Pizlea v Minister for Immigration and Multicultural Affairs

Federal Court of Australia|2006-06-22|Before: Finn J, Moore J

REASONS FOR JUDGMENT 1 The applicant was the holder of a transitional (permanent) visa which was cancelled on 9 November 2005 on character grounds: s 501(2) of the Migration Act 1958 (Cth) ("the Act"). On 17 November 2005, the applicant applied to the Administrative Appeals Tribunal ("the Tribunal") under s 500(1)(b) for review of this decision. On 25 January 2006, the Tribunal affirmed the decision under review: see Pizlea and Minister for Immigration and Multicultural and Indigenous Affairs [2006] AATA 49. On 23 February 2006, the applicant sought review in this Court of, amongst other decisions, the decision of the Tribunal. To the extent that the applicant seeks to challenge decisions other than the Tribunal's decision, the application is incompetent.

Background 2 The following is uncontentious background. The applicant is a citizen of Romania and was born there on 7 March 1964. He arrived in Australia on 25 February 1990 on a subclass K4C23 (Unfunded SHP - East Europeans/Romanians) visa granted on 22 February 1990. Under the Migration Reform (Transitional Provisions) Regulations 1994 (Cth),the applicant was deemed to be the holder of a transitional permanent visa from 1 September 1994. 3 Between 1991 and 2001, the applicant was convicted of a number of offences committed between 1990 and late 1996. These offences included drug offences for which he was given sentences totalling over 12 years imprisonment. The applicant has periodically denied committing some of these offences. However, the fact of conviction, as found by the Tribunal, cannot be disputed. 4 On 3 November 1995, an officer of the Criminal Deportations section of the Department of Immigration and Ethnic Affairs wrote to the applicant to inform him that his conviction on 18 November 1992 for supplying a prohibited drug made him liable for deportation under s 200 of the Act, but that the Minister's delegate had decided not to order his deportation in this instance. The letter warned the applicant that any further conviction would lead to reconsideration of the question of deportation. 5 In 1996, the appellant was charged with a drug offence committed on 15 September 1996. After conviction and before sentencing, the applicant absconded. He was later apprehended and, on 27 April 2001, was sentenced to six years imprisonment. On 8 April 2005, a delegate of the Minister decided to cancel the applicant's visa on character grounds, under s 501(2) of the Act. The applicant filed an application for judicial review in this Court on 17 June 2005. It appears that the Minister conceded that the decision record referred to an incorrect visa. On 12 October 2005, Finn J ordered, by consent, that the decision of the Minister be quashed. 6 On 9 November 2005, a delegate of the Minister made a further decision cancelling the applicant's visa. He was released from prison on 11 November 2005 and immediately transferred to the Villawood Immigration Detention Centre. He remains in detention. On 17 November 2005, the applicant applied to the Tribunal for review of the 9 November 2005 decision. The appellant was represented before the Tribunal, where both he and his de facto wife gave evidence.

The Tribunal decision 7 The Tribunal found that there could be no dispute that the applicant did not pass the character test by reason of his substantial criminal record: s 501(6)(a). The real issue therefore was whether the Tribunal should exercise its discretion under s 501(2) to permit the applicant to remain in Australia notwithstanding he did not meet the character test. 8 It was part of the applicant's case that he had a genuine ongoing relationship with an Australian citizen and had a dependent child who was an Australian citizen. In his evidence, he explained that when he had been located by NSW police before being extradited to South Australia to face sentencing, he had a job, paid tax and provided for his daughter, although it was only for 18 months that all three had lived together. He had remained in contact with his daughter and her mother. His said his daughter spoke no Romanian. He said it was in his child's best interests that he remained in Australia and that it would be against Australia's international obligations "in terms of the International Convention on Civil and Political Rights (ICPR) and the Convention on the Rights of the Child" to remove him. 9 The applicant's de facto wife gave evidence that she was in daily contact with him, that she visited the applicant a couple of times a year with their daughter and that their daughter asked her every day when her father was coming home. She also gave evidence of her employment and that she believed she was in a good financial position to support him until he found employment. 10 The Tribunal accepted her evidence but found the applicant's evidence "disputatious and evasive". It described his tone in his submission to the Department as accusatory and as displaying no awareness of the gravity of his crimes. This was supported by a report from his parole officer written in 1994 and a report of the South Australian Parole Board in 2005. The Tribunal considered that his evidence could have been affected by anxiety or a combative disposition, but found he had "no clear willingness to acknowledge his offences, let alone any remorse for them" and that he had "a highly developed ability to rationalise his own wrongdoing and to some extent is able to convince himself of the truth of his own fabrications". 11 In deciding whether to exercise the discretion not to cancel the applicant's visa, the Tribunal had regard to Direction No 21, issued by the Minister under s 499(1) of the Act. Under s 499(2A), the Tribunal was bound to comply with that Direction, which provided guidance to decision-makers on the application of the character test including the considerations to be taken into account in exercising the discretion when the person does not pass the character test. The Direction set out three primary considerations to which regard must be had, although the decision-maker was also required to adopt a balancing approach which took into account all relevant considerations. The three primary considerations were the protection of the Australian community and its members, the expectations of the Australian community, and, where applicable, the best interests of the child or children with whom the person under consideration had a parental or other close relationship. The Tribunal addressed in detail these three considerations and the relevant cases. It then proceeded to consider a range of other relevant considerations which, in its view, might have had a bearing on the correct decision. Ultimately, it found that whilst it was not in the best interests of the child to affirm the decision, and that certain other considerations also weighed against that course, those were outweighed by considerations of community protection and expectations. It therefore affirmed the decision under review.

The application and its disposition 12 The application initially filed by the applicant in this Court was a lengthy and unfocused document which did not identify intelligible grounds referrable to the facts or the way in which the Tribunal had determined the matter. The applicant was ordered to file an amended application. He did so though its character was the same. Over 63 pages (including pictures and cartoons) the applicant made many and varied assertions broadly concerning his circumstances. While at certain points in the documents language consistent with grounds of judicial review was used, no grounds of substance were articulated. In written submissions responding to written submissions filed by the Minister, the same approach was evident. 13 At the hearing, the applicant indicated he would rely on his written submissions (including a floppy disk containing his submissions in reply) though he also sought, unsuccessfully, to hand the Court what he described as some asbestos from the Villawood Detention Centre (which the applicant thought was relevant to his case) and documents including what I understood to be his daughter's citizenship papers. 14 One of the constant themes repeated in both the amended application and the written submissions in reply, was the consequences for the applicant's daughter of his removal from Australia. They would either be separated or she would be required to live in Romania, a country with which she had no real connection. This matter was considered by the Tribunal which correctly identified it as a primary consideration and, as noted earlier, concluded that it would not be in the best interests of the child to cancel the applicant's visa. But the Tribunal ultimately concluded, as it was entitled to do, that other considerations outweighed the adverse effect of its decision on the applicant's daughter. The Tribunal's consideration of this issue was, in my opinion, unexceptionable. It is a dilemma repeatedly confronted by the Tribunal in cases of this type. A recent discussion of how the Tribunal should consider this question of the interests of the child is found in the judgment of the Full Court in Kaur v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 70. 15 I have read the reasons of the Tribunal. It is not apparent that the Tribunal erred in its consideration of the interests of the applicant's daughter. It is not apparent that it otherwise fell into jurisdictional error. The application should be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Solicitor for the Respondent: Australian Government Solicitor

Under the Migration Reform (Transitional Provisions) Regulations 1994(Cth)

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