Walker v Minister for Immigration
[2008] FMCA 1545
•10 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WALKER v MINISTER FOR IMMIGRATION | [2008] FMCA 1545 |
| MIGRATION – Visa – refusal to grant special category visa – application for injunction to restrain deportation of applicant – behaviour concern non-citizen – dishonesty of applicant in not declaring full criminal history – no error of law or fact on the part of the Minister’s delegate in refusing to grant a special category visa – balance of convenience – whether serious question to be tried. |
| Migration Act 1958 (Cth), s.32(2)(a)(ii) |
| Applicant: | KARITIANA TE KORAY BRONSON PENETI WALKER |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | PEG 169 of 2008 |
| Judgment of: | Lucev FM |
| Hearing date: | 10 November 2008 |
| Date of Last Submission: | 10 November 2008 |
| Delivered at: | Perth |
| Delivered on: | 10 November 2008 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr P R Macliver |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application for an injunction be dismissed.
Costs be reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 169 of 2008
| KARITIANA TE KORAY BRONSON PENETI WALKER |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(Ex tempore - edited and revised from the transcript)
Background
The applicant seeks an injunction to stop his deportation. The applicant arrived in Australia from New Zealand on 6 November 2008.
There appears to be little dispute about the fact that the applicant is a New Zealand citizen holding, it seems, a valid New Zealand passport upon which he sought to enter Australia on 6 November 2008. In flight, the applicant completed an incoming passenger card. On that passenger card, the applicant indicated that he was seeking to migrate permanently to Australia.
The applicant also indicated that he did not have any criminal convictions, and the incoming passenger card contains a declaration next to the space for the applicant’s signature which provides that:
“The information given is true, correct and complete. I understand failure to answer any questions may have serious consequences.”
Information available to the Australian Department of Immigration and Citizenship[1] indicated that Mr Walker did have a criminal history in New Zealand. That criminal history appears to consist of major offences, including three counts of aggravated robbery, two counts of unlawful detention, and unlawful taking of a motor vehicle which appears to be in conjunction with the two major offences, and minor alcohol and driving related offences.
[1] “Department”.
The major offences appear to have occurred when Mr Walker was a minor.
Against that information available to the Department, the applicant completed upon arrival in Australia, at the behest of the Department, a Criminal History Details form. It is appropriate to read the form more or less in its totality:
“Please provide full details of all convictions and all outstanding charges against you where indicated below. The reference to “all charges” includes charges or offences which have been resolved pending a hearing or a trial, charges which have been dismissed and charges which have resulted in your acquittal of a criminal offence or where no conviction has been recorded. You are also asked to list all convictions including those now considered to be concealed or spent. This information is required whether you believe it to be relevant to your entry or not.
Further police checking may be undertaken.
Australia requires that all visa holders be of good character and may refuse entry to persons who do not satisfy the character provisions of the Migration Act 1958 and the Migration Regulations 1994. Failure to declare any convictions (including concealed or spent convictions) or outstanding charges can result in cancellation of your visa at any time.”
Under the heading “Convictions” the applicant has then entered a date of 2008 and details of convictions being “driving on learners” and “speeding”. It is not apparent whether it is meant to indicate one conviction or two. There is a note next to that entry where the applicant has written “no loss of licence”. The form then asks the following question:
“If you did not declare your criminal record on your incoming passenger card please provide your reasons for not doing so.”
The applicant has written under that
“Because i [sic] herd [sic] that people got away with doing that and all i [sic] wanted was to start a new life.”
The declaration that follows thereafter and which is signed by the applicant is in the following terms:
“I have now listed full details of my criminal history above and declare that I have no convictions or charges which are not listed here. I am aware that failure to disclose criminal history details in Immigration Clearance could result in cancellation of my visa. I authorise the Department of Immigration and Citizenship to conduct Criminal History checks on my behalf.”
There are two documents before the Court entitled “Notice of Refusal of Special Category Visa Application”. The applicant’s document indicates that on 6 November 2008, Ms Pendleton gave to the applicant in Immigration Clearance, a document indicating that he was a “behaviour concern non-citizen” and for that reason his special category visa application had been refused. The document notes that the criteria for the grant of the special category visa are those set out in s.32(2) of the Migration Act1958.[2]
[2] “the Act”.
The Court has received various expressions of support for the applicant from family and friends indicating that he is hard working, reliable, honest and that he has available employment opportunities in Australia.
The applicant has told the court that he was a minor when the offences were committed, that he is deeply remorseful about what he has done, and that he wishes to come to Australia to start a new life here with his family.
Conclusions concerning disclosure
The Court finds as a fact that the applicant was dishonest in failing to disclose his criminal history on his incoming passenger card. The Court also finds as a fact that the applicant was dishonest in that he failed to give the Department his full criminal history in the Criminal History Details declaration. In relation to that declaration, whilst the applicant has declared his most recent driving related offences, he failed to include in the Criminal History Details form the serious offences of aggravated robbery, unlawful detention and the associated offence of unlawfully taking a motor vehicle.
Behaviour concern non-citizen
The criteria for entry in the special category visa class are set out in s.32(2) of the Act and, in particular, relevantly here s.32(2)(a)(ii) in that if the Minister’s delegate is satisfied that the person concerned is a behaviour concern non-citizen, then the Minister’s delegate may refuse to grant a special category visa. The definition of a behaviour concern non-citizen includes a person who has been convicted of a criminal offence for which the sentence is more than one year’s imprisonment or a series of offences for which more than one year’s imprisonment has been imposed. The Court notes that the sentences imposed in relation to the serious offences for which the applicant was convicted in New Zealand appear to be either three years or upwards of three years.
Grounds for Injunction
In determining whether to grant an injunction the Court has to have regard to:
a)the balance of convenience; and
b)whether there is a serious issue to be tried.
In relation to the balance of convenience the Court has had regard to the information put on the applicant’s behalf by members of his family and the statement that the applicant has made to the Court. In that regard the Court accepts that the applicant seeks to enter Australia to make a new life; that he has the, not unnaturally, support of family and friends; and that he may well now be remorseful because he realises the consequences of his actions in failing to make the proper declarations, not once but twice, in connection with his entry to Australia.
It is open to infer from what the applicant said on the Criminal History Details form and from the manner in which he has completed both the incoming passenger card and the Criminal History Details form that he has, in essence, tried to get away with not disclosing the serious parts of his criminal history and, in effect, has been dishonest in doing so.
The Court has to weigh the balance of convenience, having regard to those factors outlined above and whilst the Court accept parts of what has been put to the Court on behalf of the applicant, both by the applicant and members of his family, there is nothing in what he has said which makes the balance of convenience overwhelming in his favour.
There is not a lot in the circumstances which one would categorise as out of the ordinary in terms of what has been put on his behalf before the Court today and that must, of course, be balanced against, the fact of his dishonesty not once but twice in relation to his coming into Australia, and the gravity of the offences that he sought to hide.
In relation to whether there is a serious issue to be tried, it is clear that the applicant meets the definition of a behaviour concern non-citizen, that the Minister’s delegate was satisfied that the applicant met that definition and refused to grant a special category visa under s.32(2)(a)(ii) of the Act in those circumstances.
It appears to the Court that, in so doing, there was no error of fact by the Minister’s delegate. There was no error of law by the Minister’s delegate. There would be no basis, in the Court’s view, for it to undertake judicial review of the decision which the Minister’s delegate made having regard for the fact that there is no error of fact and no error of law. In all of those circumstances, the Court is not satisfied that there is a serious issue to be tried.
Conclusion on application for injunction
In those circumstances, the application for injunction must be dismissed.
If the applicant seeks to enter Australia in the future the matters that have been put to this Court can be put to the Department. The Department must make the decision on the merits of any such application, and will, no doubt, take into account what is then said on his behalf.
On the basis of what is presently before the Court, the Court is not satisfied that the balance of convenience is such that it weighs in favour of the applicant or if it does, it weighs in favour of the applicant only marginally. There is no serious issue to be tried. Looking at those two factors together, the Court considers that the application for the injunction, as it has indicated, must be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Lucev FM
Deputy Associate: Michele Lord
Date: 14 November 2008
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