Harold v Minister for Home Affairs
[2019] FCCA 196
•23 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAROLD v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 196 |
| Catchwords: MIGRATION – Applicant convicted of serious criminal offences – circumstances of occurrence of offences “chilling” – no basis for a finding of jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 359C(2), 260(2)(c), 363A, 116 |
| Cases cited: Hasram v Minister for Immigration & Citizenship & Anor [2010] 103 FCR 413 Gong v Minister for Immigration & Anor [2016] FCCA 561 |
| Applicant: | LANCE MICHAEL ROBERT HAROLD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 562 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 23 January 2019 |
| Date of Last Submission: | 23 January 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 23 January 2019 |
REPRESENTATION
| Applicant: | Self-Represented |
| Solicitors for the Respondents: | Sparke Helmore |
| Counsel for the Respondents: | Mr Byrnes |
ORDERS:
IT IS ORDERED THAT:
The application for review filed on 23 August 2018 be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application for review, fixed in the amount of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 562 of 2018
| LANCE MICHAEL ROBERT HAROLD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of New Zealand. He was born in 1990. The applicant moved to Australia in October 2015.
On 27 February 2017, the applicant was charged with a number of offences based upon events that occurred on 24 February 2017.
Exhibit 2 is the supplementary court book, which book relevantly included the transcript of proceedings conducted in the criminal jurisdiction of the District Court of Queensland before His Honour Judge Chowdhury, on 9 May 2018, involving the applicant in these proceedings. On page 2 of exhibit 2, the applicant is recorded as having pleaded guilty to the following charges:
(1) That on 24 February 2017 at Logan Reserve in the State of Queensland, you entered the dwelling of Kent Ewan McBlain with intent to commit an indictable offence in the dwelling, and you used actual violence and you were armed with an offensive instrument, and you damaged property;
(2) That on 24 February 2017 at Logan Reserve in the State of Queensland, you unlawfully assaulted Kent Ewan McBlain and did him bodily harm, and you were armed with an offensive instrument.
On page 4 of exhibit 2, at lines 4 - 34, the facts leading to the charges were set out as follows:
MSKOVACK; Your Honour, the defendant was known to the complainant. On the 24th of February 2017 at about 6.30 in the evening, the defendant broke into the complainant's house and demanded to see the complainant's flatmate. When the complainant told the defendant that his flatmate wasn't there, the defendant resorted to prolonged violence against the complainant, which included punching him to the head area a number of times, and that went on for some time. The defendant then grabbed a knife from the box which contained several knives that the complainant was collecting and put the blade to the complainant's throat.
Amongst other things, the defendant threatened to find the complainant's family and kill them. As he said that, he put the top of the knife into the complainant's ear canal, which was pushing on his eardrum. He then put the knife on the outside of the complainant's [indistinct] under his left eye and [indistinct] with the knife threatening to gauge his eye out. The defendant took a photograph with the complainant's mobile telephone while still holding the knife in his hand. Needless to say, the complainant was in severe discomfort, both physically and emotionally, due to the knife being used against him. But that all wasn't enough. The defendant kicked the complainant to the chest area more than once and also punched the complainant several times to his face. He kept the knife in his hand throughout his assault upon the complainant.
Ultimately, police came and the defendant who was spoken to by the police told them that a male person just [indistinct] the bush and pointed towards the backyard. Ultimately, police spoke to the complainant in private who then told them about what has happened. The defendant was arrested whilst the complainant was taken to the hospital. It's noted in the schedule the complainant received four stitches in his left eyebrow where he suffered a three-centimetre laceration. He also had laceration to his left ear canal, a lump on the back of his head, the left side of his face was swollen and his chest was sore where he was kicked.
The applicant admitted in these proceedings that the facts as set out above, which led to his being charged, were factual and, relevantly, that those facts were admitted by him when he appeared before the Administrative Appeals Tribunal (“the Tribunal”).
The applicant filed an amended application on 23 August 2018. It was accepted by the applicant today that the characterisation of the relevant grounds for review contained in the amended application had been properly identified by Mr Byrnes of counsel in his written outline of submissions, Mr Byrnes appearing on behalf of the first respondent.
When turning to those submissions filed on behalf of the first respondent, the categories of complaint identified from the particulars and grounds as set out in the amended application for review fall under two headings, namely;
(1) Procedural fairness / natural justice; and
(2) Improper exercise of power / irrelevant or relevant considerations.
Under the first category, questions raised by the applicant related to assertions of alleged intimidation and the alleged improper requirement for him to submit to self-incrimination by him.
As to alleged intimidation, the applicant complained about the contents of letters sent by the Tribunal to him, being letters dated 1 December 2017 and 6 December 2017.
The applicant took issue with a paragraph which appeared in each letter as follows:
Consequences of not responding to either invitation.
If we do not receive your comments or response or the information within the period allowed, we may make a decision on the review without taking any further action to obtain your views on the information or to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.
As to such complaint, it is clear that the inclusion of the passage above constituted the fulfilment, by the Tribunal, of the Tribunal’s obligation of procedural fairness by giving particulars of information and inviting comment pursuant to the provisions of section 359A of the Migration Act 1958 (Cth) (“the Act”).
The contents of each of the letters referred to above does not constitute intimidation. On its very face, it gives to the applicant the option of either responding or not responding. In any event, it constituted an effort on the part of the Tribunal to convey to the applicant that if he so wished he could provide a response or otherwise provide further information before the Tribunal took action.
The inclusion of such a paragraph in letters addressed to the applicant was of assistance to the applicant, and not a hindrance to him advancing his case before the Tribunal in any respect.
In Hasram v Minister for Immigration & Citizenship & Anor [2010] 103 FCR 413, the Full Federal Court (Jacobson, Gilmour and Foster JJ) at [33-43] dealt with relevant considerations, pursuant to the provisions of sections 359C(2), 360(2)(c) and 363A of the Act. At [42], the Court said:
As Gleeson CJ said in Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [37], procedural fairness is not an abstract concept; it is essentially practical, and the concern is to avoid practical injustice.
There is no basis for the assertion that receipt of a letter containing the paragraph referred to above could reasonably constitute intimidation of the applicant on any basis.
The applicant’s complaint was to the effect that the Tribunal, by sending the letters with the relevant paragraph, required the applicant to testify or otherwise disclose information which might have incriminated him.
It is clear that the applicant was being asked to comment on information that may have affected the review. It is also clear that the Tribunal later invited the applicant to attend a hearing to take place before the Tribunal after the criminal proceedings had been resolved.
It is relevant to note that the Tribunal in fact conducted a hearing of the applicant’s application for review after he had pleaded guilty to charges laid against him in the District Court. That is significant because the applicant could not be seen to have improperly been imposed upon in relation to his being asked to provide information relating to the charges, certainly in circumstances where he had admitted guilt in respect of the two charges, and certainly where the circumstances giving rise to such charges were as recorded on page 4 of Exhibit 2 to these proceedings.
The applicant simply could not have suffered any prejudice as a result of his having been asked those questions, in circumstances where the applicant had been given an opportunity to provide any further information which he considered may assist in his case, and in circumstances where his application for review was heard subsequent to his having pleaded guilty to the relevant charges.
The second category of complaint made by the applicant was that the Tribunal improperly exercised power, or had otherwise taken into account irrelevant considerations, or failed to take into account relevant considerations, when arriving at its decision.
Firstly, it was asserted by the applicant that, in [9] and [10] of its reasons, the Tribunal had erroneously recorded that the applicant had pleaded guilty to six charges, whereas it is here admitted by the first respondent that the applicant only pleaded guilty to two charges.
Firstly, it is not improper for a visa to be cancelled, pursuant to the provisions of Section 116 of the Act, based upon the laying of charges alone, rather than upon a conviction consequent upon the laying of such charges. As was held by Smith J in Gong v Minister for Immigration & Anor [2016] FCCA 561, at [41]:
Simply put, the fact that subsection 116(1)(e) is engaged where the Minister is satisfied that a visa holder’s presence “may be a risk” to certain matters means that there does not have to be, as the applicant suggests, any direct, solid or certain foundation before the power to cancel a visa can arise. In other words, it can arise on the possibility that some event occurred in the past. In this case, that possibility was supported by the laying of the charges. That is to say that that fact alone was not legally irrelevant to the question posed by subsection 116(1)(e).
Hence, based upon ratio of the above authority, the applicant’s complaint that the cancellation of his visa was made at the time before conviction on charges laid against him was without merit. That aspect of the decision in Gong was not quashed on appeal.
Secondly, the Applicant complained that the Tribunal, in its reasons, erroneously recorded that he had been convicted of six charges, rather than the two charges which he in fact pleaded guilty to. The two charges which were the subject of the applicant’s guilty plea all occurred in the context of the other four charges recorded in [9] of the reasons of the Tribunal.
As stated earlier, the factual matrix surrounding the applicant’s conviction was as set out above from the relevant transcript, on page 4 of Exhibit 2. That transcript was something to which the Tribunal had regard prior to arriving at its decision.
It is a transcript which, in many respects, is chilling. In those circumstances, there is no force to the argument that, due to the error, factually, in recording a conviction on six charges rather than two, the Tribunal fell into jurisdictional error.
As was said in Re Minister for Immigration & Multicultural Affairs; ex parte Cohen (2001) 177 ALR 473 at 481, [35], per McHugh J:
Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
The Tribunal had before it all that it needed to properly assess whether the applicant’s visa ought to be cancelled pursuant to the provisions of Section 116(1) of the Act. To the extent that there was a factual misstatement of the number of charges of which the Applicant was found guilty, it was not a material error on the part of the Tribunal. The chilling nature of the admitted facts surrounding the laying of all of the charges was the most significant aspect of the Tribunal’s consideration, in the circumstances, rather than the actual number of charges which were the subject of guilty pleas giving rise to recorded convictions.
There is no merit to the applicant’s assertions in relation to the second category of matters raised by him.
There were some further, auxiliary complaints made by the applicant. Firstly, the applicant complained that a certificate dated 8 June 2017 ought not to have been revoked on 4 December 17. Firstly, it should be noted that the presence of such certificate, or the existence of such certificate, had no practical impact on the Tribunal hearing. No particulars were given as to how it might have adversely affected the applicant’s rights in that regard. The complaint is without particularity, and is without merit.
Additionally, the applicant complained about the nonpublication of matters arising at the hearing. This matter arose after the Tribunal made its decision, and is irrelevant for the purposes of today’s hearing. It is without merit.
The Tribunal took into account the serious nature of the charges of which the applicant had been convicted.
The applicant is a citizen of New Zealand. The Tribunal, at [29]–[34] of its reasons, dealt with the issue of family relationships and proximity arguments in the event of the applicant’s removal from Australia to New Zealand, but, after a consideration of matters relevant thereto, it did not consider that the applicant would be unable to have any future contact of a meaningful nature with his family if so removed from Australia.
At [37] of its reasons, the Tribunal properly recorded that it had weighed up the competing factors raised by the applicant against his being removed from Australia as a result of any visa cancellation, but determined that the seriousness of the circumstances of his admitted criminal acts did not warrant a determination in his favour.
The application for review is without merit.
It cannot be said that no other rational or logical decision-maker could not have made the same decision as was made by the Tribunal.[1]
[1] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [130].]
Neither could the decision be considered as legally unreasonable, or lacking an evident and intelligible justification, as such respective concepts were considered in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [66] and [76], where it was said:
[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
The application for review is accordingly dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 1 February 2019
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Natural Justice
-
Jurisdiction
0