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[2018] FCA 342
Federal Court of Australia
2018-03-19
Bromwich J
Original judgment source is linked above.
The application for review 15 The applicant's grounds of review were stated as follows: 1. I was granted Parole and states I am not a risk of re-offending and threat to the Australian community. 2. I have lived in Australia for 27 years. My entire family resides in Australia. 3. I have done numerous courses in my rehabilitation. 16 The applicant did not rely on written submissions, save for a letter dated 26 April 2017 that was filed with the Court the following day. The applicant's letter advanced reasons in support of the "possible revocation" of his visa cancellation under s 501CA of the Migration Act. The applicant indicated that he was a "changed man" and wished to make up for his actions and behaviour. He expressed his desire to provide for his wife and children, and his fear that his wife and children would be the ones to pay for his actions. He said that there is nothing for him, or his family, in Vietnam. He said that he has a better understanding of mental health and the effects of trauma, and why he has turned to drugs to help cope with his inner demons. He said he has not touched drugs for more than fifteen years, and has used his time in prison and detention centres to better himself, working towards a number of qualifications in horticulture, agriculture, tourism, hospitality, automotive repair, retail, Occupational Health and Safety, food handling and anger management. The letter also annexed a number of statements of attainment and transcripts of academic record issued by the TAFE NSW in respect of the applicant. 17 At the hearing of the matter, the applicant made a number of similar submissions with the assistance of an interpreter. The applicant said that he had tried to change himself during his time in prison and had learnt a lot. He said that, while in prison he had not committed any other crime, and, when released, would contribute more to the Australian community. He said that he had abided by the law while in detention centres. He said his wife and children need him very much. 18 As may be seen, the applicant has not identified any jurisdictional error in the decision of the Parliamentary Secretary and his case does not rise higher than inviting the Court to consider the merits of revoking the cancellation of his visa. It is well established that this is not a permissible part of the Court's limited role in judicial review, and the Court is not to substitute a decision it considers preferable for that of the proper decision-maker: see, eg., Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 per Mason J at 40. 19 For completeness, however, the following observations may be made about the applicant's individual grounds. 20 By ground 1, the applicant states that he has been "granted parole" and is not a risk of re-offending or a threat to the Australian community. This ground must fail. It does not more than invite consideration of the merits of the decision. It may also be observed that the applicant's representations to the Parliamentary Secretary did not include any submission raising the issue of parole as a matter to be considered. In those circumstances it is to be seriously doubted that the issue of parole was of any great significance to the Parliamentary Secretary's decision warranting explicit reference, especially given the different legislative and factual context in which any parole decision would have been made. 21 By ground 2, the applicant makes the assertion that he has lived in Australia for 27 years and that his entire family resides in Australia. This ground must also fail. It also does no more than invite consideration of the merits of the decision. Moreover, there can be no suggestion that the Parliamentary Secretary failed to take these matters into account, given his detailed consideration of the applicant's ties to Australia and the express statement at [54] that the he had "considered [the applicant's] lengthy residence in Australia for some 26 years and the effect of non-revocation upon his immediate family". 22 By ground 3, the applicant makes the assertion that he has done numerous courses in his rehabilitation. However, there can be no suggestion that these matters were not taken into account, given that the Parliamentary Secretary acknowledged the applicant's participation of those courses at [89] of his reasons. It follows that this ground must also fail. 23 For these reasons, the applicant has not identified any jurisdictional error in the decision of the Parliamentary Secretary and his grounds of review must fail.
Conclusion 24 The application must be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.
Tran
Minister for Immigration and Border Protection
BROMWICH J: 1 This is an application for judicial review of a decision made by the Parliamentary Secretary to the Minister for Immigration and Border Protection not to revoke the cancellation of the applicant's visa under s 501CA(4) of the Migration Act 1958 (Cth). 2 The applicant, Mr Ba Giang Tran, is a citizen of Vietnam. He arrived in Australia on 7 June 1990 at the age of 15 as the holder of a Funded Special Humanitarian (subclass K4B12) visa. Since his arrival, he has departed Australia only once, returning to Vietnam in 1994 to visit his parents for a period of two months. On 15 November 1994, he was granted a Class BB Subclass 155 Five Year Resident Return visa. 3 On 26 April 2018, the applicant's visa was cancelled on mandatory character grounds by a delegate of the Minister acting pursuant to s 501(3A) of the Migration Act. The applicant was taken not to pass the character test by reason of his substantial criminal record, as defined in ss 501(6)(a) and (7). 4 The applicant was given an opportunity to seek revocation of the cancellation decision under s 501CA(4) of the Migration Act. He did so on 12 May 2016. As part of his representations to the Minister, he accepted that he did not pass the character test, but advanced other reasons in support of revocation. On 17 January 2017, the Parliamentary Secretary, using the unofficial title "Assistant Minister", decided not to revoke the delegate's decision to cancel the applicant's visa. 5 By application filed in the Federal Circuit Court of Australia on 3 February 2017, the applicant sought judicial review of the Parliamentary Secretary's decision. On 17 February 2017, the proceedings were transferred to this Court. 6 The applicant is not legally trained and does not have legal representation. 7 At the hearing of the application, counsel for the Minister raised as an issue the possible consequences of an ongoing challenge in the High Court as to the constitutional validity s 501(3A) of the Migration Act. Given that s 501(3A) formed the legislative basis for the cancellation of the applicant's visa, it was suggested by the Minister that this Court should proceed to deal with the applicant's grounds and otherwise reserve its decision pending the High Court's judgment. This course of action was explained to the applicant, who asked that the Court defer its decision accordingly. I acceded to that request. 8 On 7 February 2018, the High Court handed down the decision in question: see Falzon v Minister for Immigration and Border Protection [2018] HCA 2. In light of that decision, there is no question outstanding as to the validity of the power exercised to cancel the applicant's visa.
(1986) 162 CLR 24