Hikawai v Minister for Immigration

[2010] FMCA 643

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HIKAWAI v MINISTER FOR IMMIGRATION [2010] FMCA 643

MIGRATION – Special category visa – criminal record – behaviour concern non-citizen – whether injunction to be granted – whether jurisdictional error established.

Migration Act 1958 (Cth), ss.5(1), 32(2)(a)(ii)

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2
Walker v Minister for Immigration & Citizenship [2008] FMCA 1545

Applicant: KARAITIANA HIKAWAI

Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number: PEG 149 of 2010

Judgment of: Lucev FM

Hearing date: 25 August 2010

Date of Last Submission: 25 August 2010

Delivered at: Perth

Delivered on: 25 August 2010

REPRESENTATION

For the Applicant: Mr Hikawai (by phone) and Ms V Tiaiti (by leave)

Counsel for the Respondent: Mr P Macliver

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 149 of 2010

KARAITIANA HIKAWAI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

1. The applicant, Mr Hikawai seeks:

   a)an injunction to stop his deportation; and

   b)judicial review of a decision by the respondent Minister to not allow him to enter Australia on a special category visa.

2. The final orders sought by the applicant are as follows:

   1.Over turn decision made by immigration.

   2.To let Karaitaina Hikawai stay as a Permanent Resident.

   3.Allow him to settle with family in Perth.

3. The grounds of the application are as follows:

   1.Because he has a family to support here

   2.and he has a criminal Record from his teen years.

   3.He has grown into Responsible adult and dad has nothing but Respect.

Background

1. Mr Hikawai arrived in Australia from New Zealand on 22 August 2010. He is a New Zealand citizen holding a seemingly valid New Zealand passport. The Court was told that Mr Hikawai had, prior to flying to Australia, applied in New Zealand for a visa to enter Australia but a visa had been refused on character grounds. No review of that decision has apparently been sought.

2. Mr Hikawai completed an incoming passenger card, on which he declared that he had criminal convictions.[1] As a consequence he was questioned by officials of the Department of Immigration & Citizenship and made a criminal history details declaration. In that declaration he indicates that he has convictions, seemingly convictions which occurred as a result of one event, for aggravated robbery, unlawful taking of a motor vehicle and what he describes as “kidnap” in relation to which he was sentenced to three years in prison.

   [1] Contrast Walker v Minister for Immigration & Citizenship [2008] FMCA 1545 (“Walker”) in which Mr Hikawai (then known as Mr Walker) did not declare his criminal record, but which was discovered by immigration officials, and which resulted in him being denied entry on the basis that he was a behaviour concern non-citizen. An application for injunctive relief and judicial review was unsuccessful.

3. Mr Hikawai consented to disclosure of his New Zealand criminal record to the Department of Immigration and Citizenship for visa purposes. The Department of Immigration and Citizenship requested the New Zealand Police to provide full details of Mr Hikawai’s criminal record in New Zealand. New Zealand Police provided a criminal history record for Mr Hikawai as follows:

Court	Result Date	Offence Date	Offence Description	Result
Hastings DC	07/12/2007	16/11/2007	Breach Of Local Liquor Ban	Convicted and Sentenced: Fine - $300.00, Court Costs - $130
Napier DC	06/07/2005	02/12/2003	3 x Aggravated Robbery (Other Weapon)	FOR EACH CHARGE: Convicted and Sentenced: Imprisonment (Concurrent) – 25/11/2004 – 6 Months, 3 Years / Result Of Appeal.
Napier DC	06/07/2005	02/12/2003	2 x UL DETAINS	FOR EACH CHARGE: Convicted and Sentenced: Imprisonment (Concurrent) – 25/11/2004 – 6 Months, 3 Years / Result Of Appeal.
Napier DC	06/07/2005	02/12/2003	Unlawful Takes Motor Vehicle Etc	Convicted and Sentenced: Imprisonment (Concurrent) – 25/11/2004 – 1 Year / Result Of Appeal.
TRAFFIC CONVICTION HISTORY
Hastings DC	24/11/2009	02/11/2009	Breath Alcohol Level Over 400 Mgms/Litre Of Breath Blood/Breath = 713	Convicted and Sentenced: Community Work (SA) – 24/11/2009 – 80 Hours / Disqualification From Driving – 24/11/2009 – 6 Months.
Hastings YC	06/06/2004	14/05/2004	Breath Alcohol Level Over 400 Mgms/Litre Of Breath Blood/Breath = 578	Case Proved and Sentenced (YC): Disqualification From Driving – 08/06/2004 – 6 Months.

1. It is immediately apparent that Mr Hikawai did not disclose alcohol related offences to the Department of Immigration & Citizenship, although the Court notes that those offences would not have qualified him as a behaviour concern non-citizen under the definition of that term in s.5(1) of the Migration Act1958 (Cth).[2]

   [2] “Migration Act”.

Affidavit and other evidence

1. The evidence of Mr Hikawai, and the affidavit filed by his partner Ms Iraia, raise compassionate reasons as to why Mr Hikawai says he ought to be allowed to stay in Australia. Those reasons include:

   a)that there are young children aged 5 years and 5 months of whom Mr Hikawai is the father, and of whom the younger is in Australia with Ms Iraia and the elder of whom will soon fly to Australia;

   b)that Mr Hikawai has sold all of his possessions and moved out of a shared house in New Zealand;

   c)that jobs in New Zealand are seasonal and hard to obtain;

   d)Mr Hikawai’s partner’s family have offered financial support and accommodation to Mr Hikawai, his partner and family until they are able to support themselves in Australia;

   e)Mr Hikawai has employment arranged in Western Australia; and

   f)that he is not a behaviour concern non-citizen, and has not been since the age of 16 years (he is now 23), and has become a father, shown remorse and taken responsibility for his family and his partner to whom he is currently engaged and, it seems, proposes to be married in Perth.

2. There was also evidence of a positive October 2008 parole pre-termination assessment from New Zealand which indicated that Mr Hikawai (then known as Mr Walker):

   … poses no risk to himself or to the safety of the community. I am confident that … [Mr Hikawai] has left his offending behind him and that he has a positive outlook for his future which includes employment and the nurturing of his daughter.

Behaviour concern non-citizen

1. Section 32 of the Migration Act sets out the criteria for entry to Australia in the special category visa class. Section 32 provides as follows:

   Special category visas

   (1)  There is a class of temporary visas to be known as special category visas.

   (2)  A criterion for a special category visa is that the Minister is satisfied the applicant is:

   (a)  a non‑citizen:

   (i)  who is a New Zealand citizen and holds, and has presented to an officer or an authorised system, a New Zealand passport that is in force; and

   (ii)  is neither a behaviour concern non‑citizen nor a health concern non‑citizen; or

   (b)  a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or

   (c)  a person in a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.

   (3)  …

2. The effect of s.32(2)(a)(ii) of the Migration Act is that if the Minister’s delegate is satisfied that the person concerned is a behaviour concern non-citizen, then the Minister’s delegate may refuse to grant a special category visa. The definition of a behaviour concern non-citizen includes a person convicted of a criminal offence for which the sentence is more than one year’s imprisonment or a series of offences for which more than one years’ imprisonment has been imposed. In Mr Hikawai’s case two of the sentences imposed in relation to the offences which he committed in 2003 and for which he was convicted and sentenced, on appeal, in 2005, exceed one year. Mr Hikawai therefore meets the definition of “behaviour concern non-citizen” for the purposes of s.32(2)(a)(ii) of the Migration Act.

Grant of an injunction

1. In determining whether to grant an injunction the Court has to have regard to:

   a)the balance of convenience; and

   b)whether there is a serious issue to be tried.[3]

   [3] Walker at para.14 per Lucev FM.

Judicial review for jurisdictional error

1. A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[4] Further, an error by an administrative tribunal, such as the Tribunal, will only constitute jurisdictional error if the Tribunal:

   a)identifies a wrong issue;

   b)asks the wrong question;

   c)ignores relevant material; or

   d)relies on irrelevant material,

   in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[5]

   [4] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ; [2003] HCA 2 at para.76 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

   [5] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ.

Consideration

1. The Court has had regard to the evidence put on Mr Hikawai’s behalf. In that regard the Court accepts that Mr Hikawai:

   a)seeks to enter Australia to make a new life;

   b)has the strong support of family (many of whom attended Court today); and

   c)that he is remorseful for past offences and indiscretions.

2. In weighing the balance of convenience, the Court accepts what has been put to the Court on behalf of Mr Hikawai, however, there is nothing in what has been put which makes the balance of convenience overwhelming in his favour. In any event, in relation to whether there is a serious issue to be tried, it is clear that Mr Hikawai meets the definition of a behaviour concern non-citizen, and that the Minister’s delegate was satisfied that he met that definition and refused to grant a special category visa under s.32(2)(a)(ii) of the Migration Act in those circumstances.

3. In the Court’s view, there was no error of fact nor any error of law in the decision of the Minister’s delegate. There would be no basis, in the Court’s view, for it to undertake judicial review of the decision which the Minister’s delegate made having regard for the fact that there is no error of fact and no error of law. In all of those circumstances, the Court is not satisfied that there is a serious issue to be tried.

4. In those circumstances, the application for injunction must be dismissed.

5. No jurisdictional error is alleged by Mr Hikawai. No jurisdictional error is discernable in any of the grounds of application by Mr Hikawai. The grounds go to compassionate reasons rather than the criteria for a special category visa under s.32(2)(a)(ii) of the Migration Act. Compassionate circumstances and a reformed character are not matters which are able to be factored into the exercise of the Minister’s delegate’s decision when considering a special category visa, and they cannot be considered by this Court in determining whether there is jurisdictional error.

6. In the Court’s view there was no error of fact, and no error of law, and certainly no jurisdictional error, made by the Minister’s delegate in refusing Mr Hikawai a special category visa. In those circumstances, there is no basis on which this Court can make any order in the exercise of its judicial review functions.

7. The Court will hear the parties as to the costs of this application.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Lucev FM

Associate: 

Date:  25 August 2010