Oliver v Minister for Immigration and Citizenship

Case [2011] FCA 534

FEDERAL COURT OF AUSTRALIA

Oliver v Minister for Immigration and Citizenship [2011] FCA 534

Citation: Oliver v Minister for Immigration and Citizenship [2011] FCA 534
Appeal from: Oliver and Minister for Immigration and Citizenship [2010] AATA 1049
Parties: BLAIR STERLING OLIVER v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL
File number: VID 47 of 2011
Judge: BROMBERG J
Date of judgment: 20 May 2011
Catchwords: MIGRATION – judicial review – visa cancelled pursuant to s 501 of the Migration Act 1958 (Cth) – decision reviewed by AAT pursuant to s 500 – whether AAT erred by failing to take into account relevant material as required by Ministerial Direction 41 – whether AAT’s decision that the applicant was an unacceptable risk was unreasonable – no jurisdictional error – application dismissed
Legislation: Migration Act 1958 (Cth) ss 474, 476A, 476A(2), 499, 499(2A), 500, 501(2), 501(6)
Cases cited:

Alexander v Australian Community Pharmacy Authority [2010] FCA 189
Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Oliver and Minister for Immigration and Citizenship [2010] AATA 1049
Date of hearing: 16 May 2011
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 52
Counsel for the Applicant: Ms A Kapitaniak
Solicitor for the Applicant: Vernon Da Gama & Associates
Counsel for the First Respondent: Mr R Knowles
Solicitor for the First Respondent: Clayton Utz
Counsel for the Second Respondent: The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 47 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

BLAIR STERLING OLIVER
Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:

BROMBERG J

DATE OF ORDER:

20 MAY 2011

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The applicant’s application be dismissed.

2.The applicant pay the first respondent’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 47 of 2011
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN:

BLAIR STERLING OLIVER
Applicant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

JUDGE:

BROMBERG J

DATE:

20 MAY 2011

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

  1. On 5 October 2010, a delegate of the first respondent the Minister for Immigration and Citizenship (“the Minister”), made a decision under s 501(2) of the Migration Act 1958 (Cth) (“the Act”) to cancel the applicant’s (Mr Oliver) Class BL, Sub-Class 851 visa (“the visa”). The delegate determined that because of Mr Oliver’s substantial criminal record, Mr Oliver failed the character test set out in s 501(6) of the Act. The delegate then exercised the discretion to cancel Mr Oliver’s visa.

  2. The delegate’s…

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AGLC
Oliver v Minister for Immigration and Citizenship [2011] FCA 534
Case
[2011] FCA 534
Decision Date

CaseChat Overview and Summary

The case of Oliver v Minister for Immigration and Citizenship involves Mr Oliver, a citizen of Sri Lanka, whose visa was cancelled by the Minister’s delegate under section 501 of the Migration Act 1958 (Cth). The decision was reviewed by the Administrative Appeals Tribunal (AAT), which upheld the cancellation. Mr Oliver appealed against the AAT's decision to the Federal Court of Australia, arguing that the AAT failed to take into account relevant material as required by Ministerial Direction 41 and that the AAT's decision that he posed an unacceptable risk was unreasonable.

The primary legal issues before the court were whether the AAT erred by failing to consider all relevant material, as specified in Ministerial Direction 41, and whether the AAT's decision that Mr Oliver was an unacceptable risk was unreasonable. The court considered the scope and application of Ministerial Direction 41, particularly in relation to the factors that must be considered when assessing the risk of recidivism, and whether the AAT had properly applied these directions.

In examining the AAT's decision, the court found that the AAT had not erred in failing to consider all the prison records as contended by Mr Oliver. The court held that the AAT had given proper consideration to the relevant factors, including evidence of Mr Oliver's rehabilitation, and that there was no basis to infer that specific documents were not considered. Furthermore, the court found that the AAT's conclusion that Mr Oliver posed an unacceptable risk to the Australian community was not unreasonable, given the nature and seriousness of his past criminal conduct and the risk of recidivism.

In light of the findings, the court dismissed Mr Oliver's application for judicial review. The court ordered that Mr Oliver pay the Minister’s costs.

Orders

Orders of the court

1. The applicant’s application be dismissed.

2. The applicant pay the first respondent’s costs.

Note:

Background

Background to the litigation

For the reasons that follow, I have determined that no jurisdictional error is evinced in relation to either ground of challenge and that accordingly the application must be dismissed.BACKGROUND Mr Oliver is a citizen of Sri Lanka. He was born in Sri Lanka on 8 January 1967. Mr Oliver first came to Australia on 13 February 1988 and has remained in Australia since that time. On 4 March 2005, Mr Oliver was convicted in the County Court of Victoria in respect of the following offences: (a)14 counts of wilfully committing an indecent act with or in the presence of a child under the age of 16;(b)5 counts of taking part in an act of sexual penetration with a child under the age of 16. Mr Oliver’s offending occurred between 1992 and 1994. The direct victims of his offending were three children, who are the sons of Mr Oliver’s cousin. Mr Oliver was sentenced to a total effective sentence of imprisonment of 8 years and 7 months, with a non-parole period of 5 years and 9 months. After his conviction, Mr Oliver appealed to the Victorian Court of Appeal. That appeal was unsuccessful. Mr Oliver was granted parole and released on 18 November 2010, when he was immediately taken into immigration detention on the basis that on 5 October 2010, the Minister’s delegate cancelled Mr Oliver’s visa. On 14 December 2010, the Tribunal conducted a hearing, at which Mr Oliver and other witnesses gave oral evidence. At the hearing, Mr Oliver was represented. Each of the parties also tendered documents, including relevantly, a document which was marked “R2” (“the Exhibit”). The Exhibit comprised over 360 pages of documents produced under summons by Victoria Police and documents produced by Ararat Prison.DIRECTION NO. 41 Section 499 of the Act provides for the Minister to issue directions to a person or body having functions or powers under the Act. Section 499(2A) provides that a person or body must comply with a direction made under s 499. On 15 June 2009, a direction entitled “Direction [no. 41] – Visa refusal and cancellation under s 501” (“the Direction”) came into effect. The Direction was issued by the Minister pursuant to s 499 of the Act. The Direction applies to all decision-makers, including the Tribunal. As both of the grounds upon which Mr Oliver relies depend (at least in part) on a contention that the Tribunal failed to comply with the requirements of the Direction, it is necessary that I explain the purpose and function of the Direction and set out some of the clauses in the Direction which are relevant to a consideration of the case before me. As the Direction states in cl 5.2, the Direction provides direction to decision-makers with respect to performing and exercising powers under s 501 of the Act. Where the holder of a visa has not satisfied the decision-maker that the person has passed the character test, the decision-maker’s discretion to cancel the visa is enlivened and Part B of the Direction gives directions as to how that discretion is to be exercised.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The “primary considerations” listed in cl 10(1) of the Direction are as follows:10. The primary considerations(1) In deciding whether to refuse to grant a person a visa or cancel a person's visa, the following (the primary considerations) are to be considered:(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;(b) whether the person was a minor when they began living in Australia;(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and(d) relevant international obligations, including but not limited to:(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and(ii) the non-refoulement obligations contained in the ­ Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Further guidance is given as to the application of cl 10(1)(a). That paragraph deals with the protection of the Australian community. Clause 10.1 is headed “Protection of the Australian community” and in subclause (2) provides:The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:(a)the seriousness and nature of the relevant conduct; and (b)the risk that the conduct may be repeated. Further directions are given in relation to the two factors specified in cl 10.1(2). As to the “risk that the conduct may be repeated”, further directions are given in cl 10.1.2. In particular, Mr Oliver’s contention relies upon cl 10.1.2(2)(b) which is as follows:(2) The following factors are to be considered as particularly relevant to this assessment:(a) …(b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment;(c) … Although in his outline of submission, Mr Oliver also relied on cl 10.1.1(4)(a), reliance on that clause was correctly not pressed at the hearing because the clause is not relevant to the issues I need to determine.ALLEGED FAILURE TO TAKE ACCOUNT RELEVANT MATERIAL Mr Oliver contends that the Tribunal failed to take into account all of the prison records which form part of the Exhibit. It is contended that by failing to take that material into account, the Tribunal’s assessment of Mr Oliver’s risk of recidivism was flawed. Mr Oliver contends that the prison records are “sources of authoritative information or assessment” within the meaning of cl 10.1.2(2)(b) of the Direction and by reason of that clause was material that had to be considered by the Tribunal. Mr Oliver contends that the Court should infer that four documents contained in the prison records which form part of the Exhibit were not considered by the Tribunal.