Dharma v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Dharma v Minister for Home Affairs [2019] FCA 431

File number: NSD 1576 of 2018
Judge: GRIFFITHS J
Date of judgment: 1 April 2019
Catchwords:

MIGRATION - application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) to affirm the Minister’s delegate’s decision not to revoke mandatory cancellation of the application’s visa under s 501CA(4) of the Migration Act 1958 (Cth) - where the applicant has 3 minor children - where under Direction 65 issued under s 499 of the Migration Act 1958 (Cth) directs the best interests of minor children is a primary consideration for a revocation decision - where there was limited evidence of the applicant’s children’s and former partner’s interests before the Tribunal

ADMINISTRATIVE LAW - where at the beginning of the hearing, the Tribunal asked the Minister’s representative to contact the applicant’s former partner by telephone, ex parte, to put her on notice of the proceedings etc - where a file note from that telephone conversation was subsequently used as evidence by the AAT to draw inferences about the best interests of the applicant’s minor children - whether a breach of procedural fairness arising from ex parte contact with the applicant’s former partner - application allowed

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 33, 40, 43

Migration Act 1958 (Cth) ss 420, 499, 500, 501

Evidence Act 1995 (Cth) ss 135, 136

Crimes Act 1900 (NSW) s 114
Cases cited:

DPI17 v Minister for Home Affairs [2019] FCAFC 43

Fard v Secretary, Department of Immigration and Border Protection [2016] FCA 417

Griffiths v Minister for Immigration and Border Protection [2018] FCA 629

Hamod v New South Wales [2011] NSWCA 375

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225

John v Rees [1970] Ch 345

Kioa v West [1985] HCA 81; 159 CLR 550

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326

MZAIB v Minister for Immigration and Border Protection [2015] FCA 1392; 238 FCR 158

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82

Russell v Duke of Norfolk [1949] 1 All ER 109
Date of hearing: 18 March 2019
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 92
Counsel for the Applicant: The applicant appeared in person
Solicitor for the Respondents: Mr A Markus of Australian Government Solicitor

ORDERS

NSD 1576 of 2018
BETWEEN:

SENA AJI DHARMA

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

GRIFFITHS J

DATE OF ORDER:

1 APRIL 2019

THE COURT ORDERS THAT:

1.The amended originating application be upheld.

2.The decision dated 20 July 2018 of the second respondent be set…

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Details
Case
[2019] FCA 431
Decision Date

CaseChat Overview and Summary

The case of Dharma v Minister for Home Affairs involves the applicant, Mr Dharma, who sought a judicial review of a decision by the Administrative Appeals Tribunal (AAT) to uphold the Minister’s delegate's decision not to revoke the mandatory cancellation of his visa under section 501CA(4) of the Migration Act 1958 (Cth). The central issue in the case was whether the AAT's decision was legally sound, particularly in light of the considerations required under Direction 65, which emphasizes the best interests of the applicant's minor children as a primary factor in revocation decisions. The court was required to decide if there was a breach of procedural fairness due to the AAT's ex parte communication with the applicant’s former partner.

The court found that the AAT had erred in its process by contacting the applicant’s former partner without his presence, which influenced the AAT’s determination of the best interests of the children. This ex parte communication was deemed to breach procedural fairness, as it provided an unbalanced view of the children's interests without allowing the applicant an opportunity to respond. The court also noted that the evidence presented regarding the children's best interests was limited and did not adequately consider the applicant's arguments and plans for his children's welfare.

As a result of these findings, the court allowed the application for judicial review, set aside the AAT's decision, and remitted the matter back to the AAT for reconsideration in accordance with the law. The court ordered that the Minister for Home Affairs pay the applicant's costs as agreed or assessed. The detailed reasons for the decision highlight the importance of procedural fairness and the thorough consideration of all relevant factors in immigration and visa cancellation cases, especially where the welfare of minor children is at stake.

Orders

Orders of the court

1. The amended originating application be upheld.

2. The decision dated 20 July 2018 of the second respondent be set aside.

3. The application for review of the delegate’s decision dated 7 May 2018 be remitted to the second respondent for reconsideration according to law.

4. The first respondent pay the applicant’s costs, as agreed or assessed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In summing up his submissions, Mr Dharma said at T 71, that, in addition to his other plans, he would “try to spend my time with my kids, you know, engage my kids in development, and then hopefully then my relationship with my partner can start over again, and then if we do, we always thinking about moving to Adelaide so she can stay close to her mum. So, yes, that’s in the picture…”. The AAT’s reasons for decision summarised The applicant has a lengthy criminal history as is reflected in the following extracts from the AAT’s reasons at [13]:(a)Prior to 2005 (by which time he was 28 years old) Mr Dharma committed approximately 31 offences.(b)Those offences can reasonably be categorised as involving 17 dishonesty related matters (about 11 of which apparently involved theft or unlawful possession of property) and five drug offences.(c)Between the ages of 30 and 40 (ie, from 2007 to 2017) Mr Dharma committed approximately 47 further offences.(d)The offences Mr Dharma committed after 2005 can reasonably be categorised as involving 26 dishonesty related matters (about 23 of which apparently involved theft or unlawful possession of property).(e)The prison sentences imposed on Mr Dharma in relation to his “post 2007” offences cumulatively totalled about 190 months (or almost 16 years) – of which only 30 months were the subject of suspended sentences.(f)On the most recent occasion when Mr Dharma was the subject of suspended sentences (3 November 2016) he re-offended during the suspension period.(g)Mr Dharma was incarcerated for (i) all but about eight months of the four year period from February 2007 to January 2012, (ii) more than half of 2013, and (iii) most of 2017. (He was taken into immigration detention in October 2017.) In its reasons for decision, and by reference to the three primary and other considerations set out in Direction No 65, the AAT considered the material before it and concluded that the applicant’s repeated offending meant that he posed a serious risk of reoffending and that the Australian community would have a justifiable expectation that the visa cancellation would not be disturbed. In reaching these conclusions, the AAT took into account the fact that the applicant had been put on notice on three separate occasions of the possible consequences of his offending for his immigration status. The AAT reasoned that these two primary considerations, protection of the Australian community and expectations of the Australian community, outweighed all other considerations in favour of revoking the mandatory cancellation decision, including the primary consideration of the best interests of the applicant’s children and especially his youngest son. It is desirable to say something more about the AAT’s consideration of the best interests of the applicant’s children. The AAT acknowledged at [34] that Mr Dharma had placed significant emphasis in his written statement dated 20 June 2018 on the welfare of his three sons and he repeatedly expressed his concern about the adverse impact on them if he were removed to Indonesia. The AAT referred to Mr Dharma’s statements concerning his two older boys doing well at school, as well as his expressed concern that his youngest son was at an age where psychologically and emotionally he had a particular need for a father in his life.

Ratio Decidendi

Legal Principle Established

The applicant seeks judicial review of a decision dated 20 July 2018 by a Senior Member of the Administrative Appeals Tribunal (AAT). The AAT affirmed the decision of the Minister’s delegate not to revoke the cancellation of the applicant’s Class BF transitional (permanent) visa. That visa had been mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act) in circumstances where the applicant had been sentenced to a term of imprisonment of 12 months on four different occasions (namely 31 October 2008, 13 September 2010, 6 February 2013 and 3 April 2017). The applicant was invited to make representations about revoking the mandatory cancellation decision and he did so on 18 September 2017. On 7 May 2018, the Minister’s delegate declined to revoke the mandatory cancellation decision under s 501CA(4). The applicant then sought a review of that decision in the AAT. The AAT conducted a hearing on 25 and 26 June 2018. As noted above, the AAT affirmed the delegate’s decision on 20 July 2018. The AAT proceeding The relevant question for the AAT, in circumstances where it was clear that the applicant did not pass the “character test”, was whether there existed “another reason” for revoking the mandatory cancellation decision (s 501CA(4)(b)(ii)). The AAT was obliged to have regard to Direction No 65 in making its decision (see s 499 of the Migration Act). The applicant, who represented himself, provided the AAT with a written statement dated 20 June 2018 in which he described, inter alia, his relationship with his three sons who, at the time of the AAT’s hearing, were aged 17, 15 and 6. He said that he did not want his children to experience what he himself had experienced as a child, i.e. growing up without a father. He said that it was in their best interests and would be of benefit for them if he was “permanently here for them”. He said that he had been in their lives from the day they were born and that he had “played (sic) significant role in their upbringing”. He said that his ex-partner takes very good care of the children in his absence but that “the lack of one or both parents will leaves (sic) some children emotionally and psychologically crippled” and that he needed “to be here for them because it’s my role and my duty as their father to provide my growing children with ongoing guidance, supports (sic), affirmation, affection and attention and much more”. He said that his mistakes should not affect the lives of his children negatively. He said that he accepted his wrongdoing but added that “it would be very unfortunate and unfair on their future and their well being (sic) to be punish (sic) and suffer for my mistakes and all the wrong choices I made”. He said that deporting him would “definitely have a great negative impacts (sic) on my children”, that he and his children “are really close”, that he understood them well and that they would suffer emotionally and psychologically.