SZRTN v Minister for Immigration and Border Protection

Federal Court of Australia (Full Court)|2014-10-03|Before: Gleeson JJ

Background 6 The appellant is 32 years old and a national of Samoa. He arrived in Australia at age 5 in the company of his father, after his parents' marriage had broken down. The visa on which he entered Australia expired one month after his arrival, but no application for a further visa was made until 2008. Evidence in the AAT indicated that the appellant had been abandoned by his father a few months after the arrival in Australia and that thereafter he lived for a time with an uncle and an aunt and their children. The evidence also indicated that his childhood had been difficult, being marked by circumstances of abuse, deprivation and isolation. His formal education has been very limited. From about the age of 13, the appellant had lived on the streets, sleeping rough, or at the homes of friends or acquaintances. These circumstances attract sympathy. 7 Regrettably, the appellant has a significant offending history as an adult. This includes several offences involving violence. He has now been sentenced to imprisonment on three separate occasions. 8 The appellant married in February 2013 while in detention at Villawood. He first met his wife in 2010, and from June 2012, developed a serious relationship with her. The appellant's wife gave birth to their daughter in October 2013. 9 In May 2012, the appellant applied for a Protection (Class XA) visa, but this was refused by a delegate of the Minister. The Refugee Review Tribunal affirmed the decision of the delegate, the Federal Circuit Court dismissed his application for judicial review; and he has now exhausted the avenues of appeal from that decision. 10 The present notice of appeal against the decision of the primary Judge contains five grounds. All allege error by the Judge in failing to find that the AAT's decision involved, in various ways, a denial of procedural fairness, but two grounds raised complaints of jurisdictional error of other forms.

Ground Two: The interests of the appellant's child 31 By Ground Two, the appellant contends that the primary Judge should have found that the AAT denied him procedural fairness by failing "to deal [with] and consider the best interests of [his] daughter as a primary consideration". However, some of the submissions in support of this ground were to the effect that the AAT had failed to address itself to the proper question for its determination. 32 The appellant contends that the AAT should have had regard to Article 9(1) of the United Nations Convention on the Rights of the Child which provides (relevantly): State parties shall ensure that a party shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence. 33 In his written submission, the appellant referred to a passage in the judgment of Mason CJ and Deane J in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 291-2 concerning the legitimate expectation to which Australia's ratification of the Convention, and Article 9(1) in particular, may give rise: [R]atification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absence statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as "a primary consideration". … [I]f a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course. (Citations omitted) The appellant referred in addition to the observation of Mason CJ and Deane J at 292 that "[a] decision-maker with an eye to the principle enshrined in the Convention would be looking to the best interests of the child as a primary consideration, asking whether the force of any other consideration outweighed it." 34 The appellant referred to the decision of a Full Court of this Court of Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133 in which it was held that, by failing to act on the basis that the best interests of the applicant's children were a primary consideration in the exercise of the discretion to grant or refuse a visa, and by not putting the applicant on notice that it was considering proceeding on a basis that the best interests of his children were not a primary consideration, the AAT had denied him procedural fairness. 35 The appellant submits that the AAT in his case had dealt with the best interests of his child at the level of "mere hypothesis". This meant, he submits, the AAT had never confronted "the central question" of the best interests of his child with the consequence that its balancing of those interests with the interest of the Australian community in being protected from him had miscarried. 36 These submissions of the appellant made no reference to Direction 55 and no reference to the way in which the AAT did in fact address the best interests of his daughter. 37 Clause 11(1)(b) in Direction 55 identifies the best interests of minor children in Australia as one of the primary considerations for decision-makers considering whether a visa should be granted. Paragraph 11.2(1) specifies: Decision-makers must make a determination about whether [visa] refusal is, or is not, in the best interests of the child. 38 Clause 11.2(4) identifies some particular matters which, when relevant, must be considered in relation to the best interests of children. 39 These parts of the Direction may be reflective of Australia's obligations under the Convention and of the legitimate expectation to which Teoh referred. Nevertheless, the AAT was bound to comply with Direction 55 and, to the extent that there is any inconsistency between the direction and Teoh, the direction necessarily prevailed: Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [55]. Further, and in any event, Teoh does not have the effect that a decision-maker must always accord primacy to the interests of a relevant child: Baker at [56] citing Tracey J in Basile v Minister for Immigration and Citizenship [2011] FCA 237; (2011) 193 FCR 329 at [46]. 40 The AAT considered the best interests of the applicant's daughter as follows: [43] In considering the best interests of the child, the factors set out in clause 11.2(4) must be considered where relevant. [44] We accept that it is in the best interests of the applicant's daughter that he remain in Australia. It cannot be said there is no existing relationship between them, even if she is only a few weeks old, although the effect of his removal on her will almost certainly be less than if she were older and their relationship of longer standing. 41 The first sentence in [44] was an express determination as required by cl 11.2(1) of Direction 55. Contrary to the appellant's submission, the AAT did not deal with his daughter's interests as a matter of hypothesis, as it found as a fact that the best interests of his daughter required that he remain in Australia. 42 The AAT referred again to the best interests of the applicant's daughter in its conclusion at [53]: As set out above, we accept that it is in the best interests of the Applicant's daughter that he remain in Australia. However, we are not satisfied that her best interests outweigh the real risk that he will commit further serious offences and serious harm to the Australian community if he is granted the visa. In our view, that risk is unacceptable. 43 In effect, the AAT decided that, despite the best interests of the appellant's daughter, the grant of a visa to him should nevertheless be refused because of the real risk of his committing further offences and thereby causing serious harm to the Australian community. This was a conclusion which was open to the AAT having regard to cl 8 of Direction 55. Clause 8(5) provides that one or more primary considerations may outweigh other primary considerations. It was for the AAT to make that evaluation. In resolving this issue adversely to the appellant, the AAT did not make the errors which his submission imputes to it. 44 We observe that the present ground of appeal was not agitated before the primary Judge. However, given that we consider that the ground fails in any event, it is not necessary to address the consequences of that circumstance. 45 This ground of appeal fails.

Ground Three: Procedural fairness and the appellant's relationship with his wife 46 By Ground Three, the appellant complains that the primary Judge should have found that the AAT erred in failing to give weight to the statements of his extended family and friends and in finding that his relationship with his wife was not genuine. 47 This ground of appeal has no merit. 48 First, it was for the AAT to determine the weight, if any, which it was prepared to attach to the statements from the appellant's extended family and friends. It was open to it to conclude that no weight should be attached to those statements, particularly given the appellant's own evidence about his deprived childhood. 49 The primary Judge concluded at [79] that the AAT's decision not to place any weight on the nine statements was not irrational or illogical in the sense discussed in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [135]. See also Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [63]-[76]. The appellant did not complain on appeal that the Judge's conclusion in this respect was wrong. 50 Secondly, contrary to the submission of the appellant, neither the AAT nor the primary Judge found that his relationship with his wife was not genuine. The AAT said: [49] The applicant denies marrying [his wife] in order to remain in Australia. He describes the day they married as the happiest day of his life. We accept his evidence. We accept that [his wife will] be distressed if he is refused a BVE which would enable them to be together for at least some time. We also accept that her mother would be distressed by such decision. 51 The primary Judge noted this finding at [35]. The appellant did not point to any passage in the reasons in which the Judge had purported to make a finding that his relationship with his wife was not genuine. 52 It is true that AAT did note that there may be some doubts about whether the appellant's relationship with his wife will endure. The AAT said at [31]: By [the appellant's] own evidence, he only became "romantically involved in a serious way" with his wife in June 2012, although he had known her since 2010. He has been in gaol and immigration detention for most of that time and the depth and future stability of the relationship must be open to serious question. 53 In our opinion, this was not an observation about the genuineness of appellant's relationship with his wife, but about the potential longevity of that relationship.

Ground Four: Alleged misconstruction of the Ministerial direction 54 In Ground Four, the appellant contends that the primary Judge should have found that AAT denied him procedural fairness and made a jurisdictional error by misconstruing cl 9.2(1)(a)(i) of Direction 55. 55 We note that a complaint of this kind was not made in the proceedings before the Judge and, accordingly, that it had not been necessary for her Honour to address it. However, that point may be put to one side for the present purposes. 56 Clause 6.3 of Direction 55 contains a statement of principles pertinent to the exercise of the discretion under s 501 and, in particular, of principles relating to the manner in which a history of criminal conduct is to be regarded. 57 Clause 9.2(1)(a)(i) provides: 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; and … 58 However, cl 9.2(1)(a) was not applicable in the appellant's case, as it concerns decisions regarding cancellation of a visa. As already noted, the appellant's application was for the grant of a new visa, and did not concern the cancellation of an existing visa. 59 Accordingly, this ground of appeal fails.

Ground Five: Alleged misconstruction of the Ministerial direction 60 By Ground Five, the appellant complains that the primary Judge should have found that the AAT denied him procedural fairness and fell into jurisdictional error by not determining whether he began offending soon after arriving in Australia as part of its assessment of the strength, duration and nature of his ties to Australia. 61 The appellant relied upon cl 9.2(a)(i) of Direction 55 for this Ground. 62 As cl 9.2 relates to the cancellation of existing visas and not to the grant of new visas, it has no application in the appellant's case. Accordingly, this ground fails for the same reasons as given in relation to Ground Four.

Conclusion 63 For the reasons given above, the appeal must be dismissed with costs. This makes it unnecessary to consider the parties' submissions on the issues raised by the Minister's Notice of Contention. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Rares, White and Gleeson.

Migration Act 1958(Cth)ss 476A, 499, 500, 501

REASONS FOR JUDGMENT THE COURT: 1 On 15 January 2013, the appellant applied for a Bridging E (Class WE) visa. A delegate of the Minister was not satisfied that the appellant satisfied the character test as defined in s 501(6) of the Migration Act 1958 (Cth) and exercised the power contained in s 501(1) to refuse the grant of a visa. The Administrative Appeals Tribunal (AAT) affirmed that decision on review under s 500 of the Migration Act and a Judge of this Court dismissed the appellant's application under s 476A of the Migration Act for judicial review of the AAT decision: SZRTN v Minister for Immigration and Border Protection [2014] FCA 303. 2 The appellant now appeals against that dismissal. 3 By s 501 of the Migration Act, the Minister may refuse the grant of a visa if the applicant does not satisfy the Minister (or the Minister's delegate as the case may be) that he or she passes "the character test". A person does not satisfy that test if, amongst other things, the person has "a substantial criminal record" as defined in s 501(7). The appellant has a substantial criminal record as defined because he has previously been sentenced to a term of imprisonment of 12 months or more (subs (7)(c)), and because he has been sentenced to two or more terms of imprisonment totalling two years or more (subs (7)(d)). Thus, the appellant could be granted a visa only if the Minister or the Minister's delegate exercised the s 501(1) discretion in his favour despite the circumstance that he did not pass the character test. 4 The discretion in s 501(1) of the Migration Act must be exercised in accordance with Direction No 55 - Visa Refusal and Cancellation (Direction 55) which came into effect on 1 September 2012. Direction 55 was made by the Minister pursuant to s 499 of the Migration Act and was binding on the AAT: s 499(2A). The AAT was alert to its obligation to give effect to Direction 55. We will refer to particular aspects of Direction 55 later in these reasons. 5 In the proceedings at first instance, the appellant had legal representation. On the appeal to this Court, he was unrepresented, although it is apparent that he had had some legal assistance in the drafting of the notice of appeal and in the preparation of his written submission.

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