Murray and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 61
•20 January 2022
Murray and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 61 (20 January 2022)
Division:GENERAL DIVISION
File Number(s): 2021/8217
Re:Richard Murray
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:20 January 2022
Place:Sydney
The reviewable decision made on 28 October 2021 is set aside and in substitution it is decided that there is another reason why the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa should be revoked.
.....................................[sgd].................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – cancellation of Applicant’s Class TY, Subclass 444 Special Category (Temporary) visa – Applicant is a citizen of New Zealand – whether any error in decision to cancel visa pursuant to s 501(3A) – whether decision-maker entitled to rely on same term of imprisonment relied on in previous mandatory visa cancellation – failure to pass the character test – whether there is another reason to revoke the visa cancellation – Direction No. 90 – protection of the Australian community – family violence committed by the non-citizen – expectations of the Australian community – extent of impediments if removed – impact on victims – links to the Australian community – decision under review set aside
LEGISLATION
Acts interpretation Act 1901 (Cth) s 33
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 10A, 12
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 914
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Ozerski and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4775
Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875
XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619
Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545
SECONDARY MATERIALS
Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
20 January 2022
The Applicant, Mr Murray, is a 59 year old New Zealand citizen. He arrived in Australia in 1985 when he was 23 years old. He is seeking revocation of the mandatory cancellation of his visa.
On 8 February 2021, Mr Murray’s Class TY Subclass 444 Special Category (Temporary) visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) (the 2021 cancellation decision) because:
· he did not pass the character test because he had a substantial criminal record (s 501(6)(a) of the Act) on the basis he had been has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)), and
· he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law in Australia.
The finding that the Mr Murray had a substantial criminal record was based on his conviction on 5 March 2009 in the District Court of New South Wales for recklessly wound any other person for which he was sentenced to three years’ imprisonment.
When the 2021 cancellation decision was made on 8 February 2021, he was serving a full-time sentence of imprisonment for a different and more recent offence of Drive motor vehicle during disqualification period – 2nd+off.
Mr Murray made representations on 1 March 2021 seeking revocation of the 2021 cancellation decision as required under s 501CA(4)(a) of the Act. On 27 October 2021, the delegate decided not to revoke the 2021 cancellation decision. Mr Murray applied for review of that decision by the Tribunal.
The issues
The issues to be decided are:
(a)Was the 2021 cancellation decision made according to law?
(b)If so, the Tribunal must proceed to determine whether the requirements for revocation of the mandatory cancellation decision are met, as set out in s 501CA(4) of the Act:
(i)Does Mr Murray pass the character test? If not,
(ii)Is there another reason the 2021 cancellation decision should be revoked?
(c)If the 2021 cancellation decision was not made according to law, what course is open to the Tribunal?
Legislation and policy
The relevant legislation is the Migration Act 1958 (Cth), the Acts interpretation Act 1901 (Cth) (the AI Act) and the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The relevant policy made pursuant to s 499 of the Act is Direction 90 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 90).
Background facts
Mr Murray’s family
Mr Murray has been in a relationship with his partner since about 2011. She is an Australian citizen. They have lived together in her home since 2018. He has no other immediate family. His partner’s family includes her elderly parents and two adult daughters.
Mr Murray’s criminal history
Mr Murray has a criminal history spanning almost 40 years, beginning in New Zealand in 1980. He has served several sentences of imprisonment.
His most recent conviction on 21 June 2021 was for destroy or damage property. A 12- month conditional release order was imposed, concluding on 20 June 2022.
Following are Mr Murray’s convictions leading to sentences of imprisonment and other convictions dealt with by the court at the same time, and associated matters related to visa cancellation and revocation decisions.
Mr Murray’s most recent sentence to imprisonment, confirmed on appeal by the District Court of NSW on 11 March 2021, was for nine months from 18 November 2020, with a non-parole period of four months which ended on 17 March 2021, when, because of the 2021 cancellation decision, he was released into immigration detention where he remains. The offence was Drive motor vehicle during disqualification period - 2nd+ off. Two other offences on appeal were dealt with by the court on the same day. In respect of custody of knife in public place – first offence, the court ordered a s 10A conviction[1] with no other penalty. Mr Murray was fined $400 for Negligent driving (no death or grievous bodily harm).
[1] Crimes (Sentencing Procedure) Act 1999 (NSW), s10A.
On 5 May 2021 while in detention, a psychiatrist recorded in clinical notes that his impression was that Mr Murray had mild cognitive deficits mainly affecting executive function which were likely to be secondary to chronic epilepsy.
On 31 August 2018, the District Court on appeal confirmed an aggregate sentence of 12 months’ imprisonment commencing 21 August 2018 with a five month non parole period with conditions for three offences: Stalk/intimidate intend fear physical etc harm (domestic)-T2, Assault occasioning actual bodily harm (DV)-T2, and Drive motor vehicle during disqualification period – 2nd+off. Mr Murray was also disqualified from driving for six months commencing 21 August 2018. The court ordered that the warrant be endorsed: Defendant needs medical assessment for epilepsy medication to be continued. Mr Murray’s partner was the victim of the first two offences.
On 30 August 2018, Mr Murray’s visa was cancelled pursuant to s 501(3A) of the Act (the 2018 cancellation decision). International Health and Medical Services (IHMS) records show that Mr Murray was taken into immigration detention on 20 January 2019 when he was released on parole. The notification of a decision to revoke visa cancellation under s 501CA(4) of the Act was dated 10 May 2019. It included a warning that if Mr Murray engaged in any further criminal or other serious conduct, that may result in his visa being cancelled on character grounds. He signed an acknowledgement on 10 May 2019. He was released from immigration detention.
During this period in immigration detention, a psychiatrist recorded the following in a progress note on 20 February 2019. After 6 months in gaol for a domestic incident, Mr Murray’s partner was still in contact with him. He was a truck driver until he was in a motor vehicle accident and developed epilepsy in 2013. He was finding it difficult being in detention. He did not want to return to New Zealand but did not want to remain in detention long term. He was concerned that his neighbour had been difficult with his partner and was concerned with how she will cope. The psychiatrist observed that Mr Murray was “slow reflecting probable limited educational attainment and low normal intellect possibly compounded by recent seizure affecting cognition”.
Mr Murray was sentenced to nine months’ imprisonment by the District Court on 2 December 2015 for the offence of Assault occasioning actual bodily harm (DV)-T2, commencing on 15 October 2015. On the same date, he was sentenced to 12 months’ imprisonment commencing 15 October 2015 for the offence of Armed w/I commit indictable offence – T1. A non-parole period of seven weeks and one day was imposed in respect of each sentence. I infer that the non-parole period was time served. He was also fined $100 and disqualified from driving for 12 months for the offence of Drive motor vehicle while licence suspended – 1st off.
The first two offences were originally dealt with by the Local Court on 9 December 2014 along with the offence of common assault_T2, with suspended prison sentences of varying lengths imposed for each offence. The first two offences were called up on 15 October 2015, and dealt with alongside the offence of Drive motor vehicle while licence suspended - 1st off. All three offences were then appealed to the District Court, with the resulting sentences set out earlier in this paragraph. I infer that in relation to the Common assault – T2 offence, the six-month suspended sentence on entering a s 12 bond[2] for six months was not called up because the bond had expired before the call up was triggered.
[2] Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (repealed).
On 29 April 2010 Mr Murray was convicted of Drive on road etc while licence suspended. He was sentenced to six months’ imprisonment commencing 29 April 2010, which he served while he was imprisoned for the 2009 conviction addressed below.
On 5 March 2009, Mr Murray was indicted for Recklessly wound any other person – T1 and sentenced to imprisonment for three years commencing 15 November 2007 with a non-parole period with conditions of 18 months. He was released from prison on parole on 14 May 2009.
On 18 March 2009, the Department notified Mr Murray that his visa may be liable for cancellation. On 6 January 2010, the Department notified him that no action would be taken to cancel his visa under s 501(2) of the Act, and a formal warning was issued, which he signed on 15 January 2010.[3] Mr Murray acknowledged that he understood that he could again be considered for refusal or cancellation of his visa if further information came to the attention of the Department, and that his previous conduct could be reconsidered in that context.
[3] Page 463 in G30 of the G documents.
New South Wales Corrective Service records show that on 19 April 2010, Mr Murray was admitted to the metropolitan remand centre for breach of parole. He remained in custody until 26 December 2010 when his “sentence expired”. It is not clear from the evidence how the three-year sentence imposed in 2009 was apparently extended by almost six weeks.
Following is a summary of Mr Murray’s other convictions. His first four convictions in New South Wales were on 23 September 1988 for offences including unlicenced driving. He received fines. In 1994 he was convicted of common assault and using offensive language. He was fined. Thereafter, Mr Murray was convicted of driving offences in 1997, 2000, 2002, 2003, 2010, 2016 and 2018. Early offences included mid-range prescribed content of alcohol (PCA), the last of which was in 2010. He has multiple convictions for use unregistered motor vehicle, not give particulars to other driver, driving while suspended, driving while disqualified, and negligent driving (not occasioning death/gbh).
Mr Murray’s criminal convictions in New Zealand from 1980 to 1983 included firearm offences, burglary, dangerous driving, driving while disqualified and fail to stop/Ascert/Render after accident. He received fines, was disqualified from driving for various periods numerous times, was sentenced to three months of non-residential periodic detention, and to detention for brief periods of about a month.
Mr Murray’s health
Mr Murray has a well-documented history of ongoing epilepsy and confirmed brain injury, including the opinions recorded above since he has been in immigration detention. He has been seen at the Comprehensive Epilepsy Service at the Royal Prince Alfred Hospital since July 2013 and by Dr Parratt, neurologist since November 2014. He has been attending his general practitioner since 2007. He has suffered from hypertension for years.
Dr Parratt’s report following a consultation on 9 April 2021 included the following. Mr Murray won the jackpot at the Leagues Club and took off in a car the next day. He was a disqualified driver and was arrested at the scene. He was in Villawood Immigration Detention Centre (Villawood). He was admitted to Liverpool Hospital from 18 to 20 March 2021 after being given new medication at Villawood. The discharge summary hypothesised that his illness was due to medication toxicity when started abruptly again after a period of non-compliance. Mr Murray has never really been seizure free. His compliance with medication has fluctuated over time, with initial issues with acceptance of the diagnosis and need for lifelong therapy. It can be presumed that his epilepsy is drug resistant based on persistent seizures despite supervised regular medications.
[Mr Murray] has previously been fixated on achieving seizure freedom for fitness to drive which we had not attained due to a combination of drug resistant disease and variable compliance.
He has now become incarcerated due to driving when disqualified.
For the first time ever [Mr Murray] has told us he is content to accept driving restriction which is a major step forward.
He appears willing to engage in any rehabilitation programs or monitoring that is indicated and may facilitate consideration from his release from custody.
He is in a long term relationship in Australia and his partner is supportive in his care.
The report stated that Mr Murray had been seen at the Comprehensive Epilepsy Service at Royal Prince Alfred Hospital since July 2013 and attended regularly for assessment and advice, on average three to four appointments per year. Several anti-seizure medications had been tried but there are number of other options that can be tried over time to see if more sustained seizure control can be achieved. A 2020 brain MRI showed ”right mesial temporal sclerosis and traumatic injury right temporal region” which was new from imaging in 2013/2017, so Dr Parratt believed that it was likely to be a consequence rather than a cause of his epilepsy.
Dr Parratt’s report of a consultation on 20 August 2021 states that Mr Murray may be at risk of injury and sudden unexpected death in an epileptic state which increases with increased generalised tonic clonic seizures. Dr Parratt noted that Mr Murray accepts that he is “unable to drive with active epilepsy now, which is a distinct turnaround”. He conceded that he fully accepted that he is unable to drive unless he achieved seizure freedom for more than 12 months and demonstrated consistent compliance with medication and medical advice to achieve this. She reported that the stress of incarceration was triggering seizures and that Mr Murray was keen to be proactive about his care. She maintained her opinion that Mr Murray’s epilepsy can be presumed to be drug resistant based on persistent seizures despite supervised regular medications.
His partner’s health
Mr Murray’s partner was diagnosed with and treated for breast cancer in 2018 and attends follow up appointments which are scheduled into this year. She has suffered from Bipolar Affective Disorder since 2006. She also suffers from Arthritis, Anxiety and panic attacks.
Was the 2021 cancellation decision made according to law?
Quite properly, the Respondent raised the question whether the reasoning of the High Court in Minister for Immigration and Border Protection v Makasa[4] (Makasa) applies in this case. The question arises from the fact that both the 2021 and 2018 cancellation decisions relied on the 5 March 2009 conviction and sentence to find that Mr Murray did not pass the character test under s 501(3A)(a) of the Act because he had a substantial criminal record. It is not in contention that the 2018 and 2021 cancellation decisions relied on different custodial services to make a finding pursuant to s 501(3A)(b).
[4] [2021] HCA 1.
The question addressed by the High Court in Makasa was whether the Minister could re-exercise the powers conferred by s 501(2) of the Act to cancel a visa on character grounds after the Tribunal has made a decision under s 43(1)(c)(i) of the AAT Act setting aside a prior decision of a delegate of the Minister to cancel the visa and substituting a decision that the visa should not be cancelled.
The court considered the extent to which the scheme of the Act and the AAT Act manifested an intention contrary to the application of s 33(1) of the AI Act which prescribes that a statutory power “may be exercised … from time to time as occasion required”.
At [48], the Court said:
Turning then to the scheme of the Act and the AAT Act, it is important at the outset to recognise that nothing in the legislative scheme indicates an intention to displace the application of s 33(1) of the AI Act to the power conferred by s 501(2) of the Act to the extent that subsequent events or further information not previously before the Minister or a delegate provide a different factual basis upon which to form a reasonable suspicion that a visa holder does not pass the character test. A new sentence of imprisonment amounting by operation of s 501(7)(c), or contributing by operation of s 501(7)(d), to the coming into existence of a new substantial criminal record within the meaning of s 501(6)(a) is an example. A new conviction providing a reasonable basis for making a revised assessment of the visa holder's "character" − his or her "enduring moral qualities" − under s 501(6)(c) is another example. Section 501(6)(c) was not argued to be engaged in this appeal. [Reference omitted; emphases added.]
The Court held that s 501A of the Act conferred specific powers on the Minister to revisit and reverse a decision not to cancel a visa in the exercise of the power conferred by s 501(2) which “can be exercised…without need for any change to the factual basis on which the decision of the delegate or AAT had been made” and applied the principle of construction that “when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power”. [Emphasis added.]
The Court said at [55]:
Hence, s 501A of the Act must be read as manifesting a legislative intention to exclude re-exercise by the Minister or a delegate of the more general power conferred by s 501(2) of the Act, read in light of s 33(1) of the AI Act, to revisit and reverse a previous decision of a delegate not to cancel a visa made in the exercise of the power conferred by s 501(2) where there has been no change to the factual basis on which the previous decision-maker, be it the Minister or a delegate or the AAT, formed a reasonable suspicion that the visa holder did not pass the character test in making the previous decision not to cancel a visa. [Emphasis added.]
The Tribunal reviews a decision of a delegate to cancel a visa pursuant to s 501(2) of the Act. The Tribunal does not review the mandatory visa cancellation decision made pursuant to s 501(3A) of the Act. The Tribunal reviews the decision of a delegate not to revoke the visa cancellation decision made pursuant to s 501CA(4)(a) of the Act.
The character test defined is defined in s 501(6)(a) to (h).
Section 501(3A) provides:
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) paragraph (6)(e) (sexually based offences involving a child); 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.
Relevantly, s 501(7) provides:
For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
…
Section 501(3A)(a)(i) does not include paragraphs 501(7)(d) to (f).
Section 501(7A) addresses concurrent sentences:
For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.
Section 501CA(1) provides:
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.
Section 501CA(4) provides:
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.
When considering revocation, the decision-maker’s consideration of the character test is not confined as it is for the purposes of making a cancellation decision under s 501(3A)(a).
There are conflicting decisions of the Federal Court about the application of Makasa to s 501(3A) of the Act.
In Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545 (Zyambo), Derrington J held that the decision in Makasa could not be directly applied to the operation of s 501(3A) of the Act.
His Honour held:
However, the structure and operation of s 501(3A), being the relevant power in the present case, is substantially different to that of s 501(2), the power considered in Makasa. The essential difference is that s 501(3A) requires the existence of two matters before the Minister is compelled to cancel a visa. The first is the subjective jurisdictional fact that the Minister is satisfied that the visa holder does not pass the character test because they have a substantial criminal record (s 501(7)(a), (b) or (c)) or have committed a sexual offence against a child (s 501(7)(e)) [sic]. The second is that the person is serving a term of imprisonment on a full time basis. It follows that the mere formation of the state of satisfaction as to the failure to pass the character test is not sufficient to enliven the power to cancel. It also means that the matters in s 501(3A)(a) and (b) may be satisfied on different occasions. That is to say, as were the circumstances in this case, satisfaction that a person does not pass the character test by reason of the matters in s 501(3A)(a) may arise at one time, but satisfaction of s 501(3A)(b) may arise on multiple later occasions by reason of imprisonment for other offences. It may also arise at the same time by reason of imprisonment for the same offences. So long as both pre-conditions are satisfied, the power is enlivened. Moreover, every time they are satisfied, the obligation on the Minister to cancel the visa arises, subject to a limitation discussed below.[5]
[5] At [43].
His Honour held that the Minister could not rely upon the same factors to satisfy both s 501(3A)(a) and (b) of the Act, if the same factors had previously been relied on to cancel a visa and the Tribunal had then revoked that cancellation. However, his Honour observed that such a situation did not arise because although the subsequent delegate had relied upon the same facts to find that Mr Zyambo did not pass the character test (for the purposes of s 501(3A)(a)), the delegate had relied upon a different sentence of imprisonment (for the purposes of s 501(3A)(b)). Accordingly, His Honour found that this combination of matters had not previously been relied upon to cancel Mr Zyambo’s visa and that the decision in Makasa had no direct application to the operation of s 501(3A) in the circumstances of Mr Zyambo’s case (at [46]).
In Zyambo, Derrington J had received submissions on the issue from the Respondent, but none from the unrepresented applicant.
In the later decision of XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619 (XJLR), Burley J pointed out that there had been no contradictor in Zyambo, disagreed with the reasoning in that case, and did not follow it.
Burley J held that the reasoning of the High Court in Makasa under s 501(2) applied by analogy to a decision under s 501(3A) of the Act and concluded that the state of satisfaction that a delegate was required to reach for the mandatory cancellation power to be available to be exercised cannot be based on the same facts (in respect of whether the individual passes the character test within s 501(3A)(a)) as those relied upon for the purpose of the formation of the same state of satisfaction in an earlier decision (at [81]). At [72] to [74] his Honour said:
[72] … I consider that the nature of the merits review function performed by the Tribunal under s 501CA(4) would be significantly undermined if the power under s 501(3A) could be re-exercised on the basis of the same facts: see Makasa at [50]. …
[73] Secondly, s 501BA provides for a Ministerial override in similar terms to that provided in s 501A which operates in respect of s 501(2). It provides that if a delegate of the Minister or the Tribunal makes a decision under s 501CA to revoke a decision under s 501(3A) to cancel a visa, then the Minister may set the cancellation decision aside and cancel a visa if satisfied that: (a) the person does not pass the character test for the same reasons prescribed by s 501(3A)(a); and (b) the cancellation is in the national interest. That is so, whether or not a decision to revoke the visa cancellation is made by a delegate or the Tribunal on review of the decision under s 501CA: s 501BA(1). … Like s 501A, the powers of Ministerial override in s 501BA can be exercised by the Minister without the need for any change to the factual basis on which the decision-maker was initially satisfied that the visa holder did not pass the character test. In this respect the observations made by the High Court in Makasa at [53] and [54] apply equally to the position under s 501(3A).
[74] One countervailing factor may be the language of s 501(3A)(b) which uses the active verb “the person is serving a sentence of imprisonment”. … However, the fact that a visa holder is serving a sentence of imprisonment within subsection (b) is neither here nor there unless the Minister is also satisfied that the person does not pass the character test within subsection (a); there must be a concurrence of the two conditions to enliven the power. As I have noted above, I consider the High Court’s reasoning in Makasa can be extended to s 501(3A) to the effect that if the Minister or a delegate exercises that power on the basis that they are satisfied, having regard to particular facts, that a visa holder does not pass the character test within s 501(3A)(a) … the Minister or delegate may only re-exercise that power upon becoming satisfied that the visa holder does not pass the character test on the basis of subsequent events or further information which support a relevantly different factual basis. [Emphasis added.]
In XJLR the delegate had relied on the same facts that had been relied upon in a previous cancellation decision which had been revoked to find that the applicant had a substantial criminal record under 501(3A)(a). His Honour did not accept that the Respondent could rely on the fact that at the time of delegate’s decision to cancel the visa, the applicant was serving a different sentence of imprisonment for a different offence (to satisfy s 501(3A)(b)) to contend that the delegate did not exercise the duty imposed in s 501(3A) on the basis of the same facts. At [81] and [82] his Honour
[81] … The Minister or a delegate can re-exercise the power conferred by s 501(3A) if subsequent events or further information provide a different factual basis from which that state of satisfaction can be reached, but neither the Minister nor the delegate can rely on subsequent events or further information simply to repeat the same decision on the basis of the same facts. A fresh serious criminal sentence must be imposed (within s 501(3A)(a)) before the power is re-enlivened for another delegate of the Minister to reconsider the exercise of power. ...
[82] If the Minister’s construction were correct, these provisions establish a scheme whereby a visa holder who has once been determined to have a substantial criminal record for the purposes of s 501(3A)(a)(i) will be subjected to a visa cancellation if they are ever to again serve a full-time custodial sentence of imprisonment within s 501(3A)(b). This is notwithstanding whether the Tribunal has already revoked a previous cancellation under s 501CA(4), or the length of the subsequent term of imprisonment or the nature of the offence for which it is imposed. For the reasons given above, I do not consider that this is the correct construction of the scheme established by ss 501(3A), 501BA and 501CA.
Burley J held that the cancellation decision under s 501(3A) was affected by jurisdictional error and said:
… the satisfaction of s 501CA(1) is a precondition to the exercise by the delegate of the power under s 501CA(4) to revoke the cancellation decision, and a precondition to the exercise of power under a merits review of that decision by the Tribunal as is enabled by s 500(1)(ba). It is a requirement, the satisfaction of which enlivens the power of the Minister, a delegate of the Minister or the Tribunal on review, to exercise a discretion, and may be termed a jurisdictional fact: …[6] [Citation omitted.]
[6] At [96].
His Honour held that the Tribunal had power to conduct a review under s 501CA(4) despite the delegate’s decision under s 501CA(4) being made in jurisdictional error.[7] Despite the Tribunal concluding that the applicant did not pass the character test under s 501CA(4)(b)(i) on the basis of the same sentence as had been relied upon in an earlier cancellation decision that had been revoked, that same conclusion was open on the basis of a later sentence. It followed that the error made by the Tribunal was immaterial to its conclusion that the applicant failed the character test. The Minister’s delegate and the Tribunal had jurisdiction to consider the revocation application.[8]
[7] At [90].
[8] At [93].
In the later decision of Ibrahim v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 914, Derrington J, obiter, and without reasons, expressed the opinion that the view in Zyambo appeared to preferable to that in XJLR.[9]
[9] At [46].
Mr Murray’s legal representative referred to the Tribunal decision in Ozerski and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4775. The Tribunal applied XJLR but did not need to refer to the earlier case of Zyambo. The applicant conceded that he did not pass the character test. He had acquired new convictions which amounted to a “substantial criminal record” under s 501(7)(d) of the Act after revocation of an earlier cancellation decision. There was a new factual basis for a finding that he failed the character test.
The Respondent’s position was that XJLR is wrong in so far as it supported the proposition that a decision made under s 501(3A) will not be valid if a finding pursuant to s 501(3A)(a) is based on the same facts as those upon which a previous decision-maker relied to cancel a visa. It argued that the Tribunal can find that Mr Murray fails the character test because he has a substantial criminal record applying either Zyambo or XJLR.
Applying Zyambo, the Respondent argued that the 2021 cancellation decision relied on a different custodial sentence for the purpose of s 501(3A)(b) from that previously relied upon for making a cancellation decision and therefore that combination of matters had not previously been relied upon to cancel a visa.
Applying XJLR, the Respondent argued that sentences imposed on Mr Murray prior to a decision to cancel his visa, including those upon which any decision-maker relied when cancelling the visa, together with any sentences imposed after cancellation, can be considered:
Such a circumstance would not be one in which the review applicant “only” fails the character test by reason of sentences taken into account by a previous decision-maker. In short, “new” facts, together with “old” facts, can supply the “different factual basis” for a finding by the Tribunal that a person does not pass the character test. This understanding of XJLR coheres with that part of … Makasa where it was said that a new sentence may “contribut[e] … to the coming into existence of a new substantial criminal record within the meaning of s 501(6)(a)”.[10]
[10] Respondent’s Post hearing submissions dated 12 January 2022 at [21].
The quotation from Makasa is incomplete and misleading. The complete quotation is set out above at [33].
The Respondent concluded that if it followed XJLR:
the Tribunal would be empowered to find, for the purpose of s 501CA(4)(b)(i), that the applicant does not pass the character test (in s 501(6)(a), read with s 501(7)(d)) at least because of the sentences of imprisonment imposed on him in respect of the offences of which he was convicted on 5 March 2009 (three years), 5 February 2014 (six months), 9 December 2014 (nine months and 12 months), 15 October 2015 (nine months, increased on appeal on 2 December 2015 to 12 months), 21 August 2018 (12 months) and 15 December 2020 (nine months).[11]
[11] Respondent’s Post Hearing submissions at [26].
The Respondent also submitted that:
… there is nothing preventing the Tribunal from finding that the applicant does not pass the character test (in s 501(6)(a), read with s 501(7)(c)) because of any of the 12-month sentences of imprisonment imposed on him on 9 December 2014, 15 October 2015 or 21 August 2018.[12]
[12] At [27].
The case put for Mr Murray was as follows. In Zyambo, the applicant was unrepresented and there was no argument to rebut the Respondent’s submissions. Since that decision, the decisions in XJLR and Ozerski confirmed that Makasa is directly applicable to s 501(3A). The authorities of Makasa as supported by XJLR which thoroughly examined s 501(3A), confirm that the new factual basis test required new circumstances since the last cancellation and revocation decision before a person fails the character test in s 501(3A) (a)(i). A new factual basis for a finding under s501(3A)(b) is insufficient.
The offences relied upon by the Respondent to overcome the jurisdictional error made by the delegate who made the non-revocation decision do not provide a new factual basis for the finding. The only new factual basis is the 2021 conviction and sentence of nine months’ imprisonment which does not amount to a substantial criminal record.
The Tribunal has power to find that the reviewable decision was invalid and to set aside the 2021 cancellation decision.
Consideration of the parties’ arguments
In my view there are two considered conflicting decisions of the Federal Court. While there was no contradictor in Zyambo, Derrington J has expressed the opinion, obiter, that it would appear that the reasoning in Zyambo is to be preferred to that in XJLR. His Honour has had the opportunity to consider XJLR. He has maintained the view expressed in Zyambo.
I respectfully prefer the consideration of the difference between s 501(2) and s501(3A) of the Act in Zyambo to the consideration of the statutory scheme set out in XJLR. I propose to follow Zyambo. There is no jurisdictional issue for consideration. I proceed to consider whether the 2021 cancellation decision should be revoked pursuant to s 501CA(4) of the Act.
Does Mr Murray pass the character test?
The Tribunal finds that Mr Murray does not pass the character test pursuant to s 501CA(4)(b)(i) because of the 2018 sentence to imprisonment for 12 months (s 501(7)(c)). If the Respondent’s argument about XJLR were correct, the same finding could be made on the sentences referred to at [61] and [62].
Is there another reason why the 2021 cancellation decision should be revoked?
Direction No. 90
The Preamble in Part 1 of Direction 90 sets out Objectives, including the purpose of the Direction, and the Principles which provide the framework within which decision-makers should approach their task, relevantly, in exercising powers under s 501CA of the Act. Part 2 of Direction 90 is about exercising the discretion. It sets out primary and other considerations and the factors to be considered in each case.
The principles that provide the framework for decision-makers are set out in paragraph 5.2 of Direction 90:
(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, with respect to important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia
(3) The Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel the visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conned conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 7 of Direction 90 gives directions about taking the relevant considerations into account:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary consideration should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Each relevant consideration will be addressed in turn.
Primary considerations
Protection of the Australian community
The first primary consideration is protection of the Australian community from criminal or other serious conduct. Paragraph 8.1(1) of Direction 90 states:
(1) When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens 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.
Paragraph 8.1(2) of Direction 90 requires a decision-maker to have regard to two matters when considering the protection of the Australian community:
(a)The nature and seriousness of the Applicant’s conduct; and
(b)The risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct
Mr Murray’s criminal convictions and sentences have been set out earlier in this decision.Applying paragraph 8.1.1 of Direction 90, his offending is very serious for the following reasons. He has committed violent crimes, including family violence and being armed with weapons. His offending in Australia began within a few years of arriving in Australia and has been repeated and continued until his most recent convictions in 2021. The 2018 offences of family violence are recent and concerning. While his partner continues to support Mr Murray, that does not change my evaluation of the seriousness of the offences. The cumulative effect of his repeated offending, including numerous driving offences over a long period of time, including while disqualified, shows a disregard for Australian law.
Serving prison sentences has not dissuaded Mr Murray from reoffending. He has previously been warned about his visa status in 2009, had a visa cancellation revoked in 2019 and experienced immigration detention between being released from prison in 2019 and then from detention after the 2019 revocation decision. He was well aware of the possible consequence of reoffending, including having his visa cancelled.
The risk to the Australian community should the applicant commit further offences or
engage in other serious conduct
The Government’s view is that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and some conduct and the consequential harm, if repeated, is so serious that any risk that it may be repeated is unacceptable.[13]
[13] Direction 90, Paragraph 8.1.2(1).
When considering the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the first consideration is the nature of the harm to individuals or to the Australian community should the Applicant engage in further criminal conduct.[14]
[14] Direction 90, Paragraph 8.1.2(2)(a).
Should Mr Murray engaged in further criminal conduct, the nature of the harm is very serious and is likely to involve psychological and physical harm, including with weapons, and family violence. His repeated offending, including driving offences, shows a disregard for Australian law.
The next consideration is the likelihood of the Applicant engaging in further criminal conduct, taking into account information and evidence about the risk of re-offending and rehabilitation achieved at the time of decision.[15]
[15] Direction 90, Paragraph 8.1.2(2)(b).
Mr Murray expressed remorse and an intention not to reoffend. He claims that he is much calmer now and being older does not have the energy he used to have. He tended to blame his brain injury and epilepsy, childhood abuse, and other people for his offending.
The medical evidence does not support a claim that medical conditions cause his offending in the sense that he is not responsible for his actions.
In relation to the family violence offences against his partner, their relationship seems to be a very close and mutually supportive one after those offences.
Mr Murray tended to blame the victims or other factors for his physical violence in the offending for which he was convicted in 2009 and 2015 and the family violence conviction in 2018. In relation to the latter offence, he blamed friends for pitting him and is partner against each other and said that they were avoiding those people now.
In relation to the driving offences, the reports of Dr Parratt in 2021 are instructive. For the first time he accepted that his epilepsy restricted him from driving. He had been fixated on becoming epilepsy free so he could drive, but his treatment had not been sufficiently effective. Mr Murray has finally shown some insight in relation to this aspect of his offending. That he has been non-compliant with his prescribed medications while in detention suggests that has not appreciated that he needs to take prescribed medications for the best outcome for his medical conditions.
Mr Murray’s partner said that she would keep the keys to the car so he could not access them as he had before committing his most recent driving while disqualified offence. She also said that she would encourage him to take public transport.
As to his other offending, despite his lengthy criminal record and periods of imprisonment and more recently immigration detention, the evidence does not suggest that he has taken any courses or had counselling to address his offending. He has had the support of his partner since about 2011. That has not stopped his offending. Indeed, she was the victim of his 2018 family violence offences.
I accept that when Mr Murray expresses remorse and promises not to reoffend, he means it, however he also sought to deflect responsibility for his offending. His resolve has not been tested. That his partner is going to hide the car keys suggests that she may not be entirely confident that he will not try to drive again.
Mr Murray has shown a genuine change in his attitude to driving while he has epilepsy. I give that some weight to find that his risk of future driving offences is much less that it was prior to 2021. There is a risk that he will commit other offences but is not an unacceptable risk. He has had a year to reflect with his partner who has been very supportive.
The protection of the Australian community weighs moderately in favour of not revoking the visa cancellation decision.
Family violence committed by the non-citizen
Paragraph 8.2(1) of Direction 90 says that the Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen. Mr Murray’s 2018 convictions of family violence offences against his partner are very concerning, for the reasons given above. The evidence did not clearly show that the 2014 conviction related to his partner, although they were in a relationship at the time. He has family violence convictions for two separate incidents four years apart. He was sentenced to imprisonment on both occasions.
That his partner has forgiven him for the 2018 offences and continues to support him very strongly, and he has expressed remorse and apologised, does not mitigate the seriousness of the offending. Direction 90 specifically addresses family violence as a primary consideration
Mr Murray’s family violence offending weighs significantly against revocation of the visa cancellation.
Expectations of the Australian Community
The fourth primary consideration is expectations of the Australian Community. Paragraph 8.4 of Direction 90 provides that the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Direction 90 further states that 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.
The Full Court of the Federal Court of Australia considered clause 11.3(3) of Direction 65, which is analogous to paragraph 8.4 of Direction 90, in FYBR v Minister for Home Affairs [2019] FCAFC 185. The majority (Charlesworth and Stewart JJ) concluded that clause 11.3 (and by extension paragraph 8.4) contains a statement of the government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or the evidence about those expectations.
Australia may afford a higher level of tolerance to criminal conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.[16] Mr Murray has lived in Australia for nearly 35 of his 59 years. His criminal offending began within a few years or arriving.
[16] Direction 90, paragraph 5.2(4).
The question for the decision-maker is the weight to be attached to this consideration. Mr Murray’s lengthy history of repeated very serious criminal offending despite consequential periods of imprisonment and notification of the potential for his visa to be cancelled, and the 2018 cancellation and subsequent revocation, lead to the conclusion that he has breached the expectations of the Australian community as set out in Direction 90. This consideration weighs moderately heavily against revocation.
Other considerations
The relevant other considerations in this case are the extent of impediments if removed from Australia and links to the Australian community. Paragraph 7(2) of Direction 90 states the primary considerations should generally be given greater weight than other considerations.
Extent of impediments if removed
Direction 90, paragraph 9.2, requires a decision-maker to consider the extent of impediments that may be faced if the person is removed from Australia to their home country, in establishing themselves and maintaining basis living standards, in the context of what is generally available to other citizens of that country, and sets out matters relevant to that consideration.
Mr Murray is nearly 60 years old. He has no relatives or friends in New Zealand. He has not lived there for many years. He has serious health conditions which have been treated at the same facility since 2013 and by Dr Parratt, neurologist since November 2014. His epilepsy has not been controlled to date. He has suffered a consequential brain injury. Consistent with that injury, is a psychiatrist’s observations that he has mild cognitive deficits mainly affecting executive function which were likely to be secondary to chronic epilepsy He has had the same general practitioner since 2007.
There are no significant cultural or language barriers to his returning to New Zealand.
He will be able to access whatever benefits a New Zealand citizen is able to. There is no evidence as to what they are. The delegate noted that New Zealand has comparable standards of social welfare and housing support to Australia. That may be the case.
What is certain, is that Mr Murray will not have the support of his partner who I accept will not move to New Zealand because of her family commitments. They have been in a close supportive relationship for about 10 years. Although they have been living together for only three years, that did not reflect a change in the nature of the relationship.
Without the longstanding support of his partner and his current medical supports, particularly his longstanding professional relationships with his general practitioner and his neurologist Dr Parratt, I find that Mr Murray will face insurmountable impediments if he is returned to New Zealand.
The extent of impediments if Mr Murray is removed from Australia to New Zealand weighs overwhelmingly in favour of revocation of the visa.
Impact on victims
The only known views of victims of Mr Murray’s offending are those of his partner. Despite the 2018 convictions, she remains very supportive of him. I accept that she will be devastated if he is removed from Australia. She will lose his long standing practical and emotional support. This consideration weighs heavily in favour of revocation.
Links to the Australian community
The consideration links to the Australian community has two limbs.[17] Only the first is relevant, the strength, nature and duration of ties to Australia.
[17] Direction 90, paragraph 9.4.
Mr Murray has lived in Australia for 35 of his almost 60 years. He committed his first offence within a few years of arrival. Apart from his three-year term of imprisonment from 2007 to 2010, he worked until injured in an accident in 2013. His immediate family comprises his very supportive partner of 10 years. There was no suggestion that she did not have an indefinite right to remain in Australia. They have resided together in her home since 2018. He is highly regarded by his partner’s father, who provided a letter of support in these proceedings.
His partner suffers various health conditions, including breast cancer for which she continues to be monitored. He has supported her emotionally and in relation to her health issues and domestic tasks and will continue to do so if he remains in Australia. I accept her evidence that she will be devastated if Mr Murray is removed from Australia. Her mental health and quality of life would be adversely affected.
The strength, nature and duration of Mr Murray’s ties to Australia weigh heavily in favour of revocation.
Conclusion
I have to weigh all “primary” and “other” considerations set out in Direction 90. “Other considerations” should not be necessarily given less weight in all cases; it is a case-by-case consideration.[18]
[18] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [43]; Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947; Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875.
For the above reasons, balancing the relevant Primary Considerations, which all weigh in favour of not revoking the visa cancellation decision, and the relevant Other Considerations, which all weigh in favour of revocation, I find that the considerations favouring revocation of the visa cancellation outweigh the considerations that do not.
There is another reason for revoking the visa cancellation decision.
Decision
The reviewable decision made on 28 October 2021 is set aside and in substitution it is decided that there is another reason why the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa should be revoked.
I certify that the preceding 114 (one hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member
....................................[sgd]....................................
Associate
Dated: 20 January 2022
Date(s) of hearing: 6 & 7 January 2022 Date final submissions received: 14 January 2022 Solicitors for the Applicant: M Lewis, Crossover Law Group Solicitors for the Respondent: A Zabrdac, HWL Ebsworth Lawyers
0
9
0