Tenari v Minister for Home Affairs

1. The application be dismissed.
2. The applicant to pay the first respondent's costs, of and incidental to the application, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 This is a hard case, not in terms of legal principle, but in terms of outcome for the applicant, Mr Aufaatasi Tenari. Mr Tenari conducted his own case. He did so with great respect for the Court and immense natural dignity. His submissions were succinct, but none the worse for that. 2 The background to the case is as follows: Mr Tenari came to Australia from New Zealand in 1997. On 13 September 2017, he was sentenced to a term of imprisonment for 18 months in respect of an offence the foundation of which one might term domestic violence. At the time his residence in Australia was authorised by that class of visa under the Migration Act 1958 (Cth) (Act) known as a Special Category Temporary, Class TY (Subclass 444 visa) (visa). A consequence of Mr Tenari's being sentenced for a term of imprisonment for 18 months, together with his status as a non-citizen of Australia but visa holder, was that a delegate of the Minister for Home Affairs (Minister) was satisfied that he did not pass the character test. That was on the basis that, definitionally, the Minister's delegate was satisfied that Mr Tenari had what the Act terms a "substantial criminal record". On the basis of that satisfaction, the Minister's delegate was obliged by s 501(3A) of the Act to cancel Mr Tenari's visa. 3 There were, materially, two consequences of the cancellation of Mr Tenari's visa. The first was that he became liable to immigration detention, which is for him a present reality. For reasons associated, as I understand it, with a lack of capacity within mainland detention facilities, his usual place of detention has been Christmas Island. The other consequence was that he became amenable to deportation from Australia. The particular deportation consequence would see Mr Tenari returned to New Zealand. 4 The cancellation decision having been made by the delegate, it became open to Mr Tenari to make a representation that the cancellation of his visa should be revoked; he did this. A delegate of the Minister decided that his case was not one for revocation. In so doing, that delegate exercised the power found in s 501CA(4). The delegate's decision was one in respect of which the Act, by s 500(1)(ba), conferred jurisdiction on the Administrative Appeals Tribunal (Tribunal) to entertain an application for the review on the merits of the delegate's decision. Mr Tenari made an application for just such a review. The nature of that review is the familiar one described in s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) whereby, in effect, the Tribunal stands in place of the original decision-maker with the task of reviewing afresh, on the merits, the decision. 5 The Tribunal, for that purpose, was constituted by Senior Member Tavoularis. After affording Mr Tenari and the Minister an opportunity to be heard and, on consideration of the material before the Tribunal, that Senior Member decided on 15 June 2018 to affirm the decision of the Minister's delegate. The effect of the Tribunal's decision was that the cancellation of the visa remained in place. 6 Mr Tenari has now applied to this Court for the judicial review of the Tribunal's decision pursuant to s 476A(1)(b) of the Act. That judicial review jurisdiction is the same as the jurisdiction of the High Court under s 75(v) of the Constitution: see s 476A(2). Mr Tenari will only, therefore, be entitled to have the Tribunal's decision quashed and the Tribunal required to re-exercise its review jurisdiction if he can establish jurisdictional error on the part of the Tribunal. 7 Unsurprisingly but appropriately, though the Tribunal is a necessary respondent, it has filed a submitting appearance. The Minister is the only active party respondent. 8 As pleaded, the grounds of Mr Tenari's application are these: 1. The respondent's decision was unreasonable. 2. The respondent took into account irrelevant consideration. 3. The respondent's failed to make relevant consideration into account. 4. The respondent's in making its decision did not comply with the rules of natural justice and denied the applicant procedural fairness. 5. There was insufficient evidence or no evidence to support various finding made by the respondent. 6. The respondent failed to properly exercise their discretion under 501 of the Immigration act. As would be obvious to a reader trained in law, these grounds lack particularity. 9 I had, at an interlocutory stage, afforded Mr Tenari an opportunity to amend his application so as to give particularity to his grounds. He did not take up that opportunity. Even so, it was clear to me today that the interests of justice required his being given an opportunity again to give particularity. So I asked him, in respect of each ground, to give such detail as he wished as to what he regarded as lying behind those grounds. 10 In respect of the first ground - unreasonableness - Mr Tenari made what was an obviously sincere statement to the Court highlighting the impact on him and those close to him of deportation from Australia. In effect, the submission was that the consequence of deportation for him and those close to him was such as to overwhelm and, therefore, make unreasonable, other considerations. It will be necessary to consider further that ground of review. Before doing so the other grounds of review ought to be dealt with. 11 What is, or is not, a relevant consideration for jurisdictional error purposes is a consideration that a decision-maker is, if, as here, acting under statute, a consideration that the statute, either expressly or by necessary implication, obliges the decision-maker to take into account or, as the case may be, not take into account: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at [39] - [40]. 12 Grounds 2 and 3 remain unparticularised. In the absence of particularity, neither ground has meaningful content. There are considerations which, by virtue of the Act, are relevant in respect of the exercise of the power found in s 501(4). Some of those considerations are specified in the subsection itself. Another which is presently material, is any direction given by the Minister pursuant to s 499(1) of the Act. The effect of s 499(2A) is that any direction so given is a relevant consideration both for a delegate of the Minister and the Tribunal, in that delegate's place, in a case such as the present; see s 499(2A) of the Act. It is not necessary, because of the absence of particularity, to consider Grounds 2 and 3 on their merits. I do no more than note that the Tribunal's reasons reveal that the Ministerial Direction, which was, for the reasons given, a relevant consideration, was taken into account. 13 Mr Tenari did not detail the allegation in Ground 4 as to non-compliance with the rules of natural justice or a denial of procedural fairness. Once again, in the absence of that particularity that ground lacks meaningful content. I do no more in respect of it than observe that there is no evidence that would support any case for actual or apprehended bias, and the procedures of the Tribunal, as revealed in the material in the court book, disclose that Mr Tenari was offered and took up an opportunity to be heard. 14 Ground 5 is a ground going to insufficiency or absence of evidence to support the decision. It is best considered in the context of the unreasonableness ground in the circumstances of the present case. 15 Ground 6 refers to s 116 of the Act, but that is not the section under which either the delegate or the Tribunal, in the delegate's place, acted or even purported to act. It is not relevant. 16 I come back, then, to the unreasonableness ground. Recently, in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 (SZVFW), Kiefel CJ observed at [10]: 10. In the joint judgment in Minister for Immigration and Citizenship v Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible foundation. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. In that same case at [82] Nettle and Gordon JJ in the joint judgment stated: 82. Nor is the abuse of statutory power limited to a decision which may be described as unreasonable or to what may be described as an irrational, if not bizarre, decision that is so unreasonable that no reasonable person could have arrived at it. A conclusion of legal unreasonableness may be outcome focused where, for instance, there is no evident and intelligible justification for the decision. As Gageler J explained in Minister for Immigration and Citizenship v Li, review by a court of the reasonableness of a decision made by another repository of power "is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process" but also with "whether the decision falls within the range of possible acceptable outcomes which are defensible in respect of the facts and law". 17 Mr Tenari's challenge really raises the latter of the considerations mentioned by Nettle and Gordon JJ in the passage quoted. In effect, what he put was that, having regard to a particular personal impact both on him and those close to him, the Tribunal's decision went beyond a range of possible acceptable outcomes that were defensible in respect of fact and law. Another way of putting that submissions is that the Tribunal's decision went beyond what is sometimes termed a zone of discretion. As Mr Tenari came to develop his submission, the ground is one which is known to law; the question is whether in this case it is established? 18 In respect of any challenge to an administrative decision, be that decision of an administrative tribunal, a Minister of State or a delegate or some other administrative official, a court exercising jurisdiction under or the same as s 75(v) of the Constitution must be astute not to transgress into the realm of making a decision on the factual merits of a case, for all of the reasons given by Brennan J (as his Honour then was), in Attorney-General (NSW) v Quin (1990) 170 CLR 1. The Tribunal's reasons read, as they must be, as a whole disclose a very close engagement, indeed, with the Minister's Direction, with the submission made by Mr Tenari, including material lodged by him, and with the other material in evidence before the Tribunal. 19 It is desirable to set out, from the Tribunal's reasons, the description offered by the Senior Member, of Mr Tenari's offending history: 6. The Applicant's history of offending began well before he arrived in Australia. When he lived in New Zealand, he was twice sentenced to periodic detention for traffic offences, and twice breached the periodic detention orders. In the same year as he arrived in Australia, he was convicted of burglary and sentenced to a further two months' residential periodic detention. 7. Since arriving in Australia in 1997, the Applicant has committed a considerable number of offences. Broadly, the Applicant's offending falls into three categories: first, domestic violence and threats against his partners and children; second, unlicensed, disqualified and drink-driving; and thirdly dishonesty, breaching court or police orders or directions or assaulting police. 8. The first offence for which the Applicant was convicted in Australia sets the tone for much of his other offending. In May 1999, when he was convicted of common assault. He assaulted his then-wife, hitting the side of her face with a closed fist. He also threatened to cut his then-wife's throat with a steak knife. It appears that the Applicant's then-wife sought an Apprehended Violence Order against him for this offence. 9. The summons material provided by the Respondent as annexures to its Statement of Facts, Issues and Contentions ("SFIC") discloses that the police have been involved in at least 12 instances of domestic violence or breaches of domestic violence orders perpetrated by the Applicant. When the Applicant was cross-examined at the hearing, he accepted as correct the details of many of these reports. 10. Importantly, the Applicant was convicted of two significant breaches of domestic violence orders, in 2014 and 2016. He was sentenced to 18 months' imprisonment for each of these. With respect to the 2014 breach, the Applicant tried to throw a hot cup of coffee at the face of his then-partner, who is the mother of his youngest child, and threw two bricks through a lounge room window before departing the scene on foot. 11. For the 2016 breach, the Applicant and his former partner became involved in an argument in their home. During the argument, the Applicant took it upon himself to obtain a can of petrol and to commence pouring that petrol on the floor of the living room and down towards the hall of the house. While pouring the petrol, the Applicant threatened to burn the house down if his ex-partner did not leave the house and drive him somewhere. At the height of this argument, the Applicant's then-16 year-old son forcibly pulled the Applicant out of the dwelling and man-handled him to the ground. There was a struggle between the Applicant and his son and the Applicant eventually calmed down. The police were called by the former partner during the physical struggle between the Applicant and the son. 12. On the basis of these breaches, the sentencing Magistrate determined that the Domestic Violence Protection Order should be extended by three years until September 2021. 13. Between 1998 and 2016, the significant offences in the Applicant's traffic history can be summarised as follows: (a) 2 counts of unlicensed driving; (b) 2 counts of using an unregistered motor vehicle; (c) 11 counts of disqualified driving; and (d) 8 counts of driving or attempting to use a motor vehicle while under the influence of alcohol. 20 The Tribunal correctly identified at paragraph 14 that: The issue lying at the heart of this case is whether the discretion contained in s 501CA(4) should be exercised such that the cancellation of the applicant's visa is revoked. In turn, the Tribunal focused on the two jurisdictional facts, each grounded in a state of administrative satisfaction, specified in s 501CA(4). 21 The Tribunal was satisfied, and unsurprisingly so, given the length of term of imprisonment imposed, that Mr Tenari did not pass the character test. There was no challenge made to that particular finding. 22 The other matter addressed was whether the Tribunal was satisfied that there was another reason why the mandatory visa cancellation decision should be revoked. This was addressed at considerable length by the Tribunal. In so doing, and as the Act required, the Tribunal addressed, amongst other things, three primary considerations specified in para 13(2) in Part C of Ministerial Direction Number 65. They are: (a) Protection of the Australian Community from criminal or other serious conduct; (b) The best interests of minor children in Australia; (c) Expectations of the Australian community. Ultimately, the Tribunal's conclusion was, at para 99: Primary considerations A and C weigh heavily in favour of non-revocation. Similarly, primary consideration B weighs in favour of non-revocation. I do not consider that any of the other considerations, alone or combined, assist the applicant to any sufficient degree, certainly not to the extent that they would outweigh the primary and other considerations which favour non-revocation. [Capitalisation of considerations that of the Tribunal] 23 The Tribunal expressly addressed not just the consequence, as apprehended, for Mr Tenari of deportation, but also the consequence both for adult and minor children and grandchildren. The Tribunal also discerned from Mr Tenari's offending history and traffic history, both in New Zealand and Australia, patterns of behaviour. Those patterns of behaviour were not just those of a propensity in particular circumstances to violence but also to a disregard for authority. 24 Were I to interfere by way of a quashing of the Tribunal's decision, I am convinced that so doing would amount to a transgression into the merits. It is nothing to the point for me to express any view as to whether or not, faced with the same offending history as well as personal circumstances as were before the Tribunal, I would come to a different conclusion. Indeed, it would be subversive of a principled restraint on judicial review in relation to merits evaluations to express any such view. As I observed at the outset, to make a decision which has the consequence, in practical terms, of sending a middle-aged man back to a country where he has not resided for most of his adult life is, in the individual's sense, hard. But there was an abundance of material before the Tribunal which justified, for the reasons the Tribunal gave, deciding not to revoke the cancellation. 25 Having regard to the description, so recently offered, of the content of the unreasonableness ground of review by the High Court in SZVFW, it would be a perversion of that ground to regard it as made out in the present case. This is just one of those cases where it is necessary to recognise, however one might, as an applicant, feel aggrieved by the outcome, that there is a zone of discretion and that this decision, on the material before the Tribunal, fell within that zone. 26 What follows is that neither the first ground of review pleading unreasonableness nor the fifth pleading an insufficiency of evidence is made out. 27 None of the grounds of review are, therefore, made out. Necessarily, that means that the application must be dismissed. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.