Muliaga v Minister for Immigration and Citizenship

Grounds of review 6 Four grounds were originally pleaded in support of the application. At the hearing counsel for Mr Muliaga abandoned the first three and substantially amended the fourth. There is no purpose in repeating the abandoned grounds. The sole ground now reads (without alteration): The weighing up of the primary considerations of the best interests of the child and the protection of the Australian Community from serious crimes in paragraph 54 in the Respondent's determination is based on illogical or irrational finding and amounts to a jurisdiction error.

The facts 7 Mr Muliaga came to Australia with his mother and younger brother. His father, from whom he is estranged, remained behind in New Zealand and has since remarried and fathered other children. 8 On 21 October 2003 he was assaulted and sustained a traumatic brain injury, but his history of offending predates this assault. 9 Within a short time after he arrived in Australia Mr Muliaga started to get into trouble. He was expelled from one High School in year 8 after hitting the principal and expelled from another the following year after being involved in a fight. He nevertheless obtained his School Certificate a year later at yet a third school. He went on to study at Liverpool TAFE, but dropped out after only three months. Since then he has only held two short-term jobs, apart from the employment he undertook in custody. 10 He was first convicted, at the age of 16, in February 2001 for the offences of robbery in company, steal from the person, common assault, and assault with intent to rob, armed with an offensive weapon. In February 2002 he was again convicted of robbery in company and received a further 15 month control order. His first conviction as an adult was entered only nine months later, in November 2002, for yet another robbery in company committed in April 2002, only two months after the second control order was imposed. The sentencing judge noted that he took the lead role in the offence. He also lamented the fact that he had been assessed as unsuitable for community service or a periodic detention order because of his lack of motivation to comply with any court-imposed orders. 11 His current sentence of six years (backdated to the date of his arrest) was imposed on 20 November 2007. He became eligible for parole on 23 February 2010, but thus far parole has been refused. 12 The circumstances of the offence leading to the current sentence are serious. There is no need in these reasons to go into any detail about them, suffice to say that Mr Muliaga, with two accomplices, and armed with a 30 centimetre knife, demanded money from a McDonald's restaurant. His co-offender struck the manager of the restaurant on the side of the head with a garden tool, and he assisted his co-offenders to remove cash from the till. He was arrested the following day and readily admitted to his part in the robbery but refused to identify his co-offenders. He told the sentencing judge that he was under the influence of alcohol (vodka) and drugs (ice or crystal methamphetamine) at the time. 13 Mr Muliaga committed the offence while he was subject to a six-month good behaviour bond for offensive behaviour imposed in June 2006, a six-month good behaviour bond for malicious damage imposed in October 2006 and two 18-month good behaviour bonds for common assault and breach of an apprehended violence order imposed on the same date. The pre-sentence report presented to the sentencing judge indicated that Mr Muliaga's response to supervision was generally poor. 14 During his most recent period of imprisonment he has committed 17 disciplinary offences, including disobeying directions, intimidation, "fight[ing] or other combat", failing urine tests (which showed he had been using cannabis), stealing, and giving false and misleading information. Two segregation orders have been imposed, one for assaulting an officer and another for ongoing aggressive, threatening and abusive behaviour towards staff. 15 He has been refused admission to parole on the recommendation of the Probation and Parole Service, which was particularly concerned with his failure to complete any violence-related offence targeted programs. His parole officer reported that his period of imprisonment "has been punctuated by abusive and aggressive actions towards Corrections employees and a failure to abide by correctional centre routine". The Area Manager of the Wellington District Office wrote on 19 August 2010: Mr Muliaga has a history of violent offences both in the community and whilst in custody. It is noted in service records entered in March 2010, Mr Muliaga admitted his intention to recommence alcohol use upon his release and that he held responsible others for his violent behaviour when in the community. It is of concern that he has failed to avail himself of opportunities to assist in overcoming his aggressive tendencies whilst in custody and therefore when now considering community safety, it is difficult to recommend parole. 16 Mr Muliaga had been given considerable notice of what the Minister might do. As early as 4 June 2003 the Department of Immigration and Multicultural and Indigenous Affairs informed him that his visa might be cancelled on character grounds. On 24 May 2005 a delegate of the Minister decided not to exercise her discretion, describing the case as "borderline", and noting that "his children weigh heavily in his favour". Nevertheless, on her recommendation, the Department wrote to Mr Muliaga issuing a stern warning that "conviction for ANY further offences will result in a fresh assessment being made to again consider cancellation of your visa" (original emphasis). Regardless, the following year he committed a very serious offence.

Scope of the review 17 The tribunal's decision is a privative clause decision. See Migration Act 1958 (Cth) ("Migration Act"), s 474(2). For this reason, there is no right of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act"): Migration Act, s 483. This Court's jurisdiction arises under s 476A of the Migration Act. To succeed, Mr Muliaga must be able to show that the tribunal's decision was affected by jurisdictional error. See Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

The legislative scheme 18 Section 501(2) of the Migration Act provides: 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. 19 Subsection (6) provides that, for the purposes of s 501, a person does not pass the character test if, amongst other things, the person has a substantial criminal record. Subsection (7) defines a "substantial criminal record" so as to include the circumstance that the person has been sentenced to a term of imprisonment of 12 months or more. It follows that the Minister was entitled to cancel Mr Muliaga's visa because he failed the character test. The exercise of the discretion was not, however, unfettered. 20 On 3 June 2009 the Minister issued a direction pursuant to s 499(1) of the Migration Act, with which any person or body exercising the Minister's powers under s 501 is bound to comply: Migration Act, s 499(2A). This is Direction No. 41-Visa refusal and cancellation under s 501 ("the Direction"). Clause 4(1) in Part 1 of the Direction provides that the Direction "applies to decision-makers performing functions or exercising powers under section 501 of the [Migration] Act to refuse to grant a visa to, or to cancel a visa of, a person who does not satisfy the Minister that the person passes the character test". As the tribunal stands in the shoes of the Minister when conducting its review, the Direction applies as much to it as it does to the Minister's delegate making the original decision. 21 In substance the Direction contains considerations that a decision-maker must and may take into account in deciding in some cases whether a visa applicant or holder passes the character test, and in exercising the discretion in all cases to grant or cancel a visa when the visa applicant or holder has failed the character test. In the present case, Mr Muliaga's criminal record caused him to fail the character test, so the only question was whether the discretion should be exercised against him. See Direction para 8. 22 Paragraph 9 in Part B of the Direction, provides that decision-makers must take into account in every case the primary considerations set out in para 10. Those primary considerations are: (a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence; (b) whether the person was a minor when they began living in Australia; (c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and (d) relevant international obligations, including but not limited to: (i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and (ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). 23 Relevantly, Art 9(3) of the CROC provides: States' Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests. 24 Paragraph 10.1 of the Direction deals with the first consideration: the protection of the Australian community. Subparagraph 10.1(1) provides that due consideration is to be given to the Government's objectives set out in Part 1, para 5 of the Direction. The objective stated in subpara 5.1(1) is the regulation in the national interest of the coming into and presence in Australia of non-citizens. Paragraph 5.1 goes on to provide: (2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens. (3) The Government is especially mindful to protect the safety of the community's more vulnerable members, including minors, the elderly and the disabled. 25 Subparagraph 10.1(2) states that the factors relevant to assessing the risk of harm to the community of the person's entry or continued stay include: (a) the seriousness and nature of the relevant conduct; and (b) the risk that the conduct may be repeated. 26 Paragraph 10.1.1 is concerned with the first aspect: the seriousness and nature of the conduct. Subparagraph (1) reads: Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled) are especially abhorrent to the whole community. 27 Subparagraph (2) contains examples of offences and conduct that are considered serious, and includes various crimes of violence such as, relevantly, (d) assault; and (e) robbery. Subparagraph (3) provides that the sentence imposed for an offence is considered indicative of the seriousness of the offender's conduct against the community and due regard must be given to the extent of the person's criminal record. Subparagraph (4) contains some other factors that are to be considered. They include any relevant factors the person provides as mitigation, and "independent and authoritative sources" of information about a person such as "judicial comments in an individual's case" and parole assessments. 28 Paragraph 10.1.2 is concerned with the second aspect: the risk that the conduct may be repeated. It provides: (1) The person's previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending. (2) The following factors are to be considered as particularly relevant to this assessment: (a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending; (b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and (c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts. 29 Subparagraph 10.2(1) provides that if the applicant was a minor when he began living in Australia and spent his formative years here, "thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration". 30 Subparagraph 10.3(1) provides that more favourable consideration is to be given to the person the longer he or she has been ordinarily resident in Australia before engaging in criminal activity or activity that bears negatively on his or her character. 31 Paragraph 10.4 picks up the reference to Australia's international obligations under the CROC first appearing in the designation of primary considerations in subpara 10(1)(d). Subparagraph 10.4(1) states that: [I]f there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interests of the child. 32 Paragraph 10.4.1 sets out the manner in which the best interests of the child are to be considered and the factors that the decision-maker must take into account. 33 Paragraph 11 contains the other considerations that are expressed to be "not primary considerations" but which "may be relevant" and, if so, "must be considered". Subparagraph (2) provides, however, that, generally, these considerations should be given less weight than the primary considerations.

The proceeding in the tribunal 34 The tribunal took evidence from Mr Muliaga, friends and family members and considered the documentary material presented to it, which included the documents that were before the primary decision-maker, as well as the reasons of the delegate. 35 The tribunal correctly identified the relevant primary considerations as: • The protection of the Australian community; • The fact that Mr Muliaga was a minor when he began living in Australia; • The length of time that he was ordinarily resident in Australia before engaging in criminal activity; and • The best interests of his children. 36 On the question of the protection of the Australian community, in accordance with the Direction, the tribunal considered the seriousness of his conduct and the risk of repetition, and found that they favoured the cancellation of the visa. 37 With regard to the seriousness of Mr Muliaga's conduct, the tribunal referred to his four convictions for robbery, and the remarks of the two District Court judges when sentencing him in November 2002 and November 2007. It referred to the fact that he had committed a number of very serious offences over a four and a half year period culminating in his most recent prison term. It noted that parole was refused at the end of the non-parole period for the last offence and that the parole hearing had been stood over until 28 January 2011. 38 With regard to the risk of repetition, the tribunal considered the report of the Probation and Parole Service, Mr Muliaga's history of breaching judicial orders and his evidence and those of his witnesses that he is "a changed man". It accepted that he had good intentions and was "almost certainly more mature", and accepted that he had the support of the local Samoan community in the area where his mother lives. But it said that, despite this support, Mr Muliaga's criminal record, his history of breaching judicial orders, his behaviour in prison, and his failure to undertake a suitable rehabilitation program to address his behavioural and anger management problems gave it no confidence that he would be able to control his behaviour if released into the community. It concluded that there is a significant risk that he may commit further serious offences. 39 The tribunal then turned to the second primary consideration: being a minor when he first came to live in Australia. It accepted Mr Muliaga's evidence and the evidence of family members that all his close family are in Australia, and there are strong family ties and a good level of support from the Samoan community in the area where his mother lives. It was satisfied that he had close ties to the Australian community and noted that that weighs against the cancellation of his visa. 40 The third primary consideration - the length of time he had been ordinarily resident in Australia - the tribunal found to be a neutral factor as it was only a relatively short time after arriving here before he started to get into trouble. 41 The fourth consideration was the best interests of the children. The tribunal referred to the factors the Direction requires the decision-maker to take into account. It noted that Mr Muliaga has three children - twins aged six and a four year old daughter who suffers from cerebral palsy. It noted Mr Muliaga's evidence that the children and their mother used to visit him regularly in prison but he had not seen them for the previous 16 months, and did not know where they were living or how to contact them. It also noted Mr Muliaga's evidence that after an incident involving his brother and the mother's boyfriend, the mother left the area with the children without telling him or his family where they had gone. It noted that he missed his children very much and was hoping to be able to renew his relationship with their mother on his release. It then considered the evidence concerning the relationship between him and his children. It noted that his youngest daughter was born about 11 weeks before he was arrested in November 2006. The tribunal also noted that he had been in prison ever since and having regard to that circumstance, and the lack of any contact with any of the children for at least the past 16 months, it said that it seemed unlikely that a strong parental bond would have been established. 42 In the case of the older children, the twins, he noted that Mr Muliaga was sentenced to 12 months imprisonment with a non-parole period of nine months only a short time after they were born in 2004 and has spent nearly five of their six years in prison. He said that apart from Mr Muliaga's evidence of how precious the children were to him, he had no other evidence about his relationship with the children and so it was difficult to know how the children currently perceive him, what the nature of the relationship was, and what effect his separation from them has had and might have in the future. 43 It accepted that a child's best interests will generally be served by the child remaining with its parents, but noted that "what little evidence there is suggests the children may not be able to live with both parents". In any case, it accepted that their best interests may be served by their at least having access to their father, which would be more difficult if he had to return to New Zealand. Nevertheless, it said that the lack of evidence made any specific finding impossible. 44 It then went on to consider relevant other (or secondary) considerations. Again it referred to Mr Muliaga's strong family ties and the hardship that his return to New Zealand would cause him and his immediate family, as well as the estrangement from his New Zealand relatives. 45 It weighed the various considerations and concluded that the protection of the Australian community requires that the discretion in s 501(2) of the Migration Act should not be exercised in Mr Muliaga's favour and his visa should therefore be cancelled.

The application to this Court 46 I now turn to consider the application. 47 Subparagraph 10.4.1(4) of the Direction states: Under Australian law, it is generally presumed that a child's best interests will be served if the child remains with its parents. 48 The tribunal referred to this paragraph at the outset of its consideration of this issue. As the tribunal also noted, the Direction contains a list of factors that must be considered in determining the child's best interests. They include, relevantly: (a) the nature of the relationship between the child and the person, for example, a relationship that has parental rights or regular meaningful contact with a child compared to a relationship with long periods of absence and limited meaningful contact with a child; (b) the duration of the relationship, including the number and length of any separations and reason/s for the separation; (c) … (d) … (e) … (f) the likely effect that any separation from the person would have on the child; and (g) the existence of other persons who already fulfil a parental role in relation to the child. 49 Paragraph [54] of the tribunal's reasons, which is the subject of the challenge in the sole ground upon which the application is based, reads as follows: Weighing up the relevant 'primary considerations', I am satisfied Mr Muliaga's release into the Australian community at this time would pose a significant risk of his being involved in further serious offences and the protection of the Australian community therefore favours the cancellation of his visa. With regard to the second primary consideration, the fact that he began living in Australia as a minor favours his visa not being cancelled, although this consideration is outweighed by the need to protect the Australian community. The third primary consideration, having regard to the length of time between his becoming resident in Australia and his first misconduct, is, as I have said, a neutral factor. While there is very little evidence as to the fourth relevant consideration, the best interests of his children, I accept that in general terms it would be in the best interests of his children to have access to their father. Nevertheless, in the circumstances of this case, I do not consider this a weighty consideration when viewed in the light of the need to protect the Australian community against the risk of further serious crime. 50 The alleged illogical or irrational finding is said to be made in paragraph [44], which is in the following terms: I accept that a child's best interests will generally be served by the child remaining with its parents. While what little evidence there is suggests the children may not be able to live with both parents, I accept that their best interests may be served by their at least having access to their father, which will be more difficult if he has to return to New Zealand. However, the lack of evidence makes any specific finding impossible. 51 Counsel for Mr Muliaga submitted, in effect, that the process of weighing the considerations miscarried because some of the findings upon which it was based were inconsistent and that in the circumstance the tribunal should not have taken into account that generally it was in the best interests of the children that they have access to their father. There are two things to be said about that. First, the Direction requires the tribunal to take that consideration into account. Secondly, on a fair reading of the tribunal's reasons, it accepted that the best interests of the children told in Mr Muliaga's favour but the weight to be attached to that consideration was outweighed by the need to protect the Australian community. 52 Counsel for Mr Muliaga argued that the tribunal had made three different findings in paragraph [44]: (a) that generally the best interests of the children are served if they remain with their parents; (b) that their best interests may be served if they at least have access to their father; and (c) that the lack of evidence makes any specific finding impossible. 53 If the tribunal did, indeed, make contradictory findings that might found an argument based on illogicality: see Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 ("SZMDS"). The findings that the tribunal made were not contradictory, let alone illogical or irrational, and furthermore, counsel's submission incorrectly describes what the tribunal was saying at [44]. The first observation is not a finding. It is a reiteration of the presumption appearing in para 10.4.1(4) of the Direction. The second observation is at best a tentative conclusion. The third observation is a statement that no specific finding is available. Even if that statement can be regarded as a finding, it can scarcely be described as illogical. It is, in truth, ineluctable. Moreover, there is no inconsistency between what appears in [44] and [54]. In any case, however, even if some error could conceivably be teased out of what the tribunal said on the children's best interests, it would be an error that favours Mr Muliaga.

Conclusion 54 No jurisdictional error has been established. The challenge to the tribunal's decision must fail. Accordingly, the application must be dismissed. The applicant should pay the first respondent's costs. I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.