Maruwapi v Minister for Immigration and Border Protection
[2018] FCA 955
•22 June 2018
FEDERAL COURT OF AUSTRALIA
Maruwapi v Minister for Immigration and Border Protection [2018] FCA 955
File number(s): VID 1416 of 2017 Judge(s): DAVIES J Date of judgment: 22 June 2018 Catchwords: MIGRATION – Application for an extension of time to seek judicial review of a decision of the Minister under s 501CA(3A) of the Migration Act not to revoke the mandatory cancellation of the applicant’s visa – application out of time by 33 days – extension of time opposed on the basis that the applicant’s proposed application for judicial review has no prospects of success – visa cancelled under s 501(3A) because a delegate of the Minister was satisfied that the applicant did not pass the character test by reason that the applicant had been convicted of a sexually-based offence involving a child – whether error in decision of the Minister Legislation: Migration Act 1958 (Cth) Date of hearing: 12 June 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 10 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr CJ Tran Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
VID 1416 of 2017 BETWEEN: JERRY NAMA MARUWAPI
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
DAVIES J
DATE OF ORDER:
22 JUNE 2018
THE COURT ORDERS THAT:
1.The application for an extension of time be dismissed.
2.The applicant pay the costs of the respondent, such costs to be taxed in default of agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DAVIES J:
The applicant has applied for an extension of time in which to seek judicial review of a decision of the respondent (“the Minister”) under s 501CA(3A) of the Migration Act 1958 (Cth) (“the Act”) not to revoke the mandatory cancellation of the applicant’s visa under s 501(3A) of the Act. An extension of time is required because the applicant was 33 days out of time in applying for judicial review. The extension of time is opposed on the basis that the applicant’s proposed application for judicial review has no prospects of success.
The applicant is a national of Papua New Guinea. He was granted a Bridging Visa Class WA Subclass 030 in September 1994. On 22 November 2016, the applicant’s visa was cancelled under s 501(3A) of the Act because a delegate of the Minister was satisfied that the applicant did not pass the character test by reason that the applicant had been convicted of a sexually-based offence involving a child in October 2015 and sentenced to two years imprisonment (s 501(6)(e), s 501(3A)(a)(ii), and s 501(7)(c) of the Act) and because the applicant was serving a sentence of imprisonment, on a full-time basis, in a custodial institution. In November 2016 the applicant requested revocation of the cancellation decision under s 501CA, which provides:
(1) This section applies if the Minister makes a decision (the original decision ) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(5) If the Minister revokes the original decision, the original decision is taken not to have been made.
(6) Any detention of the person that occurred during any part of the period:
(a) beginning when the original decision was made; and
(b) ending at the time of the revocation of the original decision;
is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
(7) A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.
In his statement of reasons the Minister addressed the following matters in deciding that he was not satisfied that the applicant passed the character test or that there was another reason why the mandatory cancellation decision should be revoked:
(a)the best interests of the applicant’s minor children;
(b)the strength, nature and duration of the applicant’s ties to Australia;
(c)the impediments that the applicant will face if removed from Australia to his home country of Papua New Guinea in establishing himself and maintaining basic living standards;
(d)the criminal history, nature and seriousness of the applicant’s criminal offending; and
(e)whether the applicant poses a risk to the Australian community through reoffending.
The Minister accepted that it is in the best interests of the applicant’s child, grandchildren, minor nieces and nephews for the mandatory visa cancellation decision to be revoked. The Minister also accepted that by reason of the strength, nature and duration of the applicant’s ties to Australia that there may be emotional, financial and practical hardships. However, the Minister considered that the applicant’s criminal conduct was very serious and found that there was an ongoing likelihood of the applicant reoffending. The Minister considered that should the applicant reoffend in a similar manner against minor children it could result in psychological harm to vulnerable members of the Australian community. The Minister concluded at [111]–[117]:
In considering, in light of Mr MARUWAPI’s representations, whether I was satisfied that there is another reason why the original decision should be revoked, I gave primary consideration to the best interests of Mr MARUWAPI’s child Kevin Toby, and his seven grandchildren. I found that their best interests would be served by the revocation of the original decision.
In addition, I have considered the length of time Mr MARUWAPI has made a positive contribution to the Australian community (34 years) and the consequences of non-revocation of the original decision for his family members.
On the other hand, in considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the very serious nature of the crimes committed by Mr MARUWAPI, some of which involved violence, and some that are of a sexual nature and involved vulnerable minor members of the community.
Further, I find that the Australian community could be exposed to harm should Mr MARUWAPI reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr MARUWAPI.
I am cognisant that where harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the original decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr MARUWAPI, than I otherwise would, because he has lived in Australia for most of his life.
In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Mr MARUWAPI represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his child, grandchildren and other minor family members, as a primary consideration, and any other considerations as described above. These include his lengthy residence and bonds, employment and familial ties lo Australia, and the hardship Mr MARUWAPI, his family and social networks will endure in the event the original decision is not revoked.
Having given full consideration to all of these matters, I am not satisfied, for the purposes s. 501CA(4)(b)(ii), that there is another reason why the original decision to mandatorily cancel Mr MARUWAPI’s visa should be revoked. Accordingly, as I am not satisfied that there is another reason why the original decision should be revoked, my power to revoke is not enlivened and Mr MARUWAPI’s Class WC Subclass 030 Bridging C visa remains cancelled.
The applicant’s proposed grounds for review are as follows:
1.The Purported Decision of the Minister from Immigration and Border Protection (Respondent) and His Department and agents on 18 October 2017 is legally unreasonable in that it is vitiated by jurisdictional error.
2.The Minister denied me procedural fairness because he didn’t give me a fair hearing.
3.The Minister failed to properly consider all my claims.
4.The Minister failed to consider a relevant consideration.
5.The Minister made a decision that was legally unreasonable.
In a later filed document for an extension of time, the grounds of the application were listed as:
1. Procedural unfairness
2. Ignoring relevant information
3. New immigration case has arisen
4. Non-refoulment obligations.
No particulars were provided of any of the grounds in either document. The applicant was given the opportunity at the hearing to make oral submissions in support of his application. Included in the matters raised by the applicant was that he has Aboriginal bloodline and he sought to rely on a document which would show this. The Minister objected to the admission of this document into evidence on the basis that the document had not been before the Minister. As the document was not before the Minister and related only to a factual matter the document was not admitted into evidence. In any event, as pointed out to the applicant, the Minister’s reasons for decision record that the Minister took into account that the applicant has an Aboriginal bloodline. The reason also record that the Minister accepted that he has ties with the indigenous community.
No legal error is discernible in the Minister’s reasons. The applicant did not point to any matter which the Minister should have, but did not, take into account, and with respect to those matters that were considered by the Minister, the reasons for decision disclose that the Minister engaged in an assessment and evaluation of those factors in reaching his decision that he was not satisfied that there was another reason why the original decision to revoke the mandatory cancellation of the applicant’s visa. The Minister correctly concluded that the applicant did not satisfy the character test. There was an evident and intelligible justification for that conclusion.
It is not discernible either that there was any denial of procedural fairness in this case. The material shows that the applicant was invited to make representations for revocation, the applicant made submissions, further information was sought from the applicant which was provided and, critically, it is not apparent that the Minister failed to consider any matter put forward by the applicant. The applicant did not demonstrate that the other matters put forward as “grounds” had any relevant content to the applicant’s application for judicial review.
No error is demonstrated. The application for an extension of time is accordingly dismissed.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies. Associate:
Dated: 22 June 2018
0
0
1