JL and Minister for Immigration and Border Protection (Migration)

[2018] AATA 754

JL and Minister for Immigration and Border Protection (Migration) [2018] AATA 754 (6 April 2018)

Division:GENERAL DIVISION

File Number(s):      2018/0360

Re:JL  

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment

Date:6 April 2018 

Place:Sydney

The reviewable decision is set aside and remitted for reconsideration with the direction that the discretion in s.501(2) of the Migration Act 1958 (Cth) is to be exercised in the applicant’s favour.

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

Deputy President B W Rayment

Catchwords

MIGRATION – visa cancellation – applicant does not pass character test – substantial criminal record – Ministerial Direction no. 65 applied – protection of the Australian community – evidence of rehabilitation – long passage of time since last offending – expectations of the Australian community – best interests of minor children – other considerations – ill-health of applicant’s wife – decision set aside and remitted

Legislation

Migration Act 1958 (Cth) ss 499, 501(2)

Cases

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Direction No. 65 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Deputy President B W Rayment

6 April 2018

BACKGROUND

1. The applicant was born in New Zealand in 1981. When he was one, his family moved to Australia, and he has lived here ever since. His parents separated when he was six. He went to several schools in Sydney as his father moved around for reasons to do with his employment.

2. At one of his schools in Sydney’s eastern suburbs, he was introduced to drugs at the age of 13 and by the age of 15 he was addicted to heroin and began to offend to feed his drug habit. His last offence was committed when he was 18 years old, some 19 years ago. He was imprisoned for that offence, and his sentence was of six and a half years. He was given a non-parole period of four years, and was released on parole in 2003, then aged 22.

3. He has not re-offended since 1999. The Minister’s delegate, who did not have the benefit of evidence led before me in this review as to his circumstances since 2003, decided in January of this year to cancel his visa and that decision is before me for review. I must conduct this review in the light of all his circumstances, including his history in the last 15 years.

4. I will first make findings about the circumstances of the applicant and his family and then discuss the considerations which by law must be taken into account in exercising the discretion as to whether his visa ought to be cancelled.

5. Although his offending is historical it is convenient now to refer to it. The offending, together with the dates of conviction appearing on his police record, is as follows:

   ·3 May 1995 – one count of illegal use of conveyance and one count of possession of a prohibited drug. No conviction was recorded for either offence; however, the applicant was subject to a 12 month good behaviour bond and supervision from the young offenders support team.

   ·17 June 1997 – two counts of armed robbery in company. The applicant was subject to a control order without condition for 16 months, which was reduced to 12 months with release subject to supervision from the juvenile justice branch by the Campbelltown District Court on appeal.

   ·11 December 1997 – one count of robbery, one count of assault with intent to rob and three counts of robbery in company. The applicant received a 12 month control order without conditions.

   ·25 February 1998 – two counts of break and enter and commit felony (stealing), one count of never held licence and one count of carry cutting implement. The applicant received a four month control order without conditions.

   ·10 June 1998 – two counts of wilful destruction with no convictions recorded. The applicant was ordered to pay $1240 in fines and in restitution.

   ·29 June 1998 – one count of enter premises and commit an indictable offence and one count of entry to premises by break. No conviction was recorded for enter premises and commit an indictable offence. A conviction was recorded for the entry to premises by break and the applicant was fined $350.

   ·26 May 2000 – two counts of robbery in company. The applicant was convicted and sentenced to six years and six months in prison, with a non-parole period of four years. An appeal was dismissed by the Court of Criminal Appeal on 13 December 2001.

6. The last-mentioned offence was committed in 1999, when he was 18. He is now 37 years of age.

7. Today the applicant takes Biodone to assist him to remain drug-free. It is a drug prescribed by his general practitioner. The applicant said, and his wife and several of his relatives confirmed, that he has not taken drugs since he first took up with his present wife in about August 2003. He said that all his offending was done when he was addicted to drugs and that fact is confirmed by the sentencing remarks made by Judge Kirkham in the District Court when he was last sentenced in 2000 for the 1999 offence. The Judge noted that narcotics abuse commenced at the age of 14 and that following intravenous use of heroin, he was spending in the order of $200 per day supported by criminal acts. His Honour noted that at the time of sentencing he was attending the drug group at the correctional centre. The proceeds of his then recent offending were used to support his drug habit.

8. While he was in prison he was attacked by ten prisoners and hit over the head repeatedly with an iron bar, for which he required hospitalisation. That experience left him frightened of gaol and determined never to be sent back there as a result of further offending.  He told me that he did a lot of thinking about the life he had led and firmly decided that he did not wish to go back to it.

9. During his imprisonment he did a computer course, a carpentry course and a small business module course. He completed a six-month drug and alcohol prevention program.

10. After he completed that course, in June 2003 he was released on parole.

11. In August of that year he told his parole officer that he had been having continuing problems remaining drug-free and she arranged for him to have a urine test, and when that test returned a positive result, his parole was cancelled and she told him he had 48 hours to turn himself in.

12. At this time the applicant had formed a relationship with his present wife, and shortly afterwards was due to be married to her. She is a lady who was born in Australia. He said that his wife helped him clean up his life and got him on the Biodone program, which he still takes, in order to ensure that he does not regress. They did marry and moved to Queensland, and they intended that he would turn himself in during 2004 after he got himself fully established on the Biodone program. By that time the applicant’s wife had fallen pregnant and had a miscarriage and early in 2004 she fell pregnant again. In November 2004, their daughter was born. She lived only three days and the applicant and his wife had to make the agonising decision of turning off her life support and were present when she died. He described his own state of mind as “destroyed” but the toll on his wife was worse and he had to be strong for her and support her, as he still does.

13. After the death of their daughter, the applicant and his wife moved back to New South Wales, and they have remained here since 2005. The applicant has had short term or causal employment here. He suffers from hepatitis C, has arthritis and liver trouble. His doctors intend that after his liver condition has been treated, he will be given cortisone, which may ameliorate his arthritis and enable him to return to work. At the present time his health is such that he is a disability support pensioner.

14. The applicant’s wife is, and has been since that time, heavily dependent on her husband for support and her mental health has significantly deteriorated over the years. I understood from the applicant that his intention of handing himself in to the police following the breach of his parole conditions was put on hold because he knew that his wife would suffer greatly if he was not by her side.

15. The applicant’s wife suffered from depression and he described his wife as going “pretty crazy”. She told me that she sees her psychiatrist and counsellor every week and she might soon have to go to hospital. She said that she had become suicidal and self-harming and had to leave work because of her condition and she also went on the disability pension about two years ago. She was diagnosed with other mental illnesses namely bipolar disorder, schizophrenia and borderline personality disorder. She said that her anxiety and panic disorders are “really, really bad at the moment”.

16. I asked the applicant and his wife whether they would go to New Zealand together if the Minister’s decision was affirmed. The applicant replied that she would “have to” return with him, meaning that his wife was reliant on him for continuing support. I asked the applicant’s wife the same question and she replied: “Of course I’ll go with him, but I suffer from severe mental illness, and it’s not under control at the moment”. I gathered that she was apprehensive that the dislocation of a move to New Zealand would be very distressing to her. She has her family in Australia and mentioned a brother who was travelling in a motor vehicle with her husband and her last November. She is used to frequent consultations with the medical practitioners and psychologists who have been treating her here.

17. The applicant’s father is 72 years of age and for about five years has been suffering from dementia. He lives with the applicant’s sister at Merrylands and on weekends and on holidays and whenever his sister asks him to come, the applicant and his wife come over to assist with his father. The applicant takes his father out of the house. One of his sisters described the applicant as their father’s favourite. The applicant’s father might well suffer from the absence of the applicant if the delegate’s decision is affirmed.

18. I heard from two of the applicant’s sisters. The applicant’s father lives with one of those sisters, a lady of 38 years, and she has four children aged 20, 14, 10 and 7 who “adore and look up to [the applicant]”. One of those children, a seven year old boy, is disabled. She described her relationship with the applicant as very close, and said that his family members all love him and need him.

19. His eldest sister, who also gave evidence, referred to the help that the applicant had given his father, making sure he took his medication and ate well, because he has been losing weight. She said that her children all respect him. She described her relationship with the applicant as very close. She said that if any of her three boys had been in trouble he would have a talk with them and give them guidance, also helping to take her youngest son to school. She said that her boys would listen to him, they respected him. She now has grandchildren and he plays games with them, he kicks the ball around with the boys and he lets the little ones jump all over him, or he piggybacks them. Like other family members, she confirmed that since his release from prison he had been drug-free and had not spoken of engaging in any criminal conduct. She described him as a changed man since his marriage in 2004.

20. When he was still only 16, the applicant conceived a child by an older woman. That son is now 21. They had a close relationship in his early years, and that relationship was interrupted. When the applicant was released from gaol in 2003, his mother would not let the applicant’s son see his father. For the last several years, they have been seeing each other quite a lot and the applicant’s son said that he has benefited from the advice and support he has received from his father. He has observed the applicant’s relationship with his father and described the patient way that the applicant treats him.

21. I should next refer to two of the matters which have been urged on behalf of the Minister concerning the applicant’s behaviour since 2003 as a reason why the reviewable decision should be affirmed.

22. The first is his failure over 14 years to turn himself in to the authorities for his breach of the conditions of his parole, shortly after his release from prison in 2003. He explained why he did so, for the benefit entirely of his wife. He felt guilty about doing so, but felt that the moral imperative of looking after his wife was a reason to resist the wish to clear up his status as a person whose parole had been revoked. He was arrested by chance in November 2017 and returned to prison to continue his sentence. Last month he was again given parole and released from prison. He was then taken into immigration detention. He has now served his further time as a result of his breach of his parole conditions in 2003, and his behaviour in prison since last November must have been good, since he has been given parole again. I think that his reasons for failing to give himself up need not be further explained. If, as he no doubt feared, he had been required to serve out the remainder of his 6.5 year sentence, that is, for two and a half years, the effect on his wife may have been catastrophic. She had more than once contemplated suicide. As matters turned out, he was released after three months and is no longer in breach of any conditions of his parole. It is not possible to ignore the fact that if he had not been honest with his parole officer in 2003, he would have been given no urine test in 2003. On the whole, this matter does not persuade me that the reviewable decision should be affirmed on that ground.

23. In the second place, Mr Galvin for the Minister placed reliance on a matter with which the applicant has not been charged, this time in 2008, some 10 years ago. In Queensland, the applicant hired a television set. In 2005, not long before they came back to New South Wales, they needed money. They pawned the television set for $75, apparently intending to take it out of pawn by repaying the money borrowed as soon as money permitted. Precisely why that did not occur was not explained to me or explored in cross-examination. The applicant says that he told a person from the television rental company that he could not return the TV set and arranged with the person that he would continue to pay the rental of $10 per week. He did so for a total of some three and a half years, thus paying the company rental totalling some $2,000. That amount may have satisfied any contractual obligation which was breached and should have exceeded the value of the TV set. In 2008, a warrant for stealing was issued at the instance of the television rental company but the applicant was not served with it. He knew nothing of it until he received the ‘G-Documents’ documents in this case during 2018, some ten years after the warrant had been issued in the Pine Rivers Magistrates Court in Queensland. I have no other evidence than that. I am not prepared to infer guilt of any offence from those facts. The pawning occurred in 2005 and the warrant was not issued for three years, suggesting that he did indeed continue to make rental payments and consistent with his evidence that some arrangement had been made. None of his evidence appeared to me to be given untruthfully, and I accept it. I have no evidence of the terms of the rental contract and it is by no means impossible that the warrant was issued on the complaint of a person who had no knowledge of arrangements said to have been made by the applicant with the rental company. If a warrant had been served on him in 2008, he may well have successfully defended any charge. The failure of the rental company to pursue the matter in the last ten years may possibly be explained by its recognition that its case was not supportable.

    STATUTORY FRAMEWORK

24. I next turn to explain the legal considerations affecting this review. The discretion with which I am concerned is conferred by s.501(2) of the Migration Act 1958 (Cth) (the Act). It provides that the Minister “may” cancel the applicant’s visa if the Minister is not satisfied that he passes the character test. The Minister was rightly satisfied that in view of his offending the applicant does not pass the “character test” set out in s.501(6) of the Act. If I affirm the decision made, he will be returned to New Zealand forthwith.

25. The discretion is not confined by any express provision of the Act. Section 499 entitles the Minister to give written directions to a person or body having powers or functions under the Act as to the exercise of those powers or performance of those functions. The Minister has delegated his power to exercise discretions including that arising under s.501(2) of the Act to a number of persons and the Act confers a power of review on this Tribunal from those persons. Such directions, unless inconsistent with the Act, bind the delegates and this Tribunal reviewing their decisions.

26. The Minister has published Direction 65 under s.499 of the Act. Its purpose is to guide the exercise of discretions including that provided for under s.501(2), but not to determine how the discretion should be exercised in any particular case. That is a matter for the decision-maker, and he or she is bound to exercise the discretion rationally and fairly in the light of the particular facts and circumstances of the case. The weight to be given to any consideration is a matter for the decision maker in the light of all of the particular facts and circumstances of the case. The Direction states certain principles, which are not to be applied like laws which admit of no exception, but as guidance. The terms of the Direction are published and I do not set out in these reasons the principles which it enunciates, or any other of its express terms.

27. The Direction states certain mandatory considerations, which must be taken into account, divided into primary and “other” considerations with the statement that “generally” primary considerations will prevail over the other considerations. The word “generally” is an indication that the primary considerations will not always prevail, and thus confirms that the weight to be given to all considerations, whether primary or “other”, will remain to be determined by the decision maker taking all of the considerations into account.

28. Importantly, the list of other considerations is not exhaustive. Thus it is the duty of the decision maker to ask himself or herself whether there are further considerations which are relevant to be taken into account, and what weight they should receive. For example, in the present case, I have concluded that the likely effect of affirming the decision on the applicant’s wife, who would feel obliged to follow her husband to New Zealand, is an “other” consideration which ought to be taken into account in determining the correct or preferable exercise of discretion.

    Protection of the Australian community

29. The first mandatory “primary” consideration is the protection of the Australian community from criminal or other serious conduct. The offending of the applicant between the ages of 14 and 18 is summarised in the list set out at paragraph 5 of these reasons. The seriousness of that conduct is plain, especially that of the last offence of 1999 for which he was sentenced in 2000. All of the offences were committed when the applicant was addicted to drugs, including heroin. The evidence satisfies me that the applicant is no longer so addicted, and that he will not be likely to reoffend. Mr Galvin submitted that because the applicant is taking Biodone, we cannot be sure he will not cease to take it, and then be at risk of regressing to drug taking. After some 15 years of use of the drug Biodone, I think that submission is difficult to accept.

1. The Direction requires the decision maker to have regard, cumulatively, to the nature of the harm to individuals or the community should the non-citizen engage in further criminal or other serious conduct, and to the likelihood of him or her doing so, taking into account information and evidence on the risk of him re-offending and evidence of rehabilitation, giving weight to the time spent in the community since their most recent offence. That evidence satisfies me that he is rehabilitated, not only because of the declarations he made, but because of the long passage of time since his last offending. The offending was as a juvenile and a very young adult over some five years, and more than 17 years have now elapsed since that time. He has every incentive to remain law-abiding. He told me that he often thinks about the offences he committed, affected as they were by drug addiction, and that he now appreciates how the drugs addled his mind at the time.

   Best interests of minor children in Australia

2. The second mandatory consideration is the best interests of minor children in Australia. Some of his relatives are minor children as I have indicated and it is in their best interests for the applicant to remain in Australia. If he were to be removed to New Zealand, he would no longer play an effective role in their lives.

   Expectations of the Australian Community

3. The third mandatory consideration is the expectations of the Australian community. That consideration has recently been explained in the Federal Court by Mortimer J as a consideration not about the actual or inferred expectations of the community but rather as a consideration which always favours affirming a decision, as a kind of deeming provision: see YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]. It is therefore not relevant to ask what our community would actually expect to happen to the applicant, but rather to note that the consideration is one which automatically favours affirming the decision under review.

   Other considerations

4. I turn to the “other” considerations, insofar as they are relevant to his circumstances.

5. The nature and duration of ties to Australia require consideration of the fact that the applicant has in substance lived the whole of his life in Australia. He is presently of real help to his ill father, he has a close relationship with his son, with his sisters and their children and grandchildren. All of those relationships would be destroyed or seriously impaired if he were removed.

6. His wife’s position has already been discussed. I regard the ill-health of the applicant’s wife, and the dislocation that she would suffer in being removed from the general practitioner, psychiatrist and psychologists with whom she engages in Australia, if her husband and she were to become residents of New Zealand, together with the pain she would experience in being removed from her family, as an important “other” reason to set aside the reviewable decision.

7. As to the extent of impediments if the applicant were removed, this consideration, at best from the respondent’s point of view, is a neutral consideration. It would not support an affirmation of the decision, even if there were no such impediments. New Zealand is a fine country with which Australia has a great deal in common.

   DECISION

8. Balancing all of the mandatory considerations in the light of the particular facts and circumstances of the applicant, in my opinion the correct or preferable decision is to set aside the reviewable decision and to remit it for reconsideration with the direction that the discretion in s.501(2) of the Act is to be exercised in the applicant’s favour.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment

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

Associate

Dated: 6 April 2018

Date(s) of hearing:	26, 27 & 29 March 2018
Applicant:	In person
Solicitors for the Respondent:	Minter Ellison