Bethell v Minister for Home Affairs

[2019] FCCA 1740

FEDERAL CIRCUIT COURT OF AUSTRALIA

BETHELL v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1740

Catchwords:
MIGRATION– review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.116

Applicant: KARL ANTONY BETHELL

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1030 of 2018

Judgment of: Judge Vasta

Hearing date: 23 May 2019

Date of Last Submission: 23 May 2019

Delivered at: Brisbane

Delivered on: 23 May 2019

REPRESENTATION

Counsel for the Applicant: Mr Morris QC

Counsel for the First Respondent: Mr Byrnes

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application filed 9 October 2018 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $7,467.00.

IT IS NOTED:

A.  That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1030 of 2018

KARL ANTONY BETHELL

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNLA

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. On 11 September 2018, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision to cancel the subclass 457 temporary work skilled visa of the Applicant, Karl Antony Bethell.  On 9 October 2018 Mr Bethell filed an originating application in this Court seeking that there be judicial review of that decision of the AAT.

2. In short compass, the background of this matter is this. The Applicant came to Australia on 2 January 2013 on that 457 visa sponsored by QGC Shell Group.  That visa was due to have expired on 2 January 2017. 

3. The Applicant had, on that visa, his wife and his two children, one of whom is his biological child and the other is the biological child of his wife only.  Whilst in Australia the relationship between the Applicant and his wife, Ms Taylor, broke down.  The Applicant was charged with a number of offences.

4. On the basis of the fact of his being charged, it then fell to the Minister to consider whether the visa ought be cancelled. Section 116 of the Migration Act 1958 (Cth) (“the Act”) says:

   116 Power to cancel

   (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   …

   (e) the presence of its holder in Australia is or may be, or would or might be, a risk to:

   (i) the health, safety or good order of the Australian community or a segment of the Australian community; or

   (ii) the health or safety of an individual or individuals; or

5. In this case, the Tribunal had access to the Queensland Police documents which indicated the short facts upon which the charges were brought.  The Tribunal asked the Applicant, through his then representative, to make submissions on that material.  Those submissions were made.  Further, the Applicant himself gave a submission back to the Tribunal.

6. I don’t want to go through the details of what it is that is alleged, because, whatever it is, I say it is quite clear to me that Mr Bethell denies the criminality of what it is that has occurred.  The allegation is that there has been what is called “stalking” behaviour to the wife after the breakdown of the relationship, such that she alleges, and the police allege, that there is a danger to her.

7. The Applicant has said that he disputes that.  He is saying that Ms Taylor is a danger to his child and that he is doing whatever he can to save the child from danger from her.  Nevertheless, the Tribunal noted that the threshold was a low bar; that it required the Tribunal to determine whether the presence of the Applicant in Australia may be a risk or might be a risk to the health or safety of an individual.

8. The Tribunal said this at paragraph 24:

   24. The information contained in the Queensland Police Service Court brief sets out the case against the applicant.  It asserts a pattern of calculated stalking on the applicant’s part, following the demise of his domestic relationship with Ms Taylor, and a pattern of conflict in relation to the care arrangements for the child [name omitted].  The Tribunal infers from the charges having been brought against him that the Queensland Police considered the evidence against him to be sufficiently probative to justify charging him with the offences he remains alleged to have committed, and that he has a case to answer on these charges.  That the Queensland Police Service, which is an independent and authoritative body, decided to charge the applicant carries substantial weight with the Tribunal.  On those grounds, the Tribunal finds the applicant may or might have engaged in unlawful stalking of Ms Taylor, and the remaining charges he faces, as alleged.

   25. Whilst trite, the Tribunal considers that a person’s past behaviour points to how that person will or might behave in the future.  The fact of the charges as set out here is sufficient for the Tribunal to conclude that the applicant’s presence in Australia is or may be, or would or might be, a risk to the health or safety of Ms Taylor. 

9. For those reasons, the Tribunal found that the ground for cancellation pursuant to s.116(1)(e)(i) and (ii) exists. The Tribunal noted that this does not require mandatory cancellation, but the Tribunal then had to consider whether the power to cancel the visa should be exercised. It was then that the Tribunal looked at the matters in their discretion.

10. The Tribunal looked at the purpose of the Applicant’s travel and stay in Australia and noted that he did have the expertise as described by the person who is a field manager. Even though it would seem that person was not speaking on behalf of the company, he said that he would re-employ the Applicant and that the Applicant is an asset to the oil and gas industry in Australia. 

11. The Tribunal looked at the extent of compliance with the visa conditions and concluded that the Applicant showed no indications that he had breached these conditions or that he was uncooperative in this dealings with the Department.

12. The Tribunal looked at the circumstances in which the ground for cancellation arose and noted that the Applicant maintained his innocence and that the Tribunal was not tasked in deciding whether he was guilty or innocent and did not have sufficient evidence before it to decide that matter; that consideration was neutral.  Then the Tribunal looked at the degree of hardship that may be caused; that is, financial, psychological, emotional or other hardship. The Tribunal also spoke of the separation that would necessarily occur between the father and his child.

13. The Tribunal looked at whether there were mandatory legal consequences, such as whether cancellation would result in him being unlawfully in Australia, being subject to detention, or whether he would be in indefinite detention because of the cancellation, or whether he could make any other valid visa application without the Minister’s intervention.  The Tribunal went through all of those aspects. 

14. The Tribunal looked at the consequential cancellations under s.140, that being that Ms Taylor and her two children, if the visa is cancelled, automatically have their visas, that is, the dependent visa under the 457 visa, cancelled. 

15. And then the Tribunal looked at whether any international obligations would be breached as a result of the cancellation, and the Tribunal took particular care to look at the Convention on the Rights of the Child.

16. Finally, the Tribunal looked at any other relevant matters and noted that the Applicant had completed a range of courses since he had been incarcerated and had performed positively. 

17. However, in the overall conclusion, the Tribunal considered that the circumstances as a whole are militated towards the exercise of the power of cancellation and so thus cancelled the visa.

18. The Applicant, in the originating application, had four grounds.  I will read them very quickly into the record:

    1. Jurisdictional error; paying regard to irrelevant considerations. The AAT considered incorrect criminal charges; as present in both paragraph 4 and 21 of their decision. 

    2. Jurisdictional error; Disregarding relevant considerations. The AAT did not consider the risk or residual risk of their decision towards the child [name omitted]. Whom would likely to be taken into care, in a country of non-habitual residence, on the conclusion of the applicant fathe’rs criminal trial.

    3. Jurisdictional error; Failure to consider the breaches of the Criminal Code and “1980 Hague Convention on the Civil Aspects of International Child Abduction,’ by the mother of the child [name omitted], resulted in a decision that is seriously illogical, irrational and unreasonable.

    4. Jurisdictional error; Disregarding relevant considerations such as breaches of the Criminal Code and 1980 Hague Convention on the civil aspects of international child abduction by the mother ’ by the mother of the child [name omitted]; led to the resultant decision breaching the Convention on the Rights of the Child.

19. Today the Applicant has had, and for which the Court is most grateful, the assistance of a pro bono counsel, Mr Morris QC.  Mr Morris has conferred with his client and has been able to hand up to me a seven-page outline of submissions of the Applicant that was prepared by the Applicant for this purpose. Whilst those submissions are quite informative, it seems to me that, realistically, they are recasting what it is that the Applicant is saying are the jurisdictional errors.

20. Firstly, it seems to me that the Applicant is saying that there is a jurisdictional error in that the AAT considered material which was irrelevant.  The materials that the Applicant says were irrelevant were the summary brief of the Queensland Police Service; that is, that material that I have read into the record contained in paragraph 24 of the Tribunal’s reasons. 

21. The Applicant contends that the International Covenant on Civil and Political Rights prevents an allegation or an untested allegation being used.  He says that, according to that convention, the rights of a person are, that until they have had a proper trial, whether that be a trial according to the common law system that our country uses or whether it be the civil law system of the majority of other countries, leading to a verdict that the person is guilty of those charges, then it remains an allegation and cannot be used against him.

22. And that is undoubtedly a correct statement of the law.  The application of that particular convention depends upon whether or not the country, who is a signatory to it, in this case,  Australia, has actually enacted the treaty to a point that its laws do satisfy that treaty and, if not, it is then that one looks at the application of the treaty. 

23. Whether one looks at the convention or not, the point that the Applicant makes is still one that what has happened is that the mere fact of these allegations, which have yet to be proved, have been used against him and that is contrary to not only what this particular covenant mandates, but also it is contrary to Australian law.

24. He is undoubtedly correct, but he actually misses the point with regard to this matter.  The untested allegations cannot be used to visit criminal sanctions upon him; that is, he cannot be sentenced to a term of imprisonment.  He cannot have the legal consequences of a conviction visited upon him. 

25. He is in remand custody at this point, but, as has been noted, he has not applied for bail.  Remand custody is not a punishment because of the allegations themselves.  Remand custody is custody that results from an examination of the circumstances as to whether a person should be on bail, or whether they should be in custody.

26. As the Applicant has said, he has not applied for bail.  But even if he had and it had been refused, he is not in custody because of the acting of the State upon untested allegations.  The use of those allegations by the Tribunal has been for a totally different purpose.  The Tribunal was at pains to say in the reasons, that the Tribunal is not tasked with deciding whether the Applicant is guilty or innocent of the charge; nor does it have sufficient evidence before it to decide that matter.

27. The Tribunal said, accordingly, it is not able to assess whether the Applicant will or will not be convicted on the charges that remain against him.  On that analysis, the consideration of the circumstances in which the ground for cancellation arose were considered to be neutral. 

28. The Applicant, however, looks at this aspect of what the Tribunal has said:  that the grounds for cancellation arise because of the charges and it is simply those facts that ground the consideration.

29. That is so, but that is not a consideration as to whether the Applicant is actually guilty of the matter.  It is whether on what has been said to have occurred, in and of itself, gives rise to a risk to the health or safety of an individual or individuals because of the mere presence of the Applicant.  That is not visiting the Applicant with the consequences of a criminal conviction.  That is a matter where the Minister is simply allowed to look at the circumstances.

30. The difference in this can be illustrated by a particular example.  If an Applicant who is on a visa assaults someone, and assaults that person so badly that they have suffered bodily harm, that is a matter that is a fact.  In a trial, the person may be found not guilty because of defences of self-defence or provocation, or something of the like.  That does not affect whether or not the person is a risk to the health or safety of an individual.  That is because the finding of criminal guilt is a consideration totally different to whether a person is a risk to the health or safety of others.

31. The problem with the Applicant’s ground in this respect is that he has conflated the risk to health and safety of Ms Taylor as being equivalent to his guilt of the charges that have been brought by the Queensland Police Service.  As that conflation is not a proper conflation, it does not seem to me that the Tribunal has considered irrelevant material.  For that reason, I do not accept that there has been a jurisdictional error in relation to that ground.

32. The second ground, that seems to have arisen from these submissions, is that the Tribunal failed to consider a relevant consideration.  That consideration is that there were other international conventions to which the Tribunal should have looked at in assessing the reasons why the exercise to cancel the visa should not have occurred. 

33. They are that the child is allegedly in danger in the care of the mother and that, if the father is allowed to be free, then he will be in a position to protect him; whereas if the father is deported because his visa is cancelled, then the child will remain in danger because the Applicant will be overseas and will find it difficult to prosecute a case before the Family Court that the child should be removed from the mother and sent back to the father.

34. It seems to me that, whilst the Applicant quotes and relies upon the convention, it is not a matter of whether the convention has been looked at; it is whether or not the best interests of the child have been considered. 

35. In the decision, the Tribunal has said this at paragraphs 48 and following:

    48. In considering whether to exercise its discretion to cancel the applicant’s visa, the PAM3 policy guidelines suggest the Tribunal should assess whether Australia would be in breach of its international obligations, and to take Australia’s international obligations into account.  These include Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention of the Rights of the Child (CRC).  At common law, the best interests of the Australian children are also a relevant consideration in a review such as this one.

    49. Article 3(1) of the CRC provides that in all actions concerning children, whether undertaken by private or public social welfare institutions, courts of law, or administrative and legislative bodies, the best interests of the child shall be the primary consideration.  Article 5 requires state parties to respect the responsibilities, rights and duties of the extended family in a manner consistent with the evolving capacities of a child.  Article 9 provides that children shall not be separated from their parents against their will.  Article 24 concerns the right of a child to enjoy the highest attainable standard of health.

    50. In effect, those articles of the CRC provide that the Department (and the Tribunal) should consider the interests of children affected by their decisions.

    51. The applicant’s visa being cancelled could bring forward the applicant’s return to the United Kingdom.  That will remove him from geographic proximity to the child [name omitted].  Potentially, that invokes Article 9 of the CRC by separating the applicant from his son.  The Tribunal gives that some weight, but the weight is limited.  As stated above, the applicant is in Australian on a temporary 457 visa that would have expired already, but for the cancellation.

36. In that respect, it seems to me that the Tribunal has considered the matter.  The complaint that the Applicant makes is that the consideration was not in the sorts of terms that the Applicant would like, nor was the result the one that the Applicant would like.  There clearly was consideration and so, therefore, that particular ground has no merit and no jurisdictional error has been established.

37. The final ground that it said to establish jurisdictional error is, that upon the whole of the evidence, the conclusion reached that the visa could be cancelled and then the conclusion that the discretion should be exercised to cancel the visa were conclusions that were simply not open on the evidence.  All that is required for me to dismiss this ground is that there actually be some evidence that would enable a Tribunal to come to that conclusion. 

38. The conclusion that the bar under s.116(1)(e)(ii) was satisfied is quite obviously met on this evidence. The allegations made are that the Applicant had stalked Ms Taylor. That is sufficient to show that the conclusion was open. As to the discretion being exercised, when one looks at everything that has been said and looked at by the Tribunal, the conclusion that the discretion should be exercised was one that was well and truly open.

39. In that regard, there has been no jurisdictional error established.  Therefore, there not being any jurisdictional error, the application is dismissed with costs in the said amount of $7,467.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date: 27 June 2019