Hood and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 539
•13 March 2020
Hood and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 539 (13 March 2020)
Division:GENERAL DIVISION
File Number(s): 2019/8612
Re:David Hood
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:13 March 2020
Place:Sydney
The decision under review is set aside and in substitution the cancellation decision of the Applicant’s visa is revoked.
................................[sgd]........................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of Absorbed Person visa – failure to pass character test – substantial criminal record – whether there is another reason for the mandatory cancellation to be revoked – ministerial Direction no. 79 – primary considerations – protection of the Australian community – the best interests of minor children – expectations of the Australian community – other considerations – international non-refoulement obligations – strength, nature and duration of ties – impact on Australian business interests – impact on victims – extent of impediments if removed – weighing of primary and other considerations – reviewable decision is set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 34, 499, 500, 501, 501CA
Migration Reform (Transitional Provisions) Regulations 1994 (Cth) reg 4
CASES
AFY18 v Minister for Home Affairs [2018] FCA 1566
Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
Ferreira and Minister for Home Affairs (Migration) [2018] AATA 2599
Ferreira v Minister for Home Affairs [2019] FCA 1657
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
GKQK v Minister for Home Affairs [2019] FCA 1223
G v Minister for Immigration and Border Protection [2018] FCA 1229
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Hopkins v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 33
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Minister for Home Affairs v G and Another (2019) 164 ALD 103
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NDBR v Minister for Home Affairs [2019] FCA 1631
NDDG and Minister for Home Affairs (Migration) [2019] AATA 250
Oluwafemi v Minister for Home Affairs [2018] FCA 1389
Re Chae Sun Lee and Department of Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 531
Re Secretary, Department of Social Security and Mariot (1992) 25 ALD 581
RGYW and Minister for Home Affairs (Migration) [2018] AATA 2076
Ridley v Secretary, Department of Social Security (1993) 29 ALD 726
Saffron v Federal Commissioner of Taxation (1991) 102 ALR 19
SCJD and Minister for Home Affairs [2018] AATA 4020
Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72
Shi v Migration Agents Registration Authority [2008] HCA 31
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Tapara and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair (Migration) [2020] AATA 321
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
VKTT v Minister for Home Affairs [2019] FCA 1018
Williams v Minister for Immigration and Border Protection [2014] FCA 674
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Cochrane, Liam, ‘Thai Police arrest alleged Australian drug kingpin Robert Gee at Phuket bar’, ABC News (online), 15 September 2016 < no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
Dowdell, Andrew, ‘Alleged drug trafficker Robert Pollybank Gee arrested in Phuket, Thailand after five years on run’, The Advertiser (Adelaide), 15 September 2016
Maclellan, David, Take a walk in my shoes (Xlibris Corporation LLC, 2010)
Murdoch, Lindsay, ‘Australian drug kingpin to be extradited after more than a year in Bangkok prison’, The Sydney Morning Herald (online), 13 February 2018 < Dennis, Administrative Appeals Tribunal (LexisNexis Butterworths, 4th ed, 2015)
Professor Dan Howard SC, Special Commission of Inquiry into crystal methamphetamine and other amphetamine-type stimulants (Report, January 2020) vol 1
United Nations Human Rights Committee, Views: Communications No. 1557/2007, 102nd sess, UN Doc CCPR/C/102/D/1557/2007 (18 July 2011)
Whittle, Devon, ‘Nystrom v Australia, UN Doc CCPR/C/102/D/1557/2007’ (2012) 19 Australian International Law Journal 235
REASONS FOR DECISION
Chris Puplick AM, Senior Member
13 March 2020
THE APPEAL
This is an appeal by David George Maclellan Hood (Applicant) seeking a review of a decision by a delegate of the Minister (Respondent) to not revoke (non-revocation decision) a decision to cancel his Absorbed Person visa (original decision).
The Applicant is 69 years of age and was born in the United Kingdom. He arrived in Australia with his family aged approximately 2 years and has, since then, resided permanently in Australia, never having departed from here.
On 1 September 1994, pursuant to section 34 of the Migration Act1958 (Cth) (Act), the Applicant was deemed to have been granted an Absorbed Person visa. That section provides as follows:
Absorbed person visas
(1) There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as absorbed person visas.
(2) A non-citizen in the migration zone who:
(a) on 2 April 1984 was in Australia; and
(b) before that date, had ceased to be an immigrant; and
(c) on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and
(d) immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied;
is taken to have been granted an absorbed person visa on 1 September 1994.
At the same time, the Applicant was deemed to have been granted a Transitional (Permanent) visa pursuant to regulation 4(1) of the Migration Reform (Transitional Provisions) Regulations 1994 (Cth).
On 22 March 2019 the original decision was made to cancel the Applicant’s Absorbed Person visa. This was a mandated decision pursuant to section 501(3A) of the Act as the Applicant failed the character test as therein provided (see below).
The cancellation of the Absorbed Person visa resulted in the automatic cancellation of the Transitional (Permanent) visa.[1]
[1] Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50, [36] and [129]. Matters concerning Mr Nystrom’s subsequent deportation were the subject of a decision by the United Nations Human Rights Committee, Views: Communications No. 1557/2007, 102nd sess, UN Doc CCPR/C/102/D/1557/2007 (18 July 2011) which held that the deportation of Mr Nystrom who had lived for most of his life in Australia, although never becoming a citizen, was a violation of his “right to enter his own country” contrary to the provisions of the International Covenant on Civil and Political Rights. In April 2012 the Australian Government indicated that it “respectfully disagrees” with the United Nations Human Rights Committee decision and Mr Nystrom was barred from entering Australia. See Devon Whittle, ‘Nystrom v Australia, UN Doc CCPR/C/102/D/1557/2007’ (2012) 19 Australian International Law Journal 235. See also Falzon v Minister for Immigration and Border Protection [2018] HCA 2.
The Applicant subsequently requested revocation of the visa cancellation and on 23 December 2019 was notified of the Respondent’s decision, under s 501CA(4) of the Act, not to revoke the original decision.
On 24 December 2019 the Applicant sought review of that non-revocation decision by this Tribunal which heard the application on 2 March 2020. Under section 500(6L)(c) of the Act the Tribunal is required to give a decision no later than 16 March 2020.
MANDATORY VISA CANCELLATION
The relevant parts of section 501 of the Act provide:
Refusal or cancellation of visa on character grounds
…
(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);
…
(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.
…
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));
…
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
The Applicant has a “substantial criminal record” (see below) as so defined following his conviction for offences and sentencing to terms of imprisonment of over 12 months, which in turn led to his failing to meet the character test as prescribed in the legislation. As a result, the Minister must cancel his visa. This is not a matter of discretion, the provision is mandatory.
However, the consequences flowing from such a decision are not automatic. As the High Court stated in Falzon:
Section 501(3A) did not authorise or require the detention of the plaintiff. It required that a visa granted to him as a non-citizen be cancelled on account of his criminal history and his imprisonment. The change in his legal status to that of an unlawful non-citizen had the effect that he was liable to removal from Australia and to detention to facilitate that removal.[2]
[2] Falzon v Minister for Immigration and Border Protection [2018] HCA 2 at [63].
The decision to cancel a visa is one thing, any decision to deport or refoule a person to another country is, although a possible consequence thereof, a separate matter for ministerial determination. As a matter of fact, the Applicant’s sentence does not end until 7 November 2022, although he has been eligible for parole from 7 February 2020.[3]
[3] Section 501G documents (G documents) at pp. 67 and 69.
APPLICANT’S CRIMINAL RECORD
As an adult, the Applicant has two serious convictions each resulting in terms of imprisonment. They are summarised in the Respondent’s statement of facts, issues and contentions (SFIC) as follows:
[6] On 7 October 2005, the applicant was convicted in the Sydney District Court of 'supply prohibited drugs>= commercial quantity' for which he was sentenced to a term of imprisonment of seven years and nine months, commencing on 15 March 2005, with a non- parole period of five years.
[The date of the arrest in this matter was 24 March 2003.[4]]
[10] On 3 [April] 2017, the applicant was convicted in the Downing Centre District Court of two counts of 'Supply prohibited drug>= large commercial quantity-SI' and three counts of 'Supply prohibited drug >indict. quantity (not cannabis)-SI', for which he was sentenced to a term of imprisonment of [eight years and nine months], commencing on 8 February 2014, with a non- parole period of six years. The applicant was also convicted of one count of 'Deal with proceeds of crime, money/property=> $50,000' for which he was sentenced to three years imprisonment, commencing on 8 August 2013, with a non-parole period of two years.[5]
[The drug offences took place in July 2012 and August 2013, and the proceeds of crime offence was committed in August 2013.[6]]
[4] Supplementary section 501G documents (Supplementary G documents) at p. 155.
[5] The Respondent’s statement of facts, issues and contentions (SFIC) at [10] is in error in stating that the sentence was for “nine years and three months” and when this matter was drawn to its attention at the hearing, the Respondent amended its submission accordingly.
[6] G documents at pp. 54-55.
Sentencing remarks
The exact details of each offence do not have to be explicated in detail, although they will be referenced below. However, the Tribunal must take note of the comments made by the judges at sentencing as they are an important consideration in weighing up the factors being advanced by the Applicant for a revocation of the visa cancellation.
On 7 October 2005 the Applicant was sentenced for his first drug offence[7] by Judge Solomon in the NSW District Court. His Honour noted the Applicant’s guilty plea to what was described as “a serious offence and the seriousness of the offences is reflected in the maximum penalty…of life imprisonment”[8] but noted the Applicant’s expression of contrition stating that “I am satisfied that the offender is truly contrite”. His Honour also noted that “until the time of the commission of this offence [the Applicant] was a person of good character” and “it is indeed unusual for a person of his mature years to be involved in such a serious offence”.[9]
[7] Prior to this the Applicant had a minor traffic offence in 1993 (G documents at p. 45 and Supplementary G documents at p. 37) and apparently no other appearances before the courts.
[8] G documents at p. 48.
[9] G documents at pp. 49-50.
His Honour also described the offence as “fall[ing] in the mid range of objective seriousness”.[10]
[10] Ibid p. 49.
His Honour went on:
On reading the report of Katie Seidler [a clinical psychologist]…I have some insight as to the factors which led the offender to committing the offence. The report indicates that the offender became addicted to cocaine in 2002. His addiction was such that he became highly motivated to seek out the drug on a regular basis. It appears that most of his activities from that time to the date of the commission of the offence were designed to earn money to purchase drugs and he came into contact with persons from whom he believed he would be able to purchase drugs. The motivation of the offender does not excuse the offence but perhaps it explains it.[11]
[11] Ibid p. 50.
His Honour accepted that the Applicant “has positive goals for his future” and found that there were “special circumstances” in the case which led him to impose a sentence of seven years and nine months with a five year non-parole period.[12]
[12] Ibid pp. 50-52.
While the Applicant was being held in custody the Department sent him a “Formal Counselling Letter” dated 20 May 2008.[13] This letter noted that he had a criminal conviction and advised that while, at that time, “[n]o consideration is currently being given to cancelling your BF Transitional (Permanent) visa” he should be aware that any further criminal conviction might result in such action being undertaken. The Applicant formally acknowledged receipt of this letter on 26 May 2008.[14]
[13] Ibid pp.155-156.
[14] Ibid p. 160.
On 3 April 2017 the Applicant was sentenced for his second drug offences in the NSW District Court by Acting Judge Hosking.[15] His Honour explained that this offence involved the Applicant’s participation in the activities of “a syndicate of various people which appears to have been involved in the importation of pseudoephedrine from India”.[16]
[15] G documents at pp. 54-68.
[16] Ibid p. 56.
His Honour obviously formed a particularly negative impression of the Applicant and while he agreed that the Applicant “does not seem to have occupied a central role in the activities of the pseudoephedrine importation syndicate”,[17] nevertheless, he found the Applicant:
… a witness of questionable truth. Indeed to say he was a witness of questionable truth in my view very seriously understates the matter. My clear view of the offender’s evidence is that he had deliberately sought to minimise or simply lie about any aspect of this matter that cannot be proven 100% by the authorities.[18]
[17] Ibid p. 61.
[18] Ibid p. 60.
His Honour went on to find that the Applicant, in relation to the offences, “was doing this for financial reward”[19] and was “cautious in accepting”[20] the Applicant’s explanation that he had been (in part at least) coerced into these activities by threats being made against members of his family. His Honour also found that:
… there was no direct evidence of any remorse on the part of Mr Hood…My conclusion from all that is that the regret that Mr Hood feels is that he has acted in a way that has placed him back in custody and which will incur substantial sentences. Not genuine remorse.[21]
[19] Ibid p. 62.
[20] Ibid p. 62.
[21] Ibid p. 64.
His Honour did, however, find that there were “special circumstances essentially because of the offender’s age”[22] which was taken into account when imposing sentences of 3 years (with a 2-year non-parole period) and eight years and nine months (with a 6-year non-parole period).[23]
[22] Ibid p. 66.
[23] Ibid p. 67. The first sentence was for a Commonwealth money (dealing with proceeds of crime) offence and the second in relation to drug-related offences. The sentences were to be served concurrently and hence conclude on 7 November 2022. The Applicant’s non-parole period expired on 7 February 2020.
The Respondent’s submissions regarding convictions
The Respondent urges the Tribunal to give particular attention to a number of matters arising from the circumstances of the Applicant’s offences and the sentencing remarks of the judicial officers. These include:
·the objective seriousness of the offences, including the use of encrypted communications in their planning;[24]
·repetition of the same kind of offence thus diminishing the weight which should be placed upon Dr Seidler’s 2005 assessment that the Applicant was unlikely to become a repeat offender;
·the Applicant’s arrest on 8 August 2013 took place less than eight months after the expiry of his parole period for the 2003 offence;[25]
·after his release from jail in 2010 the Applicant continued to associate with the same sort of people who were involved in his earlier drug dealing offence;
·the Applicant’s explanations regarding being coerced into the commission of the second drug offences are implausible and that these dealings were motivated by greed and desire for financial gain;
·the Applicant’s age at the time of his offending should count against him as mature adults should be expected to be less inclined to such levels and types of criminal behaviour.
[24] G documents at p. 58 and Respondent’s SFIC at [12].
[25] Ibid p. 70.
“Going behind” the convictions
The Applicant has made detailed submissions regarding the background and circumstances of his 2003 and 2012-2013 offences and asks the Tribunal to take them into account in coming to its determination. Importantly, the Applicant does not seek to call into question the convictions themselves to which he pleaded guilty.
The extent to which the Tribunal may consider these matters is not limitless and at all times it must accept and respect the fact of the conviction(s).
Indeed, the Tribunal is aware that any convictions themselves cannot be challenged or called into question by it, nor can the Tribunal go behind the convictions and re-examine matters de novo.[26]
[26] Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575, 596 per Sheppard J; Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649.
In Daniele, the Federal Court outlined the limits of the Tribunal’s powers in this regard:
The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination, and the extent of that inquiry, will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine.[27]
[27]Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649, 653 per Fisher and Lockhart JJ.
A more expansive outline of the Tribunal’s powers, responsibilities and limitations was given by Sheppard J in Gungor (setting aside a decision of the Tribunal) as follows:
The taking of such a course by the Tribunal has, in my respectful opinion, the effect both of going behind the conviction and setting it at nought. In my opinion it was not open to the respondent to lead evidence for the purpose of showing that he was a principal in the second degree rather than in the first. Certainly it was not open to the Tribunal to treat him as convicted on the basis of that conduct rather than upon the basis of conduct which made him a principal in the first degree. To proceed as it did involved it in an error of law.
I do not believe that such a conclusion is greatly restrictive of the Tribunal's difficult and important function in deportation cases. If the view I have proposed prevails, the Tribunal remains entitled, indeed bound, to examine for itself what was involved in the entirety of the conduct of the applicant before it. This examination will include the receiving of evidence to put the tribunal in a position to weigh and to make its own assessment of the seriousness of the conduct which has led to the conviction. Nevertheless, I concede that the view I favour may, in some cases, have an inhibiting effect on the Tribunal. It may also create a degree of difficulty for it, because it will need to determine whether particular evidence sheds light on the way conduct on the part of an applicant for review should properly be viewed or whether its real effect, if accepted, would be to go behind the conviction. It will be necessary for the Tribunal to be aware at all times of the purpose for which it receives (or has received) the evidence and for which it uses the evidence. If the evidence in question is in truth evidence which involves the applicant in seeking to go behind the conviction or to have the conviction set at nought, it ought to be put aside; otherwise it will need to be weighed along with all other evidence for the purpose of deciding whether to remit the matter to the Minister for reconsideration in accordance with the Tribunal's recommendation.[28]
[28] Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575, 596-597.
These “wider and different” matters for determination require specifically that the Tribunal’s task includes making assessments in relation to the considerations laid out in Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction).
Furthermore, Professor Dennis Pearce, in his authoritative text on the Tribunal notes:
So on an application to review a deportation order based on a criminal conviction, evidence may be presented that pertains to the issue of deportation and this may attempt to explain or qualify the evidence given at the trial. What cannot be attempted is to show that the conviction on which the order was based is wrong.[29]
[29] Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworths, 4th ed, 2015) 138, citing Re Chae Sun Lee and Department of Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 531.
The Tribunal is thus prepared to take into consideration material presented to it on behalf of the Applicant which may be relevant to his explanation of the background of events which led to the convictions which are recorded against him.
These issues were considered by the Full Federal Court in Saffron, where Davies J stated:
… a conviction is conclusive merely of that which it establishes, namely the fact of conviction for the offence, but not of the facts lying behind that conviction. [30]
…
The controversy as to Hollington v Hewthorn is another illustration that the principle as enunciated by Mr Burbidge is not a principle of the law of this country or of the United Kingdom. Mr Burbidge is not seeking to put forward the conviction as evidence of the facts on which it was based. Mr Burbidge is seeking to establish that the conviction is conclusive proof of the essential facts on which the conviction was based. That is not the law.[31]
[30] Saffron v Federal Commissioner of Taxation (1991) 102 ALR 19, 21.
[31] Ibid 23.
A three-person panel of this Tribunal, consisting of a Deputy President, a Senior Member and a Member came to the conclusion that:
Although the tribunal should be extremely sensitive to the consequences of making findings which were inconsistent with the respondent's convictions, the review by the tribunal of the existence of the overpayment was not an abuse of the tribunal's process.[32]
[32] Re Secretary, Department of Social Security and Mariot (1992) 25 ALD 581, 582.
In Ridley a full bench of the Federal Court stated:
It was not contrary to public policy or an abuse of process for the tribunal to permit the appellant to re-open an issue determined against her by the recording of the convictions. The tribunal performed solely administrative functions in deciding what administrative decision was appropriate; and it was not a requirement of law that the tribunal exclude from its consideration material which challenged the grounds on which a prior conviction had been obtained.[33]
…
It was submitted on the hearing of the appeal before his Honour that it was “contrary to public policy” and “an abuse of process” to permit Mrs Ridley to “re-litigate” before the tribunal, an issue necessarily determined against her by the convictions in that the convictions were conclusive proof of the essential facts on which they were based.[34]
His Honour carefully reviewed the authorities relevant to those submissions and concluded that pursuant to the decision of the Full Court of this court in Saffron v FCT (1991) 102 ALR 19 it was not open to the secretary to submit that Mrs Ridley's convictions were conclusive proof of the essential facts upon which those convictions were based. His Honour also said that his earlier decision in Commissioner, Australian Federal Police v Butler (1989) 91 ALR 293 which had suggested that public policy may prevent a court going behind a conviction, had to be read subject to the reasoning of the Full Court in Saffron. His Honour held that it could not be said that there would be an abuse of process in permitting the tribunal to go behind Mrs Ridley's convictions.[35]
[33] Ridley v Secretary, Department of Social Security (1993) 29 ALD 726, 726.
[34] Ibid 730.
[35] Ibid 730-731.
In discussing the principles involved in the Tribunal’s capacity to examine matters related to the fact of convictions, Bromberg J stated:
Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.[36]
[36] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, [78].
Similarly, Thawley J:
The decision the subject of the Tribunal’s review was founded on the applicant’s criminal conviction. In those circumstances, the applicant could not challenge the fact of the conviction or the essential facts on which it was based in the Tribunal, even if the circumstances of the conviction might be reviewed for a purpose other than impugning the conviction itself: Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49 at [50] (Davies J); Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673 at [42] (Branson J); HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78] (Bromberg J)[37]
[37] GKQK v Minister for Home Affairs [2019] FCA 1223, [32].
More specifically, with reference to the Tribunal’s statutory responsibilities under ministerial Direction no. 79 (see below), Moshinsky J stated:
Further and in any event, in circumstances where the Tribunal was required to consider the nature and seriousness of the offence (under paragraphs 11.1(a) and 11.1.1 of Direction 79), it was open to the Tribunal to form its own view as to the character of the offending conduct. It was not bound by the description of the conduct given to it by the two sentencing judges. Although the Tribunal departed from the description of the conduct given by the sentencing judges, I do not regard this as questioning the essential facts upon which the sentence was based; rather, it concerned the way in which the conduct was to be characterised. This is supported by, or at least consistent with, Vaitaiki v Minister for Immigration and Multicultural Affairs [1999] FCA 1149 at [17]-[24] per Katz J (Hill and Whitlam JJ agreeing) and Mrayhej v Minister for Immigration and Border Protection (No 2) [2015] FCA 691 at [56] per Foster J.[38]
[38] NDBR v Minister for Home Affairs [2019] FCA 1631, [54].
Finally, the Tribunal notes a comment in a case handed up by the Respondent during the hearing where Branson J stated:
… although there is no absolute rule that the tribunal may not consider material which challenges the grounds on which a prior conviction was based, policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non- citizens in Australia who have been convicted of criminal offences, should be administered in a way which:
(a)recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences; and
(b)limits inconsistency between decisions of the criminal courts and those of tribunals.[39]
[39] Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385, [43]. Citations omitted.
The Applicant’s submissions regarding convictions
When a decision has been made by a delegate or the Minister to cancel a visa, the former visa holder is given an opportunity to make submissions as to why that cancellation decision should be revoked. The original decision in the present case was made on 22 March 2019 and the Applicant submitted his revocation representations on 9 April 2019.
The Applicant could not, and did not, dispute that he failed the statutory character test as this is a matter of fact consequent upon his convictions and sentencing for a term of imprisonment in excess of twelve months.
Details of these submissions are set out at length in the delegate’s decision record not to revoke the original decision,[40] and in several other submissions by the Applicant.[41] They are accompanied by a number of references and letters of support from members of his family and other associates.[42] In addition, the Applicant has submitted a Statement to the Tribunal in response to the delegate’s non-revocation decision[43] and has provided records related to his conduct while incarcerated[44] which include reference to frequent urinalysis testing and reports.[45]
[40] G documents at p. 28.
[41] Ibid pp. 82-83 and 94-96.
[42] Ibid pp. 99-100, 115 and 117; Applicant’s submissions filed with the Tribunal on 26 January 2020 including statements and reports from Allen Hood, Evelyn Johnston, David Cusack, Jason Cusack, Rene Johnston, Nicole Johnston, Simone Johnston, Serena Moore, David Hood, Barrie Pinder, Dirk Ostermann and Senior Assistant Superintendent Ben Parish.
[43] Applicant’s Statement filed with the Tribunal on 26 January 2020 (Applicant’s Statement).
[44] G documents at pp. 72-78.
[45] Applicant’s pre-release report filed with the Tribunal on 21 February 2020.
Finally, the Tribunal has before it copies of the psychological reports by Dr Katie Seidler undertaken in both 2005[46] and 2016,[47] references and letters submitted by the Applicant in 2005[48] prior to the sentencing hearing of the same year, and a newspaper article related to the offences in question.[49]
[46] Supplementary G documents at pp. 59-66.
[47] G documents at pp. 128-139.
[48] Supplementary G documents at pp. 67-80.
[49] Andrew Dowdell, ‘Alleged drug trafficker Robert Pollybank Gee arrested in Phuket, Thailand after five years on run’, The Advertiser (Adelaide), 15 September 2016. Filed by the Applicant with the Tribunal on 26 January 2020.
The Applicant’s submissions in support of revocation of the original cancellation decision may be distilled into a number of headings:
1The nature of the offences
(a)They were the result of his personal circumstances of drug addiction, bankruptcy, depression and marriage breakdown; or
(b)They were the result of external threats to the safety and wellbeing of his family.
2Family ties
(a)He has responsibility for the care of an elderly mother who suffers from dementia;
(b)His removal from Australia would have a major impact on members of his family (all of whom are in Australia) including six adult children and numerous grandchildren, nephews and nieces.
3His personal characteristics and qualities
(a)He has a record of steady, gainful employment until the time of his first offence, committed at age 53 years;
(b)He is fully absorbed into Australia, has since his arrival here aged 2 years never left the country and has no ties, family or meaningful connections with anyone or anything in the United Kingdom;
(c)He suffers from a number of health conditions which would be exacerbated by an enforced removal from Australia;
(d)He no longer uses drugs or has any form of drug addiction;
(e)Under the pseudonym David Maclellan he is a published author having published a volume of poetry[50] in 2010 based upon his life experiences and reflecting on his prison experiences.
4Rehabilitation
(a)While in prison he has behaved as a “model prisoner” and completed numerous courses of study and obtained tertiary qualifications;
(b)He is genuinely remorseful for his past behaviour and the impact which it has had on his family;
(c)He is committed to avoiding similar future behaviour and has both a determination for and good prospects of rehabilitation into a useful and crime-free life in support of his family.
[50] David Maclellan, Take a walk in my shoes (Xlibris Corporation LLC, 2010). The book is available for purchase on amazon.com.au.
Several of these matters will be discussed below but at this stage it is relevant to note the background which the Applicant advances in relation to the commission of his offences.
In relation to the 2003 offence,[51] the Applicant put to the Tribunal that, at the time he was under great stress as a result of the bankruptcy of his joint venture business[52] causing the loss of all the savings accumulated by himself and his then wife. At the same time, he was dealing with the death of his father and pressures in the raising of his four sons all of which ultimately led to the collapse of his marriage and his divorce. Around August 2002 he had “fallen in with a new circle of people from [his] workplace and began socialising with them”.[53] Through these new associates he was first introduced to the use of cocaine and he eventually became addicted to its use. He ended up in debt to his dealer to the tune of some $30,000 but was allegedly offered a way out of this debt by undertaking the role of a courier transporting illicit drugs between Sydney and Adelaide (where he then lived). The person with whom he was to make contact in Sydney was already under police surveillance and when the contact was made the Applicant was arrested.[54]
[51] Applicant’s Statement.
[52] This is attested to in the written statement of his former business partner Dirk Ostermann in G documents at p. 115.
[53] Applicant’s Statement at [3].
[54] Supplementary G documents at pp. 114-116.
The Respondent challenged the Applicant’s contention that a traumatic combination of circumstances and pressures had led him to start using cocaine, becoming addicted and thence being drawn into criminal behaviour.
Drawing on the statement by the Applicant’s former business partner, Dirk Ostermann,[55] it appears that the bankruptcy of their joint venture business would have occurred at some time in the early 1990s. Similarly, it appears that the death of his father and the ending of his marriage took place some time in or before 1995. By 2001 the Applicant was sufficiently in control of his life as to take a position as manager of a sign shop (Designcraft Pty Ltd) and it was only sometime in 2002 that, as noted above, he fell in with “a new circle of people from my workplace”[56] through whom he first came to use cocaine.
[55] G documents at p. 115.
[56] Applicant’s Statement at [3].
The point made by the Respondent was to the effect that the Applicant was sufficiently over the traumas he had experienced between 1990 and 1995 and had re-established a stable lifestyle and employment position well before the events of 2002. Hence he could not rely upon them as an “excuse” or contributing factors to his decision to engage in criminal activity in 2003.
It appears that the Applicant actually lost his job with Designcraft in 2003 “[b]ecause I was becoming unreliable and disorganised at work” due to his drug addiction.[57]
[57] Applicant’s Statement at [4].
It may be that not too much turns upon what precipitated the descent into drug use and addiction but rather how much turns upon the extent to which that drug addiction supplied the underlying aetiology for his first venture into criminal behaviour in an attempt to pay off drug-related debts. According to the Applicant, debts (this time at a level of some $125,000, which he stated in his oral evidence, related to police seizure of illicit cash involved in the 2003 offence) once again provided the basis for his “coerced” involvement in the 2012-2013 offences.
In relation to the 2012-2013 offences, the Applicant contends that in December 2011 he was visited by a certain Robert Gordon Pollybank Gee (Gee) (with whom he had been associated in the 2003 offence but whose involvement he had not revealed to the police). Subsequently Gee threatened members of his family, especially his sons, if the Applicant failed to assist in another criminal undertaking.[58]
[58] Applicant’s Statement.
The Tribunal notes that Robert Gee has been described in the media as an “Australian drug kingpin”. Gee fled overseas while on bail in South Australia, but was subsequently arrested and detained in Thailand in 2016.[59] It appears that in 2018 he was extradited back to Australia.[60]
[59] Andrew Dowdell, ‘Alleged drug trafficker Robert Pollybank Gee arrested in Phuket, Thailand after five years on run’, The Advertiser (Adelaide), 15 September 2016. Filed by the Applicant with the Tribunal on 26 January 2020.
[60] Lindsay Murdoch, ‘Australian drug kingpin to be extradited after more than a year in Bangkok prison’, The Sydney Morning Herald (online), 13 February 2018 < Liam Cochrane, ‘Thai Police arrest alleged Australian drug kingpin Robert Gee at Phuket bar’, ABC News (online), 15 September 2016 < type="1">
Ironically, two of the Applicant’s sons are members of the South Australian Police and the Applicant took seriously the threats to them, especially in relation to his son then based in the small country town of Berri (SA). The Applicant did not report the threats on the basis that he would not be believed and that he did not want his first contact with his police officer son in eight years to be on the basis that he (the Applicant) may have put his son’s life in danger due to his involvement in drug-related offences.
As has been clearly stated above, the Tribunal is prohibited from calling into question the fact of the convictions and sentences imposed on the Applicant but may inform itself of the background and circumstances leading to such convictions. The Judge at sentencing did not give great credence to this narrative on the part of the Applicant[61] but he provided considerable details about these events to the Tribunal at its hearing and was cross-examined vigorously by the Minister’s representative in relation to them. His testimony to the Tribunal was not, in all the circumstances, implausible. It is possible that he acted in fear and under duress.
[61] G documents at p. 62.
What is, however, not plausible in the view of the Tribunal is the Applicant’s submission that he thought the illegal activity which he undertook was solely related to assisting Gee to move money from various Australian sources to a bank in Thailand. He was certainly aware that Gee was a “drug kingpin” and that his “business” was the importation and sale of illegal drugs. The Applicant may have thought he was only moving (laundering) money but he cannot have been unaware that it was “drug money” even if he was not, himself, handling the actual drugs. In this respect, although he “does not seem to have occupied a central role” (per Acting Judge Hosking) in the activities of the syndicate, and may not have been aware of the extent, membership and reach of that syndicate, he has clearly knowingly participated in activities related to the illicit drug trade.
GROUNDS FOR REVOCATION
Section 501CA of the Act relevantly provides:
(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.
…
(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.
The Applicant clearly fails the character test and so the issue for the Tribunal is whether or not there is “another reason” why the original decision should be revoked.
In order to provide guidance to decision-makers (including the Tribunal), the Minister has promulgated directions under section 499 of the Act:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
…
(2A) A person or body must comply with a direction under subsection (1).
The Tribunal is required to take any such directions into account, and give them full and proper regard, when making its own independent decision on a request for revocation of a visa cancellation. It must however make this decision as it were, de novo, on the date of its own decision-making and based on all the material before it, some of which may not have been before or available to the original decision-maker.[62]
[62] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419; AFY18 v Minister for Home Affairs [2018] FCA 1566, [9] per Charlesworth J; Shi v Migration Agents Registration Authority [2008] HCA 31, [37] per Kirby J.
Failure to take proper account of the direction will lead the Tribunal into jurisdictional error.
Authorities in this Court have expressly accepted that a failure to comply with ministerial directions made under s 499 can constitute a jurisdictional error.
Several Full Court decisions have treated this particular Direction as not only binding on the Tribunal, but also as the source of potential jurisdictional errors for non-compliance.[63]
[63] Williams v Minister for Immigration and Border Protection [2014] FCA 674, [34]-[35] per Mortimer J. Citations omitted.
However, this is not entirely a black and white process. As far back as 1979 the Full Federal Court held that:
If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct and preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.[64]
[64] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 420.
In 2018, Mortimer J, after a comprehensive review of the authorities on this matter concluded (some years after her decision in Williams):
… policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.[65]
[65] G v Minister for Immigration and Border Protection [2018] FCA 1229, [210]. Although the decision in this matter was reversed on appeal, Her Honour’s comments were discussed by the Full Court and not expressly disapproved. It was Her Honour’s finding that the relevant parts of the Citizenship Instructions were inconsistent with the Act itself that was set aside (Minister for Home Affairs v G and Another (2019) 164 ALD 103, 114 and 123).
The relevant ministerial Direction in the present matter is number 79[66] and it sets out a series of considerations which must be taken into account by decision-makers. The considerations are listed in Part C paragraph 13 of the Direction. The first three are designated as “primary considerations” namely:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
[66] Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA. Effective 28 February 2019.
There are then another five considerations designated as “other considerations”, which include (but are not limited to):
(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 are two important matters to note in relation to the way in which the Tribunal addresses these considerations.
In the first place, the weight which the Tribunal assigns to any information and/ or material before it is entirely a matter for it, and it alone, to determine,[67] although, it must take all of the evidence before it into account. It follows from weighing the material relevant to any consideration that the consideration, itself, will also be weighed accordingly.
[67] VKTT v Minister for Home Affairs [2019] FCA 1018, [44]; Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123, [45]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10; Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464, [27] per French J.
Secondly, although considerations listed in paragraph 65 above are designated in the Direction as “other considerations” they are, in no way, lesser considerations than those designated as “primary”.[68] The Direction (then Direction no. 65):
… provides that “primary considerations should generally be given more weight that other considerations”. The word “normally” indicates that the other considerations may sometimes not warrant lesser weight.[69]
[68] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [28];
[69] Minister for Home Affairs v HSKJ [2018] FCAFC 217, [32].
Indeed, the consideration of the weight of the “other” considerations may, in particular circumstances, outweigh those designated as “primary”.[70]
[70] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
It is to those considerations which the Tribunal now turns.
DIRECTION NO. 79 CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Under clause 13.1 of the Direction the Tribunal must give consideration to both the nature and seriousness of the conduct and the risk to the community were the Applicant to reoffend or engage in other serious conduct.
In the first instance there is no doubt that the offences in question were serious. Indeed they were described as such by the sentencing judges. Drug-related crimes are not only serious they are a threat to the very fabric of the Australian community. The Respondent rightly draws attention to the decision of the Tribunal in SCJD as follows:
The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.[71]
[71] SCJD and Minister for Home Affairs [2018] AATA 4020, [81]-[83] per Senior Member R Cameron.
In the week before the hearing, the NSW Special Commission of Inquiry into crystal methamphetamine and other amphetamine-type stimulants released its four-volume report which noted that:
Australia has the highest rate of amphetamine dependence in the world and, of all the world’s regions, Australasia has, by a substantial margin, the highest rate of all-cause deaths associated with amphetamine dependence.[72]
[72] Professor Dan Howard SC, Special Commission of Inquiry into crystal methamphetamine and other amphetamine-type stimulants (Report, January 2020) vol 1, vii.
The Applicant has been involved, directly, in two significant drug-related offences. He is a repeat offender. His involvement was with sophisticated operations operating internationally where significant sums of money were involved.[73] Although he was not, apparently, a central figure in these activities he was, at least, a foot soldier and as such, an active contributor.
[73] In the 2003 offence this was in the order of at least $105,020 and in the 2012-13 offences at least $50,000 (sentencing remarks in G documents at pp. 48 and 54).
It is also important to recall that the second offence took place despite the Applicant being clearly on notice from the Department that he had already been given one chance (after the 2003 offence) and that further offences would bespeak of potentially serious consequences. The Applicant was given a second chance opportunity and a clear warning which he chose to set at nought and ignore.[74]
[74] It is not unusual for Applicants in similar circumstances to claim that they failed to understand or had forgotten about such warnings when facing the consequences of subsequent offending behaviour. See Tapara and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair (Migration) [2020] AATA 321, [78].
The second issue is the likelihood of the Applicant reoffending or engaging in other serious conduct, thereby constituting a risk to the Australian community. The risk, of course, is a consequence of the reoffending and hence, should there be little or no likelihood of reoffending, there will be little or no likelihood of risk.
In her 2005 assessment, Dr Katie Seidler wrote:
Mr Hood seems to have led a largely prosocial and stable existence up until several years ago when he became involved in substance abuse. His drug use appears to have been precipitated by social influence, further exacerbated by personal problems he was experiencing at the time associated with the loss of a business, the death of his father and the breakdown of a relationship. The most significant issue precipitating Mr. Hood’s offending seems to be his substance use and as such, it is recommended that he would benefit from specialist intervention to assist him in maintaining abstinence through relapse prevention planning. He appears to be committed to his family and has positive goals for the future and is not considered to pose any significant risk to the community. He will likely respond well to supervision and be managed well within the community. If Mr. Hood is to remain in the community and under supervision, random urine screens might be advisable. He also expressed that he will cope with incarceration, although his mood state will likely become more unstable if he loses his relationship or his mother during any term of imprisonment.[75]
[75] Supplementary G documents at p. 65 [36].
The delegate in his/ her decision gave weight to the Applicant’s “history of substance abuse”,[76] although the Applicant claims that he only used illicit drugs from September 2002 to March 2003 and that he has been “clean” since.[77]
[76] G documents at p. 35.
[77] Applicant’s Statement p. 8.
The Applicant’s claim regarding this point was challenged by the Respondent and it was established in evidence before the Tribunal that the Applicant had told Dr Seidler that he first smoked cannabis when he was around 40 years of age (i.e. in 1990) and had done so frequently.[78] Moreover, in the material promoting his published book of poetry, reference is made to his familiarity with “the seedy world of drugs in the streets of Sydney in the 1990s”.[79] Although the Applicant dismissed this latter reference as “poetic licence” he nevertheless admitted that he had been a user of illicit drugs since at least 1990, although he maintained that he was only addicted to cocaine in the foregoing seven-month period.
[78] Supplementary G documents at p. 62 [19].
[79] Printout from AuthorsDen.com filed with the Tribunal by the Applicant on 26 January 2020.
Clearly the assessment in 2005, that he “is not considered to pose any significant risk to the community” was not borne out by the Applicant’s subsequent behaviour.
In 2016 Dr Seidler was asked to provide a further assessment for the Applicant’s Legal Aid solicitor. On that occasion she wrote:
… On the basis of my earlier assessment of Mr. Hood, I opined that he was a man who was inherently prosocial and who had resilient mental health, a lack of antisocial per (sic) connections and a generally productive routine in the community. However, he experienced a notable loss of coping following a series of life events, which resulted in his turning to cocaine use as a means of self-medication and it was within this context that he became involved with people engaged in an antisocial routine, who he incurred significant debts to and this is what precipitated his original drug offences. This formulation still stands.
… Mr. Hood impresses as inherently prosocial in his orientation and he does not present with significant mental health or substance abuse issues that contributed to his offending behaviour and therefore, require intervention. He also appears to possess good insight into his vulnerabilities and the factors that have contributed to his offending. To this end, I would suggest that his prospects for rehabilitation are sound but that the primary area in which he needs to make changes are environmental and social so as to avoid any further contact with previous antisocial peers involved in the drug trade.[80]
[80] G documents at pp. 135 [34] and 137 [38].
In this report Dr Seidler stressed the importance which the Applicant placed upon being able to reconnect with his sons and continue to support his mother.
It is hard to assess the primary motivation for the Applicant’s reoffending behaviour. He claims that he acted out of fear for the safety of his family and concerns in particular in relation to his police officer sons. He also claims that he received no form of payment for any of his 2012-2013 activities. On the other hand, the sentencing Judge gave little weight to this evidence and took the view that the Applicant was motivated by “financial reward”.
The Tribunal is in no position to determine anything in this regard however it does accept that, in his current circumstances and with a clear understanding of the consequences facing him as a result of his past behaviour, the likelihood of the Applicant offending again is low. It appears that he has re-established some of the family relationships which were not present and supportive in the past and that his concerns about the welfare of his mother are strong motivation for compliant and respectful behaviour.
Mortimer J in Tanielu has made it clear that when a decision-maker is evaluating the risk posed to the community by allowing an offender to remain in Australia, the seriousness of the risk in question does not stand alone but must be measured against the likelihood that the offender will repeat the offence. Her Honour stated:
Second, where a decision-maker chooses, as the Minister chose in the present case, to examine whether there is an “unacceptable risk” to the Australian community if a person remains in Australia, in order lawfully to determine the nature and magnitude of that risk, certain matters need to be considered. The term “unacceptable risk” is not without content in Australian law, and that content has some general features which can be derived from authorities such as those to which I have referred. One feature, the one upon which the applicant fastens in his third ground of review, is that the likelihood of a person engaging in conduct in the future which may cause harm needs to be assessed. The authorities to which I have referred make it clear that an assessment of likelihood of conduct occurring, or recurring, is assumed to be an integral part of determining risk.
It is well established that, where the harm which might be caused by future conduct is particularly serious, a lesser likelihood of the conduct occurring may be required for the risk to be identified at a level requiring a particular decision to be made. It is also well established that the likelihood of a person engaging in conduct in the future is affected by both static and dynamic factors: that is, factors which can be assessed objectively against statistical models to predict the risk category a person falls into, and dynamic factors personal to an individual which may moderate or exacerbate the risk the person otherwise could be said to pose. Those factors might include family support, alcohol and drug abuse patterns, employment and the like.
I accept the applicant’s submissions that an examination of the likelihood of a person engaging in future conduct which may cause harm is an essential part of any assessment of the risk that person poses to the Australian community. Even if risk of harm to the Australian community is not a relevant consideration, where the Minister chooses to consider that matter, and to do so by asking whether the risk is “unacceptable”, there are minimum components which Australian law recognises as integral to deciding if a risk of harm is “unacceptable”. One of those is the likelihood a person will engage in the conduct capable of causing harm.[81]
[81] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, [102]-[104]. See also [158].
His sister, Evelyn Johnston, travelled from the Central Coast to give evidence on his behalf wherein she told the Tribunal of his role looking after their mother, who now suffers from dementia and is in nursing care. She indicated that their mother, to the extent that she can, very much relies upon hearing from her son on a regular basis via the telephone. She told the Tribunal of her knowledge of how the Applicant had a genuine desire to be reconciled with his sons in Adelaide and how important this was for him as part of his perceived future after release from custody.
The Tribunal noted that there were numerous letters and statements of support for the Applicant from members of his family and Ms Johnston made it clear that, had they known of the significance of their being present in person to speak on the Applicant’s behalf, they would have appeared. The Tribunal accepts this and gives the Applicant credit accordingly.
Ms Johnston indicated that she had maintained regular contact with the Applicant and that she visited him regularly while he was in custody. She stated that upon his release she and her husband would be happy to have the Applicant live with them, that they “would look after him and take full responsibility” for him.
Direction no. 79 at clause 14.2 sets out matters which a decision-maker is obliged to take into account when assessing this consideration. It 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; and
ii. [m]ore 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).
Working through these, the Tribunal notes that the Applicant:
·has been a long-term resident (67 years);
·arrived as a young child aged approximately 2 years;
·did not offend until he was 53 years of age; and
·prior to that had contributed positively to the Australian community in terms of his employment and his family status.
Further, the impact on members of his family (not just minor children), and people like his friend and former business partner (“social links”) Dirk Ostermann,[99] would be significant were the Applicant to be removed from Australia.
[99] G documents at p. 115.
The Applicant thus satisfies all the criteria listed in clause 14.2 of the ministerial Direction and the Tribunal gives considerable weight to this consideration as favouring revocation.
Impact on Australian business interests
There are no matters raised under clause 14.3 which require the Tribunal’s consideration.
Impact on victims
Direction no. 79 is worded in such a way as to narrow and limit the extent to which this matter is considered.
The Direction provides:[100]
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
[100] Direction no. 79, cl 14.4(1).
The Respondent has made no submissions to the Tribunal on this matter, and there are no immediate victims who are identifiable. In one respect this is unfortunate as the impact on “victims” and their families of the pernicious and deadly drug trade is, by common consent and understanding, immense. The recent report of the “Ice” Commission of Inquiry has only served to emphasise this point.
In the absence of submissions and recognising the Applicant’s right to procedural fairness in this instance, the Tribunal makes no findings in relation to this part of the Direction.
Extent of impediments if removed
The Applicant claims that were he returned to the United Kingdom he would suffer a sense of isolation and separation from both family and the familiarity with the only country that he has known as home and which, for the last 67 or so years, has never left. He claims that communication with his family would be difficult and that, above all, his earnest desire to be reconciled with his sons would be rendered impossible.
Nevertheless, the United Kingdom is a country which shares all the basic features of Australia in terms of language, democratic government and the rule of law, social welfare and national health systems (NHS) which are of high quality, universal accessibility (to citizens) and international communications systems which allow easy contact with people anywhere in the world. Furthermore, as the Respondent submitted, there are sophisticated and experienced voluntary and non-government organisations (NGOs) capable of, and specifically designed to provide support for former prisoners focused upon their rehabilitation and reintegration into the wider community.[101]
[101] Respondent’s submissions filed with the Tribunal on 28 February 2020.
The Applicant would, it appears, be entitled to the British equivalent of the aged pension (the State Pension), possibly be eligible for support through the Universal Credit system and would have his health issues managed within the NHS.[102]
[102] Supplementary G documents at S2 – S8.
It is true that the Applicant would be immediately unfamiliar with any new surroundings and would feel isolated and unsupported in an emotional sense, but his physical safety and wellbeing would not be compromised and his capacity to establish a “new life” would be very much in his own hands.
He would not suffer the extreme disadvantages which were faced, for example, by Mr Nystrom with his deportation to Sweden, a country where he had never lived, did not speak the language and had no family or support network.[103] Nor, to take another example, that of Mr Ferreira, a case determined by this Tribunal in upholding a cancellation decision, where the Applicant was to be returned to Portugal, which he had left at the age of under 2 years, spoke no Portuguese, knew nothing of the country’s laws, mores, customs or practices, and which had a health and welfare system considerably less suited to the Applicant’s conditions and needs, than that in Australia.[104]
[103] See footnote 1 above.
[104] Ferreira and Minister for Home Affairs (Migration) [2018] AATA 2599. Upheld on appeal in Ferreira v Minister for Home Affairs [2019] FCA 1657 per Markovic J and upheld on appeal to the Full Federal Court in Hopkins v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 33 per Logan, Wigney and Gleeson JJ.
The Respondent drew the Tribunal’s attention to a number of cases involving potential removals of long-standing Australian residents (some with Absorbed Person visas) who, being New Zealand citizens, were to be returned there in circumstances very much akin with those faced by the Applicant and where the cancellation decisions were affirmed.[105]
[105] Tapara and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair (Migration) [2020] AATA 321; NDDG and Minister for Home Affairs (Migration) [2019] AATA 250; RGYW and Minister for Home Affairs (Migration) [2018] AATA 2076.
The Tribunal notes the Respondent’s contention that “whilst the applicant may face some difficulty in re-establishing himself in the United Kingdom, this factor would only present a short term hardship and would not preclude resettlement”.[106]
[106] Respondent’s SFIC at [60].
The Tribunal agrees with this assessment, but only to the extent that the difficulties faced by the Applicant would not be insurmountable. However, given his age and his lack of any personal, family or emotional support in the United Kingdom, the Tribunal gives some weight to the Applicant’s concerns which he expresses as “[m]y remaining years would be a devastatingly void existence”.[107]
[107] Applicant’s Statement at p. 11.
This consideration weighs marginally in favour of the Applicant.
NON-MANDATED CONSIDERATIONS
The Applicant has spent many years in custody and the Tribunal has before it a number of reports related to the Applicant during that time. The Respondent provided a copy of a report requested by the Department of Home Affairs from the NSW Department of Communities and Justice (the department responsible for the management of correctional institutions in that State). The Senior Assistant Superintendent at St Heliers Correctional Centre wrote:[108]
[108] G documents at p.125, dated 16 August 2019.
Inmate HOOD has had no misconduct events during his time in custody. He has engaged in and with case management interviews and allocated programs to identify and address his offending behaviour. It is evident that HOOD shows true remorse for his actions and the effects of these on the community and his extended family.
HOOD is currently housed within a privileged unit – minimal supervisory and security; a type of honour-house situation, where inmates are relied (sic) to moderate their own behaviour and coexist within this community of inmate (sic) in a manner mirroring community expectations. In this community, HOOD is a mentor to younger inmates.
HOOD is employed within the inmate reception and discharge room. He performs administrative duties, store and stock work to an excellent level. He is trusted to be where sensitive information may be in view of him or accessed; including valuable items. HOOD has never caused himself to be suspected [to be] in any breach of trust in this regard.
1Incidents: No events recorded.
2Urinalysis: 19 tests conducted; no failed tests.
3Education / rehabilitation: Successful completed courses: 010SP: Nexus reintegration planning 02AEVTI Core Skills Assessment – LLN; 020SP: AOD Assessment; Health Survival Tips; Fist Aid.
4Employment: Excellent employment record and reports; inmate is currently employed in a privileged position and assists in administrative functions with a low level of supervision and a high level of trust.
5Visits: Frequent / regular visits with family.
6Alerts: Acute ischaemic heart disease.
Case note reports from the NSW Department of Corrective Services refer to the Applicant’s “outstanding work ethic”, “doing an excellent job as the inmate librarian”, “shows leadership qualities amongst the other inmates”, “[p]olite and respectful to both Staff and Inmates”, and “a good worker nil issues”.[109]
[109] Case note report filed by the Applicant with the Tribunal on 26 January 2020.
It appears that while in custody the Applicant also completed a two year off-campus course in Social Science with the University of Southern Queensland.[110]
[110] Applicant’s Statement at p. 3.
When making his final submissions to the Tribunal the Applicant, after mentioning how much he felt he had failed and let his family down, placed particular emphasis upon his commitment not to, in any way, let down or disappoint Mr Andy Jones, the Senior Correctional Officer and on-site trainer at St Heliers Correctional Centre. The Applicant clearly holds Mr Jones in high regard for his support of the Applicant’s activities and training while incarcerated and who has sponsored his appointment to various trusted administrative positions within the Correctional Centre.
As already noted, the Applicant has authored a volume of poetry entitled Take a walk in my shoes. It runs to some 165 pages and is available for purchase on the amazon.com.au website. The book also has several reviews on other sites. It appears that this was written after his initial release from custody and the poetry reflects the Applicant’s life experiences of childhood, parenthood and lapses into crime and drug addiction.[111]
[111] Printout from AuthorsDen.com filed with the Tribunal by the Applicant on 26 January 2020.
The Tribunal notes, in relation to the Applicant’s state of health, that he suffers from acute ischaemic heart disease[112] and apparently had a heart attack at some stage while in custody. He told Dr Seidler of his concerns about his diminishing cognitive capacity and his fear that this was possibly genetic given his mother’s diagnosis of Alzheimer’s disease.[113]
[112] Referenced in a report by Senior Assistant Superintendent Ben Parish dated 16 August 2019 and filed by the Applicant with the Tribunal on 26 January 2020.
[113] G documents at p. 131.
CONSIDERATIONS – THE “CALCULUS”
Drawing together all the threads of the above and giving appropriate weight to each of the mandated considerations, the Tribunal has concluded in relation to each:
·Protection of the Australian community: nature and seriousness of the conduct, and risk of reoffending – this is finely balanced in that the offences are in the mid-range of seriousness and the risk of reoffending is particularly low. Hence it must be only marginally counted against the revocation;
·Best interests of minor children – although there are a number of minor children, their somewhat limited relationship with the Applicant is such that this consideration weighs neither for nor against revocation;
·Expectations of the Australian community – of necessity this weighs against revocation but, given what the Tribunal accepts as the circumstances in this particular case, that weight is significant but not determinative against revocation;
·Non-refoulement obligations – there is nothing to consider;
·Strength, nature and duration of ties to Australia - these are deep, long-established and significant. The various criteria in clause 14.2 of the Direction all tend heavily in favour of revocation and this is the position of the Tribunal;
·Impact on Australian business interests – there is nothing to consider;
·Impact on victims – there is nothing to consider;
·Impediments if removed – there are some in terms of the emotional impact upon the Applicant especially taking into account his age and health and his lack of family support in the United Kingdom; as such this counts only marginally in favour of revocation.
Of the relevant considerations, the Tribunal weighs two against revocation, one marginally and one more substantially; and two in favour of revocation, one considerably and the other marginally. The two against are “primary” considerations and the two in favour are “other”, but not lesser, considerations.
As such, the Tribunal finds itself in a position where the calculus is about as finely balanced as it possibly could be – for and against.
What has finally weighed with the Tribunal in terms of making its decision has been consideration of the significance of the comments of Allsop CJ in Hands v Minister for Immigration and Border Protection:[114]
By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament. (Emphasis added)
[114] [2018] FCAFC 225, [3]
Mr Hood’s offences were serious as are all drug offences which have the potential to ruin lives and families. However, in this instance there is little or nothing to be gained by removing him from the Australian community. He has shown genuine remorse and he is unlikely to offend again. He has mentioned his potential to work with young offenders to help deter their future offending. He has shown that he understands the gravity of his offending and he appears genuinely committed to making a positive contribution to this country which he can do with the support of his family.
The human consequences of non-revocation for himself and his family members outweigh the benefit to be gained by allowing the cancellation to stand and can be taken into consideration alongside the mandated considerations.
DECISION
The decision under review is set aside and in substitution the cancellation decision of the Applicant’s visa is revoked.
I certify that the preceding 145 (one hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
................................[sgd].....................................
Associate
Dated: 13 March 2020
Date(s) of hearing: 2 March 2020 Applicant: In person Solicitors for the Respondent: Mr H McLaurin, MinterEllison
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