FEDERAL COURT OF AUSTRALIA Lavulo v Minister for Immigration and Citizenship [2012] FCA 186 Citation: Lavulo v Minister for Immigration and Citizenship [2012] FCA 186 Appeal from: Lavulo and Minister for Immigration and Citizenship [2011] AATA 686 Parties: VILIAMI TANGI TAUMOA FOLAU LAVULO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and ADMINISTRATIVE APPEALS TRIBUNAL File number(s): NSD 1926 of 2011 Judge: JAGOT J Date of judgment: 2 March 2012 Catchwords: MIGRATION – judicial review of decision of Administrative Appeals Tribunal (AAT) – whether any jurisdictional error in the decision – where applicant refused leave to withdraw application – appeal dismissed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) Migration Act 1958 (Cth) Cases cited: Lavulo and Minister for Immigration and Citizenship [2011] AATA 686 Date of hearing: 2 March 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 16 Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr O Jones of Clayton Utz IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1926 of 2011 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: VILIAMI TANGI TAUMOA FOLAU LAVULO Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: JAGOT J DATE OF ORDER: 2 MARCH 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The notice of appeal filed on 1 November 2011 be dismissed. 2. The applicant pay the respondent's costs of the appeal fixed in the sum of $5000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1926 of 2011 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: VILIAMI TANGI TAUMOA FOLAU LAVULO Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: JAGOT J DATE: 2 MARCH 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This matter relates to an appeal from a decision of the Administrative Appeals Tribunal (the AAT) in the matter of Lavulo and Minister for Immigration and Citizenship [2011] AATA 686. The AAT decided to affirm the decision of the Minister for Immigration and Citizenship (the Minister) under review. The applicant, Mr Lavulo, had applied to the AAT for review of a decision of a delegate of the Minister dated 6 July 2011 to cancel his class TY subclass 444 visa. The visa was cancelled on the basis that Mr Lavulo did not pass the character test as a result of his substantial criminal record pursuant to s 501(6) of the Migration Act 1958 (Cth) (the Migration Act). THE DECISION OF THE AAT 2 As the AAT correctly identified in [2] of its reasons for decision, it had to be mindful of the fact that although Mr Lavulo does not pass the character test the AAT may nevertheless exercise a discretion in his favour, having regard to the matters set out in Direction 41: Visa Refusal and Cancellation, a direction which applies by reason of s 499 of the Migration Act and with which the AAT is bound to comply. 3 The AAT noted at [7] that it was satisfied on the evidence that Mr Lavulo does not pass the character test pursuant to the legislation. But the AAT had also considered the matters in Direction 41, namely the primary and other considerations, and having done so was satisfied that the correct or preferable decision was that the Minister's decision to cancel Mr Lavulo's visa should be affirmed. 4 The AAT gave its reasons for doing so in the subsequent paragraphs. Those paragraphs identify that Mr Lavulo came to Australia from New Zealand when he was about 13 years of age. The reasons for decision also identify his criminal record which leads to the conclusion that he does not pass the character test. In [12] the AAT referred to Mr Lavulo's personal circumstances, particularly the fact that he has a seven year old child – a boy – and that the child's mother – his girlfriend – died in September 2010. Both maternal grandparents are also dead and the child is being looked after by his maternal great grandmother, who gave oral evidence before the AAT and is an indigenous woman of almost 80 years living in the Karuah Aboriginal community. 5 The maternal great grandmother gave evidence before the AAT that she has full-time care of Mr Lavulo's child and had also offered Mr Lavulo a place to live with her in the community subject to certain conditions. The AAT gave further consideration to Mr Lavulo's personal circumstances including those circumstances relating to his son, noting that (at [67]) it is generally presumed in accordance with Direction 41 that a child's best interests will be served if the child remains with his or her parents. The AAT noted that Mr Lavulo's son is being well cared for in his current community. However, there was evidence before the AAT from a counsellor, who is providing counselling and support for Mr Lavulo's son, to the effect that he was devastated by the death of his mother and contact with his father has been crucial to him since his mother died, and that to experience the loss of his father, Mr Lavulo, through deportation would be "extremely detrimental" to the child's wellbeing. 6 The AAT noted that Mr Lavulo had not seen his son while he was in juvenile detention because the mother of the child did not want him to see his father in such a place, but that recently the maternal great grandmother has brought Mr Lavulo's son to see him when she can. These matters were set out in [69] of the AAT's decision. Thereafter, the AAT took into account in its own words "the best interests of Mr Lavulo's child as a primary consideration", and came to the conclusion that the child's best interests would be served if he remained in the care of his maternal great grandmother. The AAT also had regard to: – (i) the seriousness and nature of Mr Lavulo's conduct, (ii) his pattern of offending and reoffending, which indicates moderate or high risk of recidivism, (iii) the best interests of his son, and (iv) the protection of the Australian community. The AAT thereby concluded in [72] that these considerations outweighed Mr Lavulo's desire to stay in Australia. Otherwise, the AAT took into account other considerations including the interests of various people such as the maternal great grandmother of Mr Lavulo's child. 7 In summary, as set out from [82] to [89], the AAT concluded that the discretion in s 501 of the Migration Act should not be exercised in Mr Lavulo's favour, and having weighed up all the considerations including the primary considerations and other considerations in regard to Mr Lavulo as per Direction 41, the AAT was satisfied that the decision of the Minister to cancel Mr Lavulo's visa should be affirmed. THE APPEAL 8 On 1 November 2011 Mr Lavulo filed a notice of appeal from the AAT in this Court. This notice specified that Mr Lavulo has a son who was born here, that he is in Australia and that all his family are here in Australia, and that he has no one back in New Zealand. It also notes that: - (i) he was a juvenile when he got into trouble with the law, (ii) he is the only parent his son has left as his partner of 10 years passed away last year, and (iii) both his son's grandmother and grandfather died in 2007 and 2006, so his son has no one left but Mr Lavulo. 9 The Minister filed and served an outline of submissions which correctly indicated that the AAT's decision is a privative clause decision or purported privilege clause decision within the meaning of s 476A(1)(b) of the Migration Act, so that there can be no appeal on a question of law to this Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). However, the Minister agreed that I could and should treat the notice of appeal filed on 1 November 2011 as an application for a constitutional writ to have the AAT's decision set aside for jurisdictional error. 10 When the matter came on before me for hearing this morning Mr Lavulo, who is being held in immigration detention at Villawood and appeared on his own behalf, indicated to me that, in effect, he was not ready for the hearing to proceed today. He said he had made attempts to obtain a legal representative – not being a legally qualified person himself – but he had heard nothing from the various solicitors to whom he had sent his papers. As he was not legally qualified and, as he put it, this is his one opportunity to remain in Australia, he indicated that rather than proceed to put submissions on his own behalf he would withdraw his application. 11 I treated the first aspect of what Mr Lavulo said as an application to adjourn the hearing. The Minister opposed that course on two bases: first, that the matter had been fixed for hearing on 6 December 2011 so there had been an opportunity for Mr Lavulo to obtain legal representation, and second, that on review of the AAT's decision and consistent with what was set out in the Minister's written submissions, there were insufficient prospects of success on Mr Lavulo's part to warrant any adjournment of the hearing. I treated the second aspect of what Mr Lavulo said as an indication that he wanted to discontinue with his application. In the circumstances Mr Lavulo requires leave to do so and I declined to grant that leave. 12 It followed that Mr Lavulo did not make any substantive submission in support of his application, indicating instead that he proposed to take another course, including potentially approaching the High Court for relief. The Minister relied on his written submissions. 13 I have considered the Minister's written submissions and the reasons for decision of the AAT. As the Minister's written submissions put it, it is apparent that the AAT considered the material before it within the context of the legislative framework regulating its decision-making, including the considerations, both primary and other, as set out in Direction 41 including, relevantly: - (i) the protection of the Australian community, (ii) Mr Lavulo's young age when he arrived in Australia, (iii) the length of time he has been in Australia, (iv) Australia's international obligations, particularly the obligation to have regard to the best interests of the child, here the child of particular relevance being Mr Lavulo's son, but also certain other children referred to in the AAT's reasons, and (v) other considerations such as the presence of Mr Lavulo's family in Australia and that of his son's maternal great grandmother. 14 Having considered all of that material, and recognising that I have not heard anything from Mr Lavulo in substance, I am satisfied that the AAT correctly applied the relevant legal requirements. In other words, I accept the Minister's submission that the AAT correctly considered whether Mr Lavulo passed the character test and upon determining that he did not was entitled to conclude, by reference to Direction 41, that it would not exercise the available discretion in Mr Lavulo's favour. In short, I am unable to see any jurisdictional error in the AAT's decision. 15 The inevitable result is that I am bound to dismiss the application and accordingly I so order. 16 The Minister has filed in Court an affidavit in support of an application that a fixed sum costs order should be made. On the basis of that affidavit I am satisfied that I should make a fixed sum costs order and accordingly I order that the applicant pay the respondent's costs of the appeal, fixed in the sum of $5000. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 5 March 2012