Martin v Minister for Immigration and Border Protection

Federal Court of Australia|2017-01-03|Before: Katzmann J

The application be dismissed.
The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 Simon Israel Martin is a New Zealand national with a criminal history. He is also a father to three children, one of whom was born in Australia. In April 2014 he was convicted and sentenced to five terms of imprisonment, one of 12 months, two of 16 months, one of 10 months, and another of three months. His visa was later cancelled on character grounds. He applied for the decision to be revoked but the Minister declined to do so. In this application he contends that the Minister fell into jurisdictional error and should be required to reconsider his application.

The power to revoke the cancellation of a visa 12 The power the Minister was exercising was conferred by s 501CA of the Act. It relevantly provided: 501CA Cancellation of visa - revocation of decision under subsection 501(3A) (person serving sentence of imprisonment) (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. (2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for making the original decision; and (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (3) As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. (5) If the Minister revokes the original decision, the original decision is taken not to have been made. (6) Any detention of the person that occurred during any part of the period: (a) beginning when the original decision was made; and (b) ending at the time of the revocation of the original decision; is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention. (7) A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7. Note: For notification of decisions under subsection (4) to not revoke, see section 501G.

The Minister's decision 13 The Minister observed that s 501CA(4) permitted him to revoke a cancellation decision made under s 501(3A) if the visa-holder makes representations in accordance with the invitation given under s 501CA(3)(b) and he is satisfied either that he passes the character test as defined in s 501 or there is another reason why the cancellation decision should be revoked. 14 The Minister noted the representations made by Mr Martin. He stated that he had considered those representations as well as the documents submitted in support of them. He was satisfied that the representations were made in accordance with the invitation and in the appropriate manner. But he was not satisfied that Mr Martin passed the character test or that there was another reason why the cancellation decision should be revoked. 15 The Minister considered the best interests of the two youngest children. On that subject he said that, in conformity with Art 3 of the Convention on the Rights of the Child and "treated … as a primary consideration" the best interests of "any affected children under 18 in Australia". In this context he referred, amongst other things, to letters of support for Mr Martin from his 17 year old step-daughter and from Ms T. He accepted that Mr Martin "has a close and ongoing parental relationship" with the youngest of Ms T's two children. He concluded that it was in the best interests of those children not to revoke the cancellation of Mr Martin's visa, and it was also in the interests of his niece and nephew to whom he stood in a "parental-type role" since the death of their parents. 16 The Minister then turned to the strength, nature, and duration of Mr Martin's ties to Australia. He observed that Mr Martin had resided in Australia for 20 years. But he said that, as Mr Martin started to offend some two years after he arrived, he gave "less weight" to this consideration. Having regard in particular to the letters of support from Ms T and the children, the Minister found that Mr Martin has strong family ties to Australia. He noted that Ms T had been diagnosed with anxiety and depression to which Mr Martin's detention was found to be a contributing factor. He concluded that Mr Martin's immediate family in Australia would experience emotional and financial hardship if he did not exercise his discretion in Mr Martin's favour. 17 The Minister also noted that Mr Martin had what he described as "a reasonably steady employment history in Australia" and had made a positive contribution to the community through voluntary work at his niece and nephew's football club. 18 The Minister then had regard to impediments that Mr Martin would face if removed from Australia and deported to New Zealand. He acknowledged that he would suffer emotional stress from separation from his family and, in particular, his daughter and stepdaughters and said that he accepted Mr Martin's statement that he would feel he had failed as a father, partner and the person his family look to for guidance. He also took into account that Mr Martin is an asthmatic and has been prescribed medication for his asthma. On the other hand, he noted that Mr Martin has a large number of extended family members living in New Zealand and would therefore have access to family support there, that his employment skills are transferable, that he would have access to government economic and medical assistance like any other New Zealand citizen, and that he would face no cultural or linguistic obstacles there. 19 Finally, the Minister had regard to the protection of the Australian community "from harm as a result of criminal activity by non-citizens". He said that "remaining in Australia is a privilege that Australia confers on non-citizens in the expectation [that] they are law abiding". 20 In this regard, he first considered the nature and seriousness of Mr Martin's criminal offending. He said that violent offences should be seen as "very serious", observed that "domestic violence is of particular concern to the Australian community", that Mr Martin's assaults on Ms W were "very serious in nature", and that Mr Martin's record of offending relating to domestic violence must also be seen as "very serious in nature". 21 Then, the Minister considered whether Mr Martin "represents an unacceptable risk of harm". On the question the Minister said this: 38. In considering whether the person represents an unacceptable risk of harm I have had regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated is so serious that any risk that it is repeated may be unacceptable. 39. In making my assessment regarding the risk to the Australian community, I have had regard to, cumulatively: a) the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and b) the likelihood of further criminal or other serious conduct, taking into account information and evidence on the risk of the person re-offending. 40. I note that in sentencing on 7 April 2014, the court commented on the association of alcohol abuse with Mr MARTIN's repeated offending, especially in the context of "... relationships with persons with whom you are in a domestic relationship ...", and said Mr MARTIN had been given plenty of opportunities to address his issues in regard to alcohol and violence through community orders, but without success. I endorse this view of his history of re-offending. 41. I also note that it was accepted by the court that Mr MARTIN was willing to undergo therapy and treatment to address these issues, though I further note that no evidence has been provided by Mr MARTIN that this has occurred. 42. I acknowledge that Mr MARTIN has not incurred any incidents of breaches of discipline whilst in prison, nor has he been involved in any major incidents whilst in immigration detention. 43. While acknowledging that Mr MARTIN has expressed the intention of avoiding further offending and that his commitment to his family provides him with incentive to do so, I consider that he has had the same incentive in the past but has continued to offend, and that his ability to avoid alcohol abuse and further offending has not been tested in the community since he was imprisoned, as he was placed into immigration detention immediately upon his release from prison. 44. Taking into consideration all of the aforementioned factors and supporting information, I find that there is an ongoing likelihood of Mr MARTIN re-offending and that if he was to re-offend in a similar manner, this could result in physical or emotional harm to members of the Australian community. 22 The Minister said that he gave "significant weight" to the "very serious nature" of Mr Martin's crimes, noting that they included "multiple instances of domestic violence and breaches of judicial orders specifically intended to avert such violence". He found that the Australian community could be exposed to "significant harm" if Mr Martin were to reoffend in a similar way. And he said that he could not rule out the possibility of further offending. Ultimately, these considerations outweighed all others. 23 The Minister said that he was "cognisant that where great harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient" to warrant the revocation of the cancellation decision, "even applying a higher tolerance of criminal conduct" in this case because Mr Martin had lived nearly all his adult life in Australia. He concluded that Mr Martin represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed all other considerations.

The scope of the Minister's discretion and the power of review 24 In NBMZ Allsop CJ and I discussed the scope of the Minister's discretion under s 501(1) of the Act. Those observations apply equally to the discretion conferred by s 501CA(4). We said (at [6]): The discretion under s 501(1) of the Act is unfettered in its terms, the usual consequence of which can be seen in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505 at [71] and [74]. The Minister is not bound by "Direction No 55 - Visa refusal and cancellation under s 501" issued under s 499(1) of the Act, which his delegates must follow. Nevertheless, the law imposes certain limits on the exercise of the discretion. The Minister may not act arbitrarily, capriciously or legally unreasonably. The subject matter, scope and purpose of the Act may also require that certain considerations be taken into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; and Huynh at [71]. In the case of an applicant for a protection visa one of those considerations is the statutory (that is, legal) consequences of visa refusal. 25 Direction No 55 was the forerunner of Direction No 65. It was revoked with the commencement of Direction No 65. 26 Where the Minister delegates his decision, the decision of the delegate is amenable to merits review in the Administrative Appeals Tribunal. Where the Minister chooses to consider the request personally, however, there is no right to merits review. The decision is a "privative clause decision" as defined by s 474(2) of the Act and can only be reviewed for jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

The application 27 Mr Martin does not challenge the Minister's finding that he did not satisfy the character test. The present application focuses on the Minister's decision that there was no other reason why the original decision should be revoked. It is common ground that the decision at least in this respect was a discretionary one. 28 By an amended application for judicial review Mr Martin contends that the Minister's decision is affected by jurisdictional error in two respects. First, he alleges that the decision is legally unreasonable. Secondly, he alleges that the Minister failed to take into account all the submissions made by Ms T and, in particular, her letter of 1 August 2016. If the first allegation is upheld, it is undeniable that the Minister fell into jurisdictional error. The same is not, however, true of the second. To succeed on the second allegation, Mr Martin must not only satisfy the Court that the Minister failed to take into account Ms T's submissions but that he was also obliged to do so.

Was the decision legally unreasonable? 29 In ground 1 of the amended application the following particulars are given: (a) The [Minister] assumed that [Mr Martin's] history offending was directed at his intimate domestic partners (AB 136 [33] to AB 137 [37]); (b) There was no evidence of the "domestic relationship" the subject of [Mr Martin's] domestic violence offences (AB 52 [25] to [26]), other than the sentencing remarks for the applicant's most recent offence, which indicated [Mr Martin's] intimate partner was not the victim of that offence (AB 4 [27]). (c) [Mr Martin's] intimate partner, who has been in a relationship with [Mr Martin] since 2002 or 2003 (AB 76, AB 104) and is the mother of his child, made strong submissions in support of his remaining in Australia (AB 101 and 104). (d) [The Minister] found that [Mr Martin's] intimate partner would experience emotional and financial hardship if the cancellation decision was not revoked (AB 135[26], cf AB 52 [19)). (e) [The Minister] found that the risk of serious harm to the Australian community, which by inference must predominantly be to [Mr Martin's] intimate partner as that was the only evidence of an ongoing domestic relationship of the kind that could be the subject of the finding at AB 136 [33] and 137 [37], outweighed all the other factors. (f) It is illogical and unreasonable on the one hand to accept that [Mr Martin's] intimate partner's emotional and financial interests are that [Mr Martin] stay in Australia but then to remove [Mr Martin] to protect her from any harm by [Mr Martin], particularly when she does not seek protection in that form. (g) In the alternative. the decision lacked an evident and intelligible justification as it was not open to assess the seriousness of the risk of harm to the Australian community without knowing the nature of [Mr Martin's] history of offending. In particular, the [Minister's] statements at AB 136 [33] and 137 [37] could only be made if the offending was directed at the applicant's intimate partners and that was not known. (h) No part of the [Minister's] reasons addressed or explained this aspect of his decision. 30 This ground focused on the Minister's finding that Mr Martin's history of offending was very serious in nature and related to domestic violence. 31 In Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 the Full Court (Allsop CJ, Griffiths and Wigney JJ) observed at [62] that: [I]n assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of "decisional freedom" within which a decision-maker has a genuinely free discretion: [Minister for Immigration and Citizenship v] Li at [29] (French CJ), [66] (Hayne, Kiefel and Bell JJ). Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Li at [66] (Hayne, Kiefel and Bell JJ); [Minister for Immigration and Border Protection v] Stretton [(2016) 237 FCR 1] at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at [105] (Gageler J); Stretton at [11] (Allsop CJ). 32 Mr Martin submitted that the inherent assumption in the Minister's conclusion is that the violence was against women with whom he has been in a domestic relationship. Yet, he contended that the only evidence before the Minister about his offending related to the 2014 convictions, that that evidence indicates that the victim was not Ms T, and that all the other material indicated that he and Ms T had been in a relationship since 2002 or 2003. Consequently, he reasoned, the risk of harm to the Australian community was one which "was most likely to impact on [Ms T] at the time of the decision". 33 In these circumstances, Mr Martin submitted that the Minister's decision was legally unreasonable in that it was "arbitrary", "capricious" or defied common sense to accept that it was in Ms T's emotional and financial interests that he stay in Australia but to conclude that he should be removed to protect her from harm he might inflict upon her, particularly when she did not seek protection of that kind and made strong submissions against it. 34 These submissions must be rejected. 35 First and foremost, they proceed from two false premises. One is that the Minister considered that the only person in the Australian community who was at risk was Ms T. That is not what the Minister said and his reasons should not be read in that way. The other was, as the Minister put it in his submissions to the Court, "that there can only be a single victim of domestic violence, namely the offender's [current] domestic partner". 36 Secondly, and in any event, they wrongly assume that it is unreasonable of the Minister to decide that Ms T should be protected from the risk of harm from Mr Martin when she, herself, does not seek protection. While there was no evidence that Mr Martin had been violent towards Ms T, given his history and lack of rehabilitation, it was not unreasonable to conclude that she was at risk of harm. Furthermore, the mere fact that a woman does not seek protection does not mean she has no need of protection. It is a notorious fact that many women stay in abusive and violent relationships. 37 Thirdly, there was always a risk that the relationship with Ms T would break down and Mr Martin would form new relationships, exposing other women to the risk of violence at his hands. There was material before the Minister to indicate that the relationship with Ms T had not been smooth and that he was violent towards Ms W during the time he told the Minister he was in a relationship with Ms T. At the sentencing hearing in 2014 Mr Martin's lawyer referred to Ms T as Mr Martin's "ex-de-facto", but noted that they hoped to "repair their relationship". The Minister was never told what precipitated the separation or for how long they were apart. 38 Fourthly, while there was no evidence before the Minister that Ms T had been assaulted by Mr Martin, there was no evidence to the contrary. Although the Minister considered that the immediate family would experience emotional and financial hardship if the visa cancellation decision were revoked, he did not find that it would be in Ms T's best interests to do so. 39 In oral argument, Ms Francois, who appeared with Mr Edwards for Mr Martin, submitted that, although Ms T was "the most immediate and likely victim of this type of offending", she was not taken into account in any way in "this protection of the community". I do not accept the submission. There is no reason to conclude that the Minister did not have regard to her interests, although his concern was a broader one. 40 Fifthly, as the Minister observed, although the sentencing magistrate was informed in 2014 that Mr Martin was willing to undergo therapy for his alcohol problems and his attitudes to women, he provided no evidence to the Minister that he had done so. This circumstance, and the fact that his capacity to avoid alcohol or not reoffend had not been tested in the community, well justified the Minister's conclusion that there was an unacceptable risk of him reoffending "in a similar manner" with consequent physical or emotional harm to "members of the Australian community". 41 Sixthly, as the Minister submitted, it is an over-simplification of his reasons to assert, as Mr Martin did, that the Minister decided to remove him in order to protect his "domestic partner". 42 In oral argument Ms Francois argued that the Minister failed to balance the certain hardship she and her children would suffer against the uncertain risk of violence in the future. But the Minister makes it quite clear in his reasons that he did precisely that. In particular, at [53] of his reasons the Minister said: In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that MR MARTIN represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of his biological child and other minor family members, as a primary consideration, and any other considerations as described above. 43 Amongst the other considerations described above was the emotional and financial hardship to immediate family members including Ms T. 44 In the alternative, Mr Martin submitted that the decision lacked an evident and intelligible justification because it was not open to assess the seriousness of the risk of harm to the Australian community without knowing the nature of Mr Martin's history of offending. He contended, in particular, that two statements made by the Minister in his reasons could only have been made if the offending was directed at Mr Martin's female partners, and that was a matter that was not known on the material before the Minister. 45 The two statements Mr Martin singled out were these: 33. In considering the nature and seriousness of Mr MARTIN's criminal offending I consider that violent offences should be seen as very serious, and that domestic violence is of particular concern to the Australian community. … 37. I find that this record of offending relating to domestic violence must be seen as very serious in nature, particularly in view of the significant prison sentences imposed, bearing in mind that dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy. 46 These submissions must also be rejected. 47 The first statement is a general comment about offences involving violence, including domestic violence. Only the second touches upon Mr Martin's criminal history. 48 It is true that there was a lack of detail in the material presented to the Minister concerning Mr Martin's offending. Nevertheless, there was sufficient information to support his findings and conclusions. He had a copy of the "National Police Certificate" which contained the particulars of Mr Martin's criminal record including the sentences imposed for the various offences of which he had been convicted. He also had the transcript of the sentencing hearing in 2014 which include the remarks on sentence. The findings as to the nature and seriousness of Mr Martin's criminal history were not without an evident and intelligible justification. They were based on logical inferences from the sentences imposed and reflected the views of the magistrate, whose remarks on sentence the Minister expressly took into account. 49 Ground 1 is not made out. The Minister's decision does not warrant any of the epithets ascribed to it.

Did the Minister fail to have regard to relevant considerations? 50 It was common ground that the Minister did not take into account Ms T's letter of 1 August 2015 but nothing appears to turn on this. Mr Martin's counsel did not contend that there was any material difference between what Ms T wrote in that letter and what she had written in the other letters the Minister did take into account. Rather, Mr Martin submitted that the Minister failed to consider the critical information that the person in the Australian community most likely to experience any harm (Ms T) wished that he stay in Australia and her interests would be "more adversely affected by his removal". 51 A failure to have regard to a relevant consideration will only vitiate the exercise of a statutory discretion by an administrative decision-maker if the decision-maker is bound by the terms of the governing statute to take it into account, whether expressly or by implication from its subject matter, scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40. 52 Consequently, this ground of review raises two questions: first, did the Minister take these matters into account and, secondly, if he did not, was he bound to do so? 53 While he did not submit, in terms, that these were matters the Minister was bound to consider, Mr Martin relied on the following statements by Tracey J in Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [42]: Once the invitation to make representations is extended to a visa holder it falls to the visa holder, if he or she wishes to do so, to provide information and submissions to the Minister in an effort to persuade the Minister that a revocation decision should be made. Those representations will be made in the knowledge that the Minister is likely to be guided by some or all of the considerations referred to in Direction 65. The applicant will, therefore, be in a position to provide the Minister with information relating to those considerations, including information which might seek to anticipate and allay concerns which the Minister might harbour relating to the applicant's circumstances and conduct. If, in making representations, the applicant provides information to the Minister, relating to his or her personal circumstances, and that information is critical and relevant to the applicant's case the Minister is bound to consider it. It will be a matter for the Minister to weigh such matters against other relevant considerations, including those mentioned in Direction 65. 54 There are two problems with this submission. 55 First, in the present case the Minister did take into account the information Mr Martin provided to him about his personal circumstances and weighed it against other relevant considerations, including those mentioned in Direction 65. 56 I do not accept that the Minister failed to take into account Ms T's wishes. He referred (at [17]) to letters of support from Ms T and the trauma that her three children would experience if he were removed. He found (at [24]-[25]) that Mr Martin had strong family ties to Australia and noted that Ms T had been diagnosed with anxiety and depression that had been attributed to his detention. Nor do I accept that the Minister failed to take into account her emotional and financial interests having regard to what the Minister said at [26] of his statement of reasons: I have considered the effect of non revocation upon MR MARTIN'S immediate family in Australia and accept that those persons would experience emotional and financial hardship. 57 The Minister accepted that Ms T was a member of Mr Martin's immediate family (at [24]). It necessarily follows that he considered she would experience emotional and financial hardship if the Minister did not revoke the cancellation decision and he were removed from Australia. At the same time, as a member of the Australian community most at risk of harm from Mr Martin, at least in the short term, I am not persuaded that the Minister failed to take into account her interests when considering the interests of the Australian community. 58 Second, the submission takes Tracey J's remarks out of context. In Picard his Honour was dealing with an allegation that the applicant (Mr Picard) had been denied procedural fairness because the Minister failed to provide him with certain information which was adverse to his interests on an issue critical to the decision and failed to give him an opportunity to comment on it before the decision was made. Before dealing with the specific allegation his Honour discussed the duty to afford procedural fairness both generally and in the context of an application to revoke a cancellation decision. No such complaint is made in the present case.

Conclusion 59 The application should be dismissed with costs. 60 Notwithstanding the outcome, I wish to record my gratitude to Ms Francois and Mr Edwards who appeared for Mr Martin pro bono in the finest traditions of the bar. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Migration Act 1958(Cth)ss 474(2), 499, 501(3A), 501(7), 501CA

At a glance

Court

Decision date

Before

Source

Judgment (10 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (7)