Tuakeu v Minister for Immigration and Border Protection [2016] FCA 362

FEDERAL COURT OF AUSTRALIA

Tuakeu v Minister for Immigration and Border Protection [2016] FCA 362 File number: NSD 1444 of 2015

Judge: FARRELL J

Date of judgment: 13 April 2016

Catchwords: MIGRATION – cancellation of visa by Minister on character grounds pursuant to s 501(2) of the Migration Act 1958 (Cth) – where applicant is a New Zealand citizen who arrived in Australia at age five and has resided in Australia since – where applicant convicted of robbery offences at age 19 – application for extension of time for judicial review of Minister's decision – where delay of approximately one year – merits of proposed application for review – application dismissed

Legislation: Migration Act 1958 (Cth) ss 477A, 501

Date of hearing: 11 March 2016

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 60

Counsel for the Applicant: The applicant appeared in person

Counsel for the Respondent: Mr T Reilly

Solicitor for the Respondent: Australian Government Solicitor

ORDERS NSD 1444 of 2015

BETWEEN: MALONE TUAKEU Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE: FARRELL J DATE OF ORDER: 11 march 2016

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.

REASONS FOR JUDGMENT 1 By an application lodged on 17 November 2015, Mr Tuakeu sought an extension of time to appeal a decision of the Minister made on 15 October 2014 to cancel Mr Tuakeu's Class TY Subclass 444 Special Category (Temporary) visa under s 501(2) of the Migration Act 1958 (Cth). Pursuant to s 477A(1) of the Migration Act, an application for review of the Minister's decision must be filed within 35 days of the date of the Minister's decision, that is, by 19 November 2014. Accordingly, Mr Tuakeu's application was approximately one year out of time. 2 Mr Tuakeu appeared at the hearing of the application on 11 March 2016 by video link from Wellington Correctional Centre ("Wellington CC"); he was self-represented. 3 Mr Tuakeu did not dispute that he has a "substantial criminal record" and did not pass the character test in s 501(6)(a). In issue was whether there was a sufficient explanation for the delay in seeking review of the Minister's decision and the merit of Mr Tuakeu's claim that the Minister fell into legal error in the exercise of his discretion under s 501(2) of the Migration Act. 4 Mr Tuakeu submitted that, although he is technically a non-citizen, he does not see himself that way as he has grown up in Australia and was a member of the Australian community until his imprisonment. He accepts the Minister's conclusions regarding the seriousness of his crimes and he has frequently expressed remorse for them. He says that for a short period, he "lost his way to drugs and alcohol" but that if he is given a chance he can be "a productive member of society and give back to the community and make amends" for his actions. He disputes the factual basis of immigration reports prepared by Corrective Services New South Wales dated 24 September 2012 and 18 December 2013 ("Immigration Reports") which indicated that Mr Tuakeu did not have contact with his family in Australia and that he had taken insufficient steps to address his offending behaviour. He says he has strong family ties in Australia, he is in contact with his family in Australia and he is needed to support his grandmother following the death of his grandfather. He also says that he "strongly believes" that he has taken all steps necessary to address his offending behaviour. He fears that if he returns to New Zealand, he will have no family support or stable living conditions. 5 In summary, the grounds on which Mr Tuakeu impugns the Minister's decision are that the Minister's decision was based on "false information" and the decision was made without taking into account documents which he sent or asked to be provided to the Minister. Mr Tuakeu said that what he wants is a review by the Minister with all of the documents which should have been in front of him so that he has a "fair chance". 6 While recognising the effort Mr Tuakeu had put into his application, at the conclusion of the hearing, I dismissed his application with costs and delivered brief ex tempore reasons. Although I found Mr Tuakeu's explanation for such a long period of delay understandable, it was nonetheless unacceptable and his grounds of appeal lacked legal merit. I indicated that I would provide more detailed written reasons and these are those reasons.