Lewis Jr v Minister for Home Affairs

[2018] FCCA 3310

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEWIS JR v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3310

Catchwords:
MIGRATION – Partner (Temporary) (Class UK) visa – visa cancellation decision – review of decision of Administrative Appeals Tribunal – where Minister concedes Tribunal erred in failing to comply with s.361(3) of the Migration Act 1958 (Cth) – whether Court should determine other issues raised in review application to guide Tribunal on remittal – jurisdictional error – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.116, 361

Applicant: KEVIN GREGORY LEWIS JR

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1079 of 2018

Judgment of: Judge Smith

Hearing date: 26 October 2018

Date of Last Submission: 26 October 2018

Delivered at: Sydney

Delivered on: 26 October 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondent: Ms B Griffin, Australian Government Solicitor

ORDERS

1. The decision of the second respondent dated 30 November 2017 affirming the decision of the delegate of the first respondent to cancel the applicant’s Partner (class UK) (subclass 820) visa is quashed.

2. The matter is remitted to the second respondent for reconsideration of the delegate’s decision according to law.

3. The first respondent pay the applicant’s costs in these proceedings if any, including any filing fees.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1079 of 2018

KEVIN GREGORY LEWIS JR

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of the Administrative Appeals Tribunal dated 30 November 2017.  The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s Partner (Temporary) (Class  UK) (Subclass 820) visa under sub-s.116(1)(e)(i) of the Migration Act 1958 (Cth).

2. The background facts to the case are set out at [3] – [22] in the written submissions of the first respondent, which I adopt for the purpose of this judgment. It will become clear later in these reasons why I am able to do that.

   3.  The applicant is a US citizen who was granted the visa in January 2015. On 6 June 2017 the Department notified the applicant of its intention to consider cancelling his visa (NOICC) pursuant to s 116(1)(e) of the Act on the basis that the applicant had been charged with the following offences:

   3.1.   4 February 2017 – assault occasioning actual bodily harm (DV (T2));

   3.2.   23 February 2017 – contravene prohibition/restriction in AVOP (domestic); and

   3.3.   28 March 2017 – contravene prohibition/restriction in AVO (domestic).

   4.  The NOICC noted that the alleged victim was the applicant’s partner, and that a year-long AVO had been in force from 18 April 2017.

   5.  In his written response to the NOICC the applicant provided a written statement, references, psychologist report, pre-sentence report, and contact reports with his son. The applicant referred to his convictions in the US but claimed that these were minor misdemeanours that did not result in a custodial sentence.

   6.  On 29 June 2017 the visa was cancelled by a delegate.

   7.  On 7 July 2017 the applicant applied for review to the Tribunal and on 28 November 2017 the applicant appeared before the Tribunal with a witness, Ms Chiapoco.

   Applicant’s request under s 361(2A)

   8.  Under s 361(2A) of the Act an applicant may make a written request to the Tribunal to obtain other written material relating to the issues arising in relation to the decision under review. Under s 361(3), the Tribunal must have regard to the applicant’s request under (2A) but is not required to comply with it.

   9.  Accompanying the applicant’s response to hearing invitation received by the Tribunal on 22 November 2017 was a request that the Tribunal take evidence from his friend Dionie Gambetta and to gather additional evidence including:

   9.1.   a copy of his FBI record;

   9.2.   20+ character references and a 30 page detailed explanation about the breakdown of his marriage given to the Department around 2 years prior provided in support of a decision not to cancel his visa (held on a file of the Department of Home Affairs as it is now known);

   9.3.   transcripts from Windsor and Manly local courts; and

   9.4.   medical and mental health records from NSW and Justice Health.

   10.    The applicant said that it was difficult for him while being in custody to ‘fight the case without the evidence I’ve asked you to obtain. I have no access to witnesses’ telephone numbers without access to my telephone.’

   11.    The Tribunal member did not have or obtain copies of the above listed documents.

   12.    On 30 November 2017 the Tribunal proceeded to make a decision.

   Tribunal decision

   13.    The Tribunal noted that the issue for it to determine was whether the ground for cancellation was made out, and if so, whether the visa should be cancelled, having regard to all the relevant circumstances: [4].

   14.    The Tribunal set out in detail the evidence given by the applicant at the hearing relating to:

   14.1.      the circumstances of the 2017 offence in relation to which he pleaded guilty and was sentenced to 10 months imprisonment, and the 2 occasions in 2017 when he breached an AVO, to which he pleaded guilty;

   14.2.      previous domestic violence-related charges relating to his former spouse which were dismissed;

   14.3.      a finding of guilt in the US of battery resulting in 120 hours of community service and court ordered anger management classes;

   14.4. a finding of guilt in the US of public intoxication and disorderly conduct;

   14.5. a charge in the US of misuse of a credit card resulting in a fine; and

   14.6.      violation of a protective order in the US arising from a previous relationship.

   15. The Tribunal considered that it was problematic that the applicant appeared to have little remorse for his conduct, noting that the applicant’s evidence was that all of his offences in the US were the result of racial discrimination and other circumstances that were against him, rather than any aspects of his conduct. The Tribunal acknowledged the applicant’s evidence that he had never been incarcerated in the US but noted that the threshold for s 116(1)(e) was a low one.

   16.    The Tribunal had regard to the applicant’s evidence that he had not previously been violent towards anyone, had never been convicted of violence against others and that what he did to his partner in 2017 was out of character. The Tribunal was mindful, however, that the applicant had been convicted of other offences, some of which involved violence, albeit not in a domestic situation.

   17.    In determining whether the Tribunal should exercise its power under s 116(3) of the Act to cancel the visa, it had regard to the relevant circumstances and the policy guidelines in the Department’s Procedures Advice Manual (PAM3) in particular the purpose of the applicant’s travel and stay in Australia, whether the applicant had a compelling need to travel to or remain in Australia, the extent of compliance with visa conditions, the degree of hardship that may be caused (financial, psychological, emotional or other hardship), circumstances in which the ground of cancellation arose, whether there were any mandatory legal consequences, and whether any international obligations would be breached as a result of the cancellation.

   18.    In its consideration of the above factors, the Tribunal focussed on the applicant’s two young children in Australia, and accepted that the cancellation of the visa might prevent the applicant from having a close relationship with his children and affect his ability to see them as often but ‘was not necessarily convinced that the best interests of the children would be adversely affected by the cancellation’. The Tribunal also placed weight on the applicant’s evidence that he sought professional help before his detention and had been prescribed medication. All these considerations suggested that the visa should not be cancelled.

   19.    Against these considerations, the Tribunal noted that the applicant had engaged in behaviour towards his partner that resulted in the conviction for assault occasioning actual bodily harm and a sentence of 10 months imprisonment. There was also an AVO in relation to his partner and child. On his own evidence, the applicant had been convicted of several offences in the US, some of which included violence towards others and he engaged in other criminal conduct, which might suggest either general willingness to breach the law or the applicant's inability to cope with difficult situations. The Tribunal expressed concern that such conduct, over a number of years, implied a risk to those around the applicant, not only his partner.

   20.    The Tribunal was also mindful that the applicant appeared to have little remorse about the circumstances of his offences in the US and the breaches of the AVO in Australia. Ultimately the Tribunal placed greater weight on the circumstances in which the ground for cancellation arose, which the applicant himself described as involving abusive conduct towards his partner in the presence of their child. In the Tribunal’s view, such matters outweighed other considerations.

   21.    In relation to the applicant’s request made under s 361(2A) of the Act, at [46] the Tribunal said:

   The applicant raised concerns about his inability to obtain further documents, including court transcripts and other materials. The Tribunal acknowledges that the applicant has limited access to documents while he is incarcerated but the Tribunal accepts the applicant’s evidence about the circumstances of the breakup of his previous relationship and the fact that his earlier charges in Australia brought about by his sponsoring partner had been dismissed. The Tribunal also accepts the applicant’s evidence outlining his convictions in the US, although not his reasons for the convictions.

   22.    The Tribunal did not otherwise have regard to the applicant’s request as required by s 361(3), or consider whether to exercise its discretion under s 361(3) of the Act

   (Without alteration)

3. The applicant raised a number of grounds in his further amended application. The Minister in his written submissions conceded that the Tribunal fell into error by failing to comply with s.361(3) of the Act in that it failed to have regard to the applicant’s written request under s.361(2A) of the Act to obtain additional information in support of the applicant’s reasons for his convictions in Australia and it failed properly to exercise its discretion in relation to that request under s.361(3) of the Act.

4. Having regard to the material in the bundle of relevant documents filed by the first respondent, I agree that the Tribunal fell into that error.  The issue arises whether it is sufficient for me simply to make the orders sought on the basis of that error or whether, as the applicant contends, I ought to go further and to make a determination of other issues that he has raised before me today.  There are several matters in play in determining that question.

5. First, there is the question of the administration of justice and the interest of having matters dealt with quickly.  If I were to spend time closely analysing each of the points made by the applicant in all of the material before the Court, I would have to reserve my decision.

6. The current state of affairs in this Court, and in my own docket, would mean that I may not be able to publish a judgment before Christmas.  The applicant has been in immigration detention for seven months.  I do not think that it is in anybody’s interests that that detention continue for any time longer than is absolutely necessary in accordance with the requirements of the Act.  If, as is inevitable, when I hand down my decision on a reserved basis the Tribunal is reconstituted, it will likely take some further time for the matter to be reheard given its current state of lists which are even worse than those of this Court.

7. The applicant stated in his oral submissions today, which I accept, that he has been told by other people in immigration detention that they have had their matter remitted back to the Tribunal very recently by orders of this Court and that they are waiting for a hearing not before April of next year.  That would mean, on the basis of a reserve judgment, that the applicant would, at the very earliest, have a hearing before a newly constituted Tribunal in July or August of next year, maybe even later.  It is for that reason that I propose not to reserve my decision. That weighs heavily against a determination of additional issues.

8. However, there are additional reasons on my understanding of the points raised by the applicant today and I am providing these reasons to give voice to those concerns so that they may be understood properly by the Tribunal.  The concerns raised are not in order of the importance placed upon them by the applicant.

9. The first issue concerns [12] of the Tribunal’s decision record in which it is recorded in the last two sentences that the applicant said to the Tribunal that he did not have money for bail so he pleaded guilty.  It appears that that plea of guilty is connected to the charge of intoxication and disorderly conduct.  The applicant said that he did not say that to the Tribunal. If that be the case, then the Tribunal would have fallen into error having made a finding which was material to its decision which was not based upon any evidence before it.  That would be not only a denial of procedural fairness but a legal error.  I do not have the transcript before me and I cannot say on the evidence whether what the applicant says is correct.

10. The second concern is whether the Tribunal relied solely upon records of the applicant’s arrests in the United States rather than on actual convictions.  The applicant says that it is unfair to rely on arrests because they cannot logically give rise to any inference of guilt of the crimes or conduct for which he was arrested.

11. That argument has some force however, I am not convinced that the Tribunal did act in that way.  If it were to act in that way, then it may be that it would fall into error by acting unreasonably on the material before it and again drawing inferences that simply were not available.  However, I can come to no firm conclusion about that because the Court is not in a position and, in fact, it is not the role of the Court, to give any advice about future matters to be conducted before the Tribunal.  It is simply a matter that I note, and I note the possibility that to rely on such evidence is, colloquially put, risky.

12. The third matter, and the matter which the applicant placed greatest weight on in argument today, is that, given that he is in Australia in detention, he has been unable to obtain what I will call a “full suite” of documents concerning his charge history and conviction history in the United States.  He says that this puts him in a position where he will be treated unfairly by the Tribunal.  The applicant says that ordinarily a person whose conviction record is taken into account, and I infer taken into account in connection with the potential cancellation or review of a cancellation decision of a person’s visa, will have available for consideration matters such as witness statements, a judge’s remarks on sentence, facts sheets agreed between the prosecution or tendered in evidence on sentencing, and other matters which I have referred to as the full suite of documents surrounding a charge.

13. The applicant may well be right in that other people are able to get those documents and that it might, in a colloquial sense, be unfair for him not to be able to do that.  However, I am not convinced that the inability of the applicant to obtain such documents means that he is unable to obtain a fair hearing before the Tribunal.  It is not true, as implicitly contended by the applicant, that each applicant must be treated in precisely the same manner.  The overarching obligation of the Tribunal, as incorporated into the provisions of the Act and at common law, is to afford each applicant a reasonable opportunity of addressing the information that is adverse to their interest and also of putting forward information that might be in favour of the matters that they wish to contend.

14. The question of what is reasonable must depend upon each circumstance and there is no way of saying a priori that each matter requires certain types of evidence.  If, for example, it is not possible for the applicant to obtain relevant records because he is in detention in Australia and in order to get those records he must present in person to the Department of Justice in the United States, or whichever other Department holds those records, then that matter may be submitted by the applicant and he may put his own evidence as to what those documents contained.  Ultimately, although that puts him in a less favourable position than other applicants may be, that is not something that necessarily undermines the fairness of the process before the Tribunal.

15. I say this in broad terms simply because once again, I am looking forward to the possible process of the Tribunal which will be newly constituted for the review of the delegate’s decision to cancel his visa.  What I must stress in making my decision on the basis that I do, is that the Tribunal when it is reconstituted must fulfil its charter and duty of reviewing the decision of the delegate.  That means that it must bring its own mind to bear unadulterated by any weight given to a previous decision-maker’s consideration of the evidence.  The person who constitutes the Tribunal for the purpose of the review must have regard to all of the arguments, submissions and evidence put forward by the applicant at the next hearing, or prior to the next hearing, in accordance with the opportunity that he must be given at that time.

16. Of course the Tribunal is able, and on one view, required to have regard to all of the material previously put to the Tribunal however, the weight to be given to that might be a matter for submissions from the applicant and ultimately, within the bounds of reasonableness and within the scope of the Act that weight is ultimately a matter for the Tribunal.

17. If, of course, the Tribunal once again falls into error for any of the reasons apprehended by the applicant or for another reason, the applicant will have the recourse available to this Court for further judicial review.  That would be not an acceptable outcome given it will further extend his detention.  Nevertheless, I simply make that comment on the effect of the role of this Court to supervise the proper exercise of administrative power in the Tribunal, which I have no doubt that it will make every attempt to do upon remittal.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date:     15 November 2018