Clarke v Minister for Immigration & Multicultural Affairs [2001] FCA 900

FEDERAL COURT OF AUSTRALIA

Clarke v Minister for Immigration & Multicultural Affairs [2001] FCA 900 DAVID JOHN CLARKE v MINISTER FOR IMMIGRAITON AND MULTICULTURAL AFFAIRS Q 176 of 2000 SPENDER J BRISBANE 13 JULY 2001

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 176 OF 2000

BETWEEN: DAVID JOHN CLARKE

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SPENDER J

DATE OF ORDER: 13 JULY 2001

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: The application be dismissed, with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 176 OF 2000

BETWEEN: DAVID JOHN CLARKE

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SPENDER J

DATE: 13 JULY 2001

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 This is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) from a decision of a Deputy President of the Administrative Appeals Tribunal (the AAT) given on 27 November 2000, whereby the Tribunal decided that an appeal by the applicant against the decision of the respondent to cancel his transitional (permanent) visa under s 501 of the Migration Act 1958 (Cth)(the Act) be disallowed. By notice of motion filed on 27 June 2001, the applicant seeks an order that the decision of the delegate of the Minister for Immigration and Multicultural Affairs dated 13 June 2000 to cancel his transitional (permanent) visa under s 501 of the Act be set aside, and the matter be referred back to the delegate for further consideration. 2 The ground of appeal in the applicant's notice of appeal is that the Tribunal failed to apply the principles set out in Direction No. 17 of the Minister as required. 3 Mr Clarke appeared for himself. He is presently held in immigration detention at the Arthur Gorrie Correctional Centre. 4 Notwithstanding that the decision of the AAT was given on 27 November 2000, Mr Clarke successfully sought the adjournment of his application to the Federal Court so that two further avenues might be pursued by him. In May 1996 the applicant was convicted on one count of manslaughter and two counts of interfering with human remains. He was sentenced to six years imprisonment. His convictions on those matters were brought to the attention of the Minister by police following Mr Clarke's sentencing. On 8 February 2001 he filed an application with the Supreme Court seeking an extension of the time in which to file an appeal against his conviction. That application was listed for hearing on 19 April 2001. Mr Clarke also made a formal complaint to the Queensland Criminal Justice Commission regarding a document prepared by Detective Sergeant Janene Eckersley which notified the Minister of the applicant's conviction in relation to the above criminal offences. Mr Clarke indicated to the Registry that that investigation might take some months to complete. In the event, Mr Clarke's application to the Supreme Court was refused. The Queensland Criminal Justice Commission took no action concerning Mr Clarke's complaint about the report prepared by Detective Sergeant Eckersley. 5 Mr Clarke's appeal to this Court was heard on 5 July 2001. 6 It was accepted by Mr Clarke that he fails the character test referred to in s 501(2) of the Act, he having a substantial criminal record as defined in subsection 501(7) of the Act. Section 501(2) of the Act provides: "The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test." 7 Mr Clarke having failed the character test, the Tribunal correctly noted that: "…the Tribunal must consider whether to exercise the discretion in favour of the applicant, notwithstanding that he fails the character test." 8 The Tribunal noted: "Ministerial Direction No 17 – Visa Refusal and Cancellation under Section 501 applies to the exercise of the discretion." 9 Most of the submissions of Mr Clarke on the appeal were based on the admission into evidence before the Tribunal of the document titled "Report of Conviction of Non-Citizen", and the claimed reliance on it by the Tribunal. It will be necessary to deal in detail with the contents of that report later. 10 The more general complaint that the Tribunal failed to apply the principles set out in the Ministerial Direction is not made out. Mr Clarke submitted that there being no reference within the reasons for decision of the Tribunal concerning the consideration set out in par 2.17(j) of the Direction: "It is conclusive that he did not take that consideration into account". 11 This submission cannot be accepted. It is not necessary that every factor identified in the Direction as being potentially relevant be addressed in every case. It is not to be concluded that that consideration was ignored simply by the absence to a reference to it in the reasons for decision. The question to be asked on this appeal is whether the Tribunal carried out the balancing exercise of the kind which the Direction requires. There was no error of law in failing expressly to refer to the consideration referred to in par 2.17(j) of the Direction. 12 The Tribunal referred to the "three primary considerations under this Direction – protection of the Australian community, expectations of the Australian community and, where the applicant is involved in a parental relationship with any children, the best interests of those children." 13 The Tribunal considered each of those considerations with respect to the offence of manslaughter in the circumstances referred to by the sentencing judge. The Tribunal said: "While the Jury and the Trial Judge accepted that the applicant was acting under extreme pressure at the time, this is still a repugnant crime and one which should be viewed as very serious – serious, that is, in terms of the policy and also in terms of community expectations relating to the conduct of members of our society." 14 There are some observations by the Tribunal to which Mr Clarke, in his submissions, took exception. The Tribunal said: "By Mr Clarke's own admission he has participated in other activities which were not entirely above the law. His Honour Judge Thomas made it clear that he believed Mr Clarke had been involved in a drug deal with the deceased persons a few days before their deaths. While charges have never been laid with respect to this drug dealing activity, it does not reflect well on Mr Clarke's character and suggests a deeper involvement in criminal activity than his prior convictions suggest." 15 Further, the Tribunal referred to: "…the fact that Mr Clarke does have a prior criminal history and a long association with people involved in criminal activity weighs against him." 16 The Tribunal considered each of the primary considerations and concluded: "…the primary considerations are weighed against the applicant." 17 The Tribunal then referred to: "a number of secondary considerations which must also be taken into account, although one on its own cannot outweigh a primary consideration". 18 The Tribunal discussed Mr Clarke's relationship with a Ms Greaves, who is an Australian citizen. The Tribunal said: "Ms Greaves said that she would love to go to New Zealand with the applicant but she did not see how that was financially possible. Ms Greaves is a trained nurse and would be able to obtain employment in New Zealand. There is also an extensive welfare system in that country which Australian citizens can easily access if she chose not to work." That passage contains an error, in that the only evidence before the Tribunal was that Ms Greaves was an assistant in nursing; she was not a "trained nurse". Such errors of fact as appear in the Tribunal's reasons are not critical, and in my opinion it is plain that the Tribunal carried out the balancing exercise of the kind for which the Direction calls. The Tribunal said: "While it is acknowledged that the applicant will suffer hardship as a result of having his visa cancelled, it would be lessened if his fiancee relocates with him. In any event, it is a matter which falls well short of outweighing the primary considerations. Therefore, the secondary considerations as a whole do not counter-balance the primary considerations and the Tribunal elects not to exercise its discretion in favour of the applicant." 19 The general ground of appeal fails.