Paszkiewicz v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Paszkiewicz v Minister for Home Affairs [2019] FCA 390

File number: VID 481 of 2018
Judge: MOSHINSKY J
Date of judgment: 22 March 2019
Catchwords: MIGRATION – application for 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
Legislation: Migration Act 1958 (Cth), ss 476A, 499, 500, 501, 501CA
Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Buadromo v Minister for Immigration and Border Protection [2017] FCA 1592

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389

Minister for Home Affairs v Buadromo [2018] FCAFC 151

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

Viane v Minister for Immigration and Border Protection [2018] FCAFC 116
Date of hearing: 1 November 2018
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 44
Counsel for the Applicant: Ms GA Costello
Solicitor for the Applicant: WLW Migration Lawyers
Counsel for the First Respondent: Mr R Knowles
Solicitor for the First Respondent: Clayton Utz
Solicitor for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs

ORDERS

VID 481 of 2018
BETWEEN:

BARTLOMIEJ PASZKIEWICZ

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

MOSHINSKY J

DATE OF ORDER:

22 MARCH 2019

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs of the proceeding, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

4.In the absence of any agreement:

(a)within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c)in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MOSHINSKY J:

  1. The applicant has applied for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal).  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) not to revoke a cancellation of the applicant’s visa on…

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Details
Case
[2019] FCA 390
Decision Date

CaseChat Overview and Summary

In Paszkiewicz v Minister for Home Affairs, the applicant, a Polish national with a substantial criminal record, challenged the decision of the Administrative Appeals Tribunal to affirm the Minister’s decision not to revoke the cancellation of his visa. The Tribunal found that the applicant did not pass the character test due to his criminal history and considered whether there was another reason to revoke the cancellation under s 501CA of the Migration Act. The Tribunal concluded that the decision should stand, taking into account Direction No 65, which outlines factors to be considered in such decisions.

The applicant argued that the Tribunal failed to consider several claims and pieces of evidence, which he contended would have affected the decision. These included the impact on his minor children, his relationship with his aunt, and the hardship it would cause his mother. The applicant asserted that these omissions constituted a failure to provide procedural fairness and a failure to carry out the statutory task. The court was required to determine whether the Tribunal’s decision was legally sound and whether it appropriately considered the relevant arguments and evidence.

The court examined the principles established in Dranichnikov v Minister for Immigration and Multicultural Affairs and NABE v Minister for Immigration and Multicultural and Indigenous Affairs, which hold that a failure to address a substantial, clearly articulated argument relying on established facts can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction. The court noted that the Tribunal had considered the primary considerations set out in Direction 65, particularly the protection of the Australian community and the best interests of minor children. The court found that the Tribunal adequately addressed the applicant’s claims and evidence, and that the decision was consistent with the statutory requirements. Consequently, the application for judicial review was dismissed, and the applicant was ordered to pay the Minister’s costs.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3. Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

4. In the absence of any agreement:

(a) within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b) within a further 14 days, the applicant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS); and

(c) in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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 that follow, the applicant’s grounds are not made out.Background facts The applicant 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 applicant 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 applicant to three years’ imprisonment. On 16 September 2015, a delegate of the Minister cancelled the applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth). The delegate found that the applicant did not pass the character test because he had a substantial criminal record. On 22 September 2015, the applicant made representations to the Minister about revocation of the visa cancellation (Court Book pages 66-70). He subsequently lodged further materials in support of those representations (see, eg, Court Book pages 71-127, 152-169). On 3 January 2018, another delegate of the Minister decided, pursuant to s 501CA, not to revoke the cancellation of the applicant’s visa. The applicant applied to the Tribunal for review of the non-revocation decision. The applicant and his representative lodged various materials with the Tribunal. These included witness statements of the applicant, his mother, his aunt, his fiancée, and a friend. The applicant’s solicitors filed a statement of facts, issues and contentions. On 16 March 2018, the Tribunal conducted a hearing. The applicant was represented by counsel at the hearing. The first respondent was represented by a solicitor. The applicant 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 applicant 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:(a)protection of the Australian community;(b)the best interests of minor children in Australia affected by the decision; and(c)expectations of the Australian community.

Evidence

Evidence Before The Court

Full text does not contain this section.

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 applicant 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:(a)protection of the Australian community;(b)the best interests of minor children in Australia affected by the decision; and(c)expectations of the Australian community. At [22], the Tribunal noted that the “other considerations” set out in Direction 65 were:(a)international non-refoulement obligations;(b)strength, nature and duration of ties;(c)impact on Australian business interests;(d)impact on victims; and(e)extent of impediments if removed. The Tribunal summarised the applicant’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 applicant’s counsel had submitted that: the applicant had two minor Australian children; until he separated from their mother in 2011, the applicant had been highly involved in their lives; and the applicant 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 applicant’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 applicant’s conduct. The Tribunal stated that: it was clear that the applicant had a long history of serious criminal conduct; the applicant had been warned by the Department of Immigration and Border Protection about his criminal conduct, but he had disregarded the warning; the applicant 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 applicant, the Judge noted that the applicant 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 applicant 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 applicant’s drug addiction and the offending and aspects of Direction 65, the Tribunal stated that the applicant’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 applicant’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

The material before the Court on the hearing of the application comprised a Court Book and an affidavit of Patrick O’Connor, the solicitor for the applicant, annexing the transcript of the hearing before the Tribunal.Consideration The applicant contends, in each of his three grounds, that the Tribunal failed to take into account a claim or evidence and thereby failed to accord the applicant procedural fairness or failed to carry out the required statutory task. The applicant contends that the Tribunal failed to take into account the following claims or evidence (setting these out in the order addressed in oral submissions):(a)in relation to the best interests of the applicant’s minor children:(i)a contention that the applicant would be better able to provide financial support for the children if he remained in Australia (and evidence relating to this contention); and(ii)a contention that the children would not be able to have any contact with the applicant’s extended family if the cancellation decision were not revoked (and evidence relating to this contention);(b)in relation to the strength, nature and duration of the applicant’s ties in Australia, the applicant’s relationship with his aunt; and(c)a contention that the applicant’s departure from Australia would have a harsh impact on his mother. The statutory scheme applicable to the decision of the Tribunal included, in particular, ss 501 and 501CA of the Migration Act. The applicant’s visa was cancelled under s 501(3A) on the basis that he had a substantial criminal record. No issue arises in relation to the cancellation of the applicant’s visa under that provision. Section 501CA deals with revocation of a decision to cancel a person’s visa under s 501(3A). Section 501CA(3) provides that, as soon as practicable after making the cancellation decision, the Minister must: (a) give the person a written notice that sets out the cancellation decision and particulars of the “relevant information” (an expression defined in s 501CA(2)); 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 cancellation decision. Section 501CA(4) provides that the Minister may revoke the cancellation decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied that the person passes the character test or “that there is another reason why the original decision should be revoked”. In the present case, a delegate of the Minister (rather than the Minister personally) made the decision under s 501CA(4) not to revoke the cancellation decision. Accordingly, it was open to the applicant to apply to the Tribunal for review of the non-revocation decision: see s 500(1)(ba). In conducting the review of the non-revocation decision, the Tribunal was required to comply with Direction 65: see s 499(2A). The applicant relies on the principles discussed in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE (No 2)). In NABE (No 2), the Full Court of this Court said, at [55], that where the Tribunal fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” (quoting Dranichnikov at [24]), that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction. The Full Court stated that the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. (See also NABE (No 2) at [58], [61] and [63]). The principle discussed in Dranichnikov and NABE (No 2) has been applied in the context of s 501CA(4): see Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [17], [25] and [30] per Rangiah J with whom Reeves J generally agreed (at [3]). I accept that the principle is applicable to the review conducted by the Tribunal in the present case. I did not understand counsel for the respondent to contest this.