Tumaialu v Minister for Home Affairs
[2020] FCA 529
•2 April 2020
FEDERAL COURT OF AUSTRALIA
Tumaialu v Minister for Home Affairs [2020] FCA 529
Appeal from: Application for extension of time: Tumaialu v Minister for Home Affairs & Anor [2019] FCCA 582 File number: QUD 216 of 2019 Judge: RANGIAH J Date of judgment: 2 April 2020 Catchwords: MIGRATION – application for extension of time to file notice of appeal – where proposed appeal has insufficient prospects of success – application dismissed Legislation: Migration Act1958 (Cth) s 116(1)(e)(ii)
Federal Court Rules 2011 (Cth) r 36.03
Date of hearing: 2 April 2020 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 21 Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Mr J Kyranis Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
QUD 216 of 2019 BETWEEN: TIMO TUMAIALU
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RANGIAH J
DATE OF ORDER:
2 APRIL 2020
THE COURT ORDERS THAT:
1.The application for an extension of time to file a notice of appeal is dismissed.
2.The applicant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(DELIVERED EX TEMPORE AND REVISED)RANGIAH J:
The applicant has applied for an extension of time to appeal against a judgment of the Federal Circuit Court of Australia delivered on 18 February 2019. The Federal Circuit Court dismissed the applicant’s application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) to affirm a decision of a delegate of the first respondent (the Minister) to cancel the applicant’s Subclass 444 (Special Category) visa.
The application for an extension of time was filed on 29 March 2019, 11 days outside the 28 day period for the filing of the notice of appeal prescribed under r 36.03 of the Federal Court Rules 2011 (Cth). The applicant’s explanation for the delay is that he was not made aware of the time limit by the Minister. I do not accept that the Minister had any obligation to inform him of the time limit. However, I accept that the applicant was not aware that he had to file his notice of appeal within 28 days. The Minister does not allege any prejudice as a result of the delay. In the circumstances, I would be inclined to grant an extension of time if the applicant could demonstrate some merit in his proposed grounds of appeal.
The applicant was born in Samoa, and is a citizen of New Zealand. He has lived in Australia since 1999. He has an extensive criminal history in Australia, including many convictions for breaches of domestic violence orders. On 21 December 2017, the applicant was sentenced to 18 months imprisonment.
On the same day, the Minister decided to cancel the applicant’s visa pursuant to s 116(1)(e)(ii) of the Migration Act1958 (Cth). Under s 116(1)(e)(ii), the Minister has a discretion to cancel a visa if he or she is satisfied that the presence of the visa holder is or may be, or would or might be, a risk to the health or safety of an individual or individuals.
The applicant applied to the Tribunal for a review of the Minister’s decision. On 23 May 2018, the Tribunal affirmed the decision of the Minister. In its reasons, the Tribunal commenced by finding that the basis for the exercise of the discretion under s 116(1)(e)(ii) of the Migration Act had been established. The Tribunal said:
17.The Tribunal is satisfied on the evidence that the applicant has committed numerous acts of violence against, or in the presence of, his wife and children over a period of at least 15 years. The violence has been accompanied by, or an incident of, methamphetamine abuse that the applicant failed to acknowledge until confronted by evidence of it at the hearing. Given the long history of family violence in these circumstances, the Tribunal is satisfied that the applicant’s presence in Australia or (sic) may be, or would or might be a risk to health or safety of his wife and children.
The Tribunal then considered the exercise of the discretion. It observed that the applicant had lived in Australia for 19 years, and was married with ten children and three grandchildren. The Tribunal noted that the applicant had made some attempts at rehabilitation, but these were limited by his failure to acknowledge the length and seriousness of his offending behaviour and the nature and existence of his substance abuse. The Tribunal accepted that the applicant would face emotional hardship if his visa were cancelled, but did not accept that he would face significant financial hardship.
The Tribunal considered the question of hardship to the applicant’s wife and children. It found:
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 of 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 would not be adversely affected by the cancellation of the visa.
The Tribunal concluded that, considering all the circumstances, the applicant’s visa should be cancelled. Accordingly, it affirmed the delegate’s decision.
The applicant applied to the Federal Circuit Court for review of the Tribunal’s decision. He was unrepresented in the Federal Circuit Court. The applicant’s grounds of review were:
1. The respondent’s decision was unreasonable.
2. The respondent took into account irrelevant consideration.
3. The respondent failed to make (sic) relevant consideration into account.
4. The respondent’s (sic) 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 finding made by the respondent.
6. The respondent failed to properly exercise their discretion under 116 of the Immigration act.
The primary judge rejected the first ground on the basis that the Tribunal’s decision was not unreasonable because the conclusion it reached was open on the evidence. His Honour rejected the second ground, because the applicant had not identified any irrelevant considerations that were taken into account. His Honour rejected the third ground because the applicant had not identified any relevant considerations that were not taken into account. His Honour rejected the fourth ground because the applicant had not demonstrated how any of the rules of procedural fairness set out in the Migration Act had been breached. His Honour dismissed the fifth ground on the basis that there was sufficient evidence to support the findings made by the Tribunal. His Honour dismissed the sixth ground, because it could not be said that the Tribunal had improperly exercised the discretion to cancel the applicant’s visa.
The primary judge summarised the oral submissions the applicant made at the hearing as being to the effect that that his wife and children needed him to remain in Australia. His Honour found that he was unable to grant the applicant the relief he sought simply because of sympathy towards him. Having found that the applicant had not established any jurisdictional error on the part of the Tribunal, his Honour dismissed the application with costs.
The grounds set out in the applicant’s draft notice of appeal are as follows:
1.The learned primary judge erred in finding that the Administrative Appeals Tribunal failed to give proper consideration to certain matters identified in the statement of reasons as steps in the decision making process.
Particulars
2.The learned primary judge did not identify a range of claims (Claims) that the Administrative Appeals Tribunal was required to take into account.
3.The learned primary judge should have found that, on evidence, it could be established that the Administrative Appeals Tribunal had failed to give proper consideration to the Claims. Indeed, the learned primary judge should have found that the Administrative Appeals Tribunal had not sufficiently addressed those Claims.
4.The learned primary judge erred in finding that the Administrative Appeals Tribunal reasoning process was fundamentally flawed by reason of jurisdictional error.
The paragraphs numbered 2 and 3 appear to be particulars of Ground 1. Ground 4 appears to be a separate ground.
In an affidavit, the applicant has set out further grounds as follows:
…
3. The second respondent decision was unreasonable.
4. The second respondents (sic) decision involved an error of law.
5. The second respondent took into account irrelevant consideration.
6. The second respondent failed to make relevant consideration into account.
7.The second respondent in making its decision did not comply with the rules of natural justice and the applicant was denied procedural fairness.
8.There was insufficient evidence or no evidence to support various findings made by the second respondent.
The applicant is self-represented in the appeal. On 19 November 2019, the applicant requested an adjournment to allow him time to seek legal advice and representation. I granted the adjournment, but he has not been able to obtain any legal representation.
The applicant has not filed any written submissions in support of his grounds. He made oral submissions to the effect that his family is struggling and he wants to be with them. He said that his children missed him. He disagreed with what he described as the Tribunal’s finding that his children were better off without him. He said that it was difficult for his wife to deal with their children by herself.
In the proposed appeal, it would be necessary to demonstrate that there was appellable error on the part of the Federal Circuit Court. In this case, that would effectively require the applicant to demonstrate that there was jurisdictional error on the part of the Tribunal.
The first ground of the proposed notice of appeal asserts that the primary judge erred in failing to give proper consideration to “certain matters” identified in the reasons of the Tribunal as steps in the decision-making process. The applicant has failed to indicate what matters the Tribunal failed to give proper consideration to, or how that failure could amount to jurisdictional error.
In respect of the fourth ground, the applicant has not identified any jurisdictional error.
The grounds set out in the applicant’s affidavit repeat grounds argued before the primary judge. I cannot see any arguable error in the reasons of the primary judge for rejecting those grounds.
In his oral submissions, the applicant challenged the finding of the Tribunal at paragraph 32 of its reasons that the weight to be given to the potential for harm to the applicant’s wife and children exceeds any benefit said to accrue from the applicant’s physical proximity to them, and that the best interests of the children would not be adversely affected by cancellation of the visa. That challenge is to a factual finding made by the Tribunal. I cannot see that the applicant has raised any allegation of jurisdictional error in respect of that finding. Therefore, to the extent that it is relied upon as a ground of appeal, it could not result in the judgment being set aside.
In my opinion, the applicant has not demonstrated sufficient prospects of success in his proposed appeal to warrant a grant of an extension of time. The application will be dismissed with costs.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate:
Dated: 21 April 2020
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