FEDERAL COURT OF AUSTRALIA
Paszkiewicz v Minister for Home Affairs [2019] FCAFC 198
Appeal from: Paszkiewicz v Minister for Home Affairs [2019] FCA 390 File number: VID 353 of 2019 Judges: MIDDLETON, KERR AND ANASTASSIOU JJ Date of judgment: 13 November 2019 Date of publication of reasons: 14 November 2019 Catchwords: MIGRATION - judicial review of decision of the Administrative Appeals Tribunal – where visa cancelled on character grounds – where a delegate of the Minister decided to refuse to revoke the cancellation decision – where the Tribunal affirmed the non-revocation decision – whether the Tribunal failed to respond to a substantial, clearly articulated argument relying upon established facts – application dismissed by primary judge – appeal dismissed Legislation: Migration Act 1958 (Cth), ss 476A, 499, 501, 501CA Cases cited: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 101
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Date of hearing: 13 November 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 60 Counsel for the Appellant: Mr M Kenneally Solicitor for the Appellant: WLW Migration Lawyers Counsel for the First Respondent: Mr W Mosley Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
VID 353 of 2019 BETWEEN: BARTOLMIEJ PASZKIEWICZ
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGES:
MIDDLETON, KERR AND ANASTASSIOU JJ
DATE OF ORDER:
13 NOVEMBER 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
INTRODUCTION
On 13 November 2019, the Court ordered that the appeal be dismissed with costs. These are the reasons for those orders.
The appellant, a citizen of Poland, appeals from the first instance decision of this Court in Paszkiewicz v Minister for Home Affairs [2019] FCA 390. The primary judge dismissed an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the ‘Tribunal’) under s 476A of the Migration Act 1958 (Cth) (the ‘Migration Act’) not to revoke the cancellation of the appellant’s visa on character grounds.
The appellant contended that the primary judge erred in reaching various conclusions.
For the reasons which follow, we are of the view that the primary judge was correct to dismiss the appellant’s application for judicial review of the Tribunal’s decision. The appellant’s appeal must accordingly be dismissed.
BACKGROUND
The following statement of the background facts is substantially based on the reasons of the primary judge. There was no challenge on appeal to any of the primary judge’s findings of fact.
The appellant is a citizen of Poland.
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Details
- Case
- [2019] FCAFC 198
- Decision Date
CaseChat Overview and Summary
In Paszkiewicz v Minister for Home Affairs, the appellant, a Polish citizen with a substantial criminal record, appealed against the decision of the Federal Court of Australia to dismiss his application for judicial review of a decision by the Administrative Appeals Tribunal (AAT). The Tribunal had affirmed a decision by a delegate of the Minister for Home Affairs not to revoke the cancellation of the appellant's visa under s 501CA of the Migration Act 1958 (Cth). The appellant submitted that the Tribunal failed to properly consider the impact of the visa cancellation on his two minor Australian children, and other family members.
The legal issues before the court were whether the AAT failed to properly consider the impact of the visa cancellation on the appellant's family, and whether this failure constituted a reviewable error. The court examined the AAT's consideration of the "primary considerations" and "other considerations" set out in Direction No 65, a direction made by the Minister pursuant to s 499(1) of the Migration Act. The court considered whether the AAT had failed to respond to a substantial, clearly articulated argument relying upon established facts.
The court found that the AAT had considered the appellant's submissions about the impact of the visa cancellation on his family, and had properly weighed the "primary considerations" and "other considerations" against the appellant's substantial criminal record. The court held that the AAT had not failed to properly consider the impact of the visa cancellation on the appellant's family, and that the appellant's argument was not supported by the evidence. The court dismissed the appeal and ordered that the appeal be dismissed with costs.
In conclusion, the court held that the AAT had properly considered the relevant factors in deciding whether to revoke the cancellation of the appellant's visa, and had not failed to properly consider the impact of the visa cancellation on the appellant's family. The appeal was dismissed with costs.
The legal issues before the court were whether the AAT failed to properly consider the impact of the visa cancellation on the appellant's family, and whether this failure constituted a reviewable error. The court examined the AAT's consideration of the "primary considerations" and "other considerations" set out in Direction No 65, a direction made by the Minister pursuant to s 499(1) of the Migration Act. The court considered whether the AAT had failed to respond to a substantial, clearly articulated argument relying upon established facts.
The court found that the AAT had considered the appellant's submissions about the impact of the visa cancellation on his family, and had properly weighed the "primary considerations" and "other considerations" against the appellant's substantial criminal record. The court held that the AAT had not failed to properly consider the impact of the visa cancellation on the appellant's family, and that the appellant's argument was not supported by the evidence. The court dismissed the appeal and ordered that the appeal be dismissed with costs.
In conclusion, the court held that the AAT had properly considered the relevant factors in deciding whether to revoke the cancellation of the appellant's visa, and had not failed to properly consider the impact of the visa cancellation on the appellant's family. The appeal was dismissed with costs.
Orders
Orders of the court
1. The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons which follow, we are of the view that the primary judge was correct to dismiss the appellant’s application for judicial review of the Tribunal’s decision. The appellant’s appeal must accordingly be dismissed.BACKGROUND The following statement of the background facts is substantially based on the reasons of the primary judge. There was no challenge on appeal to any of the primary judge’s findings of fact. The appellant is a citizen of Poland. In 1985, he entered Australia with his immediate family. Until 16 September 2015, he was the holder of a Transitional (Permanent) (Class BF) visa. Since 1988, the appellant has been convicted of numerous criminal offences including thefts, burglaries, assaults and armed robbery. In particular, the County Court of Victoria convicted him on 21 December 2012 of various offences including armed robbery. In respect of the armed robbery, the County Court sentenced the appellant to three years’ imprisonment. On 16 September 2015, a delegate of the Minister for Home Affairs (the ‘Minister’) cancelled the appellant’s visa pursuant to s 501(3A) of the Migration Act. The Minister found that the appellant did not pass the character test because he had a substantial criminal record. On 22 September 2015, the appellant made representations to the Minister about revocation of the visa cancellation. He subsequently lodged further materials in support of those representations. On 3 January 2018, another delegate of the Minister for Home Affairs decided, pursuant to s 501CA of the Migration Act, not to revoke the cancellation of the appellant’s visa. The appellant applied to the Tribunal for review of the non-revocation decision. The appellant and his representative lodged various materials with the Tribunal. These included witness statements of the appellant, his mother, his aunt, his fiancée and a friend. As will become relevant later in these reasons, the appellant’s family also includes his two Australian citizen children from a previous relationship, with whom the appellant appears to have little if any contact. The appellant’s solicitors filed a Statement of Facts, Issues and Contentions. On 16 March 2018, the Tribunal conducted a hearing. The appellant was represented by counsel at the hearing. The first respondent was represented by a solicitor. The appellant and a number of his family members gave evidence. On 27 March 2018, the Tribunal handed down its decision, which affirmed the non-revocation decision. THE TRIBUNAL DECISION The Tribunal found at [15] that the appellant did not pass the character test due to his substantial criminal record. The Tribunal therefore considered whether there was another reason why the cancellation of the visa should be revoked: see s 501CA of the Migration Act. In doing so, the Tribunal had regard to Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 65’), a direction made by the Minister pursuant to s 499(1) of the Migration Act.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
On 27 March 2018, the Tribunal handed down its decision, which affirmed the non-revocation decision. THE TRIBUNAL DECISION The Tribunal found at [15] that the appellant did not pass the character test due to his substantial criminal record. The Tribunal therefore considered whether there was another reason why the cancellation of the visa should be revoked: see s 501CA of the Migration Act. In doing so, the Tribunal had regard to Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 65’), a direction made by the Minister pursuant to s 499(1) of the Migration Act. The Tribunal noted at [20] that in deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, Direction 65 required a decision-maker to take into account the considerations set out in Part C, which were divided into “primary considerations” and “other considerations”. The Tribunal then noted at [21] that the primary considerations were:(1)protection of the Australian community;(2)the best interests of minor children in Australia affected by the decision; and(3)expectations of the Australian community. At [22], the Tribunal noted that the “other considerations” set out in Direction 65 were:(1)international non-refoulement obligations;(2)strength, nature and duration of ties;(3)impact on Australian business interests;(4)impact on victims; and(5)extent of impediments if removed. The Tribunal summarised the appellant’s contentions at [24]-[31] of its decision. At [24], the Tribunal stated:The Applicant submitted that, notwithstanding the seriousness of his past offences, the Tribunal should find that there is another reason why the mandatory visa cancellation decision should be revoked. [Counsel] argued that [the Applicant] has two young Australian citizen children who need his care and support. They would be adversely affected if the decision was not revoked. [Counsel] also submitted that his many family members in Australia and his fiancée would also be adversely affected. She drew the Tribunal’s attention to the fact that the Applicant’s parents are both elderly and his father is suffering from a terminal disease and, as such, would not be able to visit his son should he be removed to Poland. The Tribunal noted at [30] that the appellant’s counsel had submitted that the appellant had two minor Australian children; until he separated from their mother in 2011, the appellant had been highly involved in their lives; and the appellant sought to re-establish contact on release from incarceration. At [32]-[36], the Tribunal summarised the Minister’s contentions. As set out at [36], the Minister accepted that non-revocation of the cancellation of the appellant’s visa would have a detrimental impact on his family, especially his fiancée and his parents. The Tribunal discussed the various considerations referred to in Direction 65 at [37]-[70] of its decision. The Tribunal considered at [37]-[56] protection of the Australian community, being one of the primary considerations. The Tribunal began by considering the nature and seriousness of the appellant’s conduct. The Tribunal stated that it was clear that the appellant had a long history of serious criminal conduct; the appellant had been warned by the Department of Immigration and Border Protection about his criminal conduct, but he had disregarded the warning; the appellant appeared in court in May 2009, in relation to driving a vehicle with false registration plates at high speed and striking another car from behind; in sentencing the appellant, the Judge noted that the appellant was at the time suspended from driving and had 103 prior convictions from 16 court appearances between 1995 and 2007; the Judge decided to wholly suspend the 36 months’ imprisonment then imposed; regrettably, less than 10 months later, the appellant was in court again, on 38 fresh charges; he went on to appear in court on four more occasions. After discussing the connection between the appellant’s drug addiction and the offending and aspects of Direction 65, the Tribunal stated that the appellant’s offences had involved dishonesty, threatening people, perpetrating violence as well as several driving offences, one of which led to serious injury of another road user through no fault of that person. In relation to the nature and seriousness of the appellant’s conduct, the Tribunal therefore concluded at [47] that applying the provisions set out in Direction 65, “this consideration weighs heavily against the Applicant”.
Ratio Decidendi
Legal Principle Established
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