FEDERAL COURT OF AUSTRALIA Brown v Minister for Immigration and Citizenship [2010] FCA 52 Citation: Brown v Minister for Immigration and Citizenship [2010] FCA 52 Appeal from: Brown v Minister for Immigration and Citizenship [2009] AATA 682 Parties: STEVEN DESMOND BROWN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL File number: NSD 1368 of 2009 Judge: NICHOLAS J Date of judgment: 9 February 2010 Legislation: Migration Act 1958 (Cth) ss 476A, 477A, 499, 501 Date of hearing: 8 February 2010 Date of last submissions: 8 February 2010 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 42 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: G Kennett Solicitor for the First Respondent: DLA Phillips Fox IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1368 of 2009 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: STEVEN DESMOND BROWN Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: NICHOLAS J DATE OF ORDER: 9 FEBRUARY 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant's application for an adjournment is refused. 2. The applicant's application for an extension of time under s 477A(2) of the Migration Act 1958 (Cth) is refused. 3. The application is dismissed as incompetent. 4. The applicant pay the first respondent's costs. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1368 of 2009 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: STEVEN DESMOND BROWN Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: NICHOLAS J DATE: 9 FEBRUARY 2010 PLACE: SYDNEY REASONS FOR JUDGMENT BACKGROUND 1 On 30 November 2009 the applicant filed an application under s 476A of the Migration Act 1958 (Cth) (the Act) to review a decision of the Administrative Appeals Tribunal (the Tribunal) dated 9 September 2009 which affirmed the decision of a delegate of the Minister to cancel the applicant's visa. The delegate cancelled the applicant's visa pursuant to s 501(2) of the Act. 2 On 13 October 2009 the applicant commenced a proceeding in the Federal Magistrates Court seeking review of the Tribunal's decision. On 4 November 2009 that Court dismissed the proceeding on the grounds that it lacked jurisdiction to hear the application. The applicant subsequently commenced the present proceeding. 3 Section 477A(1) of the Act provides that an application to this Court under s 476A must be made within 35 days of the date of the decision which the applicant seeks to have reviewed. Section 447A(2) enables a Court to extend that period on an application in writing made by the applicant for review. 4 Since the application was not filed until 30 November 2009, it is clear that the applicant must obtain an order pursuant to s 477A(2) extending time. The application is incompetent unless an order extending time is made. 5 In addition to orders setting aside the Tribunal's decision, the application filed also claims an order extending time under s 477 of the Act. I have treated this as an application under s 477A which is the source of this Court's power to make such an order. 6 The first respondent opposes the making of such an order. The sole ground upon which it does so is that the application under s 476A has no prospects of success. The second respondent has filed a submitting appearance. ADJOURNMENT 7 The applicant was not legally represented at the hearing. On the morning of the hearing he applied for an adjournment so that he could obtain legal representation. I decided at the time that the hearing should proceed so that I could consider whether there should be an adjournment in the light of an evaluation of the applicant's prospects of success under s 476A. 8 It seems to me that the applicant has had ample opportunity to secure legal representation. The hearing before the Tribunal, at which the applicant was unrepresented, occurred in August 2009. The earlier proceeding was first commenced by him in the Federal Magistrates Court in October 2009. This proceeding was first listed for directions on 16 December 2009. A direction was then made requiring the applicant to file any evidence by 15 January 2010. At the time of the directions hearing the applicant informed the Court that he proposed to be legally represented at the hearing. But there is no indication that the applicant is today any closer to securing legal representation than he was then. 9 The applicant told me that his fiancé is 5 months pregnant and that she also has a child from a previous relationship who is 5 years of age. He said that he has been in a relationship with his fiancé for about 2 years. Presumably his fiancé is the same person who he was in a relationship with at the time of the hearing before the Tribunal and who is referred to in its reasons for decision. 10 The applicant told me that he wanted to prepare and tender evidence concerning his relationship with his fiancé, the fact that she is pregnant and has a 5 year old child. 11 It is clear to me, assuming what I was told is true, that the applicant misunderstands the nature of the jurisdiction he has invoked. The Court has no power to set aside the decision of the Tribunal in the absence of jurisdictional error. Evidence of the kind foreshadowed by the applicant is not admissible in this proceeding. 12 My attitude to the applicant's application for an adjournment might well be different if there were any arguable grounds of review available to him. But for the reasons which appear below, I do not think there are any such arguable grounds. I therefore refuse the application for an adjournment. FACTS 13 I now set out a number of factual propositions based upon findings of the Tribunal. While the applicant denied in his evidence to the Tribunal that he was guilty of some of the offences for which he was convicted, the Tribunal's findings were otherwise uncontested. 14 The applicant is a citizen of New Zealand who was born in 1981. He entered Australia on 1 September 2003 and was granted a Class TY, Subclass 444 Special Category visa allowing him to remain indefinitely. At the time of the hearing before the Tribunal he had a partner with whom he had established a relationship about nine months before. 15 The applicant has a child from a previous relationship aged 12 years but she lives in New Zealand and he has had no contact with her or her mother since his arrival in Australia. 16 Between September 2004 and February 2009 the applicant was convicted of numerous offences in Australia. Many of these were motor vehicle offences, but some involved violence and some involved stealing or obtaining money by deception. In February 2007 the applicant was sentenced to 12 months imprisonment. In February 2009 the applicant was sentenced to 22 months imprisonment. 17 In June 2007 the Department of Immigration (the Department) issued the applicant with a notice of its intention to consider cancelling his visa. After considering the applicant's response the Department decided not to cancel his visa. The applicant was warned that cancellation would be considered again if he continued offending. 18 In April 2009 the applicant was again notified by the Department that consideration would be given to cancelling his visa. The applicant provided written reasons why his visa should not be cancelled. In early June 2009 he participated in a telephone interview with an officer of the Department. 19 On 16 June 2009 the delegate decided to cancel the applicant's visa. The applicant applied to the Tribunal for a review of the delegate's decision. The hearing of that application occurred on 27 August 2009. The applicant appeared before the Tribunal and gave evidence. SECTION 501(2), (6) AND (7) 20 Section 501(2) provides that the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test and they do not satisfy the Minister that they pass the character test. 21 Both the delegate and the Tribunal were satisfied that the applicant had a "substantial criminal record" as defined by s 501(7) of the Act and that he therefore did not pass the "character test" postulated by s 501(6). 22 Section 501(6) and (7) of the Act relevantly provide: (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); … (b)-(d) … Otherwise, the person passes the character test (7) For the purposes of the character test, a person has a substantial criminal record if: (a)-(b) … (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or … DIRECTION NO 41 23 Both the delegate and the Tribunal found that the applicant did not pass the character test. It followed that the discretion to cancel the applicant's visa was enlivened. The delegate exercised the discretion having regard to Direction No 21 issued pursuant to s 499 of the Act. Section 499 relevantly provides: (1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about: (a) the performance of those functions; or (b) the exercise of those powers. (1A) For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply. (2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations. (2A) A person or body must comply with a direction under subsection (1). 24 By the time the matter came before the Tribunal, Direction No 21 had been revoked and replaced by Direction No 41. The Tribunal exercised the discretion having regard to Direction No 41. 25 Under Direction No 41 the relevant decision maker must in every case take into account what are referred to as "primary considerations", being those matters specified in para 10. There are other considerations specified in para 11 of Direction No 41 which should also be taken into account where relevant. 26 Paragraph 10 provides: 10 The primary considerations (1) In deciding whether to refuse to grant a person a visa or cancel a person's visa, the following (the primary considerations) are to be considered: (a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence; (b) whether the person was a minor when they began living in Australia; (c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and (d) relevant international obligations, including but not limited to: (i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and (ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). 27 Paragraph 10.4, which refers to international obligations, including those arising under the Convention on the Rights of the Child (CROC), provides: 10.4 International Obligations (1) Reflecting Australia's obligations under the CROC, if there is a child in Australia who is potentially affected by a visa refusal or cancellation decision, decision-makers must have regard to the best interest of the child. (2) Where relevant, any non-refoulement obligations, including under the Refugees Convention, must be considered. THE DECISION OF THE TRIBUNAL 28 The Tribunal found that the applicant had a "serious criminal record" as defined by s 501(7) of the Act. It then proceeded to consider whether, in the exercise of the decision-maker's discretion, the applicant's visa should be revoked. 29 Under the heading 'Protection of the Australian Community' (para 10.1 of Direction No 41) the Tribunal considered the offences for which the applicant had been convicted (noting but rejecting his assertions of innocence) and characterised his conduct as 'serious'. It also concluded that, despite the applicant's attempts at reform, there was a real risk of him engaging in such conduct again. 30 The Tribunal considered the length of time the applicant had spent in Australia before engaging in criminal activity (para 10.3 of Direction No 41) and concluded that the period (less than 3 years) was not long enough to weigh in his favour. 31 The Tribunal did not expressly canvass para 10.2 of Direction No 41. Nor did the Tribunal expressly canvass the international conventions referred to in para 10.4 of Direction No 41. There was no suggestion that either of these paragraphs had any relevance to the applicant. 32 The other considerations which the Tribunal considered relevant (para 11 of Direction No 41) were the applicant's family ties, his relationships with others in Australia, and the hardship that would be caused to him by cancellation of his visa. The Tribunal did not consider these considerations outweighed the primary consideration of protection of the community. The Tribunal also regarded it as relevant that the applicant had re-offended despite the earlier warning that his visa might be cancelled if he did so. CONSIDERATION 33 The reasons for decision of the Tribunal show that it was satisfied that the applicant did not pass the character test. This conclusion was plainly correct given the sentences to imprisonment imposed upon the applicant in February 2007 and February 2009. The reasons for decision also show that the Tribunal proceeded to consider whether, in the exercise of the discretion, the applicant's visa should be cancelled. 34 As already noted, the applicant was not a minor when he arrived in Australia so it is understandable that the Tribunal did not make express reference to para 10(1)(b). That it did not do so merely reflects the fact that this consideration can have no conceivable relevance in the circumstances of this particular case. 35 The Tribunal clearly had regard to the applicant's family ties in Australia, including his relationships with close relatives who were in Australia. It also accepted that the applicant had been in a relationship with an Australian citizen for nine months although it does not seem to have been suggested to the Tribunal that this was a "marital" relationship. 36 The applicant's relationships with family members in Australia, as disclosed by evidence referred to by the Tribunal, could not have been said to be close. His parents lived in New Zealand and he had not had any contact with them since he left New Zealand. The applicant did not claim to have had any contact with his two sisters in Australia except via the internet. His uncle and aunt, with whom he lived in Australia for some time after his arrival, are deceased. He had some cousins with whom he maintained some contact but three of them were in prison. It was clearly open to the Tribunal to conclude that the applicant's family ties in Australia did not weigh heavily against cancellation. 37 The evidence before the Tribunal did not indicate that the applicant's family members or his partner were likely to suffer hardship as a result of his removal from Australia. 38 The applicant's partner was said by the applicant to have been "committed to being with him if he is willing" but she did not give any evidence. It was clearly open to the Tribunal to conclude that the applicant's relationship with his partner did not weigh heavily against cancellation. 39 As to the matter dealt with in para 10.4 of the Direction No 41, no explicit reference was made in the Tribunal's reasons to the CROC. Nor did the Tribunal analyse the best interests of the applicant's daughter in New Zealand. 40 The Minister submitted that the reference to the best interests of "the child" in para 10(1)(d)(i) of Direction No 41 is to be understood as referring to children in Australia. This is made clear, it was said, by para 10.4(1) but would otherwise follow from general principles of the interpretation of statutes and statutory instruments, and from the scope of the obligations under the CROC which these provisions of the Direction No 41 seek to implement. 41 I think the Minister's submission on this point is correct. Paragraph 10(1)(d)(i) does not refer expressly to a child in Australia but when read with para 10.4 that is clearly what is intended. This is confirmed by Art. 2(1) of the CROC which relevantly provides: State Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction … 42 In my opinion, the Tribunal's reasons do not reveal any jurisdictional error. Nor is there any suggestion arising from the material before me that the applicant was denied procedural fairness. I am therefore of the opinion that the application under s 476A of the Act has no prospects of success. For that reason, I refuse the application for an adjournment and I refuse the application for an extension of time under s 477A(1). I order that the application be dismissed as incompetent. I also order the applicant to pay the first respondent's costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate: Dated: 9 February 2010