Luy v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 Before the Court is an application which relates to a decision made by the Administrative Appeals Tribunal on 21 January 2014. The Tribunal affirmed the decision of the delegate of the Minister for Immigration and Border Protection, the first respondent, to cancel the applicant's Subclass 801 Partner visa under s 501(2), of the Migration Act 1958 (Cth). That section provides: (2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. 2 The applicant was legally represented before the Tribunal. There was no contention that Mr Luy passed the character test. He is a citizen of Cambodia who arrived in Australia on 8 July 2005, and in May 2008 was granted his Subclass 801 Partner visa. On 18 August 2009, he was convicted in the Dandenong Magistrates' Court of recklessly causing injury, and on 8 April 2011 was convicted in the Melbourne County Court on one count of rape, on which he was sentenced to a term of imprisonment of 54 months, and on one count of an indecent act with a child under 16, for which he was imprisoned for 12 months, nine of which were to be served concurrently. 3 The Tribunal was bound in determining whether to affirm the decision of the delegate to apply Direction No. 55 - Visa Refusal and cancellation under s501 (Direction 55). The Tribunal set out the relevant parts of Direction 55, and dealt with each of the required considerations. The Tribunal concluded that, in accordance with [6.3] of Direction 55, the risk of the applicant reoffending and causing very serious harm to the Australian community is an unacceptable risk that should not be tolerated by the Australian community. The Tribunal determined that Mr Luy represents an unacceptable risk of serious harm to the Australian community, and consequently concluded that the preferable decision was that his visa be cancelled under s 501(2) of the Act. 4 The application before the Court concerns the way in which the Tribunal dealt with the requirement in [9.3(1)] of Direction 55, which deals with the best interests of minor children in Australia, and the requirements of [9.4(1)] of Direction 55, which deals with whether Australia has international non-refoulement obligations to the applicant. 5 As to the former, the Tribunal said as follows: Primary consideration (c): The best interests of minor children in Australia 54. Paragraph 9.3(1) of Direction 55 provides that the decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child. The Direction provides guidance as to the factors that must be considered. Some of these are: (a) The nature and duration of the relationship between the child and the person…(including whether an existing Court order restricts contact); (b) The extent to which the person is likely to play a positive role in the future…including any Court orders relating to parental access and care arrangements; (c) The impact of the person's prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child; (d) The likely effect that any separation from the person will have on the child…; … (g) Evidence that the person has abused or neglected the child in any way…; (h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the person's conduct… 55. Mr. Luy told the Tribunal that in addition to two children living in Cambodia he has a daughter and a son under the age of 18 years who are Australian citizens. The daughter was born in 2005 and the son was born in 2009. Mr Luy said that his relationship with the children has been strong until the time he was taken into custody in December 2010 and he has been a caring and responsible father who has provided for them financially while incarcerated. He intends to visit them weekly when he is released into the Australian community. He said that when he was first questioned by Police his son was only a few months old, and his wife took out intervention orders against him shortly afterwards. He has not seen the children while in custody and stated that he intends to seek legal advice to re-commence contact with the children. He produced a letter dated 31 October 2013 purportedly from his wife and written in English in which she forgives him for the crimes and states that she planned to visit him in prison. In the letter she stated that she would like him to have a role in the children's lives and take some responsibility for them. In the letter she also asks him to sign divorce papers and other documents as the children's father. 56. At the hearing Mr Luy agreed that his wife has not visited him in prison. He also agreed that he has not pursued the offer of contacting the children and did not know if intervention orders were still in force. He explained that he did not read the letter from his wife closely because it was written in English. He stated that he does not provide any financial assistance to his wife in child support, although he said that his brother sends money monthly on his behalf to his children in Cambodia. 57. Mr Luy's brother told the Tribunal that Mr Luy always asks after the welfare of the children during the monthly visits. The brother explained that he sees Mr Luy's son regularly and that they have a good uncle/nephew relationship. The brother said that there is no paternal figure in the children's lives. 58. The Tribunal takes into account that Mr Luy has expressed a desire to play a role in the life of his minor children in Australia, although he has had no direct contact with them since December 2010, and his son was a baby at that time. The existence of intervention orders taken out against Mr Luy by the children's mother, together with the nature of Mr Luy's offending, suggest that any relationship with the children in the near future would be limited. The Tribunal places little weight on the letter supposedly written by Mr Luy's wife. As she did not attend the hearing or provide a witness statement, the Tribunal is unable to verify Mr Luy's wife as the source of the letter. Even if the letter is genuine the Tribunal has some doubts about the sincerity of the offers made by Mr Luy's wife about resumption of contact with the children, particularly in the context of seeking Mr Luy's signature on various documents. In any case Mr Luy has not acted on the offers made in the letter. 6 In [70] of the reasons, the Tribunal concluded as follows: In respect of the third primary consideration regarding minor children in Australia, in normal circumstances the best interests of the children would be served by a decision not to cancel Mr Luy's visa so that the children would be able to develop a relationship with their father, and he has expressed a desire to foster a relationship with them. However, Mr Luy has not had contact with the children since 2010 when the younger child was a baby and there have been intervention orders against him, so the possibility of developing a meaningful relationship with them would be difficult, notwithstanding the purported letter from his wife to which the Tribunal has given little weight. He has not provided any financial support to the children in Australia since his incarceration. This consideration weighs neither for nor against cancellation of the visa. 7 As to the requirement in [9.4(1)], the Tribunal said as follows: 59. Paragraph 9.4(1) of Direction 55 states: In cases where claims which may give rise to international non-refoulement obligations [relating to returning persons who may face risks of a type set out in various international treaties] are raised by the person or are clear from the facts of the case, they must be given consideration if the person is in Australia. 60. No non-refoulement issues were raised by Mr Luy, although he said that he would be confronted with some difficulties from family members and others in Cambodia arising from the nature of his offending. 8 Then at [71], the Tribunal concluded in relation to this matter as follows: The fourth primary consideration regarding non-refoulement obligations is not relevant in this case, and the other considerations weigh in favour of cancellation of the visa. 9 On 21 November 2014, the applicant filed an application for an extension of time within which to commence an appeal under s 44(2A) of the Administrative Appeals Tribunal Act. That application was supported by an affidavit sworn by the applicant. The applicant also filed a draft notice of appeal on that date. The notice of appeal attacked [70] and [71] of the Tribunal decision and stated the questions of law as raised by the application as follows: Questions of Law 1. At [70]…THE TRIBUNAL MADE AN UNGROUNDED STATEMENT DETERMINING THAT THE APPLICANT 'has not provided any financial support to the children in Australia since his incarceration'. 2. At [71] …THE TRIBUNAL FAILED TO ACKNOWLEDGE INTERNATIONAL NON-REFOULEMENT OBLIGATIONS AS THE APPLICANT WAS BORN IN CAMBODIA, stating that 'non-refoulement obligations is not relevant in this case'. 10 The first respondent contended that the basis of the application was misconceived because the Court has no jurisdiction under s 44 of the Administrative Appeals Tribunal Act. FTZK v Minister for Immigration and Citizenship (2013) 211 FCR 158 at [11]-[13], [51] and [79] and FTZK v Minister for Immigration and Citizenship (2014) 88 ALJR 754 at [3] and at [24]. The first respondent therefore contended that it would be futile to extend the time. The first respondent, however, did accept that the Court would have jurisdiction in relation to the decision under s 476A(1)(b) of the Migration Act 1958 (Cth). Given that the applicant is not legally represented, it should be accepted that the application invoked s 476A(1)(b) of the Act. 11 By s 477A(1) an application for judicial review under s 476A(1)(b) must be made within 35 days of the date of the decision. The Court may extend the time if the applicant satisfies the Court that it is necessary in the interests of the administration of justice to extend the time. The delay in this case is substantial. The Tribunal decision was made on 21 January 2014, and the application for an extension of time was filed on 21 November 2014. 12 In considering whether to grant an extension of time, the Court will ordinarily consider whether there is an adequate explanation for the delay and whether, if an extension were granted, there is sufficient substance in the arguments to be raised on an appeal to justify the extension of time. In the present case it is unnecessary to determine whether an adequate explanation for the delay has been given. For the purposes of argument, I am prepared to assume in the applicant's favour that the delay can be explained. It should be emphasised that this is an assumption only. 13 The applicant appeared at the hearing and explained his argument in support of the proposed appeal. He sought to rely on a letter from his wife, which expressed support for him and a desire to resume a family life with herself and her children. The letter was a plea to the Court to allow the applicant to stay in Australia. The essence of the letter is captured in the following passage: First, I would like to make the statement of support as Kheang Luy's wife and lifelong partner and mother to both his children born here in Australia is supporting Kheang in any way I can for his stay in Australia, where I was born as well. In hope that it is successful that he can stay, I've made preparations for us to be living together as a family in my home that I'm living in at this current time. The letter went on to say: If for some reason he loses this battle and has to return, I am considering relocating with the kids to Cambodia, if that is what we have to do to stay together as a family. 14 In relation to his challenge to [70] of the Tribunal decision, the applicant argued that this letter from his wife was a change from the circumstances which were presented to the Tribunal. The difficulty with this argument is that the attitude of the applicant's wife as expressed in the letter is evidence which was not before the Tribunal. It is not open to the Court, in considering a judicial review application such as the present, to take into account further evidence which was not before the Tribunal. The question for this Court is whether there was jurisdictional error committed by the Tribunal in the way it dealt with the evidence which was before it. The attempt to rely on the latest letter from the applicant's wife was an attempt to challenge the merits of the Tribunal decision. That is an exercise which cannot be undertaken by the Court exercising jurisdiction under s 476A(1)(b). 15 In relation to the challenge to [71] of the Tribunal decision, the applicant did not address this issue orally at all. The way the argument is expressed in the grounds of appeal seems to assume that the mere fact that Cambodia is a signatory to the 1951 Convention relating to the Status of Refugees (the Convention) is significant on its own. However, the Tribunal correctly applied the terms of Direction 55, which requires the applicant to raise a claim under the Convention or where the facts demonstrate that Australia has protection obligations under the Convention. The Tribunal correctly concluded that no claims were made by Mr Luy through his legal representatives in the Tribunal based on the Convention. The Tribunal correctly adverted to the evidence of the difficulties which Mr Luy would have on return to Cambodia but rightly considered them to be matters of a domestic nature. It follows that the proposed grounds of the application are bound to fail. Consequently any extension of time within which to bring an application would be futile. 16 It follows that the application for extension of time must be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 29 April 2015