Hua v Minister for Home Affairs [2019] FCAFC 158

FEDERAL COURT OF AUSTRALIA

Hua v Minister for Home Affairs [2019] FCAFC 158 Appeal from: Hua v Minister for Home Affairs [2019] FCA 94

File number: VID 187 of 2019

Judges: BESANKO, MURPHY AND O'CALLAGHAN JJ

Date of judgment: 10 September 2019

Catchwords: MIGRATION – appeal from single judge of Federal Court – no appellable error by the primary judge – appeal dismissed

Legislation: Migration Act 1958 (Cth)

Cases cited: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252

Date of hearing: 21 August 2019

Registry: Victoria

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 40

Counsel for the Appellant: S M Kelly

Solicitor for the Appellant: Legal Aid Victoria

Counsel for the Respondent: C J Tran

Solicitor for the Respondent: Sparke Helmore

ORDERS VID 187 of 2019

BETWEEN: VAN PHAT HUA Appellant

AND: MINISTER FOR HOME AFFAIRS Respondent

JUDGES: BESANKO, MURPHY AND O'CALLAGHAN JJ DATE OF ORDER: 10 SEPTEMBER 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the respondent's costs, to be assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction 1 This is an appeal from orders made by a single judge of this court on 12 February 2019, dismissing the appellant's amended originating application for judicial review of a decision of the respondent (by his delegate, the Assistant Minister) (the Minister) not to revoke the mandatory cancellation of the appellant's Class BB Subclass 155 Five Year Resident Return visa pursuant to s 501CA of the Migration Act 1958 (Cth) (the Act). 2 The appellant is a citizen of Vietnam. He has normally resided in Australia since 18 September 1987, and had been the holder of a Class BB Subclass 155 Five Year Resident Return visa, until it was cancelled on 4 January 2016. It was cancelled under the mandatory cancellation provision in s 501(3A) of the Act, which applied because he had been sentenced to a term of imprisonment of 12 months or more, and he was serving a sentence of imprisonment on a full-time basis. 3 The appellant has an extensive criminal record dating back 30 years. As the primary judge recorded (Hua v Minister for Home Affairs [2019] FCA 94 at [1]): In 1989 he was convicted of armed robbery and thereafter made regular appearances in the Magistrates and County Courts, with convictions for theft, burglary, assault, trafficking heroin and the handling of stolen goods, to name but a few. On 30 July 2014, he was convicted in the County Court of Victoria of arson, reckless conduct endangering life, making threats to kill, recklessly causing injury, intentionally destroying property, theft and cultivation of cannabis. He was sentenced to a cumulative total of three years and six months imprisonment. 4 The primary judge summarised the offending that led to his imprisonment as follows (at [5]): On 5 November 2013, the applicant carried out what the sentencing judge in the County Court described as an "extreme and somewhat callous act" which was "inherently dangerous". Earlier, on 21 October 2013, he had gone to the home of his wife and demanded cash, a bank card and a mobile phone. When these were not produced he threatened to "burn the house down with her in it". The police were called to intervene. Then, on 5 November 2013, the applicant and his wife, who was at the time pregnant, were arguing at home when the wife asked their son to call the police. The applicant took a large knife from the kitchen and said "if you dare call the police I'll kill you and burn you alive". The applicant then poured petrol throughout the home which he then lit. The wife asked the applicant to save one son (who has Down syndrome) before running to a bedroom to save their daughters, aged five and three. The wife and daughters could not escape as their bedroom window was covered with external bars. The house was burning. They were trapped. One son pleaded with the applicant to help but he made no attempt to do so. Thankfully, the fire brigade rescued the wife and the daughters. The applicant and one son suffered burns. The wife required treatment for smoke inhalation. It was accepted that the applicant's poor mental health (he was a diagnosed schizophrenic) contributed to his offending. 5 The appellant requested revocation of the cancellation on 26 January 2016 (under s 501CA(4) of the Act). He provided a number of supporting documents, including an undated letter from a Prison Officer Leggett, who was the appellant's case manager when he was held at the Hopkins Correctional Centre at Ararat in Victoria between May 2015 and his release in 2017. 6 On 1 February 2016, the appellant's representatives provided a written submission. 7 On 4 August 2017, the Department invited the appellant to provide further information about a "Client Incident Report" dated 31 May 2017 concerning an incident in which the appellant hit another detainee in the head when he was detained (as he is still detained) at an immigration detention centre. 8 Further information was provided by the appellant's lawyers by way of a letter dated 20 October 2017. Among that material was a statutory declaration made by the appellant in which he said, among other things, as follows: Since I have been in prison, I have thought very hard about what happened and I have learned strategies for dealing with my anger problem. I am very sorry for breaking the Australian law; I have felt shame, guilty and remorse to now. I promise that I will not future commit a criminal offence again in Australia. I am hoping if the Minister would consideration of my circumstances during the time of my offences that I was not in my right state of mind. (Errors in original). 9 The letter also contained a submission about the incident in the detention centre, as follows: I am instructed that this is a one-off incident. This incident occurred during a time when Mr Hua was experiencing a lot of stress and anxiety due to the cancellation of his visa and his unknown future. In relation to this incident, Mr Hua instructs that he and other Vietnamese detainees were using the computer first when the victim asked to use the computer for 10 minutes only then they could resume use of the computer. Mr Hua and other detainee obliged and went to play pool for an hour. When they wanted to use the computer once again the victim refused. Mr Hua sat down next to the victim and the victim was very rude to Mr Hua and threatened him. I am instructed that the victim continued to be very rude to Mr Hua and goaded Mr Hua daring him to hit him repeatedly before Mr Hua did actually hit him and the victim hit him back. I refer to the letter by Prison Officer K Leggett that was previously provided that verified that there were no incident reports involving Mr Hua while he was at the Hopkins Correctional Centre. Mr Leggett reported that Mr Hua was quiet, polite and courteous to the staff. (Emphasis in original).