Sadruga v Minister for Home Affairs

Factual Background 4 Mr Sadruga is a citizen of Fiji. He first arrived in Australia on 4 July 1990 without a visa as a stowaway. He was detained the following day but escaped from immigration detention on 22 July 1990. On 28 August 1992, he was detained by NSW police and deported to Fiji. 5 On 11 February 1996, Mr Sadruga re-entered Australia as the holder of a UC-456 Business (Short Stay) (Class UC) visa, which was valid for one month. A further short stay visa was granted until 7 May 1996. An application for another short-stay visa was unsuccessful and Mr Sadruga thereafter remained unlawfully in Australia until 2 November 2001. On that date, he applied for a protection visa, which was refused on 29 November 2001. The Refugee Review Tribunal affirmed that refusal on 18 December 2002. On 27 February 2003 and 29 October 2004, Mr Sadruga sought the Minister's personal intervention in his case pursuant to s 417 of the Act. On both occasions, the Minister declined to intervene. On 16 November 2004, Mr Sadruga was granted a bridging visa on departure grounds. However, he did not depart Australia. He remained unlawfully in Australia for some 7 years until September 2011. 6 On 1 September 2011, Mr Sadruga lodged a combined Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa application, sponsored by his then partner. As a consequence, he was granted a bridging visa. On 8 February 2013, the sponsor withdrew her sponsorship. The application nonetheless remained on foot. 7 On 17 December 2015, Mr Sadruga was convicted of various offences and received a nine month sentence of imprisonment. 8 On 11 February 2016, Mr Sadruga's bridging visa was cancelled. On 19 July 2016, the Tribunal affirmed the decision to cancel the bridging visa. On 18 August 2016, Mr Sadruga applied to the Federal Circuit Court for review of the Tribunal's decision in relation to the cancellation of his bridging visa, which was dismissed on 6 March 2017. 9 On 6 April 2017, Mr Sadruga was convicted of further offences including use of an offensive weapon with intent to commit an indictable offence, common assault and destroying or damaging property. He was sentenced to 12 months' imprisonment with a non-parole period of nine months. 10 On 19 April 2018, the Department of Home Affairs sent Mr Sadruga a Notice of Intention to Consider Refusal of the visa application and invited him to comment. Further information for comment was sent to Mr Sadruga on 25 June 2018. On 17 October 2018, after considering Mr Sadruga's response, a delegate of the Minister refused the visa under s 501(1) of the Act. Mr Sadruga was notified on 22 October 2018. 11 On 1 November 2018, Mr Sadruga applied to the Tribunal for review of the delegate's decision and on 14 January 2019 the Tribunal affirmed that decision.

Legislative Provisions 12 Section 501(1) of the Act provides that "the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test". Thus, a discretion is conferred on the Minister to refuse to grant a visa if the Minister is satisfied that the visa applicant does not pass the character test. The character test is defined in subss 501(6) to (11). It is common ground that Mr Sadruga did not pass the character test as he had a substantial criminal record as defined by subs (7): relevantly, Mr Sadruga had been sentenced to a term of imprisonment of 12 months or more. 13 The Minister's discretion to refuse to grant a visa to Mr Sadruga was therefore enlivened and, on review by the Tribunal, the discretion fell to be exercised by the Tribunal. In doing so, the Tribunal was bound to apply Ministerial Direction No. 65 (the Direction) in accordance with s 499(2A) of the Act. Part B of the Direction sets out certain primary and other considerations to be taken into account in deciding whether to refuse to grant a visa.

The Tribunal Decision 14 As noted above, the Tribunal affirmed the decision under review. In reaching its decision, the Tribunal: (a) set out the relevant law, background information and evidence, including Mr Sadruga's criminal record (at [1]-[30] of its reasons); (b) set out the relevant provisions of the Direction and the issues to be resolved (at [31]-[38]); (c) found that Mr Sadruga did not pass the character test (at [39]); (d) considered the primary considerations required by the Direction and applied them to Mr Sadruga's circumstances, being: (i) the protection of the Australian community from criminal or other serious conduct, which the Tribunal found weighed "strongly in favour of refusing to grant Mr Sadruga's visa" (at [40]-[64]); (ii) the best interests of minor children in Australia, which the Tribunal found weighed "somewhat in favour of not refusing Mr Sadruga's visa application" (at [65]-[72]); and (iii) the expectations of the Australian community, which the Tribunal found weighed "strongly in favour of refusing to grant [Mr Sadruga's] visa application" (at [73]-[75]); (e) considered the other considerations, including: (iv) Australia's international non-refoulement obligations, and concluded that this consideration did not weigh in favour of or against the refusal (at [76]); (v) the impact on family members, and found that this consideration weighed "somewhat in favour" of granting the visa (at [77]-[84]); (vi) the impact on victims, and found that this consideration had no weight due to the absence of any victim statements (at [85]); (vii) the impact on Australian business interests, and found that this consideration did not weigh in favour of or against refusal (at [86]-[88]); and (viii) the extent of impediments Mr Sadruga would face in Fiji if removed, and found that this consideration weighed "somewhat in favour" of granting the visa (at [89]-[93]); and (f) concluded that the two primary considerations of protecting the Australian community and the expectations of the Australian community, which weighed in favour of refusing the visa, substantially outweighed any other considerations that weighed in favour of granting the visa, and accordingly affirmed the decision under review (at [94]-[96]).

Grounds of Review 15 Mr Sadruga made an affidavit in support of his application for review. The affidavit set out the following formulaic grounds of review without any particularisation of the asserted errors: (a) the Tribunal's decision was unreasonable; (b) the Tribunal did not properly apply s 501CA and s 501CA(4) of the Act; (c) the Tribunal took into account irrelevant considerations; (d) the Tribunal failed to take relevant considerations into account; (e) there was insufficient evidence or no evidence to support various findings made by the Tribunal; (f) the Tribunal failed to properly exercise its discretion under s 501CA and s 501CA(4) of the Act; (g) the Tribunal's decision involved an error of law; and (h) in reaching its decision, the Tribunal did not comply with the rules of natural justice and/or Mr Sadruga was denied procedural fairness. 16 On 20 February 2019, the Court made orders requiring Mr Sadruga to file and serve particulars of the grounds of review and to file written submissions. Mr Sadruga sent the Court a short document containing particulars of the grounds of review but did not file written submissions. The particulars of the grounds of review were as follows (reproduced verbatim): Particulars of the Ground The Tribunal decision made on the 14 January 2018 was legally unreasonable. 1. The Tribunal erred by failing to take into account a relevant consideration or failed to ask the right questions, namely about the psychological effects on the best interest of a minor child due to the applicant's uncertainity of detention pending involuntary deportation to Fiji. (i) father has been intergral part of their up bringing since birth (ii) children are Australian citizens (iii) children's hand written support letters 2. The Tribunal erred by failing to take into account evidence of significance, namely by not allowing the applicant sufficient time to acquire documents that was imperative to the case. (i) AVO course certificate that was done in Silverwater Gaol 2017 (ii) father's medical report 3. The Tribunal erred by failing to consider the primary considerations, also taken into account irrational behaviour by the applicant in its assessment of future act of recidivism. 4. The Tribunal erred by failing to consider the length of time applicant has continously spent in Australia and ties within the Australian community through positive contibutions by way of employment. 17 At the hearing, Mr Sadruga confirmed that the grounds of review stated in the document titled "Particulars of the Ground" were the grounds he wished to advance on the application. Mr Sadruga addressed each ground in oral submissions.

Ground 1 18 Ground 1 concerns one of the primary considerations to be taken into account under the Direction: whether the refusal of the visa is or is not in the best interests of minor children in Australia. 19 The Tribunal found that Mr Sadruga has three biological children who are Australian citizens and who were under 18 on the date his visa application was refused. The Tribunal also found that Mr Sadruga wanted to be more involved in his children's lives and, if necessary, contest their custody if shared care arrangements cannot be agreed with his former partner. Further, the Tribunal found that Mr Sadruga's children enjoy a close and continuing relationship with him, albeit one that has been conducted mostly by telephone during the last three years because of his imprisonment and time spent in detention. 20 Mr Sadruga submitted to the Tribunal that his children needed him as a source of income and support. The Tribunal found that there was no reliable evidence that Mr Sadruga's children were dependent on him financially. Mr Sadruga also submitted to the Tribunal that his children had been diagnosed with "severe major depressive disorder with depressed and anxious moods". However, the Tribunal found that there was no evidence of this beyond Mr Sadruga's assertions and that there was no evidence that the care being received by Mr Sadruga's children was in any way deficient. The Tribunal gave no weight to those claims. 21 Overall, the Tribunal found that the interests of Mr Sadruga's children weighed in his favour, but less weight was placed on this consideration by virtue of his long periods of absence from their lives, the fact that Mr Sadruga's former partner fulfils the primary parental role and because of the acts of family violence Mr Sadruga admitted committing in their presence. 22 The primary submission made by Mr Sadruga to the Court on this application was that the Tribunal was unable to assess the psychological condition of his children because there was no psychological evidence before the Tribunal. Mr Sadruga's submission does not demonstrate any error on the part of the Tribunal. The Tribunal is required to make its decision on the evidence before it. In the absence of any evidence supporting Mr Sadruga's assertion about the psychological condition of his children, there was no error in the Tribunal giving no weight to Mr Sadruga's assertions.

Ground 2 23 Ground 2 concerns two categories of evidence that were not before the Tribunal at the hearing. It is convenient to consider each in turn. 24 The first document was an AVO (apprehended violence order) course certificate in respect of a course Mr Sadruga undertook in Silverwater prison in 2017. Mr Sadruga's criminal offending involved instances of domestic violence, including breaches of AVOs to which he was subject. Mr Sadruga gave evidence before the Tribunal that he had attended a workshop on AVOs while imprisoned at Silverwater in 2017 in order to demonstrate that he was rehabilitated and not at risk of reoffending. However, there was inconsistency in his evidence as to whether he was issued a certificate for that course. In his statement of facts, issues and contentions filed with the Tribunal, Mr Sadruga stated that he was not issued with a certificate for the course. In his oral evidence before the Tribunal, Mr Sadruga stated that he had lost the certificate. In the absence of a certificate for the course, the Tribunal concluded that it was unable to be satisfied about either the content of such a course or Mr Sadruga's attendance. More generally on the question of rehabilitation, the Tribunal did not accept, on the available evidence, that Mr Sadruga had been fully rehabilitated as he contended. 25 On this application, Mr Sadruga submitted that the Tribunal erred because he was not given time to locate and produce a copy of the AVO course certificate. I reject that submission. There is no suggestion that Mr Sadruga sought an adjournment of the hearing before the Tribunal to enable the certificate to be located. In the circumstances, there was no error in the Tribunal reaching the finding that it did on the evidence that was available to it at the hearing. In any event, having regard to the totality of the evidence before the Tribunal, in my view the production of the AVO course or certificate would not have made any difference to the outcome of the decision. 26 The second document referred to by Mr Sadruga was a medical report in respect of his father. Mr Sadruga's brother gave evidence at the hearing before the Tribunal that, if allowed to remain in Australia, Mr Sadruga could either find work or become their father's carer in Melbourne. The Tribunal found that neither Mr Sadruga nor his brother referred to their father's care needs in any substantive way in their oral evidence; Mr Sadruga's father did not attend the hearing and there was no medical evidence before the Tribunal relating to his medical circumstances or care needs. The Tribunal considered the impact of visa refusal on Mr Sadruga's immediate family members in Australia, including his father. The Tribunal noted Mr Sadruga's submission that his father had suffered serious health issues in recent years, but found there was no corroborating evidence in relation to those health issues or any care requirements. Overall, on the question of the impact of a visa refusal on Mr Sadruga's family members, the Tribunal found that those family members would be saddened and disappointed by a decision to refuse his visa application and that that factor weighed somewhat in favour of approving Mr Sadruga's visa application. 27 On this application, Mr Sadruga submitted that the Tribunal erred because he was not given an opportunity to obtain a medical report concerning his father. I reject that submission. There is no suggestion that Mr Sadruga sought an adjournment of the hearing before the Tribunal in order to obtain further evidence concerning his father's health or care needs. In the circumstances, there was no error in the Tribunal making the findings it did on the evidence before it.

Ground 3 28 Ground 3 concerns one of the primary considerations to be taken into account by the Tribunal under the Direction: the protection of the Australian community from criminal or other serious conduct. The Direction requires the decision maker to give consideration to the risk to the Australian community should the visa applicant commit further offences or engage in other serious conduct. That requires consideration of the risk of reoffending. 29 The Tribunal was unconvinced by Mr Sadruga's evidence that he was fully rehabilitated and did not constitute a risk of reoffending. The Tribunal referred in particular to the repetitive and prolonged nature of his offending. The Tribunal found: [60] On the available evidence the Tribunal does not accept that Mr Sadruga has been fully rehabilitated as he contends. His attendance at the BaptistCare course was incomplete and the IMHS counselling he referred to is of a general, health-related nature. The latter counselling is not specifically targeted to his issues with domestic violence. While the sessions he has completed to date are a step in the right direction, they are insufficient support for his contention that he is fully rehabilitated and does not constitute a risk of further offending. Moreover, he has only spent five months in the community on probation between last being released from prison and subsequently being taken into immigration detention. During this period of probation his liberty was constrained by good behaviour bonds and AVO conditions. Mr Sadruga's claimed rehabilitation is incomplete at best and has not been fully tested in the community. … [62] The evidence shows that the positive changes Mr Sadruga often claims to have achieved coincide with Court or Tribunal appearances, or when his ability to remain in Australia is at risk. He has repeatedly demonstrated an inability to control his violent impulses when dealing with the realities of his relationship breakdown, the interference he perceives from his former partner's relatives or her new partner, or when he is unable to have the access and influence he desires with his children. There is little beyond Mr Sadruga's assurances that he will remain law-abiding in the future. On the evidence before me, the possibility of further violent offences by Mr Sadruga represents more than a low or minimal risk. [63] Having regard to the prolonged nature and circumstances of Mr Sadruga's criminal offending and immigration misconduct, and the relatively limited nature of the rehabilitation he relies upon, I consider that the risk of Mr Sadruga committing further violent offences or serious immigration misconduct is unacceptable. 30 On this application, Mr Sadruga submitted that the Tribunal was unable to make the foregoing findings about his risk of reoffending in the absence of a psychological report concerning Mr Sadruga. I reject that submission. The findings made by the Tribunal did not require psychological evidence.

Ground 4 31 Ground 4 concerns factors that arise under the Direction. As observed by the Tribunal at [32], paragraph 6.2 of the Direction, headed "General Guidance", states that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens and that the principles set out in paragraph 6.3 of the Direction "are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable". Sub-paragraphs (5) and (7) of paragraph 6.3 of the Direction state: (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age. (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused. 32 In connection with a decision to cancel a visa, the Direction also requires the decision-maker to have regard to the strength, nature and duration of ties to Australia (see Direction, paragraph 10.2). However, that factor is not a mandatory consideration in connection with a decision to refuse to grant a visa. The reason for that difference is explained in paragraph 8 of the Direction, which states: Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved. 33 On this application, Mr Sadruga largely repeated submissions that he had made to the Tribunal, to the effect that he had lived in Australia for many years, he had a large family who lived in Australia and he had been employed and paid taxes in Australia for many years. The Tribunal took account of these considerations. However, as the Tribunal observed at [75], Mr Sadruga had lived unlawfully in Australia for approximately 14 years: I acknowledge the principle set out at paragraph 6.3(5) of the Direction that 'Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.' However, Mr Sadruga has lived unlawfully in Australia without a valid visa for approximately 14 years. His criminal conduct and immigration misconduct has been sustained and serious. In these circumstances the Australian community would expect the Minister to refuse to grant him a visa. This primary consideration weighs strongly in favour of refusing to grant his visa application. 34 The Tribunal took account of Mr Sadruga's extended family and social connections in Australia, stating (at [82]): Mr Sadruga undoubtedly enjoys much support in Australia from members of his family and others. He claims to have 59 family members in Australia who are all Australian citizens. I have noted and considered the statements from his father, brother, uncle, brother-in-law, nephews, cousins, other members of his extended family, members of religious congregations he has worshipped at, a former work colleague, and a former employer. It is to his credit that those who have chosen to write supportive statements view him in such a positive light. 35 In light of the fact that Mr Sadruga had lived in Australia since 1996 and had many close family members who reside here, the Tribunal accepted that the impact on family members weighed somewhat in his favour (at [84]). 36 In light of the foregoing, Mr Sadruga's contention that the Tribunal failed to take into account relevant considerations must be rejected.

Conclusion 37 In conclusion, none of the grounds of review advanced by Mr Sadruga disclose error in the Tribunal's reasons. Accordingly, I dismiss the application and order Mr Sadruga to pay the costs of the first respondent. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Bryan.