Prasad v Minister for Home Affairs [2019] FCAFC 87

FEDERAL COURT OF AUSTRALIA

Prasad v Minister for Home Affairs [2019] FCAFC 87 Appeal from: Prasad v Minister for Home Affairs [2019] FCA 50

File number: NSD 232 of 2019

Judges: WIGNEY, BROMWICH AND BURLEY JJ

Date of judgment: 24 May 2019

Catchwords: MIGRATION – appeal from orders of a Judge of the Federal Court of Australia dismissing an application for judicial review of a decision not to revoke the automatic cancellation of the appellant's visa on character grounds – held: appeal dismissed

Legislation: Migration Act 1958 (Cth) ss 501(3A), 501CA(3), 501CA(4)

Cases cited: Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; 250 FCR 209

Date of hearing: 24 May 2019

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: Catchwords

Number of paragraphs: 14

Counsel for the Appellant: The Appellant appeared in person

Counsel for the Respondent: Ms A Douglas-Baker

Solicitor for the Respondent: Sparke Helmore

ORDERS NSD 232 of 2019

BETWEEN: JITENDA PRASAD Appellant

AND: MINISTER FOR HOME AFFAIRS Respondent

JUDGES: WIGNEY, BROMWICH AND BURLEY JJ DATE OF ORDER: 24 MAY 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the respondent's costs of and incidental to the appeal as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Revised from transcript

THE COURT: 1 This is an appeal from orders made by a judge of this Court, dismissing an application for judicial review of a decision made by the Parliamentary Secretary to the Minister for Home Affairs, using the unofficial title "Assistant Minister for Home Affairs": see Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68; 250 FCR 209 at [38]-[42]. The Minister was the respondent below, and is the respondent to this appeal. The Parliamentary Secretary had decided not to revoke the automatic cancellation of the appellant's visa on character grounds. 2 The appellant is a Fijian national who arrived in Australia in 1995, aged 23 years. Apart from two brief trips outside Australia in 1997 and 2005, he has lived here since his arrival. He is now 48 years of age, has lived in Australia for over half his life and most of his adult life and considers Australia to be his home. He has two adult sons, one of whom has lived with him since the parents separated. The other son has lived with his mother and is estranged from the appellant. 3 On 29 September 2016, the appellant was convicted of domestic-related summary offences of assault occasioning actual bodily harm, stalking or intimidating and contravening a domestic violence order. He was sentenced in the Local Court of New South Wales to a backdated 24 months' imprisonment, with a minimum term of 12 months to be served. On 16 February 2017, his visa was cancelled. On 28 July 2017, the appellant was detained following his release from prison. He has remained in immigration detention since then. 4 The visa cancellation decision was made by a delegate of the Minister under s 501(3A) of the Migration Act 1958 (Cth), by reason of the appellant failing the character test arising out of his conviction and imprisonment for the domestic violence and related offences outlined above. The Minister gave written notice of the visa cancellation decision, and invited the appellant to make representations about revocation of that decision, in accordance with s 501CA(3). The appellant responded to that invitation by requesting that the visa cancellation decision be revoked and making representations in support of that request. The Minister, which for this purpose includes the Parliamentary Secretary, was empowered, under s 501CA(4), to revoke the visa cancellation decision in response to such representations if satisfied that either the appellant passed the character test, or there was another reason why that decision should be revoked. The appellant expressly acknowledged that he failed the character test, but advanced other reasons why the visa cancellation decision should nonetheless be revoked. 5 The Parliamentary Secretary, acknowledging representations had been in accordance with the invitation, was not satisfied either that the appellant passed the character test, or that there was another reason why the visa cancellation decision should be revoked, such that the power to revoke was not enlivened. That non-revocation decision was made on 24 July 2018. 6 The appellant's application for judicial review before the primary judge contained the following two grounds: 1. The break up of my family unit. 2. The Minister did not look in to the care and welfare of my family. 7 The primary judge accepted the Minister's submission that the first ground did not rise above a request for merits review. Her Honour observed that findings had been made about the impact of the appellant's removal from Australia on his family unit, but that this did not require any different decision to be made. Thus no jurisdictional error in relation to the reasons for the non-revocation decision of the kind necessary for judicial intervention had been identified, let alone established. 8 The primary judge said of the second ground that it did not identify any particular failure to consider the care and welfare of the appellant's family in the reasons for the non-revocation decision. Her Honour accepted the Minister's submission that no such failure was to be found in a fair reading of those reasons. Her Honour recorded and apparently accepted the Minister's submissions to the effect that the reasons for the non-revocation decision: (1) identified and considered at some length the various matters identified by the appellant as relevant to the financial and emotional welfare of each of the members of his immediate and extended family; (2) concluded that his immediate and extended family would experience emotional and practical hardship if the decision were not revoked; and (3) found that the interests of the applicant's immediate and extended family did not outweigh the protection of the Australian community. 9 After briefly assaying a range of authority on the topic of jurisdictional error, none of which was in doubt, her Honour concluded that it could not be said there was any failure to consider, or to give proper, genuine and realistic consideration to, any aspect of the matters raised by the appellant, or in his documents in support, relevant to the welfare and interests of his immediate and extended family. 10 As neither ground of review was made out, the application was dismissed with costs. 11 The appellant's notice of appeal contains the following handwritten grounds (paragraph numbering added): 1. Assistant Minister did not consider submission 2. Review of submissions on more evidence 3. I want Assistant Minister to look at all my papers again 4. Didn't submit any submission decision for my defence and had no legal advice 12 The appellant is not legally represented. At the hearing of the appeal, he relied upon a bundle of documents prepared after the primary judge's decision was made. They comprise documents from him as the author, a document signed by his mother, and a document signed by his older son. Those documents describe in some detail the significant impact that his removal from Australia and return to Fiji will have on him, on his mother, and on his son. This includes his mother's age and ill-health, how she depends on him, and events she has suffered since he has been in custody and then in immigration detention. It also describes how his son's partner is soon to have a baby, how he is needed to assist, and his understandable desire to be a part of his grandchild's life. All that material constitutes further reasons why the visa cancellation decision should be revoked. However, unfortunately for the appellant, this material did not exist at the time of the non-revocation decision and therefore cannot be used to establish an error on the part of the primary judge, or any jurisdictional error in the non-revocation decision. 13 The following are the appropriate conclusions to be reached on this appeal, in significant measure assisted by the Minister's written submissions: (1) grounds 1, 2 and 3 are without particulars, do not identify any jurisdictional error in the reasons for the non-revocation decision and do not rise above seeking merits review (or, in the case of ground 3, are no more than a plea for reconsideration of the merits of the revocation request); (2) ground 1 and the first part of ground 4 are factually incorrect in that submissions were made by the appellant and were considered as part of the reasons for the non-revocation decision; (3) if the first part of ground 4 is instead referring to the proceedings before the primary judge, there is no basis for any conclusion that the appellant did not receive the non-revocation decision or the reasons for that decision, as both were signed for and were in any event contained in the court book, and there is no basis for concluding that the appellant did not have a copy of the court book or of the Minister's submissions prior to the hearing before her Honour; (4) the second part of ground 4, referring to the absence of legal advice given to the appellant, cannot give rise to any jurisdictional error in the revocation request determination process, and it is not in any event apparent what any such advice would have achieved in the circumstances; (5) the primary judge considered the appellant's submissions in support of his revocation request and the reasons for the non-revocation decision, concluding that each such submission was taken into account and that the findings made were open to be made; (6) no jurisdictional error is identified in the reasons for the non-revocation decision; and (7) no appellable error is identified in the primary judge's reasons or conclusions. 14 None of the grounds of appeal identify or establish any error on the part of the primary judge. The appeal must therefore be dismissed. There is no proper reason why the appellant should not pay the Minister's costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wigney, Bromwich and Burley .

Associate: Dated: 30 May 2019