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[2018] FCAFC 152
Federal Court of Australia (Full Court)
2018-08-14
Thawley JJ
Original judgment source is linked above.
THE COURT: 1 This is an appeal against the decision of the primary judge who refused the appellant leave to further amend his application for review of the decision of the Assistant Minister made on 30 August 2017 to not be satisfied that the appellant, having failed to pass the character test, to revoke the decision of the Minister's delegate to cancel the appellant's visa under s 501CA(4) of the Migration Act 1958 (Cth) (the Act). That left the appellant's class WB subclass 020 bridging B visa cancelled. 2 The primary judge dismissed the sole ground in the amended application for review. That ground had been based on the argument in the then reserved and now published decision of the High Court in Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61.
The Minister's reasons 3 The Minister's reasons for his decision explained in detail the appellant's circumstances. He is a 49 year old citizen of Fiji whose visa was cancelled under s 501(3A) of the Act on 3 August 2016. He had resided in Australia since April 2001 and had departed from the country 10 times since then. 4 Following the cancellation decision the appellant made representations to the Minister about revoking the original decision under s 501CA. The Minister noted the substantial criminal history of the appellant, that involved offences committed not only in Australia, but in his native Fiji and in the United States of America, where he had also lived. The Minister noted that the appellant had been convicted of a drink driving offence and fined in 2002, but that all his other offending in Australia had occurred since 2009, with a considerable number of matters relating to his domestic circumstances, including assaults and multiple breaches of apprehended domestic violence orders. 5 The appellant had had two separate convictions in 2016, one in June 2016, and the other in October 2016. In June 2016, he had been convicted and sentenced to 18 months imprisonment with a six month non-parole period for slapping, pushing and grappling with his domestic partner in circumstances where the sentencing magistrate had noted that, since 2011, the appellant had been convicted on at least eight occasions of common assault and of multiple contraventions of apprehended domestic violence orders and other offences in a domestic situation. 6 The October 2016 convictions attracted a sentence of 18 months imprisonment with a nine month non-parole period in circumstances where the appellant had stabbed his victim four times with a 20 centimetre knife in the left arm, back of his neck and his back while they were travelling in a car with two other men. The sentencing judge noted that the appellant had believed that the victim had stolen goods from his business and referred to the community's expectations that for such an offence a custodial sentence was something the community would expect. In addition, in 2013, the appellant had been convicted and sentenced for common assault in a domestic violence context, 15 counts of contravening a prohibition or restriction in an apprehended violence order and the use of a carriage service to menace, harass or offend. He received sentences for those offences ranging from four to 12 months imprisonment and good behaviour bonds, albeit that, as the Minister noted, the sentencing judge considered that his offending behaviour was largely not violent, but was persistent and at times distressing for the victim. 7 The Minister noted that the appellant had been convicted in Fiji of obtaining credit by false pretences, fined and sentenced to 100 days imprisonment and six months imprisonment that had both been suspended for 12 months. The Minister also noted that in six years between 1992 and 1998 the appellant had been convicted in the United States of America on a range of offences, including providing false information to police, burglary, obstructing and resisting police, grand theft, reckless driving and a domestic violence related offence of inflicting corporal injury on a spouse or cohabiter. 8 The Minister found, however, that based on the information available to him, the best interests of the appellant's then 12 year old son would be served by the revocation of the decision to cancel his visa, enabling him to remain in Australia where the son could develop and maintain his relationship with his father and receive the support he needed for both his medical conditions along with the additional support he would need as he entered his teen years. 9 The Minister found that the Australian community, however, would expect non-citizens to obey Australian laws while in Australia and that the appellant's offending, involving violence in general and domestic violence in particular, was of great concern to the community and would outweigh the appellant's stated intention, which he repeated in his submissions today, to avoid further offending in the eyes of the community. The Minister found that, given the serious nature of the appellant's offending, he concluded that the Australian community would expect that he should not hold a visa. 10 The Minister also considered the positive contribution that the appellant had made through his employment activities and business ownership as well as volunteering activities in the community and took these into account, together with letters of support from his family, friends and others. He also had regard to the relationship that the appellant had with his then partner, who had been the victim of his 2016 domestic violence offending, and who sought to support the reinstatement of his visa. 11 The Minister accepted that persons who had expressed support for the appellant, and those whose employment or prosperity his positive activities supported, would experience emotional or financial hardship as a result of the non-revocation of his visa. 12 The Minister did not accept that a decision not to revoke the decision to cancel the visa would significantly compromise the delivery of any major project or important service to Australia. He found that while the continuation of the cancellation would have an impact on the appellant's employees resulting in them experiencing some hardship if they were unemployed for a period, that would only be temporary. 13 The Minister had regard to the impediments that the appellant would suffer by having to be returned to Fiji, and to the fact that health services available there were likely to be of a generally lower standard than Australia, and that this would exacerbate any hardship he would face were he removed to his country of origin. Nonetheless, the Minister found that, as a citizen of Fiji, the appellant would have access to health and welfare services equal to other citizens of that country and that would facilitate his integration back into its society, so that he would be capable of setting up, or establishing, himself in Fiji. 14 The Minister considered the Government's commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens in assessing whether the appellant posed an unacceptable risk of reoffending. He considered the nature and seriousness of the appellant's criminal conduct. The Minister found that the violent offences were very serious by their general nature and the appellant's convictions for domestic violence were particularly serious because of the heightened community concern about that major social problem and the vulnerability of victims in a domestic relationship. He noted that the appellant's criminal history included many such incidents. The Minister regarded that criminal history as serious in nature, taking into account the particular seriousness of the numerous specific matters involving violence, including in domestic contexts the frequent and repetitive nature of his offending, and what he described as flagrant breaches of court orders, particularly those relating to domestic violence. He took into account the appellant's overall conduct in the custodial and non-custodial environment and his insight into his offending. 15 The Minister also had regard to the support of the appellant's brother and other family members, but noted that, despite the support that had been available to him throughout his period in Australia, the appellant had offended repeatedly. 16 He also considered the appellant's submissions that sought to go behind his June 2016 conviction. The Minister said he was not prepared to do so, preferring to rely on the sentencing remarks. The Minister also had particular regard to the fact that, despite receiving a caution or warning under s 501 of the Act on 5 December 2017, and having twice, in 2007 and earlier in 2005, been made aware of the operation and effect of s 501 in notices of intention to refuse a visa, the appellant: …has gone on to reoffend. This too indicates to me that the prospect of removal from Australia has not in the past sufficed to deter him from reoffending. 17 The Minister found that the appellant had displayed consistent disregard for judicial orders and Australian law, particularly with respect to his numerous previous court orders and he continued to offend, despite previous warnings by a delegate of the Minister under s 501. He found that the appellant had had ample opportunity in the past to address those issues, but had not done so effectively. He was concerned by the repeated incidents of domestic related violence offending in the appellant's criminal history and in the trend in his more recent convictions toward physical violence, saying: This coupled with his propensity to minimise his offending, particularly with respect to his domestic related offences, shows me that he has limited insight into his offending behaviour. 18 He concluded that, in view of the appellant's serious criminal history in Australia and other countries and its recidivistic nature, the appellant had to be considered at risk of further offending and that, should he do so, it was likely to result in conduct that would cause physical and or psychological harm to a member or members of the Australian community. 19 Ultimately, the Minister concluded that, having considered all the relevant matters, including representations by the appellant and on his behalf, an assessment of the appellant's failure to pass the character test together with all the material before him in order to assess it, he was not satisfied that there was another reason why the original decision should be revoked. He concluded that the appellant represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed both the best interests of the appellant's child as a primary consideration and any other consideration to which the Minister had regard, including his employment, business activities, volunteer and family ties to Australia and the hardship that the appellant, his family and social networks would endure in the event that the original decision were not revoked. 20 The Minister said having given full consideration to all of those matters he was not satisfied for the purposes of s 501CA(4)(b)(ii) that there was another reason why the original decision mandatorily to cancel the visa should be revoked, and accordingly refused to revoke it.
The proceedings before the primary judge 21 The course of the proceedings before the primary judge was as follows. The appellant drafted his originating application that advanced the principal contention that the Minister had committed an error of law or jurisdictional error by failing to follow Direction 65 made pursuant to s 499 of the Act and failed to have regard to the best interests of Australian business. The grounds were that, first, he was the primary carer of, and it was in the best interests of his 12 year old son, who is an Australian citizen, for him to remain the holder of his visa, secondly, he had a business which had $1.2 million outstanding in loans, but was operating successfully, and thirdly, s 501(3A) was invalid in the sense anticipated in the argument then being considered by the High Court in Falzon. 22 Subsequently, on 13 October 2017, the primary judge granted a certificate under r 4.12 of the Federal Court Rules 2011 for the appellant to have pro bono assistance. He received assistance from counsel experienced in the field of migration law, who drafted the amended application that raised the sole ground that there was no decision under s 501(3A) of the Act capable of being revoked under s 501CA. That conclusion failed in Falzon 351 ALR 61. Following the High Court's delivery of its decision, the proceeding came to be relisted before the primary judge who granted pro bono counsel leave to withdraw. The appellant returned representing himself and put before the primary judge a proposed further amended application that raised five grounds, namely (errors in original): 1. considerations The error of law ,where decision maker wrongly applied the law: in regards to Direction 65 the wellbeing of a child of Australian citizenship was not observed 2. The decision maker wrongly took in to account of irrelevant consideration or failed to take into account relevant consideration 3. The decision maker acted beyond its responsibilities or acted improper purpose: This law violates the constitution 4. It was listed that I did served an 18 month jail term I only did 9 months with 9 months to be served on parole 5. The respondent considered himself to be bound by s 501(3A) of the Act to cancel the Applicant's visa in circumstances that the provision invalid as contrary to chapter III of The Constitution of Australia. 23 However, as his Honour pointed out, the appellant, perhaps because he was not legally trained, did not seek and was not formally granted leave to amend to add those grounds, albeit that his Honour ultimately ordered that leave to make any such amendment be refused. 24 The primary judge then heard the application, including the appellant's application to amend. Inevitably, his Honour found that the ground in the extant amended application had to fail by reason of the binding effect of Falzon 351 ALR 61. 25 The primary judge then considered each of the five proposed grounds. First, he found that the proposition that the Minister was bound by Direction 65 was unfounded because, the Full Court had so held in Boschenski v Minister for Immigration and Border Protection (2017) 250 FCR 209 and, because, in any event, the provision in that direction on which the appellant sought to rely, namely that the Minister in coming to his decision had to treat as a primary consideration the best interests of his child, had in fact been a matter to which the Minister gave primary consideration. His Honour found that the second proposed ground did not have any particulars to make it meaningful and was no more than a scattergun allegation. He found that the third ground was also unintelligible and that the fourth ground only raised an issue going to the facts or merits of the appellant's sentences and his incarceration pursuant to them based on his criminal conduct. His Honour said that the ground appeared to be misconceived in any event if it sought to challenge the jurisdictional foundation for the cancellation of the visa on the basis of the appellant's failure to pass the character test. That was because the terms of imprisonment amounted to a substantial criminal record for the purposes of s 501(7)(c), which operates in respect of the head sentence imposed on the person and not the period actually served in custody. Moreover, this ground, did not raise any jurisdictional error. He found that the fifth ground effectively sought to re-agitate the argument that had failed in Falzon 351 ALR 61 and, similarly, had to fail. 26 The appellant did not seek to suggest before us that his Honour erred in making any of those findings. They were undoubtedly correct. His Honour then noted that the appellant had sought the grant of a further referral to pro bono legal representation, which his Honour declined. The primary judge did not consider that it was appropriate to facilitate further use of the pro bono scheme in circumstances where the appellant had had the benefit of one such referral from experienced counsel in the immigration jurisdiction and had only sought another referral because the advice that he had been given was, apparently, not to his liking. 27 His Honour noted that the relief sought in the proposed amended application could not have been granted because its grounds had no prospect of success. Accordingly he refused leave to amend and dismissed the proceedings.
The appellant's submissions 28 The appellant applied to the Court on 6 August 2018 for yet another pro bono referral and an adjournment of three months, which Rares J refused, noting that the appellant had prepared and filed on 11 May 2018 a detailed document of about 11 pages outlining what he said were, in effect, his submissions. That document formed part of an affidavit in the appeal book. A number of those arguments appeared to support, rather than challenge, the Minister's reasons. Because the appellant appeared in person and is not a lawyer, but more a practical man, it has been necessary to try to interpret how he would wish those arguments to be deployed in support of his contention that the primary judge erred or the Minister committed a jurisdictional error. That has not been an easy task. 29 In substance, the appellant seeks to raise a number of new grounds that were not put to the primary judge either in the proposed further amended application or in any other way, as well as to continue other challenges.
This appeal 30 In his grounds of appeal, the appellant asserted that the primary judge erred because he should have found that, first, the Minister had failed to give proper consideration to matters identified in the statement of reasons and steps in his decision-making process, secondly, the decision not to revoke had miscarried and, thirdly, the Minister's reasoning process was flawed by jurisdictional error. 31 The particulars in support of those grounds were (errors in original): 1. The learned primary judge erred in finding that the Assistant Minister for Immigration and Border Protection (Assistant Minister) failed to give proper consideration to certain matters identified in the statement of reasons as steps in the decision making process. Particulars (a) The learned primary judge did not conclude that the Assistant Minister was "required" to make "an assessment as to whether what was put forward had factual merit" after the case Falzon S31/2017 was unsuccessful. (b) The learned primary judge did not identify a range of claims (Claims) that the Assistant Minister was required to take into account after the amended application was filed on 12th February 2018. (c) The learned primary judge should have found that, on evidence, it could be established that the Assistant Minister had failed to give proper consideration to the Claims. Indeed, the learned primary judge should have found that the Assistant Minister had not sufficiently addressed those Claims. 2. The learned primary judge erred in finding that the Assistant Minister's assessment pursuant to s 501 CA(4)(b)(ii) of the Migration Act 1958 (Cth) misapplied. Particulars (a) The particulars to Ground 1 are repeated and relied upon. 3. The learned primary judge erred in concluding that the assistant Minister's reasoning process was fundamentally flawed by reason of jurisdictional error. Particulars (a) The grounds of the amended application (b) Further, the learned primary judge erred in finding that the Assistant's assessment as to the potential for any further offending by the appellant to cause physical harm to members of the Australia community was an assessment without any rational foundation. 32 Reading the grounds of appeal as generously as possible, first, they do not easily correspond to the proposed further amended application below or, secondly, raise any matter that identifies a jurisdictional error in the way in which the Minister approached the decision-making that led to his challenged decision. 33 The appellant's submissions, such as they are, are expressed in a confusing way. But in essence, as the appellant explained orally in his argument, he contends that the Minister gave undue weight, or came to a wrong conclusion, about, first, his likelihood of reoffending and, secondly, to the characterisation of his offences, particularly those in 2016, for which he was sentenced to two separate head sentences of 18 months imprisonment. He argued that these were not of the serious character that the Minister found and indeed the sentences were considered appropriate by sentencing judicial officers. 34 The appellant sought to tender a letter from the victim of his stabbing offences to suggest that he was still on good terms with that victim. However, the Full Court refused leave to tender that document, as it was not relevant to the assessment of whether the Minister had made any jurisdictional error or the primary judge had erred; that letter not even being before his Honour.
Consideration 35 In our opinion, it is necessary to consider whether the grounds in the proposed further amended application below might have been arguable together with the newly formulated grounds in the notice of appeal, in order to determine whether we should allow the appellant to rely on them. 36 It is important in the administration of justice to approach, with caution, whether to allow new grounds to challenge an administrative decision on appeal that were not put below. Gibbs CJ, Wilson, Brennan and Dawson JJ held in Coulton v Holcombe (1986) 162 CLR 1 at 7: To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. 37 Secondly, it is fundamental to the consideration of a challenge by way of judicial review to have regard to the separation of powers between the executive branch of government and the judicial one, identified by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, where their Honours cited with approval the often quoted statement of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 - 36, namely: The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. 38 In substance the appellant sought to challenge before his Honour the merits of the Minister's decision once the Falzon ground had been dismissed. His Honour correctly refused to allow any of the proposed amended grounds below because they had no juridical foundation. The grounds of appeal similarly amount, in substance, to an attack on the way in which the Minister weighed the merits of the circumstances. Those grounds do not identify any failure of the Minister to consider a relevant consideration; or assert that he took into account an irrelevant one; or failed to ask the right question or to identify the legal issues or claims on which the appellant relied or otherwise assert a jurisdictional error. 39 In substance, the particulars to ground 1 of the notice of appeal are simply a disagreement with the way in which the Minister reasoned. They do not identify any failure of the Minister to carry out his duty to give proper consideration to the appellant's circumstances. That ground must be rejected. It is plain that the Minister had before him a wealth of material on which it was open to find that the appellant posed an unacceptable risk of reoffending and had a serious history of, among others, violent offending for which a number of courts had convicted him and explained their reasoning for doing so, on which it was open to the Minister to make the findings that he did. 40 The second ground of appeal seeks to cavil with the ultimate decision that the Minister arrived at in deciding not to revoke the cancellation of the visa. 41 The third ground sought to re-agitate the arguments that the primary judge had rejected and which, for the reasons we have given, were correct. 42 It follows that there is no substance in any matter which the appellant seeks to raise to challenge either the reasoning of the primary judge or otherwise to attack the validity of the Minister's decision.
Conclusion 43 For those reasons the appeal should be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Rares, Steward and Thawley.
Chandra
Minister for Immigration and Border Protection