Paku v Minister for Immigration

[2016] FCCA 2535

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAKU v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2535

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Subclass 444 (Special Category) visa – whether the Tribunal erred by taking into account irrelevant considerations – whether the Tribunal erred in its reasons to cancel the visa – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116, 476

Applicant: CLIVE MANUERA PAKU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1942 of 2016

Judgment of: Judge Street

Hearing date: 29 September 2016

Date of Last Submission: 29 September 2016

Delivered at: Sydney

Delivered on: 29 September 2016

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Mr M Smith

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1942 of 2016

CLIVE MANUERA PAKU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 4 July 2016 affirming the decision of the delegate to cancel the applicant’s Subclass 444 (Special Category) visa. The applicant is a citizen of New Zealand.

2. On 23 March 2016, the applicant was involved in heated arguments with his wife and the use of a gun. That incident involved some of his children that witnessed the incident. It also involved his 16 year old daughter. As a result of that incident, a statement of facts and a police charge sheet was prepared giving rise to 12 charges against the applicant all in relation to the occurrence of the events on 23 March 2016 involving his wife, his daughter and what was said to be a firearm.

The Delegate’s Decision 

1. Following this incident, on 15 April 2016, a notice of intention to consider cancellation of the visa was sent to the applicant in respect of a cancellation under s.116(1)(e) of the Act which relevantly provides as follows

   (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   …

   (e) the presence of its holder in Australia is or may be, or would or might be, a risk to:

   (i) the health, safety or good order of the Australian community or a segment of the Australian community; or

   (ii) the health or safety of an individual or individuals …

2. The notice of intention to consider cancellation identifies an interview took place on 15 April 2016 and noted that the applicant did not dispute that the grounds for cancellation exist and acknowledged the existence of the charges in the statement of facts. The delegate determined that the reasons for not cancelling the visa did not outweigh the reasons to cancel the visa.

The Tribunal’s Decision

1. On 22 April 2016, the applicant applied for a review of the delegate’s decision. By letter dated 21 May 2016, the applicant was invited to attend a hearing on 1 June 2016.  The applicant attended that hearing. 

2. The Tribunal identified that the issues in the present case were whether­ the ground for cancellation was made out and whether the visa should be cancelled. The Tribunal identified the evidence in relation to the incident that occurred on 23 March 2016, which the applicant describes as a “brain snap.”

Consideration of cancellation of visa

1. The Tribunal turned to the issue of whether the grounds for cancellation existed.  The Tribunal noted that the matter was currently before the Court and the Tribunal expressly recorded that it was mindful that it was not determining the applicant’s guilt or innocence in relation to the events on 23 March 2016.

2. However, the applicant confirmed to the Tribunal that the victims of some of those alleged offences were his wife and his daughter.  Reference was made to the proposed intention of the wife and daughter to withdraw the complaints. 

3. The applicant also admitted to the Tribunal that the events of 23 March 2016 involved heated arguments and the use of a gun. The applicant also admitted to the Tribunal that his wife and some of his children who witnessed the incident were fearful of him. The applicant admitted that the police had been called to his home on at least one previous occasion and the applicant made reference to their having been an incident in New Zealand in 2001 in which there was a ‘heated argument’.

4. The Tribunal was of the view that based on the admissions, there was a history of domestic violence.  The Tribunal was of the view that the recent events and the applicant’s charges and detention may have the potential to lead to further violence which may lead to his family members being harmed. The Tribunal made reference to this including vulnerable children who have already been adversely affected by family violence.  The Tribunal was not satisfied that there may not be further family violence in the foreseeable future, particularly given the stress caused by the applicant leaving his employment, the events of 23 March 2016 and the applicant’s subsequent detention.

5. The Tribunal found that it was satisfied that the applicant’s presence in Australia may be, or might be, a risk to the safety of a segment of the Australian community, that is, his wife and children. The Tribunal found that there were grounds for cancelling the visa under section 116(1)(e) of the Act. The Tribunal noted that this does not give rise to a mandatory cancellation, but that the Tribunal must proceed to consider whether the power to cancel a visa should be exercised.

Consideration of discretion to cancel visa

1. The Tribunal gave detailed reasons in relation to the consideration of its discretion. Those reasons took into account the proposed withdrawal of the complaints by the wife and daughter and an assertion that they were not fearful of the applicant. The Tribunal expressly said that while the applicant’s wife and daughter may proceed to withdraw their complaints, the Tribunal is satisfied that there was a family violence incident which involved a firearm and resulted in the applicant being charged with several offences. The Tribunal found these circumstances seriously concerning and it gave the circumstances significant weight in its consideration.

2. The Tribunal also referred to giving appropriate consideration to the best interests of the children. The Tribunal made reference to the claims and evidence of the applicant, including his assertion that the children needed his care and guidance.

3. The Tribunal was satisfied that if the applicant was returned to New Zealand, the family would still have an opportunity to be reunited in New Zealand at some time in the future. The Tribunal accepted that the applicant needed support and that the applicant had been affected by the family’s circumstances, including the family violence.

4. However, the Tribunal had concerns that the applicant did not appreciate the impact of family violence on his children. The Tribunal was also satisfied that any counselling the wife and children may undertake will not be prevented by a visa cancellation. The Tribunal was satisfied that the applicant would be able to pursue counselling in New Zealand if he chose to do so. The Tribunal found overall that it was of the view that it was in the children’s best interest they continue to live with their mother in an environment free of violence.

5. The Tribunal made reference to the totality of the applicant’s circumstances and found that the applicant’s presence in Australia may, or might, be a risk to the safety of a segment of the Australian community. The Tribunal made reference to the financial and emotional hardship that might be caused to the applicant and his family. The Tribunal identified that it formed a view that the cancellation will not result in Australia breaching its international obligations and will not affect any other person’s visa.

6. The Tribunal expressly referred to the applicant’s strong character references and accepted that the children had expressed a desire to be with their father. However, the Tribunal found that it was in the best interests of the children to live with their mother in an environment free of family violence.

7. The Tribunal was satisfied that the children would be able to maintain regular contact with their father if the visa was cancelled and the family may choose to be reunited in New Zealand at some time in the future. The Tribunal found that, having considered the evidence overall, the gravity of the circumstances in which the ground for cancellation arose, being a family violence incident which involved a firearm, the Tribunal’s concern that there might be further family violence in the future, and its view that the impact of any further family violence may significantly harm the applicant’s wife and children, the Tribunal formed the view that the visa should be cancelled.

Proceedings Before This Court

1. On 11 August 2016, a Registrar of the Court made orders providing the applicant with an opportunity to file an amended application, affidavit evidence and submissions. The applicant did file affidavit evidence in support of his application.  That affidavit evidence went in substance to the merits of the matter which were for the Tribunal to determine. 

2. Part of the material provided by the applicant included a decision of another Tribunal postdating the decision of the current Tribunal. I accept the first respondent’s submission that the post-dated Tribunal decision was not relevant to the questions to be considered by this Court in relation to whether there was any jurisdictional error as alleged in the application. 

3. Further, even if the further Tribunal decision was taken into account, there is nothing on its face that would give rise to the consequence of there being any jurisdictional error in the review conducted by the Tribunal determined on 4 July 2016. 

4. The grounds of the application are as follows:-

   1. Failure to genuinely consider whether 21:ounds for cancelling the applicant's Subclass 444 (Special Category) visa existed :

   The Second Respondent committed a jurisdictional error in that it failed to genuinely consider whether or not grounds for cancellation existed, namely whether the events that took place on the 23 march 2016 between the applicant and his partner were of such a serious nature that the Second Respondent could not make out the possibility of further family violence in the foreseeable future. The Second Respondent adopted it's own view at [Paragraph 41] when the Second Respondent ruled that the applicant and his wife have had heated arguments in the past and due to the recent events in relation to the applicant's charges and detention, it may have the potential to lead to further violence which may lead to his family members being harmed. The Second Respondent also included that it is not satisfied that there may not be further family violence in the foreseeable future, particularly given the stress caused by the applicant leaving his employment, the events of23 March 2016 and the applicant's subsequent detention.

   The issue that arises stated in this way is that the Second Respondent was involved in mere speculations rather than making a concrete assessment of the fact wl1ether or not grounds for cancellation existed.

   The applicant's wife gave evidence before the Second Respondent at [paragraph 27] which clearly indicated that the applicant has never been excessively violent and the applicant treats his wife like “Queen”. The applicant's wife also took some responsibility of the events that took place on the 23 March 2016 and suggested had she walked away from the argument on the 23 March 2016, the arguments simply would not have occurred .

   It cannot be reasonably argued by the Second Respondent that at [paragraph 41-42] it approached the issue of future risk by the applicant in a logical manner and also the fact whether the applicant was of (high/medium/low) risk.

   2. Taking irrelevant material into consideration whilst exercising the discretion whether to cancel or not cancel the applicant’s visa.

   The second respondent committed a jurisdictional error whilst exercising it's discretion whether to cancel or not cancel the applicant's visa as it failed to give realistic weight to the fact of the circumstances in which the ground for cancellation arose.

   In considering it's discretion under s.116 of the Migration Act 1958 (Cth) the applicant's criminal charges should not have been treated as “circumstances in which the grounds for cancellation arose as the Second Respondent did at [paragraph 46] where the Second Respondent states “The Tribunal has considered the circumstances in which the ground for cancellation arose . While the applicant did not want to incriminate himself during the hearing by providing particulars of what happened, on the day he did admit that on 23 March 2016 his wife and daughter were at him about money for an airfare and he had a “brain snap”. He has admitted that there was a family violence incident involving a firearm although he has attempted to mitigate this by claiming it was only a replica or a BB gun or a toy gun. The Tribunal considers this concerning and it is not satisfied the applicant appreciates the gravity of the incident.

   The Second Respondent treated the applicant's criminal charges as being “circumstances in which the ground for cancellation arose “On the basis that the ground for cancellation relied upon by the delegate was enlivened by the criminal charges.

   This reflected as a misunderstanding of the PAM 3 when considering the circumstances in which the ground for cancellation arose “The Second Respondent should only considered the circumstances which led to the ground for cancellation relied upon by the Second Respondent to which the criminal charges had no relevance.

   The applicant has been charged with offences that are yet to be finalised. There was no material or evidence before the Second Respondent concerning the facts in relation to these alleged offences yet the Second Respondent made no reference to this issue in it's decision.

   The Second Respondent adopted it's own view taking into account the delegate's finding of breach in the exercise of the discretion under s116 of the Migration Act and fell into Jurisdictional error.

   Where a breach of a condition within sll6 of the Migration Act has been made out of a kind in respect of which a discretion arises, as in the present case, it would be open to the Second Respondent as a relevant matter to take into account as a general discretionary consideration that a person has been charged with offences. Equally in those circumstances it would be open to the Second Respondent to take into account as a relevant matter under sll6 where a general discretion arises findings made by the Second Respondent as to conduct by reason of which the Second Respondent finds that the person is a danger to the public. It is however irrational reasoning in. the exercise of the discretion about particular conduct and then purport to take into account findings as to conduct made by the delegate.

   3. Failure to take into account a mandatory relevant consideration (namely the best interests of the applicant's children).

   The Second Respondent at [paragraph 48] failed to express the best interests of children in a logical manner as the the Second Respondent believed that the applicant and his children will be able to remain in regular contact via telephone, if the applicant's visa is to remain being cancelled.

   The Second Respondent has made this finding on the fact that the applicant and his children have spent some time apart whilst the applicant worked for seven years as a FIFO worker in Western Australia so the impact of the visa cancellation would be minimal on the applicant and his children.

   The issue that arises if stated in this way that the considerations given to the best interests of children was so minimal as to constitute a constructive failure to take those interests into account .

   The Second Respondent whilst considering the best interests of children at [paragraph 48] concludes “Overall the tribunal is of the view it is in the children's best interests that they continue to live with their mother in an environment free of violence".

   The conclusion of the second Respondent is on the basis of the applicant's on going charges that are yet to be finalised before a Criminal Court however the Second Respondent has failed to take into account the evidence in relation to the events that took place on 23rd march 2016 as that evidence suggest, neither parties suffered any physical/emotional injuries.

   The Second Respondent's conclusion which states “Overall the tribunal is of the view it is in the children's best interest that they continue to live with their mother in an environment free of violence is far fetched .

   It cannot be reasonably argued by the Second Respondent in it's conclusion at [paragraph 48] ,he has given this mandatory consideration genuine and realistic weight whilst decidi11g whether to cancel or not to cancel the applicant's visa as the Second Respondent failed to approach this issue from the prospective of the children .

   4. Failure to properly weigh non-primary considerations

   In any event, even if it does, the balancing process suffers from the same defect identified by the Federal Circuit Court in Kautoga (FCCA 1679/2015) where (the Tribunal) took irrelevant material into consideration whilst making it’s decision. The Tribunal was involved in mere speculations rather than making a concrete assessment of the countervailing factors in that case. The Tribunal treated the applicant's charges as being “circumstances in which the ground for cancellation arose” on the basis that the ground for cancellation relied upon by the delegate was enlivened by the criminal charges.

   This reflected a misunderstanding of the PAM3. When considering" the circumstances in which the ground for cancellation arose “The Tribunal should only have considered the circumstances which led to the ground for cancellation relied upon by the Tribunal, to which the criminal charges had no relevance.

   5. UNREASONABLENESS

   It is rare that a Court will find that a decision is illogical or is unreasonable in the “Wednesbury sense, in that no decision-maker should have come to such a conclusion. In Kautoga (FCCA 1679/2015) an assessment made by the Migration Review Tribunal was found to be erred where no concrete assessment of the countervailing factors was undertaken. However, given the multitude of errors outlined above, and the persistence with which all assessments conducted by the Second Respondent were either flawed or deficient, and the weighing process the Second Respondent undertook appears to omit considerations or not engage in a concrete assessment of the countervailing factors, whilst taking a significantly more serious view of the crime committed by the applicant, it is possible that a Court will find Wednesbury sense unreasonableness.

   (Errors in the original)

5. At the commencement of the hearing, the Court explained to the applicant that the hearing was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error. The Court explained that if satisfied the Tribunal’s decision was affected by relevant legal error, the decision would be set aside and sent back for further hearing. The Court explained that if not satisfied the Tribunal’s decision was affected by relevant legal error the application would be dismissed.

1. The Court explained to the applicant that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness by the Tribunal to the applicant. The Court explained that in summary this meant the court was considering whether the Tribunal’s decision was lawful and whether the Tribunal’s decision was fair.

2. The Court explained to the applicant that it would have identified the evidence, then hear submissions from the applicant, then hear submissions from Counsel for the first respondent and then hear the applicant in reply. The applicant confirmed that he understood the nature of the hearing as explained by the Court. 

3. The applicant indicated that he was in detention and wished to have the opportunity for an adjournment. The applicant contended that the notice of a proposed adjournment had been given to the respondent approximately a week ago. The grounds of the adjournment were so that the applicant could try and borrow funds to obtain representation and also that the applicant could have further time to put his papers in order and put on further evidence.

4. I am satisfied that the applicant has had a real and genuine opportunity to put on evidence as a result of the proceedings having been commenced on 22 July 2016 and as a result of the orders made on 11 August 2016.  The adjournment was opposed by the first respondent.

5. Whilst the applicant did make reference to the possibility of his parents being able to assist him and obtain representation, there is no evidence before the Court to satisfy the Court that there was any real utility in granting an adjournment.  The Court is of the view that an adjournment would only unnecessarily increase the costs for the parties and utilise limited Court time. The Court was not satisfied that the interests of the administration of justice warranted an adjournment of the proceedings.

Consideration and Conclusion

1. In relation to Ground 1, the Tribunal did genuinely consider whether there were grounds enlivening the power of cancellation under section 116(1)(e) of the Act. The Tribunal’s reasons reflect the correct identification of the relevant law and an orthodox approach to the consideration of whether grounds existed for cancellation and then consideration of the discretion. I reject the contention that the Tribunal’s approach to the determination of whether grounds exist for cancellation was one of mere speculation. I accept the first respondent’s submission that the laying of the charges was itself a relevant fact in relation to the considerations under s.116(1)(e) of the Act.

2. In the present case, there are admissions by the applicant that the Tribunal referred to in respect of the incident that occurred on 23 March 2016. Those admissions included the heated argument and use of a gun, which on its face is a serious occurrence. There is no illogicality or unreasonableness in the reasoning of the Tribunal in finding that grounds for cancellation existed. Ground 1 fails to make out any jurisdictional error. 

3. In relation to Ground 2, the laying of the charges cannot be said to be an irrelevant consideration. The Tribunal was clearly mindful as it identified, of the fact that it was not determining the subject matter of the charges and clearly confined itself to the conduct admitted by the applicant to the Tribunal in respect of the domestic violence incident.  The fact that the charges may be withdrawn was a matter referred to by the Tribunal, and the Tribunal was correct in concluding that that was not a basis upon which the grounds for cancellation ceased to exist.  No jurisdictional error of the kind identified in Ground 2 is made out. 

4. In relation to Ground 3, it is apparent that the Tribunal did take into account the best interests of the children. Whilst I can understand that the applicant may take issue with the adverse findings as to what was in his children’s best interests, it was a matter for the Tribunal to take that consideration into account, which it did.  The Tribunal took into account the applicant’s claims of the impact, both financially and emotionally on the applicant’s family. Ground 3 is in substance, an impermissible invitation to this court to review the merits of the matter. No jurisdictional error is made out by Ground 3.

5. In relation to Ground 4, for the reasons already identified, the existence of the charges was a relevant consideration in relation to the use of a power under s.116(1)(e) of the Act. Ground 4 fails to make out any jurisdictional error.

6. The proposition that the decision of the Tribunal was illogical or unreasonable raised by Ground 5 is in substance, an impermissible challenge to the adverse findings by the Tribunal. It is apparent in the present case that the Tribunal provided detailed reasons for the adverse findings. Those reasons included the domestic violence incident involving the gun.

7. It cannot be said that though a reasonable Tribunal could not come to the adverse finding in respect of both the grounds being established under s.116(1)(e) of the Act or in relation to the exercise of the discretion. In the circumstances identified, the adverse findings by the Tribunal cannot be said to lack an evident and intelligible justification. No illogicality or unreasonableness is made out in relation to the determination of the Tribunal. No jurisdictional error as alleged in Ground 5 is made out.

8. The application is dismissed.

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 29 November 2016