Tahere v Minister for Home Affairs
[2019] FCA 814
•31 May 2019
FEDERAL COURT OF AUSTRALIA
Tahere v Minister for Home Affairs [2019] FCA 814
Appeal from: Tahere v Minister for Home Affairs [2018] FCCA 3505 File number: NSD 2189 of 2018 Judge: BANKS-SMITH J Date of judgment: 31 May 2019 Catchwords: MIGRATION - appeal from decision of Federal Circuit Court of Australia dismissing application for judicial review - where delegate refused New Zealand citizen a special category visa - where appellant previously removed from Australia on request - whether appellant a behaviour concern non‑citizen Legislation: Migration Act 1958 (Cth) ss 5(1), 32, 82(8), 198, 199, 476, 501(2)
Migration Regulations 1994 (Cth) Schedule 2 cl 444.51
Date of hearing: 8 May 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 36 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr M Cleary Solicitor for the First Respondent: Mills Oakley Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 2189 of 2018 BETWEEN: LAVINIA ANN TAHERE
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BANKS-SMITH J
DATE OF ORDER:
31 MAY 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent's costs to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BANKS-SMITH J:
In March 2018 a delegate of the Minister for Home Affairs declined to grant the appellant a Special Category (Temporary) (Class TY) visa (Special Category Visa) on the basis that she was a 'behaviour concern non‑citizen' and so failed to meet the criterion in s 32(2)(a)(ii) of the Migration Act 1958 (Cth) (Act) for the grant of such a visa.
The Administrative Appeals Tribunal dismissed an application for review on the basis that it did not have jurisdiction. The appellant applied to the Federal Circuit Court of Australia for review of the Tribunal's decision. The primary judge dismissed the application for judicial review, having found that the Tribunal was correct to find that it lacked jurisdiction. The primary judge concluded that the delegate's decision did not fall within the definition of a 'primary decision' in s 476(4) of the Act and accordingly the Federal Circuit Court had jurisdiction under s 476(1) to hear and determine the application for review of the delegate's decision: Tahere v Minister for Home Affairs [2018] FCCA 3505 at [21]‑[22].
At a second hearing, the primary judge proceeded to consider the grounds upon which the appellant relied with respect to the decision of the delegate, and found there was no jurisdictional error (at [24]‑[30]).
The appellant now appeals to this Court. The appellant does not take issue with the decision that the Tribunal lacked jurisdiction, and accepted in her written submissions that the Federal Circuit Court had jurisdiction to determine the review. The appeal is from the primary judge's finding that no jurisdictional error on the part of the delegate was disclosed.
Factual background
The appellant is a citizen of New Zealand who resided in Australia as a lawful non‑citizen from about 1987. Prior to 2 April 2015 she held a special category (subclass 444) visa, which permitted her to remain in Australia while a New Zealand citizen (cl 444.511 of Schedule 2 of the Migration Regulations 1994 (Cth)).
In March 2015 her then partner was removed from Australia to New Zealand as an unlawful non‑citizen.
On 16 March 2015 the appellant signed a Department of Immigration and Border Protection form headed 'Request by Partner for Removal of Self (And Dependants)'. The form set out relevantly, the following:
My spouse/de facto partner [redacted] (name of removee) is an unlawful non-citizen to be removed from Australia under s198 of the Migration Act 1958 (the Act).
As a
citizen/lawful non-citizen (delete as appropriate), I request my removal from Australia under s199(1).…
The form includes the words:
I acknowledge the below in relation to me (and my dependent child/ren, if applicable):
Below that acknowledgment is a list of matters with boxes marked 'yes' or 'no'. The appellant circled 'yes' next to the following item:
I am aware of the following consequences of the removal under s 199:
…
I (and my dependent child/ren, if applicable) will become a "behaviour concern noncitizen" under s 5(1)(d) of the Act and this may affect my/their future re‑entry rights to Australia (only applicable for New Zealand citizens).
The appellant also circled 'yes' next to an acknowledgment that she understood that if she did not pay for the tickets to leave Australia, she and her partner would have a debt to the Australian Government for the cost of the tickets.
The appellant also circled a 'yes' on the form acknowledging that she had read or had explained to her the information in the form.
The appellant was removed in accordance with that request.
The appellant's visa ceased to be in effect when she left Australia on 2 April 2015 by operation of s 82(8) of the Act, which provides that a visa to remain in but not re‑enter Australia ceases to be in effect if the holder leaves Australia. Accordingly, in order to re‑enter and remain in Australia the appellant required a new visa.
In about August 2015 the appellant attempted to return to Australia and was turned away at Sydney airport and told that she needed to go to the Australian Consulate in New Zealand and seek a visa before trying to re‑enter Australia (and I note from the transcript that the primary judge urged the appellant to consider that course again). She was notified at that time that her application for a Special Category Visa was refused on the basis that she was a behaviour concern non‑citizen (letter dated 24 August 2015).
On 16 March 2018 the appellant returned to Australia. Upon arrival at the airport, she provided her passport and incoming passenger card at immigration clearance. In these circumstances, she was taken to have applied for a Special Category Visa.
Later that day, a delegate of the Minister refused the application for a Special Category Visa. The delegate found that the appellant was a 'behaviour concern non‑citizen' under s 5(1) of the Act on the basis that she had previously been removed or deported from Australia, and on that basis refused the application under s 32(2)(a)(ii) of the Act.
The appellant was transferred to Villawood Immigration Detention Centre in Sydney pending her removal from Australia.
The key document recording the interview with the Department of Immigration and Border Patrol staff of 16 March 2018 and the delegate's decision is the 'Inspectors Report' dated 24 April 2018 contained in the Court Book (Inspectors Report).
Legislative context
Special Category Visas are addressed by s 32 of the Act. It relevantly provides:
Special category visas
(1)There is a class of temporary visas to be known as special category visas.
(2)A criterion for a special category visa is that the Minister is satisfied the applicant is:
(a) a non-citizen:
(i)who is a New Zealand citizen and holds, and has presented to an officer or an authorised system, a New Zealand passport that is in force; and
(ii)is neither a behaviour concern non-citizen nor a health concern non-citizen; …
A 'behaviour concern non‑citizen' is defined in s 5(1) of the Act as follows:
behaviour concern non-citizen means a non-citizen who:
(a)has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or
(b)has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:
(i)any period concurrent with part of a longer period is disregarded; and
(ii)any periods not disregarded that are concurrent with each other are treated as one period;
whether or not:
(iii)the crimes were of the same kind; or
(iv)the crimes were committed at the same time; or
(v)the convictions were at the same time; or
(vi)the sentencings were at the same time; or
(vii)the periods were consecutive; or
(c) has been charged with a crime and either:
(i)found guilty of having committed the crime while of unsound mind; or
(ii)acquitted on the ground that the crime was committed while the person was of unsound mind;
(d)has been removed or deported from Australia or removed or deported from another country; or
(e)has been excluded from another country in prescribed circumstances;
where sentenced to imprisonment includes ordered to be confined in a corrective institution.
It is (d) of that definition - a non-citizen who has been removed or deported from Australia - that is of relevance to this appeal. The word 'remove' is also defined in s 5(1), and means 'remove from Australia'.
In this case, removal was under s 199, which provides:
Dependants of removed non-citizens
(1) If:
(a) an officer removes, or is about to remove, an unlawful non-citizen; and
(b)the spouse or de facto partner of that non-citizen requests an officer to also be removed from Australia;
an officer may remove the spouse or de facto partner as soon as reasonably practicable.
(2) If:
(a)an officer removes, or is about to remove an unlawful non-citizen; and
(b)the spouse or de facto partner of that non-citizen requests an officer to also be removed from Australia with a dependent child or children of that non-citizen;
an officer may remove the spouse or de facto partner and dependent child or children as soon as reasonably practicable.
(3) If:
(a)an officer removes, or is about to remove, an unlawful non-citizen; and
(b)that non-citizen requests an officer to remove a dependent child or children of the non-citizen from Australia;
an officer may remove the dependent child or children as soon as reasonably practicable.
(4)In paragraphs (1)(a), (2)(a) and (3)(a), a reference to remove includes a reference to take to a regional processing country.
The Federal Circuit Court decision
The appellant relevantly raised two grounds of review before the primary judge:
(1)The delegate failed to fulfil her statutory task under s 501(2) of the Act in that she did not consider that the appellant did not have a substantial criminal record and was not serving a full-time custodial sentence.
(2)The delegate failed to lawfully consider the 'behaviour concern' posed by the appellant, as she relied on supposition rather than evidence of behaviour concerns and did not take into account evidence that the appellant had lived in Australia since 1987 and had five children in Australia, including a 13‑year‑old minor child.
The primary judge found that the first ground referred to a subsection that does not apply in this case: s 501(2) concerns a decision to cancel a visa. The delegate's decision in the appellant's case was a decision not to grant a visa in circumstances where the appellant did not presently have one.
As to the second ground, the primary judge found that the matters referred to were not matters which the delegate was required to consider under the definition of 'behaviour concern non‑citizen'. Rather, in the circumstances, the only matter that was relevant for the delegate to consider was the fact that the appellant had previously been removed from Australia. As that fact was established, there was no jurisdictional error.
Leave to amend grounds of appeal
The appellant is not legally represented in this appeal. In her notice of appeal, she sought leave to provide her grounds of appeal at a later date. No amended grounds were filed, but the appellant filed useful written submissions from which it was clear that she contends that the primary judge erred in finding that she fell within the definition of a 'behaviour concern non‑citizen'. The error, it was contended, was the assumption that she had been validly removed or deported within the meaning of that definition when, it was submitted, there was no lawful removal as the Department was not empowered to remove her from Australia.
The appeal proceeded on the basis that such contention was treated as the appellant's ground of appeal.
The appellant submitted that the sole legislative source of a power to remove her from Australia is s 198 of the Act ('Removal from Australia of unlawful non-citizens'), and that no part of that provision authorised her removal as she was at the time of her removal in April 2015 a lawful non-citizen. The appellant submitted that the reference to 'removed' in the definition must be a reference to a lawful removal and so she does not fall within the definition of a 'behaviour concern non‑citizen'.
The difficulty with the appellant's argument is that it overlooks s 199 of the Act, which expressly empowers an officer to remove a spouse or de facto partner upon a request to be removed. As s 199 of the Act provides the power of removal, the question of lawfulness raised by the appellant in the ground of appeal does not arise.
The question for the delegate was whether she was satisfied that the definition of 'behaviour concern non‑citizen' was met and no error is disclosed by the manner in which that question was answered. One can understand that from the appellant's perspective the reference to 'behaviour' might suggest that some consideration of her own behaviour was required, but that is not the manner in which the legislation operates. The definition on its face encompasses a person who has been removed from Australia under s 199 at their request. There is no indication that such meaning is to be displaced with respect to removal under s 199. The question is whether the delegate was satisfied that the appellant fell within the definition and no error is disclosed in the manner in which the delegate satisfied herself of that matter, and no error on the part of the primary judge is accordingly disclosed.
I note that before the delegate the appellant complained that she did not understand the significance of what she was signing and that she would not have signed it had she known of the effect.
When the appellant arrived on 16 March 2018 she was interviewed by a delegate. The Inspectors Report states the following:
PAX WAS MOVED FROM THE AREA OUTSIDE THE BORDER CLEARANCE OFFICE TO THE AIR LOCK FOR PRIVACY. SHE PROVIDED THE FOLLOWING INFORMATION PRIOR TO BEING PLACED IN THE INTERVIEW ROOM:
•SHE HAD BEEN RESIDING IN AUSTRALIA.
•HER CHILDREN RESIDE IN AUSTRALIA.
•A COUPLE OF YEARS AGO HER PARTNER, [redacted], WAS BEING DEPORTED FROM AUSTRALIA.
•TO ENSURE HE WAS STABLE AND HAD A PLACE TO STAY IN NEW ZEALAND SHE DECIDED TO GO WITH HIM.
•SHE SIGNED A DOCUMENT SO THAT SHE COULD DEPART WITH HIM.
•SHE HAD THE INTENTION OF RETURNING TO AUSTRALIA TO BE WITH HER CHILDREN AND CONTINUE LIVING HERE.
•AT THE DETENTION CENTRE SHE WAS DEALING WITH A PERSON WHOSE LAST NAME WAS MORRISON AND SHE ASKED HIM WHETHER SIGNING THE DOCUMENT WOULD AFFECT HER RIGHT TO COME BACK TO AUSTRALIA AND HE SAID "POSSIBLY".
•SHE DID NOT FULLY UNDERSTAND THE CONSEQUENCES OF SIGNING THE REQUEST FOR REMOVAL AND IF SHE HAD KNOWN THAT HER REMOVAL WOULD MAKE HER INELIGIBLE FOR AN SCV SHE WOULD NOT HAVE REQUESTED REMOVAL.
•SHE IS NO LONGER IN A RELATIONSHIP WITH [redacted].
•SHE RETURNED TO AUSTRALIA IN 2015 AFTER HER REMOVAL AND SHE WAS SPOKEN TO ON ARRIVAL AND DENIED ENTRY TO AUSTRALIA.
•SHE HAS RETURNED TO AUSTRALIA TO VISIT HER CHILDREN FOR ABOUT SIX MONTHS AT THIS STAGE.
According to the Inspectors Report, after that interview the appellant was moved to an interview room and declined to participate further in an interview. The delegate then considered the application and informed the appellant that she was refused entry. The Inspectors Report states that after the appellant was told of the delegate's decision, the appellant told the delegate that at the time of her removal she felt threatened by staff and was told that she had no option but to get on the plane. The appellant repeated that generalised complaint before the primary judge and before me, but there was no evidence to support such claim. As noted above, the appellant had indicated in the Request for Removal that she was aware of the consequences of the removal and that it may affect her future re-entry rights and that she had read and had explained to her the information in the form.
Whether or not the appellant understood the significance of requesting removal was not relevant to the task undertaken by the delegate: that is, the task of satisfying herself that (relevantly) the appellant was not a behaviour concern non-citizen. There is no evidence that the delegate erred in undertaking that task. The delegate ascertained that the appellant had been removed under s 199 of the Act and applied the relevant definition, as required for the purpose of considering whether the criterion in s 32(2)(a)(ii) of the Act for a special category visa was met. Accordingly, no error on the delegate's part is disclosed and the primary judge did not err in dismissing the review application.
Conclusion
The manner in which the definition of behaviour concern non-citizen operates in the case of a spouse or de facto partner or dependents who have been removed by request has the potential to bring about harsh results. One can well understand why a spouse or de facto partner may wish to accompany their unlawful non-citizen partner who is being removed or deported (together, where applicable, with any dependent children), particularly where, as in this case, the airfares for their removal are paid for by the Department. The behaviour that has led to their partner being removed or deported is not their own behaviour, but they are from that time and as a result of their own removal request classified as 'behaviour concern non-citizens'.
However, it was the role of the delegate to apply the legislation and as no error is disclosed on the delegate's part or that of the primary judge, it follows that the appeal must be dismissed.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith. Associate:
Dated: 31 May 2019
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