FEDERAL COURT OF AUSTRALIA Epenisa v Minister for Immigration and Citizenship [2007] FCAFC 133 MIGRATION – appeal from decision of single judge of Federal Court – decision by Migration Review Tribunal to cancel visa under s 501 – whether discretion to cancel visa properly exercised – whether contended error of fact led to failure of Migration Review Tribunal to properly consider best interests of children Migration Act 1958 (Cth) Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 FEOFAAKI VAIOLA EPENISA v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ADMINISTRATIVE APPEALS TRIBUNAL SAD 35 OF 2007 BRANSON, FINN & MANSFIELD JJ 17 AUGUST 2007 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SAD 35 OF 2007 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: FEOFAAKI VAIOLA EPENISA Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGES: BRANSON, FINN & MANSFIELD JJ DATE OF ORDER: 17 AUGUST 2007 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SAD 35 OF 2007 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: FEOFAAKI VAIOLA EPENISA Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGES: BRANSON, FINN & MANSFIELD JJ DATE: 17 AUGUST 2007 PLACE: ADELAIDE REASONS FOR JUDGMENT THE COURT 1 The appellant was born in New Zealand on 27 October 1980 and is a citizen of New Zealand. He moved to Australia with his family in November 1996, when he was aged 16, as the holder of a special category visa (the visa). He has been in Australia since. The visa was cancelled under s 501 of the Migration Act 1958 (Cth) (the Act) in circumstances which give rise to this appeal. 2 On 16 May 2003, the appellant was convicted in the Melbourne County Court of intentionally causing serious injury and robbery. He was sentenced to concurrent sentences of three years imprisonment and one year and six months imprisonment respectively. He was released on parole on 24 March 2005 after serving two years and three months of his sentence. In fact, he had by that time a significant criminal record, extending back to 1998 when he was still a juvenile. It is not necessary to set out that record. 3 Following his release on parole, the appellant lived with his family for three months or so. He was taken into immigration detention on 24 June 2005, as a delegate of the first respondent had decided to cancel the visa on 14 June 2005. The material before the Court is a little unclear, but it appears that the appellant was not formally notified that the visa had been cancelled until 23 January 2006. 4 Section 501 requires a visa cancellation decision to be taken in two steps. The first is that the decision-maker must have been satisfied that the applicant does not pass the character test specified in s 501(6) of the Act. In this case the decision-maker was satisfied that the appellant does not pass the character test as he had a substantial the criminal record as defined by s 501(7) (s 501(6)(a)). The appellant accepts that he did not pass the character test. The second step involves the decision-maker exercising a discretion whether to cancel the appellant's visa. 5 The appellant applied to the Administrative Appeals Tribunal for review of the cancellation decision. The Tribunal affirmed that decision on 23 March 2006. 6 The appellant applied to this Court for judicial review of the Tribunal decision. On 9 February 2007 Besanko J dismissed that application. There were several matters argued at first instance, all decided adversely to the appellant. Only one issue is maintained on this appeal. It concerns one feature of the way in which the discretion under s 501 was addressed. To consider that issue, it is necessary to refer to Migration Direction No 21, issued by the first respondent under s 499 of the Act. 7 Migration Direction No 21 relates to the manner of making decisions about visa refusal and cancellation under s 501 of the Act. Relevantly, cl 2.3 identifies three primary considerations for the exercise of the discretion whether to refuse or cancel a visa under s 501, once the character test is found not to have been satisfied. They are: · the protection of the Australian community, and members of the community; · the expectations of the Australian community; and · "in all cases involving parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children". Each of those matters is then the subject of more detailed direction. That concerning the best interests of the child is further explained in cl 2.13 to cl 2.16. Clause 2.13 specifies that the consideration only applies if the child or children would be less than 18 years of age at the time when the decision is intended to come into effect. Clause 2.15 indicates that a child's best interest, in general terms, will be served if the child remains with its parents although other considerations may point to the child's best interests being served by separation from the non-citizen. Clause 2.16 says that, when considering the best interests of the child, decision-makers should have regard to ten factors, including the nature of the relationship, the duration of the relationship, the age of the child, and the likely affect that any separation from the non-citizen would have on the child. It was accepted by the first respondent that, for the purposes of this appeal, the decision-maker was required to have regard to the best interests of any relevant child or children who are siblings of the appellant: see e.g. Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. 8 On the issue which is relevant to this appeal, namely the exercise of the discretion to cancel the visa under s 501, it was argued at first instance and on appeal that the Tribunal did not give proper and genuine consideration to the best interests of the juvenile siblings of the appellant. He has three brothers who, at the time of the decision to cancel the visa, were aged 9, 10 and 12 as well as a sister who is of adult years. It was contended that the Tribunal had overlooked unchallenged evidence that the appellant had stayed with his family, including his younger brothers, from the date of his release on parole on 25 March 2005 to the time he was taken into immigration detention in late June 2005 during which time he had further developed his relationship with his younger brothers. The contention was that the Tribunal had made an error of fact in failing to appreciate that the appellant lived with his family for that period, and so had erred in law in failing to address properly the effect of the proposed cancellation of the visa upon the three younger brothers. 9 The above contention was based upon observations of the Tribunal to the effect that the appellant last saw his parents when he was released from prison in March 2005. These observations appear in the following passage from the Tribunal's reasons for decision: He last saw his parents when he was released from prison in March 2005. His father says that at that time he discussed with the applicant his direction in life and from that time he believed his son had made good progress and matured as a person. Mr Epenisa senior thinks that if his son were deported, the effect on the family would be severe. His other children need his support and would be confused and extremely upset if he were returned to New Zealand. The applicant's father says that if he is released, he and his wife will do everything they can to ensure that their son remains out of trouble and seeks honest employment. They will endeavour to take him to church. The likelihood of favourable parental influence should not be overestimated, however. His parents have not seen him since his release in early 2005 and have not visited him even once in jail or in immigration detention. While they no doubt have the best of intentions, they were not able to persuade him to stay out of trouble while he was accumulating his criminal record, and living with them the whole time. There is no reason to believe that they would be any more successful now. (emphasis added) 10 The Tribunal concluded that the relationship between the appellant and his three brothers was not a close one and that if the appellant were sent back to New Zealand they would be able to maintain the same close contact with him as they had had in past years. The Tribunal said that the best interests of the appellant's younger brothers did not substantially weigh against his visa cancellation, although it accepted that his parents and siblings would suffer some emotional hardship if he were moved back to New Zealand, "but the evidence shows that they have … done little to maintain contact with him in recent years, even when they were readily able to do so". 11 That conclusion, it was argued, indicated a failure on the part of the Tribunal to take into account the three month stay with his family in 2005, and led the Tribunal into the error of not considering the best interests of his juvenile siblings as it was required to do. 12 The primary judge was not persuaded that the Tribunal had made an erroneous finding of fact that the appellant's parents had not seen the appellant since his release on parole in early 2005. His Honour concluded that even if such a finding was made in error, it was an error of fact rather than a jurisdictional error because the Tribunal clearly addressed the best interests of the juvenile siblings of the appellant as it was required to do. 13 In our judgment, the appellant's contentions must fail. 14 We do not accept that the Tribunal made the factual error of concluding that the appellant had not lived with his family in the three month period between his release on parole on 23 March 2005 and his being taken into immigration detention. While the two sentences that we have emphasised in the passage quoted above could convey the meaning that the appellant last saw his parents at the time of his release from prison in March 2005, we do not think that that is their proper reading. The Tribunal's comments about the appellant's parents not having seen the appellant since his release in 2005 are equally capable of being understood as conveying that his parents have not seen him since the end of the three month period during which he lived with his family after his release in 2005. The reference to his father having at that time discussed with the appellant his future direction in life suggests that the Tribunal appreciated that the family was then living together. That understanding of the Tribunal's observations is consistent with what the Tribunal was told, both by the appellant and by his father, only seven days before its decision was given. It also reflects the appellant's style of communicating on that topic: in his evidence, he said that he stayed with his parents after his release on parole, but last saw them when he got out of jail. 15 The second reason why the appeal must fail is that cl 2.3(c) was not engaged in any event. The Tribunal positively found that the relationship between the appellant and his three brothers was not a close one. It said: In his statement of facts and contentions and in counsel's opening remarks, the applicant conceded that there was no child whose interests needed to be considered under this heading. In his closing submissions, however, counsel adopted the amended approach of saying that the best interests of the applicant's three brothers aged 12, 10 and nine, would be served by allowing the applicant to remain in Australia. His father had given evidence that there was a close relationship between them and the applicant, and that they would suffer distress if his visa were cancelled. The family would not necessarily be able to visit him regularly in New Zealand, as money would be a major consideration. In any event, the relationship could not possibly be as close as it would be if he were in Australia. As against that, for much of the children's recent lives the applicant has been in prison, in immigration detention or in juvenile institutions. They have not visited him at all in jail or in immigration detention and during those periods contact has been limited to "saying hello" in the course of telephone conversations every two weeks on average. The fact that the applicant could not recall the ages of any of his brothers, even approximately, also suggests that the relationship is not a close one. If he were living in New Zealand he would still be able to maintain the kind of telephone contact with his brothers that he has had in recent years. Counsel for the appellant did not advance any cogent argument that that finding of fact, or the bases upon which it was made, was incorrect. Migration Direction No 21 cl 2.3(c) was activated only if there were a close relationship between the appellant and his three brothers. No such relationship was found to exist. No jurisdictional error has been shown to affect that finding. 16 Even if we were of the view that Migration Direction No 21 cl 2.3(c) was required to be addressed by the Tribunal, in our view, the Tribunal addressed it. Clause 2.16 identifies ten factors to which the Tribunal is required to have regard in deciding on the best interests of the children. The Tribunal's reasons in the passage quoted in the preceding paragraph indicate that it had regard to each of them. 17 For the above reasons the decision of the learned primary judge was correct. The appeal will be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Finn & Mansfield. Associate: Dated: 17 August 2007 Counsel for the Appellant: Mr PC Charman Solicitor for the Appellant: Westside Community Lawyers Counsel for the Respondents: Dr CD Bleby Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 3 August 2007 Date of Judgment: 17 August 2007