Griffiths v Minister for Immigration (No.2)
[2017] FCCA 441
•9 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GRIFFITHS v MINISTER FOR IMMIGRATION (No.2) | [2017] FCCA 441 |
| Catchwords: MIGRATION – Cancellation of Class BB Subclass 155 Five Year Resident Return visa under s.501CA – review of Assistant Minister’s decision not to revoke the mandatory visa cancellation decision under s.501(3A) – applicant is a citizen of the United Kingdom – application of whether the Assistant Minister failed to consider a mandatory consideration – Assistant Minister complied with procedural fairness – decision of Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 distinguishable from the facts in the present case – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.476, 501, 501(3A), 501CA. |
| Cases cited: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 Tesic v The Minister for Immigration and Border Protection [2016] FCA 1465 |
| Applicant: | GARY AUSTIN GRIFFITHS |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 138 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 9 March 2017 |
| Date of Last Submission: | 9 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2017 |
REPRESENTATION
The Applicant appeared in person.
| Solicitors for the Respondent: | Mr K Eskerie Sparke Helmore |
ORDERS
The application is dismissed.
The Applicant pay the costs of the Respondent fixed in the amount of $6,825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 138 of 2017
| GARY AUSTIN GRIFFITHS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Background
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 a decision of the Assistant Minister made on 14 December 2016 under s.501CA of the Act not to revoke a mandatory visa cancellation decision under s.501(3)(A) of the Act.
The applicant is a citizen of the United Kingdom who arrived in Australia on 6 May 1969 under an assisted passage migration scheme. The applicant was subsequently granted various resident return visas, and the last was granted on 18 October 1995.
On 18 May 2015, the applicant was convicted in the Central Local Court (Sydney) of the offence Assault Occasioning Actual Bodily Harm and sentenced to 12 months’ imprisonment with a non-parole period of 9 months.
On 2 November 2015, the applicant was issued with a notice by the Minister’s department that his Class BB Subclass 155 Five Year Resident Return visa had been cancelled under s.501(3A) of the Act and was invited to make representations about the revocation of the cancellation decision. In response, the applicant submitted a request for revocation and advanced both submissions and evidence in support. On 30 November 2015, the applicant’s registered migration agent lodged further written submissions and evidence and the applicant lodged a further written submission on 7 December 2015.
On 14 September 2016 and 3 November 2016, the Department sent the applicant a letter providing him with particulars of the information it had received and invited his comment on that information. The applicant responded on 1 October 2016 and 6 November 2016 respectively.
The Assistant Minister’s Decision
On 14 December 2016, the Assistant Minister identified that he had considered all relevant matters, including the assessment of the character test as defined by s.501 of the Act and all the evidence before the Assistant Minister provided by or on behalf of the applicant in connection with the possible revocation under s.501CA(4) of the decision under s.501(3A) of the Act to cancel the applicant’s Class BB Subclass 155 Five Year Resident Return visa.
The Assistant Minister noted that the applicant had made representations about revocation of a visa cancellation decision in accordance with the invitation, and the Assistant Minister found that he was not satisfied that the applicant passes the character test as defined by s.501 of the Act. The Assistant Minister was not satisfied there was enough reason why the original decision should be revoked. The Assistant Minister decided not to revoke the decision to cancel the applicant’s Class BB Subclass 155 Five Year Resident Return visa. The Assistant Minister provided reasons for that outcome set out in a statement of reasons, which was also signed by the Assistant Minster.
The statement of reasons refers to the mandatory visa cancellation of a person serving a sentence of imprisonment. The Assistant Minister’s reasons referred to s.501CA(4) of the Act, providing that the Assistant Minister may revoke a cancellation decision made under s.501(3A) of the Act if:-
(a)the person makes representations in accordance with the invitation given under s. 501CA(3)(b); and
(b)if the Minister is satisfied (i) that the person passes the character test (as defined by s.501); or (ii) that there is another reason why the original decision should be revoked.
Whether the applicant made representations in accordance with an invitation
As a result of the representations made by Mr Griffiths on 6 November 2015, the Assistant Minister concluded that Mr Griffiths 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
The Assistant Minister proceeded to consider whether the applicant passed the character test under s.501CA(4)(b)(i) of the Act. The Assistant Minister made reference to the National Police Certificate date 22 June 2015, indicating that on 18 May 2015, the applicant was convicted in the Local Court of New South Wales of Assault Occasioning Actual Bodily Harm, for which the applicant was sentenced to 12 months’ imprisonment.
The Assistant Minister made reference to considering the documents and submissions advanced on behalf of the applicant. The Assistant Minister made reference to the fact that the applicant did not dispute the National Police Certificate dated 22 June 2015 regarding his criminal convictions and sentences or that he does not pass the character test. The Assistant Minister was not satisfied that the applicant passes the character test with the result that s.501CA(4)(b)(i) of the Act was not met.
Consideration of whether there is another reason why the original decision should be revoked
The Assistant Minister then turned to consider whether there is another reason why the original decision should be revoked under s.501CA(4)(b)(ii) of the Act. The Assistant Minister recognised in his reasons that he had to consider whether he was satisfied there is another reason why the original mandatory visa cancellation decision should be revoked.
The Assistant Minister acknowledged that in undertaking that task, he had assessed all of the information set out in the attachments. In that regard, there was a sensitive personnel document as an attachment that identified Attachment A through to Attachment AH.
The Assistant Minister also identified that he had considered the representations made by Mr Griffiths and the documents submitted in support of those representations regarding why the original decision should be revoked. The Assistant Minister made reference to those representations, documents and submissions as to why the decision should be revoked. These included the applicant’s long-term residence in Australia of 47 years, the applicant’s loyalties lying with Australia and having grown up here, his mother being the only member of the applicant’s family with whom he has any current relationship and that she resides in Australia, and that it would be devastating if he was to be deported as she is 71 years of age, unwell and the applicant is her primary carer. The Assistant Minister noted that the applicant’s mother has no one else on whom to depend as the applicant is an only child and they do not have any other family in Australia.
The Assistant Minister referred to the applicant suffering from Addison’s Disease, a chronic and debilitating illness which requires him to attend regular medical appointments and to wear a Medical Alert bracelet in case of emergency. The Assistant Minister made reference to the fact that the applicant has worked in Australia for over 25 years until he became too ill to work. The Assistant Minister referred to the contribution the applicant has made to the community through his involvement with various clubs and monthly donations to the Heart Foundation and the Salvation Army.
The Assistant Minister made reference to the fact that the only family the applicant has in the United Kingdom is an aunt aged approximately 85 years and some cousins with whom he has had no contact and does not know their whereabouts. The Assistant Minister made reference to the fact that the applicant had said he had no ties in England and has no place there to live and cannot work because of his illness.
The Assistant Minister made reference to the applicant’s submissions that all of his offending in recent years arose from a troubled relationship with a particular former partner with whom he no longer has any ties or communication and his submission that he will not have any ties in the future, as he will be living with his mother.
Consideration of the strength, nature and duration of ties
The Assistant Minister considered the strength, nature and duration of the applicant’s ties to Australia. The Assistant Minister made express reference to the applicant’s mother and her condition of multiple medical issues and that she was devastated immensely when she was informed of her son’s visa cancellation as she relies on him in every aspect as he is her only child and sole carer.
The Assistant Minister made reference to the submission that the deportation of the applicant would have a devastating impact on his mother. The Assistant Minister also referred to documentation stating that the domestic violence offending is out of character for the applicant. The Assistant Minister referred to having considered the effect of non-revocation upon Mr Griffiths’ family in Australia and accepted that his mother would experience significant emotional and practical hardship if the cancellation is not revoked.
Consideration of the extent of impediments if the applicant is removed
The Assistant Minister turned to the issue of the extent of impediments if the cancellation is revoked and referred to the need to consider whether or not the Assistant Minister was satisfied there is another reason why the original decision should be revoked. In that regard this involved considering the impediments that the applicant will face if removed from Australia to his home country of the United Kingdom in establishing himself and maintaining basic living standards.
The Assistant Minister made reference to the applicant’s age, his disease and his medication and the period during which he had been absent from the United Kingdom. The Assistant Minister observed that the applicant was unlikely to experience language or cultural difficulties. The Assistant Minister noted that as the applicant is a citizen of the United Kingdom, he will be entitled to access the same services as those that are available to other British citizens, including welfare, medical, housing and social services. The Assistant Minister took into account the applicant’s submission that there was nothing for him in the United Kingdom and that he has no ties there. The Assistant Minister also took into account the applicant’s submission that he cannot work due to his illness and does not know about the health and social security systems and does not know anyone there.
The Assistant Minister also referred to the devastating impact on the applicant of being removed to the United Kingdom. The Assistant Minister accepted that the applicant had very limited family and no social network in the United Kingdom and he would face significant practical barriers to return such as accommodation. The Assistant Minister also acknowledged that the applicant submitted that immediate family only consists of his mother and he would suffer significant emotional distress as a result of being separated from her.
Consideration of protecting the Australian community
The Assistant Minister made reference to the importance of protecting the Australian community. The Assistant Minister made reference to the discretionary consideration as to whether or not there is another reason why the original decision should be revoked and having regard to the consideration of the protection of the Australian community. The Assistant Minister made reference in particular to the applicant’s assertion that he is not a threat to the community or the security of Australia and that he will never reoffend. The Assistant Minister also made reference to having considered the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens. The Assistant Minister made detailed reference to the criminal conduct engaged in by the applicant. The Assistant Minister identified the convictions for domestic violence related matters between 2012 and 2015 and the sentences that were imposed upon the applicant.
The Assistant Minister found that the present sentence received by the applicant reflected the serious nature of his offending. The Assistant Minister referred to the applicant having a prior criminal history and that all those matters were ones of non-custodial punishment, indicating that they were minor in nature. The Assistant Minister found that they did add somewhat to the overall seriousness of his criminal history. In considering the nature and seriousness of the applicant’s criminal offending, the Assistant Minister took into account the potential harm to the Australian community as a result of domestic violence offending and found that the applicant’s criminal conduct was very serious.
The Assistant Minister made reference to the applicant’s risk to the Australian community. The Assistant Minister expressly accepted that the applicant is not a career criminal. The Assistant Minister made reference to the applicant’s claim that he has no other record of domestic violence from any other relationship and that his offences arose from a particular difficulty with his relationship with a particular person. The Assistant Minister found that this does not rule out any possibility of further similar offending should the applicant form any other close personal relationship, although the Assistant Minister acknowledged that the likelihood of this occurring in the future would be lower.
The Assistant Minister made reference to the statement from Ms Thomas in the transcript of the Court proceedings that the applicant does not carry on like that when he is not affected by alcohol. The Assistant Minister made reference to the fact that the applicant has said that he does not drink much because of his Addison’s disease. The Assistant Minister considered that the evidence given in the Court indicated that this was not the case. That is, a predilection for alcohol could again induce the applicant to behave violently in the future in similar circumstances.
The Assistant Minister made reference to the fact that the applicant accepts that he committed serious offences against the particular person and accepted that there was evidence of remorse and insight in relation to the offending by the applicant. The Assistant Minister made reference to the applicant having undertaken an anger management course whilst in prison and found that the applicant had seen a drugs and alcohol counsellor who deemed the applicant had no problem with either substance and that the applicant would undertake to comply with any courses of prohibition and parole may require of him.
The Assistant Minister made reference to the applicant’s assertion that his risk of reoffending was zero and that he would be changing his contact details so that the relevant person could not contact him and that the applicant also identified that his experience in detention would ensure that he would never reoffend. The Assistant Minister made express reference to the statements by the applicant that he is not a threat to the community or the security of Australia and that the applicant has no remaining ties to his former partner, has no desire or need to contact her in the future. The Assistant Minister also made reference to the applicant’s former partner’s statement that the applicant had learnt his lesson and would no longer get involved in a dysfunctional relationship and is not violent in nature, and that these offences were a mistake from which he has learned.
The Assistant Minister made reference to the applicant’s criminal history as including seven contraventions of an Apprehended Violence Order. The Assistant Minister noted that whilst the applicant attributed those breaches in part to the former partner initiating contact with him, the Assistant Minister found that the applicant was not obliged to respond to her contacts and that his behaviour in resuming contact, going to her home, drinking with her, then arguing and fighting with her, were matters within his control for which he must be held responsible.
The Assistant Minister made reference to the applicant’s failures to abide by conditions of several Court orders designed to prevent exactly what previously occurred as being serious and representing disregard for Australian laws and disrespect for authority. The Minister found that these breaches cast doubt on the applicant’s capacity to adhere to undertakings and stated commitments to reform.
The Assistant Minister made reference to the applicant’s statement that there is no risk he will reoffend, and to his rehabilitation and state of good intentions to refrain from further offending, and observed that this has not been tested in an unsupervised capacity in the community since his last convictions.
The Assistant Minister noted that the applicant had not breached correctional centre rules and was classified as a minimum security person who was described as a model prisoner. The Assistant Minister made reference to an incident with another detainee on 13 April 2016 and gave little weight to that incident. In considering the applicant’s criminal reoffending and engaging in other serious conduct, the Assistant Minister took into account his expressions of remorse, acceptance of responsibility for his actions, regret in relation to his treatment of the former partner and recognised that these are salient parts of the rehabilitation process.
The Assistant Minister made express reference to the applicant not condoning violence against women and that he has never engaged in violence in any relationship prior to his relationship with this particular person. Notwithstanding the applicant’s assertions to the contrary, the Assistant Minister found that there is a likelihood that the applicant will reoffend, albeit a low likelihood. The Assistant Minister found if the applicant were to engage in criminal offending involving domestic violence in the future, it could result in significant harm to the community. The Assistant Minister found this type of offending can cause short-term and long-term physical and psychological harm to the victim. The Assistant Minister found there may be financial costs to community, through the required involvement of law enforcement and the justice system and the health system.
The Assistant Minister referred to having considered all of the information available to the Assistant Minister and not being able to rule out the possibility that the applicant will reoffend. The Assistant Minister found the likelihood that the applicant will reoffend, albeit low, was an unacceptable one, because if that risk were to eventuate, great harm could result to a member of the Australian community.
Conclusion
The Assistant Minister concluded that having considered all the relevant matters, including an assessment of whether the person had made a representation in accordance with the invitation of the purpose of s.501CA(4)(a) of the Act, an assessment of whether satisfied that the person passes the character test, an assessment of whether satisfied that there is no other reason why the original decision should be revoked, and on all of the available evidence, including the evidence provided by and on behalf of the applicant, the Assistant Minister concluded that the applicant had made representations in accordance with the invitation.
The Assistant Minister concluded that the applicant did not pass the character test. The Assistant Minister considered, in light of the applicant’s representations, whether there was another reason why the original cancellation decision should be revoked and considered the length of time that the applicant has made a positive contribution to the Australian community and the consequences of an adverse decision for his family.
In considering whether the Assistant Minister was satisfied there is another reason why the decision should be revoked, the Assistant Minister gave significant weight to the serious nature of the crimes committed by the applicant and that the Assault Occasioning Actual Bodily Harm, which is of a violent nature and domestic violence. The Assistant Minister also made reference to being mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.
The Assistant Minister found that a member of the Australian community could be exposed to great harm should the applicant reoffend in a similar fashion. The Assistant Minister found that he could not rule out the possibility of further offending by the applicant. The Assistant Minister observed being cognisant that where real harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient to revoke the decision to cancel the visa, even applying a higher tolerance for criminal conduct by the applicant than the Assistant Minister otherwise would, because the applicant has lived in Australia for most of his life from a very young age.
In reaching its decision, the Assistant Minister referred to considering whether he was satisfied that there is no other reason why the original decision should be revoked and concluded that the applicant represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the favourable considerations described in the Assistant Minister’s reasons. Those favourable considerations included the applicant’s lengthy residence and bonds, involvements, employment, volunteer and charity commitments, his familial and social ties to Australia, and the hardship both the applicant, his family and social network will endure in the event the original decision is not revoked, and in particular the hardship which his aged mother would experience.
Having given full consideration to all of these matters, the Assistant Minister was not satisfied for the purposes of s.501CA(4)(b)(ii) that there is another reason why the original decision to cancel the applicant’s visa should be revoked. Accordingly, the Minister decided not to revoke the original decision to cancel the applicant’s Class BB Subclass 155 Five Year Resident Return visa.
Before this Court
The grounds of the originating application filed on 13 January 2017 are as follows:-
1. The ministers failure to consider and take into account relevant mandatory consideration.
2. The respondent denied the applicant procedural fairness and natural justice.
3. Legally unreasonable for the assistant minister to find that there was a likelihood that I would reoffend. The minister states that I am a low risk of reoffending yet prior to this relationship there are no charges of AVOs and drunken violence in 35 years of relationships no trouble on the last 5 years as I have never gone out with an alcoholic prior to this relationship.
4. Minister relied on the “principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia.” This is an error of law because this is not a “principle” of law and it influenced the decision making process of the minister.
(4.2) My mothers health (family unit) has deteriorated since I put my submissions in 12 months ago she is an Australian citizen for 30 years and is struggling financially and this decision is detrimental to her life* medical certificates attached.
5. My health as I suffer from Addisons disease (Adrenal Gland failure) a chronic disease to which I have nearly died 3 times and am under the best endocrinologist in the world Professor Hoe at St Vincent’s Hospital. I fear for my life, as they say England has similar healthcare as Australia. I know nothing about England and have no family ties there* medical certificate attached.
6. The fact that I have been in Australia for 47 years I came here in 1969 and have never lived anywhere else. I am an Absorbed Citizen and was a permanent Resident until it was cancelled under the mandatory 501 act. I do not believe the minister took enough consideration to this fact. To depart me and make me homeless and destitute is a liberty of my human rights, let alone the Aussie fair go as I was brought up to believe in and stand for.
7. The minister ignored the sentencing Judges remarks that I don’t have a substantial criminal record and all the trouble had come of late.
8. The minister said I have a predilection for alcohol. In that relationship, alcohol was a major factor as Christine was an alcoholic but prior to that there is only one alcohol related charge a D.U.I low range in 1991. I am not a big drinker, also eight months home detention and randomly breath tested with no positive returns also the drug and alcohol counsellor for parole and probation said I don’t have a problem with alcohol and drugs and the minister should have investigated this further to prove my predilection for alcohol. He can’t just assume I have a problem.
9. That I pose an unacceptable risk to the Australian Community, but parole and probation assessed me and deemed I was eligible for parole into the community with no report restrictions and that I have not been tested in the community since my incarceration. Yet I have been out in the community several times to see doctors and there have been no incidents.
10. The minister says that I have been to jail for 2 months, 5 months, 8 months and 12 months when in fact I went to jail for 7 months in 2012 and 9 months in 2015. I don’t know where he got the extra 12 months from and this may have influenced his decision.
11. That the minister didn’t take into account that I have never been afforded a warning prior to this revocation and yet here in Villawood people have been warned 1, 2 and some 3 times, I find that unfair and bias on my behalf.
12. The fact the minister took into account the devastating the impact my deportation would have on my mother but ignored the fact my mother would have to sell up and also leave Australia, as I’m the only family she has here, I stated this in my submissions and that she is to sick and old to relocate to England. My Mum is an Australian citizen. What is she supposed to do die here alone, I am her primary carer. I believe as an Australian citizen she should have been considered about her welfare, to which I believe the minister overlooked.
13. The minister acknowledged that I am not a career criminal and am a low chance of reoffending and till came to decision not to revoke my visa. I believe he is using a sledge hammer to crack a walnut.
14. The time frame it took to come to a decision 12 months and the lack of legal assistance afforded to 501’s.
15. I also cite the case Keith Anthony Stretton v Minister for Immigration File Number QUD 640 of 2014 as I believe my case is similar to this not the charge, but his circumstances on why his decision to revoke his visa was quashed by the Judge.
The applicant’s submissions included the following further paragraphs of alleged error:-
16. In paragraph 57 the Minister says I am also mindful of the principle that a person who commit serious crimes should expect to forfeit the privilege of remaining in Australia. The cases of Tesic v Minister for Immigration [2016] FCA 1465 and Stretton v Minister for Immigration both won on this Ground as it is not a principle of law and this is an error of law on behalf of the minister.
17. That fact I enrolled at the age of 18 and have voted in both state and federal elections.
18.
(a) The applicant claimed/contended that the respondent should not have cancelled his visa because of the adverse impact and effect that such a cancellation would have on his mother and himself. The applicant put significant evidence before the respondent, which supported such a claim/contention and which demonstrated that there would be a significant adverse impact and effect on his mother and himself
(b) failed to take into account relevant consideration
(c) the above mentioned failures resulted in the respondent falling into jurisdictional error – including by denying the applicant natural justice.
(d) not properly considering or engaging with evidence before him.
19. If it pleases the court I would like to use Stretton v minister for Immigration and its entire content to overturn and quash the ministers decision not to revoke my visa as his circumstances are similar to mine not the charge, but the same time frame he has been in Australia and the impact it would have on him and his family if he was removed from Australia. Particularly the Judges comments in paragraph 60 describing the nature of the error also found in it, is to adopt a pithy turn of phrase used by Mr G Airo-farulla “Reasonableness, rationality and proportionality” in Groves M and Lee HP Australian Administrative Law – fundamentals, principles and doctrines (Cambridge University Press, 2007) p.212 at p.215 which commented itself at (30) to French CJ. The minister has with respect “taken a sledge hammer to crack a nut.” His exercise of discretion conferred on him was in the circumstances, in excess of what, on any view, was necessary for the purpose it served.
20. In paragraph 6 of the ministers decision he says that I was sentenced to 12 months imprisonment when in fact it was 9 months and 3 months parole this is jurisdictional error on the ministers behalf.
21. In paragraph 40 I note his claim that he has no record of domestic violence from any other relationship however, I do not consider that this rules out any further possibility of further similar offending should he form any other close personal relationships this is here say on his behalf and I believe this to be jurisdictional error. In my submissions I explained the fact that I was going to be my mums full time carer. I have no want need or desire to form another relationship.
22. This is a letter submitted to the sentencing Judge at Waverley on behalf of myself from Christine Thomas and give some insight to Christine’s character.
23. I believe I am an Absorbed citizen under s.32 of the migration act I was in Australia before 1984 but travelled to England in 1992 on compassionate grounds because we thought my grandmother was going to die, I was there for 5 weeks caring for here but she lost the battle 3 years later for which I returned for 1 week to bury her. I have been in Australia since 1969 as a permanent resident went primary and high school here did my apprenticeship here and worked for 28 years paid taxes voted and stopped work due to my illness in 2007. I believe that should count to being an absorbed citizen. To think I am going to be deported because these laws were enacted because some radical muslim which I have total disdain for, I get that something had to be done, but I’m sorry to say the wrong people are being targeted.
24. I will be citing all the cases of Stretton and Tesic v Minister for Immigration [2016] FCA 1465.
On 2 February 2017, this Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. The applicant filed a further statutory declaration and two sets of submissions dated 15 February 2017 and 1 March 2017.
At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the Assistant Minister’s decision was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant.
The Court explained that in summary, this meant that the Court was considering whether the Assistant Minister’s decision was unlawful or unfair. The Court explained to the applicant that if the Court was satisfied that the Assistant Minister’s decision was unlawful or unfair, the Court would set aside the decision and send it back for further hearing. The Court explained that if the Court was not satisfied the Assistant Minister’s decision was unlawful or unfair, the application would be dismissed.
The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the solicitor for the 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.
Consideration of the applicant’s request for an adjournment
From the bar table, the applicant requested an adjournment on the basis that he thought the matter was going to be adjourned as a result of an appeal in the matter of Tesic v Minister for Immigration and Border Protection [2016] FCA 1465. The applicant also made reference to the fact that he was not feeling well and that he had had an operation a week ago. The applicant acknowledged that he had given no earlier notice of any adjournment request to the respondent.
Nothing said by the applicant from the bar table identified any inability of the applicant to communicate meaningfully and participate in the hearing of the application. Having heard the applicant, I am satisfied that the applicant was able to meaningfully participate in the hearing that has taken place. The adjournment application was opposed by the respondent.
During the course of the hearing, the Court revisited the issue of whether there should be an adjournment and the applicant tendered a letter from the Assistant Minister foreshadowing that there is a decision of Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 under appeal and that the Assistant Minister might seek to have the matter adjourned if the Court found that the decision of Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 is not distinguishable. The Court raised with the applicant the further delay that would occur in respect of his continued detention if the matter were adjourned. The applicant indicated that he would rather remain in detention than be sent back overseas. The applicant has already been in detention for a substantial period of time.
The applicant sought to rely upon the decision of Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 to identify that the Assistant Minister in the present case had made an error of law by reason of the reference to the Assistant Minister being mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia. The applicant submitted that the Assistant Minister had made the same error as is made in Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 and had in essence, elevated the proposition of an expectation into a principle of law.
The Assistant Minister identified two recent decisions of the Federal Court of Australia quite apart from the decision of this Court distinguishing Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 and said that there was no utility in adjourning the matter. This Court accepts the submissions of the respondent that an adjournment would be of no utility and would not be in the interests of the parties and would only utilise limited Court time and add to the costs of the respective parties.
The decision in Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 is clearly distinguishable from the facts in the present case. The Assistant Minister’s decision should not be read with a keen eye for error. The Assistant Minister understood the discretionary task that was being undertaken and made no error by treating the expectation that people who commit serious crime should expect to forfeit the privilege of remaining in Australia as an expectation and not as a principle of law.
Further, I do not regard the reference to the term principle as supporting that the Assistant Minister understood the proposition of general policy or expectation to be anything more than a policy or expectation and was not a statement of law. The Court was not satisfied that an adjournment was warranted in the interests of the administration of justice. It was for these reasons an adjournment was refused.
Applicant’s oral submissions
From the bar table, the applicant sought to explain that the domestic violence offences in the present case arose out of what the Court will describe as a toxic relationship, but for which the applicant would not be in the current position. It is apparent that the Assistant Minister took into account the applicant’s explanations in relation to the offences that gave rise to the mandatory cancellation. It is apparent that the Assistant Minister took into account the applicant’s assertions of rehabilitation and the applicant’s assertions as to his view as to his likelihood to reoffend.
The applicant took issue with the adverse findings made by the Assistant Minister that there was a likelihood that he would offend, albeit a low likelihood. That adverse finding by the Assistant Minister was open on the material before the Assistant Minister and cannot be said to lack an evident and intelligent justification.
The applicant from the bar table took issue with the Assistant Minister’s consideration of his ties to Australia. It is apparent on a fair reading of the Assistant Minister’s decision, that the Assistant Minister took into account the applicant’s ties and submissions in that regard.
From the bar table, the applicant took issue with the sentences and the period of imprisonment he had served and suggested that the Assistant Minister had erred in understanding the period of imprisonment that he had suffered. On a fair reading of the Assistant Minister’s reasons, the Assistant Minister was referring to the sentences imposed, not the period of imprisonment served and there is no error in the Assistant Minister’s reasons in that regard.
The applicant made reference to another person heard being the subject of a favourable decision by the Court at first instance on the basis of unreasonableness. The Assistant Minister’s reasons reflect a careful consideration of the statutory powers consistent with a rational and logical basis for the determination. I am not satisfied that the outcome of the decision is one which can be said to be irrational or unreasonable.
From the bar table, the applicant took issue with the Assistant Minister’s decision in relation to the impact on his mother in respect of whom he was the sole carer. It is apparent from the Assistant Minister’s reasons that the Assistant Minister took into account the applicant’s submissions in that regard.
Statutory declaration and letter sought to be adduced into evidence
The applicant sought to adduce into evidence a statement from a person who provided a statutory declaration purportedly related to the offence that occurred on 13 September 2012. The statutory declaration suggested that the applicant’s former partner engaged in aggressive activity with a knife, by reason of which the conduct which occurred was one in which the applicant actually had engaged in self-defence. That material was not before the Assistant Minister. That material was admitted into evidence subject to relevance. Material that was not before the Assistant Minister cannot give rise to any jurisdictional error by the Assistant Minister. I find that the statutory declaration was not relevant and it cannot be used to establish any error in the reasons of the Assistant Minister.
The applicant also produced a letter from the former partner dated 3 March 2014 which was admitted into evidence subject to relevance. That document was annexed to a submission of the applicant. That document was not before the Assistant Minister. It was a document in which the applicant’s partner asked for the charges to be dropped against the applicant. The letter was not one before the Assistant Minister and was admitted subject to relevance. In circumstances where the letter was not before the Assistant Minister it is not a document that can establish any error by the Assistant Minister. I find the document was not relevant and it does not assist the applicant in establishing any jurisdictional error by the Assistant Minister.
Consideration of the applicant’s oral submissions
From the bar table, the applicant submitted that the Assistant Minister had not taken into account the whole of his circumstances. On a fair reading of the Assistant Minister’s decision, it is apparent that the Assistant Minister has done so and had a number of paragraphs that expressly referred to having considered all the material and the reasons reflect an actual intellectual engagement with all of the material. In substance, the applicant’s submissions from the bar table invite this Court to engage in an impermissible merits review. This Court does not have the power to revisit the merits or make fresh findings of fact. Nothing said by the applicant from the bar table identified any jurisdictional error.
Consideration
Ground 1
In relation to Ground 1, there is no relevant mandatory consideration identified that the Assistant Minister failed to consider. There is no relevant consideration identified that the Assistant Minister failed to consider. Ground 1 fails to make out any jurisdictional error.
Ground 2
In relation to Ground 2, on the material before the Court, the Assistant Minister complied with the obligations of procedural fairness in the conduct of the decision-making process. Insofar as Ground 2 seeks to suggest that the Assistant Minister in the decision was the subject of bias, bias is something that must be clearly alleged and properly proved. From the bar table, the applicant also advanced a proposition that the Assistant Minister was biased.
The basis for the allegations of bias, are on analysis, the adverse findings by the Assistant Minister. Adverse findings are not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Assistant Minister might not bring an independent and impartial mind to the determination of the matter on its merits. The applicant made reference to recent press about domestic violence. There is no basis to conclude that the Assistant Minister approached the decision-making process otherwise than with an open mind capable of persuasion. No jurisdictional error as alleged in Ground 2 is made out.
Ground 3
Ground 3 refers to the applicant’s low risk of offending and period in which he had no problems with relationships or alcohol. It is apparent from the Assistant Minister’s reasons that the Assistant Minister took into account the applicant’s submissions. The Assistant Minister’s reasons provide a logical and rational basis for the decision-making process. No jurisdictional error as alleged in Ground 3 is made out.
Ground 4
In relation to Ground 4, this is in substance an assertion of jurisdictional error as was said to have been made in Tesic v The Minister for Immigration and Border Protection [2016] FCA 1465. I am satisfied that the decision of Tesic v The Minister for Immigration and Border Protection [2016] FCA 1465 is distinguishable from the facts in this present case and specifically the reasoning of the Assistant Minister. For the reasons already given, the Assistant Minister did not elevate the consideration of expectations or privilege to a principle of law and made no error of law of the kind identified in Tesic v The Minister for Immigration and Border Protection [2016] FCA 1465. The Assistant Minister’s reference to expectations was a relevant policy consideration and does not make out any jurisdictional error. Ground 4 fails to make out any jurisdictional error.
Second Ground 4
A second Ground 4 refers to the applicant’s mother’s health. It is apparent that the Assistant Minister referred to the applicant’s mother’s health. It is apparent that the Assistant Minister referred to that consideration in the course of the Assistant Minister’s reasons. No jurisdictional error is made out by the second Ground 4.
Ground 5
Ground 5 refers to the applicant’s disease. It is apparent from the Assistant Minister’s reasons that the Assistant Minister referred to that consideration. The applicant referred to the fact that he is getting the best care possible from a particular professor at St Vincent’s Hospital. It is apparent that the Assistant Minister took into account the applicant’s ability to access health services in the United Kingdom. Those adverse findings cannot be said to lack an evident and intelligent justification. No jurisdictional error is made out by Ground 5.
Ground 6
Ground 6 is in substance an invitation to this Court to engage in an impermissible merits review. No jurisdictional error is made out by Ground 6.
Ground 7
In relation to Ground 7, it is apparent that the Assistant Minister took into account all the material that was provided to the Assistant Minister. There is no proper basis to conclude that the Assistant Minister ignored the sentencing judge’s remarks. The adverse findings by the Assistant Minister were open. Ground 7 fails to make out any jurisdictional error.
Ground 8
Ground 8 is in substance an invitation to this Court to engage in an impermissible merits review. Ground 8 fails to make out any jurisdictional error.
Ground 9
Ground 9 seeks to cavil with the adverse findings by the Assistant Minister. For the reasons already given, the adverse finding in relation to the applicant’s risk to the Australian community was open. Ground 9 fails to make out any jurisdictional error.
Ground 10
Ground 10 alleges an error by the Assistant Minister in terms of a period of imprisonment. On a correct reading of the Assistant Minister’s reasons, the Assistant Minister was referring to the sentences imposed, not periods of imprisonment. No jurisdictional error was made out by Ground 10.
Ground 11
In relation to Ground 11, the applicant complains of the absence of a warning to him and that other persons had been given warnings. The cancellation under the statute is mandatory and is not conditional upon any warning. There was no obligation upon the Assistant Minister for the applicant to be given a warning. The Assistant Minister was required to consider the statutory discretion in the circumstances whether requirements of the section had been met. No jurisdictional error is made out by Ground 11.
Ground 12
Ground 12 asserts a failure to consider the impact on the applicant’s mother and the proposition that she would have to sell up and leave Australia. The proposition that the applicant’s mother would have to sell up and leave Australia does not follow. Ground 12 is in substance again an invitation for this Court to engage in an impermissible merits review. Ground 12 fails to make out any jurisdictional error.
Ground 13
Ground 13 in substance asserted a want of proportionality in relation to the circumstances in the present case where the applicant was found not to be a career criminal and where there was only a low chance of reoffending. Ground 13 is in substance an invitation to this Court to engage in an impermissible merits review. The decision of the Assistant Minister cannot be said to be unreasonable or irrational. Ground 13 fails to make out any jurisdictional error.
Ground 14
In relation to Ground 14, there is no obligation on the Assistant Minister to provide the applicant with legal assistance. The period during which the applicant has remained in detention is much to be regretted but does not establish any jurisdictional error. No jurisdictional error is made out by Ground 14.
Ground 15
Ground 15 seeks to refer to another decision and the applicant’s assertion that his circumstances are similar. For the reasons already given, the Assistant Minister’s decision reflects a logical and rational outcome on a reasoned basis and does not reflect any unreasonableness or illogicality in the decision. The applicant’s case is not the same as the decision in Stretton v Minister for Immigration and Border Protection (No.2) [2015] FCA 559. That case has also been the subject of further consideration in the Full Court Federal Court of Australia in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 where the application was allowed. Ground 15 seeks an impermissible merits review. No jurisdictional error is made out by Ground 15.
Paragraph 16
The applicant in his written submissions dated 15 February 2017 sought to expand on the jurisdictional errors by paragraph numbered 16. This re-addressed the issue of Tesic v The Minister for Immigration and Border Protection [2016] FCA 1465 and the decision in Stretton v Minister for Immigration and Border Protection (No.2) [2015] FCA 559. For the reasons already given, there is no jurisdictional error in the Assistant Minister’s reference to the expectation that persons comply with Australian law.
Paragraph 17
The applicant made reference under a paragraph 17 to having been enrolled and having voted in elections. The applicant was a British citizen and as such had voting rights under s.93 of the Electoral Act 1918 (Cth). This does not identify any jurisdictional error by the Assistant Minister.
Paragraph 18
The applicant included paragraph 18 which is in substance an invitation to this Court to engage in an impermissible merits review. There is no identified failure to take into account a relevant consideration by the Assistant Minister. On the material before the Court, the applicant was not denied natural justice in the conduct of the decision-making process. The Assistant Minister’s reasons reflect a genuine intellectual engagement with the evidence and there is no substance in the contention that the Assistant Minister did not properly consider or engage with the evidence before him. For the reasons already given, it cannot be said the decision was unreasonable, illogical or irrational.
Paragraph 19
Paragraph 19 repeated the applicant’s desire to rely upon the decision of Stretton v Minister for Immigration and Border Protection (No.2) [2015] FCA 559, which for the reasons already given is that decision was overturned on appeal. The circumstances in the present case are ones where the decision of the Assistant Minister was open on the material and cannot be said to be unreasonable, illogical or immaterial.
Paragraph 20
Paragraph 20 seeks to re‑agitate the alleged error in relation to sentencing and imprisonment. For the reasons already given, no jurisdictional error is made out in that regard.
Paragraph 21
Paragraph 21 is in substance, an invitation to this court to engage in an impermissible merits review and no jurisdictional error is made out.
Paragraph 22
Paragraph 22 seeks to refer to a letter that was not in evidence before the Assistant Minister and cannot give rise to any jurisdictional error.
Paragraph 23
Paragraph 23 seeks to suggest the applicant is an absorbed citizen under s.32 of the Act. It is apparent on the evidence before the Court that the applicant has left Australia on a number of occasions and does not meet the definition of being an absorbed person in s.34 of the Act. No jurisdictional error is made out by that paragraph.
Applicant’s further submission
The applicant’s further submission referred to the statutory declaration and letter which for the reasons I have already given, cannot be used to make out any jurisdictional error.
Consideration
On the material before the Court, I am satisfied that the Assistant Minister’s decision was made lawfully and in accordance with the statutory regime. For the reasons given, I am satisfied that the Assistant Minister’s decision was made in circumstances without any denial of procedural fairness to the applicant.
For the reasons given, the grounds raised in the present case fail to establish any jurisdictional error.
Conclusion
The application is dismissed.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 16 March 2017
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