FAIRMY v Minister for Immigration

[2016] FCCA 3240

FEDERAL CIRCUIT COURT OF AUSTRALIA

FAIRMY v MINISTER FOR IMMIGRATION [2016] FCCA 3240

Catchwords:
MIGRATION – Minister for Immigration and Border Protection – class AG, Subclass 833 Certain Unlawful Non-Citizens (Permanent) visa – application for an extension of time –whether the Minister failed to consider relevant considerations – there was no relevant matter that the Minister failed to take into account – no jurisdictional error identified – no sufficiently arguable case for an extension of time in the interests of the administration of justice – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477, 501, 501CA.

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118.

Applicant: ANDRIYAN FAIRMY

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2627 of 2016

Judgment of: Judge Street

Hearing date: 13 December 2016

Date of Last Submission: 13 December 2016

Delivered at: Sydney

Delivered on: 13 December 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent:

Ms L Buchanan

Australian Government Solicitor

ORDERS

1. The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.

2. The Applicant pay the costs of the Respondent fixed in the amount of $3,326.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2627 of 2016

ANDRIYAN FAIRMY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of the decision of the Minister made on 4 August 2016. The decision was made by the Minister personally under s.501CA(4) of the Act. I am satisfied the Minister’s decision was not an excluded decision under s.476(2) of the Act.

2. The applicant is a citizen of Indonesia and arrived in Australia at 10 years of age. The applicant now has two children, one being a daughter who is about five years old and a newborn son. The applicant’s wife and the applicant’s parents are also in Australia. The applicant also has nieces in Australia, as well as other family in Australia. The applicant has grown up as an Australian and identifies closely with the country in which he grew up.  Sadly however, the applicant has a long and serious criminal record.

3. On 3 March 2015, the applicant was notified that his visa had been cancelled under s.501(3A) of the Act. That provision provided for mandatory cancellation of a visa in respect of a person who did not pass the character test and is serving a full-time sentence of imprisonment due to an offence or offences under Australian law.

4. The applicant was informed that he could seek to have the decision revoked and that he needed to seek a revocation within 28 days. The applicant made a request for revocation of the cancellation which was received on 10 March 2016. The applicant provided to the Minister submissions in support of the revocation, dated 3 May 2016. The Minister was also provided with earlier submissions by the applicant dated 3 March 2015, 4 May 2005, and 14 September 2007, as well as a number of references and also an immigration report in relation to the applicant. That immigration report dated 18 December 2007, referred to there being evidence that indicates that the applicant has demonstrated a motivation to address his offending behaviour and expressed a view that the applicant should be permitted to remain in Australia.

5. Prior to the birth of his two children, the applicant was issued with a notice of decision not to cancel visa, dated 12 March 2008, under s.501 of the Act. The applicant signed an acknowledgement on 19 November 2008 in relation to that decision. Sadly, despite that warning and notification, the applicant engaged in further criminal conduct in respect of which he was sentenced by a Judge Garling in the District Court of New South Wales on 16 December 2011. The applicant did not plead guilty in relation to the home invasion that occurred on 22 March 2010 and was convicted by a jury of four charges in respect of which he was effectively sentenced to seven years imprisonment with a non-parole period of five years. The incident was described by the sentencing judge as a vicious crime in which there were innocent people in their home who were entitled to feel safe when they were attacked, physically assaulted and abused with a knife and that threats were made in relation to the father, his children, and in particular his wife.

Before this Court

1. On 27 September 2016, the applicant filed an application in this Court seeking relief in respect of the decision of the Minister. The application was not filed within the 35 day period and was approximately 10 days outside that period. The Court requires an extension of time under s.477 of the Act in respect of the challenge to the Minister’s decision.

2. On 27 October 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence, and submissions. The applicant has filed submissions, which the Court has taken into account. On 2 December 2016 which was the hearing date fixed by the Registrar on 20 October 2016, the applicant sought and obtained a brief adjournment and was given a further opportunity to file an amended application, affidavit evidence, and submissions.  No such further documents were filed.

3. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether relief should be granted in relation to the Minister’s decision. The Court explained that the applicant needed an extension of time under s.477 of the Act. The Court explained that in order to obtain an extension of time there were generally three issues that had to be addressed.

4. The Court explained that the first issue was one of explanation for the delay. The applicant in the application explained that he was not aware of the law and did not have legal assistance. That explanation of itself is not satisfactory however, in relation to s.477 of the Act, the material issue are the merits of the underlying application. The second issue explained to the applicant was whether there was any prejudice to the respondent. The Court noted that there no prejudice to the respondent was suggested by the respondent.

5. The Court explained to the applicant that the third issue was whether there was a sufficiently arguable case that the Minister’s decision was the subject of legal error. The Court explained to the applicant that if satisfied that there was a sufficiently arguable case of legal error by the Minister and an adequate explanation for the delay, the Court would extend time under s.477 of the Act and fix the matter for hearing on another occasion. The Court explained to the applicant that if not satisfied that there was a sufficiently arguable case, or a satisfactory explanation for the delay, the Court would dismiss the application. The Court explained to the applicant that the legal error had to be either an excess of statutory power by the Tribunal, or procedural unfairness by the Minister. The Court explained to the applicant that in substance this meant the Court was considering whether there was a reasonable argument that the Minister’s decision was unlawful or unfair.

6. The Court explained to the applicant it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the first respondent and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. From the bar table, the applicant maintained the Minister’s decision that he failed the character test was unfair.

7. The applicant also made reference to his children and the fact that he proposed to obtain help from a psychologist if released into the community and allowed to stay.  The applicant’s written submissions to the Court identify his connection with Australia as well as the importance of his role in relation to his son, his daughter and his parents and his lack of connection with Indonesia. The applicant’s submissions also maintain that the applicant had changed and would not socialise with the idiots, criminals and old friends because he has learnt a valuable lesson in life about that your old criminal friends are all users and abusers and have no respect for life. The applicant maintained that he now had an appreciation and respect for life.

The Minister’s decision

1. The Minister’s decision identified the requirements of s.501CA(4) of the Act. The Minister expressly made reference to the representations made by the applicant on 10 March 2015, seeking a revocation of the mandatory visa cancellation decision. The Minister noted that those representations were made within the period and in the manner ascertained in accordance with the Regulations. Accordingly, the Minister concluded that the applicant had made representations in accordance with the invitation as required under s.501CA(4)(a) of the Act.

Consideration of whether the applicant passed the character test

1. The Minister turned to the issue of whether the applicant passed the character test. The Minister made reference to the requirements of s.501(7)(c) of the Act and the meaning of “substantial criminal record”. The Minister made reference to the sentencing of the applicant on 16 December 2011 and found that the applicant had a substantial criminal record as defined by s.501(7)(c) of the Act. The Minister made reference to taking into account the representations and documents provided by the applicant. The Minister noted that the applicant did not dispute the information in the National Police Certificate, dated 13 January 2014 in respect of his criminal conviction and sentence because in those circumstances the Minister addressed that he was not satisfied that the applicant passed the character test as defined by s.501 of the Act. The Minister found that the requirements of s.501CA(4)(b)(i) of the Act were not met.

Consideration of whether there is another reason why the original decision should be revoked

1. The Minister correctly identified that the Minister then had to consider whether there is another reason why the original decision should be revoked under s.501CA(4)(b)(ii) of the Act. The Minister expressly referred to the fact that the applicant had lived in Australia almost all of his life and that the applicant had completed his schooling and studies in Australia and that all of his family are residing in Australia, including his partner, his five year old daughter, and his newborn son. The Minister made reference to the submission on behalf of the applicant that he had no intention to reoffend and would not break the law as he is older now and does not want to lose his freedom and in particular, wishes to have more children with his partner and that the applicant has a good, positive support network and asked to be given one more chance to prove he will never break the law again.

The best interests of the applicant’s minor children

1. The Minister made reference to the best interests of the minor children and concluded that it was in their best interests for the visa cancellation decision to be revoked. The Minister made express reference to the dates of birth of the applicant’s two children, as well as the applicant’s submissions of the impact of having a son in relation to a determination, motivation and strength in life. The Minister also made reference to the applicant’s partner’s submissions.  The Minister found the best interests of the applicant’s family and his sister’s family would be served by a revocation of the mandatory cancellation decision of the applicant’s visa.

The strength nature and duration of ties

1. The Minister made reference to the strength, nature and duration of the applicant’s ties with Australia. Materially, the Minister also made reference to the applicant’s father who was in a bad car accident in December 2015 and had been unable to work since. The Minister made reference to the applicant’s letters of support and noted that the applicant had developed ties to Australia through his education era and his employment. Materially again, the Minister accepted that the applicant had made a positive contribution to the community through his employment. The Minister made reference to the applicant’s contribution to the community, including his involvement with the local mosque, his work with the Indonesian community, as well as participation in his school choir and charity work.

2. The Minister found the applicant had strong ties in the form of familial and employment ties in the Australian community and considered that the applicant had contributed to the Australian community through his role as a father, through his employment and through his volunteering activities. The Minister found that the removal of the applicant to Indonesia is likely to cause emotional and possible financial hardship to his wife and children. The Minister found that the removal of the applicant to Indonesia is also likely to cause emotional and practical hardship to his parents who are aging and require his support. The Minister made express reference to having considered the effect non-revocation on the applicant’s immediate family in Australia and accepted that they would experience emotional hardship. The Minister found that the applicant had been making a contribution to the community and took that into account, as well as the effect of a non-revocation for the applicant’s family members here in Australia. 

Extent of impediment if the applicant is removed to Indonesia

1. The Minister took into account the limited support available to the applicant in Indonesia and the applicant’s limited knowledge of Indonesia and the Indonesian language, as well as the emotional hardship of being separated from his family, including his two children, and the difficulty the applicant may experience in finding employment.  The Minister found that a decision not to revoke the visa cancellation will result in substantial hardship for the applicant.

The Applicant’s criminal conduct and risk to the Australian community

1. The Minister made reference to having regard to the protection of the Australian community, taking into account the applicant’s assertion that he had rehabilitated. The Minister made reference to having considered the commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens. The Minister summarised the applicant’s criminal history. The Minister found the applicant’s criminal record was indicative of a recidivist offender with repeated offending characterised by robbery and potentially violent. The Minister found the applicant’s criminal history to be serious both in terms of its cumulative effect, as well as the specific offending. The Minister made reference to the risk to the Australian community as well as the applicant’s contrition and submissions as to rehabilitation.

2. Materially, the Minister made reference to the applicant stating that he had addressed his offending and sought professional help, completed courses, attended meetings and asked for help to address his problems.  The Minister also made reference to the positive influence of the applicant’s family support. The Minister made reference to the Notice of Decision Not to Cancel Visa that was issued on 12 March 2008 to the applicant and the acknowledgement document signed by the applicant on 19 November 2008.

3. The Minister found that the applicant’s criminal offending in Australia commenced when he was an adolescent and continued until his most recent incarceration. The Minister made reference to the consequence of the applicant reoffending in a similar manner and that that would cause physical and/or psychological harm to members of the Australian community.

The Minister’s conclusion

1. The Minister made reference to having considered all relevant matters, including the representations made by the applicant and including all the evidence provided by or on behalf of the applicant. The Minister was not satisfied that the applicant passed the character test as defined by s.501 of the Act. The Minister expressly referred to giving primary consideration to the best interests of the applicant’s two children and his wife, and his niece and found that their best interests would be served by the revocation of the mandatory visa cancellation decision. The Minister also made reference to the best interest of the applicant’s goddaughter and two other children and the Minister acknowledged that their best interests would be served by revocation. The Minister also made reference to having considered the length of the time that the applicant has made a contribution to the Australian community and the consequences of a decision for his other family members and in particular, his wife.

2. The Minister also made reference to the importance of giving significant weight to the very serious nature of the crimes committed by the applicant. The Minister found that the Australian community could be exposed to great harm should the applicant reoffend in a similar fashion. The Minister found that he could not rule out the possibility of further offending by the applicant. The Minister made reference to the potential high tolerance of criminal conduct on the part of the applicant, given the period of time that he had been living in Australia from a young age.

3. The Minister concluded that the applicant represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighs the best interests of his children as a primary consideration and the other considerations summarised by the Minister. These other considerations included the applicant’s family ties to Australia, his lack of family support in Indonesia, the hardship to the applicant and his other family members that will endure in the event that the original decision is not revoked.

4. The Minister made reference to having given full consideration to those matters and was not satisfied for the purposes of s. 501CA(4)(b)(ii) of the Act, there is no other reason why the original decision to cancel the applicant’s visa should be revoked.

5. Accordingly, the Minister decided not to revoke the original decision to cancel the applicant’s class AG, Subclass 833 Certain Unlawful Non-Citizens (Permanent) visa. The Minister found that he was not satisfied for the purpose of s.501CA(4)(b)(ii) of the Act that there is another reason why the original decision to cancel the applicant’s visa should be revoked.

Before this Court

The grounds of the application are as follows:-

1. The Minister did not mention a lot of stuff about my life.

2. The Minister did not mention my life in Australia.

3. A lot of grounds for appeal.

4. No understanding of the 501 law and the immigration system.

Consideration

1. In considering whether there should be an extension of time under s.477 of the Act, the applicant’s explanation for the delay whilst not satisfactory, is not one in respect of which the inadequate explanation is material. This is not a case where any prejudice is suggested by the Minister. The significant factor for the purpose of whether there should be an extension of time under s.477 of the Act is whether there is a sufficiently arguable case to warrant an extension of time in the interest of the administration of justice.

2. In relation to Ground 1 of the applicant’s application, there was no relevant matter identified by the applicant that the Minister failed to take into account. It is apparent from the Minister’s reasons that the Minister took into account the applicant’s two children and the recent birth in that regard of the applicant’s son. It is also apparent on the face of the Minister’s decision, that he took into account the applicant’s wider family, including the incident that occurred in respect of his father and his father’s inability to work.

1. In relation to the applicant’s reference to having seen a psychologist, no psychologist’s report was provided to the Minister however, the Minister did refer to the applicant having sought professional help and that his family would also provide a positive influence in relation to the applicant. It is also apparent on the face of the Minister’s reasons that the Minister took into account the young age at which the applicant arrived in Australia, the lack of family connections of the applicant with Indonesia, and the lack of the applicant’s knowledge of Indonesia and the Indonesian language. There was no relevant matter identified that the Minister failed to take into account. No arguable case on error of law is identified by Ground 1 of the application.

2. In relation to Ground 2, for the reasons already given it is apparent that the Minister did refer to the applicant’s newborn son. Ground 2 fails to identify any reasonably arguable error of law by the Minister. 

3. Ground 3 is in substance an invitation to the Court to engage in an impermissible merits review. This Court does not have power to make fresh findings of fact in relation to the decision under section s.501CA(4) of the Act. That was a matter for the Minister to determine. To the extent relevant, it is apparent that the Minister did take into account that the applicant came to Australia at the age of 10 and the period of time over which the applicant had been in Australia. Ground 3 fails to identify any reasonably arguable error of law by the Minister.

4. On the face of the material before the Court, the Minister complied with the statutory obligations in respect of the decision-making process under s.501CA(4) of the Act. On the face of the material before the Court, the Minister complied with the obligations of procedural fairness in the decision-making process under s.501CA(4) of the Act. Nothing said by the applicant from the bar table or in the applicant’s submissions identified any arguable jurisdictional error in the decision-making by the Minister.

Conclusion

1. I take into account and caution the principles in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. The application fails to disclose any reasonably arguable error of law in the decision of the Minister.

2. I am not satisfied that it is necessary in the administration of justice to extend time under s.477 of the Act. I am not satisfied that there is a sufficiently arguable case on the merits of error on the decision-making of the Minister to warrant an extension of time in the interests of the administration of justice. The application under s.477 of the Act is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 25 January 2017