TUMAIALU v Minister for Home Affairs

[2019] FCCA 582

FEDERAL CIRCUIT COURT OF AUSTRALIA

TUMAIALU v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 582

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.116

Applicant: TIMO TUMAIALU

First Respondent:

Second Respondent:

MINISTER FOR HOME AFFAIRS

ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 662 of 2018

Judgment of: Judge Vasta

Hearing date: 18 February 2019

Date of Last Submission: 18 February 2019

Delivered at: Brisbane

Delivered on: 18 February 2019

REPRESENTATION

The Applicant appearing on his own behalf

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. That the Application filed 7 June 2018 is dismissed.

2. That the Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 662 of 2018

TIMO TUMAIALU

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 23 May 2018, the Administrative Appeals Tribunal (“the AAT”) affirmed a decision to cancel the Applicant, Timo Tumaialu’s, subclass 444 special category visa.  That decision having been made, the Applicant filed an application for review in the Federal Court on 5 July 2018. Reeves J remitted that application to this Court.

2. The background to the matter is this.  The Applicant came to Australia nearly 20 years ago.  He was born in Samoa in 1974.  As a baby, he was adopted by a cousin.  At the age of 13 he went to Auckland to stay with an aunt.  About the age of 14, he ran away from home and lived on the streets for about two years.  He then moved to Wellington at about the age of 15, where he met his wife.  He moved in with her parents.  He and his wife were married in about 1994, when the Applicant was aged about 20. 

3. In 1999, the Applicant and his wife, their two children and his wife’s parents came to Australia and moved to Marsden, suburb of Logan, just outside Brisbane.  The couple now have nine children aged between 24 and four.  The Applicant has another daughter aged 13.  The Applicant, having come here in 1999, has never left and gone back to New Zealand where he is a citizen. 

4. Under s.116 of the Migration Act 1958 (Cth) (“the Act”), the Minister may cancel a visa if the Minister is satisfied that certain grounds in that provision are made out. As is pointed out relevantly in this case, they are whether or not the presence of the Applicant in Australia is, or may be, or would or might be, a risk to the health or safety of an individual or individuals.

5. The Applicant has an unenviable criminal history.  The criminal history is reproduced at paragraph 11 of the decision of the AAT but it includes breaching domestic violence orders, breaching probation orders, possession of drugs, breaches of intensive correction orders, assaulting or obstructing police, breaches of domestic violence, common assault, breaching probation order and then, finally, a breach of a bail condition in relation to a domestic violence offence.  That last conviction occurred on 21 December 2017 and the Applicant was given a sentence of 18 months imprisonment.

6. The Applicant told the Tribunal that he first got into trouble with police for “drink driving” and speeding.  He said he was fined for failing to comply with the community service order made in that matter.  He said the first domestic violence offence for breaching that order occurred in May 2002 and there was a series of convictions over the next 15 years. 

7. He told the Tribunal that the existence of those domestic violence orders was because he would become loud and verbally abusive after drinking beer and that his neighbours would call the police.  The Applicant told the AAT that the police advised his wife to seek an order and that she agreed in order to have a means to keep his behaviour under control.

8. At the AAT hearing, the Applicant said that all of the domestic violence offences arose from technical breaches of orders and that he had never committed any physical violence or threatened anyone or caused property damage.  Instead, he said he became loud and bad tempered when he drank too much beer or smoked too much marijuana. 

9. He was asked about the convictions for offences involving physical assaults, death threats and property damage.  He said, to the AAT, that these details were invented by the police and that he entered pleas of guilty in order to get them over and done with.  He said that the usual course of events was that he was required to obtain his wife’s written consent in order to see her or be present at her home, and that she would verbally ask him to stay and that when she got sick of him she would call the police and use the lack of written consent against him.

10. He acknowledged a lack of maturity on his own part when it came to the consumption of alcohol and marijuana.  He acknowledged that he had a failure in controlling his temper, and he had also acknowledged a failure in not paying sufficient regard to the details of his domestic violence orders.  He told the AAT that he had come to terms with these issues and was ready to resume his responsibilities as a father. 

11. The AAT noted that the evidence that he gave was supported by the evidence of his sons, who said that he had never struck or threatened anyone and that he had never damaged anything when he got angry.  The sons told the AAT that the allegations were as a result of prying neighbours and their mother being angry. 

12. However, the wife of the Applicant said that each of the assault and property allegations was true and it arose because the Applicant was using methamphetamines.  When the AAT then confronted the Applicant with this evidence, he acknowledged that methamphetamine use was certainly to blame for some of his behaviour.  

13. According to the Applicant, his evidence before the AAT was that whilst there may be an existence for grounds for visa cancellation, essentially, nothing very serious had occurred.  He was claiming that he had fallen foul of technical breaches of orders in which his wife had colluded with police.  He said that all of this arose from a tendency to get noisy and argumentative when he drank beer or used marijuana. 

14. The AAT noted that his evidence was entirely unsatisfactory and quite difficult to accept after the AAT had heard from the wife. 

15. The Tribunal ended up being satisfied on the evidence that the Applicant had committed numerous acts of violence against, or in the presence of, his wife and children over a period of at least 15 years, and that the violence had been accompanied by methamphetamine abuse and that the Applicant had failed to acknowledge this, until confronted by evidence of it at the hearing. 

16. The Tribunal found that the Applicant failed to acknowledge the use of methamphetamine use until he was confronted by evidence of it at the hearing.  Therefore, the Tribunal was satisfied that the Applicant’s presence in Australia would or may be or might be a risk to health or the safety of the Applicant’s wife and children.

17. For those reasons, the Tribunal was satisfied that the ground for cancellation did exist. 

18. But that was not the end of it.  Even though the ground for cancellation existed, it was not mandatory.  The Tribunal had not decided, whether in their discretion, the visa should be cancelled.

19. The Tribunal looked at all of the matters that it needed to.  The Tribunal looked at the fact that the Applicant made efforts at rehabilitation, but those have been limited by the Applicant’s failure to acknowledge the length and seriousness of his offending behaviour and the nature or, indeed, the existence of his substance abuse. 

20. The Tribunal noted that services to support his rehabilitation would be available to him in New Zealand.  The Tribunal also noted that there was no professional medical or psychological evidence before it to suggest that the Applicant would suffer psychological hardship if the visa was cancelled. 

21. The Tribunal accepted that the Applicant would face emotional hardship, if his visa was cancelled, from the disruption to his familial relationship and social networks.  His employment history, which includes periods of employment in unskilled work, and long periods of unemployment, suggest that there was no financial hardship that would be said to arise.

22. The Tribunal accepted that, if the visa were cancelled, this may affect the rights of the children.  The Tribunal carefully considered the United Nations Convention on the Rights of the Child, and the International Covenant on Civil and Political Rights.  The Tribunal acknowledged that the best interests of the child must be treated as a primary consideration by it.

23. The Tribunal had particular regard to the evidence of the Applicant’s wife.  She gave evidence that she finds it very difficult to cope with sole responsibility for the six minor children in her care.  She said that her congregation arranged for someone to attend weekly to assist, for which she was grateful.  She said she also gets some help from her adult children, but this is limited because they now have families of their own.  She said it is difficult to get a babysitter because of the number of children that need to be supervised.  In addition, the teenagers need the father figure to deal with disciplinary issues.

24. The Applicant’s wife acknowledged that the Applicant did have a poor record and was not much of an example, but she said that her requirements of the Applicant would be basic; that he would not be staying with the family under one roof but would be assisting in the supervision and doing what he could as a provider.  Without such help, she said that she was struggling.  Similar evidence was given by the sons. 

25. The Tribunal said that it gave very careful consideration to those submissions as they related to the question of best interests of the children.  The Tribunal ended up saying this at paragraph 32:

    The evidence before the Tribunal is that the applicant’s children have been, at the least, exposed to family violence committed by the applicant over a long period.  In addition, it is likely that abuse or neglect has occurred as a direct or indirect consequence of the applicant’s methamphetamine use.  What assistance he can offer his wife, in view of the evidence, is likely to be financially negligible and carries an unacceptable risk for further exposure of her and the children to family violence and abuse.  On balance, the weight to be given to the mitigation of this risk exceeds the weight to be given to any benefits said to accrue from the applicant’s physical proximity to the children.  Accordingly, the best interests of the children will not be adversely affected by cancellation of the visa.

26. At paragraph 33, the AAT said:

    Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

27. The application of the Applicant had six grounds.  I will read the six into the record.

    1. The respondent’s decision was unreasonable. 

    2. The respondent took into account irrelevant considerations.

    3. The respondent failed to make relevant consideration into account.

    4. The respondent’s in making its decision did not comply with the rules of natural justice and denied the applicant procedural fairness. 

    5. There was insufficient evidence or no evidence to support various findings made by the respondent.

    6. The respondent failed to properly exercise their discretion under 116 of the Immigration act.

28. Notwithstanding that all six of those grounds are wholly unparticularised and do not identify how it is said that the Tribunal’s decision was unreasonable, I have still looked at them as a whole.    Having regard to the recitation of the facts that I gave and the conclusion of the Tribunal, one could see that the conclusion made by the Tribunal was open to it on the evidence.  Because it was open, it cannot be said to be unreasonable in a legal sense. 

29. Then there is the second ground.  There are no irrelevant considerations that have been identified that have been taken into account.

30. For the third ground, there is no relevant considerations that have been identified that were not taken into account. 

31. As to ground 4, the rules of natural justice and procedural fairness are codified in the Act, and there has been no demonstration of how any of those rules or sections have been breached.

32. As to the fifth ground, there was certainly sufficient evidence to support all of the findings that were made by the AAT. 

33. For the last ground, it cannot be said that there was an improper exercise of discretion under s.116 of the Act. So, none of those grounds have any merit whatsoever.

34. The Applicant has appeared by video-link from a detention centre today.  His submissions were, in summary, that he has young children;  that some of them were born with disabilities or conditions;  that his wife has diabetes;  that his younger children still need him, and that is why he is still here fighting to stay in Australia, and that he learnt his lesson.

35. As I said to him during the course of the hearing, all of that may well be true, but my job is not to bend the law simply because I feel sympathetic towards the Applicant and his plight.  I must apply the law, and that is that I cannot do anything other than look at the decision of the Tribunal and decide whether there has been a jurisdictional error.  I cannot allow bias, prejudice or sympathy to alter my decision. 

36. Having regard to all of these matters, I cannot find that there has been any jurisdictional error whatsoever, therefore I dismiss the application with costs in the sum of $5,000. 

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  14 May 2019