Coleman v Minister for Immigration
[2005] FMCA 599
•22 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COLEMAN v MINISTER FOR IMMIGRATION | [2005] FMCA 599 |
| MIGRATION – VISA – Transitional (Permanent) visa – cancellation of visa – Applicant a citizen of the United Kingdom – application contains no grounds of review – no reviewable error. PRACTICE & PROCEDURE – Competency – Objection as to competency – application nearly two years out of time. |
Migration Act 1958 (Cth), ss.477, 501
Re Minister for Immigration and Multicultural and Indigenous Affairs ex parte Palme (2003) CLR 212
| Applicant: | GERARD MICHAEL COLEMAN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 22 of 2005 |
| Delivered on: | 22 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 22 April 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Applicant: | In Person (In Immigration Detention) |
| Counsel for the Respondent: | Mr Kennett |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application is not competent as the Court has no jurisdiction to review the decision of the Respondent Minister.
That the application is dismissed.
That the Applicant is to pay the Respondent’s costs fixed in the sum of $1,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 22 of 2005
| GERARD MICHAEL COLEMAN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Minister for Immigration and Multicultural and Indigenous Affairs to exercise the Minister's discretion under s.501 of the Migration Act to cancel the Applicant's visa.
The Applicant has been held in immigration detention since February 2003. The decision of the Minister was made on 10 January 2003.
The Applicant is a citizen of the United Kingdom. He was born in 1956. He arrived in Australia at the age of 17, in January 1974. He has largely resided in Australia since then except for two trips out of the country, one to his native Scotland and one for a holiday in Fiji.
He last re-entered Australia in December 1982. The Applicant has held a transition (permanent) visa. The Minister exercised his discretion on the basis of the Applicant's substantial criminal record, the fact that the Applicant failed character tests set out in s.501(6). As will be seen the Applicant has had a substantial criminal history and has served sentences in prison which now total more than two years.
The application before the Court was filed on 4 January 2005 whilst the Applicant was an inmate of the Villawood Immigration Detention Centre. There is no record of any previous application having been made, notwithstanding the fact that the Applicant had been an inmate at the detention centre for almost two years at that time.
The application does not set out any orders sought but contains the names of people employed in the pro bono scheme of the Law Society of New South Wales and the Legal Assistance Scheme of New South Wales Bar Association and the names of two members of parliament.
There are no grounds in the application set out. This does not mean of course that the Court should not consider an application for review because the Applicant in a statement in the form of a submission which he has prepared and submitted today makes it clear that he seeks a judicial review of the decision.
The Respondent Minister objects to the competency of the application. A notice of objection to competency is filed when a party objects to the jurisdiction of a Court to hear an application. The Respondent Minister claims in the notice that the Court has no jurisdiction to review the decision because it has been lodged outside the time limit set in sub-section 477(1)A of the Migration Act. That subsection sets out that an application under s.39B of the Judiciary Act and s.483A of the Migration Act must be made within 28 days of the notification of the Minister's decision. It can be seen that this application is nearly two years out of time.
Nevertheless, an objection to the competency of the application based on that ground will not be successful if it can be shown that there was a jurisdictional error made in the decision. If there is a jurisdictional error then the decision would not be what is called a privative clause decision under s.474 of the Migration Act. In order to make a decision as to competency, the Court must examine the substantive application in order to see whether a jurisdictional error has in fact been made.
I have read the written submissions prepared by the Respondent.
I have read the written submissions prepared by the Applicant and I have heard oral submissions both from the Applicant and from counsel for the Respondent.
The Applicant accepts the fact that he has a significant criminal record. Much of it he attributes to his ex-wife and points out the irony of the situation that his ex-wife not only remains in contact with him, she telephones him frequently at the detention centre, visits him frequently and he believes that she wishes to resume the relationship. The Applicant has made it clear to the Court that he does not wish to do so.
The Applicant in his submission took issue with the description of his conviction record, initially saying that his first conviction was not until 1983. However, I have perused the material from the New South Wales Police Service in the form of bail report setting out the criminal history and the Applicant concedes that there are convictions for smoking and possession of a prohibited drug at Blacktown Court of Petty Sessions in 1976. There was also a conviction for driving with a prescribed content of alcohol in February 1978. Neither of those matters I note were matters of great seriousness.
The Applicant has set out that he first came to Australia in 1967 at the age of 11 years under the assisted migration scheme. He returned to Dundee in Scotland with his family in 1969 and they lived there until 1974. They then returned under the scheme in 1974 when he was
17 years of age. He says that he has been a continuing resident of Australia ever since apart from short holidays in Fiji and Scotland.
His parents live in Australia as do his siblings. He points out that he commenced these proceedings because of a suggestion made by an officer of the Department of Immigration and Multicultural and Indigenous Affairs that he should do so.
He has been in detention since February 2003. He makes the point that being in detention is the same as gaol except that he has not had any trial or conviction. He has no wish to return to Scotland. He said today that he has spent now more time in the immigration detention centre at Villawood than he did in prison for any of his sentences.
The Applicant says that he has lived in this country continuously apart from short holidays since the age of 17. He has married in Australia and divorced in Australia. His schooling took place in Australia. His work history is in Australia. He has family and friends here. He regards Australia as his home. His parents are Australian citizens. They are elderly, they are both ill and they need support from him. He no longer has any family ties or friendship networks or support systems in Scotland.
He himself has had a recent history of illness. He suffered from cancer of the mouth in the year 2000 and has received treatment for that. He was diagnosed in 2003 with cancer of the left vocal chord. He has also taken medication for depression. The Applicant concedes that he has a criminal record that says that he has served all of his required sentences, whether they are gaol sentences or otherwise.
He is not legally represented because he cannot afford legal representation. He submits that the costs application by the Department is unjust on the basis that he made this application on the advice of an officer of the Department. He also said that he has no funds to meet any order for costs.
In his oral submissions he expressed concern about leaving Australia, which he regards as his home, and leaving his family. He also raised the ground that leaving Australia and not being able to return would mean that he would never see his parents again. If he could not return to Australia that would be one thing but his parents are elderly and too ill to travel, so they would not be able to travel to Scotland or other parts of the UK to see him. He expresses a great deal of concern about not being able to see his parents again.
The Applicant neither in his application nor in his submissions indicates any legal error or jurisdictional error in the exercise of the Minister's discretion under s.501. Mr Kennett for the Respondent Minister points out that the Applicant has been sentenced to at least one term of imprisonment of longer than 12 months and other terms of imprisonment which add up to well in excess of two years. He initially was sent a warning notice about cancellation of his visa on 8 June 2000. He was sent a further notice on 8 October 2002.
He was invited to respond to that notice and was provided with copies of sentencing remarks made by the late Judge Bellear on 6 June 2000. He was granted an extension of time to complete the questionnaire and in fact completed the questionnaire and returned it on 8 November 2002.
A copy of the questionnaire is attached to the Court book and I have had recourse to it. He points out at page 25 of the Court book that he is very sorry for any trouble that he has caused. All he would like to do now is start a new and peaceful life in this country and stay out of trouble. He said on page 26 of the Court book that cancellation of his visa would be devastating to his family, his friends and himself, especially his mother. His father had just recently had a triple bypass operation and his mother is worried about this. He referred to the fact that he is in remission from cancer of the mouth.
He referred to the fact that he had lived in Australia at that time for
28 years. This country is all he knows. He would be extremely upset and depressed to leave his family and friends and live in a country that he barely knows. He said that he was not even aware that he was on a visa. He again expressed remorse and expressed willingness to discuss his case with anyone from the Department of the Minister's office.
The Department forwarded an issues paper to the Respondent Minister on 13 December 2002 annexing various documents, including judge’s comments, the Applicant's submissions to which I have referred, material about the Applicant's criminal history. The Minister on
10 January 2003 signed the page signifying his decision to exercise his discretion to cancel the Applicant's visa. The Applicant's visa was cancelled and he was taken into detention in February 2003.
He has remained in immigration detention since then and expresses the fear that he will be in detention indefinitely. He says at page 2 of his submission:
I have no current British passport and have not applied for one with the British Consul. The British Consul refuses to accept the Department of Immigration and Multicultural and Indigenous Affairs' application on my behalf for a British passport.
He goes on to say:
I have been advised by the Minister for Immigration that she has no power to review my situation under the Migration Act. Therefore in these circumstances it would seem I am detained at Villawood indefinitely.
Mr Kennett, counsel for the Respondent Minister, points out the stalemate seems to have arisen due to the refusal by the Applicant to apply for a British passport. If it is the case, as it appears to be, that the British Consul will not accept an application by the Department for a passport on behalf of the applicant and if the Applicant himself makes no application for a passport there will be no passport issued. Without a British passport or another appropriate travel document the Applicant presumably will not be permitted to enter the United Kingdom. If he is not permitted to enter the United Kingdom then the Respondent Minister will not be able to make arrangements for him to be returned to the UK, because if he is denied entry he will immediately be sent back to Australia. As a result he remains in the immigration detention centre in Villawood.
Notwithstanding the fact that the application by the Applicant sets out no grounds and the Applicant's submission sets out compassionate matters and no legal grounds, I have examined the material myself in order to ascertain whether it appears that any jurisdictional error has been made.
There is no formal statement of the reasons of the former Minister. This does not affect the validity of the decision. I refer to s.501G(4) and I am also referred by counsel for the Respondent to Re Minister for Immigration and Multicultural and Indigenous Affairs ex parte Palme (2003) CLR 212.
The reasoning process of the Minister can be inferred from the material that was before the minister and the terms of the Minister's decision. From that material Mr Kennett submits that it was clearly open to the Minister to be satisfied that the Applicant had a substantial criminal record within the meaning of s.501(7)(d) of the Migration Act. As a result he would fail the character test set out in s.501(6).
It is also submitted and I believe correctly that the Minister accordingly held a reasonable suspicion that the Applicant did not pass the character test and the minister concluded that he was not satisfied that the Applicant did pass the test which enlivens the discretion to cancel the Applicant's visa under sub-section 501(2).
From the material before me it is clear that the Minister did have the Applicant's comments before him and considered those comments. The Minister did take into account the Applicant's family and compassionate circumstances.
It is submitted, and I believe correctly, that the evidence shows that the Minister did consider the exercise at his discretion by reference to the considerations set out in the Ministerial Direction. It is up to the Minister to describe how much weight is to be given to these considerations. Certainly, the description of the Applicant's criminal record is accurate and it is certainly open for the Minister to find that the Applicant has a substantial criminal record.
Paragraph 29 of the issues paper states that the Applicant's assault offences are very serious offences under the Ministerial Direction.
I would not necessarily agree from a perusal of the Applicant's criminal record that is that on the face of it the offences are very serious offences. All crimes of violence have some degree of seriousness but there is a very broad scale and there is nothing to indicate that to my view the offences of which the Applicant's then committed were amongst the most serious. Nevertheless, this is a judicial review and the Court does not have the power to substitute its own view of the facts or that taken by the decision maker. There is certainly evidence upon which it was open to the decision maker to form that view.
To my mind there is no legal error that I can ascertain. There is no jurisdictional error. That finding means that the decision of the Minister does gain the protection of being a privative clause set out s.474 of the Migration Act. If it is a privative clause decision the time limit under s.477(1)(A) applies. This application is, as I said, nearly two years out of time.
I am mindful of the fact that the Applicant has now been in immigration detention in Villawood for over two years and he raises a concern that he would be detained in Villawood indefinitely. From what I am informed by counsel for the Respondent it seems that the reason that up to now the Applicant has not been removed from Australia, at least until the time when he filed this application, was because of his lack of a British passport and the difficulty, if not impossibility, of his entering Britain without one.
The Applicant does not have a British passport because he has not applied for one. There is some substance to the view that whilst the Applicant refuses to apply for a British passport or fails to apply that he remains his own gaoler. The fact is that as there is no jurisdictional error. As shown in the Minister's decision the Minister's decision is a privative clause decision and the time limit unde s.477 applies. That means the notice of objection to competency must be upheld.
There is an application for costs. As I said the application is out of time. The Applicant has brought an application to the Court, it has been unsuccessful. He has pointed out that he has no funds and his access to legal advice, certainly initially has been made very difficult by being in immigration detention. It is certainly a fact that where people are held in custody of one form or another, whether it's in a prison as a result of a prison sentence imposed by a Court or whether they're held in an immigration detention centre as Mr Coleman himself has pointed out, whilst the status maybe different, the effect on the person held in custody is very much the same. Courts that deal with people in custody for one reason or another note that there is a surprising similarity between the difficulties people face whilst their liberty is curtailed in a prison or a detention centre for whatever reason. I accept the fact that it is far more difficult to obtain any form of legal advice if one is in a detention centre or a prison than it is if the person is out in the community.
I accept the fact that the Applicant has not been in a position to work for two years and does not have funds to meet a costs order. Mr Kennett has pointed out that that may well go the enforceability of costs order but is not of itself a reason not to make an order for costs. It is certainly clear that in this jurisdiction costs follow the event but at the same time costs are matters that remain within the discretion of a Court. It is certainly not uncommon in the Federal Magistrates Court where an Applicant is a child that the Court will not make a costs order on the basis that the Courts consider it inappropriate in many cases to make orders against children, so costs are discretionary.
This is a matter where I am of a view that there should be an order for costs as the Applicant has been unsuccessful and the Respondent has been successful. The question of quantum of costs, however, is a matter that I will take into account and the likelihood of the costs being enforced against the person who has no funds is a matter that I should take into account.
The amount sought for costs is a fixed sum of $4000. The reality is that the applicant does not have the capacity to meet an order for costs of that much. He says he has no funds and I accept that that is more than likely. He was released from prison at the expiration of his sentence but in only about three months time from then he was taken into immigration detention. He has been in immigration detention for over two years.
The likelihood of enforceability of a costs order of $4000 against this Applicant is remote. If as is intended he is to be removed from Australia he will be in the United Kingdom, presumably in his native Scotland. I accept the fact that he has kept very few, if any, ties with Scotland apart from the vestige of an accent. The likelihood of his obtaining funds to meet that order certainly in the near future would not be high. He would need to obtain funds for his own support and to re-establish himself.
The purpose of a costs order is not to act as a financial barrier to stop someone who is otherwise in possession of an appropriate travel document and would otherwise be entitled to apply for some sort of visa or whatever nature a visa is available to people who are outside the migration zone but a costs order should not itself be used as a barrier to stop people from exercising that desire. I note that this Applicant's ties are with Australia. His elderly parents are here, his siblings are here. To my mind $4000, whilst I am satisfied that it adequately represents an appropriate amount in the circumstances would have an unduly harsh effect on the Applicant without reimbursing the taxpayer for the amount of money spent on these proceedings.
I am of a view that the amount awarded for costs should be substantially less than the amount sought because if it is not going to be enforceable against a person who has no funds, it does not matter whether it is $4000 or $2000 or $10,000.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Scarlett FM.
Associate: V Lee
Date: 9 May 2005
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