Blanco v Minister for Immigration
[2005] FMCA 136
•15 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BLANCO v MINISTER FOR IMMIGRATION | [2005] FMCA 136 |
| MIGRATION – AAT presidential member affirmed cancellation of permanent resident visa – failure to satisfy character test – conviction for narcotics trafficking – whether Tribunal properly considered best interests of children – jurisdiction of Federal Magistrates Court – matter transferred to Federal Court. |
Administrative Appeals Tribunal Act 1975 (Cth), ss.44, 44AA(2)
Administrative Decisions (Judicial) Review Act 1977 (Cth), ss.5, 10(2)
Federal Magistrates Act 1999 (Cth), ss.39(2), 39(3), 39(3)(d)
Judiciary Act1903 (Cth), s.39B
Migration Act1958 (Cth), ss.474(1), 483, 483A, 500, 500(6L), 501(2), 501G
Duncan v Fayle [2004] FCA 723
Perez v Minister for Immigration [2002] FCA 450
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Repatriation Commission v Maley (1991) 14 AAR 278
Wan v Minister for Immigration and Multicultural Affairs (2000) 107 FCR 133
| Applicant: | JOSE MANUEL BLANCO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 3061 of 2004 |
| Delivered on: | 15 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 15 February 2005 |
| Judgment of: | Smith FM |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Ms L Clegg |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Order under s.39(2)(b) of the Federal Magistrates Act that the proceedings be transferred to the Federal Court.
Direct under Federal Court Rules O.82 r.1 that the respondent file this order in the New South Wales Registry of the Court.
Order that the respondent's costs of today's hearing be her costs in the proceedings.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3061 of 2004
| JOSE MANUEL BLANCO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
In this matter the applicant filed an application in form 56A under the Federal Court rules in this Court on 12 October 2004 seeking judicial review under s.39B of the Judiciary Act 1903 (Cth) of a decision made by a Deputy President of the Administrative Appeals Tribunal on
21 September 2004. The Deputy President affirmed a decision of a delegate dated 2 July 2004 and made under s.501(2) of the Migration Act 1958 (Cth) cancelling a Transitional (Permanent) visa held by the applicant.
The applicant had been given that visa as a minor in 1988, when his family was given entrance to Australia under a Central American Refugee Program. Unfortunately, within a few years of his arrival he became involved in narcotics, and in particular in an importation in November 1992. For this, he was charged in 1997 with complicity in the importation of a quantity of cocaine and sentenced, ultimately by the NSW Court of Criminal Appeal, to a period of 10 years 6 months imprisonment with seven years non-parole period. He was due for release from State custody on parole in July of 2004 and was then immediately, I assume, taken into Immigration detention due to the present decision of the delegate.
Under the expedited procedure set out in s.500 of the Migration Act for obtaining review of a s.501(2) decision, the Tribunal was obliged to reach its decision within a period under s.500(6L) which, in fact, expired on the day after the Deputy President published his decision. The expedited procedure also limited the ability of the applicant to prepare for the hearing before the Tribunal, and the Tribunal explains how it was obliged to exclude certain evidence sought to be presented by him and to refuse his request for an adjournment. He was assisted before the Tribunal by a person who was neither a legal practitioner nor a Migration agent.
The issue before the Tribunal concerned not the power to cancel his visa but how discretionary consideration should be weighed. There were obviously weighty factors in favour of cancellation, but the Tribunal was also obliged under the Ministerial Direction to consider the best interests of two children, one of whom was an ordinary member of his household and the other his own son to a woman with whom he had a relationship before he was taken into custody. These boys were aged 12 and 9. The Tribunal addressed that issue in one paragraph:
37. I commence with the children; I accept that Andres should be regarded as if he were the Applicant’s child. In the ordinary way a child’s best interests will usually be served by his having access to both parents. This will be so even where the parents have parted or are divorced. In this case there was no evidence of any kind as to the Applicant having any real involvement with either child. His lengthy prison term must be taken into account in this context, but there was no evidence (even by the Applicant) of communications with either of them before or after his incarceration and whether verbal or in writing. (Christopher was of course very young when the Applicant went into prison.) The applicant said that while in prison he received job offers from friends who had their own businesses; but no detail whatever was furnished and this evidence is inherently improbable. It is possible that the Applicant has through the courses undertaken by him in prison developed some skills but full-time employment might be difficult for him to obtain. It is likely that if he were allowed to stay in Australia that he would have to depend, as he did previously, on social security. Put in other words the extent to which the Applicant could contribute to the welfare of the children in material, or for that matter in any other terms, would appear to be very limited.
It appears from the applicant's application to this Court that he wishes to argue that this discussion by the Tribunal was attended by error of law. However, he has not received any legal assistance in preparing his application or for the hearing and his argument at present is undeveloped.
The matter came before me on a first hearing appointment on 26 October 2004, when there was discussion about the jurisdiction of this Court to hear the matter. At that point the Minister had not decided whether to dispute this Court's jurisdiction. I directed that the Minister file any objection to competency by 20 November 2004. No objection to competency has been filed.
I also directed the applicant to file and serve an amended application with particulars and any evidence, and to file written submissions prior to the hearing appointed for today. He has not done any of these things, but has applied for an adjournment today to allow him to pursue efforts to obtain legal assistance. He tells me that he was refused legal assistance by the Legal Aid Commission, apparently because this type of matter is outside the Commonwealth legal aid guidelines. By letter dated 10 February 2005 he was informed by the New South Wales Bar Association that assistance is not available under the Legal Assistance Referral Scheme offered by that Association. He requested a further opportunity to find legal assistance.
Reading the papers before today's hearing, I had a concern whether the Tribunal made errors of law in its consideration of the best interests of the two children. In particular:
i)Whether it was open to the Tribunal to conclude that “there was no evidence (even by the applicant) of communications with either of them before or after his incarceration and whether verbal or in writing”. There is Full Court authority that a finding that there is no evidence on a significant matter when, in fact, there was evidence before the Tribunal on that matter will involve an error of law (see Repatriation Commission v Maley (1991) 14 AAR 278 at 285-6). In the present case, there was evidence before the delegate and the Tribunal by way of a statement by the children's mother indicating what, in my opinion, could only be described as a close emotional relationship expressed in many communications between the children and their father while he has been in custody (see pages 60 and 61 of the s.501G documents).
ii)Whether in the above paragraph or elsewhere in its reasons, the Tribunal has adequately addressed and made findings as to the children's best interests in accordance with authorities such as Perez v Minister for Immigration [2002] FCA 450 at [119] and Wan v Minister for Immigration and Multicultural Affairs (2000) 107 FCR 133 at [32].
When I raised these concerns today, counsel for the Minister has pointed to arguments available to the Minister that the Tribunal did not overlook the evidence I have referred to, and that it did reach findings about the children's best interests. In view of the procedural course which I have decided to take, I do not need to form any conclusions about those arguments or the strength of the applicant's arguments. It is enough for me to say that on my reading of the papers I consider that the applicant's challenge has some merit, and deserves to be presented to a Court with legal assistance if that can be achieved.
I was therefore minded to grant the applicant's adjournment today and, subject to questions of jurisdiction and transfer which I will address shortly, to direct that the applicant be referred to the Registrar for referral to a lawyer on the Court's pro bono panel under Federal Magistrates Court rule 12.03(1). I would then have made consequential orders giving the applicant leave to amend his application and to bring the matter on for hearing. However, finding a hearing date in my diary for this year for a matter possibly lasting more than half a day would not have been easy.
Within the matter, there are several legal issues including: whether the grounds I have suggested above would amount to jurisdictional error within the principles evolving from Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476; and whether, if such error were found, a remittal for re-hearing by the Tribunal would be futile in view of s.500(6L). There are some difficult questions of construction of that section in its application to matters remitted under an order for judicial review, and, according to counsel for the Minister, these have not been addressed in any published judgment.
The Court's jurisdiction in this matter is complicated, but not unclear. The Minister submits that I have jurisdiction whether or not jurisdictional error is found in the Tribunal decision, and I accept that submission. However, my jurisdiction under both eventualities is somewhat qualified.
If jurisdictional error is not found then, by reason of s.483 of the Migration Act, the right of appeal under s.44 of the Administrative Appeals Tribunal Act 1975 (Cth) would not be available to the applicant. His remedies would be found in an application to the Federal Court under s.39B of the Judiciary Act1903 (Cth) or s.5 of the Administrative Decisions (Judicial) Review Act 1977 (Cth), and to this Court under the same jurisdictions which are extended to it under s.483A of the Migration Act. However, a finding against jurisdictional error would cause these applications to fail due to s.474(1) of the Migration Act.
If jurisdictional error is to be found in the Administrative Appeals Tribunal decision, then the proper avenue of appeal to establish this is an appeal to the Federal Court under s.44 of the Administrative Appeals Tribunals Act. The exclusion of that right of appeal by s.483 of the Migration Act would not apply, since the Tribunal decision would not be “a privative clause decision”. Although the Federal Court has power in some cases to transfer appeals to this court, in the present case s.44AA(2) would prohibit this, since the Tribunal was constituted by a presidential member.
This Court’s general judicial review jurisdiction over migration decisions under s.483A of the Migration Act is available whether or not jurisdictional error is found, and is not excluded by s.44AA of the AAT Act. The Court therefore has a concurrent jurisdiction to give relief in respect of jurisdictional error by the Deputy President. However, that jurisdiction would be discretionary, and by reason of the normal principles of discretion under s.39B of the Judiciary Act and the effect of s.10(2) of the AD(JR) Act, the Court would have had a discretion to decline to entertain the application in the face of the more specific or appropriate avenue of appeal available under s.44 of the AAT Act. A discussion of this Court's discretion in such cases is found in Duncan v Fayle [2004] FCA 723, 38 AAR 541 at [26].
This jurisdictional structure suggests to me that in the present case, rather than adjourn the matter for a hearing before me, it would more accord with the policy reflected in s.44AA(2) of the AAT Act for me to transfer the matter to the Federal Court to allow it to be argued and decided in that Court.
I raised this with both parties. Understandably, the applicant had difficulty understanding the legal complexities, but indicated that he would consent to a transfer. The Minister indicated that, particularly in view of the need for an adjournment, a transfer would not be opposed.
This Court has a discretion to order a transfer under s.39(2) of the Federal Magistrates Act 1999 (Cth) “on its own initiative”. The matters to be considered are set out in s.39(3) and in Federal Magistrate Court rule 8.02(4). I have considered all the matter prescribed.
I think issues of cost, convenience and speed are not impediments to the transfer and, indeed, the balance of convenience on those heads may lie slightly in favour of a transfer. The question under r.8.02(4)(a) whether the matter raises questions of general importance is not clear. As I have indicated there may be questions of law to be addressed as to what errors of law amount to jurisdictional error and the effect of s.500(6L), but these may not be clearly “raised”.
I prefer to rest my reasons for the transfer on the consideration identified in s.39(3)(d): “the interests of the administration of justice”. I consider that a transfer would clearly serve these interests by giving effect to the policy underlying s.44AA(2) of the Administrative Appeals Tribunal Act. This provision suggests that it would be generally inappropriate in the hierarchy of appeal from the Tribunal for me to rule upon whether a decision of a deputy president of the Tribunal is vitiated by jurisdictional error. In circumstances where I consider that the application may raise meritorious grounds, I consider that its consideration should take place in the Federal Court.
For the above reasons I propose to order the transfer of the proceedings, and make consequential directions which I shall now formulate.
RECORDED : NOT TRANSCRIBED
I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 17 February 2005
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