Sadruga v Minister for Immigration

[2017] FCCA 411

FEDERAL CIRCUIT COURT OF AUSTRALIA

SADRUGA v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 411

Catchwords:
MIGRATION – Cancellation of Subclass 050 Bridging E visa – criminal history of applicant – consideration of whether the Tribunal’s power to cancel the visa should be exercised – compliance with Direction 63 under s.499 – assessment of primary considerations and secondary considerations ­– whether the Tribunal applied the wrong statutory test – the Tribunal had a meaningful and intellectual engagement with the requirements of Direction 63 – the Tribunal complied with its statutory obligations – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.116(1)(g)

Migration Regulations 1994 (Cth), r.2.43(1)

Applicant: PITA RATABUA SADRUGA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2237 of 2016

Judgment of: Judge Street

Hearing date: 6 March 2017

Date of Last Submission: 6 March 2017

Delivered at: Sydney

Delivered on: 6 March 2017

REPRESENTATION

Counsel for the Applicant: Mr T Bagley

Solicitors for the Applicant: Myvisa Lawyers Pty Ltd

Solicitors for the Respondents:

Ms S He

Mills Oakley Lawyers

ORDERS

1. Leave is granted to the applicant to rely upon the amended grounds identified in Exhibit B as if set forth in the original application and the Court dispenses with the need for the filing of an amended application.

2. The application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $5,500.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2237 of 2016

PITA RATABUA SADRUGA

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”) affirming a decision of the delegate to cancel the applicant’s Subclass 050 (Bridging (General)) visa.

2. The applicant is a citizen of Fiji who arrived in Australia in February 1996 as the holder of a SC 456 Business (Short Stay) visa. The applicant applied for another short-stay visa, which was refused. He then applied for a protection visa, which was refused. The applicant then applied for Ministerial Intervention, which was finalised in July 2005. The applicant then remained unlawfully in Australia until September 2011.

3. In September 2011, the applicant lodged a partner visa application sponsored by his wife, with whom he had had three children, and was granted a Subclass 050 Bridging E visa. The applicant’s explanation for remaining unlawfully in Australia was unidentified by the Tribunal. On 11 February 2016, the applicant was issued with a notice of intention to consider a cancellation after being interviewed at the Parklea Correction Centre.

4. The notice of intention to consider cancellation specified that it was apparent that the applicant had been convicted of an offence on 17 December 2015. 

The Delegate

1. The delegate referred to the applicant having been convicted and sentenced for the offences of being armed with intent to commit an indictable offence, common assault, and contravention of an apprehended violence order at the Burwood Local Court on 17 December 2015.

2. On the same day, after taking into account the applicant’s comments, the delegate cancelled the applicant’s Subclass 050 (Bridging (General)) visa under s.116(1)(g) of the Migration Act 1958 (“the Act”). 

3. The grounds for the purposes of s.116(1)(g) of the Act are prescribed by r.2.43(1)(p) and (q) of the Migration Regulations 1994 (Cth) (“the Regulations”) and relevantly include:-

   2.43(1)(p)

   (1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:

   (p)  in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa--that the Minister is satisfied that the holder:

   (i)  has been convicted of an offence against a law of the Commonwealth, a State, a Territory or another country (other than if the conviction resulted in the holder's last substantive visa being cancelled under paragraph (oa)); or

   (ii)  has been charged with an offence against a law of the Commonwealth, a State, a Territory or another country; or

   (iii)  is the subject of a notice (however described) issued by Interpol for the purposes of locating the holder or arresting the holder; or

   (iv)  is the subject of a notice (however described) issued by Interpol for the purpose of providing either or both of a warning or intelligence that the holder:

   (A)  has committed an offence against a law of another country; and 

   (B)  is likely to commit a similar offence; or 

   (v)  is the subject of a notice (however described) issued by Interpol for the purpose of providing a warning that the holder is a serious and immediate threat to public safety;

   2.43(1)(q)

   (q)  in the case of the holder of a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa--that:

   (i)  an agency responsible for the regulation of law enforcement or security in Australia has advised the Minister that the holder is under investigation by that agency; and

(ii)  the head of that agency has advised the Minister that the holder should not hold a Subclass 050 (Bridging (General)) visa or a Subclass 051 (Bridging (Protection Visa Applicant)) visa;

The Tribunal

1. On 22 February 2016, the applicant sought a review of the delegate’s decision. After considerable requests for adjournments, the applicant attended a hearing on 13 July 2016 to give evidence and present arguments. The Tribunal in its reasons, identified in relation to the notice of intention to consider cancellation that the National Police Certificate issued by the Australian Federal Police recorded convictions as follows:-

   (a) Armed with intent to commit indictable offence – nine months’ imprisonment,

   (b) Common assault – nine months’ imprisonment,

   (c) Contravention prohibition/restriction in apprehended violence order – nine months’ imprisonment.

   (d) Destroy or damage property; stalk/intimidate intend fear physical etc harm (domestic) – on each charge convicted. Released on entering bond to be of good behaviour for 15 months.

   (e) Drive on road etc while licence suspended – fined $400. Licence disqualified for 12 months.

   (f) Contravene prohibition/restriction in apprehended violence order – convicted. No penalty imposed.

   (g) Drive on road etc while licence suspended – proved without conviction. Released on entering bond to be of good behaviour for 12 months.

2. The Tribunal noted that the delegate recorded that the applicant was convicted and sentenced for the offences in New South Wales on 17 December 2015 at the Burwood Local Court. The applicant told the Tribunal that there were other matters outstanding in relation to the use of a weapon and assault, which would be dealt with later by the Fairfield Local Court. The applicant referred to the conviction as having been based on corroboration by three people who had reason to make his life difficult.

3. The applicant referred to his father-in-law having moved into his home, that he had been married to his wife for 13 years, and that the applicant believed that the family was using him. The Tribunal referred to the applicant having been in Australia for 20 years in asserting that all his family were here; that he has nothing left in Fiji. The Tribunal referred to the applicant’s evidence that he had three daughters whom he said needed him, and that they live in a three-bedroom house with seven other people including their mother.

4. The applicant foreshadowed that he wanted to seek custody of his children but could not do that without a visa. The applicant also admitted to the Tribunal that when he was married every argument would result in the police being called. The applicant also referred to the fact that his in-laws would pressure the police. The applicant alleges that a few times in the arguments he was injured, but that the police would not believe him. The Tribunal made reference to the fact that the delegate having considered all the evidence, decided to cancel the applicant’s bridging visa under s.116(1)(g) of the Act because the delegate was satisfied that a ground existed under r.2.43(1)(p)(i) of the Regulations.

5. The Tribunal referred to the fact that at the time of the cancellation by the delegate, the applicant was incarcerated.  The Tribunal referred to the postponements of the hearings. The Tribunal referred to the evidence adduced by the applicant. The Tribunal set out the applicant’s criminal history relevantly as follows:

   With respect to his criminal history the applicant’s representative provided a summary as follows:

   ·   June 1996 – resist police, Medicare card in custody suspected of being stolen, assault police, fined

   ·   July 2006 – common assault, fined

   ·   November 2008 – drive while licence suspended, proved without conviction, good behaviour bond

   ·   January 2011 – contravene prohibition/restriction in AVO, convicted no penalty

   ·   April 2011 – drive while licence suspended, fined

   ·   January 2014 – destroy/damage property, stalk/intimidate intend fear/physical harm (domestic), convicted, good behaviour bond

   ·   December 2015 - contravene prohibition/restriction in AVO, common assault, armed with intent to commit indictable offence, imprisonment 9 months.

6. The Tribunal made reference to having asked the applicant whether his children ever witnessed domestic violence. The applicant said that the incident involving the baseball bat in 2014 was outside their home, but the applicant thought that they were asleep inside. The Tribunal asked the applicant whether the family had ever sought counselling to help deal with their conflict. The applicant indicated that the church pastor had visited the home in 2012 and 2013.

7. The Tribunal raised its concern about the ongoing conflict, and the risk of future violence, and the impact this may have on the children. The applicant asserted that there would not be any future violence because he had moved on and accepted the situation, and that if his wife decides to continue to live with the other person, he will have to call it quits. The applicant also made reference to having asked her for a divorce, but she would not do that, and that the applicant thinks that she might want to reconcile.

8. The Tribunal made express reference to raising with the applicant the best interests of the children, and the applicant contended that their best interests were that he remain in Australia. The Tribunal expressly recorded having raised its concern that the children may be exposed to further domestic violence, and its view that it is in the best interests of the children that they live in a safe, peaceful environment, free of domestic violence, noting that the applicant’s history demonstrates their previous exposure to domestic violence.

9. The applicant said that he wants that for his children as well.  The applicant said that he will do a domestic violence course proposed by the parole officer, and he will be a changed person.  The Tribunal noted that the children have always lived with their mother, and that it may be in their best interests if they have continuity of care. The Tribunal observed that in respect of any hardship caused, the applicant asserted that it would cause psychological hardship to the children if they are physically separated from him.

10. The Tribunal noted the applicant’s representatives submitted that there has been no evidence of violence perpetrated by the applicant other than within the family. The Tribunal made reference to their representative indicating that the current AVO prevents the applicant going within 100 metres of the premises of his wife and her family and made reference to the fact that the previous AVO had allowed them to live in the same domicile but had ordered him not to harm his wife.

11. The Tribunal noted that the applicant’s representative submitted that the applicant’s intention was to pursue custody of the children if the applicant was able to work. The applicant’s representative submitted that this meant that the applicant needed to not be detained as a result of the visa cancellation in order to achieve that. The Tribunal turned to the issue of whether the ground for cancellation exists. The Tribunal was satisfied that the ground for cancellation in s.116(1)(g) of the Act exists.

12. The Tribunal observed that that ground does not require mandatory cancellation under s.116(3) of the Act, and that the Tribunal must proceed to consider whether the power to cancel the visa should be exercised. Under the heading Consideration of Discretion, the Tribunal proceeded to consider whether the power to cancel the visa should be exercised. The Tribunal made reference to the requirements to comply with Direction 63 made under s.499 of the Act. The Tribunal expressly referred to this direction requiring the Tribunal to take into account specified primary and secondary considerations where relevant and that the direction specifies how these considerations are to be weighed in determining whether the bridging visa should be cancelled.

13. The Tribunal then set out the primary considerations as being as follows:-

    The primary considerations are:

    ·   the Government's view that the prescribed grounds for cancellation at r.2.43(1)(p) and (q) should be applied rigorously in that every instance of noncompliance should be considered for cancellation; and

    ·   the best interests of any children under the age of 18 in Australia who would be affected by the cancellation.”

14. The Tribunal then identified the secondary considerations as being:-

    The secondary considerations are:

    ·    the impact of a decision to· cancel the visa on the family unit;

    ·   the degree of hardship that may be experienced by the visa holder if the visa is cancelled;

    ·   the circumstances in which the ground for cancellation arose;

    ·   the possible consequences of cancellation; and

    ·   any other matter considered relevant.”

15. The Tribunal made reference to the directions stating that the primary consideration should generally be given greater weight than secondary considerations, and that one primary consideration may outweigh the other primary considerations, and information from independent and authoritative resources should generally be given greater weight than information from other sources.

16. In paragraph 50 of the Tribunal’s reasons, the Tribunal expressly referred to taking into account the primary consideration which indicates the government’s view that the prescribed grounds of cancellation at r.2.43(1)(p) of the Regulations should be applied rigorously in that every instance of non-compliance against these regulations should be considered for cancellation in accordance with the discretionary cancellation framework.

17. The Tribunal then made reference to the applicant having been convicted of three offences and that the Tribunal has given consideration to the cancellation of a visa in accordance with the terms of the ministerial direction. The Tribunal then made reference to being of the view that the 2015 convictions relate to violent crimes of a serious nature. The Tribunal noted the government’s low tolerance for criminal behaviour of any nature by non-citizens who are in Australia in the Australian community on a temporary basis and who do not hold a substantive visa. The Tribunal referred to the circumstances and seriousness of offences as being discussed below in more detail.

18. The Tribunal noted that on the basis of the applicant’s own evidence that there had been previous offences in a similar violent nature in 2006, 2011 and 2014 which have also been dealt with by the Court.  The Tribunal observed that those are matters that weigh in the favour of cancellation. 

19. The Tribunal then made reference to the other primary consideration relating to the best interests of the children under the age of 18 in Australia who would be affected by the cancellation.  The Tribunal identified there are three children and their ages.  The Tribunal accepted that the applicant had been caring for the children over the school holiday period since he had been released from prison.

20. The Tribunal noted that, according to the applicant, there were no current family orders in place. The Tribunal said that it was mindful that there is no evidence before it of any violent act committed by the applicant against the children. The Tribunal noted that it was mindful that the applicant’s children were upset by the separation during the period in which the applicant was incarcerated. The Tribunal acknowledged that the in person contact with the father would be limited if he was detained.

21. The Tribunal also observed that it was mindful that the children may have been exposed to distressing domestic violence in the past. The applicant, the Tribunal noted, claims that the children did not witness the violent incident outside the home because he thought they were asleep. The Tribunal noted however the applicant’s evidence that the police had visited his home on at least three or four occasions prior to the father in law moving into their home, and that the applicant had been charged with assault when he broke his wife’s toe.

22. The Tribunal was concerned that the applicant appears to have diminished the gravity of his conduct. The Tribunal noted that the applicant claimed his wife’s toe was broken during a playful scuffle and he also indicated that this was an incident that led to a common assault charge in 2006. The applicant attempted, the Tribunal noted, to mitigate the charges but suggested Australia’s laws in relation to assault are too harsh because the law does not allow a person to even touch on the arm.

23. The applicant also, the Tribunal noted, had rationalised arming himself with an iron bar while following his wife to work claiming it was in self-defence. The Tribunal also noted in the submission made on behalf of the applicant that it weighs in his favour that his violent conduct has only occurred within the family. The Tribunal correctly observed that it found this attitude disturbing, particularly given his family includes unborn children.

24. The Tribunal noted that when it was put to him that his positive character references were at odds with the violent nature of his offences, he argued that his family conflict had been instigated by the wife’s relatives. The Tribunal correctly observed that that did not explain his prior offences to 2010 before his father in law moved in.  The Tribunal also expressed concern about the applicant’s belief that his wife may reconcile with him. The Tribunal observed that it considered it was in the best interests of the children that they live in a safe environment free of domestic violence.

25. The Tribunal observed that it had considered the degree of hardship that may be experienced by the applicant if the visa is cancelled.  The Tribunal accepts that the applicant may suffer some emotional and psychological hardship if detained and unable to have daily contact with his children.  The Tribunal observed that, given that the children live primarily with the mother, it is not satisfied that the applicant would have daily contact with the children if he remained in the community.

26. The Tribunal referred to having considered the circumstances in which the grounds for cancellation arose. The Tribunal noted that the applicant described the incident in December 2015 where his wife was being driven to work by another person and his assertion that he was trying to make contact with his wife and that he claimed he was armed with an iron bar because he had previously been attacked himself.

1. The Tribunal noted that after hearing the applicant assert that he needed to carry the iron bar because in the past he has been bashed over the head by the wife’s relatives, the Tribunal observed that it considered the evidence regarding the nature of the offences raised serious concerns about the applicant’s approach to dealing with an issue in relation to the care and wellbeing of his children. The Tribunal observed that it regarded the circumstances of the events to be serious and concerning. The Tribunal noted that when it raised that issue with the applicant, he attempted to rationalise his conduct on the basis of his concern for the children and self–defence, although he expressed some remorse.

2. The Tribunal noted that the applicant claims he will now undertake a domestic violence course and appears to be of the view that he will be a changed person after completing the course. The Tribunal noted that it found it particularly significant that the applicant also appears to diminish his part in these incidents. The Tribunal noted that the applicant suggests his wife called the police over trivial arguments and that the Australian law prevents him from touching her at all, and that his actions have been in self–defence or as a result of play and that his wife’s family have been able to convince the police that he has been the perpetrator, when he has in fact been the victim.

3. The Tribunal expressed the view that it found it particularly concerning that the applicant has been charged in the past in 2006, 2011 and 2014 with similar offences and that he committed the offences in 2015, even after good behaviour bonds had been put in place in 2008 and in 2014 and an AVO was in place. The Tribunal correctly observed that that history was one that should be given significant weight in its consideration.  The Tribunal took into account that upon cancellation of the visa the applicant would be detained.

4. The Tribunal made reference to having had regard to all the written and oral evidence. The Tribunal made reference to, overall, having placed the most weight on a primary consideration as to the convictions.  The Tribunal also referred to the circumstances in which they arose and the best interests of the children. The Tribunal observed, based on the evidence, that the applicant and his wife had separated and the wife has entered into a relationship with another person who has had AVOs made to protect himself from the applicant. The Tribunal noted that despite the AVO, the applicant followed his wife and the other person with an iron bar. The Tribunal was of the view the applicant had attempted to diminish the gravity of the offences and convictions. The Tribunal observed that that in itself was concerning and that the nature and circumstance of the offences are serious and alarming. 

5. The Tribunal observed that the fact that there had been violence and conflict in or near the children’s home was highly concerning.  The Tribunal observed the fact that there had been subsequent incidents of violence after the applicant had been on a good behaviour bond and while AVOs were in place was disturbing. The Tribunal also made reference to putting significant weight on the best interests of the children. The Tribunal observed that it was of the view that the best interests of the children were that they live in an environment free of domestic violence.

6. The Tribunal made reference to the children having lived with their mother and taking into account the applicant’s assertions as to the overcrowded house. The Tribunal accepted that the children would suffer some hardship if their father was detained but it was not satisfied that the hardship they may suffer by his detention outweighs the Tribunal’s concerns about the harm that the children may suffer because of domestic violence.  The Tribunal expressed concern that the applicant does not appreciate the seriousness of his past offences and their impact on his children.

7. The Tribunal made reference to the applicant’s explanation as to having no immediate family in Fiji and considering himself to be an Australian. The Tribunal accepted that the applicant had spent many years in Australia but noted that he had spent almost six unlawfully in Australia.

8. The Tribunal made reference to weighing the various considerations and the Tribunal having regard to the primary consideration of low tolerance of criminal behaviour by non–citizens who are in the Australian community on a temporary basis.  The Tribunal also made reference to having regard to the violent nature of the offences and the applicant’s criminal history, ultimately leading the Tribunal to conclude that the visa should be cancelled.

9. The Tribunal also made reference to the other primary consideration that it was in the best interests of the children to live in an environment free of violence and that the Tribunal had concerns the violence of the applicant may be repeated in the future.  The Tribunal was of the view that those concerns outweighed the factors in favour of not cancelling the visa.  The Tribunal then made reference to having considered all the circumstances as a whole and concluded that the visa should be cancelled.

Before this Court

1. The grounds of the application were identified in Exhibit B which the Court permitted to be substituted for the grounds in the original application and dispensed with the need for the filing of a separate amended application. 

2. Those grounds are as follows:-

   1. The decision of the second respondent was affected by legal error in that the decision maker applied the wrong test.

   Particulars

   1. Direction 63 set out the primary considerations that inform the exercise of the direction to revoke.

   2. At [64] and [67], the second respondent mischaracterised the first primary consideration.

   3. At [67], the second respondent mischaracterised the second primary consideration

   2. The decision of the second respondent was affected by legal error in that the decision maker:

   a) acted unreasonably; or

   b) applied irrational reasoning

   in assessing the best interests of the children.

   Particulars

   1. At [65], the best interests of the children are said to be that they live in an environment free of domestic violence.

   2. The only factual basis for that concern is past violence in the family home.

   3. The applicant no longer resides in that home.

Consideration

Ground 1

1. In relation to Ground 1, Mr Bagley of counsel contended that on a careful reading of the Tribunal’s reasons, the Tribunal had incorporated into their primary consideration in the first limb a consideration of the circumstances in which the ground for cancellation arose. Mr Bagley contended that that proposition was supported by the Tribunal’s opening sentence in paragraph 64 of the Tribunal’s reasons where it referred to overall placing the most weight on the primary consideration as to the convictions and the circumstances in which they arose and the best interests of the children. Mr Bagley of counsel argued that this showed that the Tribunal had elevated the secondary consideration of the circumstances in which the ground for cancellation arose to that of a primary consideration. Mr Bagley argued that the reasoning of the Tribunal in paragraph’s 64-67 of the Tribunal’s reasons supported a focus on the secondary consideration as if it were a primary consideration.

2. The Tribunal’s reasons are not to be read with a keen eye for error.  The Tribunal correctly identified and had regard to the recognition of Direction 63. The Tribunal in its reasons after identifying Direction 63 clearly had a meaningful intellectual engagement with the requirements of the direction.

3. The Tribunal expressly addressed the first primary consideration earlier in its reasons. Paragraph 64 is not to be read with a keen eye for error.  The reference in Paragraph 64 to the primary consideration as to the convictions was on a fair reading, a reference to the first limb of the primary consideration and that the Tribunal was thereafter referring to other considerations which does not support the proposition that the Tribunal misconstrued a secondary consideration as if it was a primary consideration.

4. In relation to the second limb of the primary consideration, there is no error in the Tribunal’s reasons of the kind alleged in respect of the primary consideration. In relation to the second limb of the primary consideration, Mr Bagley alleged that the Tribunal had incorrectly confined the best interests of the children to a consideration of whether they would be free from domestic violence. Mr Bagley of counsel took the Court to the observations of the Tribunal where it considered that it would be in the best interests of the children that they live in a safe environment free of domestic violence. Mr Bagley contended that the best interests of the children had been contracted by the Tribunal in its purported compliance with the second limb of the  primary consideration.

5. This was a case where the applicant’s gravity of criminal conduct, violence, use of a weapon and breach of AVOs gave rise to an obvious requirement upon the Tribunal to focus upon whether the children could live in a safe environment free of domestic violence. The applicant’s assertions that he would undertake a course in relation to his violence and that he would be a changed man were clearly matters that the Tribunal identified and weighed against the applicant’s past history and conduct, which clearly involved violence with his wife prior to the arrival of his father in law and incidents of a violent nature in respect of which the applicant had a belief about whether they were asleep.

6. The observation in paragraph 67 of the Tribunal’s reasons that it was in the best interests of the children to live in an environment free of violence was a proper consideration and was consistent with compliance with the second limb of the primary consideration by the Tribunal in the weighing of its reasons.

7. I do not accept that the Tribunal confined itself in considering the children’s best interest so as to constitute any jurisdictional error in its application of the considerations to which it was required to have regard under Direction 63. I accept the first respondent’s submission that, in substance, Ground 1 is an endeavour to invite the Court to enter into the merits of the application. This Court has no power to make fresh findings of fact in relation to the merits.  Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to Ground 2, Mr Bagley contended that the reasoning by the Tribunal that it would be in the best interests of the children to live in an environment free of violence was the subject of unreasonableness or irrationality and that the findings made by the Tribunal in that regard were speculative.

2. The applicant’s criminal history and non–compliance with AVO orders, conduct in relation to his wife and the applicant’s failure to appreciate the gravity and significance of his conduct is clearly a basis upon which the adverse findings by the Tribunal were open and cannot be said to lack an intelligible justification. The Tribunal’s finding in relation to the best interests of the children cannot be said to be unreasonable or irrational. Ground 2 fails to make out any jurisdictional error.  

Conclusion

1. The application is dismissed.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 13 March 2017