Nooau v Minister for Home Affairs

1. The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LEE J: 1 In this case, the applicant seeks review of a decision of the respondent (Minister) pursuant to s 501CA(4) not to revoke the decision of the Minister's delegate made pursuant to s 501(3A) of the Migration Act 1958 (Cth) (Act) to cancel the applicant's visa. The visa was cancelled in October 2017 and, following representations made by the applicant, the Minister decided not to revoke the mandatory cancellation in August 2018. 2 By originating application, the applicant sought an order to set aside the decision of the Minister. The only ground identified for the relief sought was: "failure to consider about my family which is here". 3 The matter first came before the Court on 14 September 2018, when it was set down for final hearing today. On 14 September 2018, the applicant was given leave to file and serve any amended originating application, giving complete particulars of each amended ground of review and to file and serve written submissions. Although those orders were made in the absence of the applicant, who was in immigration detention at that stage, the respondent, pursuant to the orders of the Court, notified the applicant of the making of the orders. 4 Nothing was filed pursuant to these orders and it follows, it is fair to say, that the basis upon which the applicant seeks to advance his case remains obscure. In these circumstances, I have had regard to the whole of the decision made by the Assistant Minister in order to satisfy myself whether there is an arguable case of jurisdictional error. 5 The background can be stated shortly. The applicant is a citizen of New Zealand and a national of the Cook Islands, who came to Australia in 2011 at the age of 28. At that time, he was granted a temporary visa. The applicant was convicted in November 2014, June 2015 and May 2016 for various domestic violence offences, including contravention of an apprehended domestic violence order taken out against the applicant by his then partner, who was the victim of the offences. In September 2017, the applicant was sentenced to 15 months gaol with a non-parole period of nine months for a number of further domestic violence offences. It was against this background that the decision was made in October 2017 by a delegate to cancel the applicant's visa because the delegate was not satisfied the applicant passed the character test (under s 501(6)(a) and (7)(c)) as the applicant had a substantial criminal record and was serving a term of imprisonment over 12 months on a full time basis in a custodial institution for an offence. 6 I have already made reference to the fact that the applicant made representations in support of the revocation of the mandatory cancellation. In doing so, he completed a personal circumstances form, in which he expressed his regret for his offending and requested that the Minister take into account his children, then and now living in the Cook Islands, for whom the applicant provided by remitting money to them. He made certain promises to mend his ways. He also provided numerous statements in support from his then partner, aunt and work colleague. In March 2018, the applicant was invited to comment on further information received comprising a national police certificate and sentencing remarks of the New South Wales Local Court at Campbelltown in September 2017. 7 In May 2018, a further invitation to comment was made on new information, including the sentencing remarks of the New South Wales Local Court at Burwood in May 2016 and various other matters. A response was provided by the applicant to these invitations, which included the applicant stressing that his children were very important to him and that he requested a second chance to "bring up a good family". 8 Except in one respect to which I will come shortly, it is unnecessary to set out in any detail the reasons that the Assistant Minister gave in deciding not to revoke the mandatory cancellation. It is apparent that the Assistant Minister had regard to the following matters: (a) the strength, nature and duration of the applicant's ties to Australia, including the fact he had been here for seven years and comments made by a work colleague; the Minister also took into account the applicant's contribution to the community and the interests of the applicant's then partner and the emotional hardship that would be experienced by his immediate family if the cancellation was not revoked; (b) the extent of impediments if the applicant was removed to New Zealand or to the Cook Islands, including that he would experience practical difficulties, at least initially, if he was required to return to either of those localities. Having said that, the Assistant Minister observed, unsurprisingly, that in New Zealand the applicant would be able to maintain basic living standards and had reasonable prospects of obtaining employment, although he may initially face some economic hardship. If the applicant was to return to the Cook Islands, the Assistant Minister concluded that the practical and emotional hardships would be similar, but there would be fewer employment opportunities and this would result in financial hardship. (c) The protection of the Australian community, by reference to which the Assistant Minister took into account the nature of the applicant's offending and the risk it presented to the Australian community; in doing so, the Assistant Minister took into account the serious nature of the domestic violence offences, some of which occurred while the applicant was on conditional liberty and subject to an apprehended violence order. The Assistant Minister found that the applicant's pattern of behaviour showed a disregard for Australian law, although he did take into account that the applicant showed some insight into his offending and some efforts were being made to achieve rehabilitation. Notwithstanding this, the Assistant Minister considered the offending to be serious and that there was a risk that the applicant would reoffend and that further offending of a similar nature could result in physical or psychological harm to members of the community. 9 As I noted above, the applicant did not identify any legal error in the decision of the Assistant Minister and it appears that there is force in the Minister's submission: It is submitted that the Assistant Minister's decision is not otherwise affected by jurisdictional error. The Assistant Minister in the present matter complied with s.501CA(3): CB 58. Further, the applicant was sent additional correspondence advising him of other documents that may be relied upon in the consideration of the decision as to whether to revoke the cancellation of his visa: CB 149, 151. The applicant's representations given to the Department were taken into account by the Assistant Minister. The Assistant Minister at [12] of the reasons (CB 6) summarised the reasons articulated by the applicant in his representations to the Department as to why the visa cancellation should be revoked. The Assistant Minister referred to the submissions the applicant provided in support of his contention that the cancellation should be revoked, and it took those submissions into account: see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [44]-[46]. 10 Having said that, there is one matter which does reveal some degree of sloppiness in the way in which the Assistant Minister went about the decision-making process. At [13]-[14] of the decision the following appears: In considering whether or not I am satisfied that there is another reason why the original decision should be revoked, I acted in conformity with Article 3 of the United Nations Convention on the Rights of the Child, and treated the best interests of any affected children under 18 in Australia as a primary consideration and have concluded that it is in the best interests of Mr NOOAU's two children for the original decision to be revoked. The representations state that Mr NOOAU has two minor biological children who were born in the Cook Islands and are currently residing there. I noted that Mr NOOAU has submitted that this children's nationality is Cook Islands. Mr NOOAU's two children are: • [name of child], daughter, born [date of birth], aged nine; • [name of child], son, born [date of birth], aged six. (Emphasis added) 11 Plainly, what occurred in bold is at best surplusage, and at worst an error. There were no children under 18 in Australia. Although the Assistant Minister indicated he was cognisant of the need to act in conformity with art 3 of the United Nations Contention on the Rights of the Child, he then went on to conclude that the applicant's children's best interests favoured revocation of the decision to cancel his visa. When read contextually, this would not appear to be the actual conclusion, having regard to what then followed and, in particular, the conclusions set out at [19], which are as follows: I accept that Mr NOOAU has two children who live in the Cook Islands and that his intentions are to maintain support for his two children by working in Australia. I have given consideration to the potential hardship Mr NOOAU will face by not having his Australian income to support his children in the Cook Islands and that they may experience financial hardship due to a lack of financial support. As the two children … are not Australian citizens, are not currently resident in Australia and are residents of the Cook Islands, it is not necessary for me to consider whether the best interests of the minor children, is a consideration in my decision. 12 If it is correct to characterise the Assistant's Minister's reasons at [13] as containing an error, I do not consider that it amounts to jurisdictional error. 13 The first point to be made is that the Assistant Minister was not bound by any ministerial directions issued pursuant to s 499 of the Act that might have affected the manner in which he approached the question of the best interests of the child: Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; (2017) 250 FCR 209 at 214 [30]. His discretion was a broad one, qualified to the extent that he was to take account of considerations as required by reference to the subject matter, scope and purpose of the Act and could not act arbitrarily or in a legally unreasonable way: see NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at 4 [6]-[8]. 14 The second point is that the Assistant Minister was not bound to take into account the best interests of the applicant's children, including for the reason he identified at [19]. In this sense, they were not a mandatory relevant consideration: see Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875 at [59]. As the passage at [19] of the decision demonstrates, the Assistant Minister approached the question in a way consistent with his broad remit in respect of considerations he was able to take into account and the weight he would give to those considerations. 15 As Tracey J explained in AB v The Minister for Immigration and Citizenship [2007] FCA 910; (2007) 96 ALD 53 at 63 [27], if a decision-maker such as the Assistant Minister "chose to have regard to treaty obligations, but, in some way, misunderstood the full extent or purport of the obligations, this will not constitute jurisdictional error". This reflects the fact that misconstruction of a ministerial policy by someone in the position of the Assistant Minister, who was free to depart from it, cannot amount to reviewable error: see Nikac v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 65 at 77-78. 16 As I have noted above, although it is somewhat difficult to understand what is meant by [13] of the Minister's reasons, even if it be regarded as an error, I am not satisfied that it would amount to jurisdictional error. In these circumstances, the application must be dismissed with costs. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.