MXFR and Minister for Home Affairs (Migration)
[2019] AATA 705
•5 April 2019
MXFR and Minister for Home Affairs (Migration) [2019] AATA 705 (5 April 2019)
Division:GENERAL DIVISION
File Number: 2019/0183
Re:MXFR
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:5 April 2019
Place:Melbourne
The Tribunal decides to:
(1)set aside the decision made by a delegate of the Minister on 9 January 2019 refusing under s 501CA(4) of the Migration Act 1958 to revoke the cancellation of MXFR’s Class BB, Subclass 155 Five Year Resident Return visa on 10 November 2016 under s 501(3A); and
(2)substitute a decision that the cancellation of MXFR’s Class BB, Subclass 155 Five Year Resident Return visa under s 501(3A) be revoked under s 501CA(4).
........[sgd]..........................................................
S A FORGIE
Deputy President
Catchwords
MIGRATION – application for revocation of mandatory cancellation of visa – where applicant fails the character test – where substantial criminal record under Migration Act 1958 – risk of reoffending – other reason why cancellation decision should be revoked – decision set aside.
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 29, 33, 33(1)(a), 33(1)(b), 33(1)(c), 33A(1), 33A(2), 35, 36, 36B, 39(1), 39A and 43(1)
Migration Act 1958 ss 5J(1)(a), 197A, 499, 499(1), 499(2), 499(2A), 500, 500(6F), 500(6J), 501, 501(3A), 501(3A)(a)(i), 501(3A)(b), 501(6), 501(6)(a), 501(7), 501(7)(c), 501(12), 501CA, 501CA(1), 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii) and 501G(2)
Cases
Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; 141 ALR 618
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others (2000) 203 CLR 194; 174 ALR 585
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 46 FLR 409; 2 ALD 60
Edwards v Police (1998) 71 SASR 493
Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 276; (2003) 135 FCR 306; 78 ALD 65; 203 ALR 320
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
General Medical Council v Spackman [1943] AC 627
Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; (2001) 111 FCR 378
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
Jones v Hyde [1989] HCA 20; (1989) 85 ALR 23; 63 ALJR 349
Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875
Lokanc v Secretary, Department of Social Services [2016] FCA 1134
MacPherson v Beath (1975) 12 SASR 174
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
McPherson v Brown (1975) 12 SASR 184
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441; 42 ALR 209
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313; 62 ALR 673
Minister for Immigration and Multicultural Affairs v Daniele (1981) 61 FLR 354; 39 ALR 649
Minister for Immigration and Multicultural Affairs v Eshutu [1999] HCA 21; (1999) 197 CLR 611; 162 ALR 577; 54 ALD 289; 73 ALJR 746
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; 56 ALD 349
Naisauvou v Minister for Immigration & Multicultural Affairs [1999] FCA 86; (1999) 89 FCR 435; 29 AAR 391
Omar v Minister for Home Affairs [2019] FCA 279
Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 2 ALD 33; 36 FLR 482; 26 ALR 247
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Re Refugee Tribunal; Ex Parte AALA [2000] HCA 57; (2000) 204 CLR 82; 176 ALR 219
Re Saleh and Minister for Immigration and Border Protection [2016] AATA 841
Re Trinh and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 1306
Re Tuimaseve and Minister for Immigration and Border Protection [2016] AATA 924
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324
TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 42 ALR 496
Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203; 319 ALR 181; 151 ALD 107; 66 AAR 136; 89 ALJR 498
Wacando v The Commonwealth (1981) 148 CLR 1; 37 ALR 317
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Material
Ministerial Direction No. 65
Ministerial Direction No. 79
REASONS FOR DECISION
Deputy President S A Forgie
On 10 November 2016, MXFR’s Class BB Subclass 155 Five Year Resident Return visa (RR visa) was cancelled under s 501(3A) of the Migration Act 1958 (Migration Act). Notice of that decision was originally given to MXFR by hand on 11 November 2016. He responded to the delegate’s invitation to make representations that the cancellation decision be revoked under s 501CA(4). MXFR made those representations and their receipt was acknowledged by the Department of Home Affairs (Department) in a letter dated 19 November 2018.[1] In that letter, the Department enclosed a copy of a National Police Certificate dated 1 May 2018, which might be taken into account in considering whether to revoke the cancellation decision. Also enclosed was a copy of a Notice of Decision Not to Cancel Visa dated 8 August 2012. Those two documents were also enclosed in a further letter dated 23 November 2018 sent by the Department to MXFR together with a Formal Counselling Letter dated 5 December 2007 and another dated 15 June 2007. Through his legal representatives, MXFR made further representations dated 21 December 2018 setting out why the cancellation decision should be revoked. A delegate refused the request in a decision dated 9 January 2019.
[1] Documents lodged under s 501G(2) of the Migration Act (G documents); G05 at 234-235
In the course of the preliminary proceedings, I considered a request made on behalf of the Minister that MXFR be required to attend the hearing by means of video link, rather than in person, as he is now detained at Yongah Hill Immigration Detention Centre (Yongah Hill) in Western Australia and not in Melbourne. I decided to grant that request and have set out my reasons below. With regard to the substantive application, I have decided to set aside the decision of the Minister’s delegate refusing to revoke the cancellation of MXFR’s RR visa. The practical effect of my decision is that MXFR is permitted to remain in Australia.
LEGISLATIVE BACKGROUND
In this passage of my reasons, I will set out the provisions of the Migration Act which provide the legislative basis on which MXFR’s RR visa has been cancelled by operation of the law set out in the Migration Act. They also provide the basis on which I must consider his request for revocation of that decision.
Cancellation of Visa under s 501(3A)
Section 501(3A) of the Migration 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.”
The word “imprisonment includes any form of punitive detention in a facility or institution.”[2]
[2] Migration Act; s 501(12)
Section 501(6) sets out eleven sets of circumstances in which a person does not pass the character test but only those specified in s 501(6)(a) are relevant in this case for the purposes of s 501(3A). The relevant circumstance is that the person has a substantial criminal record as defined by s 501(7). Section 501(7) sets out six sets of circumstances in which a person is taken to have a substantial criminal record. Only the first three are relevant for the purposes of s 501(3A) and, in this case, s 501(7)(c) is relevant. It provides that a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more”.
MXFR has been sentenced to a term of imprisonment of more than 12 months when he was convicted in the County Court of Victoria (County Court) of Aggravated Burglary and sentenced to a term of four years and six months. That means that he does not pass the character test as defined in s 501 because he has a “substantial criminal record” as defined by s 501(7)(c). In light of that, the terms of s 501(3A)(a)(i) obliged the Minister to cancel MXFR’s visa. As MXFR was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of, in this case, the State of Victoria, the Minister was also required to cancel MXFR’s RR visa under s 501(3A)(b).
Section 501CA is relevant if the Minister has made a decision, known as the “original decision”, under s 501(3A) to cancel a visa that has previously been granted to a person.[3] Section 501CA(4) provides that:
“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.”
[3] Migration Act; s 501CA(1)
In the circumstances of this case, MXFR cannot rely on the provisions of s 501CA(4)(b)(i) as he cannot pass the character test in s 501. As I have said earlier, the only relevant provision is that in s 501CA(4)(b)(ii), which requires me to consider whether “… there is another reason why the original decision should be revoked.” The way in which I am required to consider this issue was addressed by North ACJ in Gaspar v Minister for Immigration and Border Protection:[4]
“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. …”[5]
[4] [2016] FCA 1166
[5] [2016] FCA 1166 at [38] and cited with approval in Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30]-[32] per Collier J with whom Logan and Murphy JJ agreed.
Under s 499 of the Migration Act, the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[6] Those directions must not be inconsistent with the Act or the Regulations made under it.[7] The person or body to whom the directions are given must comply with them.[8]
[6] Migration Act; s 499(1)
[7] Migration Act; s 499(2)
[8] Migration Act; s 499(2A)
The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501CA. It is known as “Direction No. 79” and applies to the decision made in relation to a visa of the sort held by MXFR. I will come back to Direction No. 79 and to the particular directions which it sets out and to which I must have regard.
HEARING BY VIDEO LINK BETWEEN MELBOURNE AND YONGAH HILL
At a directions hearing held by telephone and presided over by another member of the Tribunal, the parties were advised that the Tribunal’s standard practice is for an applicant to appear by video link when he or she is held in immigration detention outside the State or Territory where the matter is to be heard. I note that, until very recent times, attendance by video link has not been the standard practice in Melbourne. Rather, the Minister has facilitated arrangements so that applicants have been able to attend the hearing in person.[9]
[9] The Minister has done so even though I acknowledge that, for the reasons I gave in In Re Saleh and Minister for Immigration and Border Protection [2016] AATA 841 at [30]-[36], it is my view that the Tribunal does not have power to require the Minister to arrange for a person who has an application in the Tribunal and whom he has detained under the Migration Act to attend the hearing of a proceeding in the Tribunal.
MXFR’s position was that he should appear at the hearing in person and the Minister’s that he could appear by video link as he was held in immigration detention at Yongah Hill in Western Australia and the hearing was to be heard in Melbourne. The Minister’s position was that he should give evidence by video link and observe the whole of the proceedings through that medium. The parties made submissions in support of their positions.
In summary, Ms Richards, who appeared for MXFR at the directions hearing, submitted that the Minister chose to move MXFR from Melbourne to Yongah Hill on 18 December 2018. Any suggestion by the Minister that MXFR is a security risk because he has a history of violence is unfounded. His conduct in prison and in detention has been outstanding and the two occasions in which he has been subject to restraint were not as a result of his behaviour but as a result of his being transferred from one locality to another. There was a risk that the picture would be pixilated and the sound compromised so that he would not be able to participate fully in the proceeding. In particular, he would not be able to participate fully if the hearing were held by video link. MXFR was already at a disadvantage in having to instruct his lawyers over the telephone. It will be difficult for MXFR to review documents and for them to obtain instructions. The consequences of the hearing for MXFR are potentially life changing and that weighs in favour of his being given the opportunity to present his case in person. His lawyers are not funded and cannot afford to travel to Yongah Hill. At the hearing, Ms Martin of counsel, who attended on MXFR’s behalf, also added that it had not been appreciated that MXFR required an interpreter.
Ms Noronha’s submissions on behalf of the Minister centred on the expense and logistical difficulties in transferring MXFR from Yongah Hill to Melbourne, his previous convictions for violence-related offences and, noting he was legally represented, his ability to participate in the proceedings by video link.
Resolution of the issue depends on the general law and on the relevant provisions of the Administrative Appeals Tribunal Act 1975 (AAT Act). Beginning with the general law, there is an obligation to accord the parties procedural fairness unless that obligation is limited or extinguished by the statute: Re Refugee Tribunal; Ex Parte AALA.[10] If there are any limits to be placed on that obligation, they are to be found in the legislative regimen established by Parliament for the review of decisions and, in the particular circumstances of this case, in the Migration Act.
[10] [2000] HCA 57; (2000) 204 CLR 82; 176 ALR 219 at [41]; 101; 231 per Gaudron and Gummow JJ with whom Gleeson CJ agreed
Section 33A(1) of the AAT Act provides:
“The Tribunal for the purposes of a hearing, or the person conducted a directions hearing or alternative dispute resolution process, may allow or require a person to participate by telephone or by means of other electronic communications equipment.”[11]
[11] Section 33A(2) of the AAT Act provides that s 33A(1) does not apply to a proceeding in the Security Division, to which s 39A of the AAT Act applies.
A plain reading of s 33A(1) is that Parliament envisaged that those participating in the Tribunal’s proceedings would attend in person. At the same time, Parliament gave the Tribunal a power to allow or require a person to participate by means of electronic communication equipment. By expressing the power in terms of what the Tribunal “may” allow or require, the power is a discretionary power. That is consistent with the discretionary nature of the powers given to the Tribunal under s 33 to determine its own procedures within its own discretion.[12]
[12] AAT Act; s 33(1)(a)
It has long been established that the circumstances in which a statutory power may be exercised and any limits on that power must be found in the enactment conferring the power, its subject matter and its object, as well as its underlying policy.[13] This is an approach consistent with the modern approach to statutory interpretation as discussed by Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Ltd v Bankstown Football Club Ltd.[14] Equally, the scope of any discretion given to a decision-maker under an enactment depends on the latitude of the subject matter, scope and purpose of the Act and of the particular power conferred on the decision-maker.[15]
[13]Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265 at 375; 272 per Woodward J
[14] (1997) 187 CLR 384; 141 ALR 618 at 408; 634-5 (footnotes omitted) per Brennan CJ, Dawson, Toohey and Gummow JJ, and see also Wacando v The Commonwealth (1981) 148 CLR 1; 37 ALR 317 at 25-26; 335-6 per Mason J and TCN Channel Nine Pty Ltd v Australian Mutual Provident Society (1982) 42 ALR 496 at 507-508
[15]Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others (2000) 203 CLR 194; 174 ALR 585 at 205; 591 and see also Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 46 FLR 409; 2 ALD 60 at 590; 420; 70 per Bowen CJ and Deane J and 602; 80 per Smithers J
Part of the subject matter includes s 2A of the AAT Act when it provides:
“In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision-making of the Tribunal.”
Provisions of this sort have been described as “general exhortatoryprovisions”.[16] They are intended to be facilitative and not restrictive.[17] They cannot be more than that because the ideals that are to be pursued are necessarily relative concepts. They are determined by the nature and complexity of the issues raised by the application for review and the decision under review. Those considerations mean that it will be possible in some instances to achieve an outcome that achieves each and every ideal but it is not always possible to do so. It may be possible to achieve fairness, justice and informality but at the cost of speed. It may be possible to achieve speed but at the cost of fairness and justice. Whether that balance is permitted, depends on a consideration of the AAT Act as a whole together with the terms of the relevant enactment under which an application is made to the Tribunal.
[16] Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324 per Lindgren J
[17] Minister for Immigration and Multicultural Affairs v Eshutu [1999] HCA 21; (1999) 197 CLR 611; 162 ALR 577; 54 ALD 289; 73 ALJR 746 at [49]; 628; 588; 301; 754-755 per Gleeson CJ and McHugh J and [158]; 659; 613; 326; 773 per Hayne J and see also similar views expressed by Gaudron and Kirby JJ at [69]-[77]; 633-635; 592-594; 305-307;757-759
The same concepts are found in ss 33(1)(a) and (b) which also recognise that the level of formality and technicality with which a proceeding is conducted will be dependent on legislative requirements and a proper consideration of the matters before the Tribunal. Those paragraphs provide that:
“In a proceeding before the Tribunal:
(a)the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
(b)the proceeding shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit; …”
The Migration Act is an example of an enactment that has provided for applications to the Tribunal. I am concerned only with Part 9 of that enactment and, in particular, with a decision made by a delegate of the Minister under s 501CA(3) to refuse to revoke the cancellation of a visa. Where that person is in the migration zone, ss 500 and 501 add to, exclude or modify some of the provisions of the AAT Act. Obligations imposed on the delegate to provide documents is replaced in those cases. The framework of provisions included in the AAT Act and regulating the procedure the Tribunal must follow is modified in relation to certain matters. Those matters include the documents that are provided to the applicant, the time limits within which an applicant must lodge material in the Tribunal and the time within which the Tribunal must make its decision on the application for review of the delegate’s decision.
Even having regard to the exclusions or modifications it specifies, the Migration Act does not change the fundamental task that the Tribunal must undertake and the way in which it must undertake it. So, for example, the Tribunal’s role to review decisions on their merits is not altered and nor is the question it must determine:
“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferableone on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferableone on the material before the Tribunal. ...”[18]
[18] Drakev Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 46 FLR 409; 2 ALD 60 at 589; 419; 68 per Bowen CJ and Deane J
The limitations imposed upon an applicant with regard to the evidentiary material on which he or she may rely does not limit the Tribunal in making its own enquiries using its power under the AAT Act. Section 33(1)(c) provides that:
“In a proceeding before the Tribunal:
…
(c)the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.”
The High Court confirmed that is so in Uelese v Minister for Immigration and Border Protection [19] (Uelese).
[19] [2015] HCA 15; (2015) 256 CLR 203; 319 ALR 181; 151 ALD 107; 66 AAR 136; 89 ALJR 498; French CJ, Kiefel, Bell; Keane and Nettle JJ at [42]-[59]; 217-220; 189-192; 115-118; 145-148; 505-507 and [97]-[99]; 231‑232; 201; 126-127; 156-157; 513-514 per Nettle J
The Tribunal’s power to make its own enquiries is subject to s 39(1), which applies when the Tribunal reviews a decision under s 501 of the Migration Act. It provides:
“Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.”[20]
[20] Section 35 relates to public hearings, private hearings, non-publication and non-disclosure. Sections 36 and 36B provide for disclosure or non-disclosure of information when the Commonwealth Attorney-General or a State Attorney-General has issued a public interest certificate.
That takes me back to the common law principles of procedural fairness, which continue to apply to the Tribunal unless clearly excluded by the particular enactment conferring the entitlement to make an application to it. This was explained by Kenny J in Evans v Minister for Immigration & Multicultural & Indigenous Affairs:[21]
“ In Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, at 598-600, the majority (Mason CJ and Deane and McHugh JJ) decided that the duty to accord procedural fairness was a common law duty which may be excluded by statute, and not a mere obligation to be implied in the statute pursuant to which the decision‑maker acted. The duty to accord procedural fairness to a person whose interests are likely to be affected by an exercise of power is a restraint on the lawful exercise of the power, in order to protect such a person from a decision arrived at after an unfair decision-making process. In Annetts v McCann, the majority affirmed the principle that, where a statute confers powers of the kind contained in ss 501, 501A, 501B and 501C, then the decision-maker will be obliged to act with procedural fairness, unless the statute necessarily excludes such a duty. At 598, the majority said:
It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: ... . In [Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 395-396], Dixon CJ and Webb J said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from `indirect references, uncertain inferences or equivocal considerations’. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: ... . In Kioa v West [[1985] HCA 81; (1985) 159 CLR 550 at 585], Mason J said that the law in relation to administrative decisions ‘has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.’ In Haoucher[v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 653], Deane J said that the law seemed to him ‘to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making’.”[22]
[21] [2003] FCAFC 276; (2003) 135 FCR 306; 78 ALD 65; 203 ALR 320; Gray, Kenny and Downes JJ
[22] [2003] FCAFC 276; (2003) 135 FCR 306; 78 ALD 65; 203 ALR 320; at [52]; 322; 80; 335
That brings me to the question of what procedural fairness required in this case. I attempted some general answers in Re Tuimaseve and Minister for Immigration and Border Protection[23] (Tuimaseve). As I said in that case:
“… It is not possible to give to that question a single answer having universal application. In some cases, a reasonable opportunity may amount to having an opportunity to lodge written material and make submissions leaving it to the Tribunal to come to a decision on that written material without a hearing. That is provided for in s 34J but both parties must consent to that course before the Tribunal may decide to embark upon it. In some rare cases, the issues may be such that one or other of the parties is not required to attend a hearing held by the Tribunal but chooses to rely on the written material and on its written submissions. In other cases, both parties are expected to attend the hearing. Section 32(1) of the AAT Act permits a party to a proceeding in a Division other than the Social Services and Child Support Division to appear in person or be represented by another person. Where the facts of a matter are not in issue and the applicant does not have to give evidence, it may be that the Tribunal can be said to be acting with procedural fairness even if it proceeds with a hearing in the absence of an applicant but in the presence of his or her representative. Whether it does, depends on a full assessment of the circumstances.”[24]
[23] [2016] AATA 924 at [37]-[41]
[24] [2016] AATA 924 at [37]
None of those scenarios applies in this case. MXFR is represented by his solicitor. The facts are not settled and he was always expected to give evidence. Indeed, his evidence is an essential part of the case that he wishes to put. It was always known that MXFR wished to have the assistance of a Vietnamese interpreter as he had indicated that in his application form lodged by his solicitors. Arrangements for an interpreter are always made by the Tribunal in cases such as these.
In the case of Tuimaseve, I spent a little time considering communication, whether it be communication between the applicant or a witness and the Tribunal, or between a party and his or her legal representatives and so on. That communication is usually verbal but, as much as they are discouraged so that every response is recorded, communication may be by non-verbal gestures. Communication is not just about hearing words or seeing gestures but also about understanding those words and their meaning. When the parties do not speak the same language or are not comfortable in communicating in the language spoken by the others, an interpreter will be required. Communication between the person and the interpreter cannot be assured simply by their having a common language and if they cannot communicate, the court or tribunal is denied the opportunity to understand the person. In the case of Lokanc v Secretary, Department of Social Services[25] (Lokanc), North J impliedly criticised the Tribunal when it held a hearing in which the applicant attended by telephone but the interpreter was present with the Tribunal member.
[25] [2016] FCA 1134 at [22]-[24]; North J
The manner and tone of delivery of the spoken word is also an important part of communication but they are factors that can be affected by culture and environment. Unless the person listening to the delivery also understands that culture and the environment as well as having insight into the person speaking, he or she may misunderstand what is being said. For some courts and tribunals, demeanour is important. For others, the patterns formed by the evidence assume a much greater significance. As I said in Re Saleh and Minister for Immigration and Border Protection,[26] the Tribunal is best placed to observe the nuances and manner in which a person gives his or evidence when the two are in the same room. Even for those for whom demeanour does not have such significance, it has been said by McHugh J in Jones v Hyde:[27]
“… When a trial judge resolves a conflict of evidence between witnesses, the subtle influence of demeanour on his determination cannot be overlooked. …”[28]
[26] [2016] AATA 841
[27] [1989] HCA 20; (1989) 85 ALR 23; 63 ALJR 349; Brennan, Deane, Dawson, Toohey and McHugh JJ
[28] [1989] HCA 20; (1989) 85 ALR 23; 63 ALJR 349 at [18]; 27; 351 per McHugh J with whom Brennan, Deane, Dawson and Toohey JJ agreed
Communication is a two way street. It is not enough that the court or tribunal thinks that it has an understanding of what has been said by and on behalf of the parties and by the witnesses. The parties must also feel that they have been heard and have had an opportunity to make themselves understood. To quote from the judgment of North J in Lokanc:
“… The Tribunal was obliged to provide him with a real opportunity to be heard. … That required the Tribunal to draw out from the applicant what he meant by his criticisms of the JCA [Joint Capacity Report] report.”[29]
[29] [2016] FCA 1134 at [23]
A different illustration of the requirement that parties are given a proper opportunity to present their cases arose in the case of Naisauvou v Minister for Immigration & Multicultural Affairs.[30] The police arrived at the Tribunal’s premises when Mr Naisauvou’s application to review the Minister’s decision to deport him was being reviewed by the Tribunal. They wanted to execute a warrant for his arrest for having breached his parole. The Tribunal permitted the police to arrest Mr Naisauvou after he had given evidence but before the conclusion of the presentation of his case. At the hearing, he was represented by his uncle. Moore J expressed the view that it would have been open to the Tribunal to have indicated to the police that Mr Naisauvou was required by the Tribunal to remain until the end of the hearing. His Honour concluded:
“ Because the Tribunal did not adopt this course, the applicant was not present when witnesses called on his behalf were cross-examined and when the opportunity arose for their re-examination. Nor was he present when his unqualified representative was confronted with strongly expressed views of the Tribunal concerning the prospect of the applicant re-offending about which the representative of the Minister then made submissions. It is possible that the applicant would have done either very little or nothing by way of instructing Mr Leone in the further conduct of his case had he remained. However the fact that the best opportunity might not have been taken advantage of does not conclude the inquiry. As Deane J said in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 632 in relation to a denial of an opportunity to be heard before a deportation order was made:
‘Clearly enough, the mere circumstance that there is no apparent likelihood that the person directly affected could successfully oppose the making of a deportation order neither excludes nor renders otiose the obligation of the administrative decision-maker to observe the requirements of procedural fairness. Indeed, the requirements of procedural fairness may be of added importance in such a case in that they ensure an opportunity of raising for consideration matters which are not already obvious.’
The critical issue is whether the applicant was deprived of the opportunity of doing so in circumstances where he might have desired to do so. He was and this, in my opinion, constituted a denial of procedural fairness. …”[31]
[30] [1999] FCA 86; (1999) 89 FCR 435; 29 AAR 391; Moore J
[31] [1999] FCA 86; (1999) 89 FCR 435; 29 AAR 391 at [27]-[28]; 442; 398
A similar principle was followed by Brennan J when, sitting as the Tribunal’s President, he said in Re Pochi and Minister for Immigration and Ethnic Affairs[32] (Pochi):
“ Serious though the exclusion of the public is, the exclusion of a party from a hearing which affects his interests is a much graver step. To exclude a party from such a hearing, even if his legal advisers are permitted to remain, is to deny him a full opportunity to cross-examine upon, to comment on or to controvert the case against him - a denial which, in the absence of statutory authority, would constitute an indefensible denial of fair treatment by the Tribunal.”[33]
[32] [1979] AATA 64; (1979) 2 ALD 33; 36 FLR 482; 26 ALR 247 at 54; 508; 270
[33] [1979] AATA 64; (1979) 2 ALD 33; 36 FLR 482; 26 ALR 247 at 54; 508; 270
Under s 33A(1) of the AAT Act, I decided to require MXFR to attend the hearing by way of video link. There is a major difference between the circumstances of Mr Tuimaseve and MXFR. That difference is that Mr Tuimaseve was detained on Christmas Island and MXFR at Yongah Hill on mainland Australia. Video links between Melbourne and Christmas Island were notorious for their pixilation and for the delay in the audio link. I was not aware of any such issues in relation to the link with Yongah Hill and, in the circumstances, the expense to the public purse of bringing MXFR to Melbourne was a deciding factor in circumstances in which the video link with Yongah Hill has proved satisfactory in the past and where there were no other impediments or considerations applying particularly to MXFR’s circumstances. That is not to diminish the seriousness of the proceedings for MXFR. They are, as for all applicants in this jurisdiction, potentially life changing.
Although that was my decision, I wanted MXFR and his solicitors and counsel to have the opportunity to try the video link for themselves and to tell me if they saw issues in its use. I gave them that opportunity by arranging for them to use the video link to speak with their client on 19 March 2019 between 1:00 and 5:00pm. The Tribunal provided a Vietnamese interpreter located in Melbourne to assist as need be. MXFR’s solicitors were to advise me of any issues that arose in their being able to communicate effectively so that, if there were, I could revisit or refine my decision under s 33A(1). While testing the link, they would also have the opportunity to obtain instructions from their client in circumstances in which they had said that they had experienced difficulties in obtaining them over the telephone.
I am aware that the video link was established with MXFR at Yongah Hill and his counsel and solicitors in Melbourne with the Vietnamese interpreter. The Tribunal’s staff did not attend after the connection was made but I have assumed that all went well for no complaint, concern or comment was received by the Tribunal about the link or the interpreter, about the interpreter’s being based in Melbourne and MXFR at Yongah Hill or about any inability to communicate.
During the hearing, MXFR was on the video link at all times. A Vietnamese interpreter was in the hearing room throughout the whole of the hearing from the opening to the closing submissions. At the earlier directions hearing, I had indicated to the parties that MXFR and/or his legal representatives had only to tell me at an appropriate time that they wanted to obtain instructions from their client or that MXFR wanted to speak with them. If that happened, I would adjourn the hearing, turn off the recording and that everyone would step outside the hearing room while they spoke. During the hearing, it happened on only one occasion. When everybody else returned to the hearing room, Ms Martin advised that MXFR had raised an issue about the interpretation of one or two matters in his evidence. The interpreter acknowledged that she had mistakenly interpreted the word “support” as “sport”. MXFR said that there had been other occasions when his evidence had been summarised by the interpreter and not given in full. This was also noted and MXFR did not raised any further issues with any of the four Level 3 interpreters engaged over the three day hearing. I also note that MXFR told me that he could read and write English but added that his memory is not good. He later demonstrated his ability to read English by reading a paragraph from his statement. His ability to do so and to understand English to the extent that he showed does not reflect in any way on his request to have an interpreter. English remains his second language and he needed to be able to communicate in the hearing as he felt best able to do.
An issue arose with the documents during the hearing. I adjourned the hearing so that documents sent by MXFR’s solicitors to Yongah Hill could be located. At times, MXFR could not find documents easily. As Ms Martin commented, it would have been easier had MXFR been in the room and someone could have pointed to the document immediately. There can be no doubt about that but MXFR found the documents and he also had some assistance with finding them and stapling them from officers at Yongah Hill.
BACKGROUND
MXFR was born in Vietnam in 1975 and is now 44 years of age. When he was 12 years of age, his parents put him, three of his brothers and one of his uncles on a 12 metre boat bound for Hong Kong. As far as he knew, his parents wanted them all to escape the communist regime and to be safe. His understanding was that the government was trying to take the family’s land and money. Had his parents tried to stand up to them, they would have gone to gaol. The conditions on the boat were difficult and they stopped in China to beg for food before reaching Hong Kong. Once they had arrived in Hong Kong, his uncle was in contact with friends who were in Australia and who sponsored them for resettlement in Australia.
MXFR arrived in Australia with his brothers in 1990 when he was 15 years of age. At first, he and his brothers lived with his uncle, with whom they had left Vietnam, and his wife in Perth. The brothers went to school. They felt very happy, loved and cared for. After living for six months in Perth, MXFR’s uncle moved them all to Melbourne. For a time, the three boys lived by themselves and continued to attend school. Later, their uncle and his wife joined them but, for some reason unknown to MXFR, their uncle’s wife no longer wanted to care for them. MXFR did note that their uncle’s wife had three children of her own to care for at this stage and he thought that there might have been too many people in the house. On many occasions, she told them to leave the house and they would stay with their friends. In the end, their uncle told the three boys to leave the house permanently.
At the time, MXFR was 16 years of age. He felt very abandoned. His older brother went to live by himself and he and his younger brother lived together with friends from school. They did not stay with the same friends but moved from house to house for the next two years while they continued to go to school. MXFR described his life as tough and difficult. He had no family or other support and there were no adults to whom he could turn for guidance. At the time, he did not care and he would just drink and use drugs; particularly marijuana but whatever he could get hold of. He was 16 years of age when he started using marijuana. During those years, his dreams of finishing school with good results and entering University faded. He stopped going to school and spent his time with his friends drinking. When he was 17 or 18 years of age, MXFR started using heroin. At first, he used it when he was with friends and it made him feel very good and relaxed. At the height of his drug taking in 2004 or 2005, he was taking 1/5 gram four times each day. The last time that MXFR used heroin was in March 2014 before he was arrested.
While in prison, MXFR was prescribed buprenorphine to treat his addiction to, or dependence on, heroin. He also abused buprenorphine and used marijuana. Over the years, he would use heroin in prison when his friends obtained it. The last time he used buprenorphine was early in 2016 or perhaps in 2015 while he was in Loddon Prison. In all, MXFR was using heroin and other drugs on and off for about 25 years. He would stop for the most part when he was in prison and then start again when he was with his friends. He then said that he had not used any drugs since late 2016 because he had attended two courses while he was in prison on the most recent occasion. One was a Talking Change Program in June 2016 and the other the 44 Hour (closed) Semi-intensive Drug and Alcohol Program (level IV) in August 2016. He undertook those courses at Port Phillip Prison and had not undertaken any others of their type during his previous periods of imprisonment. The 40 hour Intensive Substance Use Program he undertook also taught him the benefits of his stopping his drug taking. People not only become sick by contracting AIDS and the like but by becoming very unhappy.
The dates of his negative urine test results cover the entire period whether MXFR’s memory of his ceasing to take drugs in late 2015 or later in 2016 is correct. Either way, they pre-date his attending the two courses and continued after that date. Those courses made him realise that, if he did not change within himself, he could not have a good relationship with others. He had been sentenced to a term of imprisonment of 4½ years and he thought that he should make a change in his life so that he could have a better future. He started finding “good friends” and talking with them so that they could motivate him about the benefits of quitting. He resolved that, while he was in prison, he would become a “good guy” and “useful person for society”. He had to become a “new person” and he had to be that new person for everyone. People looked down on him. He had to apply it to his family and friends, for whom he cared. He was determined to change himself. He wanted his children to say that “You are a good father, Dad.” He wanted his wife to say: “You are a good husband.” MXFR said that he had changed so much since he last went to prison. His thinking had not been clear and it had been bad thinking. He was acting selfishly, thinking only of himself and eating, drinking and making himself feel satisfied. He was fighting with his wife and the arguments were very bad when they had them. MXFR said that he did not think about anything other than getting out of the house and using drugs.
His thinking is now clear and he has a strong determination not to do bad things. He said that he feels very bad because he has caused so much that is bad because of his drug taking. The difference between his state of mind now is that he can see the consequences of what he has been doing. MXFR said that he began to approach people in prison with his new attitude and he made good friends. Prison officers respected him and would approach him if they had something to discuss. At the same time, the prison officers helped him. Since he has been in immigration detention, he has been in contact with his wife on Facebook and they and the children have “FaceTimed”. They spend about six hours a day communicating that way. His wife had a “big conversation” with him to the effect that they have a happy life. She has a strong belief in him.
Part of MXFR’s approach was to take other courses such as cleaning and kitchen courses. Those courses served to distract him from thinking of “unnecessary things” and to prepare him to be able to look for different work on his release.
Convictions
In the following table, I will set out MXFR’s convictions interspersed with other relevant events. Where the information is available, I have included the dates on which the offences occurred as they are relevant in viewing the course of MXFR’s conduct. I have also colour-coded and used different fonts to identify those offences that are repeated in the context of a breach of a Community Based Order (CBO) but are not fresh offences. In all, I have calculated that MXFR has been convicted of 107 offences in all. Of those, 18 offences were offences of Failing to Answer Bail.
Date of Conviction
Court
Date of Offence(s)
Offence
(counts)Result
4 August 1994
Moonee Ponds Magistrates’ Court
Burglary
TheftConvicted community based order (CBO) for 12 months. To perform 150 hours unpaid community work.
Theft
Convicted community based order for 12 months. To perform 150 hours unpaid community work.
Licence cancelled and disqualified for 6 months.Fail to answer Bail Granted (2 charges)
Convicted community based order for 12 months. To perform 150 hours unpaid community work.
Unlicensed driving
Disobey traffic control signal
Fail give name/address - property damaged
Fail to Render Assistance After Accident
Careless Driving
Exceed prescribed concentration 3Hrs -BloodConvicted and Fined $250
Licence Cancelled and Disqualified for 6 months13 May 1997
Dandenong Magistrates’ Court
Failure to comply with CBO
(Breach re 04/08/1994)
Theft
Fail to Answer Bail (3 charges)Proven
Breach of Community Based Order. Order Confirmed.
3 April 1998
Dandenong Magistrates’ Court
Possess a drug of dependence (2 charges)
2 months imprisonment on each charge concurrent.
Use a drug of dependence (2 charges)
Theft
Unlawfully on premises/precinct
Possess a drug of dependence
Fail to answer Bail Granted (4 charges)2 months imprisonment on each charge concurrent.
Fail to answer Bail Granted
1 month imprisonment concurrent.
14 November 1995[34]
Police observed MXFR approaching a male in Footscray, to whom he sold a cap of heroin.
Traffick other drug of dependence (2 charges)
6 months imprisonment concurrent. Sentence suspended for 12 months under section 27 of Sentencing Act 1991.
Fail to stop vehicle after an accident
Convicted and fined $100 on each charge.
To pay $50.50 costs.Fail report to police owner not present
Drive in breach of permit condition
Learner drive without full licenseeConvicted and fined $100 on each charge.
6 May 1999
Dandenong Magistrates’ Court
Traffick heroin
6 months imprisonment.
Concurrent.
Effective total state term imposed is 6 months.Use heroin
Fail to answer Bail
Granted (2 charges)On each charge:
1 month imprisonment.
Concurrent.
Effective total state term imposed is 6 months.Forge prescription for drug of dependence
Utter forged prescription for drug
TheftAggregate 3 months imprisonment.
Concurrent.
Effective total state term imposed is 6 months.20 April 2000
Dandenong Magistrates’ Court
Use heroin (2 charges)
Traffick heroinAggregate 5 months imprisonment.
Concurrent.
To be served by way of an intensive correction order.7 May 2001
Melbourne Magistrates’ Court
Phone police car
Breach re 20/04/2000
Use Heroin (2 charges)
Traffick HeroinBreach of intensive correction order, order cancelled, to serve unexpired portion 143 days.
7 May 2001
Melbourne Magistrates’ Court
Burglary
Aggregate 5 months imprisonment.
Concurrent.
Part concurrent with other state sentences imposed on this day.
Concurrent portion of sentence is 3 months.
Pay compensation $2,000.00.5 April 2001[35]
Theft (2 charges)
Burglary
Obtain property by deception
Fail to answer bail
Attempt theft
Resist police
Assault police/person
Assisting police
State false name when requested
State false address when requestedAggregate 5 months imprisonment.
Concurrent.
Part concurrent with other state sentences imposed on this day.
Concurrent portion of sentence is 3 months.
Breach re 20/04/2000
Use heroin (2 charges)
Traffick heroinBreach of intensive correction order.
Order cancelled.
To serve unexpired portion 143 days.14 August 2002
Dandenong Magistrates’ Court
Traffick heroin (3 charges)
Aggregate 5 months imprisonment.
Concurrent.
To be served by way of an intensive correction order.Possess heroin
Convicted and discharged.
6 February 2003
Dandenong Magistrates’ Court
Possess Drug of Dependence (Traffick)
12 months imprisonment.
Concurrent.
Effective total State term imposed is 1 year.
Time held in custody, 7 days, reckoned as a period of imprisonment served under this sentence.
Cumulative upon other State sentences imposed this day.
Non-parole period fixed at 6 months.
The intended effective sentence is 133 days re this case.
Total cumulative sentence is 133 days plus 12 months with an effective parole period of 133 days plus 6 monthsPossess Drug of Dependence
12 months imprisonment.
Concurrent.
Effective total State term imposed is 1 year.
Time held in custody, 7 days, reckoned as a period of imprisonment served under this sentence.
Cumulative upon other State sentences imposed this day.
Non-parole period fixed at 6 months.
The intended effective sentence is 133 days re this case.
Total cumulative sentence is 133 days plus 12 months with an effective parole period of 133 days plus 6 monthsUse Heroin
6 months as aforesaid.
1 month imprisonment.
Concurrent.
As above27 February 2003
Melbourne County Court
Appeal re 06/02/2003
Traffick heroin (3 charges)Aggregate 5 months imprisonment.
Concurrent.
To be served by way of an intensive correction order.
Effective from 14/08/02.Appeal re 06/02/2003
Use heroinAppeal allowed, Order of Magistrates’ Court set aside.
14 days imprisonment concurrent.Appeal re 06/02/2003
Possess drug of dependence (Traffick)Appeal allowed, Order of Magistrates’ Court set aside
6 months, 2 months imprisonment.
Suspended for 4 months under section 27 of the Sentencing Act 1991.
Declare 29 days have been served.15 June 2004
Dandenong Magistrates’ Court
Theft
Knowingly deal/conceal proceeds of crime (3 charges)
Fail to answer Bail Granted (3 charges)
Use heroinAggregate 42 days imprisonment.
Concurrent.
Sentence is partially suspended under s 27 of the Sentencing Act 1991 for 6 months
Term to be served is 5 days.Knowingly deal/conceal proceeds of crime
Aggregate 42 days imprisonment.
Concurrent.
Sentence is partially suspended under s 27 of the Sentencing Act 1991 for 6 months
Term to be served is 5 days.Possess drug of dependence (not named)
Possess heroinAggregate 42 days imprisonment.
Concurrent.
Sentence is partially suspended under s 27 of the Sentencing Act 1991 for 6 months
Term to be served is 5 days.14 June 2005
Dandenong Magistrates’ Court
Theft from shop (shopsteal)
Deal property suspected proceed of crimeOn each charge:
Aggregate 4 months imprisonment.
Concurrent.
Effective total state term imposed is 4 months.27 June 2005
Melbourne Magistrates’ Court
Breach re 03/04/1998
Fail to stop vehicle after an accident.
Fail report to police owner not present
Drive in breach of permit condition
Learner drive without full licenseeIn default of payment of $450 to be imprisoned for 5 days.
23 September 2005
Melbourne Magistrates’ Court
Handle/receive/retention stolen goods
14 days imprisonment.
Concurrent.
Effective total state term imposed is 14 days concurrent with state sentences presently being served and imposed prior to this day.
Concurrent with other state sentences imposed this day.Obtain property by deception
14 days imprisonment.
Concurrent.
Effective total state term imposed is 14 days concurrent with state sentences presently being served and imposed prior to this day.
Concurrent with other state sentences imposed this day.Pay compensation $500.00.
9 February 2006
Dandenong Magistrates’ Court
Habitually consort with reputed thieves
With conviction, adjourned to 09/02/2007.
On 15 June 2007, the Department of Immigration and Citizenship (DIC) wrote a letter to MXFR. DIC sent the letter to the address where he had lived with his former long term partner and their children. The letter advised him that he had come to the notice of DIC as he had a substantial criminal record or because of his past or present criminal or general conduct. His behaviour had brought him within the provisions of the Migration Act. DIC explained that s 501(2) states that the Minister may cancel a vis that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that he or she does so. The character test is defined in s 501(6). A copy of s 501 was attached and DIC strongly recommended that MXFR read it.
Although his visa was not being considered for cancellation at that time, DIC told MXFR that:
:… the purpose of this letter is to counsel you that any other conduct on your behalf that comes within the scope of subsection 501(6) could result in the consideration of the cancellation of your visa or refusal of any future visa application under section 501 of the Act. Please note that the consequences of visa cancellation under section 501 of the Act may include your removal from Australia and, in certain cases, you may not be able to return to Australia.”[36]
On 5 December 2007, DIC wrote a further letter in similar terms to MXFR but sent it to an address different from that to which it sent the previous letter.[37]
31 March 2008
Dandenong Magistrates’ Court
Recklessly cause injury.
3 months imprisonment.
Basic sentence.
Effective local state term imposed is 6 months.Intentionally damage property
1 month imprisonment.
Concurrent.
Effective local state term imposed is 6 months.Fail to answer Bail Granted (3 charges)
On each charge:
7 days imprisonment.
Effective local state term imposed is 6 months.Burglary
3 months imprisonment.
Cumulative.
Effective local state term imposed is 6 months.
Pay compensation $900.00.Theft
3 months imprisonment.
Concurrent.
Effective local state term imposed is 6 months.Possess drug of dependence (not named)
With conviction, fined $300.
Possess drug of dependence – prescription drug
With conviction, fined $100.00.
21 May 2010
Melbourne Magistrates’ Court
31 December 2008[38]
Theft
Use cannabis
Attempted theft from motor vehicle (2 charges)
Fail to answer Bail Granted (3 charges)
Assault with instrument
Introduce drug into remand centreAggregate 90 days imprisonment.
Concurrent.
Effective total state term imposed is 90 days.Possess cannabis
Possess heroinOn each charge:
aggregate 90 days imprisonment.
Concurrent.
Effective total state term imposed is 90 days.25 October 2011
Dandenong Magistrates’ Court
Possess drug of dependence – prescription drug
Aggravated burglaryOn each charge:
Aggregate 24 months imprisonment.
Concurrent.
Sentence of imprisonment to be served by way of a drug treatment order under s 18Z of the Sentencing Act 1991.Theft (5 charges)
Fail to answer bail
Burglary (3 charges)
Criminal damage (intent damage/destroy)
Unlawful assault
Aggravated burglary – person present
Theft – from shop (shopsteal)
Wilful damage property
Without authority/excuse enter private placeAggregate 24 months imprisonment.
Concurrent.
Time held in custody, 390 days.
Sentence of imprisonment to be served by way of a drug treatment order under s 18Z of the Sentencing Act 1991.Drunk in a public place
With conviction, fined $50.
Possess anything without authority – police gaol
With conviction, fined $100.00
DIC wrote to MXFR on 8 August 2012 advising him that it had advised him in a letter dated 20 January 2012 that his visa might be liable for cancellation under s 501 of the Migration Act on character grounds. The letter was addressed to his lawyer at the time as a person who was an authorised recipient for MXFR. It continued:
“After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds at this time. Your current Class BB, Subclass 155 Five Year Resident Return (Permanent) visa will continue to provide you with permission to remain in Australia. However the delegate decided that you are to be given the following formal warning:
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily again you if your case is reconsidered.”[39]
22 August 2012
Dandenong Magistrates’ Court
Variation re 25/10/2011
Possess drug of dependence
Theft (5 charges)
Fail to answer bail
Burglary (3 charges)
Criminal damage (intent damage/destroy)
Unlawful assault
Aggravated burglary – person present
Theft – from shop (shopsteal)
Wilful damage property
Without authority/excuse enter private place18 days imprisonment.
Concurrent.
Effective total state term imposed is 18 days sentence of imprisonment to be served by way of a drug treatment order under s 18Z of the Sentencing Act 1991.
Total custodial part now activated is 18 days.
Total unpaid community work imposed 80 hours.
Total unpaid community work completed 32 hours.
Activate/deactivate custodial part of order.20 December 2012
Dandenong Magistrates’ Court
Variation re 22/08/2012
Possess drug of dependence
Theft (5 charges)
Fail to answer bail
Burglary (3 charges)
Criminal damage (intent damage/destroy)
Unlawful assault
Aggravated burglary – person present
Theft – from shop (shopsteal)
Wilful damage property
Without authority/excuse enter private place15 days imprisonment.
Concurrent.
Effective total state term imposed is 15 days sentence of imprisonment to be served by way of a drug treatment order under s 18Z of the Sentencing Act 1991.
Days deactivated this hearing is 2 days.
Total custodial part now activated is 33 days.
Total unpaid community work imposed 112 hours.
Total unpaid community work completed 64 hours.
Activate/deactivate custodial part of order.
Vary dto (drug treatment order). Program conditions were to submit to drug testing as directed, attend vocational, educational and employment programs as directed, submit to medical, psychiatric and psychological treatments as direct, to attend Drug Court and not to commit another offence.25 March 2013
Dandenong Magistrates’ Court
Variation re 20/12/2012
Possess drug of dependence
Theft (5 charges)
Fail to answer bail
Burglary (3 charges)
Criminal damage (intent damage/destroy)
Unlawful assault
Aggravated burglary – person present
Theft – from shop (shopsteal)
Wilful damage property
Without authority/excuse enter private place15 days imprisonment.
Concurrent.
Effective total state term imposed is 15 days sentence of imprisonment to be served by way of a drug treatment order under s 18Z of the Sentencing Act 1991.
Days deactivated this hearing is 4 days.
Total custodial part now activated is 53 days.
Total unpaid community work imposed 112 hours.
Total unpaid community work completed 64 hours.
Activate/deactivate custodial part of order..9 April 2013
Dandenong Magistrates’ Court
Intentionally cause injury.
4 months imprisonment.
Base sentence.
Effective total state term imposed is 1 year 4 months cumulative upon other state sentences imposed this day.7 March 2013[40]
Aggravated burglary – person present theft
Aggregate 12 months imprisonment.
Cumulative.
Effective total state term imposed is 1 year 4 months cumulative upon other state sentences imposed this day.Act prejudicially to security/good order/management gaol.
Convicted and discharged.
9 April 2013
Dandenong Magistrates’ Court
Breach re 25/03/2013
Possess drug of dependence
Theft (5 charges)
Fail to answer bail
Burglary (3 charges)
Criminal damage (intent damage/destroy)
Unlawful assault
Aggravated burglary – person present
Theft – from shop (shopsteal)
Wilful damage property
Without authority/excuse enter private placeBreach of Drug Treatment Order. Order cancelled.
To serve unexpired portion of 197 days.
Cancel treatment and supervision and activate custodial order.17 July 2013
Melbourne County Court
Breach re 25/03/2013
Possess drug of dependence
Theft (5 charges)
Fail to answer bail
Burglary (3 charges)
Criminal damage (intent damage/destroy)
Unlawful assault
Aggravated burglary – person present
Theft – from shop (shopsteal)
Wilful damage property
Without authority/excuse enter private placeBreach of drug treatment order of 25.3.13. Order cancelled. To serve unexpired portion of 3 months.
Cancel treatment and supervision and activate custodial order.7 August 2014
Melbourne County Court
7 March 2014
Aggravated burglary
4 years, 6 months imprisonment.
4 March 2014[41]
Without authority/excuse enter private place
Convicted and fined $100.00.
18 August 2014
Dandenong Magistrates’ Court
6-7 March 2014[42]
Burglary
Theft (2 charges)
Theft of a motor vehicleAggregate 6 months imprisonment.
Concurrent.
Effective total state term imposed is 6 months.26 February 2015
Dandenong Magistrates’ Court
4 March 2014[43]
Burglary
Theft (2 charges)Aggregate 8 months imprisonment.
Concurrent.
Effective total state term imposed is 8 months concurrent with state sentences presently being served and imposed prior to this day.On 11 November 2016, MXFR given notice of the cancellation of his visa under s 501(3A) of the Migration Act.[44]
Submitted request for revocation of mandatory visa cancellation under s 501(3A) of the Migration Act. The request was dated 25 November 2016.[45]
On 19 March 2018, MXFR given notice of the cancellation of his visa under s 501(3A) of the Migration Act for the second time.[46]
Submitted request for revocation of mandatory visa cancellation under s 501(3A) of the Migration Act. The request was dated 25 November 2016.[47]
B. Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No. 79 states:
“… 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).”
B.1 Consideration
MXFR’s ties with Australia date from 1990 when he came to Australia with two of his brothers and all three lived with their uncle and his wife. Initially, MXFR felt that it was a happy household. He was happy and attending school as were his brothers. The family unit fell apart after they moved from Perth to Melbourne. I do not know the reasons for that apart from MXFR’s understanding that his uncle’s wife did not want them. The unfortunate outcome of that is that he and his younger brother were left without a permanent home and effectively couch surfed while still attending school.
MXFR’s history of drug use and offending have left him with only a small number of ties in Australia. His older brother lives in Australia but he has not had contact with him. He has resumed contact with his partner, Ms P, and with his children. The level of their communication has increased as the relationship between MXFR and Ms P has renewed in response to the insights that he has gained into himself through the course work he has undertaken in prison. Ms P and their two older sons have noticed the change in him and are anxious to resume and develop a much closer relationship than they have had in recent times. On the basis of the evidence of those sons, their mother and of a friend whom I will call Ms A, I find that the boys and their father enjoyed a much closer relationship when they were younger. When he was home, he was always engaged in family life, taking the children to school, cleaning and maintaining the yard. He would play with them and read to them.
The other close contact that MXFR has in Australia is with Ms A. MXFR and Ms A first met through their siblings when they were much younger. They reconnected in the early 2000s when MXFR and Ms P had met and were in a relationship. The three of them would often spend time together and their children were close. They all took their children out to dinner, on outings and visiting family friends. Ms A gave evidence that she and her son lived with MXFR and Ms P and their children for about ten months when she was separated from her son’s father. She spoke about the care and attention that MXFR showed her son and helped him to deal with his anger about his parents’ separation. Ms A’s son was aged 9½ years when she separated from his father but MXFR’s support was particularly valuable when he was about 12 years of age and again when he was about 14 years. MXFR made her son feel better about himself.
Ms A holds a responsible managerial position in a company in the security industry. She said that she has spoken with MXFR on many occasions about his offending but did not visit him while he was in prison on this last occasion. A chronic illness prevented her from visiting him in prison but she spoke with him on the telephone and her contact in that way has been more frequent since she has been in immigration detention. Illness prevented her from visiting him when he was held in immigration detention in Melbourne.
I find that the bond that Ms A has with MXFR and with Ms P is strong. As she said in her letter dated 18 December 2018, MXFR’s leaving Australia would be very hard for her. He has always been there for her in her hard times and he has helped her, her children and her parents whenever they needed it. If he is permitted to remain in Australia, Ms A said that she will see him on weekends and, as work permits, she will call in during the week a couple of times or once a fortnight. I also find that MXFR’s leaving Australia would be very hard for Ms P who looks to him to help her with caring for their son and her daughter as well as bringing some respite for their eldest son and some balance and guidance for their second son.
C. Impact on Australian business interests
Paragraph 14.3(1) of Direction No. 79 states:
“Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
C.1 Consideration
The cancellation of MXFR’s visa and the non-revocation of that cancellation would not have any particular or quantifiable effect on Australian business interests. He belongs to a part of the workforce that can turn its hands to a range of activities but MXFR has taken advantage of his most recent period of incarceration to improve his range of skills. For all that, it remains the fact that whether he remains in or leaves Australia, will have no impact on Australian business interests.
D. Impact on victims
At paragraph 14.4(1), Direction No. 79 states:
“Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
D.1 Consideration
There are various victims of MXFR’s offending. Even though it could be said to be by his own actions, he himself is a victim in that he has taken himself to a level where he feels that he has not made a contribution to the community and his looked down upon. Ms Tran is a victim as is Ms P’s ex-partner. I do not have any evidence of any impact that a decision not to revoke the cancellation would have on them.
MXFR’s wife and children are victims. His children are victims when regard is had to those periods when he was in prison because of his offending or because he was not functioning as he should because of his drug-taking. I do have evidence about the effect on them as Ms P and their two elder children did give evidence. They were all of the same mind that it was extremely important that MXFR be allowed to stay in Australia so that he could become part of the family once more. It would relieve Ms P from part of the burden she carries as the mother of two young children. Her oldest son is a great help to her but he is currently trying to shoulder the responsibility for the family that should be borne by his father while he works long hours to learn his trade. Ms P’s second son recognises the difficulties that his mother faces but he is living away from home and concerned with his own issues. He sees his father’s return to the family as a matter of great importance to him and to his siblings. If his father is back in his life, MXFR’s second son sees him as helping him to get back on to a straight and narrow path. If his father were to return, he also would return to the home and resume the close relationship with his father that he had enjoyed as a child. Both Ms P and her two elder sons spoke of the importance of having MXFR back in the family.
If his RR visa continues to be cancelled, his family will not have an opportunity to see whether they can become a strong and renewed family unit now that MXFR has come to a realisation about himself and his past behaviour. Although his second son said that he would move to Vietnam if his father had to return there, Ms P said that she would not and his eldest son gave no indication that he was prepared to do that. His removal to Vietnam would foreclose any opportunity for the family unit to re-establish itself in an environment in which MXFR and Ms P have developed a clearer view of their relationship and a basis for continuing it.
E. Extent of impediments if removed from Australia/not permitted to return
Direction No. 79 also states in paragraph 14.5(1) that:
“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.”
E.1 Consideration
MXFR said that his mother still lives in Vietnam where she is cared for by his youngest brother. His other siblings are scattered over Vietnam and he does not know where they live. He has had some contact with his mother and some of his siblings by telephone and/or some form of communication by way of the internet. His Vietnamese family have to use the equivalent of an internet café in order to communicate with him and their communication is necessarily infrequent. I am satisfied that it is unlikely that any of his family members would be able to offer him financial help. Whether they could offer any form of accommodation or sustenance is not known. I have not been given any information about any social, medical or economic support that might be available to MXFR. He would not be impeded by language barriers were he to return to Vietnam but, simply because he was born in Vietnam and grew up there until he was 12 years of age does not mean that he would not face cultural barriers. Changes in culture may not be apparent to those who live in a community continuously throughout the years. For one who left as a 12 year old and who returns 32 years later, the cultural changes may well be significant.
CONCLUSION
While a predecessor of Direction No. 79, Direction No. 55, clearly put the future harm to the Australian community and the risk of harm’s occurring as the fulcrum around which the other considerations were to be weighed in the balance, the removal of a clear statement to that effect in either Direction No. 65 or now Direction No. 79 leaves the fulcrum to be drawn by implication. When account is taken of the considerations in Part C together with the Preamble to the Direction set out in paragraph 6, it is clear that the Minister intends that a decision-maker undertake a balancing exercise having regard to all of the considerations that he requires to be addressed and having regard to any other relevant factors. Generally, the primary considerations are to be give greater weight than those described as “other considerations”.
MXFR came to Australia to live permanently at the age of 15 years. He was not a young child but he was a teenager who had been put on a boat by his father and sent to Hong Kong by way of China. The trip was not made on a cruise ship. Together with his brothers and his uncle, he had to beg for food. By the time he came to Australia, he had experienced more than a child of his years should have experienced. That does not excuse his behaviour for there are many others who have fled their countries and finally made their way to Australia without losing their way on the path of life. He did not lose his way on that path because of his experiences on the boat or in Hong Kong but he did start to lose it when he was just 16 years of age and he was required to make his own way in life without a permanent home or support. His older brother left them to their own devices and he turned to alcohol and marijuana.
There will be those who do not turn to alcohol or drugs but MXFR did. This is reflected in his list of convictions. It is not a list to be proud of and MXFR is deeply ashamed of it. He has, however, not simply expressed contrition and a wish to do better but has demonstrated that he can maintain a drug free life. He has done so in the confines of a prison and immigration detention centre rather than facing the strains that will be imposed upon him in the community but those environments bring their own strains and pressures. His demonstration of maintaining his determination in those more confined environments bodes well for his doing so when he has the support of his partner and his sons and her daughter.
His younger children will benefit greatly from having him back in their lives. Ms P will also be a significant beneficiary of his emotional and physical support in caring for the children. Their relationship has been one of breaks but never longer than a year at a time. His drug taking has been a cause of those breaks but Ms P and MXFR both look forward to a far better relationship now that he is drug free. Their second son will also benefit greatly. This will be not just a second chance for MXFR to make good on the work he has done to date but a second chance for his family to stop the slide into being a dysfunctional family with another generation facing the life that MXFR has led until the last three years or so.
DECISION
For the reasons I have given, I:
(1)set aside the decision made by a delegate of the Minister on 9 January 2019 refusing under s 501CA(4) of the Migration Act 1958 to revoke the cancellation of MXFR’s Class BB, Subclass 155 Five Year Resident Return visa on 10 November 2016 under s 501(3A); and
(2)substitute a decision that the cancellation of MXFR’s Class BB, Subclass 155 Five Year Resident Return visa under s 501(3A) be revoked under s 501CA(4).
The practical effect is that MXFR continues to hold a visa entitling him to remain in Australia.
| I certify that the preceding one hundred and fifty [150] paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie |
.............[sgd].....................................................
Personal Assistant
Dated: 5 March 2019
| Dates of hearing: | 25, 26 and 29 February 2019 |
| Counsel for the Applicant: Solicitor for the Applicant: | Ms Shanta Martin Ms Karen Richards, Refugee Legal |
| Solicitor for the Respondent: | Mr Tal Aviram, Clayton Utz |
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