Maere v Minister for Home Affairs

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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

Wyman v Queensland (2015) 235 FCR 464

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

  1. 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.

  2. The background to that decision was summarised by the primary judge as follows (at [1]–[5]):

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Details
Case
[2019] FCAFC 121
Decision Date

CaseChat Overview and Summary

The case of Maere v Minister for Home Affairs involved the appellant, an individual in immigration detention, who appealed against the Minister's decision not to revoke a mandatory visa cancellation under the Migration Act 1958 (Cth). The primary judge had previously dismissed the appellant's application for judicial review of the Minister's decision. The appellant contended that the primary judge had erred by not finding that the Assistant Minister did not give adequate consideration to the effect of deportation on the appellant's children and by not finding that the Minister's determination that the appellant posed a risk of re-offending was unsupported by evidence or unreasonable. Additionally, the appellant argued that he was denied procedural fairness before the primary judge.

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

Following the non-revocation decision, the appellant applied to the Federal Court for judicial review of that decision under s 476A(1)(c) of the Act. The Court heard the application on 17 July 2018 and, on 8 November 2018, dismissed the application: Maere v Minister for Home Affairs [2018] FCA 1694 (Primary Judgment).Interlocutory application for adjournment of appeal The appellant is currently held in immigration detention and is self-represented (as he was before the primary judge). Following the filing of the notice of appeal, on 17 December 2018 the Court made timetabling orders for the hearing of this appeal. One of those orders required the appellant to file and serve a written outline of submissions no later than 10 business days before the hearing date. The appellant did not comply with that order and, as at the date of the hearing, no written submissions had been filed. On 30 May 2019, the day before the hearing, the appellant filed an interlocutory application seeking an adjournment of the hearing of the appeal. The application was accompanied by an unsworn affidavit which stated that the appellant “has found it very difficult to prepare for Court hearing due to ongoing health issues”. Attached to the document were copies of emails between the appellant and various health professionals. The documents show, and we find, that the appellant has been diagnosed by orthopaedic specialists as having a severe disabling hip osteoarthritis on the left side which will necessitate a total hip replacement. However, no date has been set for such a surgical procedure. The appellant appeared at the hearing on 31 May 2019. He was in a wheelchair and it was clear that he was in considerable pain and discomfort associated with the osteoarthritis. The appellant told the Court that he had not filed any written submissions in support of his appeal because he was in a detention centre, bed-bound and wheelchair-bound. He explained that the conditions in detention with his significant health issues had made it extremely difficult for him to prepare for the Court hearing. He submitted that he could put something more to the Court if his health was better, instead of being in pain all the time. The appellant also told the Court that he has been endeavouring to obtain legal assistance but has not been able to obtain that assistance to date. The Court accepted that the appellant has substantial medical issues and it was clear to the Court that he was in pain. However, there was nothing in the medical reports to indicate that his medical conditions prevented him from proceeding with the appeal and presenting the submissions that he wished to put to the Court in support of his appeal. Although it was recently recommended that the appellant have a hip replacement, the medical reports do not indicate when that operation is likely to occur. In the circumstances, it cannot be said that an adjournment is likely to result in the appellant being in any different position with respect to the prosecution of his appeal in the reasonably foreseeable future.

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]).