FEDERAL COURT OF AUSTRALIA
Maere v Minister for Home Affairs [2019] FCAFC 121
Appeal from: Maere v Minister for Home Affairs [2018] FCA 1694 File number: VID 1528 of 2018 Judges: DAVIES, O'BRYAN AND SNADEN JJ Date of judgment: 25 July 2019 Catchwords: MIGRATION – mandatory cancellation of visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) – decision not to revoke cancellation under s 501CA(4) of the Act – whether primary judge erred in failing to find the Assistant Minister did not give adequate consideration to effect of deportation on appellant’s children – whether primary judge erred in failing to find that Minister’s finding of risk of appellant re-offending was unsupported by evidence or unreasonable – whether appellant denied procedural fairness before primary judge – appeal dismissed
PRACTICE AND PROCEDURE – application for adjournment of appeal – where appellant had substantial medical issues – where insufficient evidence that conditions could preclude preparation for and participation in hearing – application refused
Legislation: Federal Court of Australia Act 1976 (Cth)
Migration Act 1958 (Cth)
Federal Court Rules 2011 (Cth)
Cases cited: ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099
ASIC v Reid (No 1) (2006) 151 FCR 540
Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246
Elliott v ASIC (2004) 10 VR 369
Foster v ACCC [2012] FCA 953
Fuller v Toms (2012) 247 FCR 440
Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1
NSW v Canellis (1994) 181 CLR 309
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Sandy v Queensland (2017) 254 FCR 107
Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59
SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244
Date of hearing: 31 May 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 45 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: Mr G Hill Solicitor for the Respondent: Australian Government Solicitor ORDERS
VID 1528 of 2018 BETWEEN: ADRIAN MAERE
Appellant
AND: MINISTER FOR HOME AFFAIRS
Respondent
JUDGES:
DAVIES, O'BRYAN AND SNADEN JJ
DATE OF ORDER:
25 JULY 2019
THE COURT ORDERS THAT:
1.The name of the respondent be changed to Minister for Home Affairs.
2.The appeal be dismissed.
3.The appellant pay the respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
Introduction
By a notice of appeal filed on 29 November 2018, the appellant appeals from a decision of the Federal Court dismissing an application to review a decision of the respondent (the Minister), made under s 501CA of the Migration Act 1958 (Cth) (the Act), not to revoke the cancellation of the appellant’s visa.
The background to that decision was summarised by the primary judge as follows (at [1]–[5]):
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- Case
- [2019] FCAFC 121
- Decision Date
CaseChat Overview and Summary
The court considered the grounds of appeal, which included the Assistant Minister's assessment of the best interests of the appellant's children, the Minister's finding of the risk of re-offending, and the denial of procedural fairness. The Assistant Minister had considered the impact of deportation on the appellant's daughter, Paris, who was a minor at the time, and found that it was in her best interests for the cancellation decision to be revoked. However, the Assistant Minister gave this consideration less weight due to Paris being almost an adult and able to maintain contact with the appellant. Regarding the appellant's other daughter, Abbey, the Assistant Minister acknowledged the appellant's relationship with her and the potential emotional and financial hardship from non-revocation. The Minister found that the appellant represented an unacceptable risk to the Australian community and that protection of the community outweighed the best interests of the child.
The court found no error in the primary judge's decision, as the Assistant Minister had considered the impact of deportation on the appellant's children and the Minister's finding of the risk of re-offending was supported by evidence. Additionally, the appellant had not been denied procedural fairness. The appellant's application for an adjournment of the appeal hearing due to health issues was also dismissed as there was insufficient evidence that his medical conditions precluded him from preparing for and participating in the hearing.
The appeal was dismissed, and the appellant was ordered to pay the respondent's costs. The respondent's name was corrected to Minister for Home Affairs in the orders.
Orders
Orders of the court
1. The name of the respondent be changed to Minister for Home Affairs.
2. The appeal be dismissed.
3. The appellant pay the respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
As noted earlier, the appellant did not file any written submissions in support of his appeal. The appellant appeared at the hearing and briefly addressed the Court. However, the submissions were not directed to any of the grounds of appeal and did not otherwise assist the Court.Consideration of appeal We have considered the appellant’s grounds of appeal and reviewed the Minister’s decision and the decision of the primary judge in light of those grounds. We cannot identify any error in the decision of the primary judge.Assessment of best interests of child (Notice of appeal ground 1) The first ground of appeal concerns the Assistant Minister’s decision in relation to the impact of deportation on the appellant’s two teenage children. The appellant has two daughters: Abbey, born in July 1998, and Paris, born in November 2001. At the time of the Assistant Minister’s decision in October 2017, Abbey was 19 years old and Paris was almost 16 years old. At that time, Paris (but not Abbey) was a “child” for the purposes of Direction No 65. The Assistant Minister considered the position of Paris under the heading of “Best interests of minor children” (Reasons at [13]–[17]). The Assistant Minister found that it was in the best interests of Paris for the mandatory cancellation decision to be revoked. However, the Assistant Minister gave this consideration “some less weight” because the appellant did not have the daily care and responsibility for Paris, she would be an adult in two years’ time (from the decision) and she would be able to maintain written contact with the appellant (Reasons at [17]). The Assistant Minister considered the position of the appellant’s other daughter, Abbey, under the heading of “Strength, nature and duration of ties” (Reasons at [19]–[21]). After setting out the nature of the contact between the appellant and Abbey (Reasons at [20]), the Assistant Minister noted that the appellant had presented evidence of a substantial debt in child support that remains outstanding, partly in respect of Abbey. The Assistant Minister accepted that the appellant “has a relationship with Abbey and that she would experience emotional and possibly also financial hardship from non-revocation” (Reasons at [21]). The Assistant Minister’s conclusions included the following:(a)In considering whether there was another reason why the cancellation decision should be revoked, the Assistant Minister gave primary consideration to the best interests of the appellant’s daughter Paris. The Assistant Minister found that her best interests would be served by revocation of the original decision (Reasons at [76]).(b)The Assistant Minister found that the appellant represented an unacceptable risk of harm to the Australian community and that protection of the community outweighed the best interests of his child as a primary consideration, and other considerations, including the appellant’s family ties to Australia, and the hardship that the appellant and his family would endure if the cancellation decision were not revoked (Reasons at [79]).