Jagara v Minister for Immigration and Border Protection [2018] FCA 538

FEDERAL COURT OF AUSTRALIA

Jagara v Minister for Immigration and Border Protection [2018] FCA 538 File number: NSD 1924 of 2017

Judge: LEE J

Date of judgment: 17 April 2018

Catchwords: MIGRATION – review of decision not to revoke a decision to cancel a visa – grounds relied upon do not demonstrate jurisdictional error – application dismissed

Legislation: Migration Act 1958 (Cth), ss 501C(4), 501CA(4), 501(3A)(a)(i), 501(6)(c) Federal Court Rules 2011, r 4.12

Cases cited: Hui v Commonwealth of Australia [2001] FCA 69 Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 351 ALR 153 NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 Picard v Minister for Immigration and Border Protection [2015] FCA 1430

Date of hearing: 17 April 2018

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 26

Counsel for the Applicant: The applicant appeared in person

Counsel for the Respondent: Ms A B Douglas-Baker

Solicitor for the Respondent: Sparke Helmore Lawyers

ORDERS NSD 1924 of 2017

BETWEEN: BENJAMIN JAGARA Applicant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent

JUDGE: LEE J DATE OF ORDER: 17 APRIL 2018

THE COURT ORDERS THAT:

1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from the transcript)

LEE J:

A Introduction 1 In October 2017, the respondent (Minister), acting personally, made a decision pursuant to s 501C(4) of the Migration Act 1958 (Cth) (Act) not to revoke a decision made in October 2016, pursuant to which the applicant's Class BS Partner (Residence) Subclass 801 (Partner) visa was cancelled. The statement of reasons setting out the Minister's decision, including the reference to the material to which the Minister had regard, is set out in Exhibit A at pages 12-21 (Minister's Reasons). It will be necessary to return to the Minister's Reasons in some detail below. 2 By originating application filed in November 2017, the applicant seeks judicial review of the Minister's decision and, to that end, filed two documents which set out his contentions. The first is attached to the originating application as annexure AB2. In that document, the following "Grounds of Application" are set out: 1) Unjust Decision by the Minister of Immigration based on Assumption within the law criteria. 2) Unjust Decision by Minister of Immigration based on best interest of Minor children of Australia. 3) Unjust Decision by Minister of Immigration based on separating biological father from Australian Citizen Kids. 4) Unjust Decision by Minister of Immigration based on unfair decisions not to help de-fecto partner support and raise children by biological father. 5) Unjust Decision by Minister of Immigration based on Separation from Australian Immediate Family ties. 6) Unjust Decision by Minister of Immigration based on unfair Decision on Professional Educational counselling. (Uncorrected) 3 The second document is an affidavit affirmed by the applicant on 16 February 2018, which identifies the following additional matters under the heading "Detail of Relief Sought": 1) Under Direction 65 Migration act 1958 the Decision maker took Irrelevant Consideration either then taking Relevant Considerations 2) Order that the court appoint me a Solicitor/Lawyer 3) Cost (Uncorrected) 4 To this affidavit there was also an annexure (AB1) which made reference to "Grounds of Application" as follows: 1) Unjust Decision by Minister of Immigration based on unfair best interest of Small Sister Delmah Jagara 2) Unjust Decision by Minister of Immigration based on unfair decision of family members hardship in Papua New guinea 3) Unjust decision by Minister of Immigration based on unfair assumption accidental substantial criminal recode 4) Unjust Decision by Minister of Immigration based on assumption of Risk to Australian community 5) Unjust Decision by Minister of Immigration based on Applicant Benjamin Jagara physical and mental hardship 6) Unjust Decision by Minister of Immigration based on Applicant Benjamin Jagara under Unfair remorseful apologising to past present and future Australian community 7) Unjust Decision by Minister of Immigration based on Applicant Benjamin Jagara Medical history 8) Respondent to pay cost (Uncorrected)

B Consideration 5 It would already be evident that the matters upon which the applicant relies are somewhat difficult to follow, but what is clear is that it is asserted that the Minister's decision was unjust. I am conscious that there is often a somewhat blurred line between a contention that a decision is unjust and a contention that the decision evinces legal unreasonableness, or a process of reasoning which does not disclose some rational connexion between the decision and the underlying material upon which the decision-maker relies: see Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200; (2017) 351 ALR 153 and Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1. 6 In this case, however, it does appear that what is advanced (as is reflected by the repeated contention that the decision was 'unjust'), is an attack on the underlying merits of the decision. I attempted to explain to the applicant that disagreement, even emphatic disagreement, with the Minister's decision is not a basis upon which this Court can intervene because it does not give rise to jurisdictional error. 7 Having said this, during the course of oral submissions, the applicant expanded upon some aspects of his claim, including his contention that the decision was unjust by reason of a failure to have sufficient regard to the best interests of his sister, Ms Delmah Jagara; that insufficient weight was given to the best interests of his minor children; and that regard should be had to the birth in March 2018 of a further brother of the applicant. 8 It is convenient to deal initially with each of these three matters, which received focus during the course of oral submissions. 9 As to the first, the applicant's contention was that he had an extremely close relationship with his sister which was forged following medical difficulties that his sister had at the time of her birth. The applicant pointed to the Minister's Reasons at [21], where the following was noted: I have noted Mr JAGARA has a sister, Delmah born 11 June 2004 aged 13 who resides in Australia. Although there is no information before me which states the type of relationship or level of involvement Mr JAGARA has with his sister, I find that it is in the best interests of Delmah for the mandatory visa cancellation decision to be revoked as to allow her to have a relationship with Mr JAGARA. However in the absence of any specific representations as to Delmah's relationship with Mr JAGARA, including no suggestion that she relies on Mr JAGARA for her daily care and needs, I give this less weight. (Uncorrected) 10 The applicant's point was that he did not understand that it was necessary for his young sister to have provided specific representations to the Minister on his behalf. 11 It is clear, however, when one has regard to the material sent by the applicant in response to the notice of visa cancellation, in particular the letter from the applicant to the Minister (Exhibit A at 48-49) and the Personal Circumstances Form (Exhibit A at 35-47), that no specific representation was made on behalf of the applicant concerning his relationship with his sister. In circumstances where it is for the Minister to form views as to the weight to be given to this aspect of the matter, it does not seem to me that any error is revealed. 12 As to the second matter, a similar comment can be made. At [29] of the Minister's Reasons, a reference was made to a statement by the applicant's former partner and mother of his two children, Ms Gutchen. She had stated, as is recorded at [19] of the Minister's Reasons, that the applicant was a good father to his daughters and had always supported them financially. The Minister expressly found that the applicant had a close and personal relationship with his daughters and, in these circumstances, found it was in the best interests of the children that the Minister revoke the cancellation decision. After noting this, the Minister went on to say as follows: [29] I have considered Ms Gutchen's statement that she needs Mr JAGARA to stay in Australia to help support and raise their children. I note that Mr JAGARA indicated he will reside in Cairns should the original decision be revoked, whereas Ms Gutchen lives on Erub Island; no intention of either party relocating has been indicated. In light of the distance between their residences, I find Mr JAGARA's ability to assist Ms Gutchen in a practical sense to be limited. [30] Notwithstanding, I accept that communication maybe more difficult with Mr JAGARA in Papua New Guinea and that if needed in person Mr JAGARA would not be able to assist. Therefore I accept that non-revocation may cause Ms Gutchen a degree of practical hardship. I accept also that Mr JAGARA's ability to provide such child support as he does, may be limited by the economic situation in Papua New Guinea. (Uncorrected) 13 Again, the point that seemed to be made by the applicant was that the Minister had given insufficient weight to Ms Gutchen's letter of support. For reasons I have already explained, this does not evince jurisdictional error. 14 As to the third matter raised, the recent birth of the applicant's young brother post-dated the Minister's decision and for that reason cannot, of course, rationally bear upon the challenge made to the Minister's decision. 15 A fair reading of the Minister's Reasons shows that it records consideration of the applicant's representations and the documentation provided in support, including the letters of support from the applicant's father and Ms Gutchen. Additionally, attention was directed to other relevant material. In this regard, the following findings are disclosed: (a) the applicant did not dispute the information in the National Police Certificate dated 15 June 2016 (Minister's Reasons at [8]); (b) as noted above, that it was in the best interests of the applicant's two Australian citizen daughters, aged 5 and 3, that the cancellation decision be revoked (Minister's Reasons at [13]-[14]); (c) given the applicant's parents, two sisters and two daughters resided in Australia, and the applicant also had extended family resident in Australia, non-revocation of the cancellation decision would cause emotional hardship to the applicant's family (Minister's Reasons at [24]-[25], [31]); (d) the applicant's relationship with his former de facto partner and the mother of his children ceased in 2014 (having commenced in 2012) and the parties proposed to live some distance from each other upon the applicant's release from prison, without any intention of resuming a relationship or relocating to live closer by each other, meaning that the applicant's ability to assist his former de facto partner, in a practical sense, was limited (Minister's Reasons at [28]-[29]); (e) it would be more difficult for the applicant to provide assistance from Papua New Guinea and in those circumstances the applicant's former de facto partner would experience practical hardship, and the applicant's ability to provide child support might also be limited by the economic situation in Papua New Guinea (Minister's Reasons at [30]); (f) the applicant had made a positive contribution to the Australian community through his employment as a deck hand, kitchen hand and boat skipper between 2011 and 2015, had participated in other activities and had completed some education and training in Australia (Minister's Reasons at [32]-[33], [35]); (g) the applicant would experience emotional and significant practical hardship if separated from his family, who would not likely relocate to Papua New Guinea with him, and would likely have some difficulty in re-establishing himself in Papua New Guinea, but that the applicant had the ability and capacity to maintain a basic living standard, having regard to the absence of cultural and linguistic obstacles, given the applicant had resided in Papua New Guinea for the majority of his life and that he had been primarily educated in Papua New Guinea and had acquired further qualifications and skills in Australia which were transferrable (Minister's Reasons at [40]-[43]); (h) the applicant's criminal offending was serious and involved offences of violence, including domestic violence and sexual assault, including a sexual assault on a minor cousin, and a period of incarceration (Minister's Reasons at [57]-[58]); (i) the applicant had expressed remorse and had undertaken some courses in personal rehabilitation and had made some progress in that regard; nevertheless the rehabilitation had not been tested outside the structure of prison or immigration detention in circumstances where alcohol would be freely available (Minister's Reasons at [65]); (j) notwithstanding his family support, this had not deterred the applicant from offending and was therefore a matter to which little weight could be attached in an assessment of the likelihood of the applicant's reoffending (Minister's Reasons at [61]-[62], [66]); (k) the applicant's offending commenced soon after his arrival in Australia and he had twice breached his bail conditions, which demonstrated disrespect for Australian law and was a matter relevant to an assessment of the likelihood of his reoffending (Minister's Reasons at [68]); (l) the applicant's offending escalated in seriousness from what were initially minor offences (Minister's Reasons at [69]); (m) there were inconsistencies in the applicant's submissions, in particular in relation to his relationship with his former de facto partner and as to the existence of any family living in Papua New Guinea; these matters caused the Minister not to accept the applicant's claim that he was a "changed man", which was a matter relevant to his claimed rehabilitation (Minister's Reasons at [70]); (n) there existed an ongoing risk that the applicant might reoffend and that his reoffending could cause serious psychological and physical harm to members of the Australian community, including minor children should he reoffend in a similar manner against minor children (Minister's Reasons at [71]); and (o) having regard to all of these findings, there was not another reason why the original decision should be revoked (Minister's Reasons at [80]). 16 At this juncture, it is convenient to return to the grounds identified by the applicant in writing, as identified at [2]-[4] above. 17 In respect of what might be called the irrelevant considerations ground, one of the difficulties is that there is no indication of the irrelevant considerations it is said the Minister erroneously took into account. Further, what is apparent from a reading of the Minister's Reasons, as set out above, is that the Minister did take into account representations made by the applicant and made findings which have an apparent rational or logical connexion to the materials before him. It cannot be said that the Minister did not give proper, genuine and realistic consideration to the merits of the case or that the Minister's Reasons, or the circumstances in which the Minister's decision was made, do not disclose some active intellectual process. 18 As to the complaints concerning Direction 65, this appears to be interrelated with the irrelevant considerations ground. To the extent that a contention is made that the decision cannot be justified by reference to Direction 65, this argument is difficult to follow. As is well known, Direction 65 sets out a range of matters which, if relevant in a particular case, must be taken into account where the discretion provided for in s 501CA(4) of the Act is exercised by delegates of the Minister. Direction 65 does not bind the Minister when exercising the discretion personally: see Picard v Minister for Immigration and Border Protection [2015] FCA 1430. 19 To the extent that the applicant places reliance on Direction 65, this does not appear to rise higher than a contention, which I have already dealt with, that relevant matters were not taken into account, and a contention that irrelevant matters were taken into account, which contention remained undeveloped. 20 I have attempted to understand what is meant by the contention that the decision was unjust because it was based "on Assumption within the law criteria". This contention also went undeveloped during submissions. If it is said that the Minister made assumptions as opposed to making findings of fact, this criticism cannot succeed in light of the findings summarised at [15] above, which appear from a fair reading of the Minister's Reasons. 21 To the extent that it is suggested that there is some difficulty occasioned by the failure of the Court to appoint a solicitor for the applicant, this can be dealt with shortly. First, the absence of legal representation in this Court cannot demonstrate jurisdictional error in the Minister's decision. Secondly, the applicant did have a solicitor, who ceased to act at the end of January 2018. Thirdly, any referral under FCR 4.12 is a matter for determination by the Court following an assessment of whether it is in the interests of the administration of justice; there is no automatic right to legal representation, and this system of referral is not a parallel system of de facto legal aid: see Hui v Commonwealth of Australia [2001] FCA 69 at [6] per Wilcox, Weinberg and Conti JJ. 22 The suggestion that there was "an unfair assumption accidental substantial criminal" record is unable to be explained. The applicant had been sentenced to a term of three years' imprisonment and hence fell within the statutory definition of "having a substantial criminal record" (see ss 501(3A)(a)(i) and 501(6)(c) of the Act). 23 As to the "assumption of Risk to Australian community", the Minister's assessment of future risk is an ex ante exercise, which requires consideration of past conduct: see NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at 40-41 [192] per Buchanan J. As is evident from the Minister's Reasons, the Minister took into account those matters going to rehabilitation, but it was open to him to find that the applicant posed a risk of reoffending, having regard to: (a) alcohol being a factor in the offending and the availability of alcohol; (b) the applicant's first offence occurring relatively shortly after his arrival in Australia; (c) the escalation of the seriousness of the applicant's offending; (d) the applicant's breach of bail conditions; (e) the applicant's demonstrated disrespect for Australian law; and (f) that his claimed rehabilitation had not been tested in the community. 24 During the course of oral submissions, the applicant repeatedly reaffirmed what he had previously submitted to the Minister, namely, his remorse and his apology for his past wrongdoing. That may be so, however, it is not something which can be taken into account by this Court in determining whether the Minister committed jurisdictional error, including in approaching the analysis of risk to the Australian community. 25 Finally, the applicant raises a contention that the Minister fell into error by not considering his medical history. The difficulty for the applicant is that he made no representations to the Minister in relation to his medical history. As is clear from Exhibit A at 45, the applicant answered "no" when prompted by the question "[d]o you have any diagnosed medical or psychological conditions?" No jurisdictional error is demonstrated in the Minister finding that the applicant had not identified any diagnosed conditions (see Minister's Reasons at [37]).

C Conclusion 26 For the reasons given above, the applicant's contentions do not identify jurisdictional error on the part of the Minister. Accordingly, the application must be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate: Dated: 8 May 2018