Lakalaka v Minister for Immigration
[2004] FMCA 277
•7 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LAKALAKA v MINISTER FOR IMMIGRATION | [2004] FMCA 277 |
| MIGRATION – Decision of Minister to cancel a visa under s.501(2) of the Migration Act 1958 – applicant did not pass character test due to substantial criminal record – whether the Respondent appropriately considered the detrimental effect of deportation on Applicant’s two children – whether denial of natural justice occurred by the Respondent’s failure to hear evidence from the children and their care-givers – application dismissed. Migration Act 1958 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex-parte Palme (2003) ALR 327 |
| Applicant: | SOANE LAKALAKA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 631 of 2003 |
| Delivered on: | 7 May 2004 |
| Delivered at: | Brisbane |
| Hearing Date: | 1 September 2003 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Nair |
| Applicant instructed counsel directly |
| Counsel for the Respondent: | Mr Johnson |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the Application be dismissed.
That the Applicant shall pay to the Respondent a contribution to the Respondent’s costs fixed in the sum of $4,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
SZ 631 OF 2003
| SOANE LAKALAKA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application to review a decision of the Minister to cancel the applicant's transitional permanent visa, which is his sole authority to remain in Australia. The Minister exercised his discretion to cancel the visa under section 501(2) of the Migration Act1958 (“the Act”) upon the ground that the applicant had not satisfied him that he passed the character test referred to in section 501(6) of the Act. In particular, the Minister was satisfied that the applicant has a "substantial criminal record" as defined by section 501(7) of the Act.
The applicant, through his counsel, Mr R. Nair, submits a denial of procedural fairness and a denial of natural justice occurred "in not allowing the applicant's children to present their case on behalf of the applicant and themselves".
Background
The applicant is now 32 years of age and first arrived in Australia from Tonga as a five year old child in 1978. He has normally resided in Australia since that time. The applicant is the natural father of his two children, a daughter Salome, (aged 9) and a son Jordan (aged 8).
The applicant was, before detention, the sole parent for these children who do not appear to have contact with their natural mother, Ana Amone. Whilst incarcerated and then detained, the applicant arranged for his sister-in-law, Diane Amone, and the maternal grandmother, Salome Amone, to be the children's care-givers. The children are Australian citizens. The applicant alleges he has about 60 relations in Australia.
On 18 June 2002, an officer of the Department wrote to the applicant indicating it had come to the attention of the Department that his visa may be liable for cancellation under section 501 of the Act.
The letter referred him to section 501(6)(a) and section 501(6)(c)(i) of the Act and indicated that matters to be taken into account include "your substantial criminal record and your past and present criminal conduct". A copy of his alleged criminal history was attached, including some 26 alias names. The history commenced in January 1993 was lengthy, including convictions for a number of dishonesty offences and a sentence for a fixed term of 12 months for obtaining money by deception. The applicant had also been convicted of impersonating a Police Officer and impersonating an Immigration Officer.
All appeals lodged against convictions and/or sentences were unsuccessful. On 24 June 2002 an interview of the applicant took place by telephone whilst he was being held in the Bathurst Correctional Centre. He was provided with a copy of his responses to the interview (together with a copy of the ministerial direction) and the document was signed and amended by the applicant on 24 June 2002. Importantly, in the context of this matter it appears the applicant made relevant disclosures about the children as follows (at CB25).
“ What are the current custody arrangements for your children?
I have full custody but the children are looked after by their aunt (Salome - sister) and uncle (brother-in-law) while I am in gaol”.
How often do you see your children?
Every two weeks they come up. I try not to see them too much here because of the environment. Now they (Department of Corrective Services) moved me I don't have work release. I can't see them on weekends.
Prior to imprisonment what was your involvement in their daily lives (schooling, sport, etcetera)?
They lived with me and I was a sole parent. I've brought them up alone. My ex-wife's family didn't help but my family gave me assistance. It was just me and my children. I've brought up my daughter since she was three weeks old as my ex-wife suffered from post-natal depression.”
And further (at CB28):
“What are your views? Why should your visa NOT be cancelled?
This is the first time I've been incarcerated and the charges are incorrect. At the time I was only 19 years old and I was gullible. I'd be going to a foreign country. I can't speak the language or write the language. I couldn't survive. I thought this country was my home and I thought I was an Australian citizen. Although I travelled on a Tongan passport I thought I had dual citizenship. In 1984 my father and I went to Wollongong Council for a citizenship ceremony, hand on the Bible and thought I was swearing allegiance to Australia.
Will this affect anyone else and what will be the effect?
This will affect my children. They are both Australian citizens and I don't want them - I don't want to take them to Tonga. If I was deported I would have to take them but that would be unfair to them. They were born here. All their family is here and their friends and school are here. They would struggle with the language, the writing and reading. All they know is English and all they know is the Australian lifestyle and culture. My whole family, including my brothers, sisters, aunts, uncles, cousins, nephews, nieces, around about 60 people would suffer.
Do you envisage any difficulties in returning to your country of origin? If so, what?
The language would be difficult. The culture would be difficult. I wouldn't know where to start. I have only been there three days since I left at three years of age. I'd have problems getting a job without the language.
Is there anyone who could assist you with resettlement if you are removed from Australia?
No.”
On 8 July 2002 the applicant was given a further opportunity to comment on the further information available to the Department and appears to have done so, according to the Department records, on 10 July 2002. This handwritten response from the applicant appears to be signed on 1 July 2002 and transmitted by facsimile on 3 July 2002. Whilst I am confused why the Department describes this document (at CB92 to 94) as having been dated 10 July 2002 it was certainly before the Minister when he made his decision.
On 19 July 2002 the Department prepared an issues document which was subsequently cleared and forwarded to the Minister. This document (with annexures) is reproduced at CB36 to 94 and included the summary of the sentencing Judge's comments; and assessment of the applicant's "risk of recidivism" as well as the desire for general deterrents and the expectation of the Australian community that would flow from a cancellation of the applicant's visa. From paragraphs 33 to 40 of the issues document, under the hearing of "The Best Interests of the Children", the following remarks were offered to the Minister.
“(33) Article 3.1 of the Convention on the rights of the child (CROC) states:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, Court of Law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.
(34) At interview, Mr Lakalaka stated he was divorced with the mother of his two children in 1996/1997. He stated he has two Australian citizen children, Salome Jean De La Toya, aged 8, and Jordan Nicholas De La Toya, aged 6. Mr Lakalaka stated in his submission that these children would be affected by a decision under Section 501(2).
(35) Paragraph 2.16 of the Minister's Direction sets out the factors in which the decision-maker should have resort when considering the best interests of the child:
(36) At interview, Mr Lakalaka stated of his relationship with his children:
“ I have full custody but the children are looked after by their aunt (Salome-sister) and uncle (brother-in-law) while I'm in gaol. (In the past) they lived with me and I was a sole parent. I've brought them up alone. My ex-wife's family didn't help but my family gave me assistance. It was just me and my children. I've brought up my daughter since she was three weeks old as my ex-wife suffered from post-natal depression”.
(37) At interview, regarding his contact with his children, Mr Lakalaka stated:
“ Every two weeks they come up. I try not to see them too much here because of the environment. Now their (Department of Corrective Services) moved me I don't have work release and can't see them on weekends”.
(38) In his submission regarding his contact with his children Mr Lakalaka stated:
“ I try to ring them every morning before they go to school so they know I love them dearly and miss them very much. I was both mother and father to my children and being a sole parent I was their only role model. I took my children to school and brought them home, I also took them to their sporting activities. Basically, I'm heavily involved in my children's daily lives”.
(39) At interview, regarding the impact his possible visa cancellation would have on his children, Mr Lakalaka stated:
“ This will affect my children. They are both Australian citizens and I don't want to take them to Tonga. If I was deported I would have to take them but that would be unfair on them. They were born here, all their family is here and their friends and school are here. They would struggle with the language, the writing and the reading. All they know is English and all they know is the Australian lifestyle and culture”.
(40) Should Mr Lakalaka's visa be cancelled and he be removed to Tonga, his two Australian born children may be denied an opportunity to continue having regular contact with their father, with the exception of limited contact through letters and telephone calls. Should Mr Lakalaka's children accompany him to Tonga it is reasonable to assume that they may experience language and cultural difficulties. They may also experience hardship in readjusting themselves and form a new network of friends in Tonga, a country that is very different to Australia in terms of language and culture.
They would also be separated from their close relatives and social networks that have well been established in Australia. If they are accompanying Mr Lakalaka to Tonga it would also cause considerable hardship on them. If these children were to accompany Mr Lakalaka it is reasonable to assume that, in Tonga, they would not have access to educational opportunities and a health support system that is comparable to that available in Australia.”
The issue statement makes a clear submission to the Minister that:
"it is open to you to find, from the information given, that the cancellation of Mr Lakalaka's visa and his removal from Australia may have a detrimental affect on his children".
Under the heading "Other Considerations" the Minister was informed of the applicant's extended family situation. Both his parents had died and are buried in Australia and he would find it very difficult to "pay homage to them from across the Pacific Ocean". He also expressed concerns about the further difficulties he would encounter if his visa was cancelled as follows:
“ I'd be going to a foreign country. I can't speak the language or write the language. I couldn't survive. The language would be difficult. The culture would be difficult. I wouldn't know where to start. I've only been there three days since I left at three years of age. I'd have problems getting a job without the language”.
The Minister's decision was made on 26 August 2002. It was recorded on the issues document (at CB51) where, after saying he considered all relevant matters, the Minister deleted three inapplicable paragraphs and signed the document in which he confirmed he had decided that:
“ I reasonably suspect that Mr Lakalaka does not pass the character test and Mr Lakalaka has not satisfied me that he passes the character test AND I HAVE DECIDED TO EXERCISE MY DISCRETION UNDER SUB-SECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa”.
The applicant, by that time out of incarceration, was notified of the Minister's decision by letter dated 17 March 2003 when he was taken into immigration detention.
The applicant filed his application for review on 24 April 2003 and when this matter first came before me on 1 August 2003, I was persuaded that the applicant should be granted an adjournment to allow him to file a further affidavit. I ordered the applicant to pay the respondent's costs thrown away by the adjournment. The matter was adjourned until before 1 September 2003.
No further affidavits were filed by the applicant or on his behalf. Mr Nair, for the applicant, said that, "strenuous efforts" had been made to secure further material. He sought my leave to allow him to adduce oral evidence from the children and the adult carers. For the reasons given at the hearing on 29 August 2003 I refused his application. For completeness the applicant did rely on an affidavit sworn by him on 12 July 2003 in which he indicated the difficulties his children were experiencing since he was taken into detention on 17 March 2003, including not eating and increasing asthma for his daughter. Relevant, it is submitted by the applicant, is his statement that:
“ To the best of my knowledge and belief my children were not asked about the possible effects on them of my removal from Australia by the Department of Immigration, Multicultural and Indigenous Affairs. To the best of my knowledge and belief the present care-givers (Diane Amone and Salome Amone) were also not asked on behalf of my children about the possible effects on my children of my removal from Australia”.
A concern had been raised by the applicant as to whether reasons for the decision had been given. Exhibit 1 is a document dated 10 July 2003 which the Minister says "sets out my best recollections of the reasons for my decision of 26 August 2002"; concluding that he gave significant weight to the fact that it may be detrimental to the best interests of the children for the applicant's visa to be cancelled. The Minister said that the nature and seriousness of Mr Lakalaka's crimes, the disruption that his crimes had caused others, the expectations of the Australian community and the need to protect the Australian community from such conduct outweigh all other considerations.
Legal principals
Since the matter was heard by me the law, so far as it may apply to certain aspects of a Minister exercising a discretion under section 501(2) of the Act, has been examined by the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex-parte Palme (2003) ALR 327. Since the Palme decision, the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Griffiths (2004) FCA FC 22 made it clear (at paragraph 18) that:
“ Once it is conceded that the character test is not met the characterisation of the seriousness of the conduct and the question whether the Minister should cancel the visa is a matter for the Minister in the exercise or his or her discretion. Of course, before arriving at the decision, the Minister must accord procedural fairness to the person whose visa is under consideration”.
The respondent's decision is a "privative clause decision" attracting the protection of the privative clause contained in section 474 of the Act subject, of course, to the reservations identified by the High Court in Plaintiff S157/2002 v Commonwealth (2003) 195 ALR 24, where the decision is affected by jurisdictional error.
Submissions of parties
The applicant has submitted that the decision was affected by jurisdictional error in that the applicant's children and the children's carers were not given an opportunity "to present the children's case both on their behalf and on behalf of their father".
In support of this submission, the applicant relied upon the decision of Branson J in Untan v MIMIA (2002) FCA 1448. The applicant submits that the applicant and his children each had a legitimate and reasonable expectation that the children would be heard. He says that the Department should have made further inquiries of the care-givers about the effect of the deportation upon the two young children.
Further, Counsel for the Applicant adopted the comments of Mason J in Kioa v West (1985) 159 CLR 550 at 584 and Deane J. In Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 653, to support his submission that as any deportation would have a direct consequence for the children, thus adversely affecting “the rights, interests, status or legitimate expectations” of the children, a failure to afford them the opportunity to be personally heard on the matter tainted the decision with procedural unfairness amounting jurisdictional error.
Counsel for the Minister, in submitting that the applicant's case has no substance, said it is clear from the issues document that the Minister was well aware of the effect upon the children of his decision.
In responding to the arguments advanced by the Applicant at paragraph 21 of these reasons, Counsel for the Minister relied on the comments of Deane J (at page 634); Mason J (at page 588) and Brennan J (at pages 628, 629-630), of the Kioa decision and the observations of the Full Court of the Federal Court in Untan v MIMIA (2003) FCAFC 69.
He says the applicant was given every opportunity to respond and provide information to the Minister.
Conclusion
It is not for a Court, exercising powers of judicial review to reconsider the merits of the decision to remove the Applicant from Australia.
The Full Court in Untan analysed the High Court’s decision in Re: Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 77 ALJR 699 in respect to the issue of procedural fairness and the role of the concept of legitimate expectation in the context of alleged denial of procedural fairness. In Lam, the Applicant claimed that the minister failed to accord procedural fairness to him in not attempting to contact the carer of the children, having notified him of an intention to do so. There is not evidence in this case that the Minister ever indicated an intention to speak to the Applicant’s children or their carers.
As the Full Court observed in Untanv MIMIA [2003] FCAFC 69 (at 96 – 98) that:-
“96 An important aspect of the case is the High Court's view of the role that the concept of "legitimate expectation" has in assessing whether there has been a failure to accord procedural fairness. McHugh and Gummow JJ accepted that by not contacting Ms Tran the Minister had failed to meet an expectation reasonably attributable to Mr Lam. Their Honours (at [105]) commented, however, that this failure did not -
"reasonably found a case of denial of natural justice. The notion of legitimate expectation serves only to focus attention on the content of the requirement of natural justice in this particular case."
97 Their Honours were adamant that the fact of a legitimate or reasonable expectation could not, per se, found a claim for relief. It is necessary to show actual unfairness; see also Gleeson CJ at [34] and Callinan J at [148]. A similar view was expressed by Hayne J who said at [122]:
"For present purposes, it is enough to say that even if the Department's letter engendered some relevant legitimate expectation, departure from it, where it is accepted that neither the expectation nor departure from it affected the course which the applicant pursued, gives no ground for relief. He was afforded a full opportunity to be heard. The Department's letter raised no new matter to be taken into account in making the impugned decision and it did not divert attention in any way from the relevance of, or weight to be given to, the effect that cancellation of the applicant's visa would have on his children."
98 This view is consistent with the approach of McHugh J in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 312 where his Honour identified the question as being "what does fairness require in all the circumstances of the case?""
It is likely that the Applicant held a subjective expectation that his children or the carers being interviewed, would increase his chances of a favourable outcome.
It is trite to note, of course, that the children were not applicants and had no absolute right to be heard on the application. There was unlikely to be anything they could say that the applicant both had a reasonable opportunity to express and did express.
The children, who had relied upon the father principally and also the extended family since the mother had apparently abandoned them, are undoubtedly attached to the applicant and are significantly distressed by his absence from their life. Although the Court empathises with the predicament the children have been put in through the criminal conduct of their father it is clear from the issues document and the reasons that the Minister states he was both aware of, and gave significant weight to, the best interests of the children.
It's hard to think of any further information that could have been presented by the care-givers in addition to the information provided by the applicant. The applicant was even given an opportunity by me to file some further affidavits (anticipated to have come from the care-givers) about the children's distress and situation, however, he did not do so.
There was no obligation, in my view, on the facts of this case for the Minister to make any further inquiries nor that any reasonable expectation to so was created.
It was not contended before me that the issues document and the Minister's decision did not set out the reasons for the decision in accordance with section 501G(1)(e) or that the decision to cancel the applicant's visa was so unreasonable as to attract the principle of Wednesbury unreasonableness.
Such contentions would not have found favour with me considering the clear views of the majority in Palme.
Whilst it was equally open to the Minister not to cancel the applicant's visa the proceedings before me are not a merit review. I'm satisfied that no practical or actual unfairness in the process of determination has been established by the applicant so as to create a jurisdictional error. The application must be dismissed. I so order.
For completeness, I agree with the Respondent’s decision, that as I have found the decision is a “privative clause decision”, and the Application was not filed within the time limited by section 477(1A) of the Act, the Notice of Objection to Competency filed 1 July 2003 should be upheld.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Baumann FM
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