Sauvao v Minister for Immigration, Multicultural Affairs and Citizenship

The applicant's date of arrival in Australia 30 The applicant submits that the Tribunal misunderstood and misapplied paragraph 9.2(1)(a)(i) of the Direction by its reference to the applicant's last date of arrival in Australia. Paragraph 9.2(1)(a)(i) states: 9.2 Strength, duration and nature of the person's ties to Australia (1) Reflecting the principles at 6.3, decision-makers must have regard to: (a) How long the person has resided in Australia, including whether the person arrived as a young child, noting that: (i) Less weight should be given where the person began offending soon after arriving in Australia… 31 The applicant points to the fact that in [1] of the Tribunal's decision, the Tribunal member stated that: [Mr Sauvao] last arrived in Australia in March 2005 on a Special Category (Temporary) visa. 32 The Tribunal member also observed at [45]-[46]: Mr Sauvao has lived half of his life in Australia. His first offence, a driving offence, was committed in 2004, the year after he last arrived in Australia. His offending escalated steadily from that time, culminating in his 2009 offence and conviction in 2010. His offending has continued after that, albeit without assaults on individuals. This consideration, keeping in mind the strength of Mr Sauvao's ties to Australia, weighs against cancellation of Mr Sauvao's visa. The extent to which it does so is lessened by Mr Sauvao's having commenced to offend so soon after his last arrival in Australia. [Emphasis added] 33 Before briefly considering the applicant's grounds of review, the Court notes what appears to be loose language in the decision of the Tribunal. On the facts, it is clear that the applicant last arrived in Australia in March 2005 after leaving in February 2005. The Tribunal's decision at [45] however refers to the applicant last arriving in Australia in 2003. This difference may be explained by the length of the period that the applicant left Australia for in February 2005, being merely four weeks. It is likely that although the applicant had entered Australia on three occasions, the last occasion was to be treated as a continuation of his living in Australia from April 2003 to February 2005 in light of what could be referred to as the applicant's one month trip. This discrepancy does not affect the applicant's submissions however, which are directed toward the Tribunal's alleged failure to consider his first period of residence in Australia. 34 Four of the grounds of review are connected to the applicant's submissions relating to the Tribunal's reference to the applicant's last date of arrival. They are: 1. The Tribunal failed to solely use the date of the applicant's initial arrival in Australia in considering whether the applicant began offending soon after arriving in Australia; 2. In the alternative to ground 1, the Tribunal failed to take into consideration date of the applicant's initial arrival in Australia in considering whether the applicant began offending soon after arriving in Australia; 3. In the alternative to grounds 1 and 2, the Tribunal erred in taking into account an irrelevant consideration in considering whether the applicant began offending soon after arriving in Australia, that consideration being the applicant's arrival into Australia in April 2003; and 4. The Tribunal failed to have regard to and consider that the applicant arrived in Australia as a young child. 35 It is useful to summarise these grounds of review into two questions. The first raises the question whether it was open to the Tribunal to give consideration to the applicant's last date of arrival in relation to his offences. The Court finds that it was so open having regard to the scope and purpose of the Direction: see Peko-Wallsend at 39-40. Paragraph 9.2 of the Direction clearly evinces an important connection between the length of time that a person has resided in Australia and any offences committed by that person. This is supported by various other parts of the Direction, particularly at paragraph 6.3(4) as set out at [10] above. Given that, in effect, the applicant had resided in Australia for two periods of time, it was open to the Tribunal to consider his second arrival to Australia. The Court does not find that the words 'last arrival' is any more than identification of a second occasion when the applicant arrived in Australia. As such, the Court rejects grounds of review 1 and 3 set out at [34] above. 36 The more important question is whether the Tribunal was required to consider, and if so did consider, the initial period in which the applicant was in Australia in relation to his offences. A plain reading of paragraph 9.2 supports that such consideration is relevant. As to whether that consideration was overlooked by the Tribunal, a statement of French (as his Honour then was), Sackville and Hely JJ in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 ('WAEE') is apposite. Their Honours said at [47]: The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 37 Although the reasons of the Tribunal are not explicitly clear in relation to the initial period that the applicant resided in Australia and his offences, the Court is satisfied that the Tribunal did consider the matter. The decision refers to the fact that the applicant was born in 1985 and had been in Australia from December 1991 to February 1996. Further, when considering the offences of the applicant, the Tribunal member stated at [45]-[46]: Mr Sauvao has lived half of his life in Australia. His first offence, a driving offence, was committed in 2004, the year after he last arrived in Australia. His offending escalated steadily from that time, culminating in his 2009 offence and conviction in 2010. His offending has continued after that, albeit without assaults on individuals. This consideration, keeping in mind the strength of Mr Sauvao's ties to Australia, weighs against cancellation of Mr Sauvao's visa. The extent to which it does so is lessened by Mr Sauvao's having commenced to offend so soon after his last arrival in Australia. [Emphasis added] 38 The issue of the offences committed by the applicant was comprehensively considered by the Tribunal, and from the reference to the fact that the applicant had spent more than half of his life in Australia, the Tribunal member was mindful of the initial period of the applicant's residence in Australia. Unless the period spent in Australia between 1991 and 1996 is taken into consideration, such statement would have clearly been erroneous. It is apparent that further regard did not need to be paid to the initial period that the applicant was in Australia simply because there was no criminal conduct in which the applicant was engaged during his childhood years. Indeed, to find that the Tribunal had failed to take into account this consideration would be an over-zealous interpretation of the Tribunal's decision of the kind envisaged in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 39 It follows that the Tribunal member also took into account that the applicant had arrived in Australia as a child. For these reasons, the Court rejects the grounds of review numbered 2 and 4 set out at [34] above.