BMN17 v Minister for Immigration and Border Protection

[2018] FCA 144

FEDERAL COURT OF AUSTRALIA

BMN17 v Minister for Immigration and Border Protection [2018] FCA 144

File number(s):

VID 350 of 2017

Judge(s):

O'CALLAGHAN J

Date of judgment:

23 February 2018

Catchwords:

MIGRATION – judicial review of decision made under s 501CA of Migration Act 1958 (Cth) – where Assistant Minister for Immigration and Border Protection did not revoke decision to cancel applicant’s visa – where applicant has criminal record

Legislation:

Migration Act 1958 (Cth), ss 196(1), 476A, 501(2), 501(3A), 501CA, 501G

Cases cited:

Falzon v Minister for Immigration and Border Protection [2018] HCA 2

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

Date of hearing:

1 November 2017

Registry:

Victoria

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

24

Counsel for the Applicant:

Applicant appeared in person

Counsel for the Respondent:

Mr N Wood

Solicitor for the Respondent:

Sparke Helmore Lawyers

ORDERS

VID 350 of 2017
BETWEEN:	BMN17 Applicant
AND:	MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE:	O'CALLAGHAN J
DATE OF ORDER:	23 FEBRUARY 2018

THE COURT ORDERS THAT:

1.The applicant’s application for an extension of time within which to file his originating application for review of a migration decision dated 6 April 2017 be allowed.

2.The originating application for review of a migration decision dated 6 April 2017 be dismissed.

3.The applicant pay the respondent’s costs, to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’CALLAGHAN J:

1. This is an application under s 476A of the Migration Act 1958 (Cth) (the Act) for judicial review of a decision of the Assistant Minister for Immigration and Border Protection (the Assistant Minister) made under s 501CA of the Act not to revoke a previous decision by a delegate of the respondent under s 501(3A) to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa (visa).

2. The grounds upon which review is sought are, as the respondent submitted, generic and un-particularised, and the applicant did not file any written submissions in support of them.

3. The applicant is a citizen of New Zealand.  He has lived in Australia for more than 30 years, having arrived in Australia as an infant. He never obtained Australian citizenship.

4. He has an extensive criminal record, dating back to his teens. Many of the offences for which he has been convicted involved violence, including against police officers.  As recently as March 2014, he was convicted of recklessly causing injury and sentenced to 42 months imprisonment.

5. On 24 August 2015, shortly before the applicant was released from prison, a delegate of the Minister for Immigration and Border Protection (the Minister) cancelled his visa under s 501(3A) of the Act. Section 501(3A) of the Act, when read in conjunction with ss 301(6)(a) and 301(7)(c), obliges the Minister to cancel a person’s visa if the Minister is satisfied that the person does not pass the “character test” because they have been sentenced to a term of imprisonment of 12 months or more. The applicant therefore became an unlawful non-citizen liable to immigration detention. The applicant has accordingly been kept in immigration detention since his release from jail: see ss 196(1)(a), (b) and (c) of the Act which “provide generally that a person detained under s 189 must be kept in immigration detention until he or she is removed from Australia, deported or granted a visa” (Falzon v Minister for Immigration and Border Protection [2018] HCA 2 at [12] (per Kiefel CJ, Bell, Keane and Edelman JJ).

6. Section 501CA of the Act permits a person whose visa has been cancelled under s 501(3A) to make representations about revocation of that decision, in accordance with an invitation by the Minister. Section 501(3A)(4) of the Act allows the Minister to revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied that the person passes the “character test” (as defined by s 501 of the Act) or that there is another reason why the original decision should be revoked.

7. In September 2015, the applicant made such representations to the Minister.  The applicant subsequently provided further information and submissions in support of his request for revocation of the decision to revoke his visa.

8. In his written statement under s 501G of the Act, the Assistant Minister summarised the applicant’s reasons why the decision to cancel his visa should be revoked.

9. Under the heading “Non-revocation outcome” the Assistant Minister concluded, having considered all relevant matters including an assessment of the character test, and all the evidence before him provided by, or on behalf of, or in relation to the applicant, that he was not satisfied that the applicant passed the character test and that there was no other reason why the original decision should be revoked.

10. The Assistant Minister summarised the reasons articulated by the applicant why the decision to revoke his visa should be revoked, and then proceeded to consider each of them in turn, and in detail, in the numbered paragraphs of his statement of reasons referred to below:

    (1)He has three minor children aged between three and 15 years, and it would have a severely detrimental effect on his children if he was removed: [13]-[26].

    (2)He also undertakes a parental role towards his current partner’s five year old child, who sees him as a father and would suffer greatly if he was removed: [19] and [24].

    (3)He has three minor nieces/nephews: [21] and [25].

    (4)He has lived in Australia since he was one year and seven months old: [28].

    (5)His immediate and extended family live in Australia and are supportive of his rehabilitation: [31].

    (6)His mother has high cholesterol, depression, and anxiety which will not improve if he is removed to New Zealand: [32] and [35].

    (7)He has an adult sister who has depression which worsens when he is imprisoned and would worsen if he was removed to New Zealand: [33] and [35].

    (8)He has a grandmother who may be affected if he was removed to New Zealand: [30] and [35].

    (9)His partner has depression and anxiety as a result of his absence and her mental health would suffer if he was removed to New Zealand: [34] and [35].

    (10)He had a dysfunctional childhood that contributed to his substance abuse: [50].

    (11)He developed a severe drug and alcohol dependence at a young age and this contributes to his offending: [51] and [52].

    (12)He may have neuropsychological issues due to multiple violent assaults and accidents and drug and alcohol dependence: [37] and [38].

    (13)He has completed rehabilitation programs in relation to violence and drugs and alcohol use: [53].

    (14)He has held employment in Australia for some periods and may have an offer of work if he is released into the community: [29].

    (15)He has no family support and nowhere to live in New Zealand and may self-harm because of this: [37].

    (16)His partner may not be able to go to New Zealand with him due to financial constraints: [34] and [35].

    (17)He does not pose an unacceptable risk to the community: [70].

11. Having considered each of the matters raised by the applicant in those paragraphs, the Assistant Minister concluded:

    [67] … I gave significant weight to the very serious nature of the crimes committed by [the applicant], including recklessly cause serious injury, which is of a violent nature, and considered many of [the applicant’s] violent-related offences were committed against police officers.

    [68] Further, I find the Australian community and serving police officers could be exposed to great harm should [the applicant] reoffend in a similar fashion. I could not rule out the possibility of further offending by [the applicant].

    [69] I am cognisant that where great harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the decision to cancel the visa, even applying a higher tolerance of criminal conduct by [the applicant], than I otherwise would, because he has lived in Australia for most of his life, or from a very young age.

    [70] In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that [the applicant] represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children and other family members, as a primary consideration, and any other considerations as described above. This includes his lengthy residence and bonds, employment, and the hardship [the applicant], his family and social networks will endure in the event the original decision is not revoked.

12. The applicant filed his application for judicial review of the Assistant Minister's decision not to revoke the cancellation of his visa four days late.

13. An extension of time was therefore required and was made.  The Minister did not oppose that application, so it will be allowed.

14. The applicant’s grounds of review are (errors in the original):

    (1)The minister denied me procedural fairness because they didn’t give me a fair Hearing.

    (2)The Minister misapplied or misinterpreted the law.

    (3)The Minister failed to properly consider all my claims.

    (4)The Minister failed to consider a relevant consideration.

    (5)The Minister didn’t give me the opportunity to comment on an issue that was in dispute.

    (6)The Minister made a decision that was legally unreasonable.

    (7)The Minister made a decision for which there was no evidence or that was not reasonably open on the materials.

15. The applicant was required to file an outline of submission in support of his application for judicial review no later than 18 October 2017, but he did not do so, by the due date, or at all.  Nor did he make any submissions of substance at the hearing of his application.

16. The applicant’s complaint that the Assistant Minister denied him procedural fairness – including by not affording him a fair “hearing” and by not giving him an opportunity to comment on an “issue that was in dispute” – is without foundation.

17. The Assistant Minister complied with the requirements in s 501CA(3) of the Act to give the applicant a written notice that sets out the delegate’s original cancellation decision and particulars of the “relevant information” in relation to that decision (as defined in section 501CA(2)). He also expressly invited the applicant to make representations about revocation of the original decision. He accordingly gave the applicant the “hearing” that the Act required him to be given.

18. Nor is it apparent that there was any “issue” critical to the Assistant Minister’s decision of which the applicant did not have “notice”.

19. The applicant’s complaint that the Assistant Minister failed to consider his claims (or representations or evidence or submissions) is also without any merit.

20. It is readily apparent that the Assistant Minister dealt in detail with each of the reasons advanced by the applicant why the decision to cancel his visa should be revoked.

21. As Allsop CJ observed in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [21] in the analogous context of a cancellation decision under s 501(2) of the Act:

    The correct question, or perspective, if one is looking at the outcome in question, is not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision-maker could reasonably come to the conclusion. Depending upon the nature of the decision, its attendant considerations and the statute in question, the Court may or may not have a degree of familiarity and confidence in assessing how a decision-maker ought to approach the matter. The decision and statutory context in Li was an example of this. Here, the decision was not a procedural decision; it was a substantive one concerned with an evaluation of the protection of the Australian community by a Minister of the Crown, personally.

22. There is nothing apparent from the reasons of the Assistant Minister in this case that could be impugned as legally unreasonable, in the sense explained by the Chief Justice.  Nor did the Assistant Minister make any finding for which he had no evidence. On the contrary, the manner in which the Assistant Minister explained and weighed up the various matters in concluding that there was not “another reason” why the delegate’s visa cancellation decision should be revoked was clearly open to him.

23. Finally, there is no apparent misapplication or misunderstanding by the Assistant Minister of any aspect of the Act in his written statement, nor are there any identifiable “relevant considerations” that the Assistant Minister has not considered. The unspecified complaints made by the applicant in these regards are also without any merit.

24. The application for judicial review must therefore be dismissed, with costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.

Associate:

Dated:        23 February 2018