Prasad v Minister for Home Affairs

Background facts 3 The applicant is a 47 year old Fijian national who arrived in Australia in 1995 aged 23 years. It is not in dispute that the applicant considers Australia to be his home. The Minister's submissions noted that, aside from two brief trips outside Australia, in 1997 and 2005 respectively, the applicant has normally resided in Australia since 1995. 4 The applicant has two adult sons, one of whom has lived with the applicant since the applicant and the sons' mother separated. The other son has lived with his mother and is estranged from the applicant. 5 On 29 September 2016, the applicant was convicted in the Local Court of New South Wales of assault occasioning actual bodily harm (domestic violence), "stalk/intimidate intend fear physical etc harm (domestic)", and contravening a domestic violence order. He was sentenced to 24 months' imprisonment. 6 On 16 February 2017, the applicant's visa was cancelled pursuant to a decision made under s 501(3A) of the Act. 7 By a request dated 22 February 2017, the applicant requested that the Minister revoke the mandatory cancellation of his visa as permitted by s 501CA(4). 8 On 28 July 2017, the applicant was detained following his release from criminal custody.

Legal framework 9 Section 501(3A)(a) of the Act provides, relevantly, that the Minister must cancel a visa if the Minister is satisfied that the person does not pass the "character test" because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c) … 10 Section 501(6)(a) provides that, for the purposes of s 501, a person does not pass the "character test" if the person has a "substantial criminal record" as defined by s 501(7). 11 Section 501(7)(c) provides that a person has a "substantial criminal record" if the person has been sentenced to a term of imprisonment of 12 months or more. 12 Section 501CA(3) and (4) of the Act provide as follows: (3) As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 13 If an applicant provides information to the Minister in the course of making representations that relates to the applicant's personal circumstances and that information is "critical and relevant to the applicant's case the Minister is bound to consider it": Picard v Minister for Immigration and Border Protection [2015] FCA 1430 at [42], applied in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; (2017) 248 FCR 456 at [62] (special leave refused: [2017] HCATrans 240). 14 For the purposes of making the decision, Direction No 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA ("Direction 65") provided a "broad indication of the types of issues that the Minister [would] likely take into account in deciding whether or not to revoke the decision to cancel [the] visa". 15 Direction 65 was given under s 499 of the Act. Direction 65 set out a range of matters, which if relevant in a particular case, were to be brought into account in determining how the discretion provided for in s 501CA(4) of the Act should be exercised. Delegates exercising the Minister's discretion under s 501CA(4) of the Act were required to comply with Direction 65 but Direction 65 did not bind the Minister himself: Picard at [17].

Reasons for decision under review 16 The Minister submitted that the Assistant Minister accurately identified each of the reasons articulated by the applicant in his 22 February 2017 request and the accompanying "Personal Circumstances Form" as being relevant to his application to revoke the cancellation decision. 17 At paras 6-9 of his statement of reasons ("reasons"), the Assistant Minister noted that, having been sentenced to 24 months' imprisonment, the applicant did not pass the character test in s 501 of the Act, with the result that s 501CA(4)(b)(i) was not met. The applicant did not argue that the Assistant Minister made any error in connection with this finding. 18 Accordingly, the sole issue for this Court is whether the Assistant Minister erred in failing to be satisfied that there was another reason why the cancellation decision should be revoked, within the meaning of s 501CA(4)(b)(ii). 19 The following significant findings were made by the Assistant Minister: (1) It was in the best interests of minor children in the applicant's extended family that the cancellation decision be revoked (paras 13, 16 and 81 of reasons) but gave this consideration "lesser weight" as there was no evidence that the applicant provided for their daily care needs (para 16 of reasons). (2) The applicant started to offend soon after arriving in Australia, having been convicted of two counts of assault within six months of arriving in Australia (para 18 of reasons). The Assistant Minister noted his view that the Australian community may afford a higher tolerance of his criminal conduct because the applicant had lived in Australia for around half of his life and for the majority of his adult years but have less weight to his length of residence, than would otherwise be the case, because the applicant had commenced to offend shortly after his arrival in Australia. (3) The applicant's immediate and extended family, particularly the applicant's mother and his older son would experience emotional and practical hardship if the decision were not revoked (paras 33 and 82 of reasons). (4) The applicant had made a positive contribution to the community through his employment and his participation in cultural activities (paras 33 and 82 of reasons). (5) The applicant would be likely to experience emotional, practical and financial hardship if permanently removed from Australia (para 41 of reasons). (6) The applicant's criminal history was very serious in nature, particularly as it included multiple instances of violence, including domestic violence, for which the applicant had been sentenced to periods of incarceration on two occasions (paras 53 and 83 of reasons). The Assistant Minister noted heightened community concern about domestic violence as a major social problem, and the particular vulnerability of victims in domestic relationships. (7) Having regard to the applicant's expressions of remorse, the nature of his offending and the impact upon the victim, his claims to rehabilitation and to having reformed, and that his criminal offending occurred whilst the applicant was on conditional release, the applicant's pattern of offending in a domestic context was "deeply entrenched" and that there was therefore an ongoing risk of his re-offending. The Assistant Minister found that the Australian community could be exposed to significant harm should the applicant re-offend in a similar fashion (paras 76-77 and 84 of reasons). (8) The applicant represents an unacceptable risk of harm to the Australian community and the protection of that community outweighed the best interests of minor family members as a primary consideration and any other considerations identified by the Assistant Minister, including his lengthy residence and bonds, employment history and community involvement that the hardship that the applicant, his family and social networks would endure in the event that the cancellation decision was not revoked (para 86 of reasons). (9) Accordingly, the Assistant Minister was not satisfied that there was another reason why the cancellation decision should be revoked (para 87 of reasons). 20 Having found that there was not another reason why the cancellation decision should be revoked, the Assistant Minister found that his power to revoke the cancellation decision was not enlivened. As a consequence, the cancellation decision was not revoked. 21 The Minister contended that the Assistant Minister considered at length the matters raised by the applicant in his submissions and in the letters and documents in support of the applicant pertaining to the applicant's family circumstances (including his mother's current and future care and support needs) and the emotional effect upon the applicant's older son in particular should the applicant be removed from Australia. 22 The Assistant Minister accepted that the applicant's mother would experience considerable emotional distress, and some practical and financial hardship, in the event that the applicant is required to depart Australia (para 22 of reasons). The Assistant Minister made findings concerning the likely impact of the applicant's removal on his older son (paras 23 to 26 of reasons).

Application for Judicial Review 23 In his application for judicial review the applicant raises the following grounds: 1. The break up of my family unit. 2. The Minister did not look in to the care and welfare of my family. 24 Neither the application nor the affidavit in support contains any particulars of the two grounds set out in the application.

Applicant's submissions 25 In the letter included in his affidavit, the applicant noted his conversion to Christianity while incarcerated and the positive effects of his involvement with his church community. He stated that he has stopped his use of drugs and alcohol and expressed his commitment to live within the law if released from immigration detention. Further, the applicant referred to the distress his return to Fiji would cause to his sister, nephews/nieces, and particularly his mother (whom he noted to be widowed, following the suicide of his father) and older son. The applicant stated that he was the sole guardian of his mother. 26 In his letter tendered to the Court, the applicant apologised for his past conduct. He noted that his jail sentence was only 24 months (12 months in custody; 12 months on parole). He noted that he had always worked and stayed with his mother and older son. The applicant again referred to his mother's distress about his removal to Fiji, and reiterated his submissions about the reforming effect of his incarceration and his involvement in a church community. The applicant expressed his desire to stay with his son and to become a grandfather, and stated that he would be unable to see his grandson if he were removed to Fiji. Finally, the applicant stated that his father had killed himself and that he did not wish to do the same. 27 The applicant made oral submissions which referred to some of the issues raised in his affidavit and letter, particularly his wish to stay with his mother and his son. He referred to his ill health, including chronic back pain and his blindness in the left eye, and his lack of connection to Fiji, where he was said to know no one. The applicant stated that he always worked hard as a painter and had happy customers. He also said he understood his responsibilities to the Australian community and iterated his conviction to remain sober. 28 Further, the applicant sought to explain the circumstances surrounding the incident that led to his incarceration. 29 Ultimately, the applicant said that he wished to ask the Court for forgiveness for his past mistakes.

Consideration 30 Generally, the applicant's submissions did not identify any jurisdictional error by the Assistant Minister in concluding that the power in s 501CA(4) was not enlivened.

Ground 1 - Break of Family Unit 31 The first ground in the application does not identify jurisdictional error on the part of the Assistant Minister. 32 The Minister submitted that the first ground in the application is without merit and in its terms does not rise above a request for merits review. 33 I accept that submission. The Assistant Minister made findings about the impact of the applicant's removal on his family unit. The fact that the family unit would be broken did not require the Assistant Minister to make a different decision. The applicant has not identified anything to suggest that the Assistant Minister's reasoning concerning this issue involved jurisdictional error. 34 Accordingly, this ground of review fails.

Ground 2 - Failure to Consider Care and Welfare of the Applicant's Family 35 The applicant did not identify any particular failure on the part of the Assistant Minister to consider the care and welfare of his family. 36 The Minister submitted that the second ground in the application is not supported by any fair reading of the Assistant Minister's statement of reasons. 37 The Minister submitted that the Assistant Minister identified and considered at some length the various matters identified by the applicant as relevant to the financial and emotional welfare of each of the members of his immediate and extended family. As noted above, the Assistant Minister concluded that the applicant's immediate and extended family would experience emotional and practical hardship if the decision were not revoked. However, in the final analysis, the Assistant Minister considered that the interests of the applicant's immediate and extended family did not outweigh the protection of the Australian community. The Minister submitted that this was a finding open to the Assistant Minister on the evidence and within the exercise of his discretion. 38 A failure to consider a substantive aspect of an applicant's case that is sufficiently plain on the facts amounts to a denial of procedural fairness or a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24], [32], per Gummow and Callinan JJ; at [87] per Kirby J; at [95] per Hayne J. A failure to give "proper, genuine and realistic consideration" to the submissions provided by an applicant in response to an invitation to do so and which relate to the applicant's personal circumstances (which the Assistant Minister is required to consider: Picard at [42]) amounts to a constructive failure to exercise jurisdiction and is a jurisdictional error: NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 at [37], per Gummow J, at [171] per Callinan and Heydon JJ, cited with approval by the Court in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [29], although cf Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [42] to [45] and Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [38]. 39 The Minister contended, and I accept that, on a fair reading of the Assistant Minister's reasons, it cannot be said that the Assistant Minister either failed to consider, or failed to give proper, genuine and realistic consideration to, any aspect of the matters raised by the applicant, or in his documents in support, relevant to the welfare and interests of the applicant's immediate and extended family. 40 Accordingly, the second ground in the application also fails.

Conclusion and Orders 41 The Assistant Minister took into account each of the applicant's representations made pursuant to s 501CA(3) of the Act and made findings that were open on the material before him. 42 I accept the Minister's submission that there is no discernible jurisdictional error in the decision. I acknowledge the applicant's submissions, and the difficulty of his situation, but those matters do not permit a conclusion of relevant error on the part of the Assistant Minister. 43 Accordingly, the application for judicial review must be dismissed. Costs should follow the event. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gleeson.