burgess v Assistant Minister for Home Affairs [2019] FCAFC 152 in respect of an exercise of power by the Minister .to cancel a visa on character grounds without affording natural justice to the visa holder, which was said applies equally to the present provision. It was submitted on behalf of the Minister that he correctly identified the effect of s133C(4) of the Act. In the present case, the Minister chose to proceed without affording the applicant an opportunity to provide comments.
It was submitted that the Minister's state of mind was formed on a correct understanding of the law and that there was no jurisdictional error. The Minister submitted, in relation to the allegation of failing to have regard to the best interests of the child, that the reasons set out the matters he considered as part of the public interest consideration, which included the nature and repetitive circumstances of the offending, repeated offending, violent crimes which pose a significant threat to public safety, and constant breaches of family violence orders.
It was identified that the Minister considered matters that indicated that it may not be in the public interest to cancel the visa, referring to his ongoing spousal relationship with his wife and his desire to provide care for his son. It was pointed out the Minister expressly referred to there being some factors that indicated that the cancellation of the visa may not be in the public interest, but found they are outweighed by the other public interest considerations in favour of cancellation and that the Minister concluded the visa should be cancelled.
Reference was made to the other considerations taken into account by the Minister with express reference made to the applicant's son and the emotional support provided by the applicant to his son through video calls and desire to care for his son once released. The Minister took into account that the cancellation is likely to cause the applicant hardship and took into account the ongoing separation from his wife and child, which it was acknowledged was likely to create emotional distress and potential financial hardship for the wife and child and gave that consideration significant weight against cancelling the visa.
It was pointed out that Ministerial Direction Number 63 was cancelled and did not, in any event, apply to the Minister. It was submitted that the convention is not a source of rights and obligations under domestic law and are not mandatory considerations. Further, it was submitted that the interests of the applicant's child were a relevant consideration in respect of which the Minister discharged his obligation when considering the interest of the applicant's son under other considerations, and it was submitted it was appropriate to do so under the heading of other considerations.
It was submitted that the grounds for review are not made out. It was submitted that it was open to the Minister to take into account the newspaper article and the weight to be given to the newspaper article was a matter for the Minister. It was submitted that there was no relevant denial of procedural fairness. It was submitted that the steps of rehabilitation to which the applicant already referred were not before the Minister and that the applicant had an opportunity to put on information and did not do so, and that this also included responding to the Broome article, had the applicant chosen to do so, under s 133(f) of the Act. It was submitted the decision was not legally unreasonable and that none of the grounds raised by the applicant make out any relevant jurisdictional error. It was submitted that it was open for the Minister to take into account the applicant's criminal history in determining the public interest, and the weight to be given to the family unity was a matter for the Minister.
CONCLUSIONS AND FINDINGS
In relation to ground 1 raised in the application, the Minister correctly pointed out that the requirements of natural justice have no application to the decision-making of the Minister so far as alleged in ground 1, and correctly pointed out that the Ministerial direction had no application with the Minister and was revoked.
In relation to the best interest of the child, it is apparent that the Minister did have regard to the interests of the child under the heading “The Degree of Hardship That May Be Caused to the Visa Holder and Family Members”. The Minister expressly referred to the applicant having a son and having taken into account that the applicant provides emotional support to his son every Sunday by video call and took into account the expressed desire of the applicant to care for his son once released from immigration detention. The Minister expressly identified a degree of hardship, including the ongoing separation of the applicant from his wife and child, and acknowledged that cancellation is likely to create emotional distress and potential financial hardship for both the applicant's wife and child. The Minister expressly referred to giving this consideration significant weight against cancelling the visa. On a fair reading, it is apparent that the Minister gave proper and genuine consideration to the interests of the applicant's child.
The Court accepts that the interests of the applicant's son were properly taken into account by the Minister and no jurisdictional error as alleged in ground 1 is made out. The Court notes that it is not apparent that any issue of ADHD in relation to the applicant's son was advanced before the Minister, nor was any substantially articulated argument advanced before the Minister as to the cultural heritage of the applicant's son with his mother being indigenous that the Minister was required to expressly address in his reasons. These matters raised by the applicant invite impermissible merits review.
In relation to the alleged error in respect of the impact on the applicant's family and First Nations wife, for the reasons already identified, it is not apparent that there was any substantially articulated argument developed in relation to his wife being a First Nations Australian that the Minister was required to expressly address in his reasons. It is, however, apparent from the Minister's reasons as referred to above that the Minister expressly took into account the adverse impact on both the applicant's wife and son, accepting that the impact of separation on them is likely to create emotional distress and potential financial hardship, and the Minister gave that consideration significant weight. The matter of weight to be given to the considerations identified by the Minister was a matter for the Minister, and no jurisdictional error arises from the applicant's submissions in relation to the impact on his family of the decision to cancel.
In relation to the applicant's complaint concerning the article in the Broome Advertiser referred to in paragraph 14 of the Minister's submissions, being an article dated 26 January 2023, it was open to the Minister to have regard to that article and to give such weight as the Minister thought fit in relation to public interest to the observations made in paragraph 14. No jurisdictional error arises by reason of the Minister referring to the Broome Advertiser article in his considerations in respect of public interest.
In relation to proportionality and legal unreasonableness as alleged by the applicant, the Minister's decision identified a significant criminal history in paragraph 8. Whilst the applicant submitted it should only be recent events taken into account, the Minister is entitled to take into account the whole of the criminal history of the applicant as identified in paragraph 8 of the Ministers decision. In identifying that, the Minister was satisfied that grounds for cancellation existed under s 196(1)(g) of the Act, relying on para 2.43(1)(p). The history set out provides a logical and rational basis for that adverse finding by the Minister. The Minister's reasons in relation to public interest, identified that there are some factors that indicate cancellation may not be in the public interest, but found that they are significantly outweighed by the public considerations, such as the repeated nature of the applicant's violent offending and threat to public safety, which are in favour of the cancellation of the applicant’s visa.
Such findings reflect an evident and intelligible justification for the adverse exercise of the discretion by the Minister. The Court does not accept that the decision to cancel is not one to which a reasonable Minister could come given the adverse public interest factors to which the Minister referred. Accordingly, the decision to cancel the visa was not legally unreasonable, including in the exercise of the discretion and the outcome.
In relation to commitment to rehabilitation and ongoing treatment, this was not a substantially articulated argument that required the Minister to expressly addressed the same in his reasons. The applicant's current medical treatment and current programs in relation to rehabilitation articulated orally before the Court are not material which the Court can take into account in finding any jurisdictional error by the Minister. While the Court accepts the applicant is taking steps towards rehabilitation and positively responding to medication, this Court cannot determine the matter on compassionate grounds. These submissions invite impressible merits review. No jurisdictional error arises out of the applicant's reference to his rehabilitation and ongoing treatment.
The other ground identified in the applicant's second set of written submissions contends an unreasonable focus on criminal history in determining public interest. It was a matter for the Minister what weight should be placed on the applicant's criminal history. Criminal history was an obvious matter to take into account as a matter of public interest. It cannot be said that it was legally unreasonable for the Minister to conclude that the applicant had offences reflecting a repeated nature of violent offending and a threat to public safety.
It was logical and rational for the Minister to take into account the applicant's past criminal history as a whole and not just the recent events. The minster’s decisions discloses an evident and intelligible justification for the adverse decision. No jurisdictional error arises by reason of the applicant's contention to the contrary. The applicant’s submissions otherwise reflect a disagreement with the merits and invite impermissible merits review.
Accordingly, none of the matters raised in the applicant's oral or written submissions make out any jurisdictional error.
It is for these reasons the Court makes the above orders.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 13 November 2024
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