Te Paa v Minister for Immigration and Border Protection

1. The application be dismissed.
2. The applicant pay the costs of the application to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 I have decided to uphold the application that these proceedings be dismissed and these are my reasons. Section 501(3A) of the Migration Act 1958 (Cth) provides that the Minister must cancel a person's visa if the Minister is satisfied that the person does not pass "the character test" and is serving a sentence of imprisonment on a full-time basis for an offence against Australian law. 2 Under the Migration Act, a person who has been sentenced to a term of imprisonment of 12 months or more does not satisfy the character test. 3 Mr Te Paa is a New Zealand citizen. He came to Australia when he was 13 years old. In 2005, he was convicted of an aggravated break and enter offence in New South Wales and sentenced to five years imprisonment. His visa was cancelled under s 501(3A) on 3 February 2017. 4 Mr Te Paa made an application for the decision to cancel his visa to be revoked. Section 501CA(4) provides that the Minister may revoke the original decision if the person whose visa has been cancelled makes representations and the Minister is satisfied that the person passes the character test or is satisfied that there is another reason why the original decision to cancel the visa should be revoked. 5 On 19 October 2017, the Assistant Minister for Immigration and Border Protection decided not to revoke the decision to cancel the visa. A statement of reasons was provided by the Assistant Minister, which I have read and considered. 6 On 30 November 2017, Mr Te Paa was given a copy of the reasons in a letter advising him of the decision not to revoke the visa cancellation decision. At the time, he was in detention on Christmas Island. On the same day, he completed an application to this Court for certiorari to quash the decisions made on 3 February and 23 October 2017. 7 The Minister now seeks the dismissal of that application. The Minister relies upon an affidavit dated 16 February 2018. The affidavit produces a copy of a document dated 1 November 2017. On the face of that document, it records a request by Mr Te Paa to be removed from Australia. The affidavit also deposes to records showing that Mr Te Paa departed Australia on 5 December 2017. Although, as counsel for the Minister accepted, it is somewhat strange that the request for voluntary removal was made a month before being formally served with the decision of the Assistant Minister, I accept the evidence of the request for voluntary removal. I note that the voluntary departure of Mr Te Paa on 5 December 2017 occurred after the application was made to this Court. 8 The Minister has also produced today an email to Mr Te Paa advising him of today's hearing and of the Minister's intention to seek to have the matter dismissed with costs. Counsel for the Minister has informed the Court, and produced a copy of an email, showing that the email address is an address that has been used by Mr Te Paa in the past. The last occasion it was used appears to be on 1 September 2017, that is to say, used in communications with the Minister's department, or at least with representatives of the government. 9 Mr Te Paa's address for service on his application is shown as Christmas Island Immigration Detention Centre and, based on the material in the affidavit, the Minister submits that he is no longer at that place. There is no information on the Court record of any address where Mr Te Paa may be contacted and, in those circumstances, the application by the Minister was heard in the absence of Mr Te Paa. 10 In his application, Mr Te Paa claims that the decisions were unconstitutional. The High Court has recently rejected a claim of the kind that Mr Te Paa seeks to raise in respect of the constitutionality of the process by which his visa was cancelled and he was held in an immigration detention centre: Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 351 ALR 61. Therefore, there is no merit in that ground. 11 Otherwise, the application relies upon unparticularised statements in an affidavit from Mr Te Paa that the Minister took into account irrelevant considerations, failed to take relevant considerations into account, did not comply with rules of natural justice or procedural fairness, made a decision that involved an error of law and did not properly apply the relevant statutory provisions. 12 I have considered the reasons provided by the Assistant Minister and, on the face of those reasons, which is the only material I have before me, can find no arguable basis to support these claims. 13 Further, given the availability of the statutory right to apply to the Minister to revoke the decision made on 3 February 2017 and the fact that Mr Te Paa has availed himself of that right, certiorari is unlikely to be allowed in respect of the earlier decision for discretionary reasons. In any event, the application discloses no material to support relief in respect of the first decision. 14 I observe separately that the application was brought against the Minister. As I have noted, the decision on 19 October 2017 was made by the Assistant Minister. The Assistant Minister had statutory authority to make that decision: see, Maxwell v Minister for Immigration and Border Protection [2016] FCA 47; (2016) 249 FCR 275 at [18]-[21]. Therefore, this aspect is not a matter that gives rise to any ground to support the relief sought. 15 Finally, on the available evidence, Mr Te Paa has not complied with r 11.01 of the Federal Court Rules 2011 (Cth) to provide a valid address for service for the purposes of these proceedings. It is his obligation to do so: see, Minus v Selth (No 2) [2017] FCA 1233 at [30]. By reason of this default, the Court is unable to take further steps to notify him of this hearing. The default is also a further reason supporting the Minister's application. For those reasons, I uphold the application by the Minister and these proceedings should be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.