Utu v Minister for Home Affairs

[2019] FCCA 2245

FEDERAL CIRCUIT COURT OF AUSTRALIA

UTU v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2245

Catchwords:
MIGRATION – Whether the Tribunal failed to conduct a review of the Delegate’s decision – whether the Tribunal failed to apply or misconstrued Australia’s international obligations – Convention on the Rights of the Child – International Covenant on Civil and Political Rights – whether the Tribunal should have considered the Delegate’s purported failure to provide procedural fairness to the applicant – whether the Tribunal failed to consider the degree of hardship that would be caused by cancelling the applicant’s visa.

Legislation:

Convention on the Rights of the Child, article 3.

International Covenant on Civil and Political Rights, article 23(1)

Migration Act 1958 (Cth), s.116

Cases cited:

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Applicant: MCCANN LIVINGSTON UTU

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 3640 of 2018

Judgment of: Judge McNab

Hearing date: 1 August 2019

Date of Last Submission: 1 August 2019

Delivered at: Melbourne

Delivered on: 16 August 2019

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondent: Mr Hosking

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application filed 30 November 2018 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3640 of 2018

MCCANN LIVINGSTON UTU

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed on 30 November 2018, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘Tribunal’) made on 20 November 2018. By that decision, the Tribunal affirmed a decision of a delegate (‘Delegate’) of the Minister for Home Affairs (‘the Minister’) to cancel the applicant’s visa pursuant to section 116 of the Migration Act 1958 (Cth) (‘the Act’).

2. The applicant’s appeal was heard on 1 August 2019.

3. For the reasons which follow, I have concluded that the application should be dismissed.

Background

1. The applicant was born in Samoa and at the time of the hearing, he is a 46 year old national of New Zealand.

2. The applicant first entered Australia on 12 July 2005 and returned to New Zealand on a number of occasions. He most recently entered Australia on 1 June 2016. Upon entering Australia, the applicant was granted a Class TY Subclass 444 Special Category visa. This visa has now been cancelled.

3. At [10] of the Tribunal’s decision record, the applicant’s convictions in Australia are set out. That record shows that since November 2007, the applicant has been convicted of numerous criminal offences in New South Wales and Victoria, many of which involve violence. These include, amongst others, convictions for:

   a)contravening an apprehended violence order;

   b)on 22 September 2016, recklessly causing injury and making a threat to kill;

   c)on 7 February 2018, contravening a family violence intervention order; and

   d)on 14 March 2018, recklessly causing injury, making a threat to kill and unlawful assault.

4. The applicant has served terms of imprisonment for a number of the offences which he has been convicted of.

5. On 29 August 2018 the Department of Home Affairs (‘Department’) sent the applicant a notice of intention to cancel his visa under section 116(1)(e)(i) of the Act. That section provides:

   (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

   […]

   (e) the presence of its holder in Australia is or may be, or would or might be, a risk to:

   (i) the health, safety or good order of the Australian community or a segment of the Australian community; or

   […]

   […].

   No response was provided by the applicant to the notice.

6. On 1 October 2018, the Delegate cancelled the applicant’s visa pursuant to that provision.

7. The applicant applied to the Tribunal for a review of the decision on 15 October 2018.

8. Written submissions were provided by the applicant together with other documents which are found at pages 85, 94 to 104, 105 to 109, and 111 to 116 of the Court Book. By a submission contained in a statutory declaration sworn on 15 November 2018, the applicant stated, amongst other things:

   It is an indisputable fact that I may be or would or might be, a risk to (i) the health, safety or good order of the Australian community or a segment of the Australian community in accordance with section 116(1)(e)(i) of the Migration Act 1958.

9. On 19 November 2018, the applicant appeared before the Tribunal giving evidence and presenting arguments with the assistance of an interpreter. One of the applicant’s daughters also gave evidence.

10. On 20 November 2018, the Tribunal affirmed the Delegate’s decision.

The Tribunal’s Findings

1. The Tribunal set out, in clear terms, the background of the applicant, his history of offending, and his record of pending charges.

2. The Tribunal was aware that at the time of the Delegate’s decision that Victoria Police were alleging that, on 10 January 2017, the applicant and a co-accused assaulted a man. It is alleged that the applicant and co-accused were armed with a cricket bat and a “vacuum pole” and smashed windows at the victim’s residence.

3. The victim suffered a broken arm in three places, lacerations to the left side of his face, his ear, the back of his head, his right shin and right knee. The victim was left experiencing immense pain with injuries that required ongoing rehabilitation.

4. The Tribunal also noted at [8] that the applicant and his wife have seven children but that he separated from his wife in about 2015. Since 2015, the applicant has lived in Melbourne whilst his wife and children have lived in Sydney. The applicant has not returned to Sydney since leaving.[1] Apart from one visit a few days prior to the Tribunal hearing from his daughter who is about 20, the applicant’s wife and children have not visited him in Melbourne.[2]

   [1] Tribunal’s decision record dated 20 November 2018, [16].

   [2] Ibid [16].

5. The Tribunal notes that the applicant had been planning to see two of his children and his two grandchildren but that he was either in prison or otherwise required to stay in Victoria until his October 2018 Court date.[3]

   [3] Ibid [16].

6. The Tribunal, at [27] to [31], found that it was satisfied that the presence of the applicant in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community. In explaining that decision, the Tribunal stated as follows at [30]:

   Mr Livingston Utu’s criminal record shows a number of serious crimes against the person committed over several years. Of particular concern are the breaches of orders made for the protection of persons. Mr Livingston Utu now expresses remorse for his past actions and indicates that he would undertake whatever behavioural management programs may be required but he has offended repeatedly and breached these orders. The Tribunal is especially concerned that Mr Livingston Utu was not forthcoming when it questioned him about the circumstances of his offending. While he says that that his imprisonment ending early this year made him learn from his “mistake”, his lack of candour casts doubt on the genuineness of his remorse.

7. At [32] to [43] the Tribunal considered whether it should exercise its discretion to cancel the visa, and in doing so, had regard to:

   a)the purpose of the applicant’s travel and stay in Australia and whether he has a compelling need to travel or remain in Australia;[4]

   b)the extent of the applicant’s compliance with his visa conditions, noting that as there were no visa conditions the factor had no weight;[5]

   c)the degree of economic hardship that may be caused by cancelling the applicant’s visa, with the Tribunal not being satisfied that the applicant would be unemployed or destitute if he returned to New Zealand or Samoa;[6]

   d)the degree of emotional hardship that may be caused by cancelling the applicant’s visa, finding that emotional hardship is a factor that has some weight in not cancelling the visa;[7]

   e)the circumstances in which the ground of cancellation arose and whether those circumstances were beyond the applicant’s control, with the Tribunal noting that the applicant had stated that he is or may be, or would or might be, a risk to the community or a segment of the community;[8]

   f)the applicant’s past and present conduct to the Department, giving moderate weight to the applicant’s failure to respond to the notices of intention to consider cancellation (‘NOICC’);[9]

   g)the mandatory legal consequences of cancelling the applicant’s visa, with the Tribunal noting that despite face-to-face contact being more difficult should the applicant be in New Zealand, the applicant had not spent time with most of his family since 2015 and as weighed against the seriousness of the applicant’s conduct in Australia, the mandatory consequences would not be unreasonable;[10]

   h)any consequence to other visas that would result from cancelling the applicant’s visa, noting that revoking the applicant’s visa would not affect the rights of any of his family to remain in Australia;[11]

   i)whether any international obligations such as the Convention on the Rights of the Child would be breached as a result of cancelling the applicant’s visa, giving limited weight to this consideration in light of the applicant having not been in regular contact with his children since 2015;[12] and

   j)the letters of support from the applicant’s friends, noting that these provided limited support for his non-cancellation.[13]

   [4] Ibid [33].

   [5] Ibid [34].

   [6] Ibid [35].

   [7] Ibid [35].

   [8] Ibid [36].

   [9] Ibid [37].

   [10] Ibid [38].

   [11] Ibid [39].

   [12] Ibid [40].

   [13] Ibid [42].

8. The Tribunal, at [43], concluded, after considering the applicant’s circumstances, that the visa should be cancelled.

Grounds of Review

1. The grounds of review are set out in the applicant’s submissions which were filed on 4 June 2019. In summary, these grounds are that:

   a)the Tribunal failed to conduct a review of the Delegate’s decision and thereby made an error of law;

   b)the Tribunal failed to apply or misconstrued Australia’s international obligations, particularly its obligations under the Convention of the Rights of the Child by failing to take into account the effect that deporting the applicant may have on his children and grandchildren;

   c)the Tribunal failed to deal with the applicant’s arguments about the Delegate’s failure to accord him procedural fairness; and

   d)the Tribunal failed to consider the degree of hardship that may be caused by the cancellation of the applicant’s visa.

2. The applicant appeared before the Court with the assistance of an interpreter. He addressed the Court and read from the submissions he filed and referred to the grounds of review.

Consideration

Ground 1

1. The applicant submits that the Tribunal failed to conduct a review of the Delegate’s decision, and effectively failed to consider the application for review and thereby made an error of law.

2. The Tribunal’s role is to stand in the shoes of the Minister and determine what is the correct or preferable decision on the material before the Tribunal.[14] The Tribunal correctly recognised it was required to be satisfied that a ground of cancellation existed and then was required to exercise a discretion as to whether to cancel the visa.

   [14] See, for instance, Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 68-9 (Bowen CJ and Deane JJ).

3. It is apparent from the face of the Tribunal’s decision record that the Tribunal considered the evidence before it, including evidence that was not put before the Delegate. The Tribunal plainly considered for itself the application for review and discharged its statutory task. There is no error of law under this ground.

Ground 2

1. The applicant submits that the Tribunal misapplied and misconstrued Australia’s international obligations, particularly under the Convention on the Rights of the Child. The submission puts it that the Tribunal misconstrued the Convention on the Rights of the Child because:

   a)the Tribunal took into account the lack of contact between the applicant and his children where the Convention on the Rights of the Child does not mention how much communication a parent is supposed to have with their children; and

   b)the Tribunal did not consider the seriousness of the consequences for the applicant’s children if the applicant is deported.

2. At [40] of the Tribunal’s decision record, the Tribunal specifically referred to article 3(1) of the Convention on the Rights of the Child and set out the terms of the provision and other relevant provisions and conventions. The Tribunal set out that the effect of article 3(1) is that:

   in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.[15]

   [15] Tribunal’s decision record dated 20 November 2018, [40].

3. The Tribunal also referred to the article 23(1) of the International Covenant on Civil and Political Rights. The Tribunal noted that article 23(1) provides that the family is the natural and fundamental unit of society and is entitled to protection by society and the State. The Tribunal went on to say:

   The children, apart from Mr Livingston Utu’s eldest daughter who lives with her partner and their two children, reside with their mother. They all reside in Sydney. The Tribunal has essentially considered the best interests of the children in the context of whether there are mandatory legal consequences of cancellation. The Tribunal has noted especially the lack of contact between Mr Livingston Utu and his children for the past three years and the absence of a satisfactory explanation for that. The Tribunal ultimately gives limited weight to this consideration.[16]

   [16] Ibid [40].

4. At [38] the Tribunal noted that, to the extent that the applicant’s involvement with his children consisted of financial support and contact by telephone, this contact may continue if the applicant were overseas.

5. The Tribunal also considered evidence from two of the applicant’s children about the effect that the applicant’s deportation would have on them.[17] These two children and the applicant gave evidence that the applicant’s deportation would be emotionally detrimental to the applicant’s family, and the Tribunal took this into account. At [38] the Tribunal stated:

   but if providing financial support and making even regular contact by telephone has been the extent of Mr Livingston Utu’s involvement with his family for the past three years, his removal from Australia would not materially affect that.

   [17] See Tribunal’s decision record dated 20 November 2018, [22]-[23] and [38].

6. The Tribunal noted his submission that visa cancellation would have a serious impact on him but, as the Tribunal stated:

   taking into account all the considerations just mentioned, but also taking into account the seriousness of Mr Livingston Utu’s conduct, which has more or less been repeated over a number of years, the Tribunal considers that the mandatory consequences that it has referred to would not be unreasonable.

7. The Tribunal has taken into account the relevant international conventions and the effect that deportation will have on his children. I am satisfied that there is no error disclosed in the manner in which the Tribunal has dealt with this matter.

Ground 3

1. This ground raises arguments about the Delegate’s failure to afford him procedural fairness. As was submitted by the Minister, the task of the Tribunal on review is to stand in the shoes of the Minister and make the correct or preferable decision on the material before it. It is not to consider whether the Delegate’s decision is affected by jurisdictional error. I accept that submission.

2. Further, as was referred to by the Minister, the material before the Tribunal showed that the NOICC of the visa was sent to the applicant’s address by mail.[18] The Minister also sent the NOICC by confirmatory email.[19] The Tribunal also noted, in [2] of the decision record, that the applicant acknowledged that he was living at the address the NOICC was sent to. He says, however, that he did not receive it.

   [18] Court Book, 59 and 64-5.

   [19] Court Book, 64-5.

3. The Tribunal was not required to consider whether the Delegate had afforded the applicant procedural fairness. The Tribunal, therefore, did not make an error.

Ground 4

1. The fourth ground concerns whether the Tribunal failed to consider the degree of hardship that may be caused by the cancellation of the applicant’s visa. The applicant submitted that he has no family in New Zealand and that it would be hard for him to obtain work in New Zealand and Samoa.[20]

   [20] Court Book, 88 and 99.

2. At [23], [35] and [38] of the Tribunal’s decision record, the Tribunal considered those claims and acknowledged that there would be hardship (particularly emotional hardship) to the applicant arising from the cancellation of his visa.[21] The Tribunal also considered whether the applicant’s mental health may suffer as a result of deportation.

   [21] Tribunal’s decision record dated 20 November 2018, [35].

3. The Tribunal did consider that hardship, particularly emotional hardship, to the applicant was a factor which had some weight in favour of not cancelling his visa.[22] However, the Tribunal, in weighing up the considerations in relation to exercising the discretion to cancel the visa, determined that it would not exercise a discretion in the favour of the applicant.[23]

   [22] Ibid [35].

   [23] Ibid [43].

4. There is no substance to the ground that the Tribunal failed to take into account the hardship to the applicant.

Conclusion

1. For these reasons, the application must be dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:  

Date:  16 August 2019