Fualau v Minister for Home Affairs

1. The application be dismissed.
2. The applicant pay the first respondent's costs, to be agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

O'CALLAGHAN J: 1 This is a case that raises no issues of law, precedent or any other matter of general significance, and involves a single point without any substance. 2 By his amended application dated 3 September 2019, the applicant, who is a citizen of Samoa and New Zealand, and has lived in Australia since 2002, seeks judicial review of a decision of the second respondent (the Tribunal) made on 22 August 2018 affirming a decision of a delegate of the first respondent (the Minister) not to revoke the mandatory cancellation of the Applicant's Special Category Temporary (Subclass 444) visa. 3 Section 501(3A) of the Migration Act 1958 (Cth) (the Act) mandates that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied: that the person does not pass the "character test" (because of the operation of ss 501(6)(a) and 501(7)(a), (b) or (c), or s 501(6)(e)); and the person is serving a sentence of imprisonment, on a full-time basis, in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. 4 A person does not pass the "character test" if the person has a "substantial criminal record", that is if they have been sentenced to a term of imprisonment of 12 months or more (see s 501(7)(c) of the Act). 5 The applicant does not dispute that he has such a criminal record. In December 2016 he was convicted of the offence of aggravated burglary with an offensive weapon and sentenced to 33 months' jail. As the Tribunal recorded: 38. The offence for which Mr Fualau is serving his sentence has the following background, as set out by His Honour Judge Lyon in the County Court of Victoria (G6, p 33-44). Mr Fualau was separated from his wife. At the time of the offending she was living in a house in Dandenong North with the six children of the marriage. Also living at the house was: a 16-year-old niece; a 12-year-old nephew; and a friend of one of the Applicant's children. 39. On 31 January 2016, Mr Fualau was involved in an incident at that house, which the police attended. On 1 February 2016 an interim intervention order was imposed on Mr Fualau not to approach the house, an order which he told the police at the time he understood. His Honour said: 6 … When you were interviewed by police after your arrest on 15 February 2016, you told them that you knew of the intervention order, and that it said, in your words, "Don't go close to the house and two metres, 200 metres, and if I breach the order, I can go to prison." 7. I am satisfied that you knew and understood the terms of the order prohibiting you to go to the property. I am also satisfied that when you returned again to the property on 13 February 2016, you understood the likely consequences of breaching the order, but carried on anyway. 40. In the early morning of 13 February 2016, Mr Fualau went to the house and entered it through a second-storey window. He had with him gloves and a large machete with a blade of some 45 centimetres. The Judge called it 'a frightening and menacing weapon.' The Applicant turned on the light and woke his estranged wife. He then went from room to room, searching the house. The room in which the Applicant's 16-year-old niece was sleeping was locked. Mr Fualau admitted at the Tribunal hearing he tried to pick the lock before she opened it and he then searched that room, as well. It appears Mr Fualau was looking for a man he thought was in the house, but evidently was not. 6 The facts and the legal framework are set out in the Tribunal's reasons. See Re Filemoni Fualau and Minister for Home Affairs, File Number 2018/3221, dated 11 September 2018. 7 Counsel for the applicant submitted that the Tribunal did not give "active intellectual engagement" to the merits of his case, citing Carrascalao v Minister for Immigration (2017) 252 FCR 352. The written submission in that regard included these passages: 6. The Tribunal had before it evidence that the applicant has six children in Australia. The Tribunal gave specific attention to the best interests of the four minor children under the heading "Best interests of minor children". 7. However, other than mentioning that the applicant had two other (non-minor) children, under the heading "Strength, nature and duration of ties [to Australia]", the Tribunal does not set out any reasoning about the impact of the applicant's "ties to Australia" through his two adult children or his extended family. 8. Nor for that matter does the Tribunal assess the impact of the applicant having lived in Australia since 2002. 9. Although these facts are mentioned by the Tribunal, the Tribunal does not explain why they were thought not to be sufficiently weighty to overcome the adverse effect of the consideration regarding the need to ensure the protection of the community. (Emphasis in original). 8 At the hearing, I asked counsel how those submissions could be correct in the face of paragraphs [2], [55], [57], [63], [67], [70] and [71] of the Tribunal's reasons. Those paragraphs provide: 2. Mr Fualau was born in 1974 in Apia, in what was then Western Samoa, now Samoa. He is a citizen of New Zealand. He married in 1997 and first came to Australia in 2002 with his wife and their then three children. They have together since had three more children. The Applicant has resided in Australia since 2002, apart from one four-day absence in March 2005. … 55. There are four children of Mr Fualau's marriage who are minors and who are relevant to this consideration. The Tribunal accepts the Applicant's statements that he loves all his children and that cancellation of his visa will have a significant effect on his relationship with them. Balancing that is the fact that many orders have been imposed on Mr Fualau not to approach his children, and the fact that he committed minor assaults on two of them. …. 57. With this set of circumstances, I therefore find that this consideration weighs in favour of revoking the mandatory cancellation of the Applicant's visa, but not heavily so. … 63. As mentioned earlier, Mr Fualau has resided in Australia since 2002. His widowed mother lives here, so do some of his siblings. His six children and his wife live here. The Tribunal notes that the Applicant had some minor convictions in 2002 in New Zealand when he lived there (G5, p 32), but the Tribunal did not consider these significant in this consideration. What is significant is that Mr Fualau began offending in Australia in 2006, just four years after arriving. There was then a gap of six years of no offending, but since 2012 there has been a string of appearances before the Courts and convictions for breaching orders previously imposed at earlier Court appearances. … 67. There will be an effect on the victims of Mr Fualau's criminal conduct if the decision is made to revoke his visa cancellation. In the absence of other information, it would appear from the range of orders sought by the Applicant's wife and children against the Applicant, the effect would not necessarily be positive; it may be neutral. … Conclusion 70. The Tribunal concludes that the nature and seriousness of Mr Fualau's persistent offending, and the fact that there is some risk of reoffending, weigh against revoking the mandatory cancellation of his visa. The Tribunal finds that these considerations outweigh the considerations that might have weighed in his favour or neutrally. 71. The Tribunal is fully conscious that there would be a significant effect on Mr Fualau, his mother, his extended family and, notwithstanding recent events, his wife and children if he loses the right to remain in Australia. However, the conclusion of the Tribunal, taking all the circumstances into account, is that refusal to revoke mandatory cancellation of the Applicant's visa is the correct decision in law and the preferable decision where discretion is exercised. 9 I pressed counsel about [71] in particular. Our exchange is recorded in the transcript, and it demonstrates that the submission urged by counsel on behalf of the applicant did not survive the slightest scrutiny. It is as follows: HIS HONOUR: What about 71? ["]The tribunal is fully conscious that there would be a significant effect on the applicant and on his mother and on his extended family, and, notwithstanding recent events,["] that is, the offence for which he was convicted of aggravated burglary with a weapon - notwithstanding that, his wife and children - the effect on ["]his wife and children if he loses the right to remain in Australia.["] So the tribunal has expressly said that it has taken into account because it is fully conscious of the effect it will have on him and everybody else; however, in weighing things in the balance, the nature and seriousness of his persistent offending and the risk - the sum risk of reoffending outweighs those other factors. So what more could be required of a tribunal? COUNSEL: Your Honour, our submission is that paragraph 71 operates as a formulaic conclusory statement and that the operative sections of the tribunal's reasons are 63 to 65, wherein the tribunal has done nothing, in our respectful submission, other than to note facts, and what it certainly has not done is taken into account or made any attempt to identify the impacts upon the two children who are not minors. There's no discussion of them under the heading Best Interests of Children, and also what it has not done, in our respectful submission HIS HONOUR: What, you mean that there has to be some separate consideration of the factors relevant to minor children as against non-minors? COUNSEL: It doesn't have to be structured in that way. There has to be primary consideration given to the interests of minors or the best interests of minors. HIS HONOUR: Was there any claim made that the interests of the minor children were different to the adults? COUNSEL: There is the fact that there are two children who are not minors, and they present as a tie to Australia. The tribunal seems to be aware of that fact, but doesn't say what impact that fact has in respect of its consideration because, of course, these decisions … HIS HONOUR: It does. It says there will be a significant effect on them … COUNSEL: On him. HIS HONOUR: …in 71. No. In 71 it says there will be a significant [effect] on him - on them, rather, the children. So the reference to children in 71 has to be to all six of them. COUNSEL: Sorry. I accept that in 71. But our submission about paragraph 71 is that it's a conclusory remark and that the operative section of the reasons is under the heading 63 to 65. HIS HONOUR: Isn't that not reading the reasons as a whole? COUNSEL: Well, it is reading the reasons as a whole and fairly, your Honour, because when one reaches a conclusion what one is doing is summarising what has happened. It is, in our understanding, the tribunal expressing - bringing everything together in two paragraphs at the end of the decision to explain to the reader in short form what the outcome was. The operative considerations, if there were any, in my respectful submission, would have been found under the heading - the relevant heading Strength, Nature and Duration of Ties and in 63 through to 65, and what's missing is intellectual engagement with the impact of these matters upon the applicant and his ties to Australia. His personal interests in retaining his visa are one thing. But the - there is a broader public interest at play when one is discussing ties to Australia because it works in several directions. One is for the applicant's benefit. The other is if a person has strong ties to Australia it may be that the broader Australian community wishes to [vindicate] whatever those ties are by allowing them to remain. These are - ties back in with my earlier submission that the same facts may work differently under different headings in the direction. And so when it's … HIS HONOUR: So that means if the word "conclusion" was struck from those reasons - because there's nothing - I just don't see how you can characterise 70 and 71 as some kind of - what did you say? Formulaic and conclusory series of statements. They are the - having gone through all the factors that the member has gone through, you're being told well, in the end, weighing the offending, the risk of reoffending against the self-evidently significant effect it will have on the applicant, his mother, his extended family, his wife and children. You say I understand all of those things and in weighing them in the balance, I'm not going to refuse to - I will refuse to revoke the cancellation. What's wrong with that? COUNSEL: I mean, I've made by submissions about that, your Honour. I really can't take it any further. If your Honour reads it in the way that your Honour is putting to me, I … HIS HONOUR: But honestly, I just - I struggle to understand how you could contend otherwise. COUNSEL: Well, I've made those submissions and I'm not sure that there's anywhere further I can go about it. If the court pleases. 10 The Minister submitted as follows: 48. The Tribunal was plainly aware that the Applicant had two adult children, extended family in Australia and had lived in Australia since 2002. In this regard, the Tribunal: a. Noted that the Applicant arrived in Australia in 2002 with his wife and their then three children, that they had had three children since, and that the Applicant had resided in Australia since 2002 (at [2]). b. Summarised the Applicant's oral and written evidence to the Tribunal, including letters from the Applicant's family (at [8] and [10]). c. Referred to the Principles of Direction 65 (at [24]), including that: i. The Australian community expects the Australian Government to cancel non-citizens visas if they commit serious crimes in Australia. ii. A non-citizen who has committed a serious crime should generally expect to forfeit the privilege of staying in Australia. iii. Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. d. Had regard to the Applicant's written submissions that since his arrival in Australia with three children he has had a further three children (at [29]). e. Took into account the character references in support of the Applicant, including from his mother who set out what he had done to support her (at [31]). f. In its findings under "strength, nature and direction of ties", took into account that the Applicant has resided in Australia since 2002, that his widowed mother and some of his siblings live in Australia, and that his children live here, and found that it was significant that the Applicant began offending four years after arriving in Australia (at [63]). Further, the Tribunal took into account the Applicant's absence on his mother (at [65]). g. In its conclusion, was "fully conscious that there would be a significant effect on [the Applicant], his mother, his extended family and, notwithstanding recent events, his wife and children if he loses the right to remain in Australia" (at [71]). 49. Contrary to the Applicant's written submissions and noting the findings above and reading the Tribunal's decision as a whole, the Tribunal did explain why the Applicant's strength, nature and duration of ties to the Australian community did not outweigh other considerations under Direction 65, including the protection of the Australian community. The Tribunal was aware of the relevant framework of Direction 65, took into account the Applicant's representations concerning his time spent in Australia and family, and made findings open to it that it was significant that the Applicant began offending soon after arriving in Australia (at [63]) and that the nature and seriousness of his offending and risk of reoffending outweighed the considerations that might have weighed in his favour, including the significant effect on his extended family ([70]-[71]). In any event, any inadequacy of the Tribunal's reasons is not a jurisdictional error: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212. 11 Those submissions are self-evidently correct. Further, as counsel for the Minister submitted at the hearing, there is no particular fact or matter or representation that the applicant made about either himself or any member of his family that is not the subject of findings or consideration by the Tribunal. 12 Contrary to the assertion of the applicant, it is plain that the Tribunal did give "active intellectual engagement" to the merits of the applicant's case. In the end, counsel for the applicant conceded, in effect, that his point could only have any basis if his submission about the meaning of "conclusion" was correct. In my view, that submission was misconceived, as our exchange recorded above demonstrates. 13 The oft repeated admonitions that decisions of administrative decision makers are not to be parsed and analysed with a fine tooth-comb, and must be read as a whole, are not mere platitudes. See most recently GD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1463 at [74] (Thawley J). Legal practitioners have an obligation to take heed of them. Here, the single ground of the application focused myopically on a few words of the Tribunal's reasons, without any regard to what it says elsewhere. When the reasons are read as a whole, as they must be, it is clear that, contrary to the applicant's assertion, the Tribunal did set out its reasoning about the impact of the applicant's "ties to Australia" through his two adult children or his extended family; it did set out its reasoning about "the impact of the applicant having lived in Australia since 2002"; and it did "explain why they were thought not to be sufficiently weighty to overcome the adverse effect of the consideration regarding the need to ensure the protection of the community". The Tribunal thought that those matters were "not sufficiently weighty" because it concluded "that the nature and seriousness of Mr Fualau's persistent offending, and the fact that there is some risk of reoffending … outweigh[ed] the considerations that might have weighed in his favour or neutrally", considerations which, we know from the reasons, included the applicant's ties to Australia through his two adult children or his extended family and his having lived in Australia since 2002. 14 The application will be dismissed, with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.