Holani v Minister for Immigration and Citizenship - [2007] FCA 1140 - FCA 2007 case summary — Zoe

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Holani v Minister for Immigration and Citizenship

[2007] FCA 1140

Federal Court of Australia|2007-07-01|Before: Collier J

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Court

Federal Court of Australia

Decision date

2007-07-01

Before

Collier J

Source

Original judgment source is linked above.

Judgment (14 paragraphs)

[1]

REASONS FOR JUDGMENT 1 Before me is an application made under s 476A Migration Act 1958 (Cth) ("the Act") wherein the applicant seeks an order in the nature of Certiorari quashing the decision of the Minister for Immigration and Citizenship ("Minister") dated 20 February 2007 to cancel the applicant's Resident Return Subclass 155 visa.

[2]

Grounds of application 2 The application filed 24 April 2007 was based on two grounds: 1. the Minister erred in exercising his discretion to cancel the visa under s 501(2) of the Act by not properly taking into account a relevant consideration, namely the expectations of the Australian community because: (a) the Minister did not consider the positive contribution of [the applicant] to the community; and 9b) the Minister instead reconsidered the issue of community protection based on the nature of the criminal offences. 2. The Minister erred in exercising his discretion to cancel the visa under s 501(2) of the Act by not properly taking into a relevant consideration, namely the best interests of the children. He concluded that [the applicant's] four children under 18 all live with their mothers and that the removal of that contact would cause some hardship. The Minister did not take into account that [the applicant's] youngest son Joshua lives with him and that [the applicant's] removal would have a much greater effect on Joshua. 3 At the commencement of the hearing on 23 July 2007, Mr Duncan on behalf of the applicant informed the Court that the applicant no longer sought to press the first ground of the application, and sought leave to amend the grounds of the application, to be confined as follows: The Minister erred in exercising his discretion to cancel the visa under s 501(2) of the Migration Act 1958 by not properly taking into account a relevant consideration, namely the best interests of the children. He concluded that [the applicant's] four children under 18 all live with their mothers and [the applicant] has access to them under a court order. There is no evidence before the Minister to support that conclusion with respect to [the applicant's] children Joshua and Larni. 4 Notwithstanding the late stage at which the applicant sought to amend his application and the opposition of Ms Wheatley for the Minister, I permitted the amendment to the application. I noted that the new ground was in substantially similar terms to the second of the applicant's previous grounds of application with the modification that the substituted ground of application contained reference to the applicant's daughter Larni whereas previously it did not; I accepted Mr Duncan's submission that new ground of appeal was substantially covered in the applicant's original outline delivered to the Minister and that the Minister had addressed those issues in response to the applicant's outline; and I noted Mr Duncan's submission that notice of the proposed amendment had been given to the respondent in the week prior to the hearing. Accordingly, in my view there was no prejudice to the Minister in this matter, and indeed Ms Wheatley subsequently conceded at the hearing that she could point to no prejudice. 5 The result of this amendment to the application is that the issues for consideration by the Court have substantially narrowed.

[5]

The Minister's decision 11 It is not in dispute that, in making his decision, the Minister was bound to take into account as a primary consideration the best interests of the children of the applicant under the age of 18. Failure to do so as a primary consideration would result in the decision of the Minister being affected by jurisdictional error: Minister for Immigration and Multicultural and Indigenous Affairs v Lorenzo [2005] FCAFC 13 at [57]-[58]. 12 Guidance for decision-makers in making decisions to refuse or cancel a visa under s 501(2) is found in the Minister's "Direction under section 499 - Visa Refusal and Cancellation under section 501 of the Migration Act - No 21" ("Direction No 21"). Although not binding on the Minister himself, the Minister indicated at para 5 of the Statement of Reasons that he had followed his usual practice and proceeded in accordance with Direction No 21. It is not in dispute that it is relevant for the Minister to have regard to the contents of Direction No 21 in making his decision. 13 Paragraph 2.3 of Direction No 21 states the primary considerations for the decision-maker in respect of a decision to refuse or cancel a visa: "2.3 In making a decision whether to refuse or cancel a visa, there are three primary considerations: (a) the protection of the Australian community, and members of the community; (b) the expectations of the Australian community; and (c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children." 14 Paragraphs 2.13-2.16 of Direction No 21 contain further guidance with respect to the best interests of the child, as follows: 2.13 This consideration only applies if the child is or would be less than 18 years of age at the time when the decision is intended to come into effect. The best interests of any children aged 18 years or more is not a primary consideration but may be considered with other considerations under paragraph 2.17. 2.14 Where there are two or more relevant children, it should not be assumed that the interests of each child will coincide, and it may be that the best interests of one child may indicate the non-citizen parent should not be refused a visa or removed from Australia, but that the best interests of another child may point towards visa refusal or cancellation. 2.15 In general terms, the child's best interest will be served if the child remains with its parents. Countervailing considerations, which may point to the child's best interests being served by separation from the non-citizen, include, but are not limited to: (a) any evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; or (b) any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct. 2.16 When considering the best interests of the child, decision-makers should have regard to the following: (a) the nature of the relationship between the child and the non-citizen; (b) the duration of the relationship including the number and length of any separations and reason/s for the separation; the hypothetical prospect for developing a better/stronger relationship in future (whether or not there has been significant recent contact) would normally be given relatively less weight than the proven history of the relationship based on past conduct; (c) the age of the child; (d) whether the child is an Australian citizen or permanent resident; (e) the likely effect that any separation from the non-citizen would have on the child; (f) the impact of the non-citizen's prior conduct on the child; (g) the time (if any) that the child has spent in Australia; (h) the circumstances of the probable receiving country, including the educational facilities and the standard of the health support system of the country to which the child may have to go, or return to, should the non-citizen not be permitted to enter or remain in Australia; (i) any language barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children acquire new languages; and (j) any cultural barriers for the child in the probable country of future residence, but taking into account the relative ease with which younger children adapt to new circumstances. 15 In relation to the best interests of the children, the Minister in the Statement of Reasons said as follows: "22. I also gave primary consideration to the best interests of the children. Mr HOLANI has four children aged under eighteen years, currently residing in Australia with their mothers. I noted Mr HOLANI's claims that he has regular contact with his children and the testimonies from family and friends supporting his claims to be a caring and supportive parent and that he has a court order allowing him access to them at least four days per fortnight. I further noted that Mr HOLANI's son, Darryl Lewis Holani, has autism and that Mr Holani is committed to providing him with care and financial support to attend a special school. 23. On balance, I found that Mr Holani's children would suffer some hardship if Mr HOLANI's visa were cancelled. I accepted that the best interests of the children would be met by having both parents available to them during their upbringing and that the best environment for this would be in Australia. I gave this consideration substantial weight."

[6]

Submissions of the applicant 16 In summary, the applicant submits: · it can be inferred from the Minister's Statement of Reasons that he operates on the assumption that, with respect to the applicant's four children under the age of 18: o they reside with their mothers o the applicant has regular contact with them under a court order allowing him access to them at least four days per fortnight · the Issues Paper set out the access arrangements with respect to Darryl Holani and Nikita Holani which support the Minister's assumptions with respect to those children · it can be inferred from the Minister's Statement of Reasons that he assumes that Joshua Holani resides with his mother and that Larni Holani resides with her mother, and that the applicant has access to both children under a court order allowing him access at least four days per fortnight. There is no evidence before the Minister to support that conclusion · because there is no evidence before the Minister to support that conclusion, the Minister does not properly take into account the best interests of Joshua or Larni, because: o the Minister assumes that Joshua's interests and Larni's interests coincide with those of the other children Darryl and Nikita, when there is no evidence that they do o he makes assumptions about the nature of the relationships between the applicant and Joshua, and the applicant and Larni, that are not supported by any evidence o he cannot properly consider the history of those relationships based on past conduct and contact o he cannot give any proper consideration to the likely effect that any separation from the applicant would have on either Joshua or Larni · the Minister has considered the best interests of the children based on assumptions not supported by any facts. To consider the interests of multiple children as though they all had the same relationship with the applicant is no reasonable consideration at all · the applicant conceded that the Minister was not obliged to inquire further than the details presented to him, and the details provided to the Department and summarised in the Issues Paper are not comprehensive. However, the applicant submits that if the Minister misinterprets the details that are before him he cannot properly consider the best interests of Joshua and Larni and his decision is affected by jurisdictional error · the applicant submits that there is a clear inference that the Minister did not simply adopt the analysis with respect to the children set out in the Issues Paper, however where the Minister specifically refers to his consideration of the best interests of the children he considers they have common characteristics and this is not supported by any evidence.

[8]

Did the Minister take into account the best interests of all of the children? 18 In this case the Minister observed in relation to all four children of the applicant under the age of 18 years that they are "currently residing in Australia with their mothers", that the applicant claims that he has regular contact with them and "that he has a court order allowing him access to them at least four days per fortnight". 19 It is clear that the interests of children may vary from one child to another. This is recognised by Direction No 21. So, as indicated by the Minister in his Statement of Reasons, the interests of an autistic child may be different from those of a child who is not autistic. 20 I note that this was also recognised by the Department in the preparation of the Issues Paper for briefing of the Minister. In the document headed "Section 501 Issues Papers: Quality Assessment Checklist" contained in vol 1 of the Respondent's Bundle of Relevant Documents ("RBRD 1") pp 283-285, it appears that both the case officer in the Department who drafted the Issues Paper and a reviewer (identified as another case officer in the relevant unit) "ticked" as completed a box on the checklist described as "If there are multiple children, they have each been considered separately". However simply because there are indications that the relevant officers in the Department have considered each child separately does not mean that this task has been carried out by the Minister. 21 In his Statement of Reasons, the Minister refers to the children cumulatively, singling out only one child (Darryl Holani). This in itself would not necessarily mean that the Minister has not taken into account the best interests of each of the applicant's children, in particular Larni and Joshua as submitted by the applicant, if the reasons of the Minister indicated that their interests had been taken into account: cf Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 292; Burchett J in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608 at 614, Lei Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 at [283].

[10]

Material before the Minister 24 In this case there appeared to be limited material before the Minister as to the best interests of each of the applicant's children under the age of 18. Ms Wheatley for the Minister submitted that there was no obligation on the Minister to initiate further inquiries as to information concerning the children, and indeed this point was not in contention: cf Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292 at 314, Taylor [2005] FCAFC 208 at [19], Yalniz v Minister for Immigration and Citizenship [2007] FCA 426 at [24]. Relevant material before the Minister in relation to the applicant's case, which is also before me, included: · from the Issues Paper, information including: o the applicant has four children under the age of 18 o one child, Darryl Holani is autistic o the applicant has an order of the court dated 15 October 2003, allowing him regular contact with his children Darryl and Nikita, "at all reasonable times as may be agreed between the parties" but on no less than four days per fortnight o according to Ms Susan Amery, the mother of Joshua: "Clyde is a wonderful & loving father. Our son and he are very close. The bond they enjoy is enormous and I fear the Joshua will not be able to understand or cope with suddenly losing someone who is such a big part of his life. He look (sic) up to his father and loves him so much." o it was open to the Minister to find from the information given that the cancellation of the applicant's visa and his removal from Australia would have a detrimental effect on his younger children · a submission from the applicant wherein, inter alia, the applicant stated that: o if his visa were removed his children would suffer the consequences o he had duties towards his children o there was a very close and strong bond between himself and his children · a submission from Larni Holani in support of her father, indicating a close relationship with her father. In that letter Ms Holani made no reference to access or living arrangements except to say that her mother has raised her, as has her father (RBRD 1 p 244) · a submission from Leonard Holani, a child of the applicant over 18 years of age, dated 6 October 2006 wherein Mr Holani stated that his five brothers and sisters all relied on the applicant either financially or emotionally, and that "I believe my youngest brothers and sisters would be affected the most as they are still quite young and need a father figure in their lives as does any child" (RBRD 1 p 245) · a submission from James Gordon Wallace dated 1 October 2006 (RBRD 1 pp 248-249) wherein Mr Wallace states that, inter alia, the applicant is a doting and loving father of six children, and that, with respect to the children under 18 years, "Larni Holani, his eldest daughter, presently attends the Carina San Sisto Girls College and again Clyde Holani has paid for her schooling. Darryl Holani is autistic, attends a special school and needs the ongoing support of his father. Nakita [sic] and Joshua Holani attend a public primary school prior to receiving a private school education ostensibly to be funded by their father should he still reside in Australia." · a submission from Sqn Ldr S J Curran (Rtd) dated 25 September 2006 (RBRD 1 pp 254-255) containing the following: "His elder daughter is Larni born 2 November 1989 completes year 12 this year. Three younger children are: Darryl born 21 November 1996 Nakita [sic] born 31 March 1998 Joshua born 22 August 2000 Clyde paid for his children's education to ensure they would have a good future. The four younger children show great affection for their father. I think I recall I said in my last letter it would be heartbreaking to separate the children from their father, particularly as their biological mother shows little affection toward them. Clyde's partner Vicky Wallace has been living with him since 2000. She is very good with the young children and it is obvious that they are also very affectionate toward her."

[11]

Findings 25 In light of this information, it is not possible to conclude otherwise than that the Minister in making his decision, did properly give primary consideration to the best interests of the children of the applicant under the age of 18 including Larni and Joshua. In his Statement of Reasons the Minister: · acknowledged that primary consideration must be given to the best interests of the children. Accordingly it is not in dispute that the Minister did not purport to give attention to this consideration · recognised the special needs of Darryl Holani · recognised the claims of the relationship between the applicant and his children, and that the children would suffer some hardship if the applicant's visa were cancelled. The Minister said that he gave that consideration substantial weight. 26 The Minister did not otherwise differentiate between the interests of the children. However on the basis of the information provided, the question arises as to the basis on which the Minister could or should have further differentiated. The information provided to the Minister by family members and friends of the applicant indicated that the applicant had a close relationship with all four children, and the Minister acknowledged this. While it is clearly important that any special needs of the children brought to the Minister's attention be considered by the Minister, on the evidence it appeared that there were no factors specific to any of the children other than Darryl Holani which were either brought to the Minister's attention or which provoked comment. 27 The key element of the applicant's submissions was that, because the Minister had appeared to make assumptions with respect to the living arrangements of Larni and Joshua Holani, and the applicant's access to those children without evidence, the Minister had not properly considered the best interests of Larni and Joshua. Mr Duncan for the applicant at the hearing submitted that the Minister assumed without evidence that the interests of all four children coincided, that the children deserve assessment as individuals, and that if the children are assessed together and are assumed to have common interests without information to support that assumption, then the Minister may as well not have considered their interests. I have considered this issue carefully, and take a different view. 28 First, in almost every respect it appears that, contrary the submission of Mr Duncan, factors relevant to the best interests of the four children of the applicant did coincide, in that the material before the Minister indicated that the applicant provided them with financial and emotional support, and that there was a close relationship between him and them. It is for this reason that the Minister concluded that it would be adverse to the best interests of the children for the applicant's visa to be cancelled. 29 Second, while it appears that there was no evidence before the Minister as to the living arrangements of Larni and Joshua, and no evidence as to access arrangements, the highest at which any assumptions of the Minister could be put was that the Minister had erred in fact, and as a general rule the Court has no jurisdiction in relation to such an error. No submissions were made that any errors were jurisdictional errors. In any event, as pointed out by Ms Wheatley, no submissions were made by the applicant through his counsel, that the living and access arrangements in respect of Larni and Joshua were such that the Minister had clearly erred in reaching his decision. In the language of the Full Court in Taylor [2005] FCAFC 208 at [19]: If the material on those matters was sparse or absent, the circumstances were not such as to oblige the Minister to procure the expansion of that material. It was readily within the power of the appellant to have done so. (cf Djalic 139 FCR at 314) 30 In my view this not a case where the interests of Larni and Joshua are "dismissed with...almost perfunctory curtness" (cf Burchett J in Vaitaiki 150 ALR at 614). Further, this is not a case where the Minister has failed to identify anywhere in his Statement of Reasons what the best interests of the children indicated that he should decide with respect to the applicant's visa (cf Branson, North and Stone JJ in Lei Wan [2001] FCA 568 at [26]-[27]): the Minister clearly stated that the best interests of the children required that the applicant's visa not be cancelled. The only real information of relevance before the Minister concerning Larni and Joshua other than their ages concerned their close relationship with their father and the support he provided them, and this issue was clearly taken into account.

[12]

Conclusion 31 In this case the Minister said in his Statement of Reasons that he had given primary consideration to the best interests of the children, and indicated in unequivocal terms that he considered that the cancellation of the applicant's visa and that his removal from Australia would adversely affect the welfare of his children aged under 18. The Statement of Reasons for the Minister also indicated in my view that he had given proper, genuine and realistic consideration to the best interests of the applicant's children. There was no material before the Minister, and indeed there is no material before this Court, from which an inference may be drawn that the Minister failed to take into consideration factors relevant to the best interests of each of the applicant's children. While the Minister may have erred in relation to his assumptions concerning the residential and access arrangements with respect to Larni and Joshua - and I note that no submission has been made that the Minister erred, only that he made the same assumptions with respect to these children as he made with respect to Nikita and Darryl - such error would not in my view go to jurisdiction, and the applicant does not submit otherwise. Further, any error by the Minister in confusing the arrangements with respect to Larni and Joshua, with those relevant to Nikita and Darryl, does not in my view mean that the Minister has failed to properly consider the best interests of Larni and Joshua. It is clear that, while the Minister did accord substantial weight to the best interests of the applicant's children and their need for the applicant to remain in Australia, in the Minister's view this consideration was outweighed by other factors which the Minister is also entitled to take into account in reaching his decision, in particular the serious and repetitive nature of the applicant's criminal offences and the need to protect the Australian community. Such a finding is not for this Court to reconsider in the absence of jurisdictional error. 32 In these circumstances, it follows that the application must be dismissed.