Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 The Applicant, Mr Bale, is a citizen of Fiji who has lived in Australia since March 1996. He married his wife, who is Australian, in 1999 and he was granted a spouse visa on 19 June 2003. Until the events which are the subject of this proceeding he held a Class UK Subclass 820 Spouse visa. The Administrative Appeals Tribunal ('the Tribunal') said that Mr Bale presented 'as a fit-looking, solid build who said in evidence that he had been a former boxer.' Commencing in 1998 Mr Bale has accrued an extensive criminal record comprising of 31 convictions for a range of lesser offences including larceny, being in possession of goods reasonably suspected of having been stolen, shoplifting, stalk/intimidate, assault, destruction of property, failing to appear whilst on bail, possession of prohibited drugs and so on. He also has a history of domestic violence against his wife and has been convicted twice of assaulting her and of breaching apprehended violence orders. In addition he has accrued a number of driving and traffic offences. He has frequently been in and out of gaol over the last 20 years and has had many brushes with the law. 2 On 15 April 2017 he was involved in an incident at a shop in which he stole a cigarette lighter and threatened a shop assistant. As a result of this incident he was charged. At this time he had just been remanded on bail on 9 April 2017. On 23 November 2017 he was convicted by a magistrate in the Liverpool Local Court of the offence Stalk/intimidate intend fear physical harm (personal) - T2 and of the offence of larceny (the stealing of the cigarette lighter). At the time of his conviction he was on bond in relation to a number of other offences. The magistrate revoked those bonds and proceeded to confirm the convictions to which they related. The sentencing in relation to those other offences was complex but resulted in him being imprisoned until at least 21 May 2018 (and possibly longer). For the offence of larceny he was sentenced to two months imprisonment commencing on 23 April 2018 and for the offence of stalk/intimidate a period of 12 months also commencing on 23 April 2018, with a non-parole period of 6 months. Consequently, he was eligible for parole on 22 October 2018. However, he was subsequently convicted of two further offences on 14 December 2017 (goods in custody) and was sentenced to a further two months imprisonment commencing on 22 October 2018. In the event, he would not be eligible for parole until 21 December 2018. 3 This meant that he was serving a sentence of imprisonment on 14 August 2018. The significance of that date is that on that day a delegate of the Minister ('the delegate') informed Mr Bale that his visa had been mandatorily cancelled due to the operation of s 501(3A) of the Migration Act 1958 (Cth) ('the Act'). This was because two triggering conditions of that provision had been satisfied. The first of these was that he had been sentenced to a term of imprisonment of 12 months or more: s 501(3A)(a)(i) and the second was that as at 14 August 2018 Mr Bale was serving a full-time sentence of imprisonment: s 501(3A)(b). Upon satisfaction of both of those matters the delegate was required by s 501(3A) to cancel Mr Bale's visa. 4 Section 501CA(4) of the Act then permitted Mr Bale to make representations to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs ('the Minister') to have that cancellation revoked. On 21 August 2018 Mr Bale made representations under that provision to revoke the cancellation. At the same time he completed a personal circumstances form. Relevantly under a heading which invited him to describe what impact the cancellation of his visa would have on his wife Mr Bale said: My wife will be devastated as I am her support, best friend and when I am not in custody I am her carer. 5 Under another heading which invited him to describe the impact of the cancellation on his family he said in relation to community groups that: The community groups would be devastated as one of their people has left. 6 He expanded upon this further in another section of the form which invited comment on the hardship which the cancellation would cause to the Australian community: I wouldn't be able to volunteer in my groups, help community with cleaning projects. 7 On 21 December 2018 Mr Bale was released on parole from Junee Correctional Centre and taken into detention by the Department of Home Affairs ('the Department'). This was because upon his release he was an alien who did not hold a valid visa and was required, therefore, by s 189 of the Act to be held in immigration detention His parole period was due to expire on 22 April 2019. 8 On 22 December 2018 Mr Bale was interviewed by a Departmental official. During this interview he informed the official that his wife suffered from schizophrenia. He also informed the official that he had two brothers who lived in Suva in Fiji. 9 On 15 March 2019 Mr Bale's younger daughter submitted a letter of support which included this statement: There is nothing for him in Fiji, all his family are here in Australia. His got no house to live in and got not financial support whatsoever. It's easier if he lives with us in Australia so that we can support each other with food, lodging and expenses. If he goes to Fiji, it will be hard supporting him cause we have got our own lives to live and no way of keeping an eye on each other. (Emphasis added) 10 In an undated letter of support, his elder daughter informed the Department that if Mr Bale was deported 'it will be… much harder to support him from here'. 11 On 19 March 2019 the Department wrote to Mr Bale and asked him to comment on further materials which the Department had obtained. These materials consisted principally of his criminal record and two sets of sentencing remarks including those of the magistrate at the time of his conviction on 23 November 2017. The Department's letter called for a response within 28 days. On 5 April 2019 Mr Bale's wife submitted a letter of support in which she said that she needed her husband for companionship and camaraderie. On 24 May 2019 the Department wrote to Mr Bale for further comment on information it had obtained. It called for a response within seven days. On 30 May 2019 he made a submission. 12 On 23 August 2019 the delegate decided that the cancellation of Mr Bale's visa should not be revoked. On 26 August 2019 Mr Bale was notified of the delegate's decision. On 27 August 2019 he confirmed that he had received the decision. 13 On 2 September 2019 Mr Bale applied for a review of the delegate's decision by the Tribunal by completing the prescribed form. In the section headed 'Reasons for the Application' Mr Bale stated that he had lived in Australia for more than 20 years, that his wife was suffering from a mental illness and that the delegate had not adequately taken this into account. 14 On 20 October 2019 Mr Bale's daughters wrote him letters of support in addition to an earlier letter written by his son. 15 On 21 October 2019 Mr Bale's wife wrote another letter of support this time to the Tribunal. Amongst other things, she explained her schizophrenia and related mental health issues and her need for support. On 23 October 2019 Mr Bale made a written submission to the Tribunal. 16 On 28 October 2019 and 5 November 2019 the Tribunal heard Mr Bale's review application. On 19 November 2019 the Tribunal affirmed the delegate's decision. On 20 December 2019 Mr Bale commenced a judicial review proceeding in this Court seeking to quash the Tribunal's decision. That application was heard in this Court on 28 April 2019. At the hearing Mr Bale applied for, and was granted, leave to amend his originating application. Mr Bale was represented by Mr J Barrington of junior counsel and the Minister by Ms K Pham of junior counsel. 17 The case was argued with precision on both sides. It was submitted that the Tribunal had made a jurisdictional error in its treatment of Mr Bale's review application in two ways. The first submission made on Mr Bale's behalf was that the Tribunal had failed to take into account the impact of not revoking the visa cancellation on his wife as a victim of his criminal offending. It was accepted that the Tribunal had considered the impact on his wife of not revoking the visa cancellation but it was submitted that it had done so only in the context of assessing what the impact on her as a family member would be. 18 The relevant matters that the Tribunal had to take into account were relevantly specified in Direction 79 made under s 499 of the Act: BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104 at [9] per Collier, Flick and Perry JJ. Clause 14(1) of Direction 79 is headed 'Other considerations - revocation requests' and provides relevantly: (1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to): … b) Strength, nature and duration of ties; … d) Impact on victims; … 19 The subject matter of cl 14(1)b) is then expanded upon in cl 14.2 which is headed 'Strength, nature and duration of ties'. In particular, cl 14.2(1)b) provides that the decision-maker must have regard to: b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely). 20 The subject matter of cl 14(1)d) is expanded upon in clause 14.4 which is headed 'Impact on victims' which provides: (1) Impact of a decision not to revoke 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 the non-citizen being considered for revocation has been afforded procedural fairness. 21 Where the crime in question is a crime against a member of the family unit cl 14.2(1)b) and cl 14.4(1) have the potential to overlap as this case shows. Mr Bale's submission takes advantage of this apparent overlap in cases involving domestic violence. If it is correct then in revocation decisions involving domestic violence it will be necessary to consider the impact on a spouse both as a spouse but also as a victim of crime. Mr Barrington submitted for Mr Bale that these are not necessarily the same. How did this play out before the Tribunal? 22 In this case, Mr Bale's wife gave evidence to the Tribunal supporting her husband's continued presence in Australia. 23 The Tribunal dealt with the topic the strength, nature and duration of Mr Bale's ties to Australia at [53]: The Applicant has lived in Australia for 23 years, since he was 30 years of age. The Applicant has a wife and three children who live in Australia and who are all Australian citizens. Evidence provided by the three children all speak very strongly about the desire for their father to remain in Australia, wishing for his emotional and parental support. They cite, for example, he has missed many milestones in their lives although, doubtless, this is a result of the Applicant's own doing. Reference has already been made to the wife's mental health. The weight to be attached to the Applicant's ties to his wife and the benefit to her of his remaining are still proper considerations which the Tribunal takes into account. Overall, despite the matters referred to by the Tribunal, this consideration weighs in the Applicant's favour. The Tribunal specifically accepts that the wife and children will be affected by the Applicant's removal from Australia. However, the wife would not be left alone in Australia without support as her three children appear to have a suitable and appropriate relationship with their mother. 24 The Tribunal's treatment of the impact on victims if the cancellation decision were revoked appeared at [54] in these terms: The Applicant's wife, who is properly considered a victim, gave evidence for the purpose of this consideration. Nothing in her evidence, nor inferred from the evidence, raised anything relevant to this consideration. 25 The submission is that the last sentence involves jurisdictional error because the wife's evidence that she supported her husband's desire to remain in Australia was relevant to any assessment of the impact of the non-cancellation on her as a victim. On this view, whilst it was relevant to know that Mr Bale had ties to the Australian community, as evidenced by his Australian wife's support for him, it was also relevant to know that when wearing her hat as one of his victims she was also content for him to remain. 26 I do not accept this argument because whichever way one looks at it, the fact that Mr Bale's wife desired for him to remain in Australia was taken into account by the Tribunal. Where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously: see Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141 at [40] per Tracey J; RZSN v Minister for Home Affairs [2019] FCA 1731 at [67] ff per Anderson J. And, as [54] of the Tribunal's reasons shows, the Tribunal was well-aware that she was one of his victims. 27 The only way to outflank that problem would be to submit that there was some aspect of the wife's evidence as a victim which was different from her evidence as a spouse. Such evidence might be readily enough imagined. For example, in her evidence Mr Bale's wife could have addressed the fact Mr Bale had been convicted of common assault following an attempt to throttle her early on the morning of 17 December 2007. She could have said that despite that assault she forgave him and was not concerned that he might assault her again. It may well be that evidence of that kind would have engaged cl 14.4(1) independently of cl 14.2(1)b). 28 The difficulty is that there was no evidence of that kind from Mr Bale's wife either before the delegate or the Tribunal. It is true that the delegate had remarked at [56] that he noted that she remained supportive of her husband despite his convictions for domestic violence offences. But this did not reflect anything more than her statement to the delegate that she was supportive of her husband and the delegate's own observation that this was despite the fact of those convictions. For that reason, the Tribunal was correct to observe at [54] that there was no evidence from her which raised anything which was relevant to a consideration of the impact of non-revocation on Mr Bale's victims. 29 In those circumstances, I do not accept Mr Barrington's first submission. 30 The second submission was that the Tribunal had failed to give active intellectual consideration to two representations which had been made by Mr Bale. The first of these concerned his contention that if he were repatriated to Fiji he would be rendered homeless. The evidentiary basis for this was to be found in a letter of support written to the delegate by his younger daughter on 15 March 2019 which contained the statement set out above but which I will repeat for convenience: There is nothing for him in Fiji, all his family are here in Australia. His got no house to live in and got no financial support whatsoever. It's easier if he lives with us in Australia so that we can support each other with food, lodging and expenses. If he goes to Fiji, it will be hard supporting him cause we have got our own lives to live and no way of keeping an eye on each other. 31 The delegate had dealt with this at [81] of his statement of reasons: I have had regard to concerns by Ms Senimili Rabuatoka that her father would be homeless and have no means of financial support in Fiji as he has no family or any social support network in that country. I have also considered her view that in the event of his removal, his immediate family in Australia would not have the means to assist him financially however, if he remained in Australia, they could all support each other and share expenses. 32 Mr Bale's younger daughter provided another such letter to the Tribunal on 20 October 2019 but on that occasion she did not repeat her statement that her father would be homeless if removed to Fiji. The Tribunal's treatment of this topic was at [55]-[56]: The Tribunal is prepared to accept that should the Applicant be returned to Fiji, he would be likely to struggle financially and furthermore, face social difficulties amongst his people because of his criminal history. He arrived in Australia as a 30 year old, and although he has returned to Fiji on two occasions, his life has been in Australia and importantly, his family are here in Australia. In Fiji, the Applicant has a number of siblings and extended family. It is undoubted that should the Applicant return to Fiji, this would be disruptive to his own family to a great degree (as discussed above) and he himself would naturally have some difficulty adjusting to a different culture and environment. It may also be supposed that he would not have the social or health support that Australia offers in Fiji. Because of the effects on both the Applicant and his family should he be removed, this consideration carries considerable weight in his favour. 33 It will be seen that this did not expressly advert to the younger daughter's earlier statement to the delegate (but not the Tribunal) that he would be rendered homeless if he were returned to Fiji. It was not submitted in this Court that the Applicant himself gave evidence to that effect or that he had suggested to the Tribunal that prospective homelessness was a matter which it ought to take into account. 34 Ms Pham submitted for the First Respondent that because such a case had not been articulated the Tribunal had not erred in failing to deal with it. I accept this submission. This was not a case where a clearly articulated argument had been advanced for revocation of the cancellation decision or even where sufficiently important information had been raised so as to oblige the Tribunal not to overlook the topic (see Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 263 FCR 531 at [30] per Rangiah J; Minister for Home Affairs v Omar [2019] FCAFC 188; 373 ALR 569 ('Omar') at [41] per Allsop CJ, Bromberg, Robertson, Griffiths and Perry JJ; Navoto v Minister for Home Affairs [2019] FCAFC 135 ('Navoto') at [103] per Middleton, Moshinsky and Anderson JJ). There was no evidence from the Applicant that he would be homeless if returned to Fiji and, when all is said and done, the highest it can be put is that the homelessness statement was made by his younger daughter in a letter of support. The Tribunal was not obliged to comb the evidence before it (and the delegate) to detect arguments which might have been put by Mr Bale but which were not: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [48] per Rares and Robertson JJ. 35 The second representation which the Tribunal is said not have engaged with concerned statements in the supporting materials about positive contributions made by Mr Bale to the Australian community. The first part of the evidence concerning this is to be found in his statement of personal circumstances made to the delegate on 21 August 2018. Under the heading 'Please describe the impact the cancellation of your visa would have, or has had, on your family' Mr Bale wrote: The impact would be devastating as we are a great close family. The community groups would be devastated as one of their people has left. 36 This did not explain what the community groups were. Under a later heading 'List positive contributions you have made to Australia for example, volunteer activities, participation in community and cultural activities, employment etc' Mr Bale wrote: I'm involved in a church group, Local Fijian community. 37 This heading was followed by the question 'What hardship would your removal from Australia cause to members of the Australian community?' which, as I have noted above, Mr Bale answered this way: I wouldn't be able to volunteer in my groups, help community with cleaning projects 38 The delegate dealt with this matter in these terms at [74] of his statement of reasons: I have considered that Mr BALE is involved in his local church group and local Fijian community and that if he was removed from Australia, he would not be able to continue volunteering for his groups or helping the community with the cleaning projects. I have also considered Mr BALE's concern that a non-revocation decision would be devastating for his community group who would lose one of their own. Whilst I have taken into consideration Mr BALE's concern, I also note that there has been no wider support received by the Department other than letters from immediate family. 39 It was accepted by Ms Pham that unlike the delegate the Tribunal had not expressly dealt with this aspect of the matter. But it was said that it was apparent from [53] of the Tribunal's reasons (which I have already set out above at [23]) that his positive contributions had been taken into account. 40 I am unable to accept that [53] can be read that way. Read as a whole it is reasonably apparent that the Tribunal was addressing itself to the ties to Australia constituted by Mr Bale's family. Even allowing some latitude for the reasons of the Tribunal I just do not think that this passage is, in fact, dealing with the issue of Mr Bale's ties to the community groups. This is consistent with what the Tribunal said at [60] where the Tribunal came to balance the various considerations against each other: Although there are matters referred to above which clearly weigh in the Applicant's favour, including his time in Australia, the need for support to be given to his wife because of her past illness and future support to his children, nonetheless, in the Tribunal's view, these matters are substantially outweighed by the seriousness of past conduct, the risk of future offending and the fact that the Australian community's expectation would be that his visa should be revoked. 41 If the Tribunal had actually considered Mr Bale's ties to his community groups I feel that this would have been mentioned here. 42 However, as in the case of Mr Bale's asserted homelessness, the evidence about his ties to the various community groups (extracted in its entirety above), was vague in its detail to the point of being almost without content. Mr Barrington did not submit that the Mr Bale had pursued this claim before the Tribunal or in any way developed it beyond the slight responses he had recorded in his personal circumstances form. It was therefore not a substantial, clearly articulated argument that if overlooked, would have caused the Tribunal to fall into jurisdictional error: Navoto at [84]-[89]. I reject this submission. 43 In that event it is unnecessary to deal with the further submission of Ms Pham that any failure by the Tribunal to consider Mr Bale's ties to the community groups was not sufficiently material to give rise to jurisdictional error (see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at 134-135 [30]-[31] per Kiefel CJ, Gageler and Keane JJ, at [72] per Edelman J; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 40 per Mason J). 44 The amended originating application will be dismissed with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.