Vivi v Minister for Immigration and Border Protection [2018] FCA 821 | Case summary

Federal Court of Australia|2018-06-04|Before: Burley J

The application for an extension of time be refused.
The Applicant to pay the Respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 INTRODUCTION [1] 2 STATUTORY CONTEXT [13] 3 THE MINISTER'S DECISION [18] 4 CONSIDERATION [25] 5 DISPOSITION [43]

INTRODUCTION 1 The applicant, Mr Vivi, is a citizen of Tonga who arrived in Australia on 20 May 1989 at the age of one. Until his deportation in November 2017 he was for most of the time a resident of Australia and has held various visas, the most recent of which was a Class BB Subclass 155 Resident Return visa, granted on 17 March 2006 (Visa). 2 Mr Vivi has a lengthy history of being convicted for criminal offences, which date back to 2006, when he was 18 years old. He is now 29 years old. His offences have often involved violence occasioning actual bodily harm, although he also has convictions relating to the possession of prohibited drugs and larceny. 3 On 13 September 2010 the Department of Immigration and Citizenship notified Mr Vivi that his Visa may be liable to cancellation under s 501 Migration Act 1958 (Cth) (Act) as a result of criminal convictions entered before that date. It subsequently notified him that a delegate of the Minister of the Department had made a decision not to cancel his visa, but gave him a formal warning that visa cancellation may be reconsidered if he committed further offences or otherwise acted in breach of the character test under the Act. 4 Despite the warning, after 2010 Mr Vivi committed a number of further offences, of a similar nature to those committed prior to that date. 5 On 15 March 2016, Mr Vivi was issued with a notice (Notice) by the Department of Immigration and Border Protection pursuant to s 501(3A) of the Act to advise him that on that day his visa was cancelled (original decision). That section provides that the Minister must cancel a visa if satisfied that the person does not pass the character test. In the present case, the Minister contends that Mr Vivi failed the "character test" because he has a "substantial criminal record" because (by operation of the definition in s 501(7)(c) of the Act) he has been sentenced to a term of imprisonment of 12 months or more. 6 Mr Vivi was, at the time of the Notice, serving a sentence of imprisonment. Accordingly, the terms of s 501CA of the Act applied. The Notice invited Mr Vivi to make representations to the Minister about revoking the decision to cancel his Visa. Mr Vivi then made a request for revocation of the cancellation of the Visa and supplied a number of documents in support of that request. 7 On 12 July 2017, the Honourable Alex Hawke MP, Assistant Minister for Immigration and Border Protection communicated his decision and provided a statement of reasons (Decision) that he was not satisfied that there was a reason why the original decision to revoke the Visa should be revoked. 8 Under the Act, an application for a remedy in respect of the Decision must be filed within 35 days of the decision (s 477A). No application was filed within that time and on 7 or 8 November 2017, Mr Vivi was provided with notification of an intention forcibly to deport him to the Kingdom of Tonga (Tonga). He made an urgent interlocutory application to restrain the Department from deporting him, which was refused; Vivi v Minister for Immigration and Border Protection [2017] FCA 1341. 9 On 14 November 2017, Mr Vivi filed an originating application for review of a migration decision. In it he seeks orders that the Respondent's Decision of 15 March 2016 and 12 July 2017 be quashed. He also seeks an extension of time within which to file the originating application, which was filed some 90 days outside the time permitted under the Act. 10 The grounds upon which Mr Vivi seeks this relief are set out below:

2.1 Statutory scheme 13 Section 501(3A) of the Act provides that the Minister must cancel a visa if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or (ii) paragraph (6)(e) (sexually based offences involving a child); and (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory. 14 Section 501(6)(a) of the Act provides that a person does not pass the character test if "the person has a substantial criminal record (as defined by subsection (7))". 15 Section 501(7)(c) of the Act provides that a person has a "substantial criminal record" if "the person has been sentenced to a term of imprisonment of 12 months or more". 16 Section 501CA(3) and (4) of the Act provide: (3) As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original of decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. 17 Although the Decision was made by the Assistant Minister, by operation of s 496 of the Act, it is deemed that his decision was that of the Minister for the purposes of the legislative scheme. For convenience, in the reasons that follow I refer to the decision maker as "the Minister".

THE MINISTER'S DECISION 18 The Decision records that Mr Vivi has made representations about revocation of the original decision and that the Minister is not satisfied that Mr Vivi passes the character test as defined by s 501 of the Act. It also records that he is not satisfied that there is another reason why the original decision should be revoked. Accordingly, it records that the power in s 501CA(4) of the Act to revoke the original decision is not enlivened and so the Visa remains cancelled. 19 In his statement of reasons the Minister states that he is satisfied that Mr Vivi does not pass the character test. This is because the sentencing remarks of a Magistrate in the Local Court of New South Wales indicated that on 8 June 2010 Mr Vivi was convicted of assault occasioning actual bodily harm (domestic violence) and sentenced to 18 months imprisonment. This finding cannot seriously be disputed as it is supported by the information set out in a National Police Certificate dated 10 January 2017 that formed part of the Court Book. 20 The Minister then addressed the question of whether there is another reason why the original decision should be revoked pursuant to s 501CA(4)(b)(ii) of the Act. In doing so the Minister considered the representations made by Mr Vivi by reference to the following matters. 21 First, having regard to the best interests of minor children, the Minister considered that it was in the best interests of Mr Vivi's children that the visa cancellation be revoked. The Minister notes that Mr Vivi has four children. Two of his children reside with their mother in Queensland. The Minister notes that Mr Vivi has tried to establish contact with them, but their mother has not permitted him to do so. Another son lives in Sydney and the Minister notes Mr Vivi's evidence that he had weekly contact with him until late 2016, and monthly contact since then. The youngest child lives with his mother and Mr Vivi's current partner in Perth. The Minister noted Mr Vivi's statements that he intends to re-establish contact with all of his children and gain employment so he can support them. 22 Secondly, having regard to the strength, nature and duration of ties that Mr Vivi has to Australia, the Minister notes that Mr Vivi resided in Australia for 28 years, having arrived as a one year old child. The Minister further observes that although this length of time may mean the Australian community is more tolerant of his criminal conduct, as he has been offending since the age of 18 and has continued to offend almost every year until the present time, this community tolerance would have diminished. 23 Thirdly, the Minister had regard to the extent of impediments that Mr Vivi would face if removed to Tonga, including maintaining basic living standards. He concluded that English is an official language of Tonga and Mr Vivi is not likely to face excessive language or cultural barriers to establishing himself there. The Minister also took into account Mr Vivi's submission that he has no family or other ties in Tonga and his concerns that he may face poverty as Tonga is a country with widespread poverty. However, the Minister decided that given Mr Vivi's age and good health there is the possibility that he can seek employment which may mitigate any issues of financial hardship or homelessness he might otherwise experience. The Minister did accept that the level of access to financial and housing support generally available in Tonga may be of a lower standard than those available to Mr Vivi in Australia. 24 Fourthly, the Minister considered the need to protect the Australian community, with reference to Mr Vivi's past criminal conduct. The serious nature of the assault for which he was most recently convicted of and sentenced to 18 months imprisonment for, along with his history of offending which has included convictions for intimidation, common assault as well as contravening apprehended domestic violence orders led the Minister to the conclusion that Mr Vivi would be likely to reoffend. This was particularly given his history of offending which has reoccurred despite rehabilitation and anger management course attendance and expressions of remorse and commitment to change his ways, as well as warnings from the Department about the consequences of further offending on Mr Vivi's migration status. Further, as Mr Vivi's offending is also frequently marked with violence, the Minister expressed the view that Mr Vivi would further offend and that offending could cause psychological and/ or physical harm to members of the Australian community.

CONSIDERATION 25 The application was filed 90 days out of time. The court may extend the time for the application to be brought if an application is brought if it is satisfied that it is necessary in the interests of justice to do so; s 477A(2)(b). The relevant factors in considering an extension include; the extent of the delay, whether there has been a reasonable and adequate explanation for the delay, whether there is any prejudice to the respondent and whether the substantive application is sufficiently arguable to support the application for an extension of time; SZRIQ v Federal Magistrates Court of Australia [2013] FCA 1284; (2013) 139 ALD 252 at [47] - [48] per Foster J. 26 Mr Vivi has provided in his affidavit an explanation for the delay. He says the remoteness of Christmas Island and its restricted resources, coupled with the difficulties of establishing a with internet connection and computer access, as well as being moved facilities regularly and without access to legal representation led to practical difficulties in being able to file the required paperwork in the required time period. 27 These matters provide some explanation for the delay, however, in the present circumstances a significant factor for consideration is the substance of the application that is brought. It is accordingly necessary to turn to the grounds advanced by Mr Vivi. It will be noted that with the exception of ground 1, none provide any details as to the basis upon which Mr Vivi contends that the Minister fell into jurisdictional error in reaching his decision. 28 Mr Vivi provided some further detail of his complaint during the course of the hearing. In substance he contended as follows: (a) That he has no family in Tonga other than third and fourth cousins. He is currently living with his third cousins. (b) That he has close family in Australia, including young children whom he wishes to see; (c) That he has changed his life and mended his ways. He is sorry for what he has done in the past. He has found work at a local bread shop. He wants to return to Australia; (d) That all of the sentences that he received in Australia were "mostly parole or probation". He has not done much prison time. The decision was harsh on him because he came to Australia when he was one. 29 It is with these additional matters in mind that I now turn to consider the substance of the grounds of appeal proposed to be advanced. 30 Ground one relies on the outcome of the decision of the High Court in Falzon v Minister for Immigration and Border Protection [2018] HCA 2 ; (2018) 92 ALJR 201 (Falzon) insofar as it challenged the validity of s 501(3A) of the Act. At the time the current application was filed, Falzon had not been determined. However, the outcome of that case is now clear. The validity of s 501(3A) was upheld (see, for example, the decision of the plurality at [45], [47], [48], [63], [64]). Accordingly ground 1 of the proposed appeal must be regarded as having no prospect of success. 31 In the grounds set out in the paragraphs of his affidavit Mr Vivi contends that the Decision was; unreasonable; took into account irrelevant considerations (or failed to take relevant considerations into account); was made on the basis of insufficient or no evidence; involved an error of law, and did not comply with the rules of natural justice or procedural fairness. 32 In order to be legally unreasonable the decision must have resulted in the Minister's power having been exercised in circumstances where a factual precondition for its exercise (being the lawful formation of a state of mind) did not exist; Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200 at [33]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [23] - [24]. The ground of failure to take into account a relevant consideration (or to have taken an irrelevant consideration into account) can only be made out if a decision maker fails to take into account a consideration which he or she is bound to take into account in making that decision: Van Rooyen v Minister for Immigration and Border Protection [2017] FCA 1368 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at [39] (Mason J). To make out a case based on insufficient evidence there must have been "not a skerrick" of evidence upon which the decision maker could have relied to reach his or her conclusion; SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 (Mansfield, Selway, Bennett JJ). I consider these grounds below. 33 Given that Mr Vivi is self-represented I am prepared to assume that at least some of the factual matters that he advanced at the hearing, listed at [28] (a) - (d) above, inform and provide the basis for the grounds that he has advanced. 34 The matters raised in (a) and (b) might broadly be said to concern consideration of the best interests of Mr Vivi's minor children, the ties that Mr Vivi has to Australia and the impediments that Mr Vivi faced when he returned to Tonga. The matter raised in (c) concerns his present situation in Tonga and the change in his attitude and conduct since he has lived there. It is encouraging to note that he now has a job and that he intends to change his ways, but those factors cannot be regarded as relevant to the present challenge to the Decision, or the grounds advanced. The matter raised in (d) concerns the correct characterisation of Mr Vivi's criminal conduct. 35 It is apparent from a review of the Decision that the Minister addressed each of the factors in (a), (b) and (d) in a manner that reflects none of the errors for which Mr Vivi contends. 36 In the context of his consideration of the best interests of minor children, the Minister notes that the revocation of the Visa would not be in the best interests of Mr Vivi's children, two of whom he has a direct, personal relationship with and two of whom he has been seeking to have such contract. The evidence upon which the Minister relied in this respect was contained in Mr Vivi's statement which formed part of the materials that he submitted in support of his application to the Minister. 37 The question of the strength, nature and duration of Mr Vivi's ties to Australia was considered in [24] - [32] of the Decision, which I have summarised in [22] above. The Minister accepted, based on Mr Vivi's evidence, that he has family and social ties to Australia, that he has been in a de facto relationship for three years and that his sister, uncles and aunts, nieces and cousins live in Australia, and that the effect of not cancelling the Visa would cause those persons emotional hardship. 38 The question of the impediments that Mr Vivi would face upon his removal from Australia was considered by the Minister in [33] - [40] (see [23] above). The Minister accepted that Mr Vivi will experience difficulty establishing himself in Tonga, and found that he would experience emotional hardship if he is removed. 39 Having taken these factors into account, the Minister weighed the other factors summarised in section 3 above before reaching his conclusion at [79] that on balance the risk of harm to the Australian community outweighs the best interests of his children as a primary consideration (and the other considerations to which he had regard). In this regard a significant aspect of the Minister's reasoning concerned a review and characterisation of Mr Vivi's criminal conduct. In the Decision he quotes aspects of the sentencing remarks made by decision makers in 2008 and 2010 and notes that in the period from February 2006 until August 2016 Mr Vivi had been convicted of 6 offences involving actual or apprehended violence. In considering the risk to the Australian community, the Minister further refers to Mr Vivi's statements of remorse (made after some of his criminal offences, but before others), the fact that he had continued to offend despite receiving a warning in 2010 that a consequence of doing so may affect his migration status, and Mr Vivi's submissions that he is contrite and desires to change his behaviour and care for his children. 40 Having regard to the entirety of the reasons set out in the Decision, and the factors raised by Mr Vivi, I am unable to conclude there is any substance to the grounds that the decision was legally unreasonable, that the minister took into account an irrelevant consideration or that there was insufficient evidence upon which he could reach any of the views to which I have referred above. The findings of fact are based in large part on the materials advanced by Mr Vivi or the official records of Mr Vivi's criminal record. Despite Mr Vivi's oral submissions to the contrary, it is plain that he has been convicted of multiple offences over a lengthy period of time. The conclusions expressed by the Minister involve the exercise of a balancing exercise that falls within the scope of the matters that the Minister may consider pursuant to s 501CA(4) of the Act. 41 Furthermore, nothing advanced by Mr Vivi indicates that there has been an error of law. Insofar as the ground of failure to accord procedural fairness or natural justice is concerned, it is apparent that the Department complied with the requirements of s 501CA(3) by giving Mr Vivi written notice that set out the original decision and particulars of the relevant information within the requirements of s 501CA(2). 42 In conclusion, in my view the matters raised by Mr Vivi in his affidavit do provide a basis upon which one might grant an extension of time for the filing of his application. However, the grounds advanced, when understood in the light of the submissions made by Mr Vivi and the content of the Decision as a whole persuade me that there are insufficient prospects of the application succeeding to warrant a grant of leave.

DISPOSITION 43 In the light of my findings, the application for an extension of time within which to file the originating application for review of the decision of the Minister should be refused with costs. I certify that the preceding forty- three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.

Vivi v Minister for Immigration and Border Protection

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