Federal Court of Australia Ratu v Minister for Home Affairs [2020] FCA 1779 File number: NSD 953 of 2020 Judgment of: DAVIES J Date of judgment: 11 December 2020 Catchwords: MIGRATION – application for judicial review of personal decision by Minister under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke mandatory cancellation of applicant's visa – whether Minister gave proper consideration to impediments if removed to country of citizenship – whether procedural fairness required Minister to put applicant on notice of possibility of decision inconsistent with Art 12(4) of the International Covenant on Civil and Political Rights – application dismissed Legislation: Migration Act 1958 (Cth) ss 198, 501, 501CA International Covenant on Civil and Political Rights, opened for signature on 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) Art 12(4) Cases cited: GBV18 v Minister for Home Affairs [2020] FCAFC 17; 274 FCR 202 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 Pennie v Minister for Home Affairs [2019] FCAFC 129 Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 20 Date of hearing: 27 November 2020 Counsel for the Applicant: Mr O Jones Solicitor for the Applicant: Firmstone & Associates Counsel for the Respondent: Mr P M Knowles with Ms E Steer Solicitor for the Respondent: Mills Oakley ORDERS NSD 953 of 2020 BETWEEN: JEREMAIA DAKUITIGA RATU Applicant AND: MINISTER FOR HOME AFFAIRS Respondent order made by: DAVIES J DATE OF ORDER: 11 DEcember 2020 THE COURT ORDERS THAT: 1. The application be dismissed. 2. The respondent's notice of contention be dismissed. 3. The applicant pay the respondent's costs of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT DAVIES J: Introduction 1 The applicant (Mr Ratu) seeks judicial review of a decision of the respondent (the Minister) made under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the mandatory cancellation of his visa under s 501(3A) of the Act. There are two grounds of review relied on by Mr Ratu. First, Mr Ratu has claimed that the decision not to revoke the cancellation involved jurisdictional error because the Minister failed to give proper, genuine and realistic consideration to the extent of impediments that Mr Ratu faces upon returning to Fiji. Secondly, Mr Ratu claims that he was denied procedural fairness because the Minister arrived at a decision that was inconsistent with Art 12(4) of the International Covenant on Civil and Political Rights, opened for signature on 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR). The Minister filed a notice of contention, contending that the Court did not have jurisdiction because the applicant's application for judicial review was filed out of time. The Minister conceded at the hearing that the application was filed within time and ultimately did not press the notice of contention. 2 For the following reasons, the application should be dismissed. Background 3 Mr Ratu is a citizen of Fiji who came to Australia in 1985 as a child aged four and in 1999 was granted a Class AG Subclass 833 Certain Unlawful Non-Citizens visa. In 2001, Mr Ratu was sentenced to a term of 16 years imprisonment for murder and in 2018 sentenced to another term of imprisonment of 14 months for various offences, including assault occasioning actual bodily harm. On 21 May 2018, a delegate of the Minister cancelled Mr Ratu's visa pursuant to s 501(3A) of the Act. In June 2018, Mr Ratu made representations to the Minister pursuant to an invitation under s 501CA(3)(b) of the Act seeking revocation of the cancellation decision, and on 22 July 2020 the Minister made the decision not to revoke the original decision. This decision is the decision now under review. the minister's decision 4 The Minister was satisfied by reason of Mr Ratu's criminal convictions and sentences that he did not pass the character test. The Minister then considered whether there was another reason why the cancellation decision should be revoked pursuant to s 501CA(4)(b)(ii) of the Act. The Minister's considerations included, relevantly: (a) the extent of the impediments that Mr Ratu will face if removed from Australia to his home country of Fiji in establishing himself and maintaining basic living standards; and (b) the strength, nature and duration of Mr Ratu's ties to Australia. 5 Under the heading "Extent of impediments if removed", the Minister stated at [39]–[41]: Mr RATU is a 39 old year old man with no reported medical conditions, which could prevent him working in Fiji. I have considered that Mr RATU believes he would face serious impediments if removed to Fiji, a country in which he has not lived since he was a child. He states he would be separated from his own son, his partner and her two other children as they would not be able to join him. He would be separated from his parents, siblings and other family members. Without any remaining family connections in Fiji, Mr RATU believes he would have no family or community support to assist him in reintegration into life in Fiji including finding accommodation and employment. He does not speak Fijian and fears he may not be able to survive. I accept that Mr RATU considers Australia to be his home and that he may experience emotional hardship if removed from Australia and separated from his Australian based family, particularly his de facto partner, Ms Caldwell, his son Master [redacted] and two other minor children he has a parental like relationship with, Master [redacted] and Miss [redacted]. I accept that he has no family, friends or support network in Fiji. However, Fiji has three official languages being English, iTaukei and Hindi allowing him to communicate in one of the official languages of Fiji. As well, Mr RATU is relatively young, resourceful and worked in Australia as a scaffolder before his incarceration and I find that he possesses work skills that may assist him in securing employment in Fiji in order to establish himself and maintain basic living standards. 6 Under the heading "Strength, nature and duration of ties", the Minister referred to the fact that Mr Ratu has resided in Australia for some 35 years, having arrived as a child of four years in 1985, and has lived in Australia for most of his life from a very young age. 7 The Minister concluded there was not another reason why the cancellation decision should be revoked. In coming to that conclusion, the Minister gave significant weight to the very serious nature of the crimes committed by Mr Ratu, which were of a violent nature, and concluded that Mr Ratu represented an unacceptable risk of harm to the Australian community, and protecting the community outweighed any other consideration. Relevant legislation 8 Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because, relevantly, pursuant to s 501(6)(a) of the Act the person has a substantial criminal record on the basis of s 501(7)(a), (b) or (c) and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory. A person has a substantial criminal record if, relevantly, the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c) of the Act. 9 Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) of the Act to cancel a visa that has been granted to a person: sub-s (1). Sections 501CA(2), (3) and (4) relevantly provide: (2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for making the original decision; and (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (3) As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. Ground 1 10 Ground 1 is directed at [41] of the Minister's reasons (extracted above). It was contended that the Minister fell into jurisdictional error by failing to give proper, genuine and realistic consideration to Mr Ratu's employment prospects in Fiji in reasoning that because Mr Ratu had employment in Australia as a scaffolder he had skills that could lead to employment in Fiji. It was submitted it may be judicially noticed that Fiji has a tourism-based economy and such economies have been seriously affected by the COVID-19 pandemic. As a result, it was submitted, it may be that there is far less construction occurring in Fiji and it may remain so for some time. It was submitted that giving meaningful consideration to Mr Ratu's employment prospects in Fiji required the Minister to engage actively with how realistic the possibility of employment is and, for that purpose, to make inquiries himself about the opportunity of a person with Mr Ratu's skills actually to obtain employment as a scaffolder in Fiji by reference, for example, to country information. That submission does not withstand scrutiny. 11 The Minister is required to consider representations made by a person in response to an invitation under s 501CA(3)(b) of the Act, and the failure of a decision-maker to engage actively with a relevant representation made under s 501CA(3)(b) of the Act may constitute jurisdictional error. As the Full Court in GBV18 v Minister for Home Affairs [2020] FCAFC 17; 274 FCR 202 stated at 219 [32(a)], even though there is no explicit statutory duty on the Minister under s 501CA(4) to "consider" representations made in support of a revocation request, it is necessarily implicit in the statutory regime that there is such an obligation. That obligation does not, however, carry with it a legal duty on the Minister to make inquiries on matters of fact as part of his decision-making function: Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216; 267 FCR 643 (Maioha) at 655 [48] per Rares and Robertson JJ; Pennie v Minister for Home Affairs [2019] FCAFC 129 (Pennie) at [14]. The legal duty is to address the representation made. 12 Mr Ratu's representations included that he had worked since his release as a scaffolder from 2016 to 2018 in Australia but he did not make any specific reference to his prospects of obtaining employment if returned to Fiji. Rather, the representations included statements to the effect that he would be homeless, he had "no family connections" in Fiji, he would struggle to speak Fijian as he knew only a few words and he would lose his family as his children would not be able to visit. In the absence of any express raising of a claim about his employment prospects if returned to Fiji, the Minister had no obligation to consider the issue of employment in more detail than he in fact did: Maioha at 655–6 [50] per Rares and Robertson JJ. It was for Mr Ratu to put forward the material he wished the Minister to take into account about his prospects of employment. It was not for the Minister to investigate and make findings about the likelihood of Mr Ratu finding employment in Fiji: Pennie at [14]. 13 Moreover, even if the submissions for Mr Ratu were otherwise accepted, the asserted error would not go to jurisdiction because it has not been established that the error was material. Relevantly, it was not established that if the Minister had given further consideration to Mr Ratu's employment prospects there is a realistic possibility that it could have made a difference to the ultimate conclusion: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at 134–5 [29]–[31] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at 444–5 [44]–[45] per Bell, Gageler and Keane JJ. There was no material put forward to suggest that the Minister was mistaken in finding that Mr Ratu has work skills that may assist him in obtaining employment in Fiji: Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at 310 [69]. The requirement to prove materiality is not satisfied by speculative submissions about the state of the Fijian economy. Ground 2 14 Article 12(4) of the ICCPR provides that: No one shall be arbitrarily deprived of the right to enter his own country. 15 It was argued for Mr Ratu that he was denied procedural fairness because the Minister was obliged to put him on notice that he might make a decision which would arbitrarily deprive him of the right to enter (and remain) in Australia. In support of that argument, it was contended that: (a) Australia is Mr Ratu's "own country" within the meaning of Art 12(4) by reason that he has been in Australia since the age of four; (b) the Minister's decision not to revoke the cancellation decision "arbitrarily" deprived Mr Ratu of the right to enter and remain in Australia; and (c) that Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 (Teoh) remains good law and is authority that if the Minister is to act inconsistently with Article 12(4) of the ICCPR, the Minister must accord procedural fairness to Mr Ratu by giving notice that he intends to act inconsistently with the Article and the opportunity to Mr Ratu to respond. 16 It is unnecessary to consider whether Australia is Mr Ratu's "own country" within the meaning of Art 12(4) of the ICCPR. Nor is it necessary to consider the concept of arbitrariness for the purposes of Art 12(4) of the ICCPR or whether the decision of the High Court in Teoh remains good law. There are three fundamental reasons for rejecting this ground. 17 First, Mr Ratu's visa was cancelled by force of s 501(3A) of the Act, which requires the Minister to cancel a visa in the circumstances prescribed. There was no dispute that the circumstances prescribed applied to Mr Ratu and the Minister was required to cancel Mr Ratu's visa. It was that decision, and not the Minister's decision under s 501CA(4) of the Act, which rendered Mr Ratu liable for removal from Australia under s 198 of the Act and unable to re-enter. There is no scope for a procedural fairness obligation in respect of the Minister acting inconsistently with Art 12(4) of the ICCPR in relation to the decision under s 501(3A) by reason that the decision of the Minister to cancel Mr Ratu's visa was mandatory upon satisfaction of the matters in that section. 18 Secondly, s 501CA(4), read with s 501(3A), evinces a clear, contrary legislative intention to the proposition that procedural fairness required the Minister to provide the opportunity to Mr Ratu to make submissions on Art 12(4) of the ICCPR before making his decision whether or not to revoke the mandatory cancellation of Mr Ratu's visa. First, the mandatory operation of s 501(3A) is not conformable with Art 12(4) of the ICCPR. Secondly, as the visa was cancelled by the operation of a law that required the Minister to act inconsistently with Art 12(4) of the ICCPR, it is difficult to see how procedural fairness mandates that Mr Ratu be given the opportunity to make submissions on whether the Minister should act conformably with Art 12(4) of the ICCPR in the exercise of his power under s 501CA(4). 19 Thirdly, Mr Ratu was put on notice in any event that a decision may be taken which would result in him being removed from Australia, and although no specific reference was made to Art 12(4), Mr Ratu was specifically asked to address the "strength, nature and duration of [his] ties to Australia" and the effect of return to his country of citizenship. This was sufficient to put Mr Ratu on notice that the Minister may make a decision that was not conformable with Art 12(4) of the ICCPR. Moreover, the Minister did in fact consider both Mr Ratu's ties to Australia and the hardship he would suffer from being removed from Australia. The fact that these considerations were outweighed by other considerations does not demonstrate either any breach of procedural fairness or other reviewable error. 20 Accordingly the application should be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Davies. Associate: Dated: 11 December 2020