Tapara v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCA 1833
•15 December 2020
FEDERAL COURT OF AUSTRALIA
Tapara v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1833
File numbers: NSD 1167 of 2020 Judgment of: LEE J Date of judgment: 15 December 2020 Catchwords: MIGRATION – cancellation of visa under s 501(3A) of Migration Act 1958 (Cth) – application for review of a decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs declining to revoke the cancellation under s 501CA(4) – self-represented applicant – grounds of review not particularised – alleged denial of procedural fairness during hearing in Administrative Appeals Tribunal – no demonstrable error – application dismissed Legislation: Migration Act 1958 (Cth) ss 476A(1)(b), 501(3A), 501CA(4) Cases cited: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 25 Date of hearing: 15 December 2020 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr N Swan Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1167 of 2020 BETWEEN: PAUL ANTHONY TAPARA
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
LEE J
DATE OF ORDER:
15 DECEMBER 2020
THE COURT ORDERS THAT:
1.The application be dismissed with costs.
2.Order 1 not take effect until publication of the reasons for judgment of Justice Lee.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the Transcript)LEE J:
The applicant Mr Tapara is a New Zealander born in 1962 who arrived in Australia at the age of 17.
The first respondent (Minister) made a decision pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (Act) not to revoke the cancellation of Mr Tapara’s Absorbed Person Visa (Visa). Later, the Administrative Appeals Tribunal (Tribunal) affirmed the decision of the delegate and it is against that decision that Mr Tapara seeks judicial review pursuant to s 476A(1)(b) of the Act.
The matter has a somewhat lengthy procedural history. Following the decision of the delegate of the Minister to cancel the Visa in February 2019, Mr Tapara requested that the Minister revoke the cancellation. In December that year, a delegate of the Minister refused to revoke the cancellation decision which caused Mr Tapara to seek review of the delegate’s decision by the Tribunal.
An earlier decision of the Tribunal, on 26 February 2020, affirmed the delegate’s decision but that decision was affected by jurisdictional error. On 4 May 2020, this Court, by consent, set aside that decision. It was on 27 August 2020 that the Tribunal, constituted by a different member, heard the matter again and the decision the subject of this application for judicial review was made on 30 September 2020 (Relevant Decision).
Mr Tapara is not represented. I am aware that efforts were made by the Court, including at my direction by my Associate, to provide pro bono legal representation for Mr Tapara. For reasons that are unnecessary to go into for the purposes of the determination of this application, pro bono counsel did not accept the referral.
In the absence of an application for an adjournment, prior to this hearing I gave consideration as to whether the matter should be adjourned to see whether it would be worthwhile to engage alternative pro bono counsel. Ultimately, in circumstances where Mr Tapara is currently in detention and in the light of the lengthy procedural history, I concluded that it would be consistent with the overarching purpose for the determination of this matter not to be further delayed.
By originating application, Mr Tapara seeks certiorari to quash the Relevant Decision and, in support of that relief, two grounds of review are stated. Perhaps understandably in the circumstances, those grounds are not particularised and the Minister has not been served by Mr Tapara with any submissions or other explanation of the way in which they are put. Having said this, Mr Tapara did, during the course of oral submissions, expand upon the second ground.
The two grounds identified are as follows:
(1)Ground 1: “Judicial error”.
(2)Ground 2: “Not adopting a fair process in making decision”.
Ground 1 can be dealt with shortly. It is unclear that there is any suggestion that this is distinguished from a generalised assertion that the Tribunal had engaged in jurisdictional error.
It seems to me that the only real complaint made is that articulated by ground 2. Needless to say, if the Tribunal denied Mr Tapara procedural fairness and, as a result, Mr Tapara suffered some practical injustice in that such denial was material to the Tribunal’s decision, then jurisdictional error will result: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (at 443 [38] per Bell, Gageler and Keane JJ).
When asked to elaborate upon any unfairness as to the process in relation to the making of the Relevant Decision, Mr Tapara directed my attention to the transcript of the hearing before the Senior Member which led to that decision. Following a tender of other material, the Senior Member said the following (at T3.6–11):
… Now, I was going to ask both of you I don’t intend to recanvas a lot of material, Mr Tapara, that you’ve already covered in your evidence because I have the transcript of that in front of me. I assume that you would like to give evidence and I will call you and swear you in shortly and perhaps ask you some questions and Ms Ng will have some questions …
After some further discussion, Mr Tapara was called as a witness, and the following exchange occurred (at T4.30–T5.4):
SENIOR MEMBER: Thank you. Mr Tapara, you’ve got the bundle of documents in front of you.
WITNESS: Yes.
SENIOR MEMBER: Do you have any difficulty reading or writing? Have you been able to read those?
WITNESS: Yes. Yes, I can read them now.
SENIOR MEMBER: Okay. Now, in that case have you read the transcript of the previous hearing?
WITNESS: Yes.
SENIOR MEMBER: Okay. And I know you’ve made some submissions on that. Is there anything you wish to say about that transcript or are you happy to adopt that as your evidence?
WITNESS: I would be happy to adopt it, yes.
SENIOR MEMBER: Okay, thank you.
…
Thereafter recorded from pages 5 to 19 of the transcript was a series of exchanges between the Senior Member and Mr Tapara which constituted his evidence-in-chief before the solicitor for the Minister, Ms Ng, commenced her cross-examination (at T19.19).
It seems to me that a fair review of that material indicates that Mr Tapara was given every opportunity by the Senior Member to clarify anything he wished to say, not only about the transcript of his earlier evidence, but also relevant to the decision the Senior Member was to make.
I do not think it is arguable that there was a denial of procedural fairness in such circumstances.
Given that Mr Tapara is unrepresented, I have reviewed the material in some depth. The original decision of the delegate to cancel the visa, pursuant to s 501(3A) of the Act, was on the basis that the delegate was satisfied that Mr Tapara did not pass the character test on account of an earlier 12 month sentence of imprisonment that he had received on 26 November 2014 for driving whilst his licence was suspended. The delegate was also satisfied that Mr Tapara was, at the time of his decision, serving a sentence of imprisonment on a full-time basis.
It might be thought odd that a 12 month sentence of imprisonment had been imposed for driving on a road while his licence was suspended, but the true complexion of what occurred can only be gleaned by reviewing the previous criminal history of Mr Tapara. He has more than 50 convictions in Australia for a range of drug, assault, larceny and serious driving offences. Moreover, he was warned of the possibility of visa cancellation of account of his offending at least twice and, in 2016, his visa was cancelled on account of his substantial criminal record, but that cancellation was later revoked by the Minister.
Even if the grounds of jurisdictional error had been framed in some different way, there is nothing that I have seen in the material which would lead me to consider that there is anything about the Relevant Decision which demonstrates error.
In the circumstances I have recounted it is hardly surprising that the Tribunal found that the custodial sentences imposed on Mr Tapara were “significant and show the gravity of his offending”, noting that in 2019 the sentencing magistrate had described Mr Tapara’s driving record as “one of the most appalling records I think I have ever seen”, which showed an abject disregard for other road users.
The Tribunal rejected the notion that there had been no increase in the seriousness of Mr Tapara’s offences; he had continued to offend despite increasing fines, home detention, suspended sentences and then terms of imprisonment.
The Tribunal considered that the sentences imposed, Mr Tapara’s disregard for court orders, and the cumulative effect of approximately 16 offences of driving while disqualified, while his licence was suspended, “weigh heavily against” Mr Tapara.
Unlike the earlier Tribunal decision, the Tribunal also then considered the best interests of the three children identified by Mr Tapara as relevant, finding, in an unexceptional manner, that it would be in the best interests of each child that Mr Tapara remain in Australia and that this weighed in his favour, although only to a limited extent as he did not play a parental role in their lives.
In relation to the expectations of the Australian community, the Tribunal also had regard to the fact that Mr Tapara had been in Australia for 41 years and that this length of residence might lead to a greater degree of tolerance being afforded. But the Tribunal considered that “there comes a time when this tolerance is exhausted.”
All in all, a fair reading of the Tribunal’s decision demonstrates no jurisdictional error which would found the granting of relief.
It follows that the application must be dismissed.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee. Associate:
Dated: 15 December 2020
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