BY JAMES BARRETT

Notoriously, Aboriginal people have been forced to live by Australian law. Surprisingly, Australian law may force Aboriginal people out of Australia.

Such is the predicament of Mr Justin Hands, an adopted member of the Aboriginal community at Wallaga Lake for nearly 35 years, whose life in Australia depends on a decision by the Minister for Home Affairs under 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’). A decision was made against Mr Hands, but the Full Court of the Federal Court, led by Allsop CJ, in Hands v Minister for Immigration and Border Protection [2018] FCAFC 225, held the decision was made in jurisdictional error and remitted the matter for reconsideration.

Mr Hands’ case demonstrates the human consequences and occasional irony of Australia’s migration law with unprecedented force and reaffirms:

Australian society’s cultural awareness and appreciation that kinship, family and community lie at the heart of Aboriginal society, underpinning its laws, rules, and social behaviour: [50]

This post discusses the Full Court’s decision, the decisions below, and three narrow legal propositions emerging from the decisions for migration lawyers: first, that an adopted Aboriginal person may be deported; secondly, that Anglo-Saxon notions of community may not always be relevant; and thirdly, that the relevant community interests may be very close to home. It also examines the wider socio-legal consequences of the proposition that the integrity of kinship networks are crucial to Aboriginal communities.

Background and Visa Cancellation

Mr Hands arrived in Australia from New Zealand in 1974 when he was three: [4]. He never applied for Australian citizenship because he thought his mother applied for him when he was small. He has lived here on an absorbed person visa since 1994 by operation of s 34 of the Act. His mother and father were strict at best and violent at worst: [15]. He left home when he was twelve or thirteen to be taken in by a family of the Wallaga Lake Aboriginal community. Ever since, he has lived and worked in that community. He is husband to an Aboriginal wife, father and grandfather to Aboriginal children, a labourer on Aboriginal projects and sportsman on Aboriginal football teams. His community considers him one of their own, an Aboriginal or ‘Koori’ man of the South Coast of New South Wales: [15]-[17]. Like many Australians he has struggled with drugs, alcohol and violence: [18]-[20]. In 2016 he was convicted in the Local Court at Batemans Bay for offences about domestic violence and sentenced to imprisonment for 12 months: [5]. This caused his visa to be mandatorily cancelled under s 501(3A) of the Act. Mr Hands faced the prospect of removal from the community and traditional country of his adoptive Aboriginal family.

The Assistant Minister’s Decision

The Assistant Minister was tasked with the decision of whether or not to revoke the mandatory cancellation of Mr Hands’ visa under s 501CA(4). He could not be satisfied Mr Hands passed the ‘character test’ – this was not disputed. He thus considered whether there was ‘another reason’ to revoke the cancellation under s 501CA(4)(b)(ii). He gave ‘primary consideration’ to the best interests of children in Mr Hands’ life: [35]. He gave ‘significant weight to the serious nature of the crimes committed by Mr Hands’ and the potential harm to the Australian community if Mr Hands reoffended: ibid.

He also considered the ‘strength, nature and duration of Mr Hands’ ties to Australia’ and the ‘extent of impediments if removed’ to New Zealand: [29], [31]. These were evidenced by statements of Mr Hands, his wife, family and community members. Too lengthy to restate here, their effect was put into words by Allsop CJ ([22]):

The materials…reveal with some evocative elegance from their modest understatement and their lack of hyperbole, the possibly (indeed likely for some) devastating human consequences that removal will have for Mr Hands, his partner, his children (adult), his grandchildren and his family; and the effect on the Aboriginal community itself of taking one of its members – an accepted Koori man – away from it.

Nevertheless, the Assistant Minister said ([31]):

Mr HANDS … states that being made to leave Australia would impact his state of mind, and that as far as he knows he does not have any relatives in New Zealand nor contact with anyone. He has not travelled to New Zealand since he arrived in Australia in 1974 and would have no support in New Zealand.

I note that in their letters of support, friends and family have submitted that Mr HANDS has a strong connection to Australia and deportation would have a ‘huge’ impact on his mental, emotional and physical wellbeing as he has does not have a support network in New Zealand.

While I accept that Mr HANDS may experience some emotional and psychological hardship if removed from Australia and separated from his family, specifically his de facto partner, New Zealand is culturally and linguistically similar to Australia and … Mr HANDS will have access to these services equal to that of other citizens of that country, which would help to facilitate his integration back into its society. Whilst I acknowledge Mr HANDS may experience short term hardship, I find that over time he would be capable of settling In New Zealand without undue difficulty (emphasis added).

The Assistant Minister decided not to revoke the cancellation of Mr Hands’ visa.

The Decision on Judicial Review

Mr Hands applied for judicial review in the Federal Court with the assistance of Dr Pritchard SC and Mr Gregory of counsel through the Court Referral for Legal Assistance Program, without success: Hands v Minister for Immigration and Border Protection [2018] FCA 662.

The primary judge considered three grounds of review: (1) the Assistant Minister did not give real consideration to Mr Hands’ representations; (2) he made findings of fact without evidence and indeed despite contrary evidence; and (3) his decision was legally unreasonable: [20].

First, the primary judge drew upon authorities including Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 252, [43]-[47] (‘Carrascalao’) and Goundar v Minister for Immigration and Border Protection [2016] FCA 1203 [56] in deciding that, although formulaic statements and sweeping generalisations made by the Assistant Minister did not shield his reasons from scrutiny, his reasons showed real consideration: [31]-[32].

Secondly, the primary judge said the statements of Mr Hands and his community provided background ‘framework’ but no ‘specific evidence is required to underpin the Assistant Minister’s conclusion’ that the healthcare, social support systems and language in New Zealand are similar to Australia and would facilitate Mr Hands’ reintegration: [38].

Thirdly, the primary judge referred to his general observations in Griffiths v Minister for Immigration and Border Protection [2018] FCA 629 [2]-[64] ‘about the human dimension of the statutory scheme concerning the mandatory cancellation of visas on character grounds and the need for the Court to observe the boundaries of its jurisdiction’: [42]. His Honour said the ultimate decision may seem ‘harsh or even “cruel”’ but was within ‘the Assistant Minister’s area of decisional freedom and is not arbitrary or capricious’ and the reasons disclosed ‘an intelligible justification’: ibid. Mr Hands did not press this complaint on appeal, insofar as it was distinct from his complaint that the decision relied on central findings made without evidence.

The Full Court’s Decision

Allsop CJ delivered the lead judgment for the Court, which allowed Mr Hands’ appeal: [2018] FCAFC 225.

The Court considered two complaints. The first was the primary judge erred in deciding the findings made by the Assistant Minister about hardship were not baseless: [43]. The primary judge held that no specific evidence was required to conclude that conditions in New Zealand are comparable to Australia, as the Assistant Minister did in paragraph [35] of his reasons (above). But the comparability of conditions was ‘hardly to the point’: [44]. The point ‘was about the whole finding expressed in the last sentence that whilst Mr Hands may experience short term hardship…he would be capable of settling in New Zealand without undue difficulty’: [44]. Allsop CJ said the Assistant Minister’s decision, if unrevoked, would cause ‘lifelong grief and psychological hardship’ to him, his family and his community: [44]. His Honour continued ([45]):

The separation of Mr Hands from his community, his wider family, his partner, his children, grandchildren and step-grandchildren is a life-changing decision, potentially life-destroying. The statements that he “may experience some emotional and psychological hardship” and “may experience short term hardship, [but] would be capable of settling in New Zealand without undue difficulty” were simply incapable of being reasonably made by any decision-maker, there being no evidence at all to support them, and all evidence being to the contrary.

The ‘central importance’ of these unreasonable findings grounded jurisdictional error: [46].

Allsop CJ then reflected on Mr Hands’ second complaint: the primary judge erred in deciding the Assistant Minister really considered Mr Hands’ representations on the potential destructive effect of forcibly removing a member of the Aboriginal community: [48]. His Honour said:

… nearly 30 years after the Royal Commission into Aboriginal Deaths in Custody, two decades after the Stolen Generations Report, and after nearly forty years of recognition of land rights based on Aboriginal community of title, it is surely now part of Australian society’s cultural awareness and appreciation that kinship, family and community lie at the heart of Aboriginal society, underpinning its laws, rules, and social behaviour ([50] (citations omitted)).

The Assistant Minister did not consider or barely considered these lessons: [51].

Further, His Honour observed the countervailing consideration relied on by the Assistant Minister was the protection of the Australian community, but in ‘everyday human terms’ this was ‘the community on the South Coast of New South Wales and, given the nature of Mr Hands’ offending, principally the local Aboriginal community’: ibid.

Lessons and Conclusion

Every week the Court hears cases of convicted people who have lived in Australia for almost their whole lives but face deportation. Many will say they are ‘our’ criminals. Some will use Mr Hands’ case to argue they should stay in Australia. The reality is his case was highly unusual. Only three narrow legal propositions emerge from it.

First, migration law contemplates the forced removal of an Aboriginal person from their kinship networks and ancestral lands, at least if they were adopted. This year the High Court will hear the constitutional claims of two non-citizens that they were falsely imprisoned in immigration detention, after their visas were mandatorily cancelled, because as people of Aboriginal ancestry they could not be aliens or deported: Love v Commonwealth; Thoms v Commonwealth [2019] HCATrans 1.

Secondly, it may be erroneous to always apply an Anglo-Saxon understanding of community. The Aboriginal community is tied together and to the Australian land in unique ways. These ties have survived despite historical injustice, including the torturous injustice of forced removal. It would not be foolish to suggest special ties may bind other minority communities, such as communities germinated by European or South-East Asian refugees.

Thirdly, in everyday human terms the community affected by the crimes of an applicant may not be a faceless nation at large, but their family and neighbours – people who also have very strong countervailing interests in the applicant retaining a visa. Although a decision maker may adopt a wide range of conceptions about the Australian community (see generally Carrascalao [156]-[158]) a decision maker who ignores this fact may flirt with error. This will depend on the reach of ripple effects caused by an applicant’s offending.

The most enduring contribution of Allsop CJ’s judgment will be outside of migration law. One can readily imagine his Honour’s statement as to modern Australia’s appreciation of Aboriginal community being cited in various fields of law and social reform: the sentencing and management in custody of Aboriginal offenders, the development of social programs for Aboriginal communities, and the ongoing debate over policies for the care and protection of Aboriginal children.

James Barrett is a solicitor at Herbert Smith Freehills.

Suggested citation: James Barrett, ‘The Deportation of an Aboriginal Man Frustrated: Hands v Minister for Immigration and Border Protection’ on AUSPUBLAW (13 March 2019) <https://auspublaw.org/2019/03/the-deportation-of-an-aboriginal-man-frustrated/>.(opens in a new tab)>