Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2019] AATA 4424
•31 October 2019
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 4424 (31 October 2019)
Division:GENERAL DIVISION
File Number: 2019/4509
Re:Khadam Rehman
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs And
RESPONDENT
DECISION
Tribunal:Member S Burford
Date:31 October 2019
Place:Perth
The Reviewable Decision, being the decision of the Respondent’s delegate dated
19 July 2019 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed...................................[sgd]......................................
Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – Direction No. 79 – jurisdiction where application filed prior to proper notification – primary and other considerations – protection of the Australian community – expectations of the Australian community – international non-refoulement obligations – strength, nature and duration of ties to Australia – impact on victim – extent of impediments if returned to the Philippines – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499, 499(1), 499(2A), 500, 500(1)(ba), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(e), 501(7), 501CA, 501CA(4), 501G(1)
Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth)
CASES
Afu and Minister for Home Affairs [2018] FCA 1311
Ali v Minister for Immigration and Border Protection [2018] FCA 650
AXT19 v Minister for Home Affairs [2019] FCA 1423
Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
Degerli v Minister for Immigration and Ethnic Affairs [1981] FCA 222
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hall v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 387
HSKJ v Minister for Immigration and Border Protection (2018) 163 ALD 261
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Jagroop v Minister for Immigration and Border Protection and Anor (2016) 241 FCR 461
Kumeroa and Minister for Home Affairs [2018] AATA 3744
Minister for Ethnic Affairs v Gungor (1982) 42 ALR 209
Minister for Home Affairs v HSKJ (2018) 363 ALR 325
Minister for Immigration and Border Protection v Le [2016] 244 FCR 56
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
NDBR v Minister for Home Affairs [2019] FCA 1631
Nigro v Secretary to the Department of Justice [2013] 304 ALR 535
Omar v Minister for Home Affairs [2019] FCA 279
Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1710
Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Toki and Minister for Home Affairs (Migration) [2019] AATA 742
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 65 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (20 December 2018)
Explanatory Memorandum, Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth)
REASONS FOR DECISION
Member S Burford
31 October 2019
ISSUE
This is an application for review of a decision made on 19 July 2019 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) refusing to revoke the mandatory cancellation of the Applicant’s Class BS, Subclass 801 (Partner) visa (the visa) (the Reviewable Decision).
The visa was cancelled under s 501(3A) of the Act on the basis that the Applicant does not pass the character test as he had a substantial criminal record and was serving a sentence of imprisonment for an offence against a law of the Commonwealth or a State (the Cancellation Decision).
THE ISSUE
The issue for determination is whether there is another reason why the mandatory cancellation of the visa under s 501(3A) of the Act should be revoked under
s 501CA(4)(b)(ii) of the Act.
JURISDICTION
This application is made pursuant to s 500(1)(ba) of the Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent (the Delegate) under s 501CA(4) of the Act not to revoke a decision to mandatorily cancel a visa.
The Reviewable Decision, dated 19 July 2019, was emailed to the Applicant’s registered migration agent on 23 July 2019 under cover of a letter dated 23 July 2019 (R1, G41, G2 and G3). The letter indicated that the letter was “hand delivered”, however, the email correspondence contained on the file indicates that it was emailed to the Applicant’s representative and then delivered by him to the Applicant at Yongah Hill Immigration Detention Centre (R1, G40-G41). The Respondent submitted that the Applicant did not receive two copies of the documents required to be provided pursuant to s 501G(2)(c) until 8 August 2019. The parties agreed the Applicant was not validly notified of the decision until 8 August 2019. On the basis of that date the parties agreed to a revised timetable for progression of the application.
As both parties accepted before the Tribunal that the second copy of documents was served on the Applicant on 8 August 2019 consistent with notification requirements in
s 501G (see R1, G41 and G42; R3 at [7]), the Tribunal finds that the Applicant was notified of the decision on 8 August 2019.In response to the (purported) notice, the Applicant lodged his application for review in the Tribunal on 26 July 2019 (R1, G1). The Applicant is in Yongah Hill Immigration Detention Centre and is in the migration zone.
Following the hearing, on 25 October 2019 the Tribunal directed the parties to file submissions on the following issue:
The issue is whether the Tribunal has jurisdiction in relation to the application having regard to s 500(6B) of the Migration Act 1958 (the Migration Act) and the fact that the application was lodged with the Tribunal before the Applicant was properly notified in accordance with s 501G of the Migration Act.
Subsection 500(6B) provides as follows:
If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7),(8),(9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.
The issue that concerned the Tribunal was whether the use of the phrase “within 9 days after the day on which the person was notified of the decision” meant that the Tribunal did not have jurisdiction as the Applicant had lodged the application with the Tribunal before he was properly notified of the decision in accordance with s 501G.
Both the Applicant and the Respondent provided timely written submissions on
28 October 2019 addressing “the issue”, for which the Tribunal was appreciative.[1] Both parties submitted that the application was validly made and that the Tribunal had jurisdiction in relation to the application.
[1] Applicant’s Submissions on Jurisdiction dated 28 October 2019 (Applicant’s Submissions on Jurisdiction); and Respondent’s Submissions on Jurisdiction dated 28 October 2018 (Respondent’s Submissions on Jurisdiction).
The Respondent accepted that the purported notice on 23 July 2019 was not in accordance with s 501G of the Act because that notice was not accompanied by two copies of the documents specified in s 501G(2) (the G-documents) (Respondent’s Submissions on Jurisdiction, page 1 [at 3]). The Applicant was properly notified on
8 August 2019 when the Applicant received two copies of the G-documents (R3, at [7]).
On 15 August 2019 the Respondent notified the Applicant and the Tribunal by email of the delay in notification in accordance with s 501G. On 15 August 2019 the Applicant sent an email to the Tribunal and the Respondent in respect of the concession that valid notification was effected on 8 August 2019 and proposing a revised timetable for programming the application to a hearing (see attachment to Respondent’s Submissions on Jurisdiction) .
The Respondent submitted that, pursuant to s 501G(4) of the Act, the failure to comply with s 501G(3) did not invalidate the decision. However, there was no “notification” under that provision with the result that time did not begin to run in respect of s 500(6B) until that notification was properly effected.[2] Accordingly, the relevant time limits contained in s 500 including ss 500(6B) and (6L) of the Act did not commence to run until 8 August 2019.[3]
[2] See Wilson v Minister for Immigration and Citizenship [2012] FCA 1241 at [22].
[3] See Ruffell Pty Ltd and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 356 at [30].
Section 500 was introduced into the Act by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth).
As noted by the High Court in Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296 [58] (Uelese), the apparent purpose was to prevent applicants from manipulating the system in an attempt to delay deportation decisions.[4] In this regard, the Explanatory Memorandum to the amending legislation stated:[5]These amendments are necessary in order to expedite review of decisions made by a delegate of the Minister under the new character provisions. The amendments balance the Government’s concern to expedite review of character decisions against the need to ensure that the AAT has relevant information and sufficient time to properly review a particular decision to refuse to grant or to cancel a visa on the basis of a person’s character.
[4] Uelese v Minister for Immigration and Border Protection (2016) 248 FCR at [58].
[5] Item 21, Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998 (No.2) (Cth).
This purpose was highlighted in the second reading speech for that Bill, where Senator Kemp stated:
This bill introduces more streamlined procedures for dealing with such cases. It also introduces a strict 84 day time limit for the conduct of merits review cases involving character where the non-citizen is in Australia.
We will ensure that all relevant documentation necessary for the AAT to determine the matter will be provided quickly, at the outset of the process. The amendments will establish a new process where the Department will be required to provide two copies of the relevant documentation to the applicant at the time of the decision. Then, at the time the appeal is made, the applicant only has to lodge one copy of the documentation with the AAT. The need for strict time limits is consistent with other review processes in the immigration area where delay can prejudice both the applicant and the community.
The provision will result in a more streamlined process, with the applicant, the Department and the AAT using less time and resources to obtain the necessary documentation. Currently much effort is devoted to, and delay arises in, pursuing papers and documentation from non-citizens and the Department.
The strict time limit will prevent non-citizens from further attempts to delay the resolution of their case.[6]
(Emphasis added.)
[6] Commonwealth of Australia, Parliamentary Debates: Second Reading Speech, the Hon Dr David Kemp MP, 11 November 1998 (at page 59).
The Respondent drew the Tribunal’s attention to the decision of the Federal Court in
Hall v Minister for Immigration and Multicultural Affairs(2000) 97 FCR 387 in support of the contention that the lodging of the application prior to proper notification did not affect the validity of the application. In Hall, the Federal Court set aside a decision where the Tribunal found that it did not have a valid application before it. The application had been lodged within the prescribed nine day period but, contrary to s 501(6C), the application was not accompanied by the G-documents. The Tribunal held that a failure to comply with s 500(6C) resulted in the Tribunal not having a valid application before it. However, the Federal Court (at [13]) did not accept that a failure to comply with s 500(6C) resulted in the application for review being invalid as “[n]o purpose would be served by invalidating an application for a failure to provide documents which the Tribunal can obtain in any event”.
The Federal Court expressed the view that (at [16]):
It is difficult to believe that Parliament intended that the non-citizen should lose his or her right to review the cancellation, merely because certain copy documents that remain in the possession of the Minister had not been lodged.
The Respondent submitted, and the Tribunal accepts, that it cannot be the intention of Parliament that an applicant who has sought review of a decision (which is otherwise valid) should lose that right because unbeknown to the applicant that notification was not completed until after they had lodged their application for review. In the Tribunal’s view, such a construction would result in an injustice to the Applicant.
The Respondent also submitted that in Hall the Federal Court stated at [8] that “an application to review that is lodged beyond the nine day period specified by s 500(6B) is of no effect and cannot be considered by the Tribunal [emphasis added]”. The use of the word “beyond” indicates that the nine day period represents an outer limit for the lodging of a valid application for review.
In Uelese, the High Court considered the operation of s 500(6H) and found that the provisions in s 500 should not be given an operation beyond that warranted by the statutory language (at [47]-[51]). The High Court determined that the limited statutory purpose of ensuring proceedings were dealt with expeditiously did not confine the Tribunal’s power to adjourn a hearing to accommodate the late provision of information.[7]
[7] See also Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1710 at [80]-[81].
The Respondent submitted that the initial failure to comply with the requirements of
s 501G did not invalidate the Reviewable Decision, which is subject to this application for review. That is specifically contemplated by the legislation. As noted above, notification was deemed to be “completed” once the G-documents were served. That enlivened the Tribunal’s jurisdiction in respect of the application which was before it. The Reviewable Decision remained the same.
The statutory purpose of s 500(6B) is, as with those provisions considered in Uelese and Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1710, designed to ensure that applications for review are lodged without delay and that reviews by the Tribunal are conducted expeditiously. Adopting the approach of the High Court in Uelese and the Federal Court in Hill, the purpose of s 500 is not defeated by the Tribunal reviewing an application which was in fact lodged before notification has been completed in circumstances where the s 501G requirements were not initially complied with by the Minister, once notification has been properly made. The purpose of ensuring expeditious determination of applications for review under s 500 of the Act by requiring an application be lodged within nine days of notification to an applicant is not compromised by accepting that the preclusory effect of the time limit for filing applications is confined to applications filed more than nine days after the decision is notified.[8]
[8] Uelese at [59]
The Respondent submitted that the statutory purpose is reinforced where an applicant is not required to file a fresh application for review because of any delay by the Minister in complying with notification requirements. While the Tribunal is not persuaded the statutory purpose is necessarily reinforced where an applicant is not required to file a fresh application, the Tribunal does accept that it is consistent with the statutory purpose of preventing delay that its jurisdiction may be enlivened with respect to an application, validly made but for a failure by the Respondent to properly notify, once notification has been completed in compliance with statutory requirements.
Further, as the High Court noted in Uelese, a construction which appears “irrational or unjust” should be avoided where the statutory purpose does not require that construction.[9] Having regard to the statutory purpose of the nine day limit and the injustice to the Applicant which would result from an overly prescriptive construction of the provision in
s 500(6B), the Tribunal considers that s 500(6B) should be read such than an application lodged after a reviewable decision is made but prior to notification being complete does not offend the nine day time limit. Accordingly the Tribunal finds that the Applicant lodged his application for review consistent with the requirements of s 500(6B) of the Act.[9] Uelese at [45] citing Legal Services Board v Gillespie-Jones (2013) 249 CLR 493.
The Tribunal finds that the application for review was validly made and that the Tribunal’s jurisdiction was enlivened once notification was completed in compliance with s 501G.
The Respondent submitted that in the alternative, it would be permissible for the Tribunal to treat the Applicant’s email of 15 August 2019 as an application for review.[10] The Tribunal accepts that it may be open for the Tribunal to treat the Applicant’s email of
15 August 2019 as an application for review as that email sought the Tribunal’s agreement to a revised programming schedule of Directions to progress the application for review to a hearing. However, as the Tribunal has found that the original application was validly made and the Tribunal’s jurisdiction was enlivened once notification was made in accordance with s 501G, it is not necessary for the Tribunal to rely on the alternative basis for finding it has jurisdiction in relation to the application.[10] See Mahia and Minister for Immigration and Citizenship [2011] AATA 789 at [7] and [16] as an example of the Tribunal’s flexibility in respect of what constitutes an “application for review”.
The Tribunal is satisfied that the application was lodged within time and that the Tribunal has jurisdiction to review the Reviewable Decision.
Further, pursuant to s 500(6L) of the Act, the Tribunal must comply with the 84-day timeframe for handing down a decision in this matter. Accordingly, the decision must be handed down by 31 October 2019.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on 16 October 2019. The Applicant appeared in person and was represented by Mr Lopez who is a registered migration agent. The Respondent was represented by Mr Gerrard from the Australian Government Solicitor.
The Tribunal was assisted at the hearing by an accredited interpreter in the English and Tagalog languages.
The Applicant gave oral evidence and was cross-examined. Both the Applicant and the Respondent’s representatives made written and oral submissions. The Tribunal notes that the Applicant only required limited assistance from the interpreter during the hearing.
The Applicant called several witnesses in support of his application. In addition to the Applicant, the following witnesses appeared before the Tribunal:
·the Applicant’s mother, Ms Barbara Percera Butler; and
·the Applicant’s step-father, Mr Laurence Noel Butler.
Each of these witnesses gave oral evidence and were cross-examined.
The Tribunal admitted the following documents into evidence at the hearing:
·Exhibit A1 - Applicant’s submissions received on 17 September 2019, including Annexures A – W (see Annexure to this decision);
·Exhibit A2 – Applicant’s Reply to the Respondent’s Statement of Facts, Issues and Contentions (SFIC), dated 11 October 2019;
·Exhibit A3 – Letter from Laurence Noel Butler, dated 22 August 2016, received on 11 October 2019;
·Exhibit A4 – Letter from Dr Satish Devata, dated 26 July 2019;
·Exhibit A5
– Accu-Check Extra records for the Applicant, received on
11 October 2019;
·Exhibit A6 - prescription for the Applicant, received on 11 October 2019;
·Exhibit A7 - Patient Health Summary for Mrs Barbara Percera Butler, printed on 26 September 2019;
·Exhibit A8 - Liver function test request for Mrs Barbara Percera Butler, received on 11 October 2019;
·Exhibit R1 – ‘G Documents’ submitted by the Respondent 16 August 2019 (G1-G42);
·Exhibit R2 – Supplementary Relevant Documents submitted by the Respondent on 7 October 2019 (SG1-SG3); and
·Exhibit R3 – Respondent’s SFIC, dated 4 October 2019.
The Tribunal notes that at the hearing the Applicant was granted leave to file supplementary information following the hearing in relation to the report of the clinical psychologist, consistent with the Tribunal’s “Guideline: Persons Giving Expert and Opinion Evidence”, 30 June 2015 (the Guideline). The Respondent had no objection to the Applicant providing this additional information following the hearing. Following the hearing a cover sheet for the psychological report including a declaration signed by the clinical psychologist was provided.
Further written submissions dealing with an issue concerning the Tribunal’s jurisdiction were requested by the Tribunal late on 25 October 2019 and were provided by the Applicant and Respondent on 28 October 2019. This issue and the parties’ submissions are dealt with above.
BACKGROUND
The Applicant is a citizen of the Philippines who was born in 1991. He arrived in Australia in 2008 at the age of 16 with his mother and three siblings following his mother’s marriage to his now step-father, Mr Butler.
On 29 September 2017 the Applicant received the following convictions and sentences arising out of a series of incidents which occurred on 11 June 2016 (R1, G6, page 30; G37, pages 114-115):
(a)With intent to harm, omitted to do or did an act which resulted in life, safety or health being endangered: sentenced to imprisonment for two years and six months.
(b)Breach of police order: sentenced to imprisonment for six months.
(c)Criminal damage or destruction of property: sentenced to imprisonment for one month.
The sentences for these offences were concurrent.
On 11 October 2017, the Applicant’s visa was cancelled under s 501(3A), on the basis that the Applicant had a substantial criminal record and was at that time serving a sentence of imprisonment.
The Applicant was notified by letter dated 11 October 2017 from the relevant Department that his visa was cancelled under s 501(3A) of the Act (the notification of cancellation letter) (R1, G37). The letter was delivered by hand to the Applicant at Casuarina Prison (R1, G37). The Tribunal notes the Applicant did not acknowledge receipt of that letter on the copy in evidence (R1, G31, page 113). However, the Applicant responded to that letter by email on 6 November 2017, via registered migration agent, requesting revocation of the decision (R1, G10; G11). Accordingly, the Tribunal finds the Applicant received the notification of cancellation letter.
The letter from the Department advised the Applicant that he could make representations about revoking the decision to cancel his visa (R1, G37). The Applicant made submissions to the Department including providing material and third-party statements in support of his request for revocation (R1, G10-G24).
The Department wrote again to the Applicant via his registered migration agent on
26 March 2019 (R1, G25). The content of the communication is not included in the material before the Tribunal however the email indicates this was a “natural justice letter” and the email response from the Applicant’s registered migration agent suggests it concerned Ministerial Direction No. 79 which was made on 20 December 2018 and commenced operation on 28 February 2019 (R1, G25). From the material before the Tribunal it is not clear whether there was any other intervening correspondence. In any event, the Applicant responded to the natural justice letter with further submissions and material supporting his request for revocation of the cancellation decision (R1, G25-34). Further material was submitted by the Applicant on 2 May 2019 (R1, G35).The Applicant made representations seeking revocation of the cancellation decision which were summarised by the delegate as follows (R1, G3, page 9):
·his mother, step-father and four siblings reside in Australia,
·his parents and his brother are Australian citizens,
·he was raised by nannies due to his parents working overseas,
·his mother brought him to Australia in 2008, for a better life and opportunities,
·he has studied English, has a Certificate I in Information Technology, and has completed [sic] Certificate II in Technical Engineering in Australia,
·he participated in community service through his church, through Filipino functions and services and playing basketball,
·he has an offer of accommodation and offers of support to guide him back into the community,
·he has Type 2 Diabetes and suffers from depression,
·he is very remorseful and deeply regretful for his offending,
·his victim, his step-father, has forgiven him and withdrawn the Restraining Order,
·he will not reoffend and has learnt a big lesson,
·he has no relations or contacts in the Philippines,
·he fears ‘living on the streets’ if he was to return to the Philippines as he has no money, no support and does not believe he would receive support from the government,
·he submits he may not be able to look after his health and medical needs without an income in the Philippines and he would be homeless and vulnerable.
The Reviewable Decision was made on 19 July 2019. As noted above, under cover of a letter dated 23 July 2019 the Applicant was, purportedly, notified of the decision not to revoke the visa cancellation. That letter and the Reviewable Decision were delivered by email to the Applicant via his migration agent on 23 July 2019 and then by hand to the Applicant at Yongah Hill Immigration Detention Centre (R1, G2). The Tribunal notes the receipt of that letter was acknowledged on 25 July 2019 (R1, G40).[11] The Applicant responded to that letter by filing the Application for Review with the Tribunal on
26 July 2019 (R1, G1). For the reasons noted above the Tribunal accepts he was not properly notified until 8 August 2019 when he received the second copy of the
G-Documents via email to his authorised representative (R1, G42).
On 26 July 2019 the Applicant lodged an application in the General Division of the Tribunal for review of the Reviewable Decision (R1, G1).
[11] It appears from the material on the file that the receipt was signed by the Applicant’s representative rather than the Applicant, however nothing turns on this point with regard to the Tribunal’s consideration of the application for review.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
(3A) 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.
Section 501(6) of the Act provides that:
(6) For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by
subsection (7));
…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a)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
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…
(Original emphasis.)
Section 501CA of the Act further provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
…
(Original emphasis.)
Direction No. 79
Section 499(1) of the Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act… if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No. 79 under s 499 of the Act. The direction commenced operation on
28 February 2019, replacing the previous direction, Direction No. 65.[12] The Tribunal proceedings were conducted on the basis that Direction No. 79 applied.
[12] Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (22 December 2014).
Paragraph 6.1 of Direction No. 79 sets out the “Objectives” of the Act, with para 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
…
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction No. 79 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No. 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4), including the Tribunal:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in para 6.3 of Direction No. 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction No. 79, with regard to the specific circumstances of the case (para 13(1) of Direction No. 79). Specifically, para 13(2) of Direction No. 79 provides:
…
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 14(1) of Part C of Direction No. 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction No. 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
…
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further guidance as to how a decision-maker is to apply the considerations in Direction No. 79 can be found in paragraph 8 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Subsection 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.
Paragraph 6.3 of Direction No. 79 sets out a number of principles to be applied, including the following:
…
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Part C of Direction No. 79 sets out considerations that are relevant in exercising the discretion in s 501CA(4) of the Act.
IS THERE ANY OTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
The Applicant’s written (A1, Annexures A and B,[13] A2) and oral submissions to the Tribunal outlined the Applicant’s central contentions as to the “other reason” why the cancellation should be revoked. The Applicant’s primary contentions were that the Applicant’s low risk of re-offending, strong ties to Australia, impact on victims, and significant impediments if removed to the Philippines constitute another reason why the cancellation should be revoked. The Applicant submitted that the relevant principles and considerations weigh in favour of revoking the cancellation of the Applicant’s visa (A1, Annexure A).
[13] Annexure B begins with a reference noting “Thank you for allowing me to respond to your further request for information under Ministerial Direction No. 79”. The Tribunal notes this appears to be a reference carried over from submissions to the delegate. The Tribunal did not make any further request for information to the Applicant. In any event the reference does not affect the import of the submissions.
In summary, with respect to the relevant principles and considerations, the Applicant contended as follows (A1, Annexures A and B, A2):
·The circumstances of the offending mitigate its seriousness including: a lack of intention to harm his step-father; the Applicant’s personal history, health and mental status at the time of the offending; and his immediate and continuing remorse;
·The Applicant is at low risk of re-offending, as supported by the Sentencing Judge’s remarks and the psychological report of the psychologist, Ms Annette Paul;
·The Applicant has submitted evidence of community support for the revocation of the Reviewable Decision, including from the victim. Such material should be taken into account in determining the expectations of the Australian community;
·The Applicant has strong connections to Australia, having been a resident in Australia for more than 11 years, since he was 16 years old. His mother and siblings are Australian citizens and permanent residents. He has strong family, social and economic ties to Australia, including on offer of employment on release. The victim supports the Applicant remaining in Australia and has promised to support him;
·There are significant impediments if the Applicant is removed from Australia including: the Applicant’s fragile mental and physical health, lack of social supports, and the violent conditions in the Philippines which could enliven Australia’s non-refoulement obligations. His mother would also be gravely affected as she is elderly and ailing; and
·The primary consideration of the best interest of children was not applicable to the Applicant’s case.
The Respondent submitted, in summary, that the protection of the Australian community and the expectations of the community weigh against the Applicant and significantly outweigh the Applicant’s ties to Australia and any impediments to his removal (R3, page 12, [43]). The Respondent contended that the Applicant’s offending was serious.
The serious nature of the Applicant’s offending and of the consequences which could flow from any repetition of that offending meant that even a low risk of the Applicant reoffending was unacceptable (R3, page 5-9, [17]-[28]). The Respondent contended there was insufficient evidence that any non-refoulement obligation arose with respect to the Applicant’s circumstances and that the Applicant did not face any significant impediments if removed to the Philippines (Transcript page 83; R3, pages 11-12, [40-42]).
These submissions will be dealt with in more detail below.
PRIMARY CONSIDERATIONS
Pursuant to para 13(2) of Direction No. 79, the following are primary considerations that the Tribunal must take into account in deciding whether to revoke the cancellation of the applicant’s visa:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
First primary consideration: Protection of the Australian community (paragraph 13(2)(a) of Direction No. 79)
Paragraph 13.1(1) of Direction no. 79 provides that:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
Paragraph 13.1(2) of Direction No. 79 then provides:
(2)Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
As noted above, the Applicant submitted that, if the Reviewable Decision was revoked, his risk of reoffending would be low and the protection of the Australian community would not require that his visa remained cancelled (A1, Annexure A and B, A2). The Applicant submitted that (A1, Annexure B):
I fully understand that the Australian government must ensure the protection of the community from harm because of criminal activity or serious acts by non-citizens such as myself. To stay here in Australia is a privilege extended to me by the government with the expectation that I abide by the law and not cause or threaten serious harm to others.
The Respondent contended that the Applicant’s offending is serious and that the protection of the Australian community weighed heavily against revocation (R3, paragraphs [17]-[28]).
Nature and seriousness of the conduct (para 13.1(2)(a) of Direction No. 79)
Paragraph 13.1.1(1) of Direction No. 79 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
As noted above the Applicant made a number of submissions in relation to his offending and the protection of the Australian community. With respect to the nature and seriousness of his conduct, these submissions included A1, Annexures A and B, A2. With respect to these factors the Applicant submitted that (A1, Annexure B):
1.2.1 I was accused of, pleaded guilty, and served out my 15 months of prison time for destruction of our computer at home, breach of police order for me not to go back home, and for the serious act of harming my step-father. I understand that these are viewed as very serious crimes.
1.2.2 No women or children were in any way involved in these incidents.
1.2.3 I realise now the seriousness of my regrettable conduct against my step-father who is an elderly person.
1.2.4 The court imposed two and a half years’ imprisonment, eligible for release after 15 months.
1.2.5 I have not reoffended since the incident, nor is there any trend of increasing seriousness.
1.2.6There is no cumulative effect of repeated offending because I have not reoffended prior to and since the offense.
1.2.7 I have never provided false or misleading information to Department of Immigration.
1.2.8 I did not receive any warning or notice of consequences of reoffending. In any case, I have not reoffended.
1.2.9 I was not in immigration detention when the incident occurred.
The Applicant also submitted that the circumstances of the offences mitigate their seriousness. This included (A2):
·that the conduct was out of character;
·that the Applicant was suffering from “complex, psychological and historical factors; depression, anxiety, severe stress, diabetic complications due to lack of food and hydration”;
·his lack of prior offending; and
·the offences were an escalation of events that got out of hand “there was no evidence to suggest [the Applicant] planned to attack his step-dad”.
The Respondent submits that the Applicant’s convictions are prima facie serious, incurring a lengthy custodial term for a first time offender and involving a significant incident of violence, committed in an almost immediate breach of a police order and involving multiple stab wounds to a vulnerable person (R3, page 6, [19]). The Respondent contends that “by any measure” the offending is serious (R3, page 6, [19]). The Respondent pointed to the following factors as giving rise to concerns regarding the Applicant’s conduct (R3, pages 6-7, [20-23]):
·whilst the Applicant has no prior convictions, his first offences included a significant act of violence;
·a lengthy term of imprisonment was imposed for his first offence highlighting the seriousness of this offending;
·the offence was committed against a vulnerable person; and
·the comments of the Sentencing Judge and the sentence imposed reflected the serious nature of the offending.
The Applicant pleaded guilty to the offence that “with intent to harm he did an act as a result of which the life, health or safety of Mr Butler was or was likely to be endangered” (R1, G7, page 33). That was an offence that carried a maximum penalty of 20 years imprisonment (R1, G7, page 33). The circumstances of the Applicant’s offences were described in the sentencing remarks of Bowden DCJ as follows (R1, G7, pages 33-35):
… [T]he victim is your stepfather. You were on your computer. You were angered because apparently there was some Internet failure. You went into the living room and damaged the victim’s computer with a knife by basically cutting the cables. You’ve been charged with the criminal damage for that particular offence.
An argument developed. The police were called. The police attended and they gave you a police order which is basically to move on. They then drove you to the train station and instead of staying away from the premises, in breach of the police order, you went back to the premises and on the way back you formed the intent that you were going to stab your stepfather.
When you got back you entered the home, obtained two knives and you approached the victim and stabbed him multiple times to the chest, arms, head and back. He was able to get away from you. The police were called. The police attended. You were then arrested and have been in custody ever since.
Now, whilst I accept that the injuries were not life threatening, they did require hospitalisation and stitches and staples. When asked by the police about why you did this, you told the police you were angered because of the Internet failure and the failure of your stepfather to give you the Internet usage. And you were also angered over issues that you had said arose over a number of years.
At the time of the commission of the offence the victim was 73 years of age. Now, it’s important that you understand that I’m sensing you for what didn’t occur. I’m sentencing you for what occurred. But the harsh reality of life is that you’re very fortunate that the injuries weren’t more severe.
If you pick up a knife and stab somebody there’s always the risk that you will sever an artery and in fact kill the person. And it is a matter that I am entitled to take into account the potential consequences of the injury. The actual consequences were that the injuries were not likely to endanger life.
…
Now, clearly the nature of your intent to harm was that you did intend to endanger the safety of the victim. You armed yourself with the knife, you used the knife, there was some premeditation. The nature of the harm as I’ve said required hospitalisation. There were 13 wounds and the potential for harm was, in fact, high.
The seriousness of the offence was noted by Bowden DCJ (G7, pages 35-36):
The fact that you used a weapon, that you actually caused harm, that you were in breach of a police order all, in my view, make the offence so serious that imprisonment is the only appropriate disposition. Anything other than imprisonment would fail to reflect the need for general deterrence.
In the Tribunal’s view, there can be no doubt on the evidence that the Applicant’s offending should be characterised as violent (para 13.1.1(1)(a) of Direction No. 79).
He attacked his step-father with a weapon with an intent to cause harm. He did cause harm, albeit of a lesser consequence than may have been the case had the Applicant not been as “fortunate”, to use the words of the Sentencing Judge. Paragraph 13.1.1(1)(a) of Direction No. 79 states the principle that violent crimes are to be viewed seriously.
As noted above, the Applicant’s submissions were that he understood this.The Applicant committed his offences against a 73-year-old man. On the evidence, the Tribunal finds that the crime was committed against a “vulnerable member of the community”. Direction No. 79 expresses the principle that such crimes are “serious” (13.1.1(1)(c) of Direction No. 79). The victim was unarmed. The attack ceased when the victim was able to flee (R1, G7, page 33).
The offences for which the Applicant has been convicted occurred on a single date in 2016. The Tribunal considers that the fact that the Applicant is not a repeat offender and there is no trend of increasing seriousness in his offending, weighs in the Applicant’s favour in the sense they do not contribute to the seriousness of his offending (para 13.1.1(1)(e) and (f) of Direction No. 79). Further, there is no evidence that the circumstances addressed in paras 13.1.1(1)(g),(h) and (i) are applicable to the Applicant.
The Applicant received two and a half years imprisonment for the intent to harm offence.
The Sentencing Judge’s comments indicate the maximum penalty for this offence was
20 years. He received custodial sentences for the other two offences of seven months total, to be served concurrently.With respect to the sentencing of the Applicant (Direction No. 79, para 13.1.1.1(1)(d)), the Applicant submitted that the maximum penalty for the intent to harm offence was
20 years. The Applicant referred to the fact that the Delegate failed to have regard to the sentence imposed on the Applicant in deciding not to revoke the cancellation of the visa (A1, Attachment A). The Respondent submitted that the fact the Applicant received custodial sentences for his first offences was significant and reflected the seriousness with which the Sentencing Judge viewed the offences (R3, page 6 at [21]).The Tribunal accepts the Respondent’s submission in this regard. In the Tribunal’s view, while the statutory maximum sentences provide a guide as to the seriousness with which offences are regarded, to merely have regard to the maximum penalties misrepresents the complex process of sentencing engaged in by the courts. Custodial sentences are a penalty of last resort. The Sentencing Judge took into account mitigating factors including the Applicant’s lack of prior convictions, supportive life and claimed mental and other health problems. He also took into account the Applicant’s plea of guilty and his personal history (R1, G7, page 35). Notwithstanding these mitigating factors the Sentencing Judge imposed custodial sentences which, while at the lower end of the scale for the “intent to harm” offence, could reasonably be regarded as not insignificant for a first offence.
The Tribunal considers that the sentences imposed on the Applicant reflect that the offending was serious (Direction No. 79, para 13.1.1.1(1)(d)).
The Tribunal notes that the Applicant has now acknowledged his offending was serious and expressed remorse for his actions. The Tribunal will consider the Applicant’s contrition and attempts at rehabilitation further below in the context of the Applicant’s likelihood of reoffending.
The Tribunal accepts that based on the Applicant’s medical history he may require future treatment or management for diabetes. However, the Tribunal regards on the evidence that such treatment would be available to the Applicant in the Philippines albeit not on the same basis on which such services are provided in Australia. In the Applicant’s circumstances the Tribunal does not regard the potential need for diabetes treatment in the Philippines as a significant impediment for the Applicant; particularly if he maintains the diet and service regimes he has adopted to manage his diabetes without the need for medication. The Tribunal accepts on the evidence that the behavioural modifications necessary to maintain his diabetes may be more challenging in the Philippines given cultural preferences in that country (see R2, SG1, page 165). However, the Tribunal regards such matters to be reasonably within the control of the Applicant particularly where he has already adopted and maintained such modifications. On the Tribunal’s view his diabetes history does not present an insurmountable impediment to his return to the Philippines.
The Applicant would not face any language barriers if he were to return to the Philippines. While the Tribunal accepts he has spent significant time in Australia and is accustomed to the environment in this country, the Applicant grew up in the Philippines and attended school there. While the initial information provided to the Department suggested the Applicant had no family in the Philippines, at the hearing the Applicant gave evidence he has friends and family there including his sister,[32] “Lala”, who he lived with for eight to ten years prior to coming to Australia however he testified that he has lost contact with them and has not seen them since living the Philippines (Transcript, pages 40-41).
[32] The Tribunal notes that the Applicant referred to Lala as his mother’s sister, however, Mrs Butler’s evidence was that she was a daughter from a prior marriage.
The Applicant has undertaken vocational training (A1, Annexure Q) and was observed by the Tribunal to have proficient English language skills.
There is evidence before the Tribunal that the Applicant suffers from depressive and dependent personality traits. However, there is no evidence he is being treated from or taking medication with regard to mental health issues associated with these traits. The Tribunal finds on the evidence available that the Applicant would likely be able to access medical and counselling services in the Philippines if required.
The Applicant raises the issue of his mother’s medical issues and possible future need for a kidney transplant. As noted above while there was limited medical evidence suggesting the Applicant’s mother would be unable to travel to see him, the Tribunal accepts she has health issues and is elderly, and that this would likely impact her capacity to travel (see A1, Annexure V, A7, A8). In relation to the kidney donation issue, the Tribunal accepts on the evidence that the Applicant’s mother had a kidney removed some years ago. The Tribunal also accepts that she is under medical care including recent diagnostic testing to determine the health of her remaining kidney. However, there is no evidence that the Applicant’s mother requires a transplant or that the Applicant is a donor match for her in the event that a transplant is required. In such circumstances the submission of the Applicant is highly speculative and in the Tribunal’s view does not present a significant impediment if removed.
The Tribunal accepts that the Applicant’s removal from Australia will separate him from the family and community network which he has formed here largely through his family members and on which he seeks to rely on when released. Removal from this network will make his social reintegration more difficult and will likely present challenges for him. The Tribunal finds that removal would be difficult for his family in Australia and in particular for his mother with whom the Tribunal accepts the Applicant has a close relationship. The Tribunal accepts that the Applicant’s mother is suffering from depression and finds that her mental health may suffer if her son is removed from Australia. The Tribunal also finds that the Applicant’s removal may place strain on the marriage of his mother and step-father as contended by his step-father in evidence (Transcript, page 62).
The Tribunal also finds that the Applicant’s removal would impact on the community organisations which have been supporting him and his family in his bid to have the cancellation decision revoked.
The Tribunal finds that the Applicant has family members in the Philippines, including a sister with whom he previously lived and was cared for by for a significant number of years. The Tribunal finds the Applicant has family members in the Philippines who are likely to be able to offer him support and assist in his reintegration to the Philippines. Further the Tribunal finds that while the Applicant has a very limited employment history, he has English language skills and vocational training which would assist him in obtaining employment in the Philippines.
On balance the Tribunal finds there are impediments to the Applicant’s removal to the Philippines but that these impediments are not insurmountable. Accordingly the consideration weights in favour of the Applicant however given the limited nature of the impediments the Tribunal does not give significant weight to this factor.
CONCLUSION
Direction No. 79 provides some guidance as to how a decision maker should apply the primary and other considerations, and the weight to be given to them. Paragraphs 8(3), (4) and (5) are relevant here, and state:
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
The treatment of primary and other considerations has been subject to judicial consideration.[33]
[33] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594. Suleiman was discussed by the Full Court of the Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217.
The Tribunal agrees with this approach.
The Applicant does not pass the character test under s 501(6) of the Migration Act.
The Tribunal has also considered whether there is another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations in Direction No. 79.
In relation to the first primary consideration, the Tribunal finds that:
(a)the nature and seriousness of the Applicant’s conduct weighs strongly in favour of the Tribunal refusing to revoke the cancellation of the visa (paragraphs 13.1 and 13.1.1 of Direction No. 79).
(b)the risk to the Australian community should the Applicant commit further offences also weighs in favour of the Tribunal refusing to revoke the cancellation of the visa (paragraphs 13.1 and 13.1.2 of Direction No. 79).
(c)overall, with respect to the first primary consideration, the Tribunal concludes that the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of Direction No. 79), weighs strongly in favour of the Tribunal refusing to revoke the cancellation of the visa.
With respect to the remaining primary considerations, the Tribunal finds that:
(d)the best interests of minor children (paragraph 13.2 of Direction No. 79) do not arise as a consideration; and
(e)the expectations of the Australian community (paragraph 13.3 of Direction No. 79) weigh in favour of the Tribunal refusing to revoke the cancellation decision.
In relation to the other considerations, the Tribunal considered the evidence as to whether non-revocation would engage Australia’s non-refoulement obligations (para 14.1 of 14.1 of Direction No. 79). However, the Tribunal was not satisfied that there was sufficient evidence to support the Applicant’s claim that non-refoulement obligations arise due to the general safety risk to the community in the Philippines from current government action to counter the drug trade and organised crime in the Philippines or due to inadequate health care or economic factors in the Philippines. The Tribunal placed little weight on this consideration.
The Tribunal has also found that there are limited impediments to removal (paragraph 14.5(1) of Direction No. 79) including the Applicant’s mental and physical health needs and the health needs of his mother. This factor weighs in favour of the revocation of the cancellation decision. However, as those impediments are not insurmountable they do not weigh strongly in the balance of considerations.
With regard to the strength, nature and duration of the Applicant’s ties to Australia (paragraph 14.2(1) of Direction No. 79) weigh in favour of the revocation of the cancellation decision. With regard to the impact of non-revocation of the cancellation of the visa, the Tribunal has found that non-revocation would impact negatively on the victim and his family (para 14.4 of Direction No. 79). This factor weighs strongly in favour of revocation of the cancellation of the visa. The Tribunal has given consideration to the impact on Australian businesses and found that factor to be neutral in the Applicant’s circumstances.
On balance, the Tribunal is of the opinion that the primary considerations of protection of the Australian community and the expectations of the Australian community outweigh the other considerations of the Applicant’s strength, nature and duration of ties, the impact on the victim and the extent of impediments if removed.
In summary, having regard to all of the relevant primary considerations, and the relevant other considerations in Direction No. 79, the Tribunal is of the view that it would not be appropriate for the Tribunal to revoke the mandatory cancellation of the Applicant’s Visa.
DECISION
The Reviewable Decision, being the decision of the Respondent’s delegate dated
19 July 2019 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.
I certify that the preceding 249 (two hundred and forty-nine) paragraphs are a true copy of the reasons for the decision herein of M S Burford
.................................[sgd].......................................
Associate
Dated: 31 October 2019
Date(s) of hearing:
16 October 2019
Representative for the Applicant:
Mr J Lopez
Counsel for the Respondent:
Mr A Gerrard
Solicitors for the Respondent:
Australian Government Solicitor
ANNEXURE 1
List of Annexures contained in Exhibit A1
·Annexure A – Submission: AAT to review decision not to revoke the visa cancellation;
·Annexure B – Submission: revocation of visa cancellation (amendments to previous submission);
·Annexure C – Submission of Laurence Noel Butler dated 6 November 2017;
·Annexure C1 – Affidavit and letter from Lawrence Noel Butler dated
14 August 2019;·Annexure D - letter from Cheryl Cullen, Challenger Institute of Technology dated 19 September 2012;
·Annexure E – Sentencing remarks, Bowen DCJ, District Court of Western Australia, 29 September 2017;
·Annexure F – Submission of Barbara Percera Butler, dated 6 November 2017;
·Annexure F1 – Affidavit and submission of Barbara Percera Butler, dated
16 August 2019;·Annexure G – Immigration report, Government of Western Australia Department of Corrective Services;
·Annexure H – notification of cancellation of a restraining order dated 15 April 2019, District Court, Perth;
·Annexure I – Copy of the Reviewable Decision, dated 19 July 2019;
·Annexure J – Affidavit (20 August 2019) and letter of Councillor Joy Stewart dated August 2019;
·Annexure K - letter from Pastor Abby Aviles, Hope Spring Community Church, Kwinana (undated);
·Annexure K1 - letter from Pastor Abby Aviles, Hope Spring Community Church, Kwinana dated 19 August 2019;
·Annexure L - Affidavit dated 20 August 2019 of Dante C Maribbay, Filipino Community Council of Western Australia;
·
Annexure M - letter from Mr Chris Bown, Hanssen Construction dated
23 August 2019;
·Annexure N – Submission of Leodivina Custodio (undated);
·Annexure N1 – Affidavit of Leodivina Custodio affirmed 20 August 2019;
·Annexure O - Petition relating to reinstatement of the Applicant’s permanent visa signed by 25 people and dated 30 October 2019;
·Annexure P – Submission of Beverly Khalid Percera and Nelam P Rehman dated 30 October 2017;
·Annexure P1 - Submission of Beverly Khalid Percera and Nelam P Rehman (undated);
·
Annexure Q – Certificates: MEM20105 – Certificate II Engineering, Choice Industrial Training, dated 18 August 2014; Certificate II in ESL (Access) 21932VIC, Challenger Institute of Technology, dated 13 January 2012 (course completed
12 January 2012); Certificate I in Information, Digital Media and Technology ICA10111, Challenger Institute of Technology, dated 20 March 2013 (course completed 3 December 2012);
·Annexure R - Letter from Rebecca Rehman (undated);
·Annexure S – “Psychological Report for Court” prepared by Anette Paul, Clinical Psychologist, 15 September 2019;
·Annexure T- Letter from Feda Rehman (undated);
·
Annuxure U – Letter from Dr Satish Devata, Champion Medical Centre, dated
26 July 2019;
·Annexure V - letter from Kar-Lei Chow, South Coast Baptist Church (undated); and
·
Annexure W - Letter from Dr Satish Devata, Champion Medical Centre, dated
10 September 2019 attaching referral in relation to Mrs Barbara Percera Butler.
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