FEDERAL COURT OF AUSTRALIA
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Appeal from: Hands v Minister for Immigration and Border Protection [2018] FCA 662 File number: NSD 997 of 2018 Judges: ALLSOP CJ, MARKOVIC AND STEWARD JJ Date of judgment: 17 December 2018 Catchwords: MIGRATION – mandatory cancellation of absorbed person visa under s 501(3A) of the Migration Act 1958 (Cth) – decision not to revoke cancellation under s 501CA(4) of the Migration Act 1958 (Cth) – central finding of fact without any underlying material to found it – jurisdictional error – recognition of importance of family and community for Indigenous Australians – matter remitted to the Minister Legislation: Migration Act 1958 (Cth) Cases cited: Ali v Minister for Immigration and Border Protection [2018] FCA 650
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593
Attorney-General (Cth) v Queensland (1990) 25 FCR 125
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352
Eatock v Bolt [2011] FCA 1103; 197 FCR 261
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408
Roesner v Minister for Immigration and Border Protection [2015] FCAFC 132
Shaw v Wolf [1998] FCA 389; 83 FCR 113Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 55 Counsel for the Appellant: Dr S Pritchard SC with Mr C Gregory Solicitor for the Appellant: Kinslor Prince Lawyers Counsel for the Respondent: Ms F Gordon Solicitor for the Respondent: Clayton Utz ORDERS
NSD 997 of 2018 BETWEEN: JUSTIN HANDS
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGES:
ALLSOP CJ, MARKOVIC AND STEWARD JJ
DATE OF ORDER:
17 DECEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be allowed with costs.
2.The order of the Court made on 11 May 2018 be set aside and in lieu thereof order:
(a)A writ of certiorari be issued directed to the Assistant Minister for Immigration and Border Protection quashing the decision made on 9 October 2017 under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the decision made on 16 February under s 501(3A) of the Migration Act 1958 (Cth) to cancel the appellant’s absorbed person visa.
(b)The matter be remitted to the Minister for the making of a decision under s 501CA(4) according to law.
(c)The respondent pay the applicant’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
ALLSOP CJ:
This is an appeal from orders made by a judge of the Court dismissing an amended application for review of a migration decision made by the Assistant Minister for Immigration and Border Protection under s 501CA(4) of the Migration…
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Details
- AGLC
- Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
- Case
- [2018] FCAFC 225
- Decision Date
CaseChat Overview and Summary
The applicant, Mr Hands, was born in New Zealand but came to Australia at the age of three. He remained a citizen of New Zealand. Mr Hands was granted an “absorbed person visa” in 1994. In October 2016, Mr Hands pleaded guilty to charges of property damage, stalking, intimidation, and assault, involving his partner and one of his step-grandchildren. He was sentenced to 12 months’ imprisonment, with a non-parole period of five months. The Minister was required to cancel Mr Hands’ visa under s 501(3A) of the Migration Act 1958 (Cth) due to his substantial criminal record. The Minister decided not to revoke the cancellation decision under s 501CA(4) of the Act. Mr Hands sought judicial review of the decision, arguing that the Minister had made a jurisdictional error by failing to consider the importance of family and community for Indigenous Australians.
The court was required to determine whether the Minister's decision not to revoke the visa cancellation was legally sound. The court examined whether the Minister had considered all relevant factors, including the impact on Mr Hands’ family and community ties, and whether the decision was made in accordance with the requirements of the Migration Act and the common law principles of legality.
The court found that the Minister had made a jurisdictional error by failing to properly consider the importance of family and community ties for Indigenous Australians. The court noted that Mr Hands had lived in Australia since he was a young child, had a de facto relationship with an Aboriginal Australian partner, and had five step-grandchildren who were in the custody of his partner. The court also highlighted the significance of Mr Hands’ contribution to the local Indigenous community and his acceptance as a Koori man within the community. The court concluded that the Minister's decision was flawed as it did not adequately consider the impact on Mr Hands’ family and community ties, which are particularly important for Indigenous Australians.
The court allowed the appeal, set aside the order of the Court made on 11 May 2018, and ordered a writ of certiorari to be issued quashing the decision made on 9 October 2017 not to revoke the decision made on 16 February 2017 to cancel Mr Hands’ absorbed person visa. The matter was remitted to the Minister for the making of a decision under s 501CA(4) according to law. The respondent was ordered to pay the applicant’s costs of the application.
The court was required to determine whether the Minister's decision not to revoke the visa cancellation was legally sound. The court examined whether the Minister had considered all relevant factors, including the impact on Mr Hands’ family and community ties, and whether the decision was made in accordance with the requirements of the Migration Act and the common law principles of legality.
The court found that the Minister had made a jurisdictional error by failing to properly consider the importance of family and community ties for Indigenous Australians. The court noted that Mr Hands had lived in Australia since he was a young child, had a de facto relationship with an Aboriginal Australian partner, and had five step-grandchildren who were in the custody of his partner. The court also highlighted the significance of Mr Hands’ contribution to the local Indigenous community and his acceptance as a Koori man within the community. The court concluded that the Minister's decision was flawed as it did not adequately consider the impact on Mr Hands’ family and community ties, which are particularly important for Indigenous Australians.
The court allowed the appeal, set aside the order of the Court made on 11 May 2018, and ordered a writ of certiorari to be issued quashing the decision made on 9 October 2017 not to revoke the decision made on 16 February 2017 to cancel Mr Hands’ absorbed person visa. The matter was remitted to the Minister for the making of a decision under s 501CA(4) according to law. The respondent was ordered to pay the applicant’s costs of the application.
Orders
Orders of the court
1. The appeal be allowed with costs.
2. The order of the Court made on 11 May 2018 be set aside and in lieu thereof order:
(a) A writ of certiorari be issued directed to the Assistant Minister for Immigration and Border Protection quashing the decision made on 9 October 2017 under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke the decision made on 16 February under s 501(3A) of the Migration Act 1958 (Cth) to cancel the appellant’s absorbed person visa.
(b) The matter be remitted to the Minister for the making of a decision under s 501CA(4) according to law.
(c) The respondent pay the applicant’s costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament. Factual and legal background Mr Hands was born in New Zealand in 1971. He came to Australia with his parents when he was an infant, as a three year old. (Mr Hands said on a number of occasions that he was one year old when he arrived.) He remains a citizen of New Zealand. When asked, he said that he had not applied for Australian citizenship because he thought his mother had when he was small. By operation of law he was granted an “absorbed person visa” on 1 September 1994. The circumstances that led to the decisions about his removal from Australia so long after arriving and that set out his personal circumstances come from the material that was before the Minister. The immediately relevant events are that on 16 October 2016 Mr Hands pleaded guilty to charges in the New South Wales Local Court at Batemans Bay involving property damage, stalking, intimidation and assault, all being part of a domestic violence incident involving his partner and one of his step-grandchildren. He was sentenced to 12 months’ imprisonment, with a non-parole period of five months. The sentence of 12 months engaged s 501 of the Migration Act. By s 501(3A), the Minister must cancel a visa if the Minister is satisfied, relevantly, that the person does not pass the “character test” because the person has a “substantial criminal record” as set out in s 501(7)(a), (b) or (c), that is, the person has been sentenced to death, or to a term of imprisonment for life, or to a term of imprisonment of 12 months or more; and if the person is still serving a full time custodial sentence.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
It is against that background that the operations of the Migration Act and decisions of the Executive are to be understood. The mandatory operation of s 501(3A) can be undone by the revocation of the mandatory decision. The will of Parliament is that the evaluative assessment as to whether someone who is a non-citizen who has a “substantial criminal record” should remain is to be made by the Minister in this framework of revocation.The decision The decision by the Assistant Minister not to revoke was made against the background of a draft set of reasons prepared by members of the Department for his consideration. There are a number of places in which the reasons state that all the information in the attachments has been assessed and taken into account. In [12] of the reasons the following appears:In the representations/document submitted by or on his behalf, Mr HANDS has articulated reasons why the original decision should be revoked, which include:- He has been in a de facto relationship with an Aboriginal Australian partner for some 12 years and they intend to marry formally.- He has five step-grandchildren who are in the custody of his de facto partner and whom he has helped to raise.- His family would be devastated if he were deported as he is their support as much as they are his.- He has been in Australia since he was a young child and would like to stay here.- On release, he has employment available in the building and construction industry in the community and accommodation with his partner. There is no reference in this paragraph to the effect on the Aboriginal community of removing from it a man long-accepted as being Koori and part of it. Between [13] and [21] detailed consideration was given to the five step-grandchildren and his grandchildren by his own children. Between [22] and [31] consideration was given to the “strength, nature and duration of ties”. This should be set out in full:22. In coming to my decision about whether or not I am satisfied that there is another reason why the original decision should be revoked, I have had regard to the strength, nature and duration of Mr HANDS’s ties to Australia.23. Mr HANDS has resided in Australia for some 43 years, having arrived as a young child of three years. Given Mr HANDS has lived In Australia for most of his life and from a very young age, I hold the view that the Australian community may afford a higher tolerance of his criminal conduct and I accept that his primary national identification is likely to be with Australia.24. I accept that Mr HANDS has immediate family members in Australia, including his mother, brother, six aunts, one uncle, two nieces, one nephew and two cousins. I also accept that Mr HANDS has four Aboriginal adult children with whom he has a good relationship and sees regularly.25. I note that Mr HANDS has been in a de facto relationship with Ms Maria Walker for some 12 years, that he intends to reside with her upon his realise Into the community and they have plans to marry formally. He states he would not ask Ms Walker to leave Australia because she has her own children and strong ties to the Aboriginal community and so his removal would be the end of their relationship.26. I have also considered Ms Walker’s submission that she has been upset and depressed since learning of Mr HANDS’s possible deportation. I note Ms Walker’s advice that they have been in a relationship for 12 years and in this time Mr HANDS has supported her in raising her five minor grandchildren, that he is a loving and caring person who will do anything for his family, he is always cleaning the house and helping with other household duties such as gardening and taking the grandchildren to school. She has advised further that since Mr HANDS’ incarceration her own health has deteriorated from the pressure of caring for her five grandchildren and that to deport him would destroy their family. I have taken this into consideration.27. I have considered the Judge’s remarks on 1 October2015 in the Batemans Bay Local Court, remarking that while Mr HANDS is in prison, his partner would be doing it rough as she would be without his support.28. I note Mr HANDS has lived and worked with Aboriginal families and communities in Wollongong and Wallaga Lakes since leaving his family home in his early teens, as well as his statement that he is acknowledged as one of their own and was accepted working in the communities on the Community Development Programs for the length of the time that program existed. I have also taken into consideration the letter of support from the Elders of the Yuin Nation which states that the signatories consider Mr HANDS to be a member of their community and advise that he has lived with and has been culturally accepted and recognised as a Koori man within their community. I accept that Mr HANDS has thus made a valuable contribution to the local Indigenous community and has close ties to it.29. I note Mr HANDS was educated in Australia to a year 9 level and worked as a labourer and with his father but he has not specified the type of work he performed with this father. I note as well that he played football for three years with a local club.30. Mr HANDS has submitted a ‘Constituent Enquiry Form’ from the office of Mike Kelly MP, Member for Eden-Monaro, which outlines Mr HANDS' background, including that he grew up with the Aboriginal community, he has never returned to New Zealand, he has served his time in prison and should be sent home to his family. I have taken this into account.31. I have considered the effect of non-revocation upon Mr HANDS’ immediate family in Australia and accept that those persons would experience emotional hardship, and that his de facto partner would suffer considerable practical hardship as well. I find that Mr HANDS has made a positive contribution to the community and I have taken this into account.
Ratio Decidendi
Legal Principle Established
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