Uolilo v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

Uolilo v Minister for Home Affairs [2021] FCAFC 138

Appeal from: Uolilo v Minister for Home Affairs [2020] FCA 1135
File number: NSD 962 of 2020
Judgment of: NICHOLAS, YATES AND CHARLESWORTH JJ
Date of judgment: 6 August 2021
Catchwords:

MIGRATION – where second respondent affirmed decision of a delegate of first respondent refusing to grant appellant a visa – where primary judge rejected all grounds of review relied on by appellant at trial – whether appellant should be granted leave to rely on new grounds of review on appeal that were not relied on before the primary judge – whether those grounds lacked merit – whether appellant’s failure to raise them before primary judge was explained

Held: leave to rely on new grounds refused – appeal dismissed with costs

Legislation:

Migration Act 1958 (Cth) ss 5, 5J, 36, 486I, 499, 501(1)

Migration Regulations 1994 (Cth)

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)

International Convention for the Protection of All Persons from Enforced Disappearance, opened for signature 6 February 2007, 2176 UNTS 3 (entered into force 23 December 2010)

International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976)

Cases cited:

BCH17 v Minister for Immigration and Border Protection [2018] FCA 300

Director of Public Prosecutions for Nauru v Fowler (1984) 154 CLR 627

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123

Ibrahim v Minister for Home Affairs (2019) 270 FCR 12

Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 WLR 586

Lobban v Minister for Justice (2016) 244 FCR 76

Minister for Immigration and Border Protection v Le (2016) 244 FCR 56

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17

Uolilo v Minister for Home Affairs [2019] FCA 336

Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354

Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441

Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234

Ure v Commonwealth of Australia (2016) 236 FCR 458

Maxwell, On the Interpretation of Statutes, 12th ed (1969) 

Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 87
Date of hearing: 4 February 2021
Counsel for the Appellant: Mr M Albert
Solicitor for the Appellant: Mayek Legal, Barristers & Solicitors
Counsel for the First Respondent: Mr G Johnson SC with Mr N Swan
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent:
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Details
Case
[2021] FCAFC 138
Decision Date

CaseChat Overview and Summary

In Uolilo v Minister for Home Affairs, the appellant, Valufitu Fiu Uolilo, a Samoan national residing in Australia, sought judicial review of the Minister for Home Affairs' decision to refuse him a permanent visa. The appellant had applied for a permanent visa in 2013 but was refused due to concerns about his character, specifically his criminal convictions in Samoa for grievous bodily harm and being armed with a dangerous weapon. The appellant had absconded from his sentence in Samoa and arrived in Australia without serving his full sentence. The primary judge dismissed the appellant's application for judicial review, and the appellant sought leave to appeal on new grounds.

The key legal issues before the court were whether the appellant should be granted leave to rely on new grounds of review on appeal that were not raised before the primary judge and whether those grounds lacked merit. The court had to assess the merits of the new grounds of appeal and the appellant's failure to raise them before the primary judge.

The court held that the appellant should not be granted leave to rely on the new grounds of appeal. The court found that the new grounds lacked merit and that the appellant's failure to raise them before the primary judge was not adequately explained. The court dismissed the appeal and ordered the appellant to pay the first respondent's costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal as taxed or agreed.

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

Background

Background to the litigation

At the commencement of the hearing, the appellant was given leave to file an amended notice of appeal, which deletes six grounds of appeal broadly corresponding to the six grounds of review rejected by the primary judge and inserts three new grounds of appeal. The appellant was given leave to file that document on the express understanding that the Court would still need to determine whether he should be given leave to rely on any of the three new grounds. FACTUAL BACKGROUND The primary judge’s reasons include a detailed account of the background to the appellant’s application for judicial review. The following account of the relevant facts is drawn largely from her Honour’s reasons. The appellant, Valufitu Fiu Uolilo, is a Samoan national who has lived in Australia since 31 August 2014. On 27 January 2012, the appellant married an Australian citizen and on 26 August 2013, sponsored by his wife, he applied for a Partner (Provisional) (Class UF) (Subclass 309) visa (the “temporary visa”) and a Partner (Migrant) (Class BC) (Subclass 100) visa (the “permanent visa”). On 13 January 2013 the appellant was convicted in the Supreme Court of Samoa of two criminal offences, compendiously referred to by the Tribunal as “grievous bodily harm” and “armed with dangerous weapon”. He was sentenced to two years’ imprisonment for the first offence and nine months’ imprisonment for the second offence. The sentences were to be served concurrently. On 27 May 2014 the appellant submitted to the Australian authorities a Penal Clearance certificate, purporting to be issued by the Samoan Ministry of Police and Prisons, stating that the appellant “has passed the records verification conducted by the Samoan Police” with findings of “no [c]riminal or [t]raffic offences”. On 9 July 2014 the appellant was granted a temporary visa. On 31 August 2014, having served seven months of his two-year sentence, the appellant absconded from jail, and flew from Samoa to Australia. On his incoming passenger card he ticked “No” against the question “Do you have any criminal conviction/s?” and declared the contents of the card to be true, correct, and complete. On 12 September 2014 the Department of Immigration and Border Protection was advised that the appellant had escaped from jail and had travelled to Australia. A Penal Clearance Certificate was subsequently obtained from the Samoan Ministry of Police and Prisons which disclosed his convictions. On 25 August 2016 the Department invited the appellant to comment on evidence suggesting that he had provided, or caused to be provided, a bogus document or false or misleading information in relation to his visa application, and as such may not satisfy the Public Interest Criterion (“PIC”) 4020(1) (contained in Sch 4 Pt 1 of the Migration Regulations 1994 (Cth)).The first decision On 4 October 2016 a delegate of the Minister refused to grant the appellant a permanent visa on the ground that the appellant did not meet PIC 4020 because he had provided a bogus document to the Department, being the “Penal Clearance Certificate”.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal’s decision was later quashed and a writ of mandamus issued requiring the Tribunal to determine the appellant’s application for review according to law: see Uolilo v Minister for Home Affairs [2019] FCA 336. THE TRIBUNAL’S DECISION The proceeding before the primary judge concerned the subsequent (third) decision of the Tribunal made on 16 December 2019 on the rehearing of the application for review. It was common ground that, because of the sentence he had received, the appellant did not and could not satisfy the Tribunal that he passed the character test. Accordingly, the only question for the Tribunal to determine was whether it should exercise its discretion to refuse the permanent visa under s 501(1). Taking into account all the evidence the Tribunal concluded that the primary considerations of protection of the Australian community and the expectations of the Australian community outweighed the other considerations and that the decision under review should be affirmed. In light of the new grounds of appeal upon which the appellant seeks to rely, it is necessary to refer in some detail to three particular matters that were considered by the Tribunal. The first concerns the appellant’s sentence. The Tribunal said at [46]-[55]:[46]The Applicant was convicted and sentenced to a term of imprisonment of 24 months for the offences of grievous bodily harm and being armed with a dangerous weapon by the Supreme Court of Samoa in relation to an incident which occurred in Samoa. On the basis of the evidence, this was a “one off” offence and there is no indication of any violent reoffending. Certainly no further charges have been laid.[47]I note that paragraph 11.1(1) of the Direction is of particular importance in considering this issue. It provides as follows:When considering the protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct.[48]The Applicant put forward a number of matters in mitigation of his offence including that the victim was the aggressor in the violent incident; that the Applicant acted only in self-defence; that he had never had any prior convictions; and that the police had told him to plead guilty when the matter was taken to court, that he did not need a lawyer and that the consequences would not be serious. In the Applicant’s view, he was sent to prison because of a corrupt statement on the part of the police, made to the court.[49]I accept that the Applicant did not have any previous criminal record. I also accept his evidence as to the circumstances of how the offences of which he was found guilty occurred.[50]The difficulty for the Applicant is that the offences of which he was found guilty, namely grievous bodily harm and being armed with a dangerous weapon, are very serious. He does not deny assaulting the victim.[51]The Applicant did not have a lawyer for the Supreme Court proceedings. He stated that he was told by the police that he did not need a lawyer and did not pursue the matter further.[52]Whilst the Applicant is free to raise matters before the Tribunal related to his offence, the Tribunal cannot, and in my view should not, contradict or impugn a conviction by a Court, nor the facts upon which that conviction was based. This is well established in a number of cases including Minister for Immigration and Multicultural Affairs v “SRT” (1999) 91 FCR 234; Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 247; and Minister for Immigration and Ethnic Affairs v Gungor (1982) FLR 441 [sic].[53]The Applicant was sentenced to a period of 24 months imprisonment. Given that imprisonment is usually a last resort, the severity of the offences is reflected in the length of that sentence. As Senior Member Poljak observed in PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] (footnotes omitted):The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him (paragraph 13.1.1(c)). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved. In the present case, the applicant has been sentenced to period of imprisonment totalling 96 months (eight years) and 30 days as a result of his offences.[54]The Applicant’s conduct in Samoa would attract criminal penalties in Australia if he were to commit the same offences in this country.[55]After he was convicted and sentenced the Applicant failed to serve his sentence as required and left the prison after serving only seven months in order to come to Australia. In evidence, the Applicant admitted that he knew that he was required to serve the full period of his sentence.

Ratio Decidendi

Legal Principle Established

Part B includes various paragraphs including para 12 which relevantly states:12. Other considerations - visa applicants(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) International non-refoulement obligations;b) Impact on family members;c) Impact on victims;d) Impact on Australian business interests.12.1 International non-refoulement obligations(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.(2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen's visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non­refoulement obligation exists.(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa)(4)where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.(5)If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).(6)In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa application were refused, they would face the prospect of indefinite immigration detention.12.2 Impact on family members(1)Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;12.3 Impact on victims(1)Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal;12.4 Impact on Australian business interests(1)Impact on Australian business interests if the non-citizen's visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.GROUND 1