Leota v Minister for Home Affairs

[2019] FCCA 1798

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEOTA v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1798

Catchwords:
MIGRATION – Commission of serious crimes – cancellation of visa – return to country of origin – relevant considerations – application for review dismissed.

Legislation:

Migration Act 1958 (Cth) ss.116, 375A, 476(1).

Cases cited:

Viane v Minister for Immigration and Border Protection [2018] FCAFC 116

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCAFC 361.

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] 205 CLR 507.
Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429.
Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611.
Minister for Immigration and Citizenship v Li [2013] 249 CLR 332.

Applicant: ROBIN LEOTA

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 839 of 2018

Judgment of: Judge Egan

Hearing date: 10 June 2019

Date of Last Submission: 10 June 2019

Delivered at: Brisbane

Delivered on: 10 June 2019

REPRESENTATION

Applicant: In person

Solicitors for the First Respondent: Mr Hawker, Solicitor of Sparke Helmore

ORDERS

1. That the applicant’s application for an adjournment be dismissed.

2. That the application for review filed on 15 August 2018 be dismissed.

3. That the applicant pay the first respondent’s costs of and incidental to the application for review fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 839 of 2018

ROBIN LEOTA

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Further Adjournment Application

1. In this matter the applicant today appears by video from Perth.  He last appeared before the court on 23 May 2019. On that occasion he appeared in person.

2. Today is the adjourned date for the hearing of the applicant’s application for review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) decision handed down on 11 July 2018. The applicant today seeks a further adjournment of his review application.

3. The relevant history of the matter is that the applicant filed an application for review on 15 August 2018.  On 26 September 2018, Registrar Belcher made orders for, inter alia, the filing by the applicant of any affidavit containing any additional evidence upon which the applicant proposed to rely, as well as an order listing the application for review to be heard in the Federal Circuit Court of Australia at Brisbane on 15 March 2019.

4. The applicant, therefore, had approximately six months between the time of the setting of the matter down for hearing until the listed hearing date for him to arrange his affairs so as to be ready to proceed for a hearing on 15 March 2019. On 13 November 2018, an order was made by this court that the application be adjourned to 23 May 2019 for hearing of the application for review. The applicant, therefore, had an additional two months to so arrange his affairs such that he was able to proceed to a hearing on 23 May 2019 – a total period for preparation of some 8 months.

5. When the matter came before the court on 23 May 2019, the applicant said that he was not ready because he had been unable to obtain legal representation.  Notwithstanding the substantial period of time that the applicant had had to so arrange his affairs for him to be able to proceed with his application for review on 23 May 2019, the court granted to the applicant an indulgence. The court granted the application for the adjournment made by the applicant and listed the matter for hearing today which is, relevantly, a further two weeks that the applicant has had to arrange his affairs.

6. The applicant appeared this morning and asked for another adjournment on the basis that he had not arranged his affairs because he had been unable to engage legal representation. The court is unprepared to grant to the applicant a further indulgence. The applicant has had more than ample time to engage legal representatives since the time he filed his application for review some 10 months ago.  The application for the adjournment is refused. 

Introduction

1. On 13 January 2015, the applicant, a citizen of New Zealand, was granted a special category (subclass 444) visa.  The applicant is a citizen of New Zealand.  In 2016 the applicant was charged with, and convicted of, a number of crimes, including unauthorised use of a motor vehicle on two occasions, and the breach of a bail condition.  The applicant was subsequently charged and convicted of eight charges surrounding his trafficking of methamphetamine.  The applicant has today confirmed that he was so convicted of those eight charges when he pleaded guilty to such charges on 11 April 2018.

2. On 11 April 2018, the Department issued a notice of intention to consider cancellation of the applicant's visa pursuant to the provisions of section 116 of the Migration Act 1958 (Cth)(‘the Act’), on the basis that there were grounds for cancellation of the visa, namely that the applicant's presence in Australia may constitute a risk to the safety of the Australian community or a segment of the Australian community (section 116(1)(e)(i)).

3. On 19 April 2018, the applicant applied to the Tribunal for review of the delegate's decision. 

4. On 30 May 2018, a certificate was issued pursuant to the provisions of section 375A of the Act on the basis that information contained in the Department file was "classified in confidence".

5. On 9 July 2018, the applicant's representative provided to the Tribunal written submissions on behalf of the applicant, together with a statement by the applicant and letters of reference.

6. On 10 July 2018, the applicant appeared at the hearing before the Tribunal to give evidence and present his arguments.  He was, at the time, assisted by a representative.

7. On 11 July 2018, the Tribunal affirmed the decision of the delegate to cancel the applicant's visa.

8. On 15 August 2018, the applicant filed an application for review of the Tribunal's decision pursuant to the provisions of section 476(1) of the Act.

9. The relevant certificate issued pursuant to the provisions of section 375A of the Act appears at page 68 of the court book.

10. The Queensland Police Service Court Outcomes record relating to the applicant appears at court book page 86-87.

11. At [6] of its reasons, the Tribunal recorded that the Minister may cancel a visa if he or she is satisfied that certain grounds specified in section 116 of the Act are made out. In this case, the relevant ground is that as set out in section 116(1)(e)(i) which provides as follows:

    “Power to cancel – Sect 116

    (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

    …

    (e) the presence of its holder in Australia is or may be, or would or might be, a risk to:

    (i) the health, safety or good order of the Australian community or a segment of the Australian community; or”

12. The decision of the delegate to cancel the visa pursuant the provisions of section 116 of the Act was made on 11 April 2018.

13. The applicant's grounds for review are as set out on pages 4-8 inclusive of the application for review as follows:

    “Grounds of application

    1. 1(a) – That a breach of the rules of natural justice occurred in connection with the making of the decision –

    The Second Respondent Failed to afford procedural fairness

    2.      1(e) – That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

    In reference to 1(e) – 2(b) – Failing to take a relevant consideration into account in the exercise of a power.

    The Second Respondent failed to take into account a relevant consideration determining whether to exercise the discretion conferred by s116 to cancel the Applicant’s visa.

    Particulars:

    (a) Within the written reasons of the Second Respondent’s ‘Decision Record,’ at paragraph 14, the Second Respondent noted that I have a child born to an Australian woman.

    (b) At paragraph 21 of the ‘Decision Record’ the Second Respondent makes note that they have spoken with my wife in relation to the child born to another woman.

    (c) The Second Respondent, only consulted my wife and I briefly, in regards to the child being born to an Australian woman within and extra-marital affair, and makes no note of the child in any where towards the exercising of the decision.

    (d) The Second Respondent's comments on the matter, are brief and minimal, failing to acknowledge the fact I made note of the child being mine and my name being on the child's birth certificate.

    (e) The Second Respondent's comments in relation to my wife's statement about her "not accepting that the child was mine," was enough for the Second Respondent to justify her decision in overlooking the true fact that I am in whole, the father.

    (f) Failure to consider the relevant fact's in the exercising of the Second Respondent's discretion, is seen and amounts to jurisdictional error, as stated in VIANE v Minister for Immigration and Border Protection [2018] FCAFC 116.

    (g) I'd like to refer to the case of VIANE v Minister for Immigration and Border Protection [2018] FCAFC 116 paragraph 30 of the 'Reason's for Judgement' where his honour RANGIAH J considers;

    (h) "If the Minister overlooks a substantial, clearly articulated argument advanced as demonstrating a reason why a cancellation decision should be revoked under s 501 CA( 4) of the Act, which if accepted would or could be dispositive of the decision, the Minister's error may be characterised as a jurisdictional error. Further, if what is overlooked is better characterised as "information" (or "material", or "evidence"), rather than an "argument", there may be jurisdictional error where the "information" is sufficiently important, such that the error is serious enough to be described as jurisdictional. It is not essential that either the argument or information is "critical" in the sense that its acceptance by the Minister would necessarily have resulted in a different outcome."

    (i) The concept is very much similar to how the Second Respondent should have exercised its discretion as to how the relevance of" information" should have been properly assessed and taken into consideration within the hearing with the Second Respondent and myself, thus bringing forth the jurisdictional errors of;

    (j) failing to afford procedural fairness,

    (k) That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

    (l) failing to take relevant considerations into account in the exercise of power.

    3.      1(e) - That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

    In reference to 1(e) -

    2 (b) – Failing to take a relevant consideration into account in the exercise of a power.

    The Second Respondent failed to take into account a relevant consideration determining whether to exercise the discretion conferred by s116 to cancel the Applicant's visa.

    1(a) – That a breach of the rules of natural justice occurred in connection with the making of the decision;

    - Denial of procedural fairness,

    - The decision was bias.

    Particulars:

    (a) The Second Respondent states in paragraph 28 of the of its written reasons that they have taken into consideration the 'Rights of The Child' therefore bringing forth the present convention of the 'Rights of The Child,' present in the written decision, yet failed to mention or note the convention within the hearing between myself and the Second Respondent.

    (b) As the Second Respondent has taken into consideration the 'Rights of The Child' I'd like to make note that my findings, are that the Second Respondent is in breach of its international obligations in the exercising of its discretion towards the cancellation of my visa, the reason is as follows;

    (c) Article 9, paragraph 3 of the 'Convention Rights of The Child' states that; States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.

    (d) The Second Respondent's Decision to affirm the cancellation would be denying my children their right to maintain personal relationships and have direct contact with myself, if l was forced to relocate to New Zealand, especially that of my new born son, as he is an Australian citizen.

    (e) In relation to the convention on the 'Rights of The Child,' within my wife's statement, she clearly outlines his best interests, as she describes her and my son's desire to have me back in the house hold, and with the knowledge of my 'new born' son, the Second Respondent has denied my son the opportunity to establish a proper relationship due to her oversight of the facts and basing her decision on my afflicted wife's opinion and knowledge of the extra-marital affair.

    (f) The Second Respondent failed to address the 'Rights of The Child' within the scheduled hearing with me, thus failing to provide me with the correct assistance in the exercising of the Second Respondents discretion.

    (g) Failing to provide me with what information the Second Respondent saw adequate to use within its written reasons, failing to take both my son's "factual" best interests, as stated by my wife and by me, that of my child, born to an Australian woman, into consideration with the exercising of its discretion, can be seen to amount to jurisdictional error and basing the judgement on personal opinion, is and can be considered bias, by failing to take relevant information into consideration and ignoring factual information.

    (h) As their honours in the case of VIANE v Minister for Immigration and Border Protection [2018] FCAFC 116 brought forth their reasons for judgement, ruling "the Minister and the Primary Judge had failed to take into consideration relevant information, overlooking key aspects of the submission's provided by the appellant, his partner and his solicitor.

    (i) Failing to take into consideration the current standing of “Article 9, paragraph 3” yet justifying the best interests of my child, failing to take in both my son's factual and relevant "interests" and the Second respondent failing to take relevant considerations into account, basing her own personal opinion of what my child's best interests are, amounts to the previously mentioned jurisdictional errors and that her decision towards the best interests of my children are that of a biased nature.”

14. At [7]-[8] of its reasons, the Tribunal considered the matters which constitute the basis for the cancellation of a visa pursuant to the provisions of section 116 of the Act.

15. At [10] of its reasons, the Tribunal noted that the applicant was a citizen of New Zealand, born on 7 September 1982, who first arrived in Australia on 13 January 2015. It was noted that the applicant had a wife and a son who is 10 years of age. 

16. At [12] of its reasons, the Tribunal noted that after the applicant had served some 434 days in prison, between 1 February 2017 and 10 April 2018, the applicant was released from prison.

17. The applicant was transferred to immigration detention immediately upon his release from prison, and he has been in immigration detention since April 2018. 

18. At [19]-[32] of its reasons, the Tribunal closely considered matters which impacted upon the exercise of the discretion as to whether the applicant's visa ought to have been cancelled or not. Those considerations included all of the references which were tendered on behalf of the applicant, the assertions that the applicant had reformed and had recommitted to his Christian faith, as well as considerations relating to the applicant alleging that he had fathered a number of children who were resident in Australia.

19. At [17] of its reasons, the Tribunal found that the applicant's presence in Australia as a dealer in dangerous drugs was, or could be, or might be, a risk to the health and safety or good order of the Australian community or a segment of the Australian community. 

20. At [18] of it reasons, the Tribunal recorded that it was satisfied that the ground for cancellation pursuant to the provisions of section 116(1)(e)(i) existed. It was also recorded that as that ground did not require mandatory cancellation under section 116(3) of the Act, the Tribunal must proceed to consider whether the visa should be cancelled or not.

21. At [23] of its reasons, the Tribunal noted that it had considered the evidence of the applicant's wife which was to the effect that the stress of the applicant's incarceration and visa cancellation had affected her and the family as a whole.  It was noted that the applicant's wife had been in full‑time employment, such that she was able to ensure the ongoing welfare and wellbeing of herself and her child without the active support, financial or otherwise, of the applicant. She had done so during the times that the applicant had been incarcerated. The applicant's wife informed the Tribunal that she had family members in New Zealand, including her mother and siblings, with whom she was close.

22. At [24] of its reasons, the Tribunal noted that notwithstanding that the applicant had lived in Australia since 2015, upon his arrival in the country, most of that period of time had been spent in prison or, at least, a significant amount of that period had been spent in prison. The Tribunal did not consider that such period of time living in Australia was so significant as to amount to a compelling reason not to cancel the visa.  It noted that there were a significant number of relatives in New Zealand, including the mother and siblings of the applicant's wife, as well as married sisters of the applicant, who could provide support to the applicant and his family if they were to return to New Zealand.

23. At [25] of its reasons, the Tribunal took note of evidence from the applicant's brother and niece, both of whom told the Tribunal that they only saw the applicant at significant family events, and that, apart from that, they hardly spoke. It was found by the Tribunal that there was an inconsistency between the assertions of the applicant about wanting to be close to his extended family in Australia, in circumstances where he appeared not to have engaged with them significantly since his arrival in the country.

24. At [28] of its reasons, the Tribunal considered the rights of the applicant's child, and noted that the applicant's son and wife had only lived in Australia for just over two and a half years. The Tribunal did not consider that that was a significant period of time, and also did not consider that it would be a particular hardship for the applicant's family to relocate back to New Zealand after such a short period of time away from that country.

25. At [32] of its reasons, the Tribunal noted that it had considered the consequences to the applicant's family of the applicant's visa remaining cancelled. It noted that if the visa remained cancelled it was likely that the Department would arrange for his return to New Zealand rather than granting to him a bridging visa.  It also noted that such decision would prevent the applicant returning to Australia on a subclass 444 visa in the future.

26. At [33] of its reasons, the Tribunal found that having regard to all of the material before it, and after weighing up those matters carefully, the Tribunal ought not to exercise its discretion to reinstate the applicant's visa. The Tribunal had given significant weight to the seriousness and the nature of the offences committed by the applicant, and the amount of time that the applicant had spent in prison as a result of the commission of such crimes. The Tribunal was not satisfied that any effort to rehabilitate would ensure that the applicant would not return to his previous life of drug taking, dealing and drug debt collection.

1. At [34] of its reasons, the Tribunal indicated that it was not satisfied that the applicant had satisfied the Tribunal that the applicant would not be a risk to the health, safety or good order of the Australian community, or a segment of the Australian community, if his visa was reinstated. 

2. At [35] of its reasons, the Tribunal had had regard to the rights of the applicant's son and any possible hardship caused as a result of the separation of the applicant from his family. It did so in circumstances where the applicant submitted that he had a second child born in Australia to a second partner with whom he had a liaison in or about 2016.  There is also reference to the applicant having stated that he had a child born in 2017 due to another extramarital relationship. So much seems to be asserted by the annexure RL-3 to the affidavit of the applicant filed on 15 August 2018. That annexure is a birth certificate relating to a child named Moses Leota, who was said to have been born on 10 November 2017.

3. There was uncertainty associated with the status of either or both of those two extramarital relationships in terms of the children alleged to have been the product of the union of the applicant with other women.  It was suggested by the applicant’s wife that she was not prepared to accept that the applicant was the father in the absence of some paternity testing being undertaken. It was recorded that no such paternity testing had been included.

4. There is no evidence that the tribunal failed to have regard to all relevant considerations, nor that the tribunal had improperly exercised its powers when considering the question as to whether the applicant’s visa should remain cancelled or not. The tribunal closely examined all of the relevant matters raised on behalf of the applicant, and in a sensible and logical manner it addressed those issues. It cannot be said that the tribunal failed to properly exercise its powers pursuant to the provisions of section 116 of the Act.

5. In the recent decision of Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, the Full Court was there dealing with an assertion that the Minister had failed to consider the difficulties which would be experienced by the appellant’s partner if all members of the family were relocated. The facts of that case are substantially different to the facts of the matter before this court. It has not been demonstrated that in this matter the tribunal relevantly failed to consider the consequences of the applicant being returned to New Zealand, and the effect which might be experienced by the applicant’s wife and any child of the applicant if that happened.

6. It noted that there was, of course, freedom of travel between Australia and New Zealand that being a factor which tendered against ongoing hardship. It had not been established by the applicant that if he was removed from Australia to New Zealand that contact between him, his wife and his son, or children, would cease. No jurisdictional error has been demonstrated on the part of the tribunal in that regard.  As to the assertion that the tribunal was biased, the applicant has not demonstrated that the tribunal was guilty of any actual or ostensible bias.

7. The applicant did not point to any compelling reason for his assertion that the tribunal was biased. The allegations of bias have not been established according to law. [1]

   [1]     SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 and

8. It has not been demonstrated by the applicant that the tribunal failed to make an obvious inquiry about a critical fact. [2]

   [2]     Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25] - [27] per French CJ,

9. It cannot be said that no other rational or logical decision-maker could not have made the same decision as the tribunal. [3]

   [3]     Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611 at [130].

10. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li [2013] 249 CLR 332 at [66] and [76] where it was said:

    “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

11. The applicant has failed to establish any jurisdictional error on the part of the tribunal. 

12. The application for review is without merit and is dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 27 June 2019

    Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] 205 CLR 507 at 531 per
    Gleeson CJ and Gummow J.    Gummow, Hayne, Crennan, Kiefel and Bell JJ.