Tusitala v Minister for Immigration and Citizenship
[2013] FCA 644
•3 July 2013
FEDERAL COURT OF AUSTRALIA
Tusitala v Minister for Immigration and Citizenship [2013] FCA 644
Citation: Tusitala v Minister for Immigration and Citizenship [2013] FCA 644 Appeal from: Tusitala v Minister for Immigration and Citizenship [2013] AATA 211 Parties: VINCENT TUSITALA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 703 of 2013 Judge: BUCHANAN J Date of judgment: 3 July 2013 Legislation: Direction No 55: Visa Refusal and Cancellation Under Section 501
Migration Act 1958 (Cth)Date of hearing: 20 June 2013 Date of last submissions: 13 June 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 14 Counsel for the Applicant: The Applicant appeared in person Solicitor for the First Respondent: Ms L Buchanan, Australian Government Solicitor Solicitor for the Second Respondent: The Second Respondent filed a submitting notice
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 703 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: VINCENT TUSITALA
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
3 JULY 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application is dismissed with costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 703 of 2013
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: VINCENT TUSITALA
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE:
3 JULY 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant is a young New Zealand man who arrived in Australia initially in August 2003 at the age of 13. He returned to New Zealand in early 2004 and came back to Australia in August that year at the age of 14. Since that time he has acquired a substantial criminal history in Australia. His first criminal conviction was in July 2005, when he was 15 years old, for affray and assault occasioning actual bodily harm. Since that first conviction, the applicant has been convicted of a number of criminal offences. Many involved violence. He has been sentenced to prison on a number of occasions. His last prison sentence was for a term of three years and four months with a non-parole period of two years and three months, commencing on 30 December 2010. The applicant was released on parole on 29 March 2013.
As a result of his criminal history, the applicant has a “substantial criminal record” as defined in s 501(7) of the Migration Act 1958 (Cth) (“the Migration Act”). As a result also, he does not pass the “character test” identified by s 501 of the Migration Act. As a person who does not pass the character test, and because he is not an Australian citizen but resides in Australia as the holder of a temporary visa, the applicant became liable to the exercise of a discretion to cancel his visa under s 501(2) of the Migration Act.
On 21 May 2009, the applicant was advised that consideration was being given to the cancellation of his visa. He made representations to the first respondent (“the Minister”), asking to be allowed to stay in Australia and claiming to be a changed person. He said that he understood it would be his last opportunity. The latest offence for which the applicant was convicted was committed after he gave those assurances and after a decision was made not to cancel his visa at that time.
On 10 January 2013, a delegate of the Minister decided to cancel the applicant’s visa. The applicant applied for a review of that decision by the Administrative Appeals Tribunal (“the AAT”). On 11 April 2013, the AAT affirmed the delegate’s decision that the applicant’s visa should be cancelled. The applicant has now commenced proceedings in this Court, challenging the decision of the AAT upon the ground that the AAT committed jurisdictional error.
The decision of the delegate and of the AAT were guided by a direction issued by the Minister under s 499 of the Migration Act – Direction No 55: Visa Refusal and Cancellation Under Section 501 (“Direction 55”). That direction provides guidance for decision-makers considering whether to exercise a discretion to cancel a person’s visa under s 501 of the Migration Act. The direction contains both “primary considerations” and “other considerations” which should be taken into account when considering whether to exercise the discretion to cancel a visa. Paragraph 8 of Direction 55 records:
8.Taking the relevant considerations into account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B. Separating the considerations for visa holders and visa applicants recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
In an amended originating application for a review of the decision of the AAT filed on 9 May 2013, the applicant claimed that the AAT had failed to take into account the “other consideration” stated in clause 10(1)(a) of Direction 55. Clause 10(1)(a) states:
10 Other considerations – visa holders
(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
…
However, in written submissions filed in support of his application, the applicant made no complaint about any failure to take clause 10(1)(a) into account. Instead, the applicant complained that the AAT had failed to take into account the “primary consideration” stated in clause 9.1.2(1)(b) of Direction 55. Clause 9.1.2(1)(b) provides:
9.1.2The risk to the Australian community should the person commit further offences or engage in other serious conduct
(1)In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:
…
(b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the person re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Confusingly, in a further amended originating application filed in Court on 20 June 2013, the applicant appeared to complain of a failure to take into account clause 9.2.1(1)(b) of Direction 55, but it is apparent from the whole of the terms of the further amended originating application that this was a typographical error. The applicant’s complaint must, therefore, be understood to be that the AAT failed to take into account the matters referred to in clause 9.1.2(1)(b), as argued in his written submissions. I also understood that to be the position taken by the applicant at the hearing.
The written submissions filed by the applicant argued his case in the following way:
(14)Under the heading “Protection of the Australian Community” the Tribunal took into account, the nature and seriousness of my conduct. It considered CI.9.1.1 and did so clearly.
(15)There was also consideration of “The [sic] nature of the harm to individuals or the Australian community should the person engage in further criminal or serious conduct and the Tribunal thus considered Clause 9.1.2(1)(a).
(16)What the Tribunal failed to do, in my submission, was to consider and decide on issue raised by CI.9.1.2(1)(b) that being “evidence [sic] of rehabilitation achieved by the time of the decision, giving weight to the time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). There is no reference to that issue in the Tribunal’s reasons, other than reproduction of the provision.
(17)In my submission the Tribunal failed to give appropriate weight to relevant material which was put before the Tribunal and failed to have regard to a relevant consideration, and thus committed a jurisdictional error.
The applicant’s argument faces two difficulties. The first is that his complaint is really about the weight which the AAT gave (or did not give) to his claim that he had embarked upon a serious and committed course of rehabilitation. Any complaint about the weight which the AAT gave (or did not give) to those matters does not reveal any jurisdictional error.
The second difficulty is that it is apparent from a fair reading of the AAT decision that the AAT gave explicit consideration to whether there was any (or sufficient) evidence of rehabilitation which should tell significantly against cancellation of the applicant’s visa. The AAT explicitly referred to the terms of clause 9.1.2(1)(b) and the matters to be taken into account in that connection. The AAT referred to the applicant’s claim that “he was now a changed person, and wanted to be a role model for his nieces and nephews”. The AAT referred to remarks of the sentencing judge dealing with his most recent offence in a number of places:
47.Judge Neilson, when sentencing Mr Tusitala for the 2010 robbery in company, stated that from the material before him, Mr Tusitala had good prospects of rehabilitation and good prospects of not committing further offences if he remained alcohol and drug free and controlled his impulse to gamble.
…
58.I have noted above the opinion of Neilson J in that regard, which was that from the material before him, Mr Tusitala had good prospects of rehabilitation, and good prospects of not committing further offences if he remained alcohol and drug free, and controlled his impulse to gamble.
59.I am mindful also that Mr Tusitala has done some courses in prison to address his anger management, alcohol consumption, drugs and gambling. The IDATP course in particular seems to have impressed Mr Tusitala and given the duration, being 10 – 12 months, appears to be somewhat in depth. Exhibit A2 gives detail of it.
…
62.Having regard to the above evidence including Mr Tusitala’s crimes, and his behaviour in prison, and mindful of Judge Neilson’s optimism for the future, I am nevertheless of the view there is a real risk Mr Tusitala may reoffend in the future. Mr Tusitala has continued to offend over a period of years from 2005, and he has shown a disregard to court orders by breaching them. A real risk of recidivism is one which is not far-fetched or fanciful, and can include a low or minimal risk: Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493.
63.The nature of the harm Mr Tusitala may cause if he recommences to consume alcohol and/or drugs, which has not been tested outside the prison setting, may lead him to engage in acts of violence towards persons, and injure them or damage property as he has in the past.
It is clear from the last two paragraphs extracted above that the AAT weighed the matters referred to in clause 9.1.2(1)(b) of Direction 55 against the other material which was available to it. The AAT concluded, in relation to those matters, as follows:
67.Ultimately I am satisfied that given Mr Tusitala’s pattern of offending, the consideration of the risk to the Australian community should Mr Tusitala commit further offences or engage in other serious conduct is a real one, and the risk of future harm is unacceptable. The majority of his crimes and subsequent convictions have involved violence, and in the most recent and most serious crime of robbery in company, two persons were assaulted and injured. Mr Tusitala struck one of the victims approximately three times in the face, then held him back with one arm while he hit him repeatedly in the head with the other. The case notes of prison officers at Exhibits R3 and R6 also indicate anger management issues have not resolved.
68.It is likely any future criminal conduct may involve further violence as it is [sic] has over the past seven years. There is a real risk of Mr Tusitala re-offending. The nature of his offending suggests that there is a risk of harm to members of the community.
69.Accordingly that weighs heavily in favour of cancelling Mr Tusitala’s visa.
(Emphasis in original)
The assessment made by the AAT about those matters is not reviewable in this Court. There is no basis to conclude that the AAT failed, as claimed, to take into account a relevant consideration when it exercised the discretion to cancel the applicant’s visa. There is no other indication (or suggestion) that the AAT committed a jurisdictional error. In those circumstances, the present application must be dismissed.
The Minister has sought costs. There is no reason in this case why costs should not follow the event. Accordingly, the application will be dismissed with costs.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 3 July 2013
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