Motufoaki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2022-05-24|Before: Smith J

Application dismissed.
The applicant pay the first respondent's cost of the application to be assessed by a registrar if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BANKS-SMITH J: 1 Kau Motufoaki seeks judicial review of a decision of the Administrative Appeals Tribunal. He is aggrieved by a decision of the Tribunal to affirm the decision of the delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth). 2 The ground of review is confined. Mr Motufoaki contends that the Tribunal made a jurisdictional error by failing to consider or failing to engage in an active intellectual process with the factors contained at paragraph 13.2(4) of Direction 79, which must be taken into account where relevant in assessing the weight to be given to the best interests of minor children in Australia. 3 Direction 79 was made under s 499 of the Migration Act and sets out the principles to be applied by a decision-maker in the exercise of their discretion, including in relation to decisions under s 501CA. Relevantly, it refers to specific considerations described as 'primary' and 'secondary'. The Tribunal was bound by Direction 79. 4 Paragraph 13 of Direction 79 provides that the primary considerations to be taken into account are: (a) protection of the Australian community from criminal or other serious conduct; (b) the best interests of minor children in Australia; and (c) the expectations of the Australian community. 5 As to the best interests of minor children, paragraph 13.2(1) provides that a decision-maker must make a determination about whether revocation is in the best interests of the child. Paragraph 13.2(4) lists a number factors that must be considered where relevant. They are: a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact); b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements; c) The impact of the non-citizen'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 non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways; e) Whether there are other persons who already fulfil a parental role in relation to the child; f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child); g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

Background 6 Mr Motufoaki is a New Zealand citizen who moved to Australia at the age of 11 in 1999. 7 There is no issue that Mr Motufoaki did not pass the character test for the purposes of s 501(3A) of the Migration Act. He has a substantial record of criminal offending, including intentionally causing serious injury, for which he was convicted in 2007 and sentenced to 2 years and 9 months' imprisonment. 8 Over 40 convictions were recorded with respect to Mr Motufoaki from 2007 to 2019 across numerous categories of offending. Among the more serious were drug offences, weapon offences, offences involving violence and breach offences, including committing an indictable offence while on bail. 9 In May 2019 Mr Motufoaki was sentenced to an aggregate term of 2 months' imprisonment for a number of offences relating to an assault on a petrol station attendant and a theft of petrol. 10 In July 2019, and when he was serving this custodial sentence, Mr Motufoaki's visa was mandatorily cancelled under s 501(3A) of the Migration Act on the basis that he had a substantial criminal record as defined in s 501(6)(a). When his term of imprisonment was served he was placed in immigration detention. 11 Section 501CA(4) provides that the Minister may revoke the original visa cancellation decision if the person makes representations under an invitation to do so, and the Minister is satisfied that the person passes the character test or that there is another reason why the original decision should be revoked: s 501(4)(b)(i) or (ii). 12 In this case, Mr Motufoaki made representations to the Minister's delegate. However, the delegate decided not to revoke the mandatory visa cancellation decision. They were not satisfied that Mr Motufoaki passed the character test, and were not satisfied that there was another reason why the visa cancellation decision should be revoked, as required under s 501(4)(b)(i) or (ii).

Merits review by Tribunal 13 Mr Motufoaki sought review in the Tribunal on 27 June 2020. There was a hearing before the Tribunal over the course of 8, 9 and 10 September 2020. Mr Motufoaki was self-represented but had assistance with preparing written submissions. 14 The Tribunal published its reasons on 17 September 2020, affirming the delegate's decision not to revoke the visa cancellation. 15 The Tribunal recorded in its reasons evidence from witnesses, some who provided statements, a psychological evaluation and report, and Mr Motufoaki's written and closing submissions. 16 According to the Tribunal's reasons, Mr Motufoaki gave evidence that his immediate family consists of three brothers plus himself, an older sister and his mother and father. Nearly all of his immediate family live in Australia. His sister lives in Auckland, but he has had no contact with her since his only visit back to New Zealand in 2004. 17 Mr Motufoaki also gave evidence as to his offending (admitting his offences except the assault in 2019), his background, his relationships with partners, family and friends, his work and jobs, his membership of the Niuean community, what it might be like should he be returned to New Zealand, and his motivation to change. 18 Relevantly, the Tribunal in its reasons summarised the evidence before it relating to the issue of the interests of minor children. The children to whom Mr Motufoaki referred were two daughters of his cousin. He referred to them as his nieces. 19 Mr Motufoaki said he has a 'very close' relationship with the children, stating that he babysat them, picked them up from school, and saw them on most weekends and on other family occasions. The Tribunal noted that upon further questioning Mr Motufoaki said that the school pick up was incidental to a visit with his cousin. Mr Motufoaki also said that he had not seen the children since Easter 2019, and there had been no contact with them since he had been incarcerated. 20 The Tribunal continued (at para 35): Mr Motufoaki agreed that the girls are well looked after by their parents but confirmed he provided money to his cousin to help with bills in '2018-2019'. This was described as a 'one- off sort of thing', and then stated that he gave sums of $50 on occasions when he had money, four or five times. I asked Mr Motufoaki why he did this when he had had difficulty paying for petrol and he responded that he 'would rather give them money than pay for petrol'. I asked Mr Motufoaki whether his cousin was unemployed and he responded that his cousin was working. 21 The Tribunal recorded Mr Motufoaki's oral submissions as follows (at para 79): (a) it is unfair to be judged on actions from fourteen years ago and he wants the opportunity to work and change his life; (b) he has developed a better ability to approach life and is a recovered addict and a victim of two incidents of domestic violence; (c) Mr Motufoaki wants to return to Melbourne to help his parents and his brother who has a disability and the COVID risk is concerning; (d) he is in need of intense medical care for arthritis, PTSD and depression; (e) prison and detention have helped in his rehabilitation, he now understands the importance of his family and he loves them; (f) this process should operate as a warning, he does not deny the past and takes full responsibility for his actions; (g) if he re-offends his visa can be cancelled again. 22 The Tribunal also summarised the matters that Mr Motufoaki had emphasised, based on his statement of facts and issues (at para 80): (a) the importance of protecting the Australian community from harm and that non- citizens should be law abiding, that he acknowledged his offending and 'my life is here in Australia and this is a reason…to no longer offend' (at [39]-[40]); (b) he faces impediments on return to New Zealand including difficulty re-establishing himself after a long absence, returning during the COVID-19 pandemic, the need for psychological treatment and counselling, and practical and emotional hardship including difficulty coping without family support (at [98]-[100]); (c) that he had successfully completed a Youth Supervision Order and 'demonstrated exemplary behaviour whilst in prison and attempted every avenue to rehabilitate, with success in completing some rehabilitation' (at [101]-[102]); (d) the longest period of long-term detention was more than 14 years ago, and it 'is an unconstitutional action if this were to be used against me today', he takes ownership of his offending and addiction, and his behaviour in detention is how he will behave in the community (at [103]-[105]); (e) the last 20 years did 'not work out' and he will devote the next twenty years to change and family. 23 The Tribunal then proceeded to address the limbs of s 501CA(4). 24 The Tribunal was not satisfied that Mr Motufoaki passed the character test by reason of his substantial criminal record. The Tribunal recorded that there was some debate before it as to whether a link was required between the sentence being served at the time of visa cancellation and the definition of 'substantial criminal record' in s 501(7) being a term of imprisonment of 12 months or more. Mr Motufoaki contended that it was unfair to rely on a previous conviction (which had been served) for the purpose of the 12 month requirement. The Tribunal said in relation to this (at paras 90-91): Neither the legislation nor the Direction provide specifically for a link between these two prerequisite conditions. Accordingly, it is open to make the finding that Mr Motufoaki's earlier substantial sentence satisfies the definition of substantial criminal record, and that he was serving a sentence at the time of the mandatory cancellation. Accordingly, I find that Mr Motufoaki does not pass the character test and I must consider whether there is another reason why the mandatory cancellation decision should be revoked. 25 The Tribunal then proceeded to address the various Direction 79 considerations. It is not necessary to summarise the Tribunal's treatment of all of the considerations. 26 The Tribunal considered the protection of the Australian community and found that Mr Motufoaki had engaged in violent conduct that should be viewed very seriously. It found that there was a real risk of Mr Motufoaki reoffending, and this primary consideration weighed strongly against revocation. 27 The Tribunal then considered the best interests of minor children affected by the decision. It is appropriate to extract the reasons: 118. This primary consideration requires me to consider (at 13.2): whether revocation is in the best interests of a child who is a minor at the time the revocation decision is made; to consider children individually if there is more than one child, to the extent their interest may differ; and to consider, where relevant, factors including the following (and I summarise): (a) the nature and duration of the relationship with less weight given to non-parental relationships, or limited meaningful contact; (b) the likely effect of any separation taking into account the ability to maintain contact by other means; (c) whether other persons fulfil a parental role. 119. Mr Motufoaki submitted that there are two minor children described in written submission as nieces, being V, aged 6, and S, aged 5. From evidence at the hearing it is apparent the children are those of one of Mr Motufoaki's cousins. 120. In his written submissions, Mr Motufoaki asserted weekly contact with the girls and this was broadly sustained in his oral evidence. He gave examples of contact that included picking the girls up from school, although this appeared to be incidental to him spending time with his cousin and did not appear to be a matter of routine. 121. Mr Motufoaki gave evidence that he has provided funds - possibly totalling as much as $200 - to the girls' parents to assist with costs of upbringing. I am prepared to accept this evidence at face value, albeit that he also stated that he preferred to provide money to the girls than pay for petrol. In any event, the evidence was that the children are well parented and there is no evidence that the money was needed on a regular basis in order to ensure their wellbeing. 122. I accept that there is some tangible evidence, a photograph, demonstrating the link held between the two girls and Mr Motufoaki. However, his evidence at the hearing was that he had not had contact with them during his most recent periods of incarceration. There is no direct evidence as to the affect separation from Mr Motufaku might have on V and S, but I accept there is likely to be, at the least, real fondness between them, and they would feel some impact. 123. Taking into account the factors arising in this consideration under the Direction, I am unable to identify anything particularly critical in the relationship between V and S and Mr Motufoaki. Nor do I consider it necessary to consider their interests separately. Accordingly, I can only ascribe slight weight to this consideration in favour of revocation. 28 The Tribunal then turned to the consideration of the expectations of the Australian community, finding that Mr Motufoaki's risk of reoffending puts both individuals and the public at large at risk physically, and that puts property and public order at risk. It concluded that the real risk of reoffending, taken together with the nature and duration of prior offending, supported a finding that this primary consideration weighed strongly against revocation. 29 The Tribunal then considered the strength, nature and duration of ties to Australia, finding that this consideration weighed slightly in favour of revocation. It also found that the extent of impediments if removed weighed only slightly in favour of revocation. 30 The Tribunal concluded, saying: 153. Of the primary considerations I have found that the protection of the Australian community and the expectations of the Australian community weigh strongly against revocation, and the interests of minor children weighs minimally in favour of revocation. Of the other considerations I have found that strength, nature and duration of ties and extent of impediments if removed weigh slightly in favour of revocation. 154. The process of assessing considerations is not a mathematical one, yet the Direction does talk in terms of considerations weighing for and against revocation. I have arrived at findings in these terms. The Direction states that primary considerations should generally be given greater weight than other considerations (paragraph 8(4)). Here I consider that the primary considerations protection of the Australian community and expectations of the Australian community are strongly weighted against revocation and, together, outweigh the bests interests of minor children and the other considerations that weigh slightly in favour of revocation. Accordingly, I consider that I am not able to identify another reason why Mr Motufoaki's mandatory visa cancellation should be revoked. 31 Accordingly the Tribunal affirmed the visa cancellation decision of the delegate under review.

Ground of review 32 As drafted, Mr Motufoaki's ground of review is as follows: The Second Respondent made a jurisdictional error by failing to consider or failing to engage in an active intellectual process at [118]-[123] with the factors contained at paragraph 13.2(4) of Direction 79 which must be taken into account where relevant in assessing the weight to be given to the best interest of minor children in Australia.

Principles 33 The authorities as to how representations are to be considered for the purpose of s 501CA(4) are well established: Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 at [34]; and AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 at [18]. 34 More recently, the High Court in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 summarised the position, stating: [24] Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged 'to make actual findings of fact as an adjudication of all material claims' made by a former visa holder. [25] It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them. [26] Labels like 'active intellectual process' and 'proper, genuine and realistic consideration' must be understood in their proper context. These formulas have the danger of creating 'a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker's] decision can be scrutinised'. That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, '[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind'. The court does not substitute its decision for that of an administrative decision-maker. [27] None of the preceding analysis detracts from, or is inconsistent with, established principle that, for example, if review of a decision-maker's reasons discloses that the decision-maker ignored, overlooked or misunderstood relevant facts or materials or a substantial and clearly articulated argument; misunderstood the applicable law; or misunderstood the case being made by the former visa holder, that may give rise to jurisdictional error. (footnotes omitted)

Submissions 35 Mr Motufoaki made short oral submissions before me in support of his application. 36 He reiterated that he cares for the children in his life. He said: Just that, you know, my nieces they really need, you know, their uncle in their life, and, you know, I look after them all the time. Sometimes I pick them up from school. Sometimes I take them out for lunch, and - yes. It'll be really hard to see them if I get shifted back to New Zealand.

Consideration 37 The evidence before the Tribunal on this issue is referred to at [18]-[20] above. The Tribunals' reasons are set out at [27] above. 38 Based on the summaries at [21]-[22] above, the position of the minor children was not an issue given emphasis in Mr Motufoaki's oral or written submission before the Tribunal. 39 In my view, no error is disclosed in the Tribunal's reasons as to the impact of cancellation on the two minor children. The Tribunal was presented with little substantive evidence on the issue. The Tribunal seems to have done its best with the information before it, and in fact gave detailed reasons when one has regard to the limited evidence, referring in particular to paragraphs 13.2(4)(a), (d) and (e) of the Direction, and noting a lack of evidence as to factor (d). The Tribunal also had regard to (c), as is evident from its acceptance that there is likely to be, at the least, real fondness between them and Mr Motufoaki, and they would feel some impact. The matters referred to in (g) and (h) did not appear to be relevant, and to the extent (b) was relevant it was addressed in addressing (e). It was not apparent that there was any evidence as to the children's known views, being factor (f). Mr Motufoaki did not point to any particular fact or factor that had been overlooked or wrongly considered. 40 The evidence painted a picture of limited contact with the girls and in circumstances where they were otherwise well looked after. The Tribunal recognised that his absence would have some impact on the girls, and this presumably underlies the Tribunal's decision (in favour of Mr Motufoaki) that it would be in their best interests to revoke the visa cancellation decision. 41 The Tribunal to my mind clearly identified the claim based on Mr Motufoaki's relationship with the minor children and properly had regard to the matters referred to in paragraph 13.2(4) of Direction 79. Its reasons disclose an understanding, identification and evaluation of the claims relating to the minor children, in accordance with the principles collected in Plaintiff M1/2021. How it weighed that consideration together with the other factors was a matter for the Tribunal and there is nothing to suggest it did not understand or carry out that task properly: its reasons at paras 153-154 support this conclusion.

The additional oral submission 42 That consideration of the review ground is sufficient to dispose of the application. 43 However, during the hearing before me Mr Motufoaki submitted that he had only been imprisoned for a few months in the four years that preceded the visa cancellation decision, and he had been in Australia since 1998. I took that to be a submission directed to the manner in which the Tribunal considered the time that he had spent in prison and his prospect of rehabilitation, although that point was not raised by his application and was not otherwise developed. Acknowledging that Mr Motufoaki was self-represented, I afforded Mr Motufoaki the opportunity to develop the submission, but there was little more of relevance that he wished to say other than to note that after his conviction in 2007 he was not sent to prison, but rather to a youth training centre. I invited counsel for the Minister to address the submission and counsel referred to the following matters: (a) it was open to the Tribunal to take into account Mr Motufoaki's history of offending, and not only the history in the years immediately preceding the cancellation of his visa; and (b) the Tribunal at paras 92 to 117 set out in detail the evidence that indicated the nature and seriousness of the conduct that had been engaged in, and there was no basis to support an argument that it had improperly overlooked the course of offending, periods of non-offending or the risk of further offending. 44 I note Mr Motufoaki's distinction between a term served in a youth training centre and a term served in prison. For the purpose of s 501(7)(c) of the Migration Act, that does not assist him. Section 501(12) defines 'imprisonment' relevantly to include any form of punitive detention in a facility or institution. 45 Further, I note that the Tribunal was aware of a submission by Mr Motufoaki that it was 'unfair' that his older offending should be taken into account. So much is apparent from the Tribunal's summary of Mr Motufoaki's submissions at [22] above (noting the reference to 'unconstitutional action') and the following extract from para 97 of the Tribunal's reasons: I accept that violent offending only comprises a relatively small proportion of Mr Motufoaki's much longer and wider record of offending. However there has been at least one incident of very serious violence. To the extent that Mr Motufoaki argued it was unfair that his older offending be taken into account, I will address this under the consideration risk to the Australian community. 46 I have reviewed the manner in which the Tribunal addressed Mr Motufoaki's history of offending and his prospect of rehabilitation. 47 The Tribunal was entitled to have regard to the circumstances of the offending that led to his 2007 conviction and sentence of imprisonment. It recited Mr Motufoaki's evidence about the 2006 offending that led to the 2007 conviction for 'intentionally causing serious injury' and robbery. It noted that the sentencing judge commented on the violence of the attack. It referred to another conviction for a violent assault in 2009. The Tribunal referred to a period of around five years of non-offending, from around 2013 when he moved in with his parents and was busy with work, although using drugs. It referred to a machete attack on him that left him injured, the rehabilitation process that followed and his continued use of drugs. The Tribunal referred in detail to the 2019 offending, noting that Mr Motufoaki explained it on the basis that he had no money and should have been convicted of theft, but continued to deny he should have been convicted of assault. 48 The Tribunal commented on Mr Motufoaki's record, noting it included a range of non-custodial court outcomes but also a high frequency of offending over an extended period of time. The Tribunal accepted Mr Motufoaki's submission that much of his offending occurred while he was under the influence of drugs or alcohol. However, the Tribunal concluded that the cumulative effect of Mr Motufoaki's offending should be viewed quite seriously. 49 The Tribunal then considered the question of the risk of reoffending. There were a number of matters to which the Tribunal referred in assessing the risk that Mr Motufoaki would reoffend. For example, it referred to: (a) a long history of property offences and a not insignificant history of offences involving violence; (b) the fact that Mr Motufoaki's offending has been associated with a long history of heavy alcohol use and the regular use of drugs; (c) his diagnosis with a substance use disorder (and this is to be understood in the context of difficult personal experiences including homelessness); (d) his willingness to engage in further treatment and rehabilitation; (e) the fact that that he was permitted to remain in the community in the past but reoffended; (f) the fact that he had the benefit of a comprehensive youth training program but reoffended; and (g) a pattern of minimising his past offending. 50 So it can be seen that the Tribunal gave reasons for its assessment that there is a real risk of reoffending, and one that weighed strongly against revocation. It cannot be said that the Tribunal ignored periods of non-offending as it specifically referred to them. Further, the Tribunal took into account matters in Mr Motufoaki's favour that suggested there was the potential for rehabilitation. However, it was concerned by the episodes and the nature of his reoffending, despite the benefit of being permitted to stay in the community and despite training programs that he had undertaken. Nothing in that line of reasoning reveals error. It was open to the Tribunal to take those matters into account and to reason in that manner. 51 As to Mr Motufoaki's submission that it was unfair to refer to his earlier offending, it must be noted that the factors identified in the Direction for considering the nature and seriousness of an applicant's conduct include the frequency of offending, whether there is any trend of increasing seriousness, and the principle that violent crimes are viewed seriously. It was therefore appropriate for the Tribunal to record Mr Motufoaki's history of offending, including recording and taking into account his convictions for violent offending. 52 It was also a matter for the Tribunal to weigh that risk as it considered appropriate in assessing whether it was satisfied that there was another reason why the mandatory visa cancellation decision should be revoked under s 501CA(4)(b). 53 Therefore, having considered Mr Motufoaki's submission, even in the absence of any formal review ground, I am not persuaded that any jurisdictional error on the part of the Tribunal is revealed in its consideration of Mr Motufoaki's history of offending, the gaps in that offending, the passage of time since some of his offending or the process of reasoning it undertook in assessing the risk of re-offending.

Change in position as to legal representation 54 For completeness, I note that Mr Motufoaki had legal representation at the time of filing his application for review on 22 October 2020. 55 Programming orders were made by consent shortly after. Despite an opportunity to file any amended application or affidavits, no documents were filed and the solicitors subsequently ceased to act. 56 On 14 March 2021 Mr Motufoaki requested that the Court make a pro bono referral under r 4.12 of the Federal Court Rules 2011 (Cth). A pro bono referral was made and accepted by two barristers jointly. 57 On 10 June 2021 the parties were informed that the matter was listed for hearing on 30 July 2021. 58 On 17 June 2021 Mr Motufoaki asked my chambers for a further referral for legal assistance under r 4.12. 59 On 18 June 2021 the barristers who had accepted the brief notified the Registry that they had ceased providing pro bono services under the referral. They informed the Court that they had provided advice to Mr Motufoaki. No documents were filed on his behalf. In those circumstances, where Mr Motufoaki had received the benefit of representation by his own solicitors and then received the benefit of legal advice from counsel, I declined to make a further referral for pro bono assistance. 60 On 21 July 2021 I held a case management conference to ensure that in light of the somewhat interrupted history as to legal representation, Mr Motufoaki had all the relevant papers available to him prior to the hearing, that he was aware he could file written submissions, and to ensure that in the absence of legal representation he was aware that he would be invited to make oral submissions. Mr Motufoaki confirmed those matters to me during the case management hearing.

Orders 61 The application is accordingly dismissed, and Mr Motufoaki is to pay the Minister's costs to be assessed if not agreed. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith.

Migration Act 1958(Cth)ss 499, 501, 501CA

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