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Rowe and Minister for Home Affairs (Migration)

Rowe and Minister for Home Affairs (Migration)

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Rowe and Minister for Home Affairs (Migration) [2018] AATA 2708 (9 August 2018)
Division:GENERAL DIVISION
File Number(s): 2018/2829
Re:Miles Rowe
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:9 August 2018
Place:Sydney

The decision under review is set aside and in substitution thereof the cancellation of the Applicant’s visa is revoked.
......................[sgd]..............................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of a visa – applicant does not pass character test – substantial criminal record – dishonesty/stealing offences – whether another reason why original decision should be revoked – mental health issues – diagnosis of schizophrenia – recent engagement with treatment – Direction No. 65 – Primary considerations – protection of the Australian community – best interests of minor children – expectations of Australian community – Other considerations – strength, nature and duration of ties – extent of impediments if removed – importance of maintaining current treatment regime – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
Ali and Minister for Immigration and Citizenship [2011] AATA 780
Ashnarayan and Minister for Immigration and Citizenship [2011] AATA 667
Ausage and Minister for Immigration and Citizenship [2010] AATA 794
Baharestan and Department of Immigration and Citizenship [2011] 122 ALD 219
BFXK and Minister for Immigration and Border Protection (Migration) [2018] AATA 886
Bou and Minister for Immigration and Border Protection (Migration) [2017] AATA 2781
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Cutugno and Minister for Immigration and Multicultural Affairs [2006] AATA 1098
Do and Minister for Immigration and Border Protection (Migration) [2016] AATA 390
Drollet and Minister for Immigration and Citizenship [2010] AATA 854
Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Ince and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 92
Lavea and Minister for Immigration and Citizenship [2008] AATA 966
Leota and Minister for Immigration and Border Protection [2018] AATA 1365
Lesuma and Minister for Immigration and Citizenship [2007] AATA 1731
Ozer and Minister for Immigration and Border Protection (Migration) [2017] AATA 956
Paenga and Minister for Immigration and Citizenship [2010] AATA 814
QGMJ and Minister for Immigration and Border Protection (Migration) [2017] AATA 1537
Siueva and Minister for Home Affairs (Migration) [2018] AATA 1079
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Taivei v Minister for Home Affairs [2018] FCA 1129
Thompson and Minister for Immigration and Border Protection (Migration) [2017] AATA 1245
Toia and Minister for Immigration and Citizenship [2007] AATA 2078
TVCA and Minister for Immigration and Citizenship [2013] AATA 309
Uelese v Minister for Immigration and Border Protection [2016] FCA 348; 248 FCR 296
Vazquez and Minister for Immigration, Local Government and Ethnic Affairs [1989] AATA 165
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Zaoui and Minister for Immigration and Citizenship [2011] AATA 515
SECONDARY MATERIALS
Andrews,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 2708
Decision Date: 9 August 2018

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant had failed the character test due to a substantial criminal record, specifically dishonesty and stealing offences. The applicant sought revocation of the cancellation, arguing there was another reason why the original decision should be revoked, citing mental health issues, including a diagnosis of schizophrenia, and recent engagement with treatment.

The Tribunal was required to determine whether there was "another reason" why the mandatory visa cancellation should be revoked, considering the matters outlined in Direction No. 65. This Direction specifies "Primary Considerations" such as the protection of the Australian community from criminal or serious conduct, the best interests of minor children, and the expectations of the Australian community. It also lists "Other Considerations," including the strength and duration of ties to Australia, the extent of impediments to removal, and the importance of maintaining a current treatment regime.

The Tribunal reasoned that while the applicant had a history of reoffending, the likelihood of reoffending was low if he strictly adhered to his medication management regime for schizophrenia. The Tribunal found that the applicant understood the gravity of his position and the necessity of his treatment. The presence of structured support from a mental health team was also considered important. Balancing these factors against the primary considerations, the Tribunal concluded that the mandatory cancellation of the visa should be set aside and substituted.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 501CA of the Act outlines the process:(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 (n) 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. It is up to the individual concerned to place before the Minister whatever information they think relevant for the Minister’s consideration. Upon receipt of such representations, the provisions of sections 501CA(4) and (5) come into effect as follows: (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.(5) If the Minister revokes the original decision, the original decision is taken not to have been made. A decision on such an application is, in most circumstances, made by a delegate of the Minister. In the Applicant’s case, this review decision resulted in a determination that the mandatory revocation should not be set aside.[4] [4] Section 501 G Documents at [14] –[ 23]. In coming to their decision, the Delegate noted that, since the Applicant had, by definition, failed the character test, it was required that the Delegate consider whether there was “another reason” for the revocation to be set aside. In doing so the Delegate followed the requirements set out in Direction No. 65, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction) (discussed below) in coming to their conclusion. This is because under s 499(1) of the Act the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (s 499(2A) of the Act). Where a decision has been made by a delegate of the Minister under s 501CA(4) not to revoke a mandatory cancellation of a visa, the affected person may make an application to the Tribunal seeking a review of that decision under s 500(1)(ba) of the Act. The Applicant lodged his application for review with the Tribunal on 22 May 2018.[5][5] G Documents at [3].

Ratio Decidendi

Legal Principle Established

Ministerial Directions, issued to guide decision makers, including this Tribunal, in their interpretation of various sections of the Act are made under s 499 of that Act. There is a long history of such Directions being made stretching back to 1983.[39] The current Direction, Number 65 was made on 22 December 2014. It establishes various matters for consideration, describing some as “Primary Considerations” and others as “Other Considerations”.[39] Details are provided in an earlier decision of this Tribunal in BFXK and Minister for Immigration and Border Protection (Migration) [2018] AATA 886 at [113]. Primary Considerations The three “primary considerations” related to revocation requests are set out as:·Protection of the Australian community from criminal or other serious conduct;·Best interests of minor children in Australia affected by the decision; and·Expectations of the Australian community.[40][40] Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, part C, paragraph 13.Protection of the Australian Community This generally requires consideration of two factors: the risk of re-offending and the severity of the possibly negative aspects of allowing an applicant to remain in Australia. Sentencing Judge English found that Mr Rowe’s likelihood of reoffending was “low”, nevertheless he did reoffend. The Delegate in their assessment was unpersuaded on this point and found that there was “an ongoing risk” [41] that Mr Rowe would reoffend. [41] G Documents at [19]. In the opinion of the Tribunal the correct positon to adopt is that: in the event that Mr Rowe adheres strictly to his medication management regime, the risk that he will reoffend is low. In the event that he abandons his medications then the risk is real and highly likely. Although this may sound as if the Tribunal is equivocating, it is the conclusion to which the facts point, and in the Tribunal’s belief is a positon shared by the Respondent. In the event that Mr Rowe committed further offences, there is no reason to believe that they would not continue to be offences of a relatively minor nature, primarily involving low level shop stealing. There is no reason to believe, on the basis of past experience that they would be planned or premeditated, or involve acts of violence or any deliberate harm to other people. These conclusions lead the Tribunal to have to make a judgement about Mr Rowe’s current state of mind and preparedness to both understand the gravity of his position (risking deportation) and the necessity of his strict adherence to prescribed medication. Mr Rowe gave oral evidence to the Tribunal which, reinforced by some of the medical reports to which reference has been made, is persuasive of the fact that Mr Rowe does understand that failure to adhere to his medications will have the gravest consequences. In some respects it is easier to adhere to a regime which requires structured monthly (or other regular) reporting for depot injections than is the case where daily (or similar) oral medication, taken alone and without supervision, is concerned. The Health Summary presented by the Respondent refers to the fact that: “Mr Rowe continues to be supported, assessed and monitored by the mental health team”.[42] The presence of this structured arrangement of support is important.[42] Tribunal Evidence R2 (IHMS-Health Summary).