Vaofusi v Minister for Immigration and Border Protection

1. The originating application be dismissed.
2. The applicant pay the first respondent's costs as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 The applicant, Mr John Vaofusi, is a 28-year-old citizen of New Zealand. He came to Australia with his parents and five siblings in 2003, when he was 13 years of age. His visa to remain in Australia was the subject of mandatory cancellation on character grounds arising from his imprisonment for a series of criminal offences. That mandatory cancellation decision was made by a delegate of the first respondent, the Minister for Immigration and Border Protection, now the Minister for Home Affairs. Mr Vaofusi applied to have the mandatory cancellation decision revoked on grounds other than character, referring to his asserted prospects of successful rehabilitation and not reoffending, and the accepted adverse impact of his removal from Australia on his three young daughters. This application was refused by another delegate of the Minister. An application for merits review of that non-revocation decision by the second respondent, the Administrative Appeals Tribunal, was also unsuccessful. 2 The Tribunal's decision was made on 7 December 2017. On 21 December 2017, Mr Vaofusi signed an originating application for judicial review of the Tribunal's decision. That application was filed on 8 January 2018. A scheduled hearing of that application in September 2018 was vacated after communications with his then pro bono counsel, who subsequently withdrew. Mr Vaofusi was not legally represented after that time. A rescheduled hearing took place on 28 November 2018. 3 Mr Vaofusi's originating application relied upon one overt ground, which relied upon a High Court challenge to the validity of the mandatory visa cancellation provisions being successful. That challenge did not succeed: see Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 351 ALR 61. Accordingly, that ground of review does not need to be considered further. The originating application also referred to grounds set out in an accompanying affidavit of Mr Vaofusi. That affidavit included the following grounds: (1) taking into account irrelevant considerations - particularised and submissions made orally as detailed below; (2) failure to take into account relevant considerations - particularised and submissions made orally as detailed below; (3) failure to comply with the rules of natural justice or procedural fairness - neither particularised nor submissions made orally; (4) error of law - neither particularised nor submissions made orally; (5) failure to properly exercise the discretion under s 501CA, and more specifically s 501CA(4), of the Migration Act 1958 (Cth) - neither particularised nor submissions made orally; (6) failure to properly apply s 501CA, and more specifically s 501CA(4), of the Migration Act - particularised and submissions made orally as detailed below, by reference to the terms of [9.2(3)] of Direction No. 65, made by the Minister under s 499 of the Migration Act - as noted below, that has been taken to be a reference to [13.2(3)] of Direction 65. 4 Taking those grounds of review as they appear, the Minister submitted in writing the following (being part of submissions that were provided to both Mr Vaofusi and to his former counsel; footnotes embedded in the text in square brackets): The applicant's … grounds [in his affidavit] are un-particularised assertions of jurisdictional error, which are vague and without substance. The nature of the legal error committed by the Tribunal is not identified. The failure to particularise a ground of review is a sufficient basis for it to be dismissed [: WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]; WZATH v Minister for Immigration [2014] FCA 969 at [60]; BYM16 v Minister for Immigration [2018] FCA 326 at [12]-[13]; CNN15 v Minister for Immigration [2017] FCA 579 at [20]-[22]]. As Justice Beach stated in AIR15 v Minister for Immigration and Border Protection [2016] FCA 1425 at [19]: It is not incumbent on the Court to independently consider for itself whether such generic grounds might be capable of being particularised so as to identify a specific error made by the primary judge or a jurisdictional error made by the Tribunal. The applicant was extended a full opportunity to give evidence to the Tribunal, and his counsel made both written and oral submissions in presenting the applicant's case. The hearing extended over two days, and several witnesses were called on behalf of the applicant. At no time was any issue raised by the applicant's counsel as to the applicant having been denied procedural fairness. In its Decision Record the Tribunal summarised the factual context accurately, had regard to the provisions of Direction 65, applied the relevant law correctly, and having weighed the factors for and against cancellation reached a conclusion that was open to it on the materials. 5 Each of the above submissions must be accepted, except insofar as the grounds listed above were further developed at the hearing on 28 November 2018. At that hearing, Mr Vaofusi was not legally represented. However, he made oral submissions, assisted by typewritten notes, which were mostly directed to the decision of the delegate not to revoke the cancellation decision, rather than to the merits review decision of the Tribunal that is the sole remaining decision that can be challenged in this proceeding. A copy of those notes, which were given by Mr Vaofusi to the Minister's counsel, were provided to the Court. 6 The Minister was represented by counsel, who assisted the Court by treating submissions made by Mr Vaofusi about the delegate's non-revocation decision and reasons as though they had been made about the Tribunal's decision and corresponding reasons. On this beneficial approach, Mr Vaofusi may be seen to have advanced three intelligible grounds of review, the first two of which relate to the same topic, cast as follows so as to raise a question of jurisdictional error: (1) taking into account irrelevant considerations in determining whether Mr Vaofusi was an ongoing risk to the Australian community, which may be treated as particularising and making submissions in relation to the ground listed at [3(1)] above; (2) failing to take into account relevant considerations in determining whether Mr Vaofusi was an ongoing risk to the Australian community, which may be treated as particularising and making submissions in relation to the ground listed at [3(2)] above; (3) failure to comply with the requirement contained in [13.2(3)] of Direction 65 concerning the best interests of minor children in Australia affected by the decision by failing, in a case involving two or more relevant children, to give individual consideration to the best interests of each child to the extent that their interests may differ, which may be treated as particularising and making submissions going to the ground listed at [3(6)] above. 7 The grounds listed at [3(3)], [3(4)] and [3(5)] above were not particularised or the subject of any submissions. They do not raise any real ground of review, and are therefore to be disregarded. For completeness, none of those purported grounds is of any apparent substance in any event because there was, on the part of the Tribunal, no discernible failure to comply with the rules of natural justice or procedural fairness, no other apparent error of law (even if that could constitute a jurisdictional error), and no other failure to properly exercise the discretion under s 501CA, and, more specifically, under s 501CA(4) of the Migration Act. I therefore turn to the grounds raised by Mr Vaofusi at the hearing.