Tanielu v Minister for Immigration and Border Protection
[2014] FCA 673
Citation:
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Parties:
MICHAEL TANIELU v MINISTER FOR IMMIGRATION AND BORDER PROTECTION
File number:
VID 99 of 2014
Judge:
MORTIMER J
Date of judgment:
4 July 2014
Catchwords:
MIGRATION – Application for review of decision made by Minister personally to cancel applicant’s visa pursuant to s 501(2) of the Migration Act 1958 (Cth) – whether applicant denied procedural fairness because departmental officer led him to believe the decision would be made by a delegate rather than the Minister – whether applicant led to believe Department would contact victim of applicant’s offending – whether denial of procedural fairness – whether Minister failed properly to assess the likelihood of the applicant reoffending – whether risk of harm to Australian community a relevant consideration in s 501(2) – applicant denied procedural fairness – Minister failed to take into account relevant consideration – application granted with costs – decision of Minister to cancel visa quashed.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Case
[2014] FCA 673
Decision Date
CaseChat Overview and Summary
The applicant, who was a Samoan national living in Australia, sought judicial review of the Minister for Immigration and Border Protection’s decision to cancel his visa. The applicant, who had been married with four children, was convicted of sexual offences involving a child and sentenced to a term of imprisonment, part of which he served. Following his criminal convictions, the Minister exercised his power under section 501(2) of the Migration Act 1958 (Cth) to cancel the applicant's visa, which the applicant now sought to have quashed by this Court.
The primary legal issue before the Court was whether the Minister's decision to cancel the applicant's visa was affected by jurisdictional error. The Court had to determine if the Minister's reasoning process was in accordance with the statutory requirements and if the Minister had considered all the material, including the likelihood of the applicant reoffending, before making his decision. The Court examined the process by which the decision was made and the content of the Minister's reasoning, to ascertain whether the decision was lawful and properly exercised.
The Court found that the Minister's decision to cancel the applicant's visa was indeed affected by jurisdictional error. The Court noted that the Minister's reasoning process was not in accordance with the statutory requirements, as the Minister failed to consider the likelihood of the applicant reoffending. Additionally, the Court identified that the applicant had been deprived of the possibility of a successful outcome due to the Minister's failure to properly consider all the material before making the decision. Consequently, the Court concluded that the Minister's decision was unlawful and must be quashed.
As a result of the Court's determination, the Minister's decision to cancel the applicant's visa was quashed. The Court also noted that the applicant's legal representation was instrumental in the proceedings and expressed gratitude to the counsel who assisted in the case. Furthermore, the Court indicated that the applicant's counsel should be entitled to a costs order pursuant to the Federal Court Rules.
Orders
Orders of the court
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Background
Background to the litigation
For the reasons set out below, the Minister’s decision is affected by jurisdictional error and must be quashed.FACTUAL BACKGROUND, EVIDENCE AND FINDINGS The following matters are based on the evidence before the Minister and reproduced in the court book, together with material adduced in a supplementary court book and an affidavit filed on behalf of the applicant. In the supplementary court book was a series of agreed documents, including email correspondence, disclosing communications between various departmental officials about the process by which the cancellation decision came to be made by the Minister personally and the timing of the cancellation decision by the Minister. At the hearing, counsel for the applicant sought leave to rely on a further affidavit by the applicant, which deposed to two substantive matters: first, when and how the applicant became aware that the cancellation decision was to be made by the Minister personally, and second, what the applicant was told, and understood, about whether the Department, or someone on behalf of the decision-maker, would be speaking to the mother of the applicant’s fourth child about the possible cancellation of his visa. No objection was taken by the Minister to the reading of the affidavit and there was no cross-examination of the applicant about its contents. The applicant moved to New Zealand from Samoa in 1998, and is qualified as a fitter and turner. He married in 2002 and has three children from that marriage who were aged seven, six and two years old at the time of the Minister’s decision. His wife and children are Australian citizens. He was estranged from his wife for some time from 2010 but at the time of the cancellation decision they had reconciled. His wife has spina bifida and receives a disability pension. He is also father to a fourth child, who was born to the principal victim of the sexual offending. That child, who was aged one at the time of the Minister’s decision, is also an Australian citizen. On 21 December 2011, the applicant was convicted in the Queensland Magistrates Court of some property offences he committed during August and September 2011. For these offences, the applicant received a sentence of 12 months’ imprisonment, wholly suspended for three years. On 19 July 2013, the applicant was convicted in the District Court of Queensland of a series of sexual offences, including nine counts of carnal knowledge of a child under 16 years of age and one count of indecent treatment of a child under 16 relating to one victim and one count of indecent treatment of a child under 16 relating to a second victim. These offences occurred between June 2010 and May 2011. On the nine counts of carnal knowledge, the applicant was sentenced to two years’ imprisonment, to be suspended for two years after the applicant served six months’ imprisonment. On the two counts of indecent treatment, he was sentenced to nine months’ imprisonment, to be served concurrently, and to be suspended for 12 months after serving three months’ imprisonment. The total period the applicant spent in prison for these offences was therefore six months.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Where the Minister’s reasoning process is known and disclosed, if the requirements of s 501 had been observed and the Minister had considered the likelihood on all the material of the applicant reoffending, in my opinion it can be said the applicant has been deprived of the possibility of a successful outcome. see Lu 141 FCR 346; [2004] FCAFC 340 at [28]-[30] per Black CJ, see also Sackville J at [64]; NBNB 138 ALD 455; [2014] FCAFC 39 at [4]-[5].CONCLUSION On the two bases I have identified, the Minister’s decision to cancel the applicant’s visa is affected by jurisdictional error and must be set aside.THE APPLICANT’S LEGAL REPRESENTATION The Court was significantly assisted by, and extends its gratitude to, counsel who agreed to take a referral to advise and appear for the applicant, pursuant to r 4.12 of the Federal Court Rules 2011 (Cth). The applicant’s counsel should both be entitled to a costs order pursuant to r 4.19 of the Federal Court Rules.
Ratio Decidendi
Legal Principle Established
Between December 2011 and July 2013 the applicant was convicted and sentenced in respect of property and sexual offences. For the latter offences he was committed to prison for some of the period of his sentence. His visa was cancelled by the Minister personally under s 501(2) of the Migration Act 1958 (Cth) (Migration Act) and in this Court he seeks judicial review of that decision. For the reasons set out below, the Minister’s decision is affected by jurisdictional error and must be quashed.FACTUAL BACKGROUND, EVIDENCE AND FINDINGS The following matters are based on the evidence before the Minister and reproduced in the court book, together with material adduced in a supplementary court book and an affidavit filed on behalf of the applicant. In the supplementary court book was a series of agreed documents, including email correspondence, disclosing communications between various departmental officials about the process by which the cancellation decision came to be made by the Minister personally and the timing of the cancellation decision by the Minister. At the hearing, counsel for the applicant sought leave to rely on a further affidavit by the applicant, which deposed to two substantive matters: first, when and how the applicant became aware that the cancellation decision was to be made by the Minister personally, and second, what the applicant was told, and understood, about whether the Department, or someone on behalf of the decision-maker, would be speaking to the mother of the applicant’s fourth child about the possible cancellation of his visa. No objection was taken by the Minister to the reading of the affidavit and there was no cross-examination of the applicant about its contents. The applicant moved to New Zealand from Samoa in 1998, and is qualified as a fitter and turner. He married in 2002 and has three children from that marriage who were aged seven, six and two years old at the time of the Minister’s decision. His wife and children are Australian citizens. He was estranged from his wife for some time from 2010 but at the time of the cancellation decision they had reconciled. His wife has spina bifida and receives a disability pension. He is also father to a fourth child, who was born to the principal victim of the sexual offending. That child, who was aged one at the time of the Minister’s decision, is also an Australian citizen. On 21 December 2011, the applicant was convicted in the Queensland Magistrates Court of some property offences he committed during August and September 2011. For these offences, the applicant received a sentence of 12 months’ imprisonment, wholly suspended for three years. On 19 July 2013, the applicant was convicted in the District Court of Queensland of a series of sexual offences, including nine counts of carnal knowledge of a child under 16 years of age and one count of indecent treatment of a child under 16 relating to one victim and one count of indecent treatment of a child under 16 relating to a second victim. These offences occurred between June 2010 and May 2011. On the nine counts of carnal knowledge, the applicant was sentenced to two years’ imprisonment, to be suspended for two years after the applicant served six months’ imprisonment. On the two counts of indecent treatment, he was sentenced to nine months’ imprisonment, to be served concurrently, and to be suspended for 12 months after serving three months’ imprisonment. The total period the applicant spent in prison for these offences was therefore six months.