Jacobs and Minister for Immigration and Border Protection (Migration)
[2020] AATA 1524
•27 May 2020
Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524 (27 May 2020)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2020/1572
General Division )Re: Robert Jacobs
Applicant
And: Minister for Immigration, Citizenship,
Migrant Services and Multicultural Affairs
RespondentCORRIGENDUM
TRIBUNAL: Deputy President Boyle
DATE OF CORRIGENDUM: 29 May 2020
PLACE: Perth
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the name of the Respondent from the ‘Minister for Immigration and Border Protection’ to the ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
...................................................................
Deputy President Boyle
Division:GENERAL DIVISION
File Number(s): 2020/1572
Re:Robert Jacobs
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:27 May 2020
Place:Perth
The decision under review is set aside and substituted with the decision that the cancellation of the Applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
..................................[SGD]..................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – mandatory visa cancellation – s 501CA(4) – another reason why the cancellation decision should be revoked – Direction 79 – protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community – best interests of the child – strength, nature and duration of ties – extent of impediments if removed – COVID-19 – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) – ss 32, 65, 499(1), 499(2A), 500(1)(ba), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
Migration Regulations1994 (Cth) – reg 5.15A
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 363 ALR 325
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Home Affairs, 28 February 2019) – paras 6.1, 6.1(3), 6.2, 6.3, 7(1)(b), 8, 8(3), 8(4), 8(5), 13(2), 13(2)(a), 13(2)(b), 13(2)(c), 13.1, 13.1(2)(a), 13.1(2)(b), 13.1.1, 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(e), 13.1.2, 13.1.2(1)(a), 13.1.2(1)(b), 13.2, 13.3, 14, 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(d), 14(1)(e), 14.2, 14.3(1), 14.5(1), Part C
REASONS FOR DECISION
Deputy President Boyle
27 May 2020
THE APPLICATION
The Applicant seeks review of a decision of a delegate of the Respondent, made
10 March 2020[1] not to revoke the mandatory cancellation of the Applicant’s ClassTY Subclass 444 Special Category (temporary) visa (the Applicant’s visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).[1] R3, G4.
The Applicant’s visa was cancelled pursuant to s 501(3A) of the Act because the Applicant does not pass the character test by reason of his substantial criminal record and because he was serving a full-time term of imprisonment for an offence against a law of a State.
The application for review,[2] received by the Administrative Appeals Tribunal (AAT) on
17 March 2020, was made in accordance with s 500(1)(ba) of the Act which allows applications to be made to the AAT for review of decisions of a delegate of the Minister under s 501CA(4) of the Act not to revoke a decision to cancel a visa. The Tribunal is satisfied that it has the jurisdiction to review the decision.
[2] R3, G1.
THE ISSUE
The issue for determination is whether the Tribunal should exercise the power in s 501CA(4) of the Act to revoke the mandatory cancellation of the Applicant’s visa. That will require determination of:
(a)
whether the Applicant passes the character test (as defined by s 501 of the Act)
(s 501CA(4)(b)(i)); and
(b)if not, whether there is a ‘another reason’ why the mandatory cancellation decision should be revoked (s 501CA(4)(b)(ii)).
BACKGROUND
The Applicant is a 29 year old citizen of New Zealand who has been ordinarily resident in Australia since arriving in August 2011, when he was 20 years of age.[3]
[3] R3, G10/37-38.
The Applicant last arrived in Australia on 28 February 2019 and was granted the Applicant’s visa at Darwin Airport in accordance with ss 32 and 65 of the Act and reg 5.15A of the Migration Regulations 1994 (Cth).[4]
[4] R3, G10/37.
The Applicant’s record of offending is as follows:
Court Court Date Offence Offence Date Court Result Perth District Court
26 Jul 2019
Possession of a prohibited drug with intent to sell and supply (MDA)
19 May 2018
20 mths’ imprisonment
Perth Magistrates Court
19 Jul 2019
Exceed 0.08g alcohol per 100ml of blood; >= 0.10g/100ml but less than 0.11g/100ml
21 Jun 2019
Fine $900; MDL disq. 10 mths
No authority to drive
Fine $200
18 Jan 2019
Drove or permitted vehicle with false plate to be driven
19 May 2018
Fine $500
Joondalup Magistrates Court
3 Aug 2018
Possess a prohibited drug (methylamphetamine)
9 Jun 2018
Fine $300
Rockingham Magistrates Court
29 Aug 2012
Exceed 0.08g alcohol per 100ml of blood; >= 0.90g/100ml but less than 0.10g/100ml
9 Oct 2011
Fine $550; MDL disq. 7 mths
On 12 November 2019 the A
pplicant’s visa was cancelled under s 501(3A) of the Act.[5]
This is the cancellation referred to at [2] above.
[5] R3, G30.
Following that cancellation the Applicant made representations seeking revocation.[6]
[6] R3, G13 and G14.
The delegate of the Respondent, by decision dated 10 March 2020, refused to exercise the power under s 501CA(4) to revoke the cancellation of the Applicant’s visa (see [1] above). It is of that decision that the Applicant seeks review in these proceedings.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
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) ...; and
(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.
A ‘substantial criminal record’ is defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more.
Section 501CA of the Act 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.
Ministerial Direction 79
Section 499(1) of the Act provides that:
(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.
Section 499(2A) of the Act states that:
[a] person or body must comply with a direction under subsection (1).
On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, named ‘Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under 501CA’ (Direction 79). The commencement date for operation of Direction 79 was
28 February 2019.
Paragraph 6.1 sets out the objectives of Direction 79. Paragraph 6.1(3) relevantly provides:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction 79 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal. They are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3, the decision-maker (in this case the Tribunal) must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.
Paragraph 13(2), which is in Part C of Direction 79, provides:
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
Further guidance as to how a decision-maker is to apply the considerations in Direction 79 is found in paragraph 8 of Direction 79 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
THE HEARING
The application was heard on 19 May 2020. The Applicant represented himself and appeared by telephone from Casuarina Prison. The Respondent was represented by
Mr J Papalia of the Australian Government Solicitor who also appeared by telephone.
The Applicant’s two witnesses gave evidence by telephone. These arrangements for appearance and evidence by telephone were made necessary by the closure of the Tribunal premises to the public and parties due to the COVID-19 pandemic. The Tribunal thanks the parties for their cooperation.The Applicant gave evidence and was cross-examined. The following witnesses were called by the Applicant and gave evidence and were cross examined:
(a)Ms Bianca Chandler;
(b)Mr Jack Neal.
The following documents were admitted into evidence:
(c)The Applicant’s submissions received by the Tribunal on 12 May 2020 (Exhibit A1);
(d)Statement of Bianca Chandler, dated 21 February 2020 (Exhibit A2);
(e)Statement of Mr Chaz Ramiha Johnson, dated 15 March 2020 (Exhibit A3);
(f)Statement of Jack Neal, undated (Exhibit A4);
(g)
Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated
28 April 2020 (Exhibit R1);
(h)
Bundle of Incoming passenger cards completed by the Applicant between
12 January 2013 and 28 February 2019 (Exhibit R2); and
(i)G documents and supplementary G documents (together referred to as G documents) produced by the Respondent (Exhibit R3).
THE EVIDENCE
The Applicant
In addition to the Applicant’s statement received 12 May 2020,[7] there were various statements made by the Applicant in the documents contained in the G documents, in particular in the representations made by the Applicant to the delegate under s 501CA(4)(a) of the Act (see [9] above). At the hearing the Applicant confirmed, under affirmation, that the statements made by him in A1 and in the various documents included in the G documents were, to the best of his knowledge, true and correct.[8]
[7] A1.
[8] Transcript at 12.
The Applicant’s evidence was:
(a)His offending was over a limited period of two months;
(b)The circumstances that gave rise to his offending started with the death of his grandmother in New Zealand;
(c)At that time he was employed full-time as a leading hand with a company providing shut-down services to the mining industry;
(d)Because of work he was unable to attend his grandmother’s funeral in New Zealand;
(e)He ignored his mental health issues and cut himself off from his family and friends;
(f)He found that he had behavioural issues and was unable to sleep which affected his work performance;
(g)He slept through his alarm on site, was late to work and received warnings from his employer. When he again slept through his alarm he was stood down and flown back to Perth;
(h)He was then unemployed and started taking illicit drugs to ‘numb my pain as a coping mechanism’;
(i)He cut ties with his ‘good friends’ and started associating with a new circle who introduced him to methamphetamine;
(j)His use of methamphetamine changed his personality from trustworthy and loyal to someone consumed with the use of methamphetamine. He sold everything that he had worked hard to purchase to sustain his addiction.
(k)He sold drugs at a small profit to pay for his addiction as he was unemployed and had sold everything that he had of value;
(l)He was encouraged to sell drugs by his new ‘friends’ who supplied him with the drugs;
(m)On the night when he was stopped by police he was driving someone else’s car because the owner, who was in the vehicle, was intoxicated. It was only when stopped by police and was told by police that he found out that the vehicle had false licence plates.
(n)He was searched by police and 30 pills were found on him.
(o)Being caught was a blessing because the direction that he was heading in was unsustainable. Being caught has enabled him to turn his life around;
(p)His inability to process his emotions and communicate affected his ability to work and his mental health;
(q)His fiancé, Bianca, has taught him how to open up and not be ashamed of negative feelings;
(r)His drug counselling has helped him to be confident in expressing his emotions;
(s)If he found himself again in a situation where his mental health was affecting his ability to work he would know to talk to someone;
(t)He addressed his substance use in a number of ways. The first thing that he did was get a job as a leading hand scaffolder. He advised his employer of the charges that he faced.
(u)His employer put the Applicant on a weekly random drug and alcohol testing regime as part of his employment conditions;
(v)While working as a fly-in fly-out worker (FIFO) in Darwin he attended weekly drug counselling and upon completion of the project in Darwin and his return to Perth he continued counselling through the Palmerston Group each Wednesday for three to four months leading up to his incarceration;
(w)The counselling has enabled the Applicant to identify triggers such as stress, boredom, cravings and urges and implement strategies;
(x)His discussions with counsellors have resulted in him realising that he suffers from anxiety;
(y)The Applicant’s narcotics anonymous (NA) attendance sheet cannot now be located;
(z)The Applicant continued attending NA meetings in Casuarina;
(aa)He was assessed as low risk of reoffending when he entered the prison system so no drug and alcohol programs were made available to him;
(bb)If he is allowed to stay, he will continue drug and alcohol counselling and has written a letter to an organisation called “Battitudes” requesting their support;
(cc)He identified those with whom he associated as being a cause of his offending so he has ceased to have anything to do with them. He has reconnected with his family and moved to Queensland to live with his cousin and his family for four to six months;
(dd)When he regained employment as a FIFO and he started his relationship with his now fiancé, Bianca, he moved back to Perth from Queensland;
(ee)Since relocating to Perth he has reconnected with his old circle of friends and family with whom he associated before he began associating with those who got him into drug use;
(ff)He has made it clear to those with whom he associated at the time of his drug offending that he now wanted nothing to do with them. He consciously stayed away from venues and social settings where he would have been likely to run into those people;
(gg)He now has a strong relationship with his fiancé and would not do anything that would put that in jeopardy;
(hh)Since being incarcerated he has spent his time productively. He was until February 2020 his unit’s peer support member in which role he counselled other prisoners on methods of avoiding drug use. Narcotics are as available in the prison system as they are in the community;
(ii)He is trusted by the prison authorities and is not subject to drug and alcohol testing;
(jj)He wants to start his own scaffolding company if he is allowed to stay;
(kk)He has used his time in prison as a chance to reflect and to reconstruct his life;
(ll)He has acknowledged his wrongdoing and has taken on board what he has been taught by his counsellor;
(mm)His drink driving offence, committed shortly after he arrived in Australia, was committed when he was young and was the first conviction he had ever received, either in Australia or New Zealand;
(nn)After that driving offence he lived in Australia for eight years without offending;
(oo)His second drink driving offence was committed four weeks before he went to prison and was after taking Bianca to dinner. Neither of them had touched alcohol for five months. He says that he only had two drinks that night;
(pp)The other possession of methamphetamine conviction, although it appears to have been committed while he was on bail, was the result of him leaving his wallet, which had a small amount of methamphetamine (0.01g) in it, at the drug dealer’s house. About one month after he left his wallet at the drug dealer’s house, the house was raided by police on 9 June 2018 (i.e. after he had been arrested for the possession of methamphetamine on 19 May 2018). The police found his wallet and the date of the offence was recorded as the date of the raid.
The Applicant’s representations in support of his request for revocation of the cancellation of his visa[9] also contained a number of statements which, as noted at [26] above, the Applicant affirmed at the hearing to be true and correct.
[9] R3, G13 and 14.
Much of the information contained in those documents by which the Applicant made representations to the delegate was also contained in his statement A1 as summarised in [27] above. The material that the Applicant put to the delegate contains a little more detail of the Applicant’s work history and his work while in prison including his time in Acacia Prison.
Bianca Chandler
The Applicant’s fiancé, Bianca Chandler, gave a statement dated 21 February 2020.[10]
[10] A2.
In that statement she says that:
(a)At the outset of their relationship she advised the Applicant that he had to change if they were to stay together. The first step in his doing that was moving to Queensland to get away form those with whom he associated at the time of his offending.
(b)While he was living in Queensland they spoke every day during which time he ‘opened up’ about his grandmother’s death an she told him to stop ‘bottling up’ his emotions;
(c)When he moved back to Perth he committed to her that he would not associate with those with whom he had associated at the time of his offending;
(d)He now has a good group of friends and her family to support him;
(e)She and the Applicant want to start a family;
(f)She wants the Applicant to assist with supporting her family as her father is presently injured and cannot work. She is a free-lance make-up artist but has been unable to work since COVID-19 restrictions and social distancing.
(g)If the Applicant is forced to return to New Zealand she will join him but will not be able to do so until things return to normal after the COVID-19 pandemic.
Ms Chandler also made a statement dated 27 November 2019 which was included in the representations made to the delegate.[11] In that statement she says that:
[11] R3, G15.
(a)She met the Applicant about three years earlier and they began dating in June 2018 about a month after he was charged with the possession and dealing of methamphetamine;
(b)The Applicant proposed to her in December 2018.
(c)She has always been aware of the Applicant’s charges;
(d)She visits the Applicant in prison each week;
(e)They delayed their wedding when he was convicted. They currently plan to get married one year after his release. They plan to start a family in two years;
(f)She has built up her business in Perth. All her business contacts are in Perth;
(g)
They have built their lives in Perth and deporting the Applicant would have a significant impact on her and her family who have welcomed the Applicant into their family.
To deport him would be to punish him again.
Mr Jack Neal’s statement[12] was to the following effect:
(a)He has been a close friend of the Applicant for about seven years;
(b)The Applicant has been reliable and honest although they did drift apart in the time when the Applicant was offending;
(c)The Applicant had rented a room from him when he returned form Queensland in the six to eight months leading up to the Applicant’s imprisonment;
(d)During this time the Applicant came home from work and would rush to shower to go to his NA session in the city. During this time the Applicant returned to being the person that Mr Neal had originally known;
(e)The Applicant said to him that he accepted that he had to go to prison to pay the debt for what he had done. His room is still available if he were to be released and that is the address shown on his parole papers.
CONSIDERATION
[12] A4.
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship[13] at [63]-[45]. The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has ‘a substantial criminal record’. This phrase, in turn is defined, relevant to this case, in s 501(7)(c) (see [12] above) which provides that a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
[13] [2009] AATA 47; (2009) 106 ALD 666.
The Applicant has been sentenced to a term of imprisonment in excess of 12 months and, as a result, has a substantial criminal record as defined in s 501(7) of the Act and therefore does not pass the character test (s 501(6) of the Act). The only issue for consideration is therefore whether there is a reason to exercise the discretion to revoke the cancellation of the visa under s 501CA(4)(b)(ii) of the Act (see [13] above).
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (Direction 79 para. 13(2)(a))
Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:
(1)...should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 13.1(2)(a))
Paragraph 13.1.1(1) of Direction 79 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f) The cumulative effect of repeated offending;
g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The Applicant’s record of offences is set out in [7] above.
The conviction which caused the cancellation of the Applicant’s visa under s 501(3A) of the Act was the conviction for possession of a prohibited drug (MDA) with intent to sell and supply for which the Applicant received a sentence of imprisonment for 20 months.
The Applicant pleaded guilty. The maximum penalty for that offence is imprisonment for 25 years and/or a $100,000 fine.
The circumstance of the offence were set out by Lonsdale DCJ in her sentencing remarks as follows:[14]
[14] R3, G8/30-33.
…in brief those facts are that on Saturday, 19 May 2018, you were driving on Tydeman Road in North Fremantle.
Police stopped you for driving a vehicle with forged, replica or false plates. And they located 10 pills or 3.7 grams of what at that stage was thought to be MDMA. And a further bag containing 20 pills with a total of 6.65 grams. And there was also $350 in cash.
… there were a number of text messages on your phone, which indicate that you had in the past been engaged in the sale and supply of drugs.
…
So I was at that time labouring under a false belief that this perhaps was a one off. Having said that your lawyer did submit to me in written submissions that you admitted having funded your drug habit previously from the sale and supply of drugs. And in fact, it was put to me that it was a little more than that. That it was to fund your lifestyle as well. So those are the brief facts, which I am to sentence you for.
…
Now, you acknowledge responsibility for your offending and you are remorseful. You admit that you sold drugs to fund your own addiction. And that you sold drugs to others to fund your lifestyle.
You have, in recent times been abstinent from drugs and you have been employed on a fly-in/fly-out basis in Darwin. I also give you credit for the fact that you have engaged in active rehabilitation.
You are attending Narcotics Anonymous and you have been doing other programs. Now, there are a number of aggravating features to your offending. The quantity of drugs was significant. You were found in possession of cash.
It cannot be said that this was a one off. I have had my attention drawn to information in the police brief, which suggests that you had been actively dealing in drugs. You were trying to expand your customer base by inviting others to introduce you to new customers. There are suggestions that at various times you were in possession of reasonable quantities of pills.
And on one occasion it was suggested that you offered 50 pills to hold as collateral. You offered to provide your own dealer the details of contacts to whom he could supply drugs at a lower cost.
So I emphasise, Mr Jacobs, that I'm not to sentence for that previous conduct. But it does put your present offending in context, and as I've said now, on a number of occasions, it can't be said that it was a one-off.
…
You do have a good employment history and you have a minor criminal history, which is not really relevant, I think, for present purposes. But you do have one previous drug offence for possession of a prohibited drug in 2018. You received only a $300 fine on that occasion. So you come to this court almost as a first offender. And I accept that you are otherwise of good character.
You are currently a single man, and I consider that there are good prospects for your rehabilitation.
…
You possessed the MDA, in this case, in part to distribute it into the community. There was, I find, an aspect of commerciality to your offending. The offending was not a one-off event and had occurred in the context of other drug dealing.
In relation to the seriousness of drug dealing generally, Lonsdale DCJ made the following observations:[15]
It is the experience of these courts that illicit drugs cause or materially contribute to a very significant proportion of the criminal offences committed in this State.
And that is either as a result of users acting under the influence, or because of their need to finance or secure a supply of drugs. There are often strong financial incentives to deal in prohibited drugs. Further, significant public resources are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs.
…
The evils of illicit trading in drugs is well known. That extends beyond the physical effects on its users. Dealers are known to add other drugs or toxins making them more harmful. So the experience of the courts is that there is an increasing tendency towards poly-drug use.
Illicit drugs are sometimes taken to counteract the effects of other illicit drugs. Dealers in drugs may deal in a range of drugs, depending on supply and demand putting pressure on those lower down the line to purchase other drugs. The adverse effects of MDA and MDMA are well known.
[15] R3, G8/32-34.
The facts surrounding the offending which gave rise to the cancellation of the Applicant’s visa are not in dispute.
The Respondent, in addition to noting the comments of Lonsdale DCJ in sentencing as reproduced above, also refers[16] to the Australian Institute of Health and Welfare web report on Alcohol, tobacco & other drugs (last updated 23 April 2020) which summarised the short and long-term effects associated with the use of methamphetamine and other stimulants. Not surprisingly the effects listed are negative and serious.
[16] Respondent’s SFIC para. 40.
The Respondent also refers[17] to the Department of Health noting the harms from alcohol, tobacco and other drugs (directly and/or indirectly) as having impacts on Australian communities and families as well as individuals. Again, the harms noted, which include mental illness, violence, road trauma, chronic health issues, loss of productivity and engagement with the criminal justice system, are serious and have significant cost to the broader community.
[17] SFIC para. 41.
The Respondent also refers to the Applicant’s traffic offending and to the stance taken by the AAT to repeated traffic offending in other matters (citing: Re Aporo and Minister for Immigration and Citizenship[18] at [96] (DP Prof Walker); Re Metera and Minister for Immigration and Citizenship[19] at [59] (DP Prof Walker); Re Passells and Minister for Immigration and Border Protection[20] at [42] (SM Walsh); Re Intesir and Minister for Immigration and Border Protection[21] at [31] (DP Constance); Re QKJY and Minister for Immigration and Border Protection[22] at [8] (SM Tavoularis); Re Gage and Minister for Home Affairs[23] at [75]-[76] (Member Burford)).
[18] [2008] AATA 629.
[19] [2008] AATA 668.
[20] [2016] AATA 1033.
[21] [2017] AATA 503.
[22] [2017] AATA 820.
[23] [2020] AATA 326.
The Respondent contends that:
…the applicant’s offending is evidently and objectively serious. Taking into account the nature and pattern of the offending, the sentences imposed, the comments of Lonsdale DCJ, and the specific guidance and principles set out in Direction No 79, the respondent contends that the nature and seriousness of the applicant’s conduct is a significant consideration that weighs very heavily against revocation of the decision to cancel his visa.
Looking at the factors identified in paragraph 13.1.1(1) (see [36] above) the Tribunal finds:
(a)The offending was not of a violent or sexual nature;
(b)The offending did not involve violence against women or children;
(c)The offences were not against vulnerable members of the community;
(d)The only sentence of imprisonment was for the possession with intent to sell and supply for which the Applicant was sentenced to a term of imprisonment for 20 months. That is not an insignificant sentence;
(e)
The Applicant’s offending has not been frequent. There was a gap of some six and a half years between his exceeding 0.08 blood alcohol driving offence in
October 2011 and his next offence in May 2018. The Tribunal does note, however, that this gap may not represent the gap in the Applicant’s offending behaviour given that the evidence, which is not disputed by the Applicant, shows that he was selling drugs for some time before he was arrested in May 2018;
(f)While there were six offences over an eight-year period, the three most serious offences were committed in a two-month period of May/June 2018. The ‘cumulative effect’ is not, in the Tribunal’s view, significant;
(g)The Respondent argues that the Applicant provided false information to the department by ticking the box on incoming passenger cards[24] to indicate that he had no criminal convictions. There were 13 passenger cards in all submitted by the Respondent. The first of these cards[25] was completed on 13 January 2013 and the last was completed on 28 February 2019. The difficulty that the Tribunal has with the Respondent’s argument is that, in relation to all but the last two cards, it relies on the traffic offence recorded in August 2012 being a ‘criminal conviction’. While the Western Australian Police History For Court – Criminal and Traffic report[26] shows a conviction for possession of a prohibited drug being recorded against the Applicant in the Joondalup Magistrates Court on 3 August 2018, the Applicant’s evidence[27] was that he was not in court when that conviction was recorded and was not aware of it until after he completed the last of the incoming passenger cards. Putting that conviction to one side, prior to July 2019, all of the Applicant’s convictions were for traffic offences. Again, if one ignores the August 2018 conviction for possession of a prohibited drug, are declarations made by the Applicant before July 2019 when he was convicted of the more serious offences, including the one which resulted in his visa being cancelled, false? That depends on whether traffic offences are to be treated as criminal. At the hearing the Tribunal asked counsel for the Respondent whether there was any authority or legislative definition to the effect that convictions for traffic offences are ‘criminal convictions’. Counsel was unable at the time to point to any such definition or authority.
[24] R2.
[25] Doc ID: 1320EFCB57.
[26] R3, SG1/164.
[27] Transcript at 24.
Submissions were subsequently provided by the Respondent (22 May 2020) on this issue which identified a number of dictionary definitions which, in effect, define any breach of a law as a crime (see Butterworths Concise Australian Legal Dictionary and The Australian Pocket Oxford Dictionary).
The Respondent also points to what he says is the legislative context of the Act and to the objects of which are stated to be:
…to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens
The Respondent argues that in this context information on passenger cards must contain the information necessary for assessing a non-citizen’s eligibility for a visa. The passenger card is in effect an application for a visa and, according to the Respondent, it is therefore critical that the information necessary for an assessment of weather a visa should be granted must be provided. How this then supports a conclusion that ‘criminal conviction/s’ includes traffic offences is not explained.
It would seem, however, that the Western Australian Police do not consider traffic offences as criminal offences given that the report that they produce[28] describes itself as the record of ‘Criminal and Traffic’ offences. That description would indicate that the police see a distinction between the two.
Further, the vast majority of people coming into Australia would be likely to have some conviction for a traffic offence, even something as minor as a single speeding offence. It is unlikely that the intent of the question in the incoming passenger card of ‘Do you have any criminal conviction/s’ is meant to encompass traffic offences, possibly with the exception of high-end offences. If minor traffic offences were meant to be covered by the question, just about everyone would have to answer yes which would obviously diminish the utility of the question. It is, perhaps, unfortunate that the question on the incoming passenger card does not contain some guidance as to what is meant to be covered by the question or what the department considers to be a ‘criminal conviction’.
It is, therefore, not clear to the Tribunal that the Applicant has, by answering that question on the incoming passenger cards as he did, provided false information. In any event, even if traffic offences are to be treated as criminal convictions for the purposes of the question, the Tribunal accepts the Applicant’s explanation that in completing the cards he did not think that traffic offences were criminal convictions. Accordingly, even if technically the answer was incorrect, it was not done with the intention of misleading the department and the Tribunal places little weight on this factor.
(h)The Applicant had not received any prior warning; and
(i)The offences were not committed in immigration detention.
[28] R3, SG1/164.
Taking the considerations identified in paragraph 13.1.1(1) of Direction 79 into account, while any conviction for drug dealing must be treated as serious, the Applicant’s offending falls at the lower end of the scale of seriousness.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1(2)(b))
Paragraph 13.1.2 of Direction 79 provides:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The question to be answered by the Tribunal is whether the Applicant poses an unacceptable risk of causing harm. Senior Member Dr M Evans-Bonner summarised the task in CZCV and Minister for Home Affairs [2019] AATA 91 (CZCV) as follows:
56.In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
In BSJ16 v Minister for Immigration and Border Protection,[29] Moshinsky J stated, at [68]:
...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.
[29] [2016] FCA 1181.
The Tribunal agrees with the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (13.1.2(1)(a))
The relevant harm in this case is the harm that would be caused if the Applicant were to deal in drugs again. The nature of the harm is well summarised by Londsdale DCJ in her sentencing remarks as reproduced at [40] above. The Tribunal adopts her Honour’s comments.
The other offences of which the Applicant has been convicted do not, in the Tribunal’s view, indicate any particular disregard for the law or pattern of behaviour that warrants concern. As Lonsdale DCJ put it in sentencing the Applicant on the possession with intent to sell and supply charge, ‘…you come to this court almost as a first offender. And I accept that you are otherwise of good character’.[30]
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (13.1.2(1)(b))
[30] R3, G8/32.
The Applicant does not have a particularly serious criminal record. He does have one serious conviction, that being for possession of a prohibited substance with intent to sell and supply for which he received a term of imprisonment for 20 months. None of his other convictions resulted in custodial sentences, the most serious penalty being a fine of $900 and a disqualification of his drivers licence for a second offence of excess 0.08 blood alcohol level.
The relevant consideration for the Tribunal is the likelihood of the Applicant again engaging in drug dealing. The Respondent submits that the risk of the Applicant reoffending or engaging in further serious criminal conduct is between low and moderate.[31] As the Respondent notes, in sentencing Lonsdale DCJ commented that the Applicant had good prospects of rehabilitation.[32] The Tribunal also notes her Honour’s comment that:
It’s not uncommon for young persons of good character from advantaged background to engage in the distribution of prohibited drugs. It is often the case that once those offenders are caught, they take the positive steps towards rehabilitation and are no longer considered to be any risk of reoffending.
[31] SFIC para. 49.
[32] R3, G8/32.
While it could not be said that the Applicant came from an ‘advantaged background’, it is the case that, as her Honour noted, the Applicant is otherwise of good character and has taken positive steps towards rehabilitation. Lonsdale DCJ also noted[33] that at the time of sentencing that:
You have, in recent times been abstinent from drugs and you have been employed on a fly-in-fly-out basis in Darwin. I also give you credit for the fact that you have engaged in active rehabilitation.
[33] R3, G8/31.
The Applicant’s evidence at the hearing was, in the Tribunal’s assessment, honest.
The Tribunal accepts that the Applicant has generally, other than for the several months leading up to his arrest in May 2018, been a hard-working and law-abiding member of the community. The Tribunal accepts the Applicant’s claims that he has addressed his addiction and his offending behaviour and that he is committed to avoiding the influences and social settings which would be likely to precipitate a return to his offending behaviour. The Tribunal accepts that the Applicant’s new partner and the others who gave statements of support will provide the support that the Applicant needs to maintain a law-abiding lifestyle.
Although there was no documentation before the Tribunal relating to parole, the Applicant’s evidence at the hearing was that in the couple of weeks before the hearing he had been granted parole.[34] That was not disputed by the Respondent and the Tribunal accepts that to be the case and takes into account that the Prisoners Review Board has, albeit with conditions according to the Applicant, assessed that the Applicant is not an unacceptable risk to the public.
[34] Transcript at 28.
The Department of Justice Treatment Assessment Report[35] rated the Applicant as a
‘low risk of reoffending’ which meant that he was not eligible for specific treatment programs while in prison. His evidence was that he continued attending NA meetings in Casuarina (see [27(z)] above) which he had started while working in Darwin and continued upon his returning to Perth.
[35] R3, SG2/368.
For the reasons set out above, the Tribunal assesses the Applicant to be a low risk of reoffending. While the nature of the harm that could be caused if the Applicant were to reoffend could be reasonably significant given the impact that illicit drugs can have,
the likelihood of the Applicant reoffending is, in the Tribunal’s view, low and the risk to the community is not an unacceptable one (refer Gilmour J in in WAD 230/2014 v Minister for Immigration and Border Protection (No 2)[36] at [42]- [43] cited at [49] above).
[36] [2015] FCA 705.
This first primary consideration weighs in favour of the revocation of the cancellation of the visa.
Second primary consideration: Best interests of minor children in Australia affected by the decision (13(2)b))
Paragraph 13.2 of Direction 79 provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) Whether there are other persons who already fulfil a parental role in relation to the child;
f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant did not identify any relevant minor children in his representations made to the delegate[37] or in any of his statements lodged in these proceedings. The evidence, however, did establish that his cousin, Chaz Ramiha Johnson, with whom the Applicant stayed in Queensland (see [27(cc)] above) has two minor children to whom the Applicant is godfather. One child is six years old and the other is four. Although Mr Johnson was unavailable to give evidence, the Respondent did not object to the admission into evidence of a written statement provided by Mr Johnson.[38] Mr Johnson says in that statement that:
He has been a good influence to my children while he lived with us, I trusted him with looking after them. He would take them out for the day quiet [sic] often and spoil them, they loved their uncle Rob.
…
My children would love having their Godfather in there [sic] lives here in Australia, …
[37] R3, G14/61
[38] A3.
It also emerged at the hearing that the Applicant’s other cousin, Tyson Johnson, has a daughter of about two years of age.[39] The Applicant was asked about these children at the hearing. The Applicant’s contact with these children, except for when he was living in Queensland, has been minimal. Parenting roles for all of the children are provided by their parents.
[39] Transcript at 15.
Counsel for the Respondent in his closing submissions accepted that it would be in the best interests of the minor children if the Applicant were allowed to stay.[40] The Respondent submits, however, in effect, that little weight should be given to this consideration given that the role played by the Applicant is not parental, that they live in another state and that the level of contact that he has had with them to date can be maintained via communication even if he were to be removed to New Zealand.
[40] Transcript at 47.
The Tribunal concurs with the Respondent’s assessment. While this consideration weighs in favour of revocation of the cancellation of the visa, little weight should be given to it for the reasons identified by the Respondent.
Third primary consideration: Expectations of the Australian community (13(2)(c))
Paragraph 13.3 of Direction 79 provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Tribunal also refers to the principles and expectations set out in paragraph 6.3 of Direction 79 (see [19] above).
The proper construction of paragraph 13.3 of Direction 79 has been the subject of much judicial analysis. The starting point for most of the recent analysis was Justice Mortimer’s decision in YNQY v Minister for Immigration and Border Protection[41] (YNQY).
[41] [2017] FCA 1466
The debate has now been settled by the High Court in FYBR v Minister for Home Affairs & Anor.[42] In dismissing the application for leave, Kiefel CJ stated:
In our view, there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.
[42] [2020] HCATrans 56.
The Full Court of the Federal Court in FYBR v Minister for Home Affairs[43] (FYBR) (FC)),
in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBRv Minister for Home Affairs[44] (FYBR) is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing ‘an expectation deemed by the government to be held by the Australian community’ (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]).
[43] [2019] FCFCA 185.
[44] [2019] FCA 500.
The expectation of the community as directed by the Government under Direction 79 is not determinative. The exercise to be undertaken by the Tribunal is still one of weighing all of the considerations to determine whether the cancellation of the Applicant’s visa should be revoked. Member S Burford in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[45] (Rehman) described the exercise as follows:
173.It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
174.However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
[45] [2019] AATA 4424.
The Tribunal finds, as it must, that as the Applicant has committed a serious crime,
the Australian community would expect that the Applicant should not hold a visa, that is, that the cancellation of his visa should not be revoked. This weighs against the revocation of the cancellation of the Applicant’s visa. However, given that the Applicant’s relatively minor criminal record, the low risk of his reoffending and the best interests of minor children, relatively minor weight should be given to this consideration.
OTHER CONSIDERATIONS
Paragraph 14 of Direction 79 provides:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations 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;
e) Extent of impediments if removed.
International non-refoulement obligations (14(1)(a))
The Applicant is a citizen of New Zealand. There are no non-refoulement obligations owed by Australia to the Applicant. This is not a relevant consideration in this matter.
Strength, nature and duration of ties (14(1)(b))
Paragraph 14.2 of Direction 79 is as follows:
(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. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b. The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant arrived in Australia in August 2011 as a 20 year old. His first offence,
the drink driving offence in October 2011, was committed shortly after he arrived.
The Applicant has a good record of employment. He has, except for a brief period before his serious offending in May 2018, been employed and, based on the statements of support provided by those with whom he worked, was a reliable and valued worker.
The Respondent’s SFIC[46] conveniently sets out the Applicant’s employment record as follows:
[46] Para. 72
72.1.November 2011 and March 2014, and March 2017 and May 2017 – Tricord Trust;69
72.2.March 2014 and July 2014 – Zuhara Pty Ltd;70
72.3.July 2014 and June 2015 – Clarke Trust;71
72.4.October 2014 and June 2015 – Western Work Force Pty Ltd;72
72.5.October 2014 – Buckley Family Trust;73
72.6.November 2014 and June 2016, and July 2017 and April 2018 – Breight Pty
Ltd;74
72.7.September 2015 and December 2016 – MAS Australasia Pty Ltd;75
72.8.May 2017 and October 2017 – Remediation Rectification Works Pty Ltd;76
72.9. August 2018 and September 2018 – Saratoga Workforce Pty Ltd;77
72.10. September 2018 and June 2019 – Lantle Group Pty Ltd;78
72.11. May 2019 and June 2019 – Scaf-West Pty Ltd;79
72.12.November 2018 and March 2019 – KLH Australia Pty Ltd (also known as KAEFER);80 and
72.13. September 2018 and June 2019 – Advanced Access Australia Pty Ltd.81
The Applicant’s fiancé lives in Australia as does her family. He also has a younger brother who lives in Australia as do his two cousins and their three children referred to above.
The remainder of his family, being his mother and three other brothers, live in New Zealand.
The Respondent concedes[47] that the Applicant has some ties to Australia and that those ties are likely to be reasonably strong, but says that they do not outweigh the protection and expectations of the Australian community.
[47] SFIC para. 23.
The Tribunal finds that while the Applicant has contributed positively to the community, that that positive contribution is counterbalanced, to a degree, by the fact that the Applicant started offending soon after arrived. On balance the Applicant’s ties to Australia weigh in favour of revocation of the cancellation of the visa but, for the reasons set out above, only minor weight should be afforded to this consideration.
Impact on victims (14(1)(d))
No evidence or submissions were put forward by either party in relation to this consideration.
Extent of impediments if removed (14(1)(e))
Paragraph 14.5(1) of Direction 79 provides:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
The Applicant in his representations to the delegate[48] identifies the impediments as being:
·Having no money because he would have been recently released from prison;
·Having no job prospects;
·not knowing what his living arrangements would be;
·not having funds to buy tools/clothes/tickets and licences; and
·having to start his career from scratch.
[48] R3, G14/73.
The Applicant was cross-examined on this issue. He agreed that if he were to return to
New Zealand he would stay with his mother and siblings.[49] He also conceded that his experience and qualifications as a scaffolder would be relevant to him getting employment as a scaffolder in New Zealand.
[49] Transcript at 33.
The Applicant also has no medical conditions that would impact his ability to work.[50]
[50] Transcript at 29.
The Respondent contends that:[51]
…there are likely to be some transitional difficulties in respect of access to services in New Zealand, but those impediments would by no means be insurmountable. New Zealand is a country which is broadly comparable to Australia in terms of language, culture and access to employment, health services, education and social security.
[51] SFIC para. 81.
The Tribunal is satisfied that there would be no impediments to the Applicant establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand). This consideration therefore does not weigh in favour of revoking the cancellation of the Applicant’s visa.
COVID-19
The Respondent’s SFIC made some submissions on the impact COVID-19 pandemic and the closing of the borders. The Applicant did not raise this issue.
The thrust of the Respondent’s submissions were that if the decision under review is affirmed, officers of the Respondent’s Department are required by force of s 198 of the Act to remove the Applicant from Australia “as soon as reasonably practicable” (and he must be detained until he is so removed). Whether or not removal will be practicable is largely dependent upon international events in respect of the COVID-19 pandemic. However, the Respondent submits, it cannot be said that the Applicant’s removal will never be practicable.
The Respondent submits that while the Applicant is in immigration detention awaiting deportation he will have access to medical care through both the Respondent’s health services contractor and the Western Australian public health system. At this time, according to the Respondent, no detainee has tested positive to COVID-19.
Further, according to the Respondent, steps have been taken to ensure that the Communicable Diseases Network Australia (CDNA) National Guidelines for the Prevention, Control and Public Health Management of COVID-19 Outbreaks in Correctional and Detention Facilities in Australia have been implemented in the immigration detention network.
In the circumstances, the Respondent contends, that this “other consideration” is effectively neutral in the balancing exercise.
As this Tribunal noted in Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[52] at [144], recent decisions of the AAT have considered the impact of the COVID-19 pandemic and the resulting health considerations and restrictions on international travel. The Tribunal repeats the comments in [144]-[146] of that decision.
[52] [2020] AATA 1256.
This Tribunal accepts that in the present case, if the decision under review is affirmed,
the period for which the Applicant may be held in immigration detention may be longer than has been the case pre-COVID-19 pandemic, but that the detention will not be indefinite.The Weighing Exercise
Guidance is given by Direction 79 as to how the decision-maker should apply the primary and other considerations. Paragraphs 8(3), (4) and (5) of Direction 79 are relevant. They provide:
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While these cases were generally looking at that exercise under Direction 65, the same considerations apply to the exercise required by Direction 79 which is materially in the same terms. The leading case in this regard is Suleiman v Minister for Immigration and Border Protection[53] (See also the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ[54] and CZCV and Minister for Home Affairs[55] at [164]).
[53] [2018] FCA 594.
[54] [2018] FCAFC 217; (2018) 363 ALR 325.
[55] [2019] AATA 91.
For the reasons set out in [37]-[60] above, the first primary consideration, the protection of the Australian community, weighs in favour of the revocation of the cancellation of the visa.
The second primary consideration, the interests of minor children in Australia, for the reasons set out in [63]-[66] above also weighs in favour of revocation of the cancellation, however little weight should be given to this consideration.
The third primary consideration, the expectations of the Australian community, weighs against the revocation of the cancellation of the Applicant’s visa, however, for the reasons set out in [73] above, only relatively minor weight should be given to this consideration.
In relation to the “other considerations”, the consideration of strength, nature and duration of the ties that the Applicant has to Australia (Direction 79 paragraph 14(1)(b)), weighs in favour of the revocation of the cancellation of the visa, however, only minor weight should be afforded this consideration. The consideration of the impediments that the Applicant would face if he is returned to New Zealand (14(1)(e)) does not weigh in favour of revocation and is, at best for the Applicant, neutral.
The Tribunal also takes into account the possibility that if the Applicant is unsuccessful he may be held in immigration detention for longer than has been the case pre-COVID-19 pandemic, but that the detention will not be indefinite.
Having undertaken the weighing of the consideration for and against the revocation of the cancelation of the Applicant’s visa, the Tribunal finds that, while none of the considerations, either primary or other, is particularly strong, the considerations which weigh in favour of the revocation of the cancellation of the visa, outweigh the considerations which weigh against the revocation of the cancellation of the Applicant’s visa. Accordingly, the Tribunal finds that there is another reason why the original decision should be revoked.
DECISION
The decision under review is set aside and substituted with the decision that the cancellation of the Applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
..............................[SGD]......................................
Associate
Dated: 27 May 2020
Date(s) of hearing: 19 May 2020 Applicant: In person Counsel for the Respondent: Mr J Papalia Solicitors for the Respondent: Australian Government Solicitor
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