JASON SCHUSTER-MCFADYEN and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2012] AATA 356
•14 June 2012
[2012] AATA 356
Division
GENERAL ADMINISTRATIVE DIVISION
File Number
2011/2347
Re
JASON SCHUSTER-MCFADYEN
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 14 June 2012 Place Melbourne The Tribunal affirms the decision of the Minister for Immigration and Citizenship to cancel the visa of Mr Jason Schuster-McFadyen on 9 June 2011.
..[sgd Egon Fice].....................................................
Egon Fice, Senior Member
EXPEDITED VISA –– remittal – reasonable notice of a proceeding – Ministerial Direction 41 – other considerations – primary considerations – character test – substantial criminal record – protection of the Australian community – risk of recidivism – Convention on the Rights of the Child –– New Zealand Citizen – temporary visa
Administrative Appeals Tribunal Act 1975 (Cth) s 40(1)(b)
Migration Act 1958 (Cth) ss 501(2), 501(6)
Convention on the Rights of the Child (opened for signature 20 November 1989), United Nations, Treaty Series, vol. 1577, p.3 (Entered into force 2 September 1990)
Ministerial Direction No 41 – Visa Refusal and Cancellation under Section 501
REASONS FOR DECISION
Egon Fice, Senior Member
On 9 June 2011 the Minister for Immigration and Citizenship (the Minister) notified Mr Schuster-McFadyen that his special category (temporary) visa had been cancelled because he did not meet the character test set out in s 501(6) of the Migration Act 1958 (the Act).
Mr Schuster-McFadyen sought review of the Minister's decision before this Tribunal. After hearing the parties in this matter on 8 August 2011, I decided that the Minister's decision to cancel Mr Schuster-McFadyen's visa was correct and I affirmed that decision. Dissatisfied, Mr Schuster-McFadyen sought judicial review of my decision by the Federal Court of Australia.
On 18 November 2011 the Federal Court (Tracey J) remitted this matter to the Tribunal to be determined according to law. His Honour found that I committed an error of law when I decided that the Other Considerations should be given less weight than that given to the Primary Considerations as those expressions are defined in Ministerial Direction No. 41. The Ministerial Direction provides that other considerations should generally be given less weight than that given to primary considerations.
On 11 January 2012 Mr Schuster-McFadyen contacted the Tribunal for the purpose of determining the progress of this matter on remittal. He explained to the Case Service Officer that he had returned to New Zealand and he requested that the matter be heard in Brisbane. Mr Schuster-McFadyen was asked to put that request in writing and to provide any new contact details so that his file could be updated. The Case Service Officer followed up that conversation with a letter sent to Mr Schuster-McFadyen by email on
25 January 2012.On 28 February 2012, the Tribunal sent Mr Schuster-McFadyen a listing notice, by post, advising him that a telephone directions hearing would take place on 6 March 2012 at 9:00 am. He was also told that this would be followed by a hearing of the matter on
5 April 2012 at 10:00 am.On 29 February 2012, the Tribunal sent Mr Schuster-McFadyen the listing notice dated 28 February 2012 as an attachment by email. The email reiterated that a telephone directions hearing would take place on 6 March 2012 at 9:00 am, followed by a hearing of the matter on 5 April 2012 at 10:00 am. Mr Schuster-McFadyen was asked to provide to the Tribunal his current residential address and contact telephone numbers, both landline and/or mobile, on which he could be contacted on 6 March 2012 for the purposes of the telephone directions hearing. He was also asked to advise the Tribunal whether he was legally represented and, if so, the name of his lawyer.
After the email was sent, on that same day the Deputy District Registrar telephoned Mr Schuster-McFadyen. During this telephone conversation he provided his current address and advised that he wished to be contacted on his mobile for the telephone directions hearing. The Tribunal’s records were updated to reflect his current address and current telephone number. Mr Schuster-McFadyen told the Deputy District Registrar that he had no desire to be legally represented and that he would represent himself. The Deputy District Registrar informed Mr Schuster-McFadyen that the Tribunal had express posted a copy of the listing notice to his uncle’s address on 28 February 2012.
Following the telephone conversation with the Deputy District Registrar, the Tribunal sent another letter to Mr Schuster-McFadyen stating that further to his conversation with the Deputy District Registrar, he should find attached a copy of the notice sent to Mr Schuster-McFadyen’s uncle’s address on 28 February 2012. The letter further explained that the Tribunal records had been updated to reflect his current address and confirmed the telephone number that he requested he be contacted on for the telephone directions hearing.
At approximately 9:00 am on 6 March 2012 the Tribunal attempted to telephone Mr Schuster-McFadyen on three occasions. On each attempt, the mobile phone was connected through to Mr Schuster-McFadyen's voicemail. Mr Schuster-McFadyen did not return the Tribunal's calls. The telephone directions hearing proceeded in the absence of Mr Schuster-McFadyen. A letter and a copy of the Directions which I made on that day were sent to Mr Schuster-McFadyen by email and by International Registered Post on 8 March 2012. The posted documents were subsequently returned to the Tribunal on 15 May 2012. The envelope had been marked, not at this address, with a return to sender sticker which had the box unclaimed ticked. On 8 March 2012 the Deputy District Registrar telephoned Mr Schuster-McFadyen who answered the call but hung up when she introduced herself. She tried to call him back but the call went through to his message bank. She left a message for Mr Schuster-McFadyen but he did not respond.
The Deputy District Registrar again attempted to contact Mr Schuster-McFadyen by telephone on 13 March 2012 at 9:00 am without success. On 3 April 2012 the Tribunal sent Mr Schuster-McFadyen, by SMS (short message service), a reminder that the hearing of this matter was to be held on 5 April 2012 at 10:00 am.
On the day of the hearing Mr T Eteuati, who represented the Minister, was the only person to appear. My associate made three calls to Mr Schuster-McFadyen's telephone number attempting to contact him. On each occasion, the phone was diverted to his message bank and this message was heard: This is Jason, leave a message.
Because I had formed the view that Mr Schuster-McFadyen had reasonable notice that the hearing would be held on 5 April 2012, I decided to proceed in accordance with
s 40(1)(b) of the Administrative Appeals Tribunal Act 1975 (AAT Act). That section provides that the Tribunal may proceed in the absence of a party who has had reasonable notice of the proceeding.FACTUAL MATTERS
Following remittal of this matter to the Tribunal, neither party lodged any further documents on which they intended to rely at the hearing. Therefore, for the purposes of this rehearing, I understood the facts to be exactly those which I found on the first occasion I heard this matter. Having reviewed the material, I find no reason to alter those findings. Therefore, the only task which falls upon me is to weigh those considerations which fall in Mr Schuster-McFadyen's favour against those which do not. In doing so, I am mindful that although other considerations should generally be given less weight than that given to the primary considerations, it nevertheless remains possible that the consideration given to matters described as other considerations may outweigh adverse findings in matters which fall under the primary considerations.
BALANCING THE CONSIDERATIONS
I have found that the offences of which Mr Schuster-McFadyen was convicted were of a serious nature as they involved violence and the threat of violence. I have found that this factor weighs heavily against Mr Schuster-McFadyen when determining whether to exercise the Minister's discretion set out in s 501(2) of the Act. I have also found that without serious intervention and rehabilitation to modify Mr Schuster-McFadyen's behaviour, his risk of reoffending remained significantly high. These two primary considerations go to the very heart of the objectives of the Act and the Ministerial Direction which is to safeguard the Australian community.
Of the remaining primary considerations, the fact that Mr Schuster-McFadyen commenced offending within 12 months of his first arrival in Australia weighed against him. However, in taking into account international obligations, and in particular the Convention on the Rights of the Child (CROC), I am mindful of the fact that Mr Schuster-McFadyen’s partner, who was pregnant at the time of the first hearing, has probably given birth to a child by this time. Unfortunately, without any further evidence about the circumstances of Mr Schuster-McFadyen's relationship with his partner, there is no basis upon which I can take this factor into account.
As for the other considerations, which are generally given less weight than the primary considerations, the nature and extent of family ties and relationships in Australia is a consideration which weighs in favour of Mr Schuster-McFadyen. The same can be said of any hardship to Mr Schuster-McFadyen or immediate family members in Australia were his visa cancelled.
In balancing the factors which weigh in his favour against those which weigh against him, I find that the two primary considerations which I have found adverse to Mr Schuster-McFadyen outweigh those considerations which fall in his favour. Therefore, I find that the Minister's decision dated 9 June 2011 to cancel Mr Schuster-McFadyen's visa was correct. I affirm that decision.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member.
.....[sgd].....................................................................
Associate
Dated 14 June 2012
Date of hearing 5 April 2012 Representative for the Applicant No appearance Representative for the Respondent Mr T Eteuati, Clayton Utz
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