Turanga v Minister for Home Affairs

[2018] FCA 1696

FEDERAL COURT OF AUSTRALIA

Turanga v Minister for Home Affairs [2018] FCA 1696

File number:	NSD 788 of 2018
Judge:	ROBERTSON J
Date of judgment:	9 November 2018
Catchwords:	MIGRATION – judicial review of decision of the Administrative Appeals Tribunal – Tribunal held there was not “another reason” why the original cancellation decision  should be revoked and affirmed decision of delegate of the Minister – whether jurisdictional error in Tribunal’s decision
Legislation:	Migration Act 1958 (Cth) ss 476A, 499, 501CA
Dates of hearing:	5 October and 6 November 2018
Registry:	New South Wales
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 in person
Solicitor for the First Respondent:	Mr K Eskerie of Sparke Helmore
Counsel for the Second Respondent:	The Second Respondent submitted save as to costs

ORDERS

NSD 788 of 2018

BETWEEN:

JOHN BEAU MOHI TURANGA

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	ROBERTSON J
DATE OF ORDER:	9 NOVEMBER 2018

THE COURT ORDERS THAT:

1.The application be amended to identify the second respondent as the Administrative Appeals Tribunal. 

2.The application is dismissed.

3.The applicant pay the costs of the first respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1. This is an application brought under s 476A of the Migration Act 1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal affirming the decision of a delegate of the Minister made under s 501CA(4) of the Migration Act not to revoke the earlier decision to cancel the applicant’s visa. The applicant’s visa was mandatorily cancelled by another delegate of the Minister under s 501(3A) of the Migration Act.

2. This Court is concerned only with the lawfulness of the decision under review and is not otherwise concerned with the merits of the decision.

3. Contrary to the form of the originating application for review, no extension of time to file the application is required.

4. Despite the issue of a referral under r 4.12 of the Federal Court Rules 2011 (Cth), the applicant was not legally represented when the application was first listed for hearing on 5 October 2018. At that time I granted the applicant an adjournment to 6 November 2018 but unfortunately the extra time did not result in legal representation for him becoming available.

   The applicant

5. The applicant was born in New Zealand in 1969 and arrived in Australia in 1989. Since that date, he has held various class TY subclass 444 special category (temporary) visas.

6. As found by the Tribunal, the applicant’s National Police Certificate dated 23 March 2017 shows he was convicted of 35 offences as an adult between 1988 and 2017. These include:

   Ÿ22 February 1990 – conviction in Redfern Local Court: larceny as a servant – fine.

   Ÿ6 June 2002 – conviction in Downing Centre Local Court: assault occasioning actual bodily harm, and larceny – section 9 bond.

   Ÿ30 August 2004 – conviction in Downing Centre Local Court: possession of equipment for administering prohibited drugs, possess prohibited drug, and custody of knife in public place – fines.

   Ÿ14 January 2005 – conviction in Downing Centre Local Court: possession of equipment for administering prohibited drugs, self-administer/attempt self-administer prohibited drug, custody of knife in public place, goods in personal custody suspected being stolen (not motor vehicle), and contravene apprehended violence order (two counts) – fines.

   Ÿ28 August 2014 – conviction in Downing Centre Local Court: possess prohibited drug – fine.

   Ÿ17 October 2014 – conviction in Downing Centre Local Court: intimidate police officer in execution of duty, stalk/intimidate intend physical etc harm (personal) – imprisonment 8 months suspended on enter section 12 bond.

   Ÿ19 April 2016 – conviction in Downing Centre Local Court: assault occasioning actual bodily harm, possess prohibited drug – section 9 bond.

   Ÿ21 June 2016 – conviction in Downing Centre Local Court: behave in offensive manner in/near public place/school – fine.

   Ÿ27 February 2017 – conviction in Central Local Court: assault occasioning actual bodily harm (two counts), larceny, possess prohibited drug (two counts) – imprisonment 12 months.

   The applicant has a “substantial criminal record” and so does not pass the character test. This was not disputed by the applicant.

   The Tribunal’s findings and reasons

7. The findings and reasons of the Tribunal may be summarised as follows.

8. The applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act on 22 March 2017 on the basis that he did not pass the character test because he had been sentenced to a term of imprisonment of 12 months or more and therefore had a “substantial criminal record” as defined in s 501(7).

9. On 14 April 2017, the applicant made representations seeking revocation of the mandatory visa cancellation decision under s 501CA(4)(a). He made further representations on 28 December 2017.

10. The Minister’s delegate decided on 18 January 2018 not to revoke the cancellation decision and, on 29 January 2018, the applicant lodged an application with the Tribunal seeking a review of that decision.

11. The Tribunal heard the matter in Sydney on 4 April 2018. The applicant attended the hearing and gave evidence by videoconference from Christmas Island. He did not have legal representation.

12. The applicant has two sisters who currently reside in Queensland and Western Australia, and other extended family members in Australia. The applicant’s father passed away in 2011. His mother, two brothers, another sister and his adopted sister live in New Zealand. The applicant’s evidence to the Tribunal was that he last saw his sisters at his father’s funeral but stays in touch with family members by telephone. He was adamant that he did not want financial or other support from his family members.

13. The applicant attended boarding school in New Zealand. He obtained employment on arrival in Australia and held various construction and manual jobs from 1989 to 1994.

14. The applicant told the Tribunal he used cannabis on a daily basis from when he was 16 years old until he went to jail in 2016. He was diagnosed with ADHD “as a child”. He has also been diagnosed with various mental health conditions since 1994, including bipolar disorder, schizophrenia and paranoia. He developed a gambling addiction with poker machines from 1996. He began taking methamphetamines (ice) from about 2002. He said he used any wages or social security payments to pay for his drug and gambling addictions.

15. Since 2001, the applicant has been homeless, staying at the Mathew Talbot hostel in Woolloomooloo and living on the streets. He has had some periods of employment, namely as a cleaner with HopeStreet Employee Training Programme and working in kitchens. At the Tribunal hearing, the applicant said that his support networks are in the Woolloomooloo area; he has attended the Woolloomooloo Baptist Church and has connections with the St Vincent de Paul Society.

16. The applicant has returned to New Zealand on only three occasions, for short periods of time, since 1989.

17. The Tribunal was required to consider, pursuant to s 501CA(4) of the Migration Act, whether there was another reason to revoke the original cancellation decision.

18. When considering whether to revoke the cancellation decision, the Tribunal was required under s 499(2A) to have regard to the guidance contained in Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).

19. The Direction set out the policy of the government and included a number of introductory statements including the expectation that non-citizens would obey Australian laws and behave in accordance with Australian community values and standards if they wished to retain the privilege of coming to or remaining in Australia.

20. The Tribunal first considered the nature and seriousness of the applicant’s conduct to date.

21. The Tribunal found that the evidence showed that the frequency and the seriousness of the applicant’s offending escalated from 2014.

22. Considering the relevant factors set out in clause 13.1.1 of the Direction, the Tribunal found that:

    ŸThe applicant’s offences included committing serious and violent offences. Although the applicant was first sentenced to imprisonment on 27 February 2017, he has received section 9 and section 12 good behaviour bonds and multiple fines since 1988.

    ŸThe applicant’s record of criminal offending shows he has been involved in 35 offences as an adult; of concern, the applicant’s record reflects a pattern of offending that has become increasingly serious and violent.

    ŸThere has been a cumulative effect due to the applicant’s repeated offending and he has continued to offend despite warnings from police and the judicial system.

    ŸThere is no evidence before the Tribunal that the applicant has committed any offences since his incarceration in jail in 2016 or since his visa was cancelled in March 2017.

23. The Tribunal was satisfied that the frequency and long-term cumulative effect of the applicant’s criminal offending was a matter of serious concern. It found that the nature and seriousness of his offending weighed against him.

24. The Tribunal also considered the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

25. The Tribunal accepted the applicant had some plans for his future in Sydney and he had submitted letters of support from case workers, medical staff and his local Pastor in the Woolloomooloo area. These letters indicated there were people and organisations willing to support the applicant on his release. However, the Tribunal was not convinced that the applicant, in returning to the location where he was homeless and addicted to drugs for almost 16 years, would not resume these circumstances. When the facts of the applicant’s serious offences were put to him for comment at the Tribunal hearing, he alternately blamed his behaviour on other people and expressed extreme remorse and contrition. It was difficult to ascertain whether he fully understood and accepted responsibility for the seriousness of his offending behaviour.

26. Based on the evidence before it, the Tribunal was not persuaded the applicant would not re-offend should he be released into the Australian community. His consistent pattern of serious offending, although exacerbated by his mental illnesses and drug dependency and abuse, suggested he had a limited understanding about the consequences of his behaviour on others.

27. Although the applicant acknowledged that his drug and gambling addictions had influenced his behaviour and he stopped using drugs when he was imprisoned approximately 18 months ago, his drug and gambling rehabilitation was untested in the community. In considering the nature of the harm and potential risk to the Australian community if the applicant were to reoffend in the future, the Tribunal was mindful of the nature and seriousness of his past criminal offences of assault occasioning actual bodily harm and contravening apprehended violence orders.

28. On balance, the Tribunal found that the protection of the Australian community weighed against revoking the cancellation decision.

29. Turning to consider the expectations of the Australian community, the Tribunal said it was mindful that the Australian community anticipated a nuanced and balanced approach to considering the extent to which the applicant was a member of the Australian community even though he was not a citizen. The deliberation of Australian community expectations involved “bringing appropriate perspective and proportionality to bear in the assessment of risk.” The Tribunal said it must therefore consider any positive contributions the applicant has made to society, such as employment, community activities and/or family relationships; and weigh these against his adverse and antisocial behaviour.

30. The Tribunal said that although the applicant had lived in Australia as an adult for 29 years, the evidence before it was that he was employed full-time for about five years between 1989 and 1994 and later undertook sporadic casual work as a cleaner and kitchen worker.

31. The Tribunal accepted that the applicant had suffered from significant mental health issues, including bipolar disorder, schizophrenia and paranoia, which contributed to his circumstances of homelessness from 2001. It also noted that the applicant had had financial support through the receipt of social security benefits, and multiple organisations had provided him with medical support and counselling. The Tribunal recognised there was some evidence that the applicant abstained from illicit drug use between about 2005 and 2011; this was reflected in the applicant’s criminal record as a period of no offending.

32. However, the Tribunal continued, the applicant had been convicted of 35 criminal offences since his arrival in Australia.  The Tribunal noted it was concerning that his pattern of offending became increasingly frequent and serious from 2014.

33. While the Tribunal had sympathy for the applicant’s mental health and drug and gambling addictions, it found that these circumstances did not excuse his criminal offending particularly in view of the extensive support he had been provided by the Australian community.

34. The Tribunal said it believed the Australian community would have limited consideration for the applicant’s contributions given the frequency and seriousness of his crimes over 28 years. On balance, the Tribunal said it was satisfied the third primary consideration counted against revoking the mandatory cancellation under s 501CA.

35. Turning to other considerations under clause 14 of the Direction, the Tribunal said there were no international non-refoulement obligations in this matter. The Tribunal was not provided with any evidence about the impact of the applicant’s removal on any Australian business interests. There was no evidence of any impact on victims from the applicant’s criminal behaviour.

36. The Tribunal then considered the strength, nature and duration of the applicant’s ties to Australia and the extent of impediments if he was removed to New Zealand.

37. It said that at the Tribunal hearing, the applicant referred to the community and church in the Woolloomooloo area as his “support network”. The Tribunal accepted that the applicant had close ties to this community; the letters of support from staff and organisations demonstrated the applicant’s potential support if he was released from detention. The Tribunal noted, however, there was no evidence that the applicant’s removal from Australia would have any adverse impact on these persons.

38. The Tribunal also found that although the applicant left New Zealand 29 years ago and had only returned for three short periods, his mother and four of his siblings currently reside in New Zealand.

39. The Tribunal found that consideration of the applicant’s ties to Australia weighed in his favour.

40. The impediments to removing the applicant from Australia, the Tribunal said, relied on his desire to remain in Australia. The applicant told the Tribunal that he was a “sickly child” and he found New Zealand “cold”. Based on the evidence before it, the Tribunal was satisfied that the applicant had no medical conditions that could not be treated within the New Zealand health system. There was no information before the Tribunal that he would not be able to live and work in New Zealand.

41. The Tribunal found that there were no substantial impediments that would prevent the applicant commencing a life in New Zealand.

42. The Tribunal stated its conclusions as follows. The first and third primary considerations weighed against the applicant, and the second primary consideration was not relevant. In regard to the other considerations, the applicant’s ties to Australia weighed in his favour and the impediments to his removal from Australia weighed against him. However, the weight the Tribunal gave those other considerations was low and they did not outweigh the primary considerations.

43. In these circumstances, the Tribunal found it was not appropriate for it to revoke the decision to cancel the applicant’s visa.

44. The Tribunal affirmed the decision under review.

    The grounds of review

45. The grounds of the application to this Court for review of the Tribunal’s decision were as follows (as written):

    Grounds of application

    Grounds are set out in the accompanying affidavit and below.

    1.        The respondent’s decision was unreasonable.

    2.        The respondent’s decision involved an error of law.

    3.        The respondent’s took into account irrelevant considerations.

    4.        The respondent’s failed to make relevant considerations into account.

    5.The respondent’s in making its decision did not comply with the rules of natural justice.

    6.There was insufficient evidence or no evidence to support various findings made by the respondent’s.

    7.        The respondent’s denied the appellant procedural fairness.

46. Two respondents are specified in the application, being the Minister for Home Affairs and the Minister for Immigration and Border Protection. The application concerns the decision of the Tribunal, referred to in the application as the respondent. In the applicant’s supporting affidavit affirmed 10 May 2018, the Tribunal is identified as the second respondent.

47. The applicant’s affidavit affirmed 10 May 2018 also contained a further ground as follows:

    The respondent failed to pro perly exercise their discretion under s 501 CA and s 501 CA (4) of the [Migration Act] 1958 (Cth). 

    The parties’ submissions

48. The applicant filed no written submissions.  In oral submissions, the applicant submitted he should not return to New Zealand because he would be a burden to his 72 year old mother and that would be physically, psychologically, financially and emotionally upsetting.  As far as concerned his brothers and sisters in New Zealand, they had got large families and none of them were rich and would not be able to support him for any reasonable amount of time.  He would also be an emotional and financial burden to them. 

49. The applicant submitted the reasons why he should stay in Australia were that his pastor had got him a job and this would continue the applicant’s association with morally upstanding people.  This was a major consideration because when he was working from 2004 to 2013 with a cleaning company he was never in trouble.  That would also further his familiarity and association with Christian morals because his pastor is the boss.  They were so fair to him and they gave him such a good wage.

50. He submitted that time in detention had given him time to reflect and this had allowed him to grow as a person and become more socially and morally aware, and he therefore had a more heartfelt awareness and because of that he now felt genuine remorse not only for his actions but for his life that could have been better lived. He was now more conscious of these moral views and moral actions. Even though he had finished the counselling courses he was seeking further counselling to maintain his psychological and emotional balance. On his release from detention, the applicant said, he would continue with counselling. The kind of counselling he was taking was from his past issues and he could show that this proved that he was becoming more emotionally and socially aware because of this change of behaviour. This was a change from when he was living on the street, did not have a job and did not have a social network.  He knew there would be religious and social groups in New Zealand that would show they cared but they would be unable to judge who he is now.

1. He was now more able and better equipped to retain the three basics: social network, accommodation and employment. He submitted he was a far more deeply involved Christian and that made him far more likely to hold onto those three basics which would enable him to live without issue in Australia’s modern current society.

2. The applicant referred to the Australian way of life which, he submitted, he had been privileged and grateful to have had for the past 30 or 31 years, and at 49 years old he would not be taking advantage ever again of the great privilege and deep gratitude he had for the Australian way and Australian values.

3. The applicant submitted there was much undue stress on social services in New Zealand compared to Australia which meant that they were, in fact, less able to assist. It was more economically viable for employment in Australia and if he were unemployed in New Zealand it would definitely mean homelessness for him.

4. The applicant submitted that when he was at Christmas Island he was allowed to go to church and make other excursions outside the detention centre in public and amongst the public. This was another great privilege because of his being well-behaved for one year and a half, and he had not been in trouble once during that time.

5. In further oral submissions, the applicant said that he abstained from illicit drug use between about 2005 and the end of 2013, which was when he lost his job. While he was working, the applicant said, he was not using any drugs and he was attending church every week and there was no trouble on his behalf.

6. The applicant also submitted that if he went to New Zealand and he became unemployed it would definitely mean he would be homeless, and he was thinking of going to Christchurch because he had heard how bad Auckland was. He was brought up on the South Island so he would definitely not want to live in Auckland because there were gangs there. He submitted that he was beaten up badly when he was 18 years old in the town he was born in. He did not ever want to live in Auckland so he would probably settle in Christchurch if he had to because there were far fewer gangs there.

7. In his outline of submissions dated 21 September 2018 the Minister submitted that the contentions in Grounds 1, 2, 3 and 4 were wholly unparticularised and did not identify how the applicant said the Tribunal’s decision was unreasonable, what relevant/irrelevant considerations were the subject of the grounds, or how the decision involved an error of law. The Tribunal’s decision was based on the evidence before it. It was apparent from the Tribunal’s reasons that the Tribunal had regard to the applicant’s representations and additional written and oral evidence, and made findings that were logically open to it on the evidence before it and for the reasons it gave. 

8. In relation to Grounds 5 and 7, the Minister submitted that, again, the applicant had not provided any particulars of the asserted failure by the Tribunal to afford procedural fairness. The Tribunal invited the applicant to appear before it at a hearing of the issues arising under the review on 4 April 2018. The applicant had ample time between the filing of the application for review on 29 January 2018 and the hearing on 4 April 2018 to provide further evidence or written submissions. The applicant provided one witness statement dated 7 March 2018 in support of his application (referred to by the Tribunal at [43]). The applicant gave evidence at the hearing before the Tribunal on 4 April 2018. There was nothing before the Court to suggest that the applicant ever sought more time to provide material or was not on notice of the issues that would arise for consideration by the Tribunal. There was no substance to any contention that the applicant was denied procedural fairness. 

9. The Minister submitted that insofar as Ground 6 contended that the Tribunal’s findings were based on “no evidence”, this ground could only succeed if the applicant established that there was no evidence at all to support the Tribunal’s findings. Even “slight” evidence in support of a finding was sufficient to defeat an argument that there was no evidence before the Tribunal to support a finding. The Tribunal’s findings in respect of the Direction primary considerations (at [24]-[62]) revealed a thorough contemplation by the Tribunal of the evidence before it and the relevant circumstances of the applicant. Further, the Tribunal also weighed the other relevant considerations as identified by the Direction and made findings on the basis of the applicant’s own evidence (or the lack thereof) (at [63]-[71]). It was for the Tribunal to determine what weight to place on the evidence before it. The applicant had failed to identify any discernible findings by the Tribunal that could be said to have been made on the basis of “no evidence” and none were apparent. On the contrary, it was clear that the Tribunal considered the evidence before it, including that provided by the applicant in support of his application, and weighed it carefully in making its decision.

10. Finally, the Minister submitted, insofar as the application also contended that the Tribunal failed to properly exercise its discretion under s 501CA and s 501CA(4) of the Migration Act, this contention rose no higher than to express disagreement with the Tribunal’s decision. Pursuant to s 501CA(4), the Minister (and accordingly the Tribunal on review) may only revoke the “original decision” (the cancellation decision) if representations had been made by the applicant in accordance with the invitation and the Minister was satisfied that the person passed the s 501 character test, or there was another reason why the cancellation decision should be revoked: s 501CA(4)(b). In circumstances where the Tribunal was not satisfied that the applicant passed the character test or that there was another reason why the cancellation decision should be revoked, the Tribunal’s decision to affirm the cancellation decision was the only decision open to it.

11. The Minister submitted there was no discernible error on the part of the Tribunal, nor in the manner in which the Tribunal’s proceedings were conducted.

12. The Minister submitted that the applicant’s oral submissions went to the merits of his case for revocation, which was a matter for the Tribunal at the time, and they did not go to anything that this Court had jurisdiction to consider, given the limits of its jurisdiction in s 476A of the Migration Act. The question before the Court was whether the Tribunal’s decision was open to it on the material before it. Any new information that arose or was proffered, following the Tribunal’s decision, could not give rise to a finding of jurisdictional error in the Tribunal’s decision, except, of course, in circumstances where it revealed a procedural unfairness in the process.

    Consideration

13. On this application for judicial review the jurisdiction of this Court is limited, such that it is concerned with the identification of any jurisdictional error in the Tribunal’s decision and not as such with the merits of that decision. 

14. Contrary to the terms of the present application, it is also the case that the jurisdiction of the Court is not concerned directly with the decision of the delegate of the Minister dated 18 January 2018 that the delegate was not satisfied that the applicant passed the character test or that there was another reason why the original decision should be revoked.

15. Further, and again contrary to the terms of the present application, the Court is not presently concerned with the purported challenge to the decision of the delegate dated 22 March 2017 that the applicant’s visa was cancelled under s 501(3A) as the delegate was satisfied that the applicant did not pass the character test because of the operation of s 501(6)(a) (substantial criminal record) on the basis of s 501(7)(c) and because the applicant was then serving a sentence of full-time imprisonment for a criminal conviction.

16. As submitted on behalf of the Minister, the grounds of the applicant’s application for judicial review of the decision of the Tribunal are unparticularised. Those grounds do not identify any respect in which the decision of the Tribunal is said to be affected by jurisdictional error.

17. The Tribunal recognised that its task was to consider whether there was “another reason” to revoke the original cancellation decision.  In considering that question, the Tribunal was guided by the Direction.  It did not err in that respect.

18. I see no basis for ground 1, that the decision of the Tribunal was unreasonable, construing that ground as intending to refer to legal unreasonableness.

19. As to ground 2, no basis has been identified to found the contention that the decision of the Tribunal involved an error of law.

20. As to ground 3, no legally irrelevant consideration has been identified by the applicant as having been taken into account by the Tribunal.

21. Similarly, as to ground 4, no mandatory relevant consideration has been identified which the Tribunal was bound to take into account but did not.

22. As to grounds 5 and 7, no circumstances have been identified to suggest that the Tribunal did not comply with the rules of natural justice or procedural fairness.

23. As to ground 6, it is doubtful that a claim of “insufficient evidence” would found jurisdictional error.  In any event the “various findings” made by the Tribunal, of which complaint is made, are not identified.  Further, the applicant has not articulated any foundation for the ground that there was insufficient or no evidence to support any finding made by the Tribunal.

24. Finally, the additional ground of review specified in the applicant’s affidavit, that the Tribunal failed to properly exercise its discretion under the Migration Act, is not made out.

25. I reject each of the grounds of review. None of them was addressed in the applicant’s oral submissions.

26. In relation to those oral submissions, the matters raised go only to the merits of the Tribunal’s decision. Such matters are not for this Court to decide. As submitted by the Minister, in the circumstances of the present case any new information that arose or was proffered following the Tribunal’s decision could not give rise to a finding of jurisdictional error in the Tribunal’s decision, unless that information showed the Tribunal did not afford the applicant procedural fairness in its decision. None of the information proffered by the applicant demonstrated any such failure.

    Conclusion

27. I order that the application be amended to make it clear that the second respondent is identified as the Tribunal. 

28. The application is dismissed, with costs.

I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.

Associate:

Dated:        9 November 2018