Timu v Minister for Immigration & Border Protection

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FEDERAL COURT OF AUSTRALIA

Timu v Minister for Immigration and Border Protection [2018] FCA 214

File number: WAD 433 of 2017
Judge: BARKER J
Date of judgment: 7 March 2018
Catchwords: MIGRATION – application for judicial review of decision not to revoke decision to cancel applicant’s visa – visa cancelled on character grounds pursuant to s 501(3A) of the Migration Act 1958 (Cth) – whether Assistant Minister fell into jurisdictional error – where no jurisdictional error raised – where oral application for adjournment made in order to obtain legal representation – where pro bono certificate issued – application dismissed
Legislation:

Child Support (Assessment) Act 1989 (Cth)

Migration Act 1958 (Cth) ss 477(2), 501, 501(3A), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)

Convention on the Rights of the Child. Opened for signature 20 November 1989. 1577 UNTS 3 (entered into force 2 September 1990)
Cases cited:

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

NADR v Minister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167
Date of hearing: 1 March 2018
Registry: Western Australia
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 78
Counsel for the Applicant: The Applicant appeared by telephone
Counsel for the Respondent: Mr PR Macliver
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

WAD 433 of 2017
BETWEEN:

PORIA TIMU

Applicant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Respondent

JUDGE:

BARKER J

DATE OF ORDER:

7 MARCH 2018

THE COURT ORDERS THAT:

1.The oral application for an adjournment of the hearing be dismissed.

2.The application be dismissed.

3.The applicant pay the costs of the respondent, 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

BARKER J:

  1. The applicant, a citizen of New Zealand, applies to quash a decision of the Assistant Minister for Immigration and Border Protection not to revoke a decision of a delegate of the Minister for Immigration and Border Protection to mandatorily cancel his Australian visa.

  2. The applicant originally arrived in Australia in October 1988 aged 14 and subsequently became a Class TY Special Category (Temporary) visa holder.  He is now 43 years of age.

  3. On 15 July 2016, he was convicted of a range of offences, including assaults occasioning bodily harm in the Magistrates Court of Queensland and sentenced to 18 months imprisonment concurrently with six months non-parole.  He had a criminal record dating back to 1991.

  4. On 5 August 2016, the applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) because the delegate was satisfied the applicant did not pass the character test on the basis that he had a substantial criminal record and because he was serving a sentence of full-time imprisonment at the time of the decision (original decision).

  5. The applicant has been in immigration detention since 6 September 2016, when he was released from criminal…

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Details
Case
[2018] FCA 214
Decision Date

CaseChat Overview and Summary

Timu sought judicial review of a decision by the Assistant Minister for Immigration and Border Protection not to revoke a decision to cancel his visa on character grounds. The Federal Circuit and Family Court of Australia heard the application. The central legal issue was whether the Assistant Minister had committed a jurisdictional error in concluding that there was no other reason to revoke the visa cancellation decision, despite considering the applicant's representations and supporting documents. The court examined whether the Assistant Minister's conclusion was irrational, unreasonable, or not supported by an 'evident, transparent and intelligible' justification.

The court found that the Assistant Minister's decision was within his area of decisional freedom and was not irrational or unreasonable. The court noted that the Assistant Minister had considered the applicant's representations and supporting documents, including the best interests of the applicant's children, the strength, nature, and duration of the applicant's ties to Australia, and the extent of impediments if the applicant were removed to New Zealand. However, the Assistant Minister concluded that the applicant represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed those other considerations. The court found that the Assistant Minister's conclusions were supported by an 'evident, transparent and intelligible' justification and were within his 'area of decisional freedom.'

The court dismissed the application for an adjournment, finding that the applicant had not shown any obvious merit in the grounds put forward and had not acted with reasonable diligence in obtaining legal representation. The court also dismissed the application for judicial review, finding that the Assistant Minister's decision was not irrational, unreasonable, or unsupported by an 'evident, transparent and intelligible' justification. The court ordered that the applicant pay the respondent's costs.

Orders

Orders of the court

1. The oral application for an adjournment of the hearing be dismissed.

2. The application be dismissed.

3. The applicant pay the costs of the respondent, to be assessed if not agreed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 18 August 2017, Lucev J made orders under s 477(2) of the Act extending the time for making an application until 9 May 2017, and transferring the proceeding to the Federal Court.ASSISTANT MINISTER’S DECISION Section 501CA(4) of the Act provides:The Minister may revoke the original decision if:(a) the person makes representations in accordance with the invitation; and(b) the Minister is satisfied:(i)that the person passes the character test (as defined by section 501); or(ii)that there is another reason why the original decision should be revoked. The Assistant Minister was not satisfied the applicant passed the character test under s 501 of the Act meaning that s 501CA(4)(b)(i) was not met. The Assistant Minister then considered whether there was another reason why the original decision should be revoked under s 501CA(4)(b)(ii) of the Act, taking into account the applicant’s representations and supporting documents. The Assistant Minister stated that the applicant had articulated the following reasons why the original decision should be revoked:·the negative effect upon his two minor Australian citizen children;·the hardship his removal will cause his parents and other family members;·the mitigating circumstances of his offending;·his remorse and the rehabilitation he has achieved; and·the hardship he will face if the cancellation is not revoked. In considering the best interests of the applicant’s children the Assistant Minister noted that both children had been in the care of the applicant’s parents since they were approximately six months old, and that the applicant stated he had been in both of their lives since they were born. The Assistant Minister referred to the applicant’s assertions regarding the strength of his relationship with his children and his ongoing role in the children’s lives. The Assistant Minister stated this was a theme of the applicant’s correspondence in both this and earlier character considerations. The Assistant Minister formed the view that it was in the best interests of the applicant’s children to revoke the cancellation of the applicant’s visa to enable personal contact between the applicant and his children in the future. The Assistant Minister also found that it was in the best interests of the applicant’s niece and nephew, who were minors, to revoke the visa cancellation decision to allow them personal contact with the applicant. However, this factor was given less weight because the Assistant Minister stated that there was no evidence the applicant had a parental or equivalent role in their lives, but noted that he spoke to them regularly and that the family was very close. With respect to the strength, nature and duration of the applicant’s ties to Australia, the Assistant Minister accepted that not revoking the decision would cause the applicant’s immediate family emotional hardship. The Assistant Minister considered that the applicant’s parents, particularly, would suffer significant hardship because the applicant’s removal would seem to end any chance of him resuming custody and primary responsibility for his children. The Assistant Minister accepted that the applicant’s parents’ age would exacerbate this hardship.

Ratio Decidendi

Legal Principle Established

In submitting that the application should be dismissed with costs, the Minister contends, at [31] to [33] of his submissions:31.Notwithstanding his findings regarding the best interests of minor children, the strength, nature and duration of the applicant’s ties to Australia and the extent of impediments if removed to New Zealand, the Assistant Minister concluded that the applicant represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed those other considerations: [91].32.It was open to the Assistant Minister, for the reasons that he gave, to conclude that he was not satisfied, for the purposes of s 501CA(4)(b)(ii) of the Migration Act, that there was another reason why the original decision to cancel the applicant’s visa should be revoked.33.The Assistant Minister’s conclusions were not irrational or unreasonable and have an ‘evident, transparent and intelligible’ justification, and were within his ‘area of decisional freedom’: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28], [66], [76] and [105]; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44]-[45].CONSIDERATION First, I consider the application of the applicant for the proceeding to be adjourned so that he can obtain legal advice and representation. I have set out above the factual circumstances concerning pro bono legal representation following the issue of the certificate on 4 September 2017 culminating in the Court’s email advice of 27 October 2017. While some question is raised by the applicant about his receipt of that email, the facts also appear clear, from what he told the Court, that he has in fact consulted with one or more lawyers about his case. The applicant has been aware for a number of months that the hearing was scheduled but seemingly took no other steps with a view to obtaining or acting on legal advice or arranging representation for the hearing. In my view, the applicant was not entitled effectively to do nothing further by way of obtaining legal representation with a view to the hearing. He has taken the step simply of arriving at the hearing and then requesting an adjournment. In all the circumstances, I do not consider it unreasonable to proceed with the hearing without granting an adjournment to the applicant. Not only has there been quite some time for him to obtain advice and representation if he required it, but it also appears that he did seek to obtain a lawyer at some earlier stage, but for one reason or another did not engage a lawyer to assist him. But additional to those factors is the question of the lack of any obvious merit in the grounds put forward by the applicant. As the Minister suggests, they do invite “merits review” and do not raise issues going to the identification of jurisdictional error by the Assistant Minister. I explain that further below. While the applicant suggests that if he were to be granted an adjournment and obtained legal advice and representation, a lawyer might discover further grounds of review in order to found a jurisdictional error, that speculative approach to the grant of an adjournment is not appropriately adopted. A court will often grant an adjournment, in the interests of justice, where there is no prejudice to any party of any great note, where there appears to be some reason to think that there may be proper grounds to be identified in advancing a case. Here, the submission for an adjournment of the applicant simply amounts to a request for further time to see if he can find a lawyer in the hope and eventuality that some further ground or grounds for setting aside the Assistant Minister’s decision can be articulated.