Toa v Minister for Immigration and Border Protection
[2017] FCA 1257
•26 October 2017
FEDERAL COURT OF AUSTRALIA
Toa v Minister for Immigration and Border Protection [2017] FCA 1257
File numbers: NSD 1290 of 2017 Judge: GRIFFITHS J Date of judgment: 26 October 2017 Catchwords: MIGRATION – application for judicial review of a decision of the Assistant Minister to cancel applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) – where applicant did not pass character test under s 501(6)(a) of the Migration Act 1958 (Cth) because he had a substantial criminal record – where Assistant Minister weighed factors in favour of and against cancellation
Held: application dismissed with costs
Legislation: Migration Act 1958 (Cth) ss 501(2), 501(6), 501(7) Cases cited: Minister for Immigration and Border Protection v Li [2013] HCA 18; 249 CLR 332
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437
Date of hearing: 24 October 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 15 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr N Swan Solicitor for the Respondent: Mills Oakley ORDERS
NSD 1290 of 2017 BETWEEN: MIKE RINN MATAMARU TOA
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
Respondent
JUDGE:
GRIFFITHS J
DATE OF ORDER:
26 OCTOBER 2017
THE COURT ORDERS THAT:
1.The originating application be dismissed.
2.The applicant pay the respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GRIFFITHS J:
The applicant seeks judicial review of a decision of the Assistant Minister for Immigration and Border Protection. The decision is dated 2 May 2017. The Assistant Minister decided to cancel the applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) (the Act). The Assistant Minister stated that he reasonably suspected that the applicant did not pass the character test and that his discretion should be exercised to cancel the visa.
Summary of Minister’s reasons for visa cancellation
The Assistant Minister provided a statement of reasons dated 2 May 2017 in support of the visa cancellation decision. Mr Toa did not dispute the Minister’s finding that he did not pass the character test because, on 15 October 2015, Mr Toa was convicted in the local court of New South Wales of two counts of assault occasioning actual bodily harm and sentenced to 18 months’ imprisonment for each count.
The Assistant Minister also set out at some length the various matters he had taken into account in determining whether to exercise his discretion to cancel Mr Toa’s visa. In assessing the relevant consideration of protecting the Australian community and the nature of Mr Toa’s criminal conduct, the Assistant Minister noted that violent offences are viewed very seriously. The Assistant Minister made reference to the sentencing Magistrate’s observations that Mr Toa’s conduct which gave rise to the convictions on 15 October 2015 involved “quite significant” violence, which involved both Mr Toa and his young son attacking a shopkeeper. Mr Toa used a 1.5m length of wood and metal in attacking this victim and also punched another person, causing their lip to split and bleed. The Assistant Minister also referred to earlier offences for which Mr Toa was convicted on 16 October 2003, relating to detaining a person in company with intent to get advantage and occasioning actual bodily harm, for which he was sentenced to four years imprisonment. The Assistant Minister noted the District Court Judge’s sentencing remarks on that occasion that the offending was “very serious” and must objectively be viewed as “very great criminality” by members of society.
On the issue of risk to the Australian community, the Assistant Minister explained why he did not accept Mr Toa’s submission that he was highly unlikely to offend. Although the Assistant Minister accepted that Mr Toa was remorseful for his past conduct, the Assistant Minister took into account that Mr Toa’s history revealed that he continued to offend after his earlier convictions, notwithstanding that there was a 13 year gap. The Assistant Minister also noted that Mr Toa had been directed to engage in alcohol and other drugs counselling which he had been reluctant to pursue and that his parole officer had said that Mr Toa’s response to a February 2016 intensive corrections order (ICO) “has been poor”. For these and other reasons the Assistant Minister found that there was an ongoing likelihood that Mr Toa will reoffend.
The Assistant Minister said that he treated the best interests of Mr Toa’s five minor children as a primary consideration. After summarising their circumstances, the Assistant Minister concluded that it was in the best interests of those children not to cancel their father’s visa, particularly in the case of his two children who resided with him at the time of the visa cancellation decision.
The Assistant Minister also set out in his statement of reasons his consideration and findings in respect of expectations of the Australian community, Mr Toa’s ties to Australia and the impediments which he would face if he was removed from Australia to New Zealand. The essence of the Assistant Minister’s ultimate decision to exercise his discretion to cancel Mr Toa’s visa are reflected in [64] to [71] of the statement of reasons:
64.I considered all relevant matters including (1) an assessment against the character test as defined by s 501(6) of the Migration Act and (2) all other information available to me, including information provided by, or on behalf of Mr TOA.
65.In considering whether or not to cancel Mr TOA's visa, I gave primary consideration to the best interests of Mr TOA's five minor children and have found that their best interests would be best served by not cancelling the visa.
66.Mr TOA has committed very serious crimes involving violence and Mr TOA and non-citizens who commit such offences should not generally expect to be permitted to remain in Australia.
67.I find that the Australian community could be exposed to great harm should Mr TOA re-offend in a similar fashion. I could not rule out the possibility of further offending by Mr TOA. The Australian community should not tolerate any further risk of harm.
68.I found the above consideration outweighed the countervailing considerations in Mr TOA's case, including the best interests of his five minor children, impact on family members, his length of residence in Australia and the hardship he will face in resettling in New Zealand. I have also considered the length of time Mr TOA has made a positive contribution to the Australian community through his past employment and involvement with the Cook Island community and or the consequences of my decision for minor children and other family members.
69.I am cognisant that where great harm could be inflicted on the Australian community even strong countervailing considerations are generally insufficient for me not to cancel the visa. This is the case even applying a higher tolerance of criminal conduct by Mr TOA, than I otherwise would, because he has lived in Australia from aged three and made some measure of positive contribution to the community.
70.In reaching my decision I concluded that Mr TOA represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any countervailing considerations above.
71.Having given full consideration to all of these matters, I decided to exercise my discretion to cancel Mr TOA's Class TY, Subclass 444 Special Category (Temporary) visa under s 501(2) of the Migration Act.
Mr Toa’s judicial review application
Mr Toa relied on an originating application for review which contained the following grounds (without alteration):
The assistant minister has failed to give correct weight in judging my case.
My first coviction in 2003 the judge was satisfied that my motives were not to harm the victim but to help her and her son [para 25] and that the assault was a resualt due to her ‘spirited resistance’ and injury being ‘not substantial’.
[para 29] states that he accepts the 13 year gap between convictions suggest the ability to refrain from criminal conduct.
[para 27] The judge was satisfied that i was of good character and unlikely to re-offend and had good prospect of rehabilitation.
[para 28] It was accepted that i am remorseful for my past offending.
[para 30] Assistant Minister states that he is ‘uncritically accepting my more recent submissions”. Obviously he has failed to give correct weight in his judgement.
[para 51] Says that he holds the view of ‘higher tolerance’ yet failed to reckonise that my last charge was out of charater due to unstable accomodation and being intoxicated which was in my ‘recent submissions’ that he failed to reckonise.
The paragraph references in the proposed grounds of appeal are references to the Assistant Minister’s statement of reasons for the visa cancellation decision.
Mr Toa failed to provide any written submissions in support of his case. At the hearing, he was invited to make oral submissions in support of his application, after the Court explained to him the difference between judicial review for jurisdictional error and a review or appeal against the merits of the Assistant Minister’s decision.
In his oral submissions, Mr Toa contended that the Assistant Minister’s reasons were contradictory and confusing. Essentially, this was because Mr Toa considered that if the Assistant Minister took into account the various matters in favour of not cancelling his visa as set out in the Assistant Minister’s statement of reasons, he should not have cancelled the visa. He referred in particular to the Assistant Minister’s findings in respect of the best interests of his children, his more recent attempts at rehabilitation and his remorse for what had occurred. From the bar table, Mr Toa explained why he had had difficulties complying with the ICO, which largely related to the practical problems he said he experienced in fulfilling his obligations to his young children and also complying the with ICO, particularly, when the children were ill or at school.
Disposition of the application
It is desirable to set out the relevant terms of s 501 of the Act. Section 501(2) provided:
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
Relevantly, the “character test” is set out in ss 501(6) and (7) (emphasis in original):
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Substantial criminal record
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
…
In their very terms, the grounds of review in the originating application raise issues which go to the merits of the Assistant Minister’s decision and not to its legality. This is reflected in Mr Toa’s overarching proposition that the Assistant Minister “failed to give correct weight in judging [his] case”. Each of the particulars to that proposition confirm that he is dissatisfied with the merits of the Assistant Minister’s decision. None of the particulars raises any claim of jurisdictional error, nor was he able to identify any arguable jurisdictional error in his oral submissions. The Assistant Minister had referred to each of the matters particularised in the originating application, but found that they were outweighed by other relevant matters. Such an evaluation was within the Assistant Minister’s legal authority.
To the extent that Mr Toa contended that the visa cancellation decision is unreasonable in the legal sense (see Minister for Immigration and Border Protection v Li [2013] HCA 18; 249 CLR 332), having read the Assistant Minister’s reasons and taking into account Mr Toa’s oral submissions, any such claim must be rejected. Bearing in mind that the primary focus must be on the statement of reasons provided in respect of the decision (see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437), I am not persuaded that there is no evident and intelligible justification for the relevant matters which underpin the Assistant Minister’s decision. As the reasons disclose, the Assistant Minister engaged in a balancing exercise, which took into account various competing considerations, some of which favoured not cancelling Mr Toa’s visa while others pointed in the opposite direction. It was ultimately a matter for evaluative judgment by the Assistant Minister, properly directed in law, to weigh these competing considerations. I see no reviewable error in the approach which was taken by the Assistant Minister.
Conclusion
For these reasons, the originating application must be dismissed and the applicant ordered to pay the Assistant Minister’s costs, as agreed or assessed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Griffiths. Associate:
Dated: 26 October 2017
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