Clarke v Minister for Immigration and Multicultural Affairs

[2001] FCA 900

FEDERAL COURT OF AUSTRALIA

Clarke v Minister for Immigration & Multicultural Affairs [2001] FCA 900

DAVID JOHN CLARKE v MINISTER FOR IMMIGRAITON AND MULTICULTURAL AFFAIRS

Q 176 of 2000

SPENDER J
BRISBANE
13 JULY 2001

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 176 OF 2000

BETWEEN:	DAVID JOHN CLARKE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SPENDER J
DATE OF ORDER:	13 JULY 2001
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

The application be dismissed, with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 176 OF 2000

BETWEEN:	DAVID JOHN CLARKE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SPENDER J
DATE:	13 JULY 2001
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) from a decision of a Deputy President of the Administrative Appeals Tribunal (the AAT) given on 27 November 2000, whereby the Tribunal decided that an appeal by the applicant against the decision of the respondent to cancel his transitional (permanent) visa under s 501 of the Migration Act 1958 (Cth) (the Act) be disallowed. By notice of motion filed on 27 June 2001, the applicant seeks an order that the decision of the delegate of the Minister for Immigration and Multicultural Affairs dated 13 June 2000 to cancel his transitional (permanent) visa under s 501 of the Act be set aside, and the matter be referred back to the delegate for further consideration.

2. The ground of appeal in the applicant’s notice of appeal is that the Tribunal failed to apply the principles set out in Direction No. 17 of the Minister as required.

3. Mr Clarke appeared for himself.  He is presently held in immigration detention at the Arthur Gorrie Correctional Centre. 

4. Notwithstanding that the decision of the AAT was given on 27 November 2000, Mr Clarke successfully sought the adjournment of his application to the Federal Court so that two further avenues might be pursued by him.  In May 1996 the applicant was convicted on one count of manslaughter and two counts of interfering with human remains.  He was sentenced to six years imprisonment.  His convictions on those matters were brought to the attention of the Minister by police following Mr Clarke’s sentencing.  On 8 February 2001 he filed an application with the Supreme Court seeking an extension of the time in which to file an appeal against his conviction.  That application was listed for hearing on 19 April 2001.  Mr Clarke also made a formal complaint to the Queensland Criminal Justice Commission regarding a document prepared by Detective Sergeant Janene Eckersley which notified the Minister of the applicant’s conviction in relation to the above criminal offences.  Mr Clarke indicated to the Registry that that investigation might take some months to complete.   In the event, Mr Clarke’s application to the Supreme Court was refused.  The Queensland Criminal Justice Commission took no action concerning Mr Clarke’s complaint about the report prepared by Detective Sergeant Eckersley. 

5. Mr Clarke’s appeal to this Court was heard on 5 July 2001.  

6. It was accepted by Mr Clarke that he fails the character test referred to in s 501(2) of the Act, he having a substantial criminal record as defined in subsection 501(7) of the Act. Section 501(2) of the Act provides:

   “The Minister may cancel a visa that has been granted to a person if:

   (a)the Minister reasonably suspects that the person does not pass the character test; and

   (b)the person does not satisfy the Minister that the person passes the character test.”

7. Mr Clarke having failed the character test, the Tribunal correctly noted that:

   “…the Tribunal must consider whether to exercise the discretion in favour of the applicant, notwithstanding that he fails the character test.”

8. The Tribunal noted:

   “Ministerial Direction No 17 – Visa Refusal and Cancellation under Section 501 applies to the exercise of the discretion.” 

9. Most of the submissions of Mr Clarke on the appeal were based on the admission into evidence before the Tribunal of the document titled “Report of Conviction of Non-Citizen”, and the claimed reliance on it by the Tribunal.  It will be necessary to deal in detail with the contents of that report later. 

10. The more general complaint that the Tribunal failed to apply the principles set out in the Ministerial Direction is not made out.  Mr Clarke submitted that there being no reference within the reasons for decision of the Tribunal concerning the consideration set out in par 2.17(j) of the Direction:

    “It is conclusive that he did not take that consideration into account”.

11. This submission cannot be accepted.  It is not necessary that every factor identified in the Direction as being potentially relevant be addressed in every case.  It is not to be concluded that that consideration was ignored simply by the absence to a reference to it in the reasons for decision.  The question to be asked on this appeal is whether the Tribunal carried out the balancing exercise of the kind which the Direction requires.  There was no error of law in failing expressly to refer to the consideration referred to in par 2.17(j) of the Direction. 

12. The Tribunal referred to the

    “three primary considerations under this Direction – protection of the Australian community, expectations of the Australian community and, where the applicant is involved in a parental relationship with any children, the best interests of those children.”

13. The Tribunal considered each of those considerations with respect to the offence of manslaughter in the circumstances referred to by the sentencing judge.  The Tribunal said:

    “While the Jury and the Trial Judge accepted that the applicant was acting under extreme pressure at the time, this is still a repugnant crime and one which should be viewed as very serious – serious, that is, in terms of the policy and also in terms of community expectations relating to the conduct of members of our society.”

14. There are some observations by the Tribunal to which Mr Clarke, in his submissions, took exception.  The Tribunal said:

    “By Mr Clarke’s own admission he has participated in other activities which were not entirely above the law.  His Honour Judge Thomas made it clear that he believed Mr Clarke had been involved in a drug deal with the deceased persons a few days before their deaths.  While charges have never been laid with respect to this drug dealing activity, it does not reflect well on Mr Clarke’s character and suggests a deeper involvement in criminal activity than his prior convictions suggest.”

15. Further, the Tribunal referred to:

    “…the fact that Mr Clarke does have a prior criminal history and a long association with people involved in criminal activity weighs against him.”

16. The Tribunal considered each of the primary considerations and concluded:

    “…the primary considerations are weighed against the applicant.”

17. The Tribunal then referred to:

    “a number of secondary considerations which must also be taken into account, although one on its own cannot outweigh a primary consideration”. 

18. The Tribunal discussed Mr Clarke’s relationship with a Ms Greaves, who is an Australian citizen.  The Tribunal said:

    “Ms Greaves said that she would love to go to New Zealand with the applicant but she did not see how that was financially possible.  Ms Greaves is a trained nurse and would be able to obtain employment in New Zealand.  There is also an extensive welfare system in that country which Australian citizens can easily access if she chose not to work.”

    That passage contains an error, in that the only evidence before the Tribunal was that Ms Greaves was an assistant in nursing; she was not a “trained nurse”.  Such errors of fact as appear in the Tribunal’s reasons are not critical, and in my opinion it is plain that the Tribunal carried out the balancing exercise of the kind for which the Direction calls.  The Tribunal said:

    “While it is acknowledged that the applicant will suffer hardship as a result of having his visa cancelled, it would be lessened if his fiancee relocates with him.  In any event, it is a matter which falls well short of outweighing the primary considerations.

    Therefore, the secondary considerations as a whole do not counter-balance the primary considerations and the Tribunal elects not to exercise its discretion in favour of the applicant.”

19. The general ground of appeal fails.

    The Report of Conviction of Non-Citizen

20. The written submissions on behalf of the Minister concede that that report was not lodged by the Minister with the Tribunal in accordance with the provisions of s 500 (6F) of the Act. That concession was withdrawn in oral submissions.  That subsection is directed at documents which, relevantly, contain non-disclosable information.  The Report of Conviction is not such a document, and s 500 (6F) is of no application. 

21. The report contains statements to which Mr Clarke, on this appeal, takes great exception.  However, the position is that he was represented by counsel at the hearing before the Tribunal.  The report had been seen by counsel prior to the hearing.  There was no objection to the admission of the report into evidence before the Tribunal, and Mr Clarke was examined by his counsel and took the opportunity forthrightly to object to the contents of that report. 

22. Mr Clarke was questioned by his counsel:

    “…There are certain comments in that statement that you, I understand, disagree with …?”

    To which Mr Clarke answered, “Yes.”

    He was then asked:

    “Do you need to be shown it?---I can recall vividly what it says.  It makes allegations of insurance fraud.  It makes allegations of invalid pension benefit fraud and allegations of a violent confrontation between me and a private investigator and an insurance company.  It also casts aspersions on the character of my former wife.  Now, these allegations on their own are pretty laughable, but when they are mixed in with the likes of what I was convicted for, it is as though the writer has tried to pad up what she was trying to say about me.”

23. Clarke indicated that the private investigator did not give evidence at the trial, nor was any of his evidence tendered in court.  There was no evidence of fraud in relation to an invalid pension used in court, nor anything about social security fraud or insurance fraud used in court.  He was asked:

    “And you clearly rebut any suggestions in relation to those matters in that report?---I certainly do.”

24. Concerning the allegation of insurance fraud, he was asked:

    “So any allegation of that is totally untrue?---Yes, and had I had sufficient time I could have shown – I could have entered evidence in rebuttal, an Insurance Council of Australia report, and under the Freedom of Information Act secured records from the Department of Social Security to show that I was never ever involved in any sort of a fraud.”

25. Having regard to that evidence before the Tribunal, there is no basis for concluding that Mr Clarke was denied procedural fairness, or that there had been in any way some procedural impropriety. 

26. Further, in my opinion, on a fair reading of the Tribunal’s reasons, there is no basis for concluding that the Tribunal materially relied upon the identified “disputed facts” contained in that report.  There is nothing to suggest that the Tribunal did not accept Mr Clarke’s evidence in relation to those disputed aspects of the report.  It is true to say that the report is quite disparaging of Mr Clarke and makes a number of quite contentious claims.  I am, however, satisfied that there was no prejudice caused to Mr Clarke by reason of the report’s admission into evidence before the Tribunal.  A fair reading of the Tribunal’s reasons satisfies me that in the exercise of its discretion its focus was on the crime of manslaughter, which the Tribunal noted was listed in the Direction as a very serious offence, and the Tribunal also focused on the associated offences to which Mr Clarke pleaded guilty.  The Tribunal based its decision on the circumstances of the offences as identified by the sentencing judge, and not on any scenario referred to in the Report of Conviction.  The Tribunal said:

    “Interfering with a human body is not listed in the Direction but was described by the Trial Judge as ‘intrinsically revolting’ and ‘a serious interference with the proper administration of the criminal law’.”

    The Tribunal primarily was concerned with the nature and seriousness of those crimes.  It observed:

    “The applicant deliberately killed a person who was already incapacitated.  He then showed a complete disregard for the value of human life by disposing of, not only the body of the person who had tried to kill him, but also that of a person whom he regarded as a close friend.

27. I am satisfied that no error of law has been demonstrated in the exercise of the Tribunal’s  discretion.   The application will be dismissed with costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:             13 July 2001

The applicant appeared in person
Counsel for the Respondent:	Mr D.A. Kelly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	5 July 2001
Date of Judgment:	13 July 2001