LALOGAFAU v Minister for Immigration

[2016] FCCA 3109

FEDERAL CIRCUIT COURT OF AUSTRALIA

LALOGAFAU v MINISTER FOR IMMIGRATION [2016] FCCA 3109

Catchwords:
MIGRATION – Minister for Immigration and Border Protection – Class BF transitional (permanent) visa – s.477 application for an extension of time – no sufficiently arguable to warrant an extension of time – no procedural unfairness – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.476, 477, 501(3A), 501CA

Applicant: LAUMUA LALOGAFAU

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2799 of 2016

Judgment of: Judge Street

Hearing date: 1 December 2016

Date of Last Submission: 1 December 2016

Delivered at: Sydney

Delivered on: 1 December 2016

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondent:

Mr A Markus

Australian Government Solicitor

ORDERS

1. The application for an extension of time under s.477 of the Migration Act 1958 (Cth) is dismissed.

2. The Applicant pay the costs of the Respondent fixed in the amount of $3,606.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2799 of 2016

LAUMUA LALOGAFAU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court's jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Assistant Minister pursuant to s.501CA(4) of the Act not to revoke a decision made under s.501(3A) to cancel the applicant's Class BF transitional (permanent) visa.

2. The applicant is a national of Samoa who arrived in Australia on 18 November 1989 at nine years of age. The applicant and his family were granted permanent visas on 9 June 1999, and the applicant has not left Australia since. The applicant was educated in Australia and has had various employment work in Australia, including specifically in the construction industry. The applicant is married and his wife suffers from a medical condition. The applicant has five minor Australian children between six and fifteen years of age. The applicant also has an extended family in Australia and is an active member of his church. 

3. Very sadly, the applicant has a long criminal history. The applicant's offending included offences involving dishonesty, property, trespass, fisheries, driving, failure to appear, as well as a number of convictions for violence. The applicant was last convicted on 4 November 2014 of driving a motor vehicle during a period of disqualification, which was a second offence and the applicant was sentenced to six months imprisonment. Also called up at that time were two wholly suspended sentences of break and enter house and steal and receive/ dispose stolen property, for which the applicant was sentenced to terms of imprisonment of sixteen months and six months, respectively. 

4. The applicant has had significant problems with drug and alcohol abuse which has obviously contributed to his offending. The applicant claims to have taken significant steps in an attempt to rehabilitate himself. 

The Minister’s Decision

1. The applicant's visa was the subject of a mandatory cancellation on 22 April 2015 under s.501(3A) of the Act. The applicant requested the revocation of the cancellation decision in the prescribed manner and within the prescribed timeframe in accordance with s.501CA(4)(a) of the Act. Following various representations made by and on behalf of the applicant, the respondent made his decision on 1 September 2016 declining to revoke the cancellation decision.

Before this Court

1. The proceedings were commenced in this Court on 13 October 2016. In these circumstances, the applicant requires an extension of time under s.477 of the Act. On 27 October 2016 a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant that this was a hearing to determine whether there should be an extension of time under s.477 of the Act. The Court explained that this involved three issues:-

   i)First, whether there was an adequate explanation for the delay;

   ii)Secondly, whether there was any relevant prejudice to the respondent; And

   iii)Thirdly, whether there was a sufficiently arguable case of jurisdictional error to warrant an extension of time in the interests of the administration of justice. 

3. The Court explained to the applicant that in relation to the first issue, there was an explanation which the respondent accepted was an adequate explanation for the delay. The Court noted in relation to the second issue that there was no suggestion of prejudice to the respondent. 

4. The Court explained to the applicant that it was the third issue that was the critical issue in relation to this hearing.  The Court explained to the applicant that whether there is a sufficiently arguable case required there to be a reasonable argument that the respondent’s decision was one that exceeded the statutory powers or denied the applicant procedural fairness. The Court explained it in summary, this meant the Court was considering whether the respondent's decision was lawful and whether the respondent's decision was fair. 

5. The Court explained to the applicant that if satisfied that there was a sufficiently arguable case to warrant an extension of time, the matter would be fixed for hearing on another occasion and time would be extended. The Court explained to the applicant that if the Court was not satisfied there was a sufficiently arguable case to warrant an extension of time, the application for an extension of time would be dismissed.  The applicant confirmed that he understood what had been said by the court as to the nature of the issue. 

6. The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from the respondent and then hear submissions from the applicant in reply. The applicant confirmed he understood what had been said by the Court.

7. From the bar table, the applicant submitted that the decision was unfair in that it had failed to take into account his young age at the time he arrived in Australia, the support that he provided to his family members, his remorse, and in substance put submissions that invited this Court to descend into the merits of the application. 

8. The Court explained to the applicant that this Court did not have power to grant relief on compassionate grounds. The Court explained to the applicant that it can only grant relief if satisfied that there was a sufficiently arguable case to warrant an extension of time under s.477 of the Act and that this involved there being a sufficiently arguable case of relevant legal error by the respondent.

9. The solicitor for the respondent took the Court to the reasons of the respondent and in particular, the taking into account by the respondent as identified in paragraph 12 of the Minister’s reasons, the the applicant's residence in Australia since the age of nine; his strong and longstanding ties to Australia; the best interests of his five minor children; the impact of his removal on his wife, who has a mental illness; the impact on other family members;  his positive contributions to the community; the steps he has taken towards rehabilitation; the support that he has had from family and other people in Australia; and the hardship that he would suffer upon return to Samoa where he has no remaining relatives.

Consideration of the hearing before the Minister

1. The Minister took into account the extended family, including minor children related to the applicant in Australia, and that the applicant is close to his extended family in Australia. The Minister took into account that the best interests of the minor relatives was that the Minister revoke the visa cancellation decision in enabling him to remain in Australia where he can have a relationship with them that includes personal contact.

2. The Minister took into account that the applicant had resided in Australia for some 26 years, having arrived as a young child of nine years of age. The Minister took into account that the applicant has lived in Australia for most of his life from a very young age, and at least in that regard that there was a view that the Australian community may afford a higher degree of tolerance of criminal conduct. The Minister also took into account that the applicant has contributed positively to the Australian community and he was educated in Australia, has been usefully employed and contributed in the construction industry through his employment. 

3. The Minister took into account the fact that the applicant has been active with his church, and also his activities in relation to coaching and training in the local rugby league team, and being a volunteer for the Salvation Army, and referred to letters of support in that regard, as well as his attending of the Hillsong Church while in detention. These were matters that the Minister expressly identified as being taken into account. 

4. The Minister made further reference to the applicant's strong family and social ties to Australia, including reference to his maternal and paternal grandparents. The Minister made express reference to the applicant's wife and the condition from which she suffered, and her views in relation to the applicant, specifically being understanding, patient, hard working and a good provider. There were also letters of support in relation to the wife's condition from the Campbelltown Community Mental Health Service. The Minister made reference to the fact that the applicant was obviously valued by all of his family. 

5. The Minister found that the applicant's wife will suffer significant emotional, financial and practical hardship should the applicant be removed from Australia, particularly given her mental health condition.  The Minister also made reference to the letter of support from the applicant's mother and the applicant's evidence that it will be devastating for both his family and himself if he was removed from Australia. 

6. The Minister found that the decision not to revoke the mandatory visa cancellation will result in significant emotional distress for the applicant's immediate and extended family members. The Minister also found that some of the family members may also experience financial and practical hardship as a result of a decision not to revoke the mandatory visa cancellation and that the applicant will no longer be able to assist with the care and support of his five children and his wife.  The Minister made express reference to having considered the effect of non-revocation of the cancellation on the applicant's immediate and extended family in Australia and accepted that those persons would experience significant hardship. 

7. The Minister also found that the applicant had been making a positive contribution for many years to the community and expressly referred to taking that into account. The Minister also referred to the applicant having a history of drug and alcohol dependence. The Minister also took into account that the applicant is not very familiar with Samoa. 

Protecting the Australian community

1. The Minister took into account the importance of protecting the Australian community and expressly referred to having regard to the consideration of protection of the Australian community in the context of the applicant's claim that he has rehabilitated and will not reoffend.  The Minister expressly referred to taking into consideration that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are law abiding. The Minister identified the nature and seriousness of the applicant's criminal offending over a long period of time. The Minister identified in detail those offences and made a finding overall that the offending by the applicant was one to be described as very serious. 

2. The Minister made express reference to the applicant being remorseful and took into account the judicial observation that the applicant had some prospects of rehabilitation. The Minister made reference to the applicant's driving history and made a finding that the applicant's history of repeatedly breaching judicial orders displays a disregard of judicial authority and the law. The Minister took into account the applicant's contention that the needs of his family would ensure he does not reoffend and took into account the applicant's assertions regarding his rehabilitation which the Minister correctly observed had not yet been tested in the community. 

3. More significantly, the Minister made reference to the applicant's claims of rehabilitation that were made in 2010 however, the applicant then went on to reoffend. Most importantly, the Minister drew attention to the fact that the applicant has twice been warned about the possibility of visa cancellations. Reference was made in the Minister's reasons to the applicant being sent a formal counselling letter on 20 July 2007. The Minister also referred to the applicant being sent another formal warning letter on 7 October 2010 and that the applicant signed and acknowledged receipt of that second formal warning on 13 October 2010. The Minister noted, despite those warnings, the applicant reoffended, albeit not in respect of crimes involving violence. 

4. The Minister noted the applicant's remorse and the steps he had taken towards rehabilitation, and expressly took into account the significant support he has from his family, and the availability of employment.   Materially, however, the Minister made a finding that there remains a likelihood that the applicant may reoffend. The Minister found that should the applicant reoffend, it may result in psychological or physical harm to the Australian community as well as financial cost to the community through any required use of law enforcement resources and the criminal justice system. 

5. It was in these circumstances that the Minister identified, having considered all the relevant matters including an assessment of whether the applicant had made representations in accordance with the invitation for the purpose of s.501CA(4)(a) of the Act, as well as considering an assessment of whether the Minister was satisfied that the applicant passes the character test as defined in s.501 of the Act for the purposes of s.501CA(4)(b)(i) of the Act, and considering an assessment of whether the Minister was satisfied that there is another reason why the original decision should be revoked for the purpose of s.501CA(4)(b)(ii) of the Act. The Minister made further reference to taking into account all the evidence available before the Minister, including the evidence provided by and on behalf of the applicant. The Minister concluded that the applicant had made representations in accordance with the invitation consistent with the requirements of s.501CA(4)(a) of the Act. The Minister however, was not satisfied that the applicant passes the character test as defined by s.501 of the Act.

6. The Minister then proceeded to consider whether the Minister was satisfied there is another reason why the original cancellation should be revoked and gave primary consideration to the best interests of the applicant's five children, and any minor relatives, and the finding made with their best interests would be served by the revocation of the mandatory visa cancellation decision. The Minister made reference having considered the length of time the applicant has made a positive contribution to the Australian community, and the consequences of an adverse decision upon the applicant's wife and other family members. 

7. The Minister identified, in considering whether there is another reason why the original decision should be revoked, to giving significant weight to the applicant's recidivist offending over a long period that includes multiple serious offences of violence, causing harm to victims, as well as dishonesty and driving offences, being overall very serious.  The Minister made reference to the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia. 

8. The Minister made a finding that the Australian community could be exposed to harm should the applicant reoffend in a similar fashion.  The Minister made a finding that he could not rule out the possibility of further offending by the applicant. The Minister expressly took into account the potential higher tolerance of criminal conduct in respect of the applicant, given the duration that he has lived in Australia for most of his life from a very young age. 

9. In considering whether there is another reason why the original decision should be revoked, the Minister found that the applicant represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweigh the best interests of the applicant's children and minor relatives as primary consideration, and any other considerations as identified in the Minister's reasons. The Minister expressly referred to these, including the lengthy residence, bonds, employment, volunteer and church activities, his family ties to Australia, the hardship upon the applicant, his family and social networks that will endure in the event the original decision is not revoked. 

10. The Minister then referred to having given full consideration to all of those matters and found that the Minister was not satisfied, for the purpose of s.501CA(4)(b)(ii) of the Act that there is a reason why the original decision to cancel the applicant's visa should be revoked. The Minister decided not to revoke the original decision to cancel the applicant's Class BF transitional (permanent) visa.

Grounds of the Application

1. The grounds in the application are as follows:- 

   Hello, my name is Laumua Lalogafau.

   These are my reasons/grounnds for my appeal against my Visa refusal.

   I have 5 children who are born and bred here and are citizens,as well as my wife who is also a citizen of Australia.We all call Austrai our home.

   I have been here in Australia since i was 9 years old, we all came here as a family,all my relatives have moved here along with my grand-parents and great grand-parents,un-fortunately, my great grand parents have now pass on and been buried here in Australia.we all pay our respects each anniversary.

   I have no family or land to re-start in Samoa,my wife suffers from mental illness and disabilities and i am the main carer,she has to receive medical treatment and regular doctor appointments that she needs me to take her to.

   Our children also need and rely on my support finacially and emotionally,i need to remain here with them to provide for them.

   To remove me from Australia would be devastating for my wifes health and our childrens well-being.

   It would cause fear of saftey to myself and my family if i was taken from Australia.

Consideration

1. The grounds are in substance a restatement of the merits the subject of the decision. As earlier explained, this Court does not have jurisdiction to revisit the merits of the matter. This Court does not have the power to make fresh findings based on compassionate grounds. This Court cannot grant relief on compassionate grounds. Nothing identified in the application identifies any sufficiently arguable case of jurisdictional error to warrant an extension of time in the interests of the administration of justice. 

2. Each of the matters raised by the applicant from the bar table were identified in the Minister’s reasons and taken into consideration. On the face of the Minister’s reasons, the Minister complied with the statutory obligations in the making of a decision under s.501CA(4) of the Act. Whilst the applicant submitted from the bar table that the decision was unfair because of the impact on him and his family and relatives, this is in substance an invitation to this Court to engage in an impermissible merits review.

1. On the face of the material before the Court, there was no procedural unfairness in the decision making by the Minister under s.501CA(4) of the Act. Further, taking into account the matters identified by the Minister, the decision of the Minister is not one that could be said to be irrational or unreasonable. Nothing said by the applicant from the bar table identified any arguable ground of jurisdictional error.

2. The applicant asked the Court to give the applicant a further chance.  The Court has no power to do so. The applicant maintained how remorseful he was and identified concern in relation to his wife, as well as the absence of family in Samoa. Those are all matters that go to the merits of the application and do not identify any arguable jurisdictional error. The hardship of an adverse decision in relation to the applicant’s wife and family was a matter clearly recognised by the Minister.  It was a matter for the Minister to weigh the submissions and evidence before him in relation to the decision‑making process. The Court can identify no arguable jurisdictional error in the decision of the Minister. 

Conclusion

1. I am not satisfied that there is a sufficiently arguable case to warrant an extension of time under s.477 of the Act. I am not satisfied that it is necessary in the administration of justice to extend time under s.477 of the Act.

2. The application for an extension of time under s.477 of the Act is dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  25 January 2017