Tapiki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 391

Federal Court of Australia

Tapiki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 391 Appeal from: Tapiki and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1228

File number(s): NSD 520 of 2021

Judgment of: BROMWICH J

Date of judgment: 14 April 2022

Catchwords: MIGRATION – application for judicial review of a decision of the Administrative Appeals Tribunal – where the Tribunal affirmed a decision of a delegate of the first respondent to refuse a request to revoke the cancellation of the applicant's visa – where no meaningful submissions made as to error – where no error on the part of the Tribunal otherwise identifiable – application dismissed

Legislation: Migration Act 1958 (Cth) ss 499, 501(3A), 501CA

Division: General Division

Registry: New South Wales

National Practice Area: Administrative and Constitutional Law and Human Rights

Number of paragraphs: 22

Date of hearing: 22 March 2022

Counsel for the Applicant: The applicant appeared on his own behalf

Counsel for the First Respondent: T Reilly

Solicitor for the First Respondent: Sparke Helmore

ORDERS NSD 520 of 2021

BETWEEN: KINGSTON TAPIKI Applicant

AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by: BROMWICH J DATE OF ORDER: 14 April 2022

THE COURT ORDERS THAT:

1. The originating application dated 1 June 2021 be dismissed. 2. The applicant pay the first respondent's costs as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

Introduction 1 This is an application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal, made on 11 May 2021. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to refuse a request by the applicant, Mr Kingston Tapiki, to revoke the cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. His visa had been cancelled by reason of him being sentenced to a term of imprisonment for 12 months, as mandated by s 501(3A) of the Migration Act 1958 (Cth). 2 The Court endeavoured to obtain pro bono representation for Mr Tapiki. A referral was made to an experienced migration law barrister who was prepared to give Mr Tapiki legal advice about this application, and apparently did so. However, no counsel were willing to appear for him. Mr Tapiki did not prepare written submissions, nor make any substantive oral submissions beyond taking some limited issue with certain factual findings of the Tribunal about his willingness to receive treatment for his mental health condition. 3 Mr Tapiki also sought to have the hearing of his application for judicial review adjourned in order to obtain further legal assistance. Mr Tapiki said this adjournment should be granted because he had an on-foot application for legal aid. After the Court sought more information from him about this legal aid application, it emerged that an application for legal aid in this matter (separate to the Court's own pro bono referral processes) has already been refused. I therefore refused the application to adjourn upon the basis that there was nothing to indicate that anything was likely to change between the time of the adjournment and any time in the reasonably foreseeable future. 4 In the present circumstances where the applicant is unrepresented and there are no written submissions in support of the application, it is important for the Court to examine the impugned decision of the Tribunal closely, which I have done.

Background 5 Mr Tapiki, a 28 year old citizen of New Zealand, first arrived in Australia in late April 1995 when he was 18 months old. He has lived in Australia for almost all his life. His criminal history started with a shoplifting conviction in May 2018. He committed numerous further offences in the intervening period, including stalking or intimidating with intent to cause fear of physical harm, and destroying or damaging property. This relevantly culminated in convictions in Sydney on 30 September 2020 for affray, assault occasioning actual bodily harm, and being armed with intent to commit an indictable offence. 6 Those 30 September 2020 convictions arose out of two separate incidents in July 2020. It appears that at some of these offences may have arisen out of Mr Tapiki reacting badly to a racial slur when he was intoxicated, as was submitted by Mr Tapiki's representative at the sentencing hearing before the Local Court. At that sentencing hearing, the explanation for the more serious offences appeared to be grounded in a "serious escalation" in the deterioration of Mr Tapiki's state of mental health. 7 Mr Tapiki was sentenced to an aggregate head sentence term of 12 months imprisonment for the offences of affray, assault occasioning actual bodily harm, and being armed with intent to commit an indictable offence, with a non-parole period of four months. He abandoned a severity appeal to the District Court of New South Wales. Because of this head sentence, his visa was subject to mandatory cancellation on 29 October 2020 while he was serving that prison sentence. Upon his release from prison he was taken into immigration detention and is currently held in Western Australia. 8 Mr Tapiki's request that his visa cancellation be revoked was refused by a delegate of the Minister on 15 February 2021. His application for merits review of the delegate's decision by the Tribunal failed, with the delegate's decision being affirmed on 11 May 2021.

Before the Tribunal 9 The Tribunal, after outlining the background, the statutory framework, and the usual issues to be determined on a review in this kind of merits review application, found that Mr Tapiki did not pass the character test because he had a substantial criminal record based on his sentence of 12 months' imprisonment. The Tribunal then considered whether there was another reason why the visa cancellation should be revoked, guided by the relevant parts of Direction 90 made by the Minister under s 499 of the Migration Act 1958 (Cth), which was binding on the Tribunal. 10 In relation to the mandatory consideration of protection of the Australian community, the Tribunal considered Mr Tapiki's offending and was satisfied that it was serious. The Tribunal found that his crimes of violence in physically attacking members of the public were significantly serious. The Tribunal was also concerned with the progression from shoplifting to physical violence and the destruction of property, later noting the relatively short period over which this escalation had occurred. The Tribunal found the nature of the harm if he were to reoffend would be very serious and was likely to involve significant physical, psychological and financial harm to members of the Australian community, also finding that the offending showed a discernible pattern of disregard for the law, and abusive and threatening conduct. 11 The Tribunal was concerned that there was no evidence Mr Tapiki had taken any meaningful steps to address his mental health issues or drug and alcohol abuse. It found there was a significant risk he would reoffend on account of his reluctance to engage with treatment for his mental health condition; that he had only attended two meeting of Narcotics Anonymous whilst in prison; that he had a lack of insight or remorse into his offending; and that there would be a lack of any substantial support network if he was released back into the community. 12 The Tribunal found that Mr Tapiki had been provided with opportunities to address the causes of his offending to no avail and that he was averse to further treatment. Mr Tapiki expressly denied such aversion to treatment at the hearing in this Court, but such a factual matter is not something that this Court can review, at least in the circumstances of this case. 13 The Tribunal ultimately found the risk to the Australian community was substantial and accordingly found protection from that risk weighed heavily against revoking the visa cancellation decision. 14 The Tribunal was satisfied that the expectations of the Australian community weighed against revocation due to Mr Tapiki's criminal conduct. However, the Tribunal gave this considerably less weight, finding in accordance with Direction 90 that Australia may afford a higher level of tolerance of the criminal conduct of non-citizens who have lived in Australia for most of their life from a very young age. 15 The Tribunal accepted Mr Tapiki had a genuine intention to have a relationship with his nephew and play a positive role in his life, but noted they had not met because the child was born after he went to prison. While the Tribunal was satisfied that this supported revocation, it had less weight due to the lack of an existing relationship, and its non-parental nature. 16 The Tribunal accepted Mr Tapiki did not have any existing relationships in New Zealand to assist with his integration back there, but found that he would have access to a comparable standard of living and support for his mental health and substance abuse issues, and would have the same access to social, medical and economic support as other citizens. Overall, this consideration was found to weigh in favour of revocation. 17 In considering the strength, nature and duration of Mr Tapiki's ties to Australia, the Tribunal found it was apparent he was estranged from his parents. The Tribunal therefore did not accept he would have an active role in caring for his mother following from a stroke, as he claimed. The Tribunal further found he had limited social and family support in Australia, referring to case notes from Corrective Services NSW that he had not informed his friends or family of his imprisonment. The Tribunal noted that it appeared that Mr Tapiki's mental illness and drug use had left him isolated and ostracised, with the exception of his twin brother. The Tribunal accepted that Mr Tapiki's twin brother had offered to support him if he were to be released back into the community. This consideration was found overall moderately favoured revocation. 18 After weighing all of these considerations, the Tribunal found the correct and preferable decision was to affirm the delegate's decision.

Judicial review application 19 Mr Tapiki filed an originating application for review by this Court on 3 June 2021. That application asserted a number of errors on the part of the Tribunal, without particulars. In the accompanying affidavit to that application, Mr Tapiki asserted by way of particulars that: (a) the Tribunal's decision was unreasonable; (b) the Tribunal did not properly apply s 501CA(4) of the Migration Act; (c) the Tribunal filed to take a relevant consideration into account; (d) there was no evidence or insufficient evidence to support the Tribunal's findings; (e) the Tribunal failed to exercise properly its discretion under s 501CA(4) of the Migration Act; (f) the Tribunal's decision involved an error of law; (g) in making its decision, the Tribunal did not comply with the rules of natural justice and/or denied him procedural fairness. 20 The Minister did not suggest that that if any of those errors were established, they could not afford a possible basis for the Tribunal's decision being overturned. However, the Minister submits that in the absence of particulars or other means of identifying any such error, all such grounds must fail. 21 I have carefully considered the Tribunal's reasons and have not been able to identify any legal error in the process or reasons given, whether advanced in the originating application or otherwise, let alone the necessary jurisdictional error. Unfortunately for Mr Tapiki, there is no apparent proper basis for overturning the Tribunal's decision.

Conclusion 22 The originating application must be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.

Associate: Dated: 14 April 2022