Downing and Minister for Home Affairs (Migration)

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Downing and Minister for Home Affairs (Migration) [2018] AATA 4592 (12 December 2018)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2018/5485
GENERAL DIVISION  )

Re: Martyn Downing
Applicant

And: Minister for Home Affairs
Respondent

DIRECTION

TRIBUNAL:             Member S Burford

DATE OF CORRIGENDUM:           18 April 2019

PLACE:                       Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

  • The date of ‘25 August 2015’ in line six at paragraph [24] is to be changed to ‘25 August 2005’.

...................................................................        Member

Division:                  GENERAL DIVISION

File Number:           2018/5485

Re:Martyn Downing

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Member S Burford

Date:12 December 2018

Place:Perth

The Tribunal affirms the decision under review.

...........[sgd].............................................................

Member S Burford

CATCHWORDS

Migration – decision not to revoke mandatory cancellation of visa – two-day rule – character test – substantial criminal record – methylamphetamine – Ministerial Direction no. 65 – primary and other considerations – protection of the Australian community – best interests of minor children – expectations of the Australian community – nature and seriousness of criminal offending – risk of engaging in future criminal conduct – strength, nature and duration of ties to Australia – impact on Australian business interests – extent of impediments if returned to United Kingdom – decision under review affirmed

LEGISLATION

Acts Interpretation Act 1901 (Cth) – s 36(1)

Administrative Appeals Tribunal Act 1975 (Cth) – s 43
Migration Act 1958 (Cth) – s 499(1), s 499(2A), s 500, s 500(1)(ba), s 500(6B), s 500(6H), s 500(6J), s 500(6L), s 501, s 501(2), s 501(3)(a), s 501(3A), s 501CA, s 501CA(4), s 501(3A), s 501(6), 501(6)(a), s 501(7), s 501(7)(c), s 501(7)(d), s 501(7A), 501G(1),
Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth)

CASES

Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117

Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
Kumeroa and Minister for Home Affairs [2018] AATA 3744
Lau v Minister for Immigration and Border Protection [2017] AATA 138
Mordechai v Minister for Immigration and Citizenship (2011) 196 FCR 509
Nguyen and Minister for Home Affairs [2018] AATA 3726
Nigro v Secretary of the Department of Justice (2013) 41 VR 359
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Zyaran and Minister for Home Affairs [2018] AATA 3785

SECONDARY MATERIALS

Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of…

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Details
Case
[2018] AATA 4592
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the Applicant's permanent visa. The Applicant, born in the United Kingdom in 1972, arrived in Australia as an infant and had resided there continuously since. His visa was mandatorily cancelled under section 501(3A) of the *Migration Act 1958* (Cth) because he failed to pass the character test. The Applicant subsequently requested the revocation of this cancellation, which was refused by a delegate of the Minister for Home Affairs. The Administrative Appeals Tribunal was tasked with determining whether the Applicant passed the character test, and if not, whether there was another reason to revoke the cancellation decision.

The Tribunal was required to consider two primary legal issues. Firstly, whether the Applicant met the character test as defined by section 501(6) of the *Migration Act*. Secondly, if the Applicant did not pass the character test, the Tribunal had to determine if there was another reason why the visa cancellation decision should be revoked, pursuant to section 501CA(4) of the *Migration Act*. This involved assessing various considerations outlined in Ministerial Direction No. 65, including the protection of the Australian community, the best interests of minor children, community expectations, the nature and seriousness of the Applicant's criminal offending, the risk of future criminal conduct, the strength and duration of his ties to Australia, and the impact of his removal on Australian business interests.

In its reasoning, the Tribunal noted the Applicant's extensive criminal history, commencing at age 14 and resulting in 97 convictions, including serious offences such as grievous bodily harm and manufacturing methylamphetamine. Despite receiving formal warnings in 2001 and 2012, the Applicant continued to offend. The Tribunal considered expert evidence from a clinical psychologist suggesting the Applicant might have Attention Deficit Hyperactivity Disorder and longstanding depression and anxiety, which may have contributed to his impulsive behaviour and self-medication with drugs. However, the Tribunal found that the Applicant's criminal record, particularly his consistent offending throughout his adult life in Australia, weighed heavily against him. While acknowledging the Applicant's significant ties to Australia, including his family members who provided supportive statements, the Tribunal found limited evidence of broader community involvement. The Tribunal also noted that the Applicant began offending within approximately 14 years of arriving in Australia, diminishing the weight given to his length of residence. Ultimately, the Tribunal concluded that the Applicant did not pass the character test and that there was no other reason to revoke the cancellation decision.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The issues for determination by this Tribunal are:(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and(b)if the Applicant does not pass the character test, whether there is another reason why the cancellation decision should be revoked (s 501CA(4) of the Migration Act).BACKGROUNDApplicant’s offending history and warnings The Applicant commenced offending as a juvenile at the age of 14 (G5, page 44). He has been convicted of 97 offences since 1986 (G5, pages 32-44; Exhibit R2, para [6]; Exhibit A2, para [3]). On 27 August 2001, the Applicant was convicted of grievous bodily harm, assault with intent to cause grievous bodily harm and attempt to defeat/pervert the course of justice. The Applicant was sentenced to six years imprisonment for these offences. On 23 August 2007, the Respondent wrote to the Applicant (G28, page 162-163), advising that a delegate of the Minister had exercised their discretion and decided not to cancel his visa under s 501(2) of the Migration Act. Issues concerning the delivery of this letter are dealt with further below. At the time this warning letter was issued, the Applicant had been convicted of a total of 62 offences (G5, page 36-44). Following the issuing of the warning letter in August 2007 and his release from prison, between September 2007 and March 2012 the Applicant was convicted of a further nine offences including: possessing stolen property, stealing and aggravated burglary. On 16 March 2012 the Applicant was convicted of attempting to manufacture a prohibited drug (methylamphetamine). He received a sentence of two years and eight months imprisonment for this offence. On 13 July 2012, the Respondent wrote to the Applicant (G27, page 159-160), advising that a delegate of the Minister had again considered the Applicant’s visa for cancellation but had to decided not to cancel his visa and instead was issuing a “formal warning”. The letter stated:Please note that the visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered. (Original emphasis.) It does not appear that the Applicant signed the acknowledgement which accompanied the letter of 13 July 2012. However, the Applicant acknowledged in cross-examination that he recalled receiving the warning whilst in prison (Transcript, page 25-26). The Applicant was sentenced on 24 March 2017 in the Perth District Court of Western Australia to three years imprisonment for manufacturing a prohibited drug (methylamphetamine) and two years imprisonment for attempting to manufacture methylamphetamine (G10, page 69). The sentences were to be served cumulatively, bringing the total effective sentence to five years imprisonment. On 27 March 2017 the Applicant was convicted of further offences, including: possession of a prohibited drug (cannabis), attempting to gain benefit by fraud, stealing and burglary. He received concurrent prison sentences for a number of these offences including an additional 15 months for the burglary offence.

Evidence

Evidence Before The Court

The Victorian Court of Appeal in Nigro v Secretary of the Department of Justice (2013) 41 VR 359 considered the task of determining an “unacceptable risk” of re-offending. The Court summarised the task as (at [111], [125] and [130]):An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming a reality but also on the seriousness of the consequences if it does.…..The degree of likelihood of the occurrence of the risk, considered in conjunction with the seriousness of the consequences if the risk eventuates, and any other matter the court considers relevant, will determine whether the risk is unacceptable.…It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is ‘unacceptable’. That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence.[6][6] Cited with approval in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117.Evidence of Dr Watts The Applicant offered expert testimony from Dr Phil Watts, a Clinical Psychologist, in support of his application. Dr Watts is an experienced psychologist. He provided a psychological report dated 24 October 2018 based on a two-hour interview and assessment session with the Applicant at Woorooloo Prison Farm on 21 October 2018. This consisted of a detailed discussion, conducting a clinical assessment of the Applicant’s mental health and psychological functioning and the administration of standardised psychological testing (Exhibit A1, Annexure 10, page 1). Dr Watts also gave oral testimony at the hearing and was cross-examined. In summary, Dr Watts concluded:I am of the opinion that Mr Downing is likely to meet the criteria for Attention Deficit Hyperactivity Disorder (ADHD), but full intelligence testing would be necessary to assist in this. In addition, it is evident that Mr Downing has had longstanding depression and anxiety which has included periods of panic attacks and severe social phobia. Mr Downing has self-medicated using methamphetamine drugs and this has resulted in a number of offences.Mr Downing has quite a long criminal record but much of it are multiple offences from particular periods of time. Mr Downing does not have any sex offences and he does not have any offence of violence. I note that he was charged with assault without intent causing grievous bodily harm related to running down two youth when he was driving a motor vehicle. I do not class that a standard violence offence in that Mr Downing indicates that he did not intend to cause harm (no intent). He does not know what possessed him at the time to make him want to do that and that he continues to feel guilty and traumatized by what occurred. It was likely to have been the product of delusions or hallucinations.Mr Downing’s criminal record has a number of charges of driving without a licence. The Attention Deficit Hyperactivity Disorder is a disorder of the frontal lobes and essentially it stops people from thinking in a logical fashion. The history of these offences would suggest that there is an impulsive aspect to Mr Downing’s functioning.(Exhibit A1, Annexure 10, para [34]-[36])

Decision

Reasons for decision

This is an application for review of a decision by a delegate of the Respondent dated 4 September 2018 (the Reviewable Decision) not to revoke the mandatory cancellation of the Applicant’s Class BF transitional (permanent) visa (the visa) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act). The mandatory cancellation occurred by virtue of s 501(3A) of the Migration Act. The Applicant, Mr Martyn Keith Downing was born in the United Kingdom in 1972. He is 46 years old. He first arrived in Australia on 7 December 1972 with his parents and sister when he was 5 months old (G11, page 74). He has lived in Australia continuously and, according to Departmental movement records, has departed Australia on two occasions since his arrival (G11, page 74-78). On 20 October 2017, the Respondent mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act (G3, page 11). On 24 October 2017, the Applicant requested that the mandatory cancellation of the visa be revoked (G15, page 122-137). On 4 September 2018, following consideration of the Applicant’s request, a delegate of the Respondent decided, under s 501CA(4) of the Migration Act, not to revoke the mandatory cancellation of the Applicant’s visa (G9, page 53-67). On 21 September 2018, the Applicant lodged an application for review of the Reviewable Decision in the General Division of the Administrative Appeals Tribunal (Tribunal) (G2, page 4). A decision by a delegate of the Respondent not to revoke the cancellation of a visa under s 501CA(4) of the Migration Act is reviewable by the Tribunal under s 500(1)(ba) of the Migration Act. For the following reasons, the Tribunal has concluded that the cancellation of the Applicant’s visa should not be revoked.ISSUES The Applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act on the grounds that he did not pass the character test as defined in s 501(6)(a) of the Migration Act. Under s 501(CA)(4)(b) of the Migration Act, the Tribunal may revoke the mandatory cancellation of a person’s visa where:(a)the person makes representations in accordance with the invitation; and(b)the Minister is satisfied:(i) that the person passes the character test (as defined by section 501); or(ii) that there is another reason why the original decision should be revoked. The issues for determination by this Tribunal are:(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and(b)if the Applicant does not pass the character test, whether there is another reason why the cancellation decision should be revoked (s 501CA(4) of the Migration Act).BACKGROUNDApplicant’s offending history and warnings The Applicant commenced offending as a juvenile at the age of 14 (G5, page 44). He has been convicted of 97 offences since 1986 (G5, pages 32-44; Exhibit R2, para [6]; Exhibit A2, para [3]). On 27 August 2001, the Applicant was convicted of grievous bodily harm, assault with intent to cause grievous bodily harm and attempt to defeat/pervert the course of justice. The Applicant was sentenced to six years imprisonment for these offences.

Ratio Decidendi

Legal Principle Established

The Tribunal is satisfied non-refoulement issues do not arise in the Applicant’s circumstances. Accordingly, the Tribunal places no weight on this factor.Strength, nature and duration of ties Paragraph 14.2(1) of Direction no. 65 provides:(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:i. less weight should be given where the non-citizen began offending soon after arriving in Australia; andii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely). It is accepted that the Applicant has significant ties to Australia. The Applicant’s representative submitted that:It is contended that this factor should be given weight because the Applicant has been spent (sic) significant periods of time contributing positively to the Australian community.(Exhibit A1, para [4.10.3] The Applicant submitted that when he was not incarcerated he has worked in several industries and has readily offered to assist others in prison with basic life skills. The Applicant submitted:I believe I have contributed positively to the Australian community during my time here. I have always paid my taxes, worked in various industries and perhaps most significantly, I have helped people here in jail, including Aboriginal Australians with reading and writing. I have also worked as a peer support worker, where I have helped people to adjust to prison life.(Exhibit A1, Annexure 12, para [55]) The Applicant contended that he has also volunteered with the Salvation Army and participated in local sporting teams. He also intends to volunteer at Holyoake, the counselling centre through which is currently attending sessions (Exhibit A1, para [4.10.5]–[4.10.6]). As noted earlier in these reasons, the Applicant arrived in Australia as an infant, and has resided in Australia for almost all of his life (paragraph 14.2(1)(a) of Direction no. 65). As has also been noted above, he first offended in 1986, within approximately 14 years of arriving in Australia (paragraph 14.2(1)(a)(i) of Direction no. 65). He was 14 years old. His offending has been generally consistent since his late teen years. He has been consistently offending for the entire period of his adult life that he has resided in Australia, interspersed with periods of imprisonment (paragraph 14.2(1)(a)(ii) of Direction no. 65). Applying paragraph 14.2(1)(b) of Direction no. 65, there is limited evidence before the Tribunal of community involvement by the Applicant and there is limited evidence before the Tribunal that the Applicant has a circle of friends or social ties other than his family members. The Tribunal notes that a number of members of the Applicant’s family made statements in support of his application for revocation of the cancellation of his visa. These included his sister, Angela Downing, and his uncle, Robert Evans, who both gave oral testimony at the hearing. The Tribunal also had before it supportive statements from Grace Anne Allia, the Applicant’s 18-year-old niece, Charlie Allia, the Applicant’s brother-in-law, Ronald Downing, the Applicant’s father, and Emma Downing, the Applicant’s older niece. The Applicant’s only son, Matthew, lives in Australia. The Tribunal noted that a number of the Applicant’s family members were present during the hearing.