FEDERAL COURT OF AUSTRALIA Horne v Minister for Immigration and Border Protection [2015] FCA 550 Citation: Horne v Minister for Immigration and Border Protection [2015] FCA 550 Parties: SIMON HIPA HORNE v MINISTER FOR IMMIGRATION AND BORDER PROTECTION File number(s): NSD 1396 of 2014 Judge(s): JAGOT J Date of judgment: 4 June 2015 Legislation: Constitution s 51(xix) Migration Act 1958 (Cth) ss 200, 201, 501 Cases cited: NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44; [2014] FCAFC 39 Date of hearing: 25 May 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 30 Counsel for the Applicant: The Applicant appeared in person, assisted by his daughter. Counsel for the Respondent: Ms A Mitchelmore and Mr B Michael Solicitor for the Respondent: DLA Piper Australia IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1396 of 2014 BETWEEN: SIMON HIPA HORNE Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent JUDGE: JAGOT J DATE OF ORDER: 4 JUNE 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs, as agreed or taxed. 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 1396 of 2014 BETWEEN: SIMON HIPA HORNE Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent JUDGE: JAGOT J DATE: 4 JUNE 2015 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application for judicial review of the Minister's decision to cancel the applicant's Class TY, Subclass 444, Special Category (Temporary) visa (the temporary visa). The Minister cancelled the applicant's temporary visa on 27 November 2012, pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Migration Act), which provides that: (2) 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. 2 The "character test" is set out in s 501(6) of the Migration Act. The particular limb of the "character test" which the Minister suspected that the applicant did not pass was under s 501(6)(a), which provides that: (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)) … 3 Relevantly, by s 501(7)(c) of the Migration Act a person is taken to have a "substantial criminal record" if "the person has been sentenced to a term of imprisonment of 12 months or more". 4 Referring to a conviction for a break, enter and steal offence for which the applicant was sentenced to 20 months imprisonment, the Minister stated: I find that [the applicant] does not pass the character test by virtue of s 501(6)(a) with reference to s 501(7)(c) of the Act and that he has not satisfied me that he passes the character test. 5 Having concluded that the applicant did not pass the character test, the Minister considered whether he should exercise his discretion to cancel the applicant's visa, noting that: Having found that [the applicant] does not pass the character test and having assessed the information set out in the Issues Paper and Attachments, I considered whether to exercise my discretion to cancel Mr Horne's visa. I was mindful of the Government's commitment to using s 501 of the Act to protect the Australian community from harm that may result from criminal activity or other serious conduct by non-citizens. 6 In deciding whether to exercise his discretion to cancel the applicant's visa the Minister considered seven factors, including the applicant's criminal conduct, mitigating factors and the risk of re-offending, the applicant's ties to Australia, the best interests of minor children, international obligations, the applicant's family connections and the conditions in New Zealand where the applicant is a citizen. 7 With respect to the first factor, the applicant's criminal conduct, the Minister stated that: [6] Mr Horne has offended frequently over an extensive period. I have had regard to the number of Mr Horne's convictions, the nature and seriousness of his offences, the sentences imposed for his convictions, the regularity of his offending and the length of the period over which he has offended. I consider that Mr Horne has a serious criminal history and that his criminal behaviour has caused significant harm to individuals and to the Australian community generally. 8 With respect to the second factor, the mitigating factors and risk of re-offending, the Minister stated that: [7] I consider that the available evidence indicates that Mr Horne is a recidivist. I accept that Mr Horne's substance abuse problems and his mental health conditions are a significant contributory factor to his criminal offending. [8] I consider that despite previous attempts at rehabilitation, Mr Horne has continued to commit crimes. I have had regard that despite previously being considered for visa cancellation Mr Horne has continued to offend. [9] Based on his criminal history and offending associated with drug use, I have concerns regarding Mr Horne's rehabilitation prospects and believe that that is a risk of him reoffending. 9 With respect to the third factor, the applicant's ties to Australia, the Minister stated that: [10] While departmental records indicate that Mr Horne first arrived in Australia when he was 13 years of age, I accept the information that he arrived in Australia when he was four or five years of age and that he has resided here for approximately 40 years. He has spent a significant part of his formative years and, apart from 15 months, all his adult life in Australia and he has strong family relationships here. [11] However, Mr Horne commenced offending at a young age, has a serious criminal history and has spent approximately 10 years of his period of residence in prison. I consider the strength of his links to the community is diminished to an extent by the seriousness of his criminal history and the length of time he has spent away from the community while in prison. [12] Despite these matters, having regard to his young age when he arrived, the length of time he has resided in Australia, the fact that he spent part of his formative years in Australia and his family relationships in Australia, I consider that Mr Horne has established strong ties to Australia. 10 With respect to the fourth factor, the best interests of minor children, the Minister stated that: [13] I gave primary consideration to the best interests of any children who are less than 18 years of age and whose best interests may be significantly affected by cancellation of Mr Horne's visa. Mr Horne has seven grandchildren who would be affected by the cancellation of his visa. [14] I accept that Mr Horne's grandchildren … have each formed a relationship with Mr Horne and would suffer some emotional hardship if separated from him. Also Mr Horne would not be available to them to provide the normal emotional support that a grandfather provides to a grandchild. Consequently, I consider that it is in the best interests of [the applicant's grandchildren] for Mr Horne's visa not to be cancelled so that each child can maintain a continuing relationship with him. However, each of these children will have other family members available to them and I believe that the level of hardship that [the applicant's grandchildren] would experience as a result of the cancellation of Mr Horne's visa would not be unduly detrimental. 11 With respect to the fifth factor, the Minister noted that it was unnecessary to consider any international obligations as "Mr Horne has not made any claims which require assessment in relation to Australia's international non-refoulement obligations". 12 With respect to the sixth factor, the applicant's family connections, the Minister considered the applicant's connection with his de facto spouse of over 30 years, his three adult children and his former step-father. Further, the Minister considered the applicant's connection with his mother, stating that: [21] Mr Horne's mother … is 70 years old and suffers from diabetes. I accept that if Mr Horne's visa is cancelled and he is removed from Australia [the applicant's mother] will suffer some emotional hardship and will be deprived of any support that Mr Horne may be able to provide. I note that other members of Mr Horne's immediate family are available to provide assistance to [the applicant's mother]. 13 With respect to the seventh factor, the conditions in New Zealand, the Minister concluded that while the applicant did not have any relatives or support in New Zealand it was unlikely that he would face any "substantial language or cultural barriers if he is returned to New Zealand". Further, noting that the applicant is "suffering from a number of mental health conditions" and "has a long term substance abuse problem", the Minister concluded that as "the health care system in New Zealand is of a comparable standard to that available in Australia and it can be expected that Mr Horne will receive a satisfactory standard of treatment". 14 After considering these seven factors, the Minister concluded that: [27] … Mr Horne represents an unacceptable risk of harm to the Australian community. I considered that the protection of the Australian community outweighed any countervailing considerations including Mr Horne's ties to Australia, the best interest of his grandchildren and any hardship caused to his immediate family by his removal from Australia. 15 Accordingly, the Minister exercised his discretion under s 501(2) of the Migration Act and cancelled the applicant's visa. 16 The applicant now seeks judicial review of the Minister's decision on the following six grounds: (1) The Minister for Immigration and Border Protection denied me procedural fairness and natural justice when it made its decision on 27 November 2014. Given the fact that the Minister had failed adequately to assess the risk that I posed and or presented to the Australian community. (2) The Minister for Immigration and Border Protection denied me procedural fairness and natural justice when it made its decision on 27 November 2014. Given the Minister's public statements and comments regarding the way in which he was going to deal with the position of visa holders who had committed serious offences had given rise to a reasonable apprehension of bias such that the decision can not stand as the Minister did not attend he did not considered the cancellation of my visa on good faith. (3) The Minister for Immigration and Border Protection denied me procedural fairness and natural justice when it made its decision on 27 November 2014 as he failed to consider the best interests of my grand children individually and or collectively as a primary consideration. (4) The Minister for Immigration and Border Protection denied me procedural fairness and natural justice when it made its decision on 27 November 2014. Given the fact that the Minister was aware and should have known that pursuant to section 201(a)(b)(i)(ii)(A)(B)(C) of the Migration Act 1958, and by operation and force and the strength of that section of the Migration Act 1958, I am protected and exempted from being deported from Australia. (5) The decision of the Minister for Immigration and Border Protection cancelling my visa given the provisions of section 201(a)(b)(i)(ii)(A)(B)(C) and other parts of the Migration Act 1958 is beyond power, invalid and unconstitutional. (6) The Minister for Immigration and Border Protection did not inform nor warn me that he was going to have regards and take into consideration the provisions of section 201(a)(b)(i)(ii)(A)(B)(C) and other parts of the Migration Act 1958, and thereby put me on notice and give me adequate opportunity to make comments and put in submissions that the tribunal should not embark on such course but rather should reinstate my visa in accordance and pursuant to section 201 and the safety net it provides me. 17 Ground 1 is framed as a denial of procedural fairness. However, the particulars to that ground allege that the Minister failed to "adequately" consider a relevant consideration, being the risk the applicant posed to the Australian community. However, it is clear from the Minister's consideration of the applicant's criminal conduct and the risk of re-offending, which is outlined at [7] – [8] above, that the Minister did consider the risk that the applicant posed to the community and concluded that the applicant represented an "unacceptable risk of harm to the Australian community". Further, it is not the role of this Court on an application for judicial review to assess the merits of the Minister's assessment of this risk. Consequently, ground 1 must fail. 18 Ground 2 is framed as an allegation of a reasonable apprehension of bias, based on "the Minister's public statements and comments regarding the way he was going to deal with the position of visa holders who had committed serious offences". However, as the Minister submitted, this ground is not properly particularised and must fail due to the absence of any evidence of such public statements by the Minister. 19 Ground 3 is framed as a denial of procedural fairness. However, as with ground 1, the particulars to this ground disclose an allegation that the Minister failed to consider a relevant consideration, being the best interests of the applicant's grandchildren. However, it is clear from the Minister's consideration of the best interests of minors as a primary consideration, which is outlined at [10] above, that the Minister did consider the best interests of the applicant's grandchildren, both individually and collectively. Further, as the Minister submitted, the Minister's conclusion that the protection of the Australian community outweighed any countervailing considerations including the best interests of his grandchildren demonstrates an orthodox application of the balancing process involved in exercising the discretion under s 501(2) of the Migration Act. Consequently, ground 3 must also fail. 20 Ground 4 seeks to rely on s 201(a)(b)(i)(ii)(A)(B)(C) of the Migration Act to support the assertion that the applicant is "protected and exempted from being deported from Australia". No such provision exists. Instead, it appears that the applicant is seeking to rely on s 201 of the Migration Act. That section provides that: Where: (a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence; (b) when the offence was committed the person was a non-citizen who: (i) had been in Australia as a permanent resident: (A) for a period of less than 10 years; or (B) for periods that, when added together, total less than 10 years; or (ii) was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder; (A) for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or (B) for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and (c) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year; section 200 applies to the person. 21 Section 200 of the Migration Act provides that: The Minister may order the deportation of a non-citizen to whom this Division applies. 22 Therefore, it is clear that these provisions do not have the operation for which the applicant contends and are of no assistance to the applicant in this case. Further, as the Minister submitted, irrespective of the length of time for which the applicant had been in Australia, he held a temporary visa which was susceptible to cancellation. Accordingly, ground 4 must also fail. 23 Ground 5 alleges that by reason of certain provisions of the Migration Act, the Minister's decision to cancel the applicant's visa is "beyond power, invalid and unconstitutional". However, this ground is not particularised in any way. The Minister's decision to cancel the applicant's visa falls within the power conferred by s 501(2) of the Migration Act. Further, as the Minister submitted, s 501 of the Migration Act is well within the legislative competence of the Commonwealth Parliament, in particular the aliens power in s 51(xix) of the Constitution. This is supported by the judgment of Allsop CJ and Katzmann J in NBNB v Minister for Immigration and Border Protection (2014) 220 FCR 44; [2014] FCAFC 39 at [8]. Consequently, ground 5 must also fail. 24 Ground 6 is framed as a failure to warn. As the Minister submitted, this ground appears to rest on the premise that the applicant's visa could not be cancelled. However, as noted above, s 201 of the Migration Act does not have this effect and does not provide the applicant with a "safety net". Further, as the Minister submitted, the Minister was not obliged as a matter of procedural fairness to give the applicant an opportunity to comment on his preliminary view or his thought processes before making the cancellation decision. Accordingly, ground 6 must also fail. 25 The applicant, assisted by his daughter, made oral submissions at the hearing in support of his application. In substance he referred to four matters. First, the applicant submitted that the Minister's finding that he had originally entered Australia on a visa was incorrect, and that he had instead entered Australia on a New Zealand passport. Second, the applicant submitted that the Minister's finding that he had attended rehabilitation was incorrect as he had never attended a drug rehabilitation facility despite his repeated requests to be admitted to such a facility. Had he been given access to a drug rehabilitation program, he would not now be facing deportation. Third, the applicant submitted that his serious criminal record was due to the effects of medication he had been prescribed to treat his mental illness. He had now stopped taking this drug and was a different person. Fourth, the applicant submitted that his mother had been diagnosed with an illness. 26 In respect of the first matter, as the Minister submitted, the applicant's New Zealand passport did not give him a right to enter Australia and from 1994 onwards he held a temporary visa. This is the visa that the Minister cancelled. No legal error on the part of the Minister is disclosed in respect of this first matter. 27 In respect of the second matter, the rehabilitation program that the Minister was referring to in his reasons was the Justice Health New South Wales Connections Project. The applicant conceded that he had participated in this program as a condition of a sentence imposed for a previous criminal conviction. This discloses no legal error on the part of the Minister. Further, the Minister was not obliged to consider the applicant's requests to be admitted to a drug rehabilitation facility, particularly in circumstances where the applicant had not raised this matter in his submissions to the Minister. 28 In respect of the third matter, the Minister did take into account the fact that the applicant's substance abuse and mental health conditions had contributed, in part, to his criminal conduct, as is outlined in [8] and [13] above. This leaves the submission that much of the applicant's criminal conduct could be attributed to the side-effects of a prescription medication, and that since the applicant had stopped taking this medication his behaviour had dramatically improved. However, the applicant did not raise this in his submissions to the Minister, despite his assertion that he stopped taking the medication well before the Minister's decision. In these circumstances, no legal error on the part of the Minister can be said to arise from the Minister not having considered a matter which the Minister had no way of knowing. 29 In respect of the fourth matter, the Minister did consider the applicant's mother's illness and the effect that the applicant's removal would have on the applicant's mother, as outlined in [12] above. In these circumstances, no legal error is exposed in the Minister's decision. 30 For these reasons, the Minister's decision to cancel the applicant's visa involved no legal error. In these circumstances, the application must be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 4 June 2015