Kaur v Minister for Immigration and Multicultural

[2005] FCA 1787

FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Multicultural
and Indigenous Affairs [2005] FCA 1787

KAUR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 566 of 2005

18 NOVEMBER 2005
NORTH J
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 566 OF 2005

BETWEEN:

JASVIR KAUR
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

ADMINISTRATIVE APPEALS TRIBUNAL
SECOND RESPONDENT

JUDGE:

NORTH J

DATE OF ORDER:

18 NOVEMBER 2005

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The appeal is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 566 OF 2005

BETWEEN:

JASVIR KAUR
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

ADMINISTRATIVE APPEALS TRIBUNAL
SECOND RESPONDENT

JUDGE:	NORTH J
DATE:	XX NOVEMBER 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Before the Court is an appeal against the decision of the Administrative Appeals Tribunal (the “Tribunal”) of 12 May 2005. The Tribunal affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs to refuse Charnjit Singh, the visa applicant, a spouse provisional visa. The application for review of the delegate’s decision was brought by the visa applicant’s wife (the “review applicant”). The review applicant appeals under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) against the Tribunal’s determination to uphold the delegate’s decision.  The appeal is heard by a single Judge of the Court pursuant to a direction of the Chief Justice dated 23 August 2005. 

2. The grounds of appeal will be dealt with, as argued by Mr Gibson, counsel for the review applicant.  The decision of the Tribunal sets out the facts and reasoning in a clear and concise fashion. It is not necessary for those matters to be summarised further except to refer to them in relation to the arguments placed before the Court.  The decision of the Tribunal needs to be read in conjunction with these reasons. 

3. The critical factual elements are that, in March 1993, the visa applicant was convicted of rape and assault occasioning actual bodily harm and sentenced to eight years jail by the Supreme Court of South Australia. Then, in June 1994, he was convicted of assault occasioning actual bodily harm and sentenced to 12 months imprisonment. He served just over 3 years of these terms, was released on parole and voluntarily returned to India, the country of which he is a national. As a result of being sentenced to more than 12 months imprisonment, the visa applicant did not pass the character test required for the grant of a visa: s501 Migration Act 1958 (the Act).  However, pursuant to s 499 of the Act the Minister retains a discretion to grant the visa despite the visa applicant’s failure to pass the character test. The discretion must be exercised in accordance with the Minister’s direction number 21 (the “direction”). 

4. The grounds of appeal which were argued concern the consideration of the direction by the Tribunal. The direction provides for three primary considerations to be taken into account by the Tribunal in considering whether to refuse a visa.  Those considerations are the protection of the Australian community and members of the community, the expectations of the Australian community, and in all cases involving a parental or other close relationship between a child or children and the person under consideration the best interests of the child or children. In relation to the first consideration there are three factors identified in the direction which must be taken into account, namely the seriousness and nature of the conduct, the likelihood the conduct may be repeated (including any risk of recidivism) and general deterrence, that is the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons. 

5. The first argument concerned the Tribunal’s consideration of the best interests of the children. The visa applicant and the review applicant have two children, namely Shireen, born on 18 November 1998 and Inderveer, born on 26 June 2001. Inderveer is very seriously disabled with cerebral palsy. Mr Gibson argued, firstly, that there was no attempt by the Tribunal to separate the interests of Inderveer and Shireen.  This, he argued, amounted to a jurisdictional error because the Tribunal failed to have regard to the best interests of Inderveer who had very special separate interests.  Then, he contended that the Tribunal made no attempt to identify the interests of Inderveer for the purposes of applying the primary consideration.  In particular, the Tribunal failed to isolate the need of Inderveer for the presence of the visa applicant in order to ensure his optimal future development given the serious disabilities from which Inderveer suffers.  Finally, the Tribunal erred in the following passage at [13]:

   If the visa applicant's visa is refused the review applicant has a difficult choice.  Will she take a risk with Inderveer's future health and her current financial security by returning to India to resume cohabitation with the visa applicant or will she accept that her relationship with him will be severely curtailed by her continuing to reside and care for her children in Australia?  I have no doubt that she would choose to continue living in Australia but there is no reason to suppose that she will be unable to visit the visa applicant in India from time to time.

   Mr Gibson argued by taking into account an alleged choice open to the review applicant, the   

   
             

   Tribunal had taken into account an irrelevant consideration because, in truth, she had no

   
             

   choice in relation to the matter.

6. I will now address each of the three grounds relating to the best interests of the children.  It is impossible to say the Tribunal did not separate the particular interests of Inderveer.  The Tribunal devoted much of [11] to a description of the disability suffered by him, in particular, it cited extensively from the report of Denise Kasperczyk, an occupational therapist.  The extract explains the limitations caused to Inderveer by reason of his cerebral palsy and the services required by him in order to improve his position as well as the facilities necessary for him to live a reasonable life.  It also canvasses the availability of such services in India.  The Tribunal then refers, at [12], to opinions expressed by other health professionals in the evidence before the Tribunal.  In some places the Tribunal considered the interests of both children together, but this was only where their interests coincided.  The first criticism relating to the Tribunal's treatment of the best interests of the children is not made out.

7. Next the review applicant criticised the Tribunal for failing to identify the interests of Inderveer by acknowledging how the presence of his father will ensure his optimal development in the future.  The Tribunal said at [12]:

   The Minister also accepts that the best interests of the children would be met by having both parents available to them during their upbringing and that the best environment for this would be Australia.  In my opinion these concessions are properly made and accord with my own assessment of the situation.

   The Tribunal accepted, as reflecting its own opinion, the conclusion that the best interests of

   
   

   the children would be met by having both parents available to them during their upbringing. It was unnecessary for the Tribunal to elaborate further on the precise way in which this would occur.  The review applicant could gain a no more positive conclusion from the Tribunal than that which she gained from the approach taken by the Tribunal. 

8. Finally, the argument relating to the non-existent choice alleged by the review applicant to have been taken into account by the Tribunal focuses unduly on the reference to choice in the criticised part of the decision.  The sense of the passage is that the Tribunal made a finding that the review applicant will be forced by circumstances to remain in Australia.  This is a conclusion that does not depend so much on a subjective choice, but a choice imposed by all the circumstances on the review applicant.  The Tribunal was entitled to speculate how the review applicant would face the future if the visa were refused. The Tribunal did not take into account an irrelevant factor in this regard.

9. The arguments on the appeal then turned to the consideration of the protection of the Australian community.  One matter which the Tribunal was required to take into account in relation to the risk to the community was whether the visa refusal would prevent or discourage similar conduct by others (general deterrence): see the direction at [2.5(c)].  The Tribunal dealt with this matter as follows, at [9]:

   As I have said on several occasions, one individual case of refusal may not become widely known to prospective offenders, but if a consistent approach is taken by decision makers that serious criminal conduct will have a disqualifying effect upon a visa application.[sic]This soon becomes generally known throughout the target community and has a similar deterrent effect to that achieved upon members of the general population who are aware of the likelihood of punishment such as imprisonment in the event of their participating in criminal conduct.

10. Mr Gibson argued that this statement demonstrated that the Tribunal treated the consideration of general deterrence as inherently more significant than the other considerations, including the best interests of the children.  That approach, he contended, amounted to jurisdictional error.  To read the decision of the Tribunal in this manner is to give it a meaning which it does not readily bear.   The Tribunal simply considered whether refusal of the visa would, in circumstances of this type of case, have a general deterrent effect.  Due to the terms of the direction, it was necessary for the Tribunal to give the issue consideration. No jurisdictional error is evident in the Tribunal's treatment of this issue.

11. Next, Mr Gibson argued the Tribunal erred in its consideration of the likelihood that the conduct may be repeated (recidivism): see the direction at [2.5(b)].  The Tribunal said at [8]:

    I would find it impossible to say that, if confronted with similar situations in the future, the visa applicant would not offend again.

12. Mr Gibson argued this formulation demonstrated that the Tribunal had imposed a far more onerous standard of proof on the review applicant than the direction required. The direction required that there be a likelihood that the conduct may be repeated, and it was said the Tribunal’s formulation imposed a much stricter standard. The words used by the Tribunal do not impose any such impermissible standard. The Tribunal made a finding, that it could not be satisfied that the applicant would not re-offend. The form of expression conveys that the conclusion was reached with a degree of certainty. The degree of certainty is expressed by the reference to impossibility. Quite apart from the phraseology of the impugned sentence the construction which I favour is supported by the context of the whole of [8]. In that paragraph the Tribunal analysed the evidence which it regarded as relevant concerning the issue of re-offending. It referred to the evidence of the visa applicant's relatives and his own evidence and concluded that this evidence did not establish that the visa applicant was not likely to re-offend. Again, the Tribunal committed no jurisdictional error in the way it dealt with this matter.

13. Next, with respect to the protection of the Australian community consideration, Mr Gibson referred to the consideration in the direction at [2.10C] which provides that the following factor is relevant, namely:

    The extent of rehabilitation already received, the prospect of further rehabilitation and the positive contribution to the community the person may reasonably be expected to make.

14. He argued that there was evidence of rehabilitation which the Tribunal ignored.  There was evidence, for instance, of the substantial period of over 11 years that had elapsed since the last offence was committed,  the parole reports of the Parole Board of South Australia which stated the visa applicant's behaviour in prison was excellent,  the fact the visa applicant had not committed any offence since his release from prison and return to India in 1997 and the testimonials from village elders and residents in his village in India testifying to his past and present good conduct since he returned to India. The Tribunal was bound to consider the extent of rehabilitation.  It was not bound to deal with every piece of evidence, but rather to deal with such evidence it considered relevant to that issue.  The Tribunal engaged in such a task.  Again, the reasoning is contained at [8] where the Tribunal said:

    He (the visa applicant) claims that he has now seen the error of his ways and is a reformed character.

    The Tribunal then referred to the evidence of the visa applicant's uncle, Iqbal Singh, his

    
               

    second cousin, Balwinder Singh and the review applicant.  The Tribunal analysed this

    
               

    evidence and concluded the witnesses were sincere in their judgment of the visa applicant as

    
               

    a reformed character. The Tribunal continued:

    But in my view their perceptions and opinions are largely influenced and probably distorted by their motivations and their relationships.  I think they see what they want to see.  At all events I regard none of them as independent and reliable assessors of the visa applicant's present character.  The same may be said of the view of Dilbagh Singh Kahlon.  I would find it impossible to say that if confronted with similar situations in the future the visa applicant would not offend again.

    Thus, the Tribunal addressed the relevant issue. The fact that it did not refer to some evidence

    
               

    which may have supported an alternative view does not amount to jurisdictional error. In

    
               

    essence, the argument of the review applicant seeks to canvass the merits of this finding.

15. Then, further, in relation to the protection of the Australian community, Mr Gibson mounted several arguments concerned with [2.6] of the direction which concerns the seriousness and nature of the conduct.  He first referred to a document relating to the visa applicant's release on parole.  Initially he sought to argue the document proved that the sentence for the offences committed by the visa applicant had been reduced by one-third. Mr Gibson was not able to explain how the documents came to make such a suggestion and there was no evidence the sentences had been so reduced.  There is no point in this argument.

16. The next argument, however, had more substance.  Mr Gibson argued there were circumstances which reflected upon the seriousness and nature of the conduct which the Tribunal failed to take into account.  When the visa applicant was convicted of rape in 1993, three other men were also convicted with him in relation to the same occasion.  All four accused appealed.  The visa applicant's appeal was dismissed. The circumstances relating to his activities were somewhat different to those of the other three. The appeals of the remaining three accused were allowed.  On their retrial, they were acquitted.  The visa applicant considered that evidence led in the retrial of his co-accused supported his original defence that intercourse with the victim was consensual.  He therefore petitioned the Governor, under s 369 of the Criminal Law Consolidation Act 1935 (SA) in an attempt to have the Full Court reopen his case. The petition was refused.  Before the Tribunal the review applicant argued that these matters should have been taken into account when considering the seriousness and nature of the conduct. In dealing with this question, the Tribunal considered the events of the rape by taking the facts from the judgement of the Full Court on the visa applicant's appeal.  The Tribunal did not refer to the subsequent litigation history. The failure to do so was, it was argued, a jurisdictional error because the Tribunal failed to take a relevant matter into account. The evidence led on the retrial was relevant because it showed that the conviction of the visa applicant for rape was unsafe, or at least it showed that the circumstances of the rape were not as serious as originally alleged. Insofar as the evidence on the retrial was said to be relevant to the question of the safety of the conviction, the submission cannot be sustained in view of Minister for Immigration and Multicultural Affairs v Danielle 39 ALR 649, Minister for Immigration and Multicultural Affairs v Gungor 42 ALR 209 and Minister for Immigration and Multicultural Affairs v SRT (1999) FCA 1197, (1999) 91 FCR 234. In SRT the Full Court said at [45]-[46]:

    It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers not bound by the rules of evidence and free to inform itself from any source should review the essential factual basis of a conviction and of the resulting sentence.  The policy must be that a conviction and the sentence imposed as a result of a conviction are matters for the criminal law and its procedures.  If a sentence like a conviction is otherwise and in accordance with law a right of appeal is available to remedy any miscarriage of justice.  If new or fresh evidence comes to hand, again, criminal proceedings can be availed of.

    While it stands the conviction and sentence must be conclusive so far at least as concerns the Tribunal reviewing a decision that takes the conviction and sentence as its starting point.  Serious practical questions would arise if the position were otherwise.  The Tribunal could arrive at its own decision as to whether the person concerned did what he was charged with doing and for that matter what sentence his offence merited.  It would be doing so on material gathered and considered at what could be a long time after the trial except that trial procedures would be absent, the Crown would not be a party.

    An applicant may challenge the facts on which a conviction is based to highlight the seriousness or nature of the conduct in question.  However, the onus on such an applicant is heavy and cases in which evidence emerges to show that a miscarriage of justice occurred are rare see: Minister for Immigration and Multicultural Affairs v Ali (2000) FCA 1384. In such cases a miscarriage of justice will only be shown if the evidence points clearly to that conclusion. This would prove difficult for the visa applicant, as the basis on which the jury acquitted the co-accused is not discoverable. The acquittals of the co-accused do not inevitably demonstrate that the visa applicant should also have been acquitted. The Tribunal was not bound to consider the acquittal of the co-accused or the evidence led at the retrial. There was no jurisdictional error in the Tribunal’s consideration of this issue.

17. The final argument raised by Mr Gibson related to the way in which the Tribunal dealt with the third consideration, namely the expectations of the Australian community.  The Tribunal said in part at [14]:

    He (the visa applicant) himself was an unsatisfactory and evasive witness in my opinion and I am far from satisfied that he genuinely accepts full moral responsibility and culpability for his conduct.

18. It was argued on behalf of the review applicant that this conclusion was not open in the circumstances of the case because the oral evidence given by the visa applicant was given by telephone with the Tribunal in Australia and the visa applicant in India.  The evidence was given in English in which the visa applicant was not fluent, or given through an interpreter.  The visa applicant indicated during the course of his evidence that he had difficulty in understanding some of the questions. The evidence was given in the early hours of the morning in India and the Tribunal had no opportunity to observe the visa applicant’s demeanour or the way in which the questions were answered.  Although the circumstances in which the visa applicant gave evidence must give rise to caution on the part of the Tribunal in rejecting the evidence as unsatisfactory, the Tribunal was entitled to reject the evidence of the visa applicant provided the Tribunal exercised caution and made allowance for those circumstances. It was open to the Tribunal to come to a conclusion on that evidence.  The transcript of that evidence demonstrates that the view of the Tribunal was more than open to it. 

1. Whilst the circumstances of this case called for a difficult decision and one can but have sympathy for the plight of the review applicant and her children, I have not been able to discern any jurisdictional error in the way in which the Tribunal dealt with the case. Consequently the appeal must be dismissed with costs. 

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North J.

Associate:

Dated:             8 December 2005

Counsel for the Applicant:	Mr J Gibson
Solicitor for the Applicant:	Haag Walker Lawyers
Counsel for the Respondent:	Mr Heerey
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	18 November 2005
Date of Judgment:	18 November 2005