Mundele v Minister for Home Affairs

1. The originating application filed on 23 December 2019 be dismissed.
2. The applicant pay the costs of the first respondent as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

JAGOT J: 1 These reasons for judgment concern the applicant's application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). The applicant seeks that the Tribunal's decision (Mundele and Minister for Home Affairs [2019] AATA 4968) be set aside for alleged jurisdictional error. On 25 November 2019 the Tribunal decided to affirm a decision of a delegate of the Minister not to revoke the mandatory cancellation of the applicant's visa. The applicant's visa was subject to mandatory cancellation because he was serving a sentence of three years imprisonment for the offences of knowingly dealing with the proceeds of crime and using false documents to obtain a financial advantage and, as a result, did not pass the character test in s 501(6) of the Migration Act 1958 (Cth). 2 The applicant is a citizen of New Zealand, having arrived in that country from the Democratic Republic of the Congo when he was a year old. His family moved to Australia in 2014. The applicant subsequently returned to New Zealand for just over a year before returning again to Australia in 2015. He then again left Australia for New Zealand and came back to Australia in 2016. In total he had resided in Australia for about 18 months before committing the two offences which led to his imprisonment. The offences were committed in 2017. The applicant was convicted and sentenced for the offences in 2018. His visa was subject to mandatory cancellation on 6 September 2018. On 3 October 2018 the applicant requested the revocation of the cancellation of his visa and made representations to the Minister in support of his request. On 2 September 2019 a delegate of the Minister decided not to revoke the mandatory cancellation of the applicant's visa. The applicant applied to the Tribunal for review of that decision on 3 September 2019. As noted, the Tribunal decided to affirm the delegate's decision on 25 November 2019. 3 For the reasons which follow I have concluded that the application must be dismissed. 4 In his application for judicial review the applicant contended that the Tribunal's decision was procedurally unfair. He did not, however, identify any ground of alleged procedural unfairness. It is apparent from the Tribunal's decision that the applicant filed various documents on which he relied, attended the hearing and gave oral evidence to the hearing. It is not possible to discern from the available material that the Tribunal denied the applicant procedural fairness. 5 In documents filed in this Court in support of his application the applicant noted that he considered it unfair that he did not have legal representation before the Tribunal or in this Court and that he deserved a second chance and believed his Tribunal hearing was unfair. However, neither the Tribunal nor this Court in exercising its civil jurisdiction are bound to ensure that a party has legal representation: Nguyen v Minister for Immigration & Multicultural Affairs [2000] FCA 1265; (2000) 101 FCR 20 at [22]-[24]. To the extent that the applicant considered he ought to be given a second chance (as he had not previously been convicted of any offences), this involves a question of the merits of the applicant's case before the Tribunal. The Tribunal alone had the jurisdiction to decide the merits of the applicant's case. This Court does not have the jurisdiction to decide the merits of the applicant's case. Accordingly, whether or not the applicant should have been given a second chance was a matter for the Tribunal alone to decide. 6 The applicant also referred in the same document to the fact that he had changed as a result of his time in prison and had submitted proof of this to the Tribunal as well as proof of the fact that his family need him here in Australia with them. Again, these contentions involve the merits of the applicant's case before the Tribunal. It was for the Tribunal alone to weigh all of the material before it and to decide what the correct or preferable decision was in all of the circumstances. This Court cannot undertake that task as its power is confined to deciding whether or not the Tribunal's decision is lawful or is unlawful by reason of jurisdictional error. 7 The applicant contended that the Tribunal failed to consider his record in prison which showed no penalties, drug offences or infractions of prison rules. He said that he had referred in his representations to the fact that his prison report shows he was "not your average criminal" and was a "model prisoner". He claimed that this evidence was before the Tribunal and he made a clearly articulated argument to the Tribunal, but the Tribunal failed to consider and deal with his argument. He also contended that the Tribunal failed to consider his exemplary behaviour while in prison in its assessment of whether he was likely to re-offend. According to the applicant if the Tribunal had considered his model behaviour in prison it may have tipped the scales in his favour. 8 The Tribunal referred at [8] to all of the documentary material before it, including the material on which the applicant relies. At [9] of its reasons the Tribunal recorded that it had reviewed all of the material and referred to all relevant materials in its reasons for decision. At [48]-[50] the Tribunal referred to the applicant's representations about his remorse and responsibility for offending and his stated intention of never re-offending. At [51] the Tribunal referred to the applicant having undertaken various courses in prison and his hopes to use these skills to ensure he stayed out of bad company on his release from prison. The Tribunal also dealt with the risk should the applicant re-offend. In so doing the Tribunal said at [79] that it had had regard to the applicant's representations in support of his request for revocation of the mandatory cancellation of his visa, including providing a footnote (94) to this material. The material in question includes the applicant's record in prison and that he was a model prisoner. The Tribunal weighed up this material with other material to come to the conclusion that the risk of the applicant engaging in further criminal conduct was at the low end of the scale. The Tribunal weighed this with the nature of the applicant's offending which involved "a very large sum of money fraudulently obtained and the use of false identity documents" (at [78]) and the fact that a large amount of money remained unaccounted for, such losses presumably being absorbed by the financial institutions involved and thereby impacting on their shareholders and customers. As a result of this exercise the Tribunal considered that Primary Consideration A, the risk to the Australian community should the applicant commit further offences, weighed against the revocation of the mandatory visa cancellation decision. 9 It will be apparent from this that the Tribunal in fact considered the matters which the applicant contended it failed to consider including that he was a "model prisoner" and was not "your average criminal". The Tribunal, it must be inferred, considered the applicant's exemplary behaviour in prison in its weighing of all the material relevant to Primary Consideration A. It cannot be said, accordingly, that the Tribunal failed to consider a clearly articulated argument of the applicant as the Tribunal expressly referred to it having taken the material in which that argument was made into account. 10 The same balancing exercise is apparent at [131] of the Tribunal's reasons where it again refers to the seriousness of the applicant's crimes and the low risk of the applicant re-offending being factors that lead the Tribunal to the conclusion that the protection of the Australian community would be best served by not revoking the mandatory cancellation of the applicant's visa. 11 It may be the case that the applicant's contention is that the Tribunal failed to consider his material as it did not expressly quote his comment that he was "not your average prisoner" or the representation that he was a "model prisoner". The Tribunal was not under any obligation to quote from the applicant's representations. It was bound to consider the representations which it manifestly did. 12 Insofar as the applicant's prison report is concerned, it may be accepted that the Tribunal makes no specific reference to it. As noted, however, it did refer to the material in which the applicant asserted his exemplary prison record. In these circumstances it cannot be concluded that the fact that the Tribunal did not specifically refer to the applicant's prison record involved any failure of consideration or jurisdictional error. As was stated in WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46] it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant. In the present case no inference of the Tribunal failing to have considered the applicant's exemplary conduct in prison can be drawn given the Tribunal's express reference to having considered the applicant's representations and the other material in its reasons for judgment about the applicant having undertaken many courses in prison and its acceptance of his low risk of re-offending. 13 Having regard to the available material there is no apparent jurisdictional error in the Tribunal's decision. For these reasons the application must be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.