Ratapu v Minister for Home Affairs

application for judicial review 9 On 18 October 2018 the applicant filed his application to this Court. 10 Pursuant to orders made on 6 December 2018 the applicant was to file and serve an outline of written submissions. He did not do so. Those orders also required the Minister to file and serve an electronic court book and an outline of written submissions which he did so. The applicant said during the hearing of the application that he had not received a copy of the court book or the Minister's submissions. However, email correspondence from the Minister's solicitors to the applicant was tendered which indicated that both documents were provided to him and I am satisfied that the applicant received the Minister's submissions and the court book. 11 The application was made on two grounds: Grounds of application 1. Denial of procedural fairness. 2. Failing to take relevant considerations into account. 12 Below those enumerated grounds were four particulars: (a) Due to the disadvantage of being self represented, the First and Second Respondent failed to afford me procedural fairness. (b) The information that I supplied both the Respondents was taken and used out of context, also failing to acknowledge that the Information I had supplied from several people within the Australian community, with accreditations, showed that my risk of re­offending is not medium but in fact a low risk of re-offending. (c) My wife gave evidence in support of my application and is still supporting me through this process, after 17 months of incarceration and detention. (d) Partial information that she gave as evidence was misunderstood and interpreted wrong by both the Respondents, making the conclusion based entirely on assumptions and hypothetical scenarios that the Second respondent found. 13 The applicant also filed an affidavit accompanying his originating application, the relevant parts of which state: … 4. Throughout the course of my application for the revocation of the cancellation, I was not formally represented nor was I able to receive legal representation over the course of my hearing. 5. I believe that I was denied procedural fairness within the hearing as I was unsure of what the processes were and in doing so gave evidence that was against my best interest, with the Second Respondent failing to take full consideration of the evidence that was in favour of application. … 7. I believe that if I had legal representation the outcome may have been different as the Second Respondent believed that I have changed but based their decision on my risk of re-offending on a 4 year old statement made in 2014. 8. I believe that my risk of re-offending is minimal to low as do several witness statements say in support of my claim.

Ground 1 - Denial of procedural fairness due to lack of representation 14 The applicant contends in particular (a) that he was denied procedural fairness because of the "disadvantage of being self represented". Though legal representation in the Tribunal is permissible per s 32(1) of the Administrative Appeals Tribunal Act 1975 (Cth), there is no right to legal representation. The absence of legal representation of itself does not amount to a denial of procedural fairness: Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20 at, [27], [32] and [36]; Griffiths v Minister for Immigration and Border Protection [2018] FCA 629 at [31] and [45]. 15 The applicant did not refer to any aspect of the conduct of the hearing before the Tribunal which would indicate that he was denied procedural fairness. I therefore reject this ground.

Failure to consider a relevant consideration 16 In particulars (b) to (d) of the application, the applicant seeks to impugn the Tribunal's decision for having failed to take relevant considerations into account.

Particular (b) 17 The applicant contends in particular (b) that information he supplied to the Tribunal was "used out of context" and that information he supplied from accredited persons, showed that his risk of re-offending "is not medium but in fact a low risk of re-offending". 18 The Decision Record contains a detailed consideration of the Tribunal's assessment of the applicant's risk of re-offending. I am not satisfied that the Tribunal used the information before it out of context or failed to properly assess the applicant's risk. The Tribunal took into account the applicant's completed drug and alcohol courses, occupational courses, other studies and written character references. The Tribunal also took into account two community corrections order assessment reports from 2016 and 2017. The 2017 report stated the applicant was at "medium risk of re-offending according to the Level of Service Risk Assessment Tool". That report noted that the applicant had been the subject of a prior community corrections order in 2016 and was before the courts for contravention of those orders due to further offending. The earlier report of 23 March 2016 assessed the applicant as a low risk of re-offending. The Tribunal noted that there was an upgrade from low to medium in the risk assessment from 2016 to 2017. 19 The Tribunal concluded that there was a medium level risk that the applicant would reoffend. This assessment was not supportive of a cancellation of the decision to revoke the visa.

Particular (c) 20 The applicant contends in particular (c) that the Tribunal failed to give proper consideration to his wife's evidence in support of his application and the fact that she is "still supporting [him] through this process, after 17 months of incarceration and detention." 21 The Tribunal gave detailed consideration of the applicant's wife's evidence, as explained in the Decision Record at [89]-[94], [122], [131], [133], [134], [153], [154], [171], [178] and [186]. The Tribunal referred to the applicant's wife's evidence and the ongoing support she was providing the applicant. The Tribunal also considered how the wife's ongoing support was relevant to the applicant's ties to Australia and how it may affect both the applicant and his wife if he had to return to New Zealand. It further considered her evidence when assessing the best interests of the applicant's step-son (her son), and again referred to her evidence when addressing the concept of the protection of the Australian community. In my view, there is no legal error arising from a failure by the Tribunal to consider the evidence given by the applicant's wife.

Particular (d) 22 The applicant contends in particular (d) that part of his wife's evidence was "misunderstood and interpreted wrong by both the Respondents, making the conclusion based entirely on assumptions and hypothetical scenarios that the [Tribunal] found". I do not agree. 23 The applicant's wife's evidence was summarised by the Tribunal and taken into account in its assessment. One possible scenario considered by the Tribunal arose from evidence she had herself given to the Tribunal that she would move to New Zealand to join the applicant if her son was released back in to her care. 24 In my opinion, there is no evidence that the Tribunal misapprehended the applicant's wife's evidence nor that its assessment of her evidence was affected by any illogicality, irrationality or unreasonableness. 25 The Minister submitted that the Tribunal properly applied s 501 CA(4)(b)(ii) of the Act in concluding that it was satisfied the decision under review should not be revoked. In coming to that conclusion, the Tribunal considered the representations made by the applicant and his wife, and the material presented as a whole. The findings were open and supported by the available evidence. Accordingly, in my view there was no jurisdictional error.

Further consideration 26 The applicant was self-represented and with leave appeared via telephone. I asked the Minister to make its submissions first, and then invited the applicant, with the benefit of hearing the Minister's submissions, to make such submissions as he wished to make. 27 The applicant said: First of all, thank you ... for the time for today. Thank you for the phone call. I know I'm not going to get my thing revoked or whatever. I do have one thing I want to say. I am a good person. My past is my past. I can't take back what I've done, but I spent my time for that, and I truly believe I deserve another chance in Australia. But one thing I will say between November and the time I flew out in January the 16th of this year ... I watched seven rapists, murderers, child molesters get their visas back, and I'm scratching my head. That's all I've got to say. 28 I acknowledge the applicant's candour about the grievance he feels for not having been successful in his application to have the cancellation of his visa revoked. However, as I explained to the applicant during the hearing, the court's judicial review jurisdiction does not extend to re-assessing the merits of his claim that he is not a threat to the Australian community. 29 For the reasons given above, there was no legal error in the Tribunal's decision and accordingly the application should be dismissed.

DISPOSITION 30 The application is dismissed. The applicant pay the first respondent's costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Anastassiou.