Sequera and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 4020
•28 November 2022
Sequera and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4020 (28 November 2022)
Division:GENERAL DIVISION
File Number(s): 2022/7283
Re:Dylan Sequera
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Chris Puplick AM, Senior Member
Date:28 November 2022
Place:Sydney
The reviewable decision is set aside and in substitution, cancellation of the Applicant’s visa is revoked.
...............................[sgd].......................................
Chris Puplick AM, Senior Member
Catchwords
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – expectations of the Australian community – impediments to removal – links to the Australian community – decision set aside and substituted
Legislation
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
Cases
AFY18 v Minister for Home Affairs [2018] FCA 1566
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
CZCV and Minister for Home Affairs (Migration) [2019] AATA 91
Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
El Khoueiry and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3577
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs [2019] FCAFC 185
GCRM v Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 678
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Holloway v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1126
JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762
Matthews v Minister for Home Affairs [2020] FCAFC 146
Meyrick v Minister for Home Affairs [2020] FCA 677
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Omar [2019] FCAFC 188
Minister for Home Affairs v Stowers [2020] FCA 407
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13
Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28
Pavey and Minister for Home Affairs [2019] AATA 4198
Pihere v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1342
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Shi v Migration Agents Registration Authority [2008] HCA 31
Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875
Uelese v Minister for Immigration and Border Protection [2015] HCA 15
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Editorial, ‘Developing an advocacy agenda for increasing access to opioid substitution therapy as part of comprehensive services for people who use drugs in South Africa’ (2005) 108(10) South African Medical Journal 800
REASONS FOR DECISION
Chris Puplick AM, Senior Member
28 November 2022
Mr Dylan Sequera (the Applicant) was born in February 1983 and is a citizen of the Republic of South Africa. He first arrived in Australia in December 1983 (aged 10 months) with members of his family. Since that date he has returned to South Africa on only one occasion when he was approximately 14 years of age and spent four months there visiting his grandmother. He is the holder of a Five-Year resident Return (Class BB) (subclass 155) visa.
On 22 October 2021 the Applicant was convicted of an offence (see below) which resulted in him receiving a custodial sentence of three years imprisonment with an 18-month non-parole period. He was released from custody on 8 March 2022 on bail but was then taken into immigration detention at Villawood (NSW) where he has remained since that date.
This conviction led to the Minister (the Respondent) determining that the Applicant had a “substantial criminal record” under the provisions of the Migration Act 1958 (Cth) (the Act).[1] A “substantial criminal record” is defined in the Act as any term of imprisonment for 12 months or more.
[1] Migration Act 1958 (Cth) (Act) ss 501(6)(a) and 501(7)(c).
This in turn led to the mandatory cancellation of his visa, which he was notified of on 10 November 2021.[2]
[2] G-documents at 114.
As provided for under the Act, the Applicant made “representations” on the 11 November 2021 for the revocation of the cancellation decision.[3] On 5 September 2022 a delegate of the Minister decided not to revoke the cancellation pursuant to subsection 501CA(4) of the Act.[4]
[3] Ibid at 58-77.
[4] Ibid at 17.
On 6 September 2022 the Applicant then appealed to this Tribunal for a review of that decision and the matter was heard on 15 November 2022 with the hearing conducted in person, the Applicant being self-represented.
Under paragraph 500(6L)(c) of the Act there is a specific time limit within which the Tribunal must make its decision, otherwise the Minister’s decision is taken to be affirmed. In this instance that date is 29 November 2022.
The Applicant’s personal narrative
The Applicant’s personal history is set out in some detail in the remarks of the Sentencing Judge delivered on 22 October 2021[5] and supplemented by the history recorded by Ms Clair Baker, a consulting forensic psychologist who prepared a report on the Applicant dated 20 September 2021.[6] In summary:
·The Applicant arrived in Australia as a 10-month-old[7] child accompanying his parents and elder brother.
·He had a troubled upbringing as a child because his parents had major mental health and alcohol-related problems. His father was mentally abusive towards him. His parents separated when he was ten years of age and his older brother, who also suffered mental health problems committed suicide when the Applicant was 19 years old.
·The Applicant left home at age 14 and between that time and the death of his brother he was either homeless or lived in a series of refuges and occasionally with his father. After his brother’s death he returned to live with his mother.
·From the age of 14 or 15 years he became a regular user of marijuana and drank heavily.
·From the ages of 19 to approximately 25 he was often homeless, sleeping on the streets or occasionally in refuges. Around the same time, he entered into a relationship with a woman by whom he had a child (MS) who was born in 2007. That relationship lasted some seven years but ended unhappily and the child’s mother thereafter denied him access to his son. The Applicant maintains that this led him to develop further mental health issues and precipitated his entry into heavier regime of drug use involving heroin and “ice”.
·In 2011 he managed to enrol in the methadone programme which allowed him to reduce his dependency on heroin, but he maintained an “ice” habit, often using up to half a gram daily. The methadone programme also allowed him to reduce his alcohol consumption to virtually nil. He also took excessive amount of Xanax and Valium, with occasional use of LSD and ecstasy.
·During this period the Applicant managed to obtain some steady employment for a number of years and obtained some degree of stable housing which he lost when he was first incarcerated for three months in 2017.
·The Applicant also maintained a serious gambling habit/addiction until he weaned himself off drugs which was a result of his being enrolled in the MERIT[8] programme which he commenced in the first half of 2020.
[5] Ibid at 42-44.
[6] Ibid at 89-107.
[7] The report at 90 of the G-documents refers to the Applicant being 18 months old, but this cannot be correct given his date of birth.
[8] Magistrates Early Referral into Treatment programme.
The Applicant’s offending narrative
Again, this is best summarised in the remarks of the Sentencing Judge and the details below are taken (with acknowledgement) directly from the written record:[9]
[9] G-documents at 38-40.
4 At around 8pm on Saturday 27 December 2014, the offender entered the gaming room at Livingstone Hotel at Petersham holding a shotgun. He was holding the gun with two hands up to his chest; however the security guard on duty could see that his right hand was at the trigger. The offender tried to clear the chamber of the weapon and the security guard saw a bullet come out from the top of the gun and fall onto the carpet in the bar area. The security guard realised the gun was not working and ran towards the offender, who turned around and ran towards the front entrance of the hotel. At that point, he turned around and pointed the gun at the security guard who was a short distance away from him.
5 The offender turned and used his right hand to open the door. He walked through the door and the security guard closed it behind him. The offender then fired the gun, which went through a glass panel in the door. The bullet was later found inside the wall of the gaming room. After the discharge of the firearm, the security guard hid behind a wall next to the door. The offender then re-entered the hotel and as he walked through the door, the security guard grabbed the gun with both of his hands from the side. After a short struggle, the security guard managed to pull the gun from the offender. At that point, the offender walked backwards out of the door and then ran away from the premises. The security guard then placed the gun on the counter of the bar area.
6 Police arrived shortly thereafter and CCTV footage was obtained from both the Hotel and surrounding businesses. The offender was depicted as wearing dark pants, a dark jacket, a black baseball cap, sunglasses and pink gloves.
7 The firearm was a shortened .22 Long Rifle calibre Stirling Model 14 bolt action repeating rifle. Part of the barrel and buttstock had been removed and its overall length was 395mm. The detachable box magazine had the capacity to hold ten .22 Long Rifle calibre cartridges. Evidence was available from a ballistics expert that the rifle was a shortened firearm as defined by the Firearms Act 1996 and the Regulations thereunder. The ammunition seized with the rifle were found to be .22 Long Rifle calibre cartridges.
8 DNA swabs obtained from the firearm taken from the handle, the handle of the slide bolt, the trigger and the magazine, were found to match that of the offender on 2 August 2017.
9 The offender was arrested on 9 September 2020 when police were made aware that he was attending the Exodus Foundation Church at Ashfield. Following his arrest, he had participated in an ERISP interview, in which he made admissions as to his itinerant lifestyle and drug abuse in 2014. He denied he was involved in the incident when shown photos of stills taken from the CCTV footage.
10 When informed by police that his DNA was found on the rifle, the offender denied it was his rifle, that he had ever handled a rifle or used any form of firearms in 2014. When informed that the DNA found matched his DNA, the offender declined to answer any further questions.
11 Exhibit A included the criminal antecedents of the offender. He was born on 27 February 1983 and had a lamentable criminal history, focused mainly on possession of prohibited drugs. It also included offences of dishonesty, including larceny and shoplifting.
12 In 2002, he was fined for possession of a prohibited drug. In 2005, he was sentenced for an offence of common assault to a s 9 bond for nine months. In 2007, he was sentenced on three charges of possess prohibited drug and fined on each occasion. He was also convicted of entering a restricted area of a station and custody of knife in a public place, for which he was fined on each offence.
13 In 2009, he was again convicted on two charges of possess prohibited drug for which he was imposed fines, as well as an offence of use concession ticket when not entitled, for which he was issued a fine. In 2010 he was also convicted of offences of larceny and possess implements to enter/drive conveyance. On both charges, he was fined. He was also convicted of shoplifting and again issued a fine.
14 In 2011, the offender was convicted of shoplifting, for which he was placed on a s 9 bond for 12 months. He was also convicted of the offences of furnish false information/statement to licensee and custody of knife in a public place.
15 In 2011, the offender was further convicted of possess/attempt to prescribe restricted substance. In 2012, he was convicted of an offence of larceny, for which a s 9 bond for a period of 12 months was imposed. On call up of that bond, he was sentenced to eight months’ probation and parole supervision. In 2012, he was also convicted of an offence of possess/attempt to, prescribed restricted substance, for which he was fined. He was convicted of the same offence in 2013 for which he was again fined on two occasions.
16 In 2015, the offender was convicted of an offence of possess implements to enter/drive conveyance and commit s 114 offence, having previous convictions for which he was sentenced by way of two bonds pursuant to s 9 for 12 months. On call up for breach of both of those bonds, he was sentenced to supervision by the NSW Probation Service for 12 months.
17 In 2017, the offender was imprisoned on an aggregate sentence for 10 months with a non-parole period of four months for offences of shoplifting, resist or hinder police officer in execution of duty and custody of knife in a public place. In the same year, he was also convicted of shoplifting and goods in personal custody suspected being stolen, for which he was sentenced by way of a fine and s 9 bonds for six months respectively.
18 In 2018, the offender was convicted of offences of custody of knife in public place and shoplifting and received fines in respect of both offences. In 2019, the offender was convicted of offences of custody of knife in a public place – subsequent offence, and possess prohibited drug, for which he received fines. He was also convicted of possess prohibited drug and fined for that offence.
19 In 2020, the offender was convicted of two shoplifting offences for which he was placed on two community correction orders for a period of 18 months commencing on 1 September 2020.
The maximum penalty for the offence upon which the Applicant was convicted in October 2021 was 14 years imprisonment. However, the Sentencing Judge, after considering the material before him including the report from Ms Baker, imposed a sentence of three years imprisonment, and, after finding “special circumstances” varied the statutory ratio between the non-parole period and head sentence imposing a non-parole period of 18 months.
The Tribunal takes particular notice of His Honour’s comments in relation to the Applicant:
89 I have also taken the offender’s criminal history into account. As set out above, it is lamentable and no doubt driven by his drug addiction. Whilst I do not take it into account so as to aggravate his moral culpability, the history of offending does not entitle the offender to any leniency in the sentencing process.
90 The offender is entitled to a 25% utilitarian discount on sentence in respect of his early plea of guilty. I am also satisfied that he is genuinely remorseful for his offending conduct, as set out in his letter of apology (Ex 5) and also in his oral evidence.
91 I was impressed by the offender’s oral evidence. Notwithstanding that the reports of psychologists must be approached with some circumspection, I am satisfied that the offender suffered profound deprivation during his childhood and formative years. Both his parents suffered mental health issues and were chronic alcoholics. The offender was exposed to drug and alcohol abuse at a very early age and left home at 14 years of age with no family or community support. In Bugmy v The Queen (supra), the High Court held:
“1. The circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his/her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way [40].
2. The effects of profound deprivation do not diminish over time and repeated offending and should be given full weight in determining the sentence in every case [42-44].
3. A background of that kind may leave a mark on a person throughout life and compromise a person’s capacity to mature and learn from experience [43].”
….
93 Here, the principles are clearly engaged. The offender commenced abusing alcohol at the age of 12 and was consuming alcohol on a daily basis by the age of 15. He began smoking marijuana at age 14 and by 15 was using it daily. At the age of 26, he started using heavier drugs and quickly became addicted. At the time of the offending on 27 December 2014, he was heavily addicted to ice and benzodiazepines. The offender was also suffering mental health issues, having longstanding depression and anxiety. He had had little intervention for these issues, having seen a psychologist ten years ago. However, he was admitted to the Marie Bashir Centre for a drug induced psychosis in 2018.
94 To the offender’s great credit, he had before his arrest addressed his drug and alcohol and gambling issues and had enrolled in and completed the MERIT Program. He had not consumed illicit drugs for some months before his arrest and has now been abstinent for a period of over 18 months. Given the extent and length of his addictions, this is a significant factor to take into account on sentence. The court recognises that it is no small feat to overcome an addiction to illicit drugs, particularly highly addictive drugs such as ice and Xanax.
95 The delay in sentencing the offender for a crime committed in 2014, a period of almost seven years, is also a relevant matter on sentence. There is no evidence of what police investigations took place following the offence, however, in August 2017 a DNA match was made with the offender. Thereafter, a delay of three years occurred before the arrest of the offender.
96 ……………… Here, the offender was for an extended period of time left in a state of uncertain suspense as to whether he would be arrested and sentenced for the offence. In the meantime, he has made commendable progress with his own drug and alcohol rehabilitation, becoming abstinent for an extended period of time. I am also satisfied that he is now being sentenced for a somewhat stale crime, committed almost seven years ago. In those circumstances, a considerable measure of understanding and flexibility of approach are appropriate in sentencing here. As a matter of fairness to the offender, he is entitled to an emphasis being placed on his ongoing rehabilitation and a degree of leniency ……
…….
99 The offender’s mental health issues are relevant here in that he is not an appropriate vehicle for general deterrence and the need for specific deterrence is also somewhat reduced. This must result in a reduction in sentence which would otherwise have been imposed.
The Tribunal gives great weight to the findings of His Honour in relation to his assessment of the credibility of the Applicant, his efforts at rehabilitation, his commitment to abstinence and his genuine expressions of remorse. It also notes His Honour’s references to the Applicant’s personal family history and his mental health issues.
On the other hand, as the Respondent rightly points out, the Applicant was given several opportunities to break his habit of offending by being granted bonds of one sort or another in 2005, 2012, 2105 and 2017. He also experienced a brief period of incarceration in 2017 and was thus fully aware that repeated offending behaviour carried with it the possibility of a lengthier sentence and the further possibility of the cancellation of his visa.
The basis of any review
The Act provides that where a non-citizen fails the character test, their visa is subject to mandatory cancellation. As already noted, the imposition of a term of imprisonment of more than 12 months is taken to establish that the character test has been failed (s 501(3A) of the Act).
Once a visa has been cancelled because of a failure to meet the character test, it may be reinstated (the cancellation decision may be revoked) if there is “another reason” to do so (s 501CA(4)(b)(ii)).
The decision before the Tribunal
The Tribunal must make a simple determination – whether the cancellation of the Applicant’s visa is the “correct or preferrable”[10] decision to be made based on the evidence before the Tribunal.
[10] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642.
In making that decision the Tribunal stands in the shoes of the Minister[11] but must make its decision on the evidence before it, some of which may not have been before the original decision-maker.[12]
[11] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
[12] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
Importantly, the Minister has the power to make Directions (under subsection 499(1) of the Act) which are binding on decision-makers (subsection 499(2A)) including this Tribunal. These Directions specify the matters which the decision-maker must consider and assess in coming to their determination. The prescribed considerations are not however exhaustive and, provided the Tribunal has considered all of them, it is open to the Tribunal to take into account other matters provided they are relevant to the individual circumstances of the application under review.
On 8 March 2021 Ministerial Direction, Number 90 (MD90) came into effect and it is the provisions of this Direction which governed the decision-making process of the original decision-maker and hence, of this Tribunal.
Ministerial Direction 90
The Direction commences with a Preamble which applies to all parts of the Direction and establishes a number of guiding principles which provide a framework within which decision-makers should approach the task of deciding whether to affirm or set aside a decision made under subsection 501(2) of the Act.
In particular, the Direction provides inter alia that:
·being able to come to or to remain in Australia is a privilege conferred 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;
·non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia;
·there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
·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 for a short period of time.
Sub-paragraph 8.1(2) of Part 2 of the Direction starts with a general instruction for a decision-maker to consider the “nature and seriousness of the conduct”.
In terms of the “nature and seriousness of the conduct” the decision-maker is obliged to consider the extent to which the conduct involves crimes of a violent or sexual nature, crimes against women and children and acts of family violence. The decision-maker must also (inter alia) consider the frequency of the offending behaviour and whether it displays and trend of increasing seriousness, the cumulative effect of repeated offending and whether an individual has received prior warning about the consequences of further offending.
The Direction then elucidates four primary considerations which should generally be given greater weight than the other considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79. This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.
Section 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which include (but are not limited to):
·international non-refoulement obligations;
·extent of impediments if removed;
·impact on victims; and
·links to the Australian community, including:
ostrength, nature and duration of ties to Australia; and
oimpact on Australian business interests.
The Tribunal is required to consider each of the items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, the Court stated in SZJSS that: “[t]he weighing of various pieces of evidence is a matter for the Tribunal.”[13]
[13] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
Once weight is assessed for each criterion, where there are competing assessments, and a balance to be arrived at, it becomes a matter of the Tribunal engaging in a process of “calculus”[14] to arrive at a final determination.
[14] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
In determining the “weight” to be given to each of the criteria, the Tribunal assigns:
·“neutral” weight where the criterion counts neither for nor against the Applicant;
·“limited” weight where the criterion counts one way or another but not to any great extent and where evaluation is finely balanced but just falls on one side or the other;
·“moderate” weight where the criterion counts one way or another bit is it clear that the evaluation falls on one particular side; and
·“significant” weight where the criterion counts one way or the other very heavily (and in some cases determinatively) on one particular side.
It is important to understand what the Ministerial Direction is and what it is not. In the Preamble to the Direction, it states clearly as an “Objective” (emphasis added):
5.1(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2) of the Act, such decision-makers must comply with a direction made under section 499.
In Matthews the Full Federal Court has explained (in relation to an earlier Ministerial Direction in similar terms):
[i]t is important to emphasise that the express purpose of Direction 65 is “to guide decision-makers performing functions or exercising powers under section 501 of the Act” (para 6.1(4), Direction 65; emphasis added). It remains the task of the Tribunal to determine what is and is not relevant in the circumstances of the individual case.[15]
primary considerations
[15] Matthews v Minister for Home Affairs [2020] FCAFC 146 at [45].
Protection of the Australian Community
Under this criterion the tribunal must give specific attention to:
·the nature and seriousness of the non-citizen's conduct to date; and
·the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and Seriousness
The Ministerial Direction (at 8.1.1(1)) sets out some guidance as to what is to be regarded as a “serious” offence and the Tribunal “must” have regard to this guidance. The Direction indicates that “violent” crimes; crimes against vulnerable people (including women and children) and acts of family violence are “very” serious matters. Regard must also be had to crimes committed against government representatives (including police) undertaking their duties; crimes committed while in immigration detention and the frequency and increasing trend of seriousness in any offending behaviour.
Risk of re-offending
In assessing risk, the Tribunal accepts that there is no such thing as an entirely risk-free guarantee of future conduct. The degree of risk is related to both the likelihood of reoffending and the potential gravity of such future offences.[16] Any such assessments must necessarily be speculative and weigh what an Applicant or their witnesses says about his or her own future conduct against what the evidence before the Tribunal suggests.
[16] Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757 at [26]; Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 at [89]-[104].
The Federal Court has also made it clear that each case must be taken on the basis of its particular circumstances and individual set of facts. It has warned that:
There is a risk that a general view might be taken concerning the manner in which the discretion under s 501(1) is to be exercised in all cases where there has been a history of driving offences.[17]
[17] JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762 at [22] per Colvin J.
It went on:
The task entrusted to the Tribunal when reviewing the exercise of the discretion under s 501(1) in cases like the present case is to form a particular view about the nature and seriousness of the particular circumstances of the offending by the particular visa applicant and the harm of re-offending and the risk to the community if there was re-offending of that character having regard cumulatively to the nature of the harm from such re-offending and the likelihood of such re-offending. A similar analysis applies where the issue concerns ‘other serious conduct’. It is insufficient to discharge this task by forming generic conclusions without regard to the specific circumstances of the particular case.[18]
Discussion
[18] Ibid.
There is no doubt that offences involving firearms, especially their reckless discharge in a public place constitutes a serious offence. Referring again to the sentencing remarks, His Honour stated:
86 …The offence was clearly premeditated, notwithstanding that the planning was not sophisticated. I further reject the submission made on behalf of the offender that the offence was not committed with the goal of achieving another criminal purpose. Rather, the offender armed himself and entered the hotel premises so as to commit a theft of the gaming room takings. There is no other rational inference to be drawn from the agreed facts. Having regard to all of the circumstances, I find that the offending did fall below the mid-range for an offence pursuant to s 93GA(1) of the Crimes Act 1900, but not far below it. It constituted very serious offending, which put not only the security guard but all patrons of the hotel in serious risk of harm.[19]
[19] G-documents at 51.
The Respondent claims that, “the seriousness of the applicant’s offending is reflected in the lengthy prison sentence imposed”.[20] However, the Tribunal does not accept this as a fair characterisation. Although any prison sentence is a reflection of the gravity of an offence,[21] the imposition of a three-year sentence and a reduced non-parole period of 18 months for an offence which carries a maximum penalty of 14 years is more indicative of the Court taking an approach which reflects, in its mind at least, a lesser degree of seriousness than might otherwise be the case.
[20] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at [24].
[21] Pavey and Minister for Home Affairs [2019] AATA 4198 at [44].
On the other hand, the Tribunal accepts that the lamentable record of multiple offences over a period of time and their increasing gravity (from minor shoplifting or drug possession to a firearms offence) engages the provisions of sub-paragraphs 8.1.1(1)(d) and (e) of the Ministerial Direction as counting against the Applicant.
In her assessment report Ms Baker reported that the tests she had conducted suggested that the Applicant had a “moderate” risk of re-offending “should he not be provided with services that address his criminogenic needs,”[22] a matter noted by the Sentencing Judge.
[22] G-documents at 102, Baker report at [35].
The Applicant points out that he has a good record of having addressed some of the issues of his substance abuse and records his success with the MERIT programme as attested by several reports from the programme itself.[23]
[23] Ibid at 238, 239, 242-244.
Against this the Respondent contends:
“(c) the sentencing judge found that the applicant's offending was 'no doubt driven by his drug addiction'. While the applicant claims to have remained abstinent from drugs in the prison and immigration detention, his abstinence remains untested in the community. The Tribunal should not have confidence the applicant will avoid relapsing in the community noting that he reported relapsing twice while undertaking the MERIT program in 2020 and has had a prolonged history of drug addiction, starting when he was aged 14. Although the applicant is currently enrolled in a methadone program, a pre-sentence report dated 13 December 2012 stated that the applicant was previously admitted to a methadone program in March 2011 and that it seemed 'effective', yet he went on to relapse and reoffend;
(d) despite expressing a willingness to engage in treatment, and despite Ms Blaker (sic) recommending that it is 'essential that Mr Sequera continue to receive treatment both while incarcerated and once he returns to live in the community', including 20 sessions of psychological therapy upon his return to the community it was noted that 'to date he has not engaged with a psychologist or drug and alcohol counsellor in the community for any extended period, having only attended a one or two therapy sessions on a few separate occasions'. Moreover, there is no evidence that the applicant has engaged in regular psychological treatment or counselling in prison or in detention. His IHMS records reveal that he has only attended three mental health consultations in September 2022; and
(e) the applicant lacks sufficient protective factors in future to guard against reoffending, for example, stable employment, pro-social peers, and stable family relationships.”[24]
[24] Respondent’s SFIC at (incorrectly numbered) paragraph [26]. Citations omitted.
When asked at the hearing as to what steps the Applicant would take to address the issues raised by Ms Baker in her report, he referred to a submission to the Tribunal dated 20 June 2022 in which he set out his goals to be involved with the Exodus Foundation which assists people who are homeless and in need of welfare support to connect to support services; the Father Chris Riley Youth off the Streets programme and to enrol and complete a Certificate-level course in community services with a view to becoming a community volunteer or worker.[25] The Tribunal notes a letter of support for the Applicant from Ms Huong Pham, an Intake Case Worker with the Exodus Foundation.[26]
[25] G-documents at 88.
[26] Ibid at 111.
This does not entirely address the need for the Applicant to engage more proactively with counselling and support services, both in the area of mental health care and in relation to abstinence management. The Applicant did however display an understanding of the fact that, if released, he would be able to access a Mental Health Plan through the Medicare system.
However, in this instance there is an additional incentive for compliance, not always present in applications akin to this, and that is the fact that the Applicant, if released into the community would be on bail until 8 September 2023.[27] In submissions the Applicant has claimed to be a “model prisoner”[28] and there is nothing either in the documentation or in the submissions of the Respondent to refute this claim. The Applicant was released on bail at the earliest date available and it is quite clear that he understands that any breach of his bail conditions would result in the first instance in his immediate return to full-time custody and thereafter, almost inevitably to the further cancellation of his visa with all the attendant consequences.
[27] Ibid at 55.
[28] Ibid at 80.
The Applicant indicated that he had arrangements in place, prior to his incarceration for continued access (via a pharmacy) to the methadone programme and that over time he had reduced his dosage levels from 30 ml to 12ml which is a positive sign.
Conclusion
All of these factors taken together are persuasive to the Tribunal that, although the Applicant’s offence was one of some seriousness, his risk of reoffending is low and hence the threat to the Australian community is not great.
The Tribunal finds this criterion counts against the Applicant but only to a limited degree.
Family violence
The parties are agreed that no matters of family or domestic violence have been raised in these proceedings and as such, it is not necessary to consider the matter further and hence the criterion should be weighed as neutral in respect of the Applicant.
The best interests of minor children
MD90 (at 8.3(4)) sets out the issues to be considered by decision-makers in this regard. They include matters such as the nature and duration of the Applicant’s relationship with the children, the nature of their parental role, the possible effects of separation on the children, the views of the children (to the extent they are known and taking into account the level of maturity or understanding of the child) and whether or not the children have been exposed to or suffered from physical abuse by the Applicant.
Moreover, the interests of each minor child identified must be taken into account separately and such children’s interests are not subject to some “high level” collective assessment.[29]
Discussion
[29] Minister for Home Affairs vStowers [2020] FCA 407 at [66].
There is only one minor child involved in these proceedings, a son (MS) born in July 2007.[30] The evidence in relation to this child was clear. The Applicant has had no contact with him for the best part of 11 years.[31] He has no idea where the child and his mother are (even if they are still in Australia). He has no idea about the child’s current family circumstances, including the presence or absence in his life of a male role model, step-father or other male playing a parental role. He knows nothing of the child’s welfare nor his education. Apparently, there is a court order for the Applicant to pay child support but such payments have been rare and intermittent.
[30] G-documents at G9 page 6.
[31] Ibid at G9 page 7.
The Applicant told Ms Baker and this Tribunal that he deeply wanted to reconnect with his child and provide him with some form of support.[32] He also makes the submission that in a short period of time MS will reach the age of 16 years and will be in a position to make somewhat more of his own choices about reconnecting with his biological father.[33] In any event there is a limited time before the son turns 18 for the Applicant to play a positive parental role in his life as outlined in the Ministerial Direction (at 8.3(4)(b)).
[32] Ibid at 94. Baker report at [11].
[33] Applicant submission dated 13October 2022.
All this may be true, but the Tribunal notes that the Applicant’s wishes are not themselves any determinant of the best interests of the child. There is no evidence from the child or from any family member on this and all that is a matter of record is the mother’s prohibition on the Applicant’s access. As a matter of practicality, were the Applicant to be released he would be subject to his bail conditions which might inhibit his ability to reach out to try and find the child in the first instance (although this cannot be known for sure). The process would be lengthy and complex and there is no certainty that the child would want to have someone reintroduced into his life after some 11- or 12-years’ absence. The presumption that it must always be in the best interests of the child for contact to be resumed is not to be made without supporting evidence, although the Respondent does this in its SFIC (at [29]).
The plurality of the High Court in Uelese concluded that:
Sometimes the best decision ‘about’ whether cancellation is, or is not, in the best interests of the child may be that it is neither.[34]
[34] Uelese v Minister for Immigration and Border Protection [2015] HCA 15 at [67].
In Paerau Perry J found that there was insufficient probative material for the court to make decision on this criterion[35] and the Tribunal was warned against making “an intuitive conclusion” about the best interests of a child in GCRM.[36]
Conclusion
[35] Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28 at [117]-[118]; Meyrick v Minister for Home Affairs [2020] FCA 677 at [39]-[41].
[36] GCRM v Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 678 at [29].
The evidence before the Tribunal is such that it is not possible to conclude that it would be in the best interests of MS for the Applicant to be allowed to remain in Australia. Nor can an opposite conclusion be reached. The criterion must the count neutrally in respect of the Applicant.
The expectations of the Australian community
Sub-paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Sub-paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
That norm referred to in the Direction is to be understood as providing that:
·the Australian community expects non-citizens to obey Australian laws while in Australia;
·where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and
·non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person not continue to hold a visa.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (at 8.4(3)).
Discussion
This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (at 8.4(4)).
This consideration has been the subject of extensive judicial discussion which is ultimately determinative.[37] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in MD90 at paragraph 8.4. Although these principles are discussed in relation to the former MD79, those principles are relevantly analogous in principle with respect to MD90.
[37] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[38]
Conclusion
[38] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision. However, as noted, the weight to be given to this (or any other consideration) is a matter for the Tribunal itself to determine.
In this instance, given what the Tribunal has concluded about the nature of the offence and the risk of re-offending the Tribunal accords it moderate weight against the Applicant.
“Other” considerations
Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman that:
[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.[39]
[39] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28]. Ministerial Direction 65 was a precursor of MD90 and was operative from 23 December 2014 to 28 February 2019.
His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[40]
[40] Ibid at [26].
Colvin J’s statement was considered and not disapproved of by the Full Federal Court in HSKJ[41] and more clearly supported by Wigney J in FHHM. [42]
[41] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [31]-[35].
[42] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 at [21].
This principle has been affirmed in a number of Tribunal cases,[43] for example being made explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
…factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.[44]
[43] Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947 at [131]-[137].
[44] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
In Tewhare the Tribunal made it clear that:
While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[45]
[45] Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875 at [50].
In CZCV the Tribunal stated:
When read in light of the Full Court’s comments in HSKJ, in the Tribunal’s opinion, it would be correct to state that although the Tribunal cannot elevate an other consideration to become a primary consideration, it can give greater weight to an other consideration over a primary consideration.[46]
[46] CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 at [164]. As noted above, Ministerial Direction 65 (effective 23 December 2014 to 28 February 2019) is an analogous predecessor of Ministerial Direction 90 and the relevant parts are expressed in the same terms.
The Full Bench of the Federal Court gave specific reconsideration of the reasoning in Suleiman in its recent determination in FHHM where it said:[47]
[34] The point made in Suleiman was that the other considerations referred to in the direction were not inherently secondary and were not secondary in all circumstances. Generally, the primary considerations were such that they were to be given greater weight. However, particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations. It may be noted that the reference in Suleiman to an inquiry as to whether the case is outside the circumstances that generally apply should not be read as requiring an inquiry as to whether there was something about the nature of the case of the person wanting to maintain their status as a visa holder that was unusual or uncommon or out of the ordinary. Rather, the question was whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.
[39] …the reasons in Suleiman are not dealing with the weight to be given as between primary considerations. They are dealing only with the relative weight as between other considerations and primary considerations.
[40] …the final sentence in [23] of Suleiman… is dealing with two possibilities. First, one or more of the other considerations being treated as a primary consideration. Second, one of the other considerations being afforded the greatest weight of all the considerations (including primary considerations).
[47] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
Non-Refoulment obligations
It is agreed between the parties that there are no non-refoulement obligations engaged in these proceedings and so the Tribunal finds that this criterion counts neutrally as far as the Applicant is concerned.
Extent of impediments if removed
Sub-paragraph 9.2(1) of MD90 requires the Tribunal to consider, if relevant:
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.
The comparator here is not the difference between services or supports available in Australia as compared with those in South Africa, but rather the extent to which the Applicant, if returned there, would be on equal footing with other comparable citizens of that place.
Discussion
In many respects, this is the primary criterion upon which the Applicant bases his application to be allowed to retain his visa and remain in Australia.[48] He asserts that:
(a)South Africa is a dangerous place with a high rate of violent crime and with low levels of personal security;
(b)he has no family members in South Africa who could provide any form of support for him and therefore would be homeless;
(c)he has been in Australia since he was a child of less than one-year of age and apart from a brief visit back to South Africa for four months at age 14, he could not be said to have any appreciation of the culture or mores of that country;
(d)the South African economy is not strong and his employment prospects would be severely limited; and
(e)there would be an interruption to his methadone maintenance programme which would have a significantly negative impact on his health and wellbeing.
[48] G-documents at 14, 80 and 81; Applicant’s Submission dated 14 October 2022; Applicant’s Submission dated 14 March 2022.
The Tribunal accepts that all of these are valid arguments. In the Respondent’s SFIC (at [44]) mention is made of up to 30 “cousins” in South Africa but in oral testimony the Applicant indicated that this derived from an error in his Personal Circumstances Form and that these relatives were located in Australia and not South Africa.[49] It appeared that the Respondent accepted this correction of the record.
[49] G-documents at G9 page 10.
The Respondent itself concedes that this criterion should count “moderately in favour of the Applicant” (SFIC at [44]).
However, the Tribunal would go further.
In the first instance the Tribunal is obliged to give proper consideration to any specific representations made to it by an Applicant, either specifically or where they emerge by inference. The Tribunal must respond to such representations and give its reasons.[50] The Applicant has articulated a fear for his physical safety were he to be returned to South Africa and the matters to which he has drawn the attention of the Tribunal in his various submissions are indicative of the fact that such a fear is well-founded. This is a clearly articulate claim in the sense identified in Omar.[51]
[50] Pihere v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1342.
[51] Minister for Home Affairs v Omar [2019] FCAFC 188.
In particular, the Tribunal is conscious of the Applicant’s continued need for participation in the methadone programme. In this respect the Tribunal notes the following matters:
·In Holloway, the Federal Court made it clear that the term “health” in the Ministerial Direction was to be understood in its broadest sense and that the Tribunal would be in error if it “adopted an unduly narrow view of its meaning.” It must be taken to encompass any “underlying health condition” and any “past history of mental illness” among other things. Moreover this specifically includes any “propensity to relapse into substance abuse”, a matter highlighted in the submissions of the Respondent itself.[52]
·In Maryvan the Federal Court accepted an applicant’s concern about access to “the capacity of the public health care system in […] to deal with or manage the applicant’s mental health and drug addiction” issues and recognised that his “articulated fear was credible” in reference to such matters.[53]
[52] Holloway v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1126 at [13]-[15].
[53] Maryvan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 977 at [37]-[38].
The Tribunal notes that the methadone programme in South Africa is one that operates such that “the high cost of methadone makes it unattainable for the majority of South Africans who need it” according to an Editorial in the South African Medical Journal of October 2018.[54] Bearing in mind that the comparator is not between the South African model and the (free for prescribed Australian users) Australian model, this data nevertheless goes to support the clearly articulated concerns of the Applicant.
[54] Editorial, ‘Developing an advocacy agenda for increasing access to opioid substitution therapy as part of comprehensive services for people who use drugs in South Africa’ (2005) 108(10) South African Medical Journal 800.
In his submission of 14 October 2022, the Applicant refers to “My lack of understanding of the culture” in South Africa and the Tribunal accepts that this constitutes an impediment for someone who has been in Australia since the age of ten months with only one brief four-month visit to South Africa as a teenager.
Conclusion
Consideration of all the elements encompassed in the criterion lead to a conclusion that this weighs significantly, almost determinatively, in favour of the Applicant.
Impact on victims
Subparagraph 9.3(1) of the Ministerial Direction directs the decision-maker to have regard to the impact:
on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims.
Discussion
At the Applicant’s trial in September 2021, Mahoney DCJ allowed into evidence a victim impact statement made by the daughter of the security guard with whom the Applicant had had his confrontation in 2014.[55] In the extraordinarily lengthy period between the commission of the offence and the trail (some seven years) the security guard had died. Nevertheless, a statement prepared by his daughter attesting to the impact on him of the offence was before the court. There is no such material before this Tribunal and as such the Tribunal finds that there are no identifiable victims of the Applicant’s conduct.
Conclusion
[55] G-documents at 40-42.
This criterion counts neutrally is respect of the Applicant.
Links to the Australian community
The Ministerial Direction (at 9.4.1) makes it clear that the Tribunal must consider not only the position of the Applicant but also “the impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, permanent residents or people who have right to remain in Australia indefinitely.” The Tribunal must also consider factors such as how long the Applicant has lived in Australia; when an applicant commenced offending related to their date of arrival and what positive contribution they may have made to the Australian community.
Paragraph 9.4.2 of the Direction requires specific consideration of the impact of any potential removal on Australian business interests.
Discussion
In relation to other members of the Applicant’s family there is little of significance before the Tribunal. It has three letters of support, respectively from the Applicant’s mother (Cheryl Auer), his aunt (Brenda Isaacs) and his stepsister (Blye Auer). None of them was called as a witness. Although the letters generally support the return of the Applicant into the community, none is particularly robust nor is there any offer of meaningful future support for the Applicant.
In relation to his mother, who writes that she will “need him to help look after me in my old age” there is no indication how this will be managed, and it was the Applicant’s own testimony that he had not really spoken to her for the last ten years and did so only spasmodically after the death of his father in December 2021. In any event his mother is not alone as she has support from her current husband and other family members. It was similar in relation to his aunt in terms of lack of contact, with the Applicant explaining this on the basis that, “I keep to myself” in terms of his lifestyle.
The Applicant has had several broken periods of stable employment,[56] interrupted by such things as hospital admissions and incarceration.
Conclusion
[56] G-documents at 12.
Given the limited nature of contact between the Applicant and his family over the past decade or more, and his broken periods of employment, it cannot be said that either weighs particularly in favour of the Applicant. He has ties to Australia simply by virtue of his lengthy residence here, but he has not made any significant contribution to either the community or the economy. Even taking business interests at their lowest level as suggested in Arachchi[57] there is nothing favourable to the Applicant.
[57] Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 at [68].
The length of time in the community and the arrival at any early age (at 9.4.1(2)(a) of MD90) suggest simply that this criterion be given limited weight in favour of the Applicant.
Further “other” considerations
Sub-paragraph 9(1) of MD90 lists the matters to be taken into account as “other considerations” and those have been elucidated above. However, the clause is clearly not intended to be exhaustive. MD90 relevantly states (emphasis added):
In making a decision under section…501(2)… other considerations must also be taken into account, where relevant… These considerations include (but are not limited to)…
The High Court has addressed this matter in holding that:
The breadth of the power conferred by s 501CA of the Act renders it impossible, nor is it desirable, to formulate absolute rules about how the Minister might or might not be satisfied about a reason for revocation.[58]
[58] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13 at [15].
Further, in Plaintiff M1 the High Court majority stated clearly that the Act:
[c]onfers a wide discretionary power on the decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked.[59]
[59] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22].
The decision-maker must proceed from the starting point of the representations (however made) of the applicant and must consider those but equally, “[i]t is, however, improbable that Parliament intended for that broad discretionary power to be confined”[60] to only those representations.
[60] Ibid at [23]
In dissent, Edelman J dealt with the same matter, stating:
The reasons that can constitute “another reason” are unlimited, other than that they must be reasons other than whether the person has passed the character test.[61]
[61] Ibid at [70].
Throughout the proceedings, and in line with the position taken by the Sentencing Judge, the Tribunal accords the Applicant significant credit for his attempts at rehabilitation and abstinence. Those efforts have not always been fully successful and there have been relapses. Contrary to the position taken by the Tribunal in El Khoureiry[62] this Tribunal does not believe that this is indicative of an inevitable return to substance abuse. Rather, the struggle will be difficult for the Applicant, but he has shown a genuine determination to meet such challenges.
[62] El Khoueiry and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3577.
Conclusion
In setting out the “calculus” based upon the individual criteria of MD90, the Tribunal finds that, in relation to each of the criteria vis-à-vis the Applicant:
(a)protection of the Australian community weighs against the Applicant to a limited extent;
(b)family violence considerations weigh neutrally;
(c)best interests of minor children weigh neutrally;
(d)expectations of the Australian community weigh moderately against the Applicant;
(e)non-refoulement obligations weigh neutrally;
(f)extent of impediments if removed weigh significantly in favour of the Applicant;
(g)impact on victims weigh neutrally; and
(h)links to Australia weigh in favour of the Applicant to a limited extent.
The Tribunal is aware that the Ministerial Direction provides that primary considerations should “generally” be given greater weight than those categorised as “other” but even doing so, the calculus appears very finely balanced, but just tends in favour of the Applicant.
Under such circumstances it is particularly appropriate to have regard to the exhortations of Chief Justice Allsop in Hands to the effect that:
By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.[63]
[63] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3]. Markovic and Steward JJ agreeing. Citations omitted.
Just as the Sentencing Judge was “impressed by the offender’s oral evidence”; “satisfied [that] he is genuinely remorseful for his offending”; “had demonstrated progress in his rehabilitation” deserved “great credit” for his engagement with the MERIT programme, and in relation to his drug addiction has “good prospects of rehabilitation”,[64] so indeed was the Tribunal.
[64] G-documents at 49-53. Refer to sentencing remarks at [91], [90], [80], [94] and [77].
The Applicant demonstrated a clear understanding of his past offending, the impact which it had on victims, the steps necessary for him to take to address both his drug use and mental health issues, the discipline imposed by potentially continuing bail conditions and a well-founded fear of the consequences of his deportation to South Africa.
To the further extent that the Tribunal does not regard the Applicant as posing a potential threat to the Australian community, or individuals within it, it can see no benefit to be gained from excluding him from returning to the community and potentially making a contribution to it, while the alternative would impose upon him a burden of perhaps intolerable magnitude.
DECISION
The reviewable decision is set aside and in substitution, cancellation of the Applicant’s visa is revoked.
I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.........................................[sgd]...............................
Associate
Dated: 28 November 2022
Date(s) of hearing: 15 November 2022 Applicant: In person Solicitors for the Respondent: Mr Z McCaughan, MinterEllison
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