Carter and Minister for Home Affairs (Migration) - [2019] AATA 242

Carter and Minister for Home Affairs (Migration) [2019] AATA 242 (27 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7421
Re:David Carter
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President
Date:27 February 2019
Place:Sydney

The decision under review is affirmed.
..........................[sgd]...........................................................
The Hon. Dennis Cowdroy OAM QC, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – character test – substantial criminal record – Direction No. 65 – best interests of minor children – other considerations – strength, nature and duration of ties to Australia – impact on family members – extent of impediments if removed – impact on victims – protection of Australian community – expectations of Australian community – unacceptable risk of harm – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Divane and Minister for Immigration and Border Protection (Migration) [2016] AATA 728
DND and Minister for Home Affairs (Migration) [2018] AATA 2716
Leau and Minister for Immigration and Border Protection (Migration) [2017] AATA 918
Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141; (2014) 227 FCR 562
Secretary to the Department of Justice and Regulation v LLF [2018) VSCA 155
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
The Hon. Dennis Cowdroy OAM QC, Deputy President
27 February 2019

The applicant seeks review of a decision made by a delegate of the Minister dated 12th of December 2018. Such decision found that the applicant did not pass the character test as defined in section 501 of the Migration Act 1958 (Cth) (the Act) and represented an unacceptable risk of harm to the Australian community. The delegate considered whether there was another reason why the mandatory visa cancellation should be revoked under section 501CA(4)(b)(ii), but found that the protection of the Australian community outweighed the best interest of his child as a primary consideration and other countervailing considerations. Accordingly the delegate determined not to revoke the mandatory cancellation of the applicant’s Class BF transitional visa (“the visa”). The mandatory cancellation took effect on 16 June 2017.
FACTS
The applicant was born in the United Kingdom in November 1973. He is now 45 years of age. The applicant entered Australia as a child in April 1978 accompanied by his mother, father and brothers. The applicant attended primary and secondary schools in Australia. The applicant has had three relationships with partners during his lifetime. The applicant has a 21 year old daughter, an 18 year old son, and a 16 year old daughter living in Australia. His mother and two of his brothers reside in Australia and the applicant has several nieces and nephews living in Australia.
The applicant has an extensive criminal record. The National Police Certificate (NPC) records the offences of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 242
Decision Date: 27 February 2019

CaseChat Overview and Summary

The applicant sought review of a delegate's decision to refuse to revoke the mandatory cancellation of his visa. The delegate had found that the applicant did not pass the character test due to his substantial criminal record, posing an unacceptable risk of harm to the Australian community. The delegate considered whether there was another reason to revoke the cancellation, specifically the best interests of the applicant's child, but ultimately determined that the protection of the Australian community outweighed this and other countervailing considerations. The applicant had entered Australia as a child in 1978 and had resided there since, attending school and holding various employment. He had an extensive criminal record, leading to the mandatory visa cancellation on 16 June 2017.

The legal issues before the court were whether the delegate erred in refusing to revoke the mandatory visa cancellation. This involved assessing whether the protection of the Australian community from criminal activity outweighed the best interests of the applicant's minor children and other considerations, such as the strength and duration of his ties to Australia, the impact on his family members, and the extent of impediments to his removal. The court was required to apply Direction 65, which provides guidance on exercising powers under section 501 of the Migration Act 1958 (Cth), emphasizing the protection of the Australian community and the privilege of remaining in Australia for non-citizens.

The court reasoned that despite the applicant's lengthy residence in Australia, his attendance at school, and his family and social networks, these factors did not outweigh the primary consideration of protecting the Australian community. The applicant's participation in rehabilitation programs and detoxification had not prevented him from continuing a law-breaking lifestyle, as evidenced by drug use detected during incarceration. The court concluded that the applicant continued to represent an unacceptable risk of harm to the Australian community. Therefore, the factors supporting revocation, including his family ties and the best interests of his child, did not cumulatively outweigh the factors weighing against the exercise of discretion to revoke the visa cancellation.

Accordingly, the court found that the delegate's decision to refuse to revoke the mandatory cancellation of the applicant's visa was the correct and preferable decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The applicant seeks review of a decision made by a delegate of the Minister dated 12th of December 2018. Such decision found that the applicant did not pass the character test as defined in section 501 of the Migration Act 1958 (Cth) (the Act) and represented an unacceptable risk of harm to the Australian community. The delegate considered whether there was another reason why the mandatory visa cancellation should be revoked under section 501CA(4)(b)(ii), but found that the protection of the Australian community outweighed the best interest of his child as a primary consideration and other countervailing considerations. Accordingly the delegate determined not to revoke the mandatory cancellation of the applicant’s Class BF transitional visa (“the visa”). The mandatory cancellation took effect on 16 June 2017.FACTS The applicant was born in the United Kingdom in November 1973. He is now 45 years of age. The applicant entered Australia as a child in April 1978 accompanied by his mother, father and brothers. The applicant attended primary and secondary schools in Australia. The applicant has had three relationships with partners during his lifetime. The applicant has a 21 year old daughter, an 18 year old son, and a 16 year old daughter living in Australia. His mother and two of his brothers reside in Australia and the applicant has several nieces and nephews living in Australia. The applicant has an extensive criminal record. The National Police Certificate (NPC) records the offences of which the applicant has been convicted. A summary of the offences and the dates of the offences is as follows: The offences of which the applicant has been convicted are serious. On 16 June 2017 the Department of Home Affairs (“the Department”) mandatorily cancelled the applicant’s visa pursuant to section 501(3A) of the Act, because the applicant, in view of his substantial criminal record, did not pass the character test as defined in section 501(6)(a) of the Act and was serving a full-time custodial sentence. On 12 December 2018 a delegate of the Minister decided not to revoke the original decision to cancel a visa under section 501(CA)(4) of the Act. It is from this decision that the applicant seeks review.DIRECTION 65 Direction 65, made pursuant to section 499 of the Act provides guidance to decision-makers in assessing the exercise of powers under section 501 of the Act. As provided by clause 6.2, the first consideration under the heading of “General Guidance”, is the protection of the Australian community from harm “as a result of criminal activity or other serious conduct by non-citizens”. Under the heading “Principles”, it is stated in clause 6.3(1) that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. It continues: “Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community”.

Evidence

Evidence Before The Court

The applicant claims that his offences have resulted from mental health issues such as bipolar disorder, anxiety, depression. The applicant has a history of consuming prohibited drugs namely ice before committing some of the offences. Psychological evidence In the sentencing remarks of Judge Sides delivered on 8 November 2001, her Honour referred to a psychologist, Dr Lennings who had conducted an assessment of the offender. Dr Lennings stated relevantly as follows:“It is likely that his main diagnosis is that of a severe and prolonged adjustment disorder. The interpretation in Mr Carter’s profile is that he reveals a characteristically dysfunctional personality, that his personality is unlikely to moderate in the short or medium term unless he receives considerable and long-term therapeutic input”. Dr Lennings continued:“Mr Carter is a young man of good intellectual ability and shows evidence of a learning disorder. His adjustment as a child and adolescent was probably affected by this learning disorder, and from an early age he demonstrated an over sensitivity to others and inability to form satisfactory relationships. As he entered adulthood, his behavioural disruption worsened, and his involvement in substance abuse further disturbed his personality. Although he shows signs of a mixed personality disorder, it is probable that Mr Carter is an immature young man suffering from a severe adjustment disorder. It is possible that over the next five to ten years he will begin to mature. Long-term abstinence from substance abuse is also likely to help him develop more mature ways of acting, and, hopefully, giving him an opportunity to reform his character”. In 2015, a staff member of the Correctional Centre in which the applicant was incarcerated carried out a psychological assessment. She reported:“Mr Carter lacked genuine insight into his criminal lifestyle though maintained that he was ageing (turning forty two) and had to make changes in his life… He maintained that he had adopted the “jail mentality” due to extended periods in custody and that he was unable to overcome this. He stated whilst in the community he was engaged in the same routine he had in jail including going to bed early and waking up early. Mr Carter continued to highlight the difficulties of adhering to parole conditions including their home visits and regular appointments; though it is evident that without supervision he is unable to live a crime free life”. In the sentencing remarks of Acting Judge Marien delivered on 8 April 2016 his Honour referred to the report of a psychologist, Ms Marlene Headington dated 29 February 2016. That report indicated that the applicant was harshly punished by his mother by way of discipline; that physical abuse made a large impact on him and he had no contact with his mother since 2003. His father died in 2003 and thereafter when he was 16 he moved to live with his grandmother and resided with her for a number of years. Ms Headington reported that the relationship with the grandmother was strong and supportive and that she was a positive influence on his life. The grandmother died in 2010.

Decision

Reasons for decision

Despite the rehabilitation programs which have been made available to the applicant, and his participation in them, it is apparent that they have been unable to prevent the applicant from continuing with his law-breaking lifestyle. The record of the Community Corrections Centre at Windsor dated 18th of January 2018 refers to his drug use, and notes that in 2011 the applicant completed a detoxification. However the result of urine tests on 24 October 2016 indicate drugs, including methamphetamine and also on 25th of October 2016, 30 October 2016, 8 November 2016 and 1 December 2016. It is apparent that whilst incarcerated at Parklea Correctional Centre on 24 December 2017 the applicant admitted injecting an unknown substance in a syringe. The inference can be drawn that the applicant’s addiction to drugs remains uncured.CONCLUSION The applicant represents an unacceptable risk of harm to the Australian community and the protection and expectations of the Australian community outweigh the best interest of his child and other family members, and the other considerations including his aged mother, his lengthy residence and his family and social networks. The Tribunal finds that the factors in support of revocation relating to his family do not singularly or cumulatively outweigh the Primary Considerations, and the factors weighing against the exercise of discretion under section 501CA(4) of the Act to revoke the applicant’s mandatory visa cancellation. Accordingly the Tribunal finds that the correct and preferable decision is the decision made by the delegate to refuse to revoke the mandatory cancellation of the applicant’s visa.

Ratio Decidendi

Legal Principle Established

The Tribunal considers that it would be in the best interest of TL for the mandatory visa cancellation to be revoked so that she can have a continuing relationship with the applicant.Other consideration – Strength, nature and duration of ties The applicant has resided in Australia since his arrival in this country. The applicant attended primary school and high school to year nine. He held employment in Australia as a diesel mechanic’s assistant in his father’s business. That business consisted of a mobile servicing unit for diesel engines. The applicant also worked as a forklift driver between 2011 and 2012; as a labourer from 2010 to 2012, and again as a labourer from 2005 to 2010. Impact on family members The applicant has adult children residing in Australia. TJ, at 21 years of age, is his eldest daughter. TJ provided both oral and written evidence to the Tribunal. The applicant has a son, DJ, who is now 18 years of age. His mother is N. DJ left school at the beginning of year 10. The evidence establishes that in 2006 an Apprehended Violence Order was obtained on the application of the NSW Department of Youth and Community Services against the applicant to protect N and her children (TL and DJ). DJ suffers from learning difficulties and has not been employed in the five years since he left school. DJ is unable to read or write. He lives with his stepsister, ALB. The evidence concerning his relationship with the applicant is negligible and it is not possible to determine the support, if any, which the applicant has ever provided to DJ. The applicant has an adult daughter, ALB, who is aged 37 years. She is a stepsister to TL and to DJ. ALB has a strong relationship with her father, although his incarceration has made it difficult to maintain personal contact. ALB was an impressive witness, who clearly would be able to provide moral and other support for her stepbrother and stepsister. The applicant has two brothers who reside in Australia. The evidence establishes that he has had no contact with his brothers at least in recent years although a younger brother, S, indicated that he would provide oral evidence. When the Tribunal attempted to contact S to take his evidence, no response was received. The applicant’s mother and cousin reside in Australia. There is no evidence concerning any degree of communication between the applicant and his mother. She provided a written reference. Other evidence suggested that the applicant and his mother had had no contact for many years. There is no evidence concerning the cousin. The applicant has been in a relationship with Ms B for a period of approximately five years. The evidence establishes that Ms B has served some time and rehabilitation for drug addiction and that she has had fraud charges laid against her relating to the use of a credit card. The applicant referred to Ms B as his fiancé; however the last assault charge for which the applicant was convicted was against Ms B. The applicant states that his mother would be adversely affected if he were removed from Australia. The applicant also states that his children would be placed under strain if he were removed from Australia.