Maere v Minister for Home Affairs

Interlocutory application for adjournment of appeal 4 The appellant is currently held in immigration detention and is self-represented (as he was before the primary judge). 5 Following the filing of the notice of appeal, on 17 December 2018 the Court made timetabling orders for the hearing of this appeal. One of those orders required the appellant to file and serve a written outline of submissions no later than 10 business days before the hearing date. The appellant did not comply with that order and, as at the date of the hearing, no written submissions had been filed. 6 On 30 May 2019, the day before the hearing, the appellant filed an interlocutory application seeking an adjournment of the hearing of the appeal. The application was accompanied by an unsworn affidavit which stated that the appellant "has found it very difficult to prepare for Court hearing due to ongoing health issues". Attached to the document were copies of emails between the appellant and various health professionals. The documents show, and we find, that the appellant has been diagnosed by orthopaedic specialists as having a severe disabling hip osteoarthritis on the left side which will necessitate a total hip replacement. However, no date has been set for such a surgical procedure. 7 The appellant appeared at the hearing on 31 May 2019. He was in a wheelchair and it was clear that he was in considerable pain and discomfort associated with the osteoarthritis. The appellant told the Court that he had not filed any written submissions in support of his appeal because he was in a detention centre, bed-bound and wheelchair-bound. He explained that the conditions in detention with his significant health issues had made it extremely difficult for him to prepare for the Court hearing. He submitted that he could put something more to the Court if his health was better, instead of being in pain all the time. The appellant also told the Court that he has been endeavouring to obtain legal assistance but has not been able to obtain that assistance to date. 8 The Court accepted that the appellant has substantial medical issues and it was clear to the Court that he was in pain. However, there was nothing in the medical reports to indicate that his medical conditions prevented him from proceeding with the appeal and presenting the submissions that he wished to put to the Court in support of his appeal. Although it was recently recommended that the appellant have a hip replacement, the medical reports do not indicate when that operation is likely to occur. In the circumstances, it cannot be said that an adjournment is likely to result in the appellant being in any different position with respect to the prosecution of his appeal in the reasonably foreseeable future. 9 Although the appellant's medical conditions made it more difficult for him to present his case, in our view his conditions were not such as to preclude him from preparing for the appeal, attending Court at the hearing and being able to participate in the hearing. Further, the fact that the appellant has been unable to obtain legal assistance to date is not a basis for adjourning the appeal. It is well settled that, in civil proceedings such as these, the rules of procedural fairness do not extend to requiring the provision of legal representation: NSW v Canellis (1994) 181 CLR 309 at 329 per Mason CJ, Dawson, Toohey and McHugh JJ; Elliott v ASIC (2004) 10 VR 369 at 412; ASIC v Reid (No 1) (2006) 151 FCR 540 at 545; Foster v ACCC [2012] FCA 953 at [18]-[19]; SZQFS v Minister for Immigration and Citizenship [2011] FCA 1244 at [30]. For those reasons, the adjournment application was refused.

The non-revocation decision 10 As noted above, on 5 December 2016, the appellant's visa was cancelled under s 501(3A) of the Act on the basis of the appellant's criminal record. 11 On 20 December 2016, the appellant requested revocation of the cancellation decision. Attached to that request was a submission made by the appellant which addressed the following matters: (a) the appellant's children in Australia and the effect that visa cancellation would have on his family; (b) the appellant's criminal record; and (c) the impediments to the appellant's return to New Zealand. 12 On 25 October 2017, the Assistant Minister decided not to revoke the cancellation decision. The Assistant Minister signed a statement of reasons dated 25 October 2017 (Reasons). The Assistant Minister was satisfied that the appellant did not pass the character test by reason of his criminal record and that finding is not contested. The Assistant Minister then considered whether there was another reason why the cancellation decision should be revoked (s 501CA(4)(b)(ii)). That consideration was addressed under the headings: (a) best interests of minor children; (b) strength, nature and duration of ties to Australia; (c) extent of impediments if removed; and (d) protecting the Australian community, which, in turn, was addressed under the sub-headings of the appellant's criminal conduct and risk to the Australian community. 13 In relation to the best interests of minor children, the Assistant Minister found that it would be in the best interests of the appellant's daughter (born in November 2001) if the visa cancellation decision were revoked. However, the Assistant Minister gave this matter "some less weight" because the appellant does not have daily care and responsibility of the daughter, she will be an adult in around two years' time and she will be able to maintain written communication with the appellant in the meantime. 14 In relation to the strength, nature and duration of ties to Australia, the Assistant Minister gave weight to a number of factors arising from the appellant's family and social ties to Australia, where he has lived since 1989. The Assistant Minister also accepted that the appellant had made a contribution to the Australian community through his employment. 15 In relation to the extent of impediments if removed, the Assistant Minister accepted that non-revocation of the decision would result in emotional and practical hardship for the appellant, including in the form of separation from his children, family and friends, and some likely difficulty in re-establishing himself in New Zealand. Nevertheless, the Assistant Minister concluded that the appellant has the ability and capacity to maintain a basic living standard in New Zealand. 16 With respect to protecting the Australian community, the Assistant Minister found that the appellant has a lengthy criminal history of offending in Australia and New Zealand involving violence, domestic violence and repeated driving offences, and that the appellant's criminal conduct was very serious. The appellant's criminal history in Australia involved a number of instances of violence, mainly domestic violence, including: (a) The appellant was convicted in August 2003 of domestic violence offences committed against an ex-partner (including aggravated burglary with an offensive weapon) and sentenced to a total of two years' imprisonment for that and related offences. The Assistant Minister found that these were very serious offences, especially the threat to burn a house when the appellant's former partner and two children were inside. (b) The appellant was convicted in August 2016 of domestic violence offences committed against his then partner (a different woman) and sentenced to six months' imprisonment. This offending was also very serious, given the persistence of the appellant's harassing and threatening of the victim and his life-threatening attack on her. (c) The appellant's other criminal offending in Australia included sentences of 12 months and 18 months' imprisonment in 2012 and 2010 for driving offences, and other criminal offending in New Zealand before his arrival in Australia. 17 The Assistant Minister found that there was an ongoing risk of the appellant re-offending and that, if the appellant re-offended in a similar manner involving violence, that may result in conduct that could cause serious physical or psychological harm to members of the Australian community. If the appellant re-offended with his driving offences, that posed a risk of physical harm to members of the Australian community, in particular road users. The Assistant Minister's findings included the following: (a) The Assistant Minister accepted that various factors referred to by the appellant (his dysfunctional upbringing, his advanced osteoarthritis diagnosed in 2013, his depression and his anxiety) were likely to have contributed significantly to his 2016 convictions. However, the Assistant Minister also noted that the appellant had a history of violence, including domestic violence, dating back as early as 1982. (b) The Assistant Minister acknowledged the rehabilitation that the appellant had undertaken. However, the appellant had made claims of rehabilitation in 2003 and 2012 and had continued to offend. (c) There was no specific evidence of the appellant undertaking any alcohol reform programs since 2013. Given the nexus between drinking and the appellant's offending, the Assistant Minister found that this increased the likelihood of the appellant re-offending. The appellant's abstinence from drugs and alcohol in prison had not been tested in the community. (d) The Assistant Minister acknowledged that the appellant was remorseful but noted that he had expressed similar remorse in the past. The Assistant Minister noted letters of support from the appellant's family and friends, but noted that the appellant's family and other support did not prevent him from re-offending as recently as 2016. (e) The appellant continued to offend, even after warnings from the Department in 2010 and 2013. The appellant had repeatedly breached family violence orders and other judicial orders. (f) A psychological report from July 2016 stated that the appellant's prospects of rehabilitation appeared low and the likelihood of re-offending high at the time of assessment. 18 The Assistant Minister concluded that the appellant represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his child as a primary consideration, and other considerations such as his lengthy residence in Australia and his ties to Australia.

Decision of the primary judge 19 The appellant sought review of the non-revocation decision by the Federal Court under s 476A(1)(c) of the Act. Section 476A(2) stipulates that the jurisdiction of the Federal Court on such a review is the same as the jurisdiction of the High Court under s 75(v) of the Constitution. Therefore, it was necessary for the appellant to establish that the non-revocation decision was affected by "jurisdictional error": Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76], [81]. 20 The primary judge recorded the difficulties with the appellant's case on the review in the following terms (at [24]-[26]): 24 The grounds set out in the applicant's application are wide and varied but each is completely unparticularised. The applicant's written and oral submissions made no specific reference to those grounds and no particularisation of them was otherwise given. In the absence of particularisation, the grounds specified cannot and do not assist the applicant in establishing jurisdictional error. 25 The applicant's written submissions were highly ambiguous. Much was contained in those submissions which, if read literally, was supportive of the Assistant Minister's decision. Other extracts in the submissions had the appearance of having been extracted from other submissions made in furtherance of unrelated applications. 26 The written submissions contained further broad but completely unparticularised allegations of error. It was alleged that the Assistant Minister failed to make findings but the findings that should have been made were not identified. It was alleged that the applicant was denied procedural fairness but no particularisation was given. It was asserted that the statutory task required by the Act was not carried out, but how that was so was not specified. None of those allegations need further be considered because without particularisation it is impossible to come to the view that there is merit in any of them. 21 The primary judge addressed those matters raised by the appellant for which some particularisation of error was given in a manner sufficient to allow an understanding of the nature of the challenge made. 22 It is unnecessary to summarise the reasons of the primary judge in dismissing the application for judicial review. To the extent necessary, the reasons of the primary judge are referred to below when considering the appellant's grounds of appeal. In our view, despite the appellant being unrepresented in the decision below and despite the ambiguity in the grounds of review raised below, the primary judge gave careful consideration to the appellant's grounds and submissions but concluded that they did not establish jurisdictional error in the non-revocation decision.

Grounds of Appeal 23 This is an appeal under s 24 of the Federal Court of Australia Act 1976 (Cth), by which the appellant must show an error in the judgment of the Court below. 24 The grounds of appeal stated in the appellant's notice of appeal were in the following terms (errors in the original): Ground 1 The Applicant contends the Federal court erred and constructively Misapplied Assessment made pursuant to s 501CA(4)b(ii) of the migration act 1958 (Cth), and failure to discharged statutory functions by not providing adequate and active intellectual reasoning "shield from scrutiny" and relies on "noting" which has no implicit reasons and thereby denied the applicant procedural fairness. Applicant relies on Minister for immigration and border protection v Nguyen (2017) FCAFC 149 at (32) Per Flick, Baker & Rangiah JJ Nweke v Minister for Immigration and Citizenship [2012] FCA 266, 126 ALD 501. Particulars (a) The applicant find that the federal court failed to properly discharged his functions by failing to realised that the Assistant Minister reasoning process was fundamentally flaw by reason of jurisdictional errors in Assistant minister's reasoning. (b) The Federal court erred in failing to sufficiently addressed the applicant claims that the Primary considerations has not be given proper consideration by the Assistant Minister that only "noting" without given "shield from scrutiny" and without evaluating the impacts deportation will create in the life of each of the two applicant's teen age children without the applicant. Thereby misapplied the Migration Act. Ground 2 The appellant constructively find that the Federal court Assessment as the potential for any further offending by the appellant to cause physical harm to members of the Australian community made by the Assistant Minister as "unacceptable" was illogical and without any rational foundation or no evidence, the Full court thereby fall into jurisdictional error without proper assessment to the fact. (a) a situation the appellant offence was particular and only directed toward he's ex-partner. (b) There is no evidence that appellant has harm to any members of the Australian community that re-offending in future to harm members of the Australian community in the same fashion will be "Unacceptable" by Australian community. 1 a situation the appellant has been in Australia for 38 years and this offence was lately to a woman that he had been in a relationship for two years. Now he is not in that relationship after an altercation that lead the applicant to incarceration. How can the applicant represent "Unacceptable Risk" of harm to Australian community to which his offence has no bearing. This is a speculation without a clear cut evidence of harm to the community 25 The grounds of appeal are difficult to understand. Ground 1 appears to be that the Minister did not give adequate consideration to the likely effect of the appellant's deportation on the appellant's children in Australia and that the primary judge erred in failing to so find. Ground 2 appears to be a complaint that there was no evidence to support the Minister's finding that there was a risk to the Australian community of the appellant re-offending, or that the finding was unreasonable, and that the primary judge erred in failing to so find. There was no elaboration of either ground at the hearing. 26 In addition to his notice of appeal, the appellant also wrote a letter to the Court, dated 28 November 2018, which contained what might be considered further grounds of appeal (or submissions) in the following terms (errors in the original): …the first respondent's decision and the reasons of judgement itself must be quashed, it was constituted by jurisdictional error in saying that the first respondent failed to exercise the Courts purpose at the highest level by not putting into action the following: (a) By failing to expose a path of reasoning (i) Not referring the appellant for further legal assistance on a pro bono basis under r4.12 Federal Court Rules 2011(Cth) (j) Not grant leave for the appellant to provide submissions to the grounds provided to the Court in the interest of the administrative of justice (k) Knowing full well the appellant's inability to particularise any further facts or circumstances relating to the additional grounds that had been raised without considering if they have an arguable basis (l) Being aware at all relevant times that the appellant is without liberty and was unrepresented at all relevant times 27 At the hearing, we gave leave to the appellant to rely on the foregoing matters. 28 In response to those further grounds, the Minister sought leave to rely on an affidavit of Emily Jane Nance affirmed 15 May 2019 which attached a transcript of the hearing before the primary judge, post-hearing submissions filed by the Minister and email correspondence relating to those submissions. We gave that leave. 29 As noted earlier, the appellant did not file any written submissions in support of his appeal. The appellant appeared at the hearing and briefly addressed the Court. However, the submissions were not directed to any of the grounds of appeal and did not otherwise assist the Court.

Consideration of appeal 30 We have considered the appellant's grounds of appeal and reviewed the Minister's decision and the decision of the primary judge in light of those grounds. We cannot identify any error in the decision of the primary judge.

Assessment of best interests of child (Notice of appeal ground 1) 31 The first ground of appeal concerns the Assistant Minister's decision in relation to the impact of deportation on the appellant's two teenage children. The appellant has two daughters: Abbey, born in July 1998, and Paris, born in November 2001. At the time of the Assistant Minister's decision in October 2017, Abbey was 19 years old and Paris was almost 16 years old. At that time, Paris (but not Abbey) was a "child" for the purposes of Direction No 65. 32 The Assistant Minister considered the position of Paris under the heading of "Best interests of minor children" (Reasons at [13]-[17]). The Assistant Minister found that it was in the best interests of Paris for the mandatory cancellation decision to be revoked. However, the Assistant Minister gave this consideration "some less weight" because the appellant did not have the daily care and responsibility for Paris, she would be an adult in two years' time (from the decision) and she would be able to maintain written contact with the appellant (Reasons at [17]). 33 The Assistant Minister considered the position of the appellant's other daughter, Abbey, under the heading of "Strength, nature and duration of ties" (Reasons at [19]-[21]). After setting out the nature of the contact between the appellant and Abbey (Reasons at [20]), the Assistant Minister noted that the appellant had presented evidence of a substantial debt in child support that remains outstanding, partly in respect of Abbey. The Assistant Minister accepted that the appellant "has a relationship with Abbey and that she would experience emotional and possibly also financial hardship from non-revocation" (Reasons at [21]). 34 The Assistant Minister's conclusions included the following: (a) In considering whether there was another reason why the cancellation decision should be revoked, the Assistant Minister gave primary consideration to the best interests of the appellant's daughter Paris. The Assistant Minister found that her best interests would be served by revocation of the original decision (Reasons at [76]). (b) The Assistant Minister found that the appellant represented an unacceptable risk of harm to the Australian community and that protection of the community outweighed the best interests of his child as a primary consideration, and other considerations, including the appellant's family ties to Australia, and the hardship that the appellant and his family would endure if the cancellation decision were not revoked (Reasons at [79]). 35 Before the primary judge, the appellant submitted that the Assistant Minister had failed to take into account the best interests of his minor daughter, Paris. No submissions were directed to the Assistant Minister's findings with respect to the appellant's adult daughter, Abbey. The primary judge found that the Assistant Minister engaged in active intellectual consideration of the appellant's claims relating to his daughter Paris: Primary Judgment at [31], [36]-[40]. We agree. As the primary judge correctly reasoned, a finding was made in favour of the appellant that it would be in the best interests of his daughter, Paris, if the cancellation decision was revoked but the Assistant Minister concluded that the risk that the appellant posed to the Australian community outweighed the best interests of his daughter given that the appellant does not have daily care and responsibility of his daughter, and given his daughter's age and capacity to maintain contact with him. No appellable error is discernible in the primary judge's finding. In so far as the appellant seeks, in this appeal, to challenge the Assistant Minister's findings with respect to his adult daughter, Abbey, we reject the appeal. No such challenge was made before the primary judge and, in any event, the Assistant Minister gave due consideration to the position of the appellant's other daughter, Abbey, under the heading of "Strength, nature and duration of ties" as noted above.

Assessment of likelihood of re-offending (Notice of appeal ground 2) 36 The second ground of appeal concerns the Assistant Minister's findings on the likelihood of re-offending. 37 The Assistant Minister reasoned as follows on the risk of harm: (a) The Assistant Minister found that the appellant's criminal conduct, both cumulatively and several individual incidents, was very serious (Reasons at [55]). That finding was open to the Assistant Minister. (b) The Assistant Minister observed that, although certain factors were likely to have contributed substantially to the offending that resulted in his 2016 convictions, the appellant had a history of violence, including domestic violence, dating back to 1982 (Reasons at [59]). (c) There was an "ongoing" risk of the appellant re-offending. He had repeatedly committed violent offences over a long period, particularly while affected by alcohol. He had a poor history of taking the opportunities afforded to him by conditional liberty and non-custodial sentences (Reasons at [71]-[72]). (d) If the appellant re-offended in a similar manner, that would cause serious harm to members of the Australian community (Reasons at [72]). That finding followed from the finding that the appellant's previous offences were "serious" (Reasons at [55]). (e) The appellant therefore represented an "unacceptable" risk of harm to the Australian community which outweighed other factors (Reasons at [79]). 38 The primary judge held that there is nothing in these reasons that could be impugned as legally unreasonable. The primary judge found on the contrary that the manner in which the Assistant Minister explained and weighed up the different matters demonstrated a clear process of reasoning leading to a logical and rational conclusion: Primary Judgment at [52]. We agree with the primary judge for the reasons given that legal unreasonableness was not made out. It was within the scope of the power of the Assistant Minister and open to the Assistant Minister to conclude as a matter of evaluation that the appellant represented an unacceptable risk of harm to the Australian community which outweighed other factors: Minister for Immigration and Border Protection v SZVFW (2018) 163 ALD 1.

No entitlement to legal representation (Additional grounds 1, 3 and 4) 39 The first, third and fourth additional grounds of appeal (by letter dated 28 November 2018) are that the primary judge did not refer the appellant for pro bono legal assistance under r 4.12 of the Federal Court Rules 2011 (Cth), the appellant was not legally represented at the hearing and the appellant was unable to particularise facts and circumstances relating to his challenge to the decision of the Assistant Minister. 40 A party has no entitlement to apply for a referral (see r 4.13) and the mere fact that a party is unrepresented is not a sufficient reason of itself to warrant a referral: see ADF15 v Minister for Immigration and Border Protection [2018] FCA 1099 at [29] per Flick J; see generally Fuller v Toms (2012) 247 FCR 440 at [91]-[97] per Barker J. The primary judge correctly stated that there is no right to legal representation and in a civil case, procedural fairness does not require it: Primary Judgment at [8].

No entitlement to provide further submissions (Additional ground 2) 41 The second additional ground of appeal (by letter dated 28 November 2018) is that the primary judge did not grant leave to the appellant to file submissions. 42 Given the appellant filed written submissions before the hearing, this complaint seems to relate to the decision by the primary judge not to permit the appellant to file further submissions after the hearing: see Primary Judgment at [57]. The background is as follows. 43 The appellant's written submissions filed before the hearing contained some statistical material about the number of cancellation decisions made by the Minister. At the hearing on 17 July 2018, the primary judge confirmed with the appellant that his argument was that the statistical material showed that the decision was made pursuant to an inflexible policy: Transcript at p 15 (lines 15-16), p 16 (lines 9-13) and p 20 (lines 38-41). The Minister responded to that argument at the hearing, stating that statistics alone did not demonstrate error, and referred to a Full Court decision on apprehended bias: Transcript at pp 20, 25. The primary judge gave the Minister an opportunity to provide a note after the hearing and for the appellant to respond within seven days: Transcript at pp 25-26. The Minister filed supplementary submissions on 24 July 2018. On 10 August 2018, the primary judge granted the appellant until 7 September 2018 to respond. On 31 August 2018, the appellant sought a further extension of time. On 4 September 2018, the associate to the primary judge asked the Minister to consider whether it was necessary for the Minister to rely on the supplementary submissions. On 6 September 2018, the Australian Government Solicitor informed the Court that the Minister did not seek to rely on the supplementary submissions, which merely put in writing what the Minister had said in short form at the hearing. The primary judge then decided the case without reference to the supplementary submissions. 44 In the circumstances, the appellant was not denied procedural fairness. The prospect of post-hearing submissions related to an issue that had been raised by the appellant. The Minister responded to the issue at the hearing and the appellant had the opportunity at the hearing to reply to the Minister's response. Procedural fairness only requires that a litigant have a reasonable opportunity to put his or her case: see for example Wyman v Queensland (2015) 235 FCR 464 at [43] per North, Barker and White JJ; Sandy v Queensland (2017) 254 FCR 107 at [86] per Reeves, Barker and White JJ. There is no entitlement to file submissions after a hearing: see for example Singh v Secretary, Department of Employment and Workplace Relations [2009] FCAFC 59 at [70]-[71] per Spender, Lander and Flick JJ; Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 at 258 per Mason J. In our view, in circumstances where the Minister expressly disavowed any reliance upon his supplementary submissions of 24 July 2018 and the primary judge paid no regard to them, the appellant was not denied procedural fairness.

Conclusion 45 In conclusion, we cannot identify any error in the decision of the primary judge. The appeal will be dismissed and the appellant ordered to pay the Minister's costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Davies, O'Bryan and Snaden.