FEDERAL COURT OF AUSTRALIA Martin v Minister for Immigration and Border Protection [2017] FCAFC 118 Appeal from: Martin v Minister for Immigration and Border Protection [2017] FCA 1 File number: NSD 139 of 2017 Judges: REEVES, ROBERTSON AND RANGIAH JJ Date of judgment: 8 August 2017 Catchwords: ADMINISTRATIVE LAW – judicial review under s 39B of the Judiciary Act 1903 (Cth) of the Minister's decision not to revoke, pursuant to s 501CA(4) of the Migration Act 1958 (Cth), cancellation of the appellant's visa MIGRATION – appeal – orders of primary judge dismissing an application for judicial review under s 39B of the Judiciary Act 1903 (Cth) of the Minister's decision not to revoke, pursuant to s 501CA(4) of the Migration Act 1958 (Cth), cancellation of the appellant's visa – whether the primary judge erred in finding no jurisdictional error on the part of the Minister – application to raise new grounds of appeal where the Minister referred to remaining in Australia as a privilege that Australia confers on non-citizens in the expectation they are law abiding and stated he was mindful of the "principle" that persons who commit serious crimes "should expect to forfeit the privilege of remaining in Australia" – whether the appellant should be granted leave to rely on grounds not raised before the primary judge – grounds sought to be raised in reliance on Tesic v Minister for Immigration and Border Protection [2016] FCA 1465 where appeal from that judgment allowed in Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93 Legislation: Migration Act 1958 (Cth) ss 501, 501(3A), 501CA(4) Cases cited: Tesic v the Minister for Immigration and Border Protection [2016] FCA 1465 Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93 Plaintiff M64/2015 v Minister for Immigration & Border Protection [2015] HCA 50; 258 CLR 173 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 Date of hearing: 14 June and 8 August 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 26 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: Mr DA Hughes Solicitor for the Respondent: Mills Oakley ORDERS NSD 139 of 2017 BETWEEN: SIMON ISRAEL MARTIN Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent JUDGES: REEVES, ROBERTSON AND RANGIAH JJ DATE OF ORDER: 8 August 2017 THE COURT ORDERS THAT: 1. The appellant is granted leave to file his amended notice of appeal dated 8 June 2017. 2. The appellant is granted leave to further amend his notice of appeal to add ground 7 in the form of his amended notice of appeal dated 8 June 2017. 3. The appellant is refused leave to rely on grounds of appeal 1 to 6 inclusive in his amended notice of appeal dated 8 June 2017. 4. Any question arising from ground of appeal 7 of his amended notice of appeal dated 8 June 2017 is stood over until two weeks after the determination of Falzon v Minister for Immigration and Border Protection, No S31 of 2017, by the High Court of Australia. 5. Costs are reserved. 6. The parties have liberty to apply on 24 hours notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 On 3 January 2017, a judge of this Court (the primary judge) made orders dismissing the appellant's application for judicial review of a decision of the Minister dated 21 June 2016: Martin v Minister for Immigration and Border Protection [2017] FCA 1. The Minister's decision under s 501CA(4) of the Migration Act 1958 (Cth) was not to revoke the original decision of 30 January 2015 to cancel Mr Martin's Class TY, Subclass 444 Special Category (Temporary) visa, made by a delegate of the Minister under s 501(3A). 2 Mr Martin is a national of New Zealand who has lived in Australia since September 1995, with short periods outside Australia since that time. His date of birth is 5 September 1974. 3 On 7 April 2014, Mr Martin was convicted and sentenced as follows: • Contravene Prohibition/Restriction in Apprehended Violence Order (Domestic) – Imprisonment 16 months • Assault Occasioning Actual Bodily Harm – Imprisonment 16 months • Common Assault – Imprisonment 12 months. 4 In the representations or documents submitted by or on his behalf to the Minister, Mr Martin articulated reasons why the original cancellation decision should be revoked. Those reasons included: • he has a close parental relationship with two minor children: his seven-year-old daughter and his 17-year-old step-daughter, whom he has brought up from the age of four, • he has maintained contact with his daughter and step daughter while separated from them by imprisonment and detention, • the children, in particular his seven-year-old daughter, was suffering adverse effects of separation from him and the children's mother considered it important that he returns to live with them and continues to be a father to them, • he also has some parental role in relation to the two minor children of his deceased sister, who live in the care of their elder sister, • he has ties to the Australian community by virtue of having in Australia not only his partner and minor children, but also an adult stepdaughter, two sisters and a large extended family, • he also has ties by reason of a history of steady employment in Australia and community involvement. 5 The Minister noted that Mr Martin did not dispute the information in the National Police Certificate dated 11 July 2014 or the sentencing remarks on 7 April 2014 regarding his criminal convictions and sentences. 6 In considering whether he was satisfied that there was "another reason" why the original cancellation decision should be revoked, the Minister stated, at [48] of his statement of reasons, that he gave primary consideration to the best interests of Mr Martin's biological child and stepdaughter, both of whom are minors, and to those of his niece and nephew. The Minister found that their best interests would be best served by the revocation of the mandatory visa cancellation decision. In addition, the Minister considered, at [49], the length of time Mr Martin had made a positive contribution to the Australian community and the consequences of his decision for Mr Martin's partner and other family members. 7 On the other hand, the Minister gave significant weight to the very serious nature of the crimes committed by Mr Martin, which had included multiple instances of domestic violence and breaches of judicial orders specifically intended to avert such violence. The Minister found that the Australian community could be exposed to significant harm should Mr Martin reoffend in a similar fashion. He said he could not rule out the possibility of further offending by Mr Martin. 8 The Minister said, at [52], he was cognisant that where great harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for him to revoke the decision to cancel a visa, even applying a higher tolerance of criminal conduct by Mr Martin than he otherwise would because Mr Martin had lived in Australia for nearly all of his adult life. 9 The Minister concluded that Mr Martin represented an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed the best interests of Mr Martin's biological child and other minor family members, as a primary consideration, and any other considerations the Minister had earlier described. 10 Mr Martin has been detained since 23 May 2015, when he was released from criminal custody. He is currently in the Villawood Immigration Detention Centre. 11 There were two grounds of the application before the primary judge. The first was that the respondent Minister erred in the exercise of his jurisdiction in making the decision on 21 June 2016 because the decision was legally unreasonable. In the alternative to that ground, it was claimed that the respondent Minister erred in the exercise of his jurisdiction in making the decision because he failed to take into account a relevant consideration and/or critical evidence. 12 The proposed amended notice of appeal dated 8 June 2017 raises neither of these grounds. Instead it seeks to raise new grounds relying principally on the decision at first instance in Tesic v Minister for Immigration and Border Protection [2016] FCA 1465. That proposed amended notice of appeal dated 8 June 2017 also seeks to add a further ground, ground 7, as set out below. 13 The appellant's proposed notice of appeal is in the following terms: 1. The respondent erred in the exercise of his jurisdiction in making the decision because he took into account irrelevant considerations. 2. The respondent failed to properly apply s 501CA(4) of the Migration Act 1958 (Cth). 3. The respondent failed to properly exercise his discretion under s 501CA and s 501CA(4) of the Migration Act 1958 (Cth). 4. The respondent's decision involved an error of law. Particulars (a) Under Australian Law a visa holder's status is not a "privilege" the respondent's statements regarding "privilege" as a principle of law is legally misleading. (b) The respondent "took into consideration remaining in Australia is a "privilege" that Australia confers on non-citizens" shows he took this irrelevant consideration seriously in his decision making process. (c) The respondent approached his decision referring to the "privilege" of remaining in Australia as a principle of law instead of a general policy statement showing that the decision making process was distorted. (d) The fact the respondent "took into consideration remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are law abiding" shows he also took this irrelevant consideration seriously in his decision making. (e) The respondent's "Principle that persons who commit serious crimes should expect to forfeit the privilege of remaining Australia" is again an irrelevant consideration the respondent attributed importance to. 5. The Minister took an irrelevant consideration into account in the exercise of his discretion pursuant to s 501(2) (sic) of the Migration Act. Particulars (a) That the entitlement of remaining in Australia is a "privilege" that "Australia confers on non-citizens in the expectation that they are law abiding". (b) The existence of a "principle" that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia. 6. The Minister erred in his interpretation of the law in a way that affected his exercise of discretion pursuant to s 501(2) (sic) of the Migration Act. Particulars (a) Error in construing the entitlement of remaining in Australia as a "privilege". (b) Error in construing the existence of the "principle" that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia. 7. The decision of the respondent was invalid because s 501(3A) of the Migration Act 1958 (Cth), on which it depended, was itself invalid as purporting to confer judicial power on the respondent Minister, contrary to Ch III of the Constitution. 14 The appellant needs leave to raise these grounds as they were not raised before the primary judge: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48]. 15 Grounds 1-6 as sought to be raised centre upon claims that the respondent Minister made a jurisdictional error by taking into consideration that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are law abiding (referable to [32] of the Minister's statement of reasons) and by stating that he was "also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia" (referable to [50] of the Minister's statement of reasons). These proposed grounds rely on the decision at first instance in Tesic v Minister for Immigration and Border Protection. 16 An appeal from the judgment in Tesic was allowed on 7 June 2017. The reasons for judgment of the Full Court have the citation Minister for Immigration and Border Protection v Tesic [2017] FCAFC 93. 17 The Full Court in Tesic held, at [31], that properly read in context, the references to "privilege" in [31] and [55] of the Minister's statement of reasons in that case were not to be construed as suggesting that the Minister was referring to legal principles but to considerations of government policy. Ministerial Direction No 65 provided the relevant context. That Court did not read the Minister's statement of reasons as meaning that a non-citizen had no rights (but only privileges). That Court therefore did not accept the factual basis for the submission that the decision-making process was distorted. Further and consequentially, that Court did not accept that there was a misunderstanding of the "privilege" as a principle of law which coloured the Minister's reasoning process. 18 That Court, at [32], did not accept the submission of the respondent in that case that the Minister used the word "principle" to mean a rule of law that mandated or created a presumption that a person who committed serious crimes would not have his or her cancellation decision revoked, so as to distort or impermissibly fetter the Minister's discretion. That Court held that in saying that he was mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia, the Minister was taking into account a policy to that effect. 19 That Court said, at [38], that had it been necessary to decide, it would not have accepted the submission that the use of the word "principle" established that the Minister had fettered the width of his statutory discretion in his decision in that case or that the Minister made his decision not to revoke the cancellation of the visa without regard to the circumstances of the respondent in that case. That Court referred to the recent discussion of these principles in Plaintiff M64/2015 v Minister for Immigration & Border Protection [2015] HCA 50; 258 CLR 173 at [52]–[54] per French CJ, Bell, Keane and Gordon JJ and at [68]–[72] per Gageler J. 20 Paragraphs [32] and [50] of the Minister's statement of reasons in the present appeal are relevantly identical to [31] and [55] of the Minister's statement of reasons in Tesic. Thus the facts as they appear from the Minister's statement of reasons in the present appellant's case appear to be identical, in these respects, to the facts in Tesic. 21 Unless there is some distinction in the facts or unless we are persuaded that the decision of the Full Court in Tesic is clearly wrong in this respect, then this appeal must be determined consistently with the outcome of the corresponding grounds in Tesic. 22 No factual distinction between the facts in the present appeal and the facts in Tesic has been advanced. It has not been submitted that the decision of the Full Court in Tesic is clearly wrong. Indeed the appellant made no written or oral submissions directed to grounds 1-6 or to error on the part of the primary judge. 23 In VUAX, at [46] and [48], the Full Court said: … Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38]. … The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. 24 In the present circumstances, as events have unfolded since the drafting of the original notice of appeal, the points sought to be raised before this Full Court by grounds 1-6 have no merit. We are aware that an application for special leave to appeal to the High Court from the judgment of the Full Court in Tesic has been filed (No B36 of 2017) but we see no reason to defer dealing with the Tesic grounds on that account. 25 The appropriate order is to refuse the application for leave to raise grounds 1-6 in the appellant's proposed notice of appeal dated 8 June 2017. 26 Proposed ground 7 is in a different category. It depends on the outcome of a matter pending in the original jurisdiction of the High Court of Australia, Falzon v Minister for Immigration and Border Protection, No S31 at 2017. On the application of the appellant, which was neither consented to nor opposed by the Minister, the appropriate procedural course, which the Court took on 14 June 2017, is to grant leave to amend to add ground 7 and to stand over any questions arising from ground 7 until two weeks after the determination of Falzon by the High Court. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Reeves, Robertson and Rangiah. Associate: Dated: 8 August 2017