Loketi v Minister for Home Affairs

[2018] FCA 1723

FEDERAL COURT OF AUSTRALIA

Loketi v Minister for Home Affairs [2018] FCA 1723

File number(s):	NSD 758 of 2018
Judge(s):	FARRELL J
Date of judgment:	23 October 2018
Catchwords:	MIGRATION – review of the decision of the Assistant Minister for Home Affairs – visa cancelled under s 501(3A) of the Migration Act 1958 (Cth) – decision not to revoke visa cancellation – whether there was a jurisdictional error in the Assistant Minister’s reasons – application dismissed
Legislation:	Migration Act 1958 (Cth) ss 501, 501CA
Date of hearing:	23 October 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	27
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr H Bevan
Solicitor for the Respondent:	DLA Piper Australia

ORDERS

NSD 758 of 2018

BETWEEN:

DAVID FREDERICK LOKETI

Applicant

AND:

MINISTER FOR HOME AFFAIRS

Respondent

JUDGE:	FARRELL J
DATE OF ORDER:	23 OCTOBER 2018

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant must pay the respondent’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FARRELL J

1. The applicant, Mr Loketi, is a citizen of New Zealand.  He was born in 1976 and arrived in Australia in 1984 and has remained here since then.  He seeks judicial review by this Court of a decision made by the Assistant Minister for Home Affairs, the Hon Alex Hawke MP, on 23 April 2018 not to revoke the cancellation of Mr Loketi’s absorbed person visa.  

   BACKGROUND

2. On 7 February 2017, a delegate of the Minister cancelled Mr Loketi’s visa under s 501(3A) of the Migration Act 1958 (Cth) (original decision).  This decision was mandatory because:

   (1)Mr Loketi did not pass the “character test” prescribed in ss 501(6)(a) and 501(7)(c), having been sentenced to a term of imprisonment of 12 months or more. On 1 February 2017, Mr Loketi was convicted on two counts of “Supply Prohibited Drug < small amount quantity” in the Local Court of New South Wales in Griffith for which he was sentenced to imprisonment for 12 months on each count, to be served concurrently;

   (2)He was then serving a full-time sentence of imprisonment at Junee Correctional Centre, a custodial institution, because of the offences committed.

3. The Department notified Mr Loketi of the original decision by a letter dated 7 February 2017. The letter invited Mr Loketi to make representations to the Minister concerning whether he should exercise the power to revoke the original decision under s 501CA(4). Section 501CA(4) empowers the Minister to revoke the original decision if he is satisfied either that Mr Loketi passes the “character test” or that there is “another reason” why the decision to cancel the visa should be revoked.

4. On 24 February 2017, Mr Loketi requested the Minister to revoke the original decision.  His reason related to his ties to Australia, including four children (two of whom were minors) and a grandchild, his fiancée with whom he had recently had a baby, his mother, sister and brother, aunts and uncles and friends.  Two of the minor children and an adult child were said to be of Aboriginal descent. 

5. On 6 November 2017, the Department sent a letter to Mr Loketi inviting comment on copies of a national police certificate and sentencing remarks made in:

   (1)The Local Court in Griffith on 4 August 2016 relating to a conviction for assault occasioning actual bodily harm against his former partner in breach of a bond for a domestic violence offence and stealing her mobile telephone so she could not call the police, assault with his former partner against their daughter, damage to property and intimidating a police officer for which he was sentenced to an aggregate of 18 months imprisonment;

   (2)The Local Court in Griffith on 1 February 2017 relating to the offences for which he was in Junee Correctional Centre at the time his visa was cancelled; and

   (3)The District Court in Griffith on 20 September 2016 (an appeal against sentence which was withdrawn by Mr Loketi). 

6. On 8 November 2017, Mr Loketi sent his response, seeking to explain the circumstances surrounding the convictions that were the subject of the sentencing remarks.  The explanation included drug addiction which Mr Loketi said he thought he had overcome with the benefit of a drug treatment program while in detention and he referred to his plans to marry his partner and the fact that he had three grandchildren of Aboriginal descent. 

7. On 8 December 2017, Mr Loketi was given a copy of a questionnaire that he had completed in October 2016 in relation to his absorbed person visa and he was given an opportunity to comment on it.  On 22 December 2017, Mr Loketi responded and among other things noted the birth of his fifth child (a son who, at the time, was to have surgery due to illness) and the fact that he was on a methadone program to address the addiction which he said was the root of his criminal behaviour.  On 16 January 2018 a letter was given to Mr Loketi asking him to provide any further information about his son.  On 18 January 2018, Mr Loketi responded, advising that, while his son was in hospital for a few days he did not need surgery.  On 19 March 2018, Mr Loketi sent a fax in which he said that he was not the biological father of one of his named children but that he loved him like his own, that the boy was in government care in Canberra and that he had not seen the child since it was born. 

   GROUNDS

8. Mr Loketi appears to have prepared the originating application and a brief supporting affidavit.  His grounds are as follows (as written):

   1.I was in prison at the time I received my revocation letter stating my visa cancellation.  I felt like I was at a disadvantage as I had no legal advice when needed.  So I submitted my paperwork to the N.C.C.C.  With the help of a welfare officer.  The N.C.C.C. Affirmed there decision not to revoke my visa, which leads me to the federal court to review my case.

   2.I have been in Australia since 1984, at this time I was 5 years old.  I done all my schooling in Australia,  I have great community ties, I have five beautiful children that are of aboriginal decent, a loving and very supportive partner who visit me.  I always look forward to the times they come and visit me.  Keeping in contact and being blessed by the lord for having visits means everything to me, because family is everything.

   CONSIDERATION

9. Although a lawyer filed a notice of acting for Mr Loketi and appeared at a case management hearing, she has since filed a notice of ceasing to act.  Mr Loketi has not filed any amendment to the originating application, any further affidavits or any written submissions in support of his application as provided for in timetabling orders.  He appeared at the hearing without legal representation.  He made brief submissions which went to the factual matters directed to the merit of the Assistant Minister’s decision

10. The Minister’s counsel filed written submissions and appeared at the hearing.  Counsel relied on those written submissions.

11. As is plain, the grounds relied on by Mr Loketi do not disclose a basis on which to find jurisdictional or other legal error in the Assistant Minister’s reasons.  The first ground refers to his lack of legal advice at the time he made his representations to the Minister.  The second goes to the merit of the Assistant Minister’s decision and this Court has no jurisdiction to review merits.  

12. Nonetheless, I have considered the Assistant Minister’s reasons to attempt to discern whether, on their face, they disclose a basis on which to impugn the decision having regard to the representations made by Mr Loketi which appear in the Court Book.

13. The Assistant Minister first considered whether Mr Loketi passed the “character test” and, having regard to his conviction on 1 February 2017, found that he was not satisfied that he did: reasons at [4]-[9].

14. The Assistant Minister then turned to consider whether there was “another reason” why the original decision should be revoked.  At [12], the Assistant Minister summarised the reasons that Mr Loketi had relied on as including:

    -Mr LOKETI has four children: two daughters aged 25 and 21 and two sons aged two and one year.  He is also the non-biological father to a four-year-old boy.  All children are indigenous Australians.  The minor children need their father in their lives so it is in their best interests to revoke cancellation.

    -Mr LOKETI is in a relationship with an indigenous Australian woman, who is the mother of his youngest child.  She needs him to remain in Australia to support her and their child and help care for the child.

    -Mr LOKETI has resided in Australia since 1984 and has a well-established network of friends and immediate family in Australia.

    -Mr LOKETI has no family or social ties to New Zealand and would find it difficult to settle there.

15. The Assistant Minister first considered the “Best interests of minor children” which he acknowledged was a primary consideration.  The Minister noted that Mr Loketi was the non-biological father of one child who he has not seen since birth, that Mr Loketi claimed to be a grandfather to three indigenous Australian grandchildren but had only identified one.  While the Assistant Minister accepted that it was “of great importance to the development” of three named minors to have Mr Loketi available to them during their minor years, he noted that Mr Loketi had been imprisoned for the whole of his infant son’s life.  The Assistant Minister acknowledged Mr Loketi’s desire to return to the community, to establish himself as a father and grandfather, to provide practical and financial support for his children and that he had gained skills to help him obtain employment while in custody.  The Assistant Minister concluded that it was in the best interests of the three named minors that the original decision be revoked.  He also found that it was in the best interests of Mr Loketi’s grandchildren although he gave “somewhat less weight” to this consideration “as the available information does not indicate that the grandchildren lack parental care”: see reasons at [13]-[22].

16. The Assistant Minister then went on to consider the “Strength, nature and duration of ties” at [23]-[32] of the reasons.  He noted that Mr Loketi had been in Australia for some 38 years having arrived as a young child and that he had been granted a visa on the basis that he had been absorbed into the Australian community.  He acknowledged that these facts were likely to dispose the Australian community to afford a higher tolerance to his criminal conduct.  On the other hand, Mr Loketi started to offend as a teenager of 14 and continued to offend frequently throughout his minor and adult years and that would act against any tolerance that the Australian community might feel towards Mr Loketi based on his residence.  The Assistant Minister found that Australia has a low tolerance of criminal conduct by people who have made no real contribution to the community before starting to offend, as in this case.

17. The Assistant Minister noted that Mr Loketi had an ongoing relationship with his fiancée, an indigenous Australian and he accepted that non-revocation would have a major emotional and practical impact on her.  The Assistant Minister also noted that Mr Loketi has a stepmother, brother and sister in Australia who are all Tongan citizens.  He also has two adult daughters who are indigenous Australians, 10 uncles/aunts, 20 nieces/nephews and 10 cousins as well as an “Aunty”, who is an indigenous elder with whom he resided from the age of 17 years after his mother departed Australia to reside in the United States.  The Assistant Minister questioned reliance on Mr Loketi’s marital family as he is no longer in that marital relationship and his former partner and their daughter suffered domestic violence at his hands.  The Assistant Minister noted that no representations had been received from Mr Loketi’s family in support of his revocation application and there is no evidence that he now or in the future will play a pivotal role in the lives of his adult children or other family members.

18. The Assistant Minister took into consideration that Mr Loketi had held long periods of employment for over 20 years and contributed through community service at the Griffith Showgrounds and the CARMA drug and alcohol rehabilitation service and identifies as a Mormon who also participates in charity work at the church.

19. The Assistant Minister accepted that if the original decision was not revoked, Mr Loketi’s immediate family in Australia would experience emotional hardship.

20. The Assistant Minister then turned to consider the extent of impediments if Mr Loketi was removed at [33]-[36] of the reasons.  The Assistant Minister:

    (1)Acknowledged that none of Mr Loketi’s disclosed family reside in New Zealand so that he would “not enjoy the emotional, financial and social support that family may provide”;

    (2)Concluded, in light of Mr Loketi’s “considerable work history in Australia” and efforts to enhance his skills, that Mr Loketi’s employment prospects in New Zealand would be reasonably good and he had not reported health issues which would prevent him working; and

    (3)Acknowledged that Mr Loketi had no knowledge of life in New Zealand but he considered that the “culture and society of New Zealand are broadly similar to those of Australia” and found that “basic social, medical and economic support” will be available to him in New Zealand as a citizen such that he “will be able to maintain basic living standards”.

21. The Assistant Minister considered “Protecting the Australian Community” at [37]-[51].  He noted Mr Loketi’s claim that he does not pose an unacceptable risk of reoffending and stated that he considered the Government’s commitment to protecting the Australian community from harm as a result of criminal activities by non-citizens.  The Assistant Minister reviewed Mr Loketi’s history of criminal conduct, focusing on the matters for which he was convicted on 4 August 2016 and 1 February 2017 and a further domestic violence offence for which he was convicted on 22 June 2015 and placed on an 18 month bond.  In relation to the 1 February 2017 conviction, the Assistant Minister commented that he considered any drug supply offence to be serious.  He also noted that, from 1992 to 2006, Mr Loketi was convicted on 10 counts of minor theft, multiple property charges including a nine-month imprisonment sentence in 2002 for burglary-intent to steal, three charges relating to assault and two of possessing a knife and multiple breach offences.  The Assistant Minister noted other convictions and breaches of good behaviour orders in the period from 2007 to July 2015.  He concluded that “overall I find that Mr LOKETI has a history of very serious criminal offending in Australia, based on the nature of some of his individual offences, especially those involving domestic violence, and the overall impact of his record of repeated offending over a long period”.

22. The Assistant Minister then assessed whether Mr Loketi posed a risk to the Australian community by reoffending having regard to any mitigating or causal factors in his offending, and giving consideration to the steps he had taken to reform and address his behaviour: see the reasons at [52]-[64].

23. In relation to the offences for which he was convicted on 4 August 2016, the Minister accepted Mr Loketi’s explanation that he thought drugs were being sold from his daughter’s house in the presence of his grandson and that he acted out of concern for his grandchild but considered that the attitude in his explanation did not “reflect much insight into his behaviour” or its effect on the victims.  The Assistant Minister accepted that Mr Loketi had been involved in drug supply because of his own drug addiction, but did not consider that that explanation addresses his actions in doing so or that it reflected any understanding of the effects of his actions.  The Assistant Minister acknowledged Mr Loketi’s participation in a drug treatment program and that overcoming his addiction “would be a significant step towards achieving rehabilitation” but noted that this was yet to be tested in the community.  He noted that there was no evidence supporting Mr Loketi’s claim that depression or discrimination were contributing factors in his offending, but if indeed they were factors, there was no evidence that those factors were not still there so that the risk of reoffending on that basis remained.

24. In response to Mr Loketi’s desire for “one more chance”, the Assistant Minister referred to the fact that he had been consistently offending since 1990 and found that Mr Loketi has “been provided with ample chances by the judicial system to prove his ability to reside in Australia as a law abiding resident, and has consistently failed to do so”.  The Assistant Minister noted Mr Loketi’s submissions that he had promised his wife that he would not reoffend, the fact that he had a new baby and the completion of courses during his incarceration.  The Assistant Minister accepted that those things would be positive for his prospects but noted that “he has had family commitments for many years, including other children, but this has not prevented him continuing to offend”.

25. The Assistant Minister found that there was a significant likelihood that Mr Loketi will reoffend and that should he do so, it could result in physical harm and financial loss to members of the Australian community.

26. At [65]-[74], the Assistant Minister summarised his conclusions and stated at [73] that in reaching his decision about whether he was satisfied that there is “another reason” why the original decision should be revoked, the Assistant Minister concluded that Mr Loketi represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his children and other minor family members as a primary consideration and any other considerations, including his lengthy residence, bonds of family and employment, his claim that he will suffer hardship in New Zealand and the hardship his family and social networks will endure in the event the original decision was not revoked. Accordingly, at [74] the Assistant Minister concluded that he was not satisfied for the purposes of s 501CA(4)(b)(ii) that there was another reason why the original decision should be revoked.

    CONCLUSION

27. Mr Loketi’s application does not disclose jurisdictional or other legal error by the Assistant Minister and it should be dismissed with costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.

Associate

Dated:        12 November 2018