Ferreira and Minister for Home Affairs (Migration)
[2018] AATA 2599
•6 August 2018
Ferreira and Minister for Home Affairs (Migration) [2018] AATA 2599 (6 August 2018)
Division:GENERAL DIVISION
File Number(s): 2018/2904
Re:James Ferreira
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:6 August 2018
Place:Sydney
The decision under review is affirmed.
.......................[sgd].............................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of a visa – failed character test – substantial criminal record – dishonesty, driving and drug-related offences – multiple sentences of imprisonment – previous visa warnings and cancellation – whether another reason why original decision should be revoked – Ministerial Direction No. 65 – Primary considerations – protection of the Australian community – best interests of minor children – expectations of Australian community – Other considerations – strength, nature and duration of ties – extent of impediments if removed – significant language, cultural and employment barriers – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Gboujeh v Minister for Immigration and Border Protection [2014] FCA 883
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121
Minister for Immigration and Multicultural and Indigenous Affairs v Stefan Nystrom [2006] HCA 50
Re ER Aston and Y Aston and Secretary To the Department of Primary Industry [1985] AATA 306
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Commonwealth Attorney-General: Response of the Australian Government to the Views of the Committee in Communication No 1557/2007, Nystrom et al v Australia
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
United Nations Human Rights Committee, Communication No. 1557/2007 (18 July 2011), Stefan Lars Nystrom and Australia
REASONS FOR DECISION
Chris Puplick AM, Senior Member
6 August 2018
Mr Ferreira’s life
Mr James Thomas Ferreira is a citizen of Portugal. He was born there in 1972 and first arrived in Australia aged 1 year and 11 months in December 1974. Since that date he has never left Australia.[1]
[1] Respondent’s Statement of Facts, Issues and Contentions paragraph 4.
He speaks no Portuguese and has no relatives there, and all of the members of his immediate family are in Australia. This immediate family consists of his mother (a Portuguese citizen), two brothers, a sister, an adult (minor) son and five cousins. They are all Australian citizens. He is in a relationship with Ms Diana Ortiz and regards himself as step-father to her three children (all minors).
As well as his son and step-children there are two nephews to whom he claims a close and ongoing attachment. This amounts to having an emotional connection to at least six minor children.
His personal life has been filled with tragedies. In 1992, when he was 19 years old his first child died of Sudden Infant Death Syndrome (SIDS). In 1997 he was involved in an horrendous motor vehicle accident which left him with permanent brain damage and he now suffers from schizophrenia and bi-polar disorder. Were this not enough, in 2015 his eldest son was murdered[2] in a case where no perpetrator has been brought to justice.
[2] G Documents page 195.
Mr Ferreira has a long-term problem with alcohol and drug abuse and is currently on the methadone maintenance programme which he says has stabilised his life and helped him to avoid further illegal drug use.
For parts of his life he has been in the productive workforce in a variety of manual and construction jobs and has recently undertaken training as a barista.
Mr Ferreira’s Crimes
Mr Ferreira also has an extensive and extraordinarily long criminal record. He first offended at a young age and has continued to offend for the subsequent 28 years.[3]
[3] G Documents pages 336-391.
He has been convicted of offences on more than 150 occasions. These offences include some 70 related to dishonesty (theft, larceny, break and enter, stealing); over 50 driving offences (dangerous and reckless driving, driving while disqualified, dangerous driving occasioning actual bodily harm); numerous drug-related offences; multiple breach offences (failure to appear, breach of bail) and other matters including possession of weapons, stalking/intimidation, property damage and obtaining benefits by deception).
Although there are numerous instances of his driving behaviour being so reckless as to put other people’s lives in danger (including the lives of children) there is no evidence of any direct physical violence in Mr Ferreira’s criminal record.
Nevertheless its sheer extensiveness and his utter disregard for the law is remarkable.
There are almost too many custodial sentences of less than 12 months to calculate but he has been sentenced to terms of imprisonment of 12 months or more on more than 20 occasions.
Mr Ferreira is currently serving a term of imprisonment of 2 years and six months resulting from a conviction on 13 December 2016 for a driving offence in which he sought to evade a police pursuit while driving despite being disqualified, in a dangerous and reckless manner on a stolen motorbike, and in circumstances which apparently involve the participation of a 12 year old child.[4]
[4] Sentencing remarks of Magistrate Stoddart, 28 October 2016 in G Documents pages 56-60.
Mr Ferreira’s visa cancellation
On 8 August 2017 the Delegate of the Minister revoked Mr Ferreira’s Class BF Transitional (Permanent) visa pursuant to section 501(3A) of the Migration Act 1958 (Cth) (the Act). It (relevantly) provides as follows:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …………………..
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The cancellation of a visa where a person is in full-time custody is a mandatory requirement under the Act – the Minister must cancel the visa.
Section 501CA of the Act provides a mechanism whereby this mandatory cancellation may be reviewed. It (relevantly) provides:
Cancellation of visa--revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) …….
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(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.
(5) ……………….
In this instance the Minister’s decision is discretionary – he/she may revoke the original decision.
Section 501 defines the character test referred to above however it provides that a person does not pass the character test if they have “a substantial criminal record”[5] which itself is defined as including where “the person has been sentenced to a term of imprisonment of 12 months or more.”[6]
[5] Section 501(6)(a).
[6] Section 501(7)(c).
There can thus be no doubt that Mr Ferreira cannot pass the character test as required by the Act. This means that for the Minister to revoke the visa cancellation there must be “another reason why the original decision should be revoked.”
In line with the provisions of the Act, Mr Ferreira was notified of the Department’s intention to cancel his visa and invited to make submissions on this matter. He did so and these representations were considered by the Minister’s Delegate who, on 23 May 2018 notified Mr Ferreira of his decision not to revoke the cancellation. On 24 May 2018 Mr Ferreira exercised his right to appeal that refusal to this Tribunal where the matter was heard on 30 July 2018.
In considering whether or not there is another reason why the revocation decision should be overturned any decision maker (in this instance, the Tribunal) is required to have regard to guidelines which are set out in Ministerial Direction No. 65. The Tribunal will return to those considerations below however it needs to record some previous history of Mr Ferreira’s visa dealings with the Department.
Mr Ferreira’s previous visa history
Since 2007 the Department has had occasion to consider the status of Mr Ferreira’s visa on a number of occasions.
(a)May 2007
On 2 May 2007 the Department notified Mr Ferreira that cancellation of his visa was being considered on character grounds.[7] However the Department decided on this occasion, after consideration of “all relevant” matters that Mr Ferreira’s visa should not be cancelled. It is not clear what representations, if any, Mr Ferreira made to the Department on this occasion. In the letter of 25 June 2007 notifying Mr Ferreira of this decision, the Department included a “formal warning”[8] in the following terms:
“Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this waring will weigh heavily against you if your case is reconsidered.”[9]
[7] Under section 501 of the Act. The letter was addressed to his then home address.
[8] Emphasis in original letter. G Documents page 204.
[9] Emphasis in original letter. G Documents page 204.
On 2 July 2007 Mr Ferreira signed a document acknowledging receipt of the original letter and the enclosed warning.[10]
[10] G Documents page 206.
However on 25 July 2007 Mr Ferreira committed a serious driving offence which included elements of dangerous driving, driving while disqualified and motor vehicle theft, for which he received a custodial sentence of 12 months commencing on 23 August 2007.[11]
(b)March 2008
[11] G Documents page 374.
On 4 March 2008 the Department sent Mr Ferreira a “Formal Counselling Letter” which was addressed to him while he was in the Goulburn Correctional Centre. The letter made clear that the Department had been notified of his criminal record and that this triggered consideration of his position under section 501 of the Act. The letter indicated that while there was not active consideration of any visa revocation on foot at that time, nevertheless:
“The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of section 501(6), could result in the consideration of cancellation of your visa.”[12]
[12] G Documents page 207.
As with the previous notification, Mr Ferreira signed a document dated 10 March 2008 acknowledging receipt and understanding of the purport of the counselling letter.[13]
[13] G Documents page 209.
Once again Mr Ferreira ignored this advice and warning. He was before the Court again in August 2008. He received a further prison sentence (16 months) on 12 August 2008[14] and then proceeded to commit numerous offences during 2008, 2009 and 2010.[15]
(c)August 2011
[14] G Documents page 375.
[15] G Documents pages 375-379.
On 12 August 2011 Mr Ferreira received a third formal letter from the Department about his criminal behaviour. On this occasion the letter was addressed to him in the South Coast Correctional Centre. It advised that the Department was aware of his further convictions but that, once again, it was not proposing to proceed to cancellation of his visa. However he was given a further “formal warning” in the following terms:
“Mr FERREIRA’s criminal acts have twice before lead to consideration of cancelling his visa. Despite that he continued to commit crimes. The Australian community expects everyone including visa holders to obey the law. Mr FERREIRA should learn quickly that further offending will lead to his visa being considered again, and perhaps cancelled.”[16]
[16] G Documents page 210 – bolded in original.
Mr Ferreira apparently took no notice of this third warning and on 11 November 2011 he offended again with the result that in April 2012 when he came before the Court he received another custodial sentence of 18 months.[17] He then continued with a string of further offences over the course of the next four years. These offences included traffic and driving offences, failure to stop during a police pursuit, goods in custody presumed to have been stolen, minor drug offences and shoplifting. Several of them resulted in further custodial sentences.[18]
(d)February 2016
[17] G Documents page 379.
[18] G Documents page 379- 382.
On 8 July 2015 Mr Ferreira’s visa was cancelled under section 501(3A) of the Act and he was invited to make representations as to why this cancellation should be revoked. The Tribunal does not have to hand what such representations entailed, however they were successful and on 4 February 2016, the Department decided to revoke the original decision.[19] The effect of this was to bring about a situation in which the original decision was taken never to have been made.[20]
[19] G Documents page 212-3.
[20] Section 501CA(5) of the Act.
The notification to Mr Ferreira, on this occasion at the Villawood Immigration Detention Centre, of this decision included the following:
“Please note: the decision to revoke the original decision does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you.”[21]
[21] G Documents page 212 – bolded in original.
As with the previous such warnings, Mr Ferreira replied, on 4 February 2016 with a signed statement to the effect that he understood the information which had been provided to him.[22]
[22] G Documents page 214.
It took less than four months for Mr Ferreira to commit his next series of offences. On 26 May 2016 he was apprehended driving a vehicle while disqualified and on 31 May 2016 he was found to have driven recklessly and furiously, again while disqualified in order to avoid a police pursuit. For these two offences he was sentenced to a term of imprisonment of 2 years and six months.[23]
(e)August 2017
[23] G Documents pages 383-385.
On 8 August Mr Ferreira’s visa was again cancelled. He was notified of this (addressed to the Villawood Detention Centre) and given the opportunity to seek revocation of the cancellation decision. He made such representations on 14 September 2017 and on 23 May 2018 the Minister’s Delegate determined that as Mr Ferreira had failed the character test and the Delegate did not believe that there was “another reason” for the cancellation to be revoked, the cancellation decision was affirmed.[24]
[24] G Documents page 16.
Mr Ferreira appealed that decision to this Tribunal on 24 May 2018.
Consideration of Other Reasons
As has been noted, a visa cancellation may be revoked, where the applicant still fails the character test if there are any other reasons why this course of action should be followed.
Ministerial Direction No. 65, made under section 499 of the Act sets out certain matters which decision makers are obliged to take into account when considering such applications.
That Direction establishes three “primary” and five “other” considerations which must be assessed by any non-Ministerial decision-maker.
As the Tribunal made clear in Aston:[25]
“21. Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account. See Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577”.
[25] Re ER Aston and Y Aston and Secretary To the Department of Primary Industry [1985] AATA 306 per Davies (President), Layton (Deputy President) and Pascoe (Member).
Similarly in the Federal Court guidance has been provided when the Court said:
“At both common law and under statutory judicial review a decision-maker will not commit jurisdictional error merely by having regard to a principle or policy when exercising a statutory discretion. Error, may, however, occur if the decision-maker considers him or herself bound to apply the policy without regard to countervailing considerations and acts accordingly”.[26]
[26] Gboujeh v Minister for Immigration and Border Protection [2014] FCA 883 at [39].
The Tribunal has a clear and weighty obligation to take note and be guided by the provisions of the Ministerial Directive but it has flexibility in how it interprets and what weight it assigns the various elements therein.
The three “Primary considerations” related to revocation requests are set out as:
·Protection of the Australian community from criminal or other serious conduct;
·Best interests of minor children in Australia affected by the decision; and
·Expectations of the Australian community.[27]
[27] Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Ministerial Direction No. 65), Part C paragraph 13(2).
In considering the protection of the Australian community a key factor to address is the risk that the applicant might offend again, together with the potential seriousness of the offences which might be committed. As the Tribunal has noted, Mr Ferreira’s offences have not included acts of violence against the person, nor are the fraud offences, individually, at any great level. Nevertheless Mr Ferreira is simply a habitual offender. His record is frankly appalling. His blatant disregard for the law, especially in terms of his driving offences is staggering. His driving is of a nature that he constitutes a real and potent risk to the lives of other road and vehicle users and to himself and his passengers, including children.
Sentencing Magistrate Stoddart referred to a criminal record of some 61 pages and commented that, in relation to the offence with which he was dealing that Mr Ferreira’s record was “just appalling’” and that:
“And really you have probably got no one to blame other than yourself. I can understand you have had a number of problems and then, of course, you know, you are stealing this motorcycle and a 12 year old child is involved, I mean it is just dreadful”.[28]
[28] G Documents page 58.
It is impossible to conclude anything other than that Mr Ferreira is a repeat offender[29] and will continue to offend and that in doing so he will put other people at risk.
[29] See also remarks of Sentencing Magistrate Holdsworth (13 April 2012) at G Documents page 80.
This consideration weighs significantly against Mr Ferreira.
The best interests of the minor children involve consideration of at least six such individuals. He has a son who will turn 18 in May 2019, and as outlined above there are three step-children and two nephews.[30]
[30] G Documents page 186.
In evidence to the Tribunal Mr Ferreira asserted that he had regular (almost daily) contact with the children, although his son appears to be living with his former partner. In his written statement Mr Ferreira describes how the family gets together at Christmas time, that he plays with his nephews and nieces[31] and that they are upset when they do not see him or do not know when they might see him again.[32]
[31] There is no information as to who exactly the “nieces” referred to by Mr Ferreira are, or their ages, apart from Ms Kelly Ramsay, G Documents page 202.
[32] G Documents page 184.
Mr Ferreira’s mother gave evidence to the Tribunal in which she supported her son’s assertions and praised him as a kind man who was good with the children and a loving father and step-father. The Tribunal appreciates the sincerity of her testimony in favour of her son, but would, naturally, expect her to say nothing else.
By contrast the Respondent asserts that such evidence as there is would lead to a conclusion that Mr Ferreira’s relationship with his children is “limited”.[33] The Respondent goes on to assert that Mr Ferreira’s son will turn 18 quite soon and that he is anything but a good role model given his history of criminal behaviour, drug use, disregard of the law and the involving of a child in criminal behaviour.[34]
[33] Respondent’s Statement of Facts, Issues and Contentions at paragraph 55.
[34] Ibid paragraph 56.
The Respondent points out that there is no evidence of the impact on the children of Mr Ferreira’s repeated periods of incarceration, including his current absence from their lives over the last two years, and that his son, his step-children and his nephews all have other competent primary carers providing parental care and guidance.[35]
[35] Ibid paragraph 59.
The Tribunal is inclined to adopt the position advanced by the Respondent. It cannot find that Mr Ferreira makes a positive contribution to the lives of the minor children and it shares the Respondent’s concerns about potentially negative impacts.
It cannot, under these circumstances give significant weight to this consideration in Mr Ferreira’s favour, although it is not making a negative assessment of it.
The expectations of the Australian community are often difficult to ascertain in any particular set of circumstances. The expectations of the Australian community will almost always start by weighing against any applicant with a criminal record.[36]
[36] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J; Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296 at [64]-[65] per Robertson J.
In this particular case the Tribunal would think that there would be considerable personal sympathy for Mr Ferreira on the basis of those tragic elements in his life which have been outlined, together with some sympathy for his mental health conditions.
On the other hand it would not be unreasonable to expect that the Australian community would have little, or indeed no sympathy, with a person whose criminal record is as extensive as Mr Ferreira’s and moreover with a person who has received an exceptional number of second chances and has in effect spurned them all.
The Tribunal concludes that this consideration weighs heavily against Mr Ferreira.
Having considered the “Primary considerations” as required under paragraph 13 of Ministerial Direction No. 65, the Tribunal is required to address the “Other considerations” set out in paragraph 14.
There is recent important authority from the Federal Court guiding the Tribunal in its approach to the assessment of these “other” considerations when examining matters related to an appeal against a decision not to revoke a visa cancellation.
In Suleiman v Minister for Immigration and Border Protection, Colvin J stated:
“[23] ……Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations‘……. It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally‘ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations‘. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
…
[28] To treat the other consideration as secondary irrespective of its character in the particular case does not conform to the language of Direction 65. So, in this case, even though the Tribunal found that the applicant was ‘at risk of harm — arguably even death given the consequences that flow from this mental disability if left untreated‘ this was a matter that it placed as always being of lesser importance than the primary considerations. The Tribunal did not consider, as it was required to do by Direction 65, whether in the specific circumstances the non-refoulement obligations should be afforded greater weight”. [37]
[37] [2018] FCA 594.
This approach was recently approved and followed by the Federal Court in HSKJ v Minister for Immigration and Border Protection.[38]
[38] [2018] FCA 1013.
It is in the light of this guidance that the Tribunal turns to consider the “other” matters as set out. They are, for consideration of revocation purposes:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
There appear to be no matters arising for consideration under items (a), (c) and (d), the latter because, as already noted, there have not been any identifiable victims and none related to acts of violence.
There is no doubt that due to the fact that Mr Ferreira arrived in Australia as a small child and that he has not left this country in the subsequent 44 or so years, his ties to Australia are significant. As already noted, all his family are in Australia as are, tragically, the graves of two of his children.
There is evidence, by way of written statements from Mr Ferreira’s mother, his sister (Maria Ramsay), his niece (Kelly Ramsay) and his partner Dian Ortiz[39] all of which speak to his relationship with them and in his mother’s case to some unspecified level of financial support. Further there is an offer from an older brother of both potential accommodation and employment in Coffs Harbour upon Mr Ferreira’s release.[40]
[39] G Documents at pages 194, 195, 202 and Applicant’s Documents at 1.B respectively.
[40] G Documents pages 196-197.
There is a letter from an individual (who the Tribunal presumes to be the applicant’s minor son) who asks that any decision-maker “have some sort of sympathy in relation to deporting my dad”. He writes, “on behalf of my self (sic) and the Ferreria (sic) family”:
“Taking out farther (sic) away will be very detramental and have a deep impact on our life we are at a stage where a farthers (guidance is highly important. Taking our farther away will neglect this from us, our guidance needed from a farther to continue teaching his kids the ways of life its is his right that a farther gets to see his children excel in life and our right to have our farther there with us side by side”.
He goes on to say that Mr Ferreira has been a good father and economic provider and that his loss would make the family “struggle mentally it will effect us alot (sic) and would damage alot of things.”[41]
[41] G Documents page 201. The letter is undated.
Again, the Tribunal accepts the sincerity of the representation but fails to see how much support Mr Ferreira could have provided given his periods of incarceration and his limited participation in the workforce which was effectively from 1998 to 2000.[42]
[42] Respondent’s Statement of Facts, Issues and Contentions paragraph 72.
While there would no doubt be an impact on Mr Ferreira’s family should he be removed, it is hard to assess exactly what this would be or how profound it would be and there is no evidence that anybody other than immediate family members would be impacted.
Although Mr Ferreira states that he attends church and volunteers in local events[43] there are no corroborative details of such involvements provided.
[43] G Documents page 183.
The issue of impediments if removed is far more problematic. As has been noted Mr Ferreira has no connections with Portugal and does not speak the language. He has no knowledge of the culture, history, mores or employment conditions/opportunities in that country. His return there would be a significant impact on his life.
First of all there must be some consideration of the impact on his physical and mental health. Mr Ferreira claims that apart from the brain injury suffered as a result of the motor accident in 1997 he suffers from bi-polar disorder, schizophrenia and heroin addiction.[44] In addition he reports suffering from epilepsy and depression.[45] There is no clear diagnostic support for many of these assertions, although there is equally no reason not to believe that they are manifest in Mr Ferreira. He has been on Avanza to treat his depression, apparently for some 10-15 years and there are numerous references to his mental health issues in medical records tendered to the Tribunal covering some 128 pages. These records include reference to untreated epilepsy and there is at least one neurological report to support this.
[44] G Documents page 182.
[45] G Documents page 403.
There is no doubt that Mr Ferreira suffers from a range of primarily psychiatric and mental health issues.
Similarly there is evidence that he was both a heroine user and that he has been a long-time participant in the methadone programme.
The Respondent asserts that the health system in Portugal is perfectly adequate to provide care and treatment for Mr Ferreira and there is no doubting its quality and professionalism. Of course this is compromised by Mr Ferreira’s inability to speak Portuguese and the lack of a Portuguese equivalent of a universal guarantee of cost-free health care.
On the other hand the Respondent is at pains to point out the intelligent and progressive approach to drug problems adopted in Portugal with its decriminalisation of personal drug use in 2001 and its approach to drug problems as matters for medical rather than judicial attention.[46] The Tribunal notes that the Respondent urged upon it giving credit for drug control and rehabilitation policies which it (in the persona of the Australian government) is not itself prepared to follow.
[46] Respondent’s Statement of Facts, Issues and Contentions paragraph 80.
The Tribunal agrees that for people with a persistent drug problem being in Portugal may well be a better option than being in Australia.
The Respondent’s assertions as to the level of the use of the English language in Portugal and the employment opportunities[47] for an essentially unskilled worker who speaks no Portuguese are frankly too risible to be taken seriously.
[47] Ibid paragraphs 78 and 81.
The case of Mr Ferreira strikes some close parallels with that of Mr Stefan Nystrom who was, by Ministerial order, deported back to Sweden in 2006. Like Mr Ferreira, Mr Nystrom had arrived in Australia as a child and had lived here all his life. He spoke no Swedish and had no relatives, friends or support network in Sweden. He too had an extensive criminal record, although one involving much more serious offences than Mr Ferreira. His visa was cancelled by the Minister under section 501 of the Act.
The Minister’s decision was upheld initially in the Federal Magistrates Court but on appeal to the Federal Court (by majority) the Minister’s decision was set aside.[48] The Federal Court was scathing of the Minister’s exercise of this deportation power in relation to a person who it regarded as an absorbed member of the Australian community.[49] However on further appeal to the High Court the Minister’s powers were affirmed and her decision upheld.[50] Mr Nystrom was deported.
[48] Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121 per Gyles and Moore JJ, Emmett J dissenting.
[49] Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121 at [29].
[50] Minister for Immigration and Multicultural and Indigenous Affairs v Stefan Nystrom [2006] HCA 50.
The matter eventually found its way to the United Nations Human Rights Committee who issued a Communication highly critical of the Australian Government[51] which “respectfully disagreed” with the Committee[52] and rejected its recommendation to allow Mr Nystrom re-entry to Australia.
[51] United Nations Human Rights Committee, Communication No. 1557/2007 (18 July 2011), Stefan Lars Nystrom and Australia.
[52] Commonwealth Attorney-General: Response of the Australian Government to the Views of the Committee in Communication No 1557/2007, Nystrom et al v Australia.
The power of the Minister to order a deportation in the case of an individual such as Mr Ferreira is not in question as has been made clear by the High Court. At the end of the day, the question is one of the correct and proper decision being made given all the facts and the ultimate power of the Minister to make a final decision taking those matters into account and applying whatever degree of compassion or sympathy might be regarded as appropriate.
However before that stage can be reached this Tribunal has to make its decision.
In Contreras[53] a full bench of the Federal Court referred to the balancing of all the elements which this Tribunal is required to consider as a “calculus”. All of the disparate elements must be considered and each of them must be given appropriate weight. Although the scheme of the Act does not itself set out the relative weights to be assigned to each element, and although these weights will vary on a case-by-case basis, there are, naturally, some which weigh more heavily than others, even among those designated as “primary”.
[53] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
Among the “primary considerations” both the protection of the Australian community and the expectations of that community weigh heavily against Mr Ferreira while the best interests of the minor children counts only marginally (if that) in his favour.
The other considerations which are relevant (ties to Australia and impediments if removed) must weigh in Mr Ferreira’s favour – the former perhaps with only marginal favourability and the latter with significant weight.
Although the Respondent would urge that, by definition, the balance of “primary” considerations must overbear those of “other” considerations, this is not necessarily how the Tribunal reads the authorities after the decision in Suleiman.
The factor which weighs most heavily with the Tribunal and which is ultimately determinative in its decision is the expectation of the Australian community that when a person is given a second, third and even a fourth chance; that when they fail to take the benefit of three formal warnings and the highly unusual benefit of a visa cancellation revocation they cannot expect that there will never come a point at which it must be said that forgiveness is exhausted and further chances have run out.
The Tribunal appreciates that Mr Ferreira may have faced difficulties in comprehending the precise details of all his correspondence with the Department but, from its observations of Mr Ferreira as a witness and from the point of common sense, it cannot but conclude that Mr Ferreira knew that he had been warned, been put on notice, given repeated chances to stop offending, but that he chose, by his own deliberate acts, not to heed or take them.
In Anaki the Tribunal dealt with the question of how far tolerance for repeated misbehaviour could or should be tolerated. The Tribunal stated:
“On balance, while the limit of tolerance of Mr Anaki’s offending conduct has been reached and tested, it has not yet been exceeded. Reasonable judgement of his conduct over time supports a proportionate assessment, presently. I accept that this is a point on which reasonable minds may differ”.[54]
[54] Anaki and Minister for Immigration and Border Protection (Migration) [2016] AATA 693 at [99].
Given that reasonable minds may differ in this instance, nevertheless in Mr Ferreira’s case the Tribunal believes that that limit of tolerance has now been not only reached but exceeded. There is no adequate justification for yet another chance.
DECISION
The decision under review is affirmed.
I certify that the preceding 92 (ninety-two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.........................[sgd]...........................................
Associate
Dated: 6 August 2018
Date(s) of hearing: 30 July 2018 Applicant: In person Solicitors for the Respondent: Clayton Utz
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