Jikoivavalagi v Minister for Immigration and Border Protection
[2018] FCA 559
•23 April 2018
FEDERAL COURT OF AUSTRALIA
Jikoivavalagi v Minister for Immigration and Border Protection [2018] FCA 559
Appeal from: Temo v Minister for Immigration and Border Protection (Migration) [2017] AATA 2098 File number: NSD 2138 of 2017 Judge: THAWLEY J Date of judgment: 23 April 2018 Catchwords: MIGRATION – where the Administrative Appeals Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to revoke the cancellation of the applicant’s visa – where the applicant had a substantial criminal record and had received prior warning that reoffending may result in his visa being cancelled – whether there was “another reason” to revoke the cancellation of the applicant’s visa pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) – whether the decision by Tribunal was legally unreasonable – whether the Tribunal failed to take into account a relevant consideration or took into account an irrelevant consideration – whether the Tribunal breached Articles 17 and 23 of the International Covenant on Civil and Political Rights – whether the applicant was denied procedural fairness – where the applicant did not particularise the grounds of relief upon which he relied Legislation: International Covenant on Civil and Political Rights. Opened for signature 16 December 1966. 999 UNTS 171 arts 17 and 23. (entered into force 23 March 1076)
Migration Act 1958 (Cth), ss 476A(1)(b), 476A(2), 501(3A), 501(6), 501(7), 501CA, 501CA(4)(b)(ii)
Cases cited: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Date of hearing: 23 April 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 46 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondents: Mr N Swan Solicitor for the Respondents: Minter Ellison ORDERS
NSD 2138 of 2017 BETWEEN: TEMO JIKOIVAVALAGI
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
THAWLEY J
DATE OF ORDER:
23 APRIL 2018
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant pay the first respondent’s costs as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THAWLEY J
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) pursuant to s 476A(1)(b) of the Migration Act 1958 (Cth) (Act). This Court’s jurisdiction on such application “is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution”: s 476A(2).
On 7 November 2017, the Tribunal affirmed the decision of a delegate of the Minister for Immigration and Border Protection (Minister), made under s 501CA(4) of the Act, not to revoke the cancellation of the applicant’s Class BF Transitional (Permanent) Visa, which cancellation had occurred on 15 November 2016 pursuant to s 501(3A) of the Act.
For the reasons which follow, the application is dismissed.
BACKGROUND
The applicant was born in Fiji in 1983 and emigrated to Australia in July 1987. Apart from a short trip to Fiji from 17 December 1998 to 13 January 1999, the applicant has not left Australia. The applicant remains a Fijian citizen.
The applicant has a substantial criminal record, having been convicted of numerous offences between 2002 and 2016, including offences of assault, robbery and aggravated robbery with wounding. He was imprisoned on several occasions. On 8 June 2016, the applicant was convicted of offences which included assault occasioning bodily harm and affray, for which he was sentenced to 18 months in prison.
Before the cancellation of the applicant’s visa the subject of this application, the applicant had been issued with a number of warnings that reoffending may result in his visa being cancelled. The applicant had also successfully sought review of a visa cancellation in the Tribunal in 2012. These events were summarised by the Tribunal at paragraphs [35]-[45] of its decision in Jikovavalagi Temo v Minister for Immigration and Citizenship [2012] AATA 782 (12 November 2012) (emphasis and errors in original):
[35]In a letter dated 9 May 2007, an officer of the then Department of Immigration and Citizenship advised the Applicant that the Minister had decided not to cancel his visa under s 501(2) of the Act but warned:
…that if you engage in any further conduct that might bring you within the scope of section 501, cancellation of your visa may be considered again. Consideration may also be given to refusing any future visa applications. Please note that disregarding this warning may weigh heavily against you if the Minister or a delegate considers your case in the future. A copy of section 501 of the act is attached for your information.
…
The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf it comes within the scope of sub section 501(6) could result in the consideration of the cancellation of your visa under subsection 501(2) of the act. I remind you that the Consequence of these are cancellation under subsection 501(2) of the act include removal from Australia and, in certain cases, bars on re-entering Australia.
[36]The Applicant acknowledged receiving the warning letter and the enclosed copy of s 501 of the Act. He also acknowledged that he fully understood that any further convictions for any offences will result in his visa being reconsidered for cancellation.
[37] The Applicant reoffended in 2008.
[38]In a letter dated 18 November 2010 an officer of the Department of Immigration and Citizenship wrote to the Applicant advising that The Minister had decided not to cancel his visa and character grounds “on this occasion” however the delegate had decided to give the following formal warning:
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future disregard of this warning will weigh heavily against you if your case is reconsidered.
[39]On 24 November 2010, the Applicant acknowledged having received that letter, and stated that he understood that he could again be considered for refusal or cancellation of any visa granted to him if further information of relevance came to the attention of the Department at any time in the future and that if that happened, his past conduct in previous relevant information could also be reconsidered.
[40] The Applicant reoffended on about 27 February 2012.
[41]On 21 August 2012, a delegate of the Minister wrote to the Applicant advising that the Applicant did not pass a character test as defined in s 501(6)(a) and s 501(7)(c) of the Act and had decided to exercise the discretion to cancel his visa.
[42]The applicant successfully sought review of that decision in this Tribunal and his visa was not cancelled. The decision was dated 12 November 2012.
[43] The Applicant reoffended in 2013.
[44]Following that offence, the Department considered cancelling his visa pursuant to s 501A of the Act. Yet again, the decision was made not to cancel is visa. The letter notifying the Applicant of that decision was dated 7 November 2014. The letter included the following:
Please note: this decision does not mean that your case cannot be considered again under the character provisions of section 501 in the event of further criminal offending by you.
[45]The evidence does not indicate that the Applicant acknowledged receiving that letter. The applicant reoffended in September 2015, January 2016 and March 2016.
THE DELEGATE’S DECISION
On 15 November 2016, the applicant’s visa was cancelled pursuant to s 501(3A)(a)(i) of the Act, which provides:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); …
Sections 501(6)(a) and 501 (7)(a)-(c) of the Act provide:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); …
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; …
The applicant was notified that the reason for cancellation of his visa pursuant to s 501(3A) was that he did not pass the character test because he had “been sentenced to a term of imprisonment of 12 months or more” under s 501(7)(c), being an 18 month sentence of imprisonment for offences including affray.
Section 501CA applies if the Minister makes a decision (the “original decision”) under s 501(3A) of the Act to cancel a visa: s 501CA(1). That provision includes:
(3) As soon as practicable after making the original decision, the Minister must: …
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The applicant made representations to the Minister as contemplated by s 501CA. However, on 17 August 2017, the delegate decided not to revoke the decision. The delegate was not satisfied that the applicant passed the character test (s 501CA(4)(b)(i)) or that there was “another reason why the original decision should be revoked”: s 501CA(4)(b)(ii).
When considering whether there was “another reason” for revoking the decision, the delegate considered the applicant’s relationship with his 10-year-old Australian daughter, his minor nieces and nephews and other family members and found that it was in the best interests of his daughter and relatives that the original decision be revoked. The delegate accepted that the applicant would face “significant hardship” if returned to Fiji as he lacked family ties and had spent most of his life in Australia. The delegate found that access to certain services such as counselling would be more limited in Fiji, although the applicant would have access to medication required for his depression. The delegate also found that he had made “some contribution to the community, chiefly to his own family members”, but considered this to be relatively limited in extent and significance.
Ultimately, the delegate found that the factors outlined above which favoured revocation of the cancellation were outweighed by the “serious nature” of the applicant’s offences, many of which were of a violent nature, and the “unacceptable risk of harm” that the applicant posed to the protection of the Australian community. The delegate decided not to revoke cancellation of the applicant’s visa.
THE TRIBUNAL’S DECISION
The applicant applied to the Tribunal for review of the delegate’s decision under s 500(1)(ba) of the Act.
The delegate’s finding that the applicant failed the character test was not contested on review. Accordingly, the Tribunal’s decision focused on whether there was “another reason” to revoke the cancellation of the applicant’s visa. In determining whether there was “another reason” to revoke the cancellation of the applicant’s visa, the Tribunal took into account, as it was required to (see clauses 7(1)(b) and 8(1)), the considerations set out in Part C of Ministerial Direction 65 – Visa Refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA.
Part C, clause 13(2) states that the “primary considerations” are:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) Best interests of minor children in Australia;
(c) Expectations of the Australian community.
Part C, clause 14 contains a non-exhaustive list of “other considerations” which “must be taken into account where relevant”:
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties;
(c) Impact on Australian business interests;
(d) Impact on victims;
(e) Extent of impediments if removed.
The Tribunal considered each of the primary considerations in detail. In relation to “protection of the Australian community”, it referred to and addressed the matters identified in clause 13.1 of Ministerial Direction 65. In relation to the “nature and seriousness of the [applicant’s] conduct to date” (clause 13.1(2)(a)), the Tribunal found that the applicant had a “history of committing violent offences which are viewed very seriously”. It noted these offences included offences against police officers and that he had been sentenced to 14 terms of imprisonment. As mentioned earlier, the Tribunal referred to the repeated warnings and noted that the applicant continued to reoffend. The Tribunal considered that the nature and seriousness of the applicant’s past conduct weighed heavily in favour of not revoking the cancellation.
In relation to the first “primary consideration”, namely the “risk to the Australian community should the [applicant] commit further offences”, the Tribunal at [50] discussed at length the more serious events which led to a number of the applicant’s convictions (errors in original):
•On 8 June 2016, the Applicant had pleaded guilty to offences that occurred in September 2015, and January and March 2016. The Applicant was affected by either alcohol and/or the drug ice. The offences involved random acts of violence against individuals. They were serious offences of violence, particularly those committed on a train in March 2016 where the people on the train would have been terrified. The Applicant was on bail for the January 2016 offence at that time.
•The Applicant attacked two people on the train. The Applicant knocked the mobile telephone out of victim one’s hand. When victim one questioned what the applicant was doing the applicant got to his feet, grabbed victim one, pinned him against the carriage wall, and punched him in the face a number of times with his clenched right fist. He slammed victim one into a chair and proceeded to knee him in the stomach with his right knee and strike him in the forehead with his right elbow. He then grabbed victim one by his clothing and threw him across the carriage where he pinned him down and slammed his head into the carriage chair twice. He jumped on top of the victim one and kneed him once in the head with his right knee, and then punched him in the head twice with his clenched right fist, and then pushed him onto the carriage floor where he stomped on his body four times as the victim lay defenceless on the carriage floor. Members of the public ran from the upper and lower decks of the carriage. The Applicant’s brother tried to physically restrain the Applicant as he continued to assault victim one. The Applicant struggled to remove his brother’s hands from around his waist. When victim one asked for his mobile phone the Applicant told him not say anything to anyone and not tell the police a number of times. He then handed back the mobile telephone. Victim 1 suffered a large egg shaped lump on the left side of his forehead, swelling/redness and bruising to his right cheek bone and swelling and scratches to his neck and back.
•After leaving that part of the carriage where that offence was committed, the Applicant returned and approached a middle aged Sydney Trains driver who was dressed in his uniform. The Applicant asked victim 2 if he was going to say anything. Victim [two] said that he had not seen anything. The Applicant grabbed victim 2 around the throat with both hands and squeezed very tightly, making it difficult for him to breath. While holding victim two’s throat, the Applicant picked him up off the seats and threw him over the carriage chair onto the floor. The Applicant’s brother physically restrained him and placed himself between victim 2 and the Applicant who again asked if victim two was going to say anything. Victim 2 said he would not, picked up his bag and walked. The Applicant followed him and again asked the same question got the same response. The Applicant’s brother intervened.
•The assault occasioning actual bodily harm offence on 15 January 2016 involved the Applicant picking up a schooner glass that was not his, being told to go, and then punching the victim in the mouth.
•On 12 September 2015, having been removed from a bar because of his conduct, the Applicant returned. A security guard refused him re-entry and escorted him to the exit. As they were walking, the Applicant aggressively threatened to smash the guard and swung his left fist towards the left side of the guard’s face causing the guard immediate pain to the left jaw. The security guard was not seriously injured and was able to return to his duty without medical attention. The charge was common assault.
•The Applicant pleaded guilty to assault occasioning actual bodily harm to a person and was sentenced on 20 April 2012. The victim was a complete stranger with whom the Applicant had some argument. The level of violence inflicted upon the person was completely unacceptable and could have led to far more serious injuries than in fact eventuated. When the police came, he resisted police which was at the higher end of the range for that offence. The police had to use “various weaponry”, including tazers on two occasions, in order to subdue the Applicant, who was extremely intoxicated. The Applicant was on parole when he offended, although until then the pre-sentence report suggested that he was doing quite well until he quit his job. He had completed various programs and had been doing his best to comply with the parole. “This incident, however is an indication that when you drink alcohol and you are not appropriately supervised… You react violently in a situation where it is completely unacceptable for that to happen.”
•On 28 August 2008, the applicant was sentenced following his plea of guilty on indictment to one count of robbery in company on 12 May 2007. The robbery occurred in the cubicle of a hotel. Items including a mobile phone, keys, bankcard and some cash were taken. It was an act of violence against a vulnerable member of the public who was doing no more than going about it his lawful duties. Fortunately the victim did not appear to have been badly injured, although punched at least eight times by the co-offender. The Applicant was under the influence of alcohol and cocaine which he started to use after being released from custody in July 2006. He became addicted to cocaine. He had not planned the offence and did not profit from it, apart from possibly $40. The Applicant was on parole for an offence of armed robbery at the time of the offending. His parole was revoked and he was ordered to serve the balance of parole commencing from 12 March 2007, expiring on 18 January 2009.
•On 4 February 2003 the Applicant pleaded guilty to a charge of robbery in company on 22 December 2001. When arrested, the Applicant possessed the victim’s mobile telephone. The offence of malicious wounding committed on the same date was also taken into account on sentence. The Applicant had struck victim 2 over his right eye with a bottle. The Applicant also entered pleas of guilty to charges of attempted robbery whilst armed with an offensive weapon, namely a screwdriver, committed on 19 January 2003, and the charge on the same date of using an offensive instrument, namely a screwdriver, to prevent his lawful apprehension. The attempted robbery was of a taxi driver, who was vulnerable to attack. The Applicant threatened to kill him twice while holding the screwdriver. The Applicant also used the screwdriver to prevent his lawful detention by a police officer. The applicant also requested a charge of being carried in a conveyance taken without the consent of the owner also committed on 19 January 2003 be taken into account on the sentence to be imposed for the offence of attempted armed robbery. The latter offence related to the theft of a motor vehicle. At the time of the 2001 offences, the Applicant had no criminal record. At the time of the January 2003 offences, the Applicant had been dealt with on 24 September 2002 for a charge of resisting a police officer, for which he was fined, and a charge of maliciously destroy or damage property, for which he received a two year bond. He was also on bail for the 2001 charges. The 2003 offences were substantially aggravated by those two circumstances. There can be little doubt that the major underlying cause of the Applicant’s criminal conduct is his abuse of alcohol.
The Tribunal considered in detail the support which the applicant had from time to time, his drug and alcohol use, his past re-offending, his “expressions of regret and remorse” and his participation in courses and “intensive drug and alcohol programs”, but concluded that it was “highly likely” that the applicant would engage in further criminal conduct. The Tribunal considered this weighed heavily against revoking the cancellation.
The Tribunal considered the best interests of minor children in Australia affected by the decision (the second “primary consideration”). The applicant’s daughter was born in 2007. The Tribunal noted that she had lived with her mother since their relationship broke down in about May 2015. The Tribunal found there were inconsistencies between the applicant’s evidence that he played a significant role in his daughter’s life when not in custody with statements made by a Magistrate in 2015 that the applicant wanted to reconcile with his eight year old daughter, “but there is a lot of work that seems to need to be done before that is going to be possible”. The Tribunal considered letters written by the applicant’s daughter and by the applicant’s mother purporting to set out her granddaughter’s wishes. The Tribunal stated:
[76]The Applicant’s daughter will turn 18 in eight years’ time. The Applicant may play a positive parental role, including providing emotional and financial support for his daughter over the next eight years if he is in the community and working.
[77]The Applicant’s past substance abuse and criminal offending has meant that he was in custody or immigration detention from the time of his daughter’s birth until the end of 2010, for about ten months in 2012, and since March 2016. During those periods he played a much more limited role in her life than if he had been in the community. The Tribunal has taken into account records of his daughter and her mother visiting the Applicant when he was in custody. His conduct therefore had a negative impact on the child.
[78]Given that the Tribunal finds it highly likely that the Applicant will resume his substance abuse and reoffend in the future, it finds that his future conduct will have a negative impact on his daughter.
[79]The Applicant has been separated from his daughter for the periods identified above, including for the past 17 months when he has seen her once and spoken to her on the telephone about every fortnight. If he returns to Fiji he can communicate with her by telephone or digital means. The letter written by her grandmother suggests that she may visit him once a year if money permits for a few days or a month. Separation would not be in his daughter’s best interests. However, the Tribunal finds that it is likely that he will be returned to custody if he remains in Australia, and therefore be separated from his daughter again even if he remains.
[80]Taking into account all the above matters, on balance, the Tribunal finds that revocation of the decision to cancel the visa is in the best interests of the Applicant’s daughter but does not give that consideration much weight.
The Tribunal concluded it was in the best interests of his nephews and nieces for the applicant to remain in Australia. However, it found that he did not have any significant relationship with them and could keep in contact with them by telephone and digital means as he had done in the past. Accordingly, the Tribunal gave this matter little weight.
As to the third “primary consideration”, the Tribunal considered that the Australian community would expect that the applicant’s visa would be cancelled given the “nature of the offences” he committed and is likely to commit.
The Tribunal identified the “other considerations” and considered each of those which were relevant to the applicant’s case:
(1)The Tribunal recognised that the applicant’s strong ties to Australia favoured revoking the decision to cancel his visa. The applicant had lived in Australia for most of his life (30 years) and had very strong links to certain of his immediate family; the Australian community might have a higher tolerance to his offending in those circumstances. The Tribunal considered the repeated and serious offending under the influence of alcohol and drugs outweighed this consideration. The Tribunal had regard to letters written by family but thought the letters contained some “overly generous assessments of character”. The applicant claimed to have volunteered at Police Citizens Youth Club (PCYC) but there was no evidence of the specifics. The applicant has cared for his grandmother and younger brother. The Tribunal concluded that the strength, nature and duration of the applicant’s ties to Australia weighed in favour of revoking the decision to cancel the visa.
(2)The Tribunal concluded that support services such as counselling would be more difficult to obtain in Fiji but that the applicant would still be able to access medication for his mental illness. The Tribunal accepted that the applicant would face hardship moving to Fiji due to a lack of financial or other support, but it did not accept he would face cultural or language barriers. The Tribunal concluded that the extent of impediments if the applicant were removed to Fiji weighed in favour of revoking the cancellation.
The Tribunal’s ultimate conclusions were:
[94]Taking into account all the above considerations, the Tribunal finds that the primary considerations of the protection of the Australian community and the expectations of the Australian community substantially outweigh the primary consideration of the best interests of minor children in Australia affected by the decision and the other considerations of strength, nature and duration of ties, and extent of impediments if removed.
[95]The Tribunal finds that there is not another reason why the original decision should be revoked.
[96]The Tribunal affirms the decision under review made by the delegate on 17 August 2017 not to revoke the cancellation of the Applicant’s Class BF Transitional (Permanent) visa.
GROUNDS OF APPLICATION
On 4 December 2017, the applicant filed an originating application for review of a migration decision in this Court.
The applicant’s grounds of review, as contained in his affidavit affirmed on 30 November 2017, are as follows:
(1) The first respondent’s decision on 7th November 2017 [be] quashed.
(2) The respondent’s decision was unreasonable.
(3) The respondent took into account irrelevant considerations.
(4)The respondent, in making the decision, did not comply with the rules of natural justice and [the] applicant was denied procedural fairness.
(5) The respondent failed to take into account relevant considerations.
(6)The risk of separation from children and other family members due to person’s detention or refusal of visa results in breaches of article 17 and 23 of the ICCPR Convention.
(7)By taking into consideration all of the grounds stated above and using the sole applicant self-represented, I highly believe that these grounds are reasonable for believing that this migration litigation has reasonable prospect of success.
These grounds were not particularised further, and the applicant did not provide any written submissions.
Grounds one and seven
Ground one summarises the applicant’s preferred relief and ground seven reflects the applicant’s belief as to his prospects of success in this proceeding. Neither ground identifies jurisdictional error.
Ground two
The applicant claims that the Tribunal’s decision was unreasonable. This ground was not particularised further.
Jurisdictional error can be established where a Tribunal acts in a manner which is legally unreasonable. The Tribunal could have come to various legally reasonable outcomes: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [63] (Li); Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [17], [75], [90] (Stretton). There is an area of “genuinely free discretion” where reasonable minds might disagree on the outcomes but the decision cannot be said to be legally unreasonable: Li at [66].
The applicant stated in oral submissions that the decision was unreasonable because he would have nowhere to go in Fiji, he would have nothing to do there, he would be separated from his daughter and family who were all Australian citizens and that they would not come to see him (although see Tribunal reasoning at [72]). There is no doubt that the applicant will face significant hardship as a consequence of being removed to Fiji. The Tribunal considered these factors and accepted that they weighed in favour of revoking the cancellation decision.
The Tribunal balanced the various competing factors and considerations that arose on the evidence before it. Some of these considerations favoured revocation of the cancellation decision and some did not. The Tribunal was entitled to reach the conclusion it did and is not shown to have acted in a manner which was legally unreasonable. It is not for this Court to substitute its own view as to the appropriate outcome; that would be to engage in a merits review and would overstep the Court’s supervisory role: Li at [66]. The Tribunal’s reasoning was intelligible and was directed towards, and logically related to, the purposes of the power being exercised. The decision called for a difficult evaluative judgment to be made and that is what the Tribunal did. It did so in a manner which was reasonably within the purview of the provision: Stretton at [17].
Grounds three and five
These grounds assert error for failing to take into account mandatory considerations and taking into account prohibited considerations. There were no considerations identified by the applicant which fall into either category.
The applicant, in oral submissions, stated that he did not call witnesses, such as family members. That is true. However, he was not prevented from calling witnesses and the Tribunal did take into account various statements from family members.
The applicant also noted that the Tribunal took into account his past history of offending. It was required to take this into account: clause 13.1(2)(a) of Ministerial Direction 65.
The applicant stated that the Tribunal failed to take into account the programs and rehabilitation he had undertaken in prison. However, the Tribunal did take these matters into account. At [60], it said:
The Tribunal takes into account the Applicant’s expressions of regret and remorse for his conduct, that he has completed several courses to improve his skills, and an intensive drug and alcohol treatment program, which he says deals with a range of issues, mainly reoffending and drugs and alcohol. It has taken into account the Applicant’s claim that he is dealing with his issues in a positive way which will result in good outcomes in the future. However, given the Applicant’s offending history, the history of notifications from the Department about the possible cancellation of his visa and the 2012 Tribunal decision, the Tribunal considers it highly likely that the Applicant will engage in further criminal conduct. This consideration weighs heavily against exercising the discretion to revoke the cancellation of the visa.
Having reviewed the reasons for decision, it does not appear to me that the Tribunal took into account considerations it was prohibited from considering or that it failed to take into account considerations it was required to take into account.
Ground four
The applicant claimed that the decision of the Tribunal was affected by jurisdictional error because he was denied procedural fairness and that the Tribunal did not comply with the rules of natural justice. This ground was not particularised further.
There is no question that the principles of natural justice applied to the making of the decision on review. However, there is nothing in the material before this Court which suggests that the applicant was not afforded a proper opportunity to be heard in relation to the relevant issues or that there was some other relevant breach of the rules of natural justice.
The applicant was on notice of the relevant issues. He had received a letter from a delegate of the Minister on 15 November 2016 explaining the reasons for the cancellation of his visa and was invited to make representations under s 501CA(3)(b). He made representations to the Department as to why his visa should not be cancelled. The delegate considered those representations and considered that the applicant did not pass the character test and was not satisfied that there was another reason to cancel his visa. When applying for review of the delegate’s decision the applicant submitted evidence for the Tribunal to consider. He appeared at the hearing. On review, the Tribunal considered the material raised by the applicant. The Tribunal did not consider issues which could not have been foreseen; nor did it decide the case on a basis which was significantly different from the delegate.
Ground six
This ground asserts that the applicant’s separation from children and family members would result in a breach of Articles 17 and 23 of the International Covenant on Civil and Political Rights.
Article 17 states as follows:
1.No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor unlawful attacks on his honour and reputation.
2.Everyone has the right to the protection of the law against such interference or attacks.
Article 23 states as follows:
1.The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2.The right of men and women of marriageable age to marry and found a family shall be recognised.
3.No marriage shall be entered into without the free and full consent of the intending spouse.
4.States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.
The Tribunal considered the best interests of minor children affected by the visa cancellation and concluded that those interests weighed in favour of revocation of the cancellation. The Tribunal considered the effects of separation on the applicant and on his immediate and extended family which would be caused by the removal of the applicant to Fiji. The Tribunal also considered the applicant’s links to his immediate and extended family (beyond minor children) and concluded that they would be upset if he were removed. There is nothing which indicates that the applicant relied on these provisions before the Tribunal. There was, in any event, no relevant breach. The removal of the applicant is authorised by domestic law, the decision took into account the effects of removal on the applicant’s family relationships (including on minor children) and the law and the decision were not manifestly arbitrary.
CONCLUSION
For these reasons, the application is dismissed, with costs to be agreed or assessed.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley. Associate:
Dated: 23 April 2018
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