Smith and Minister for Home Affairs (Migration)

Case [2018] AATA 4173

Smith and Minister for Home Affairs (Migration) [2018] AATA 4173 (7 November 2018)

Division:GENERAL DIVISION

File Number(s):      2018/4828

Re:Alecia Smith

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Chris Puplick AM

Date:7 November 2018

Place:Sydney

The reviewable decision made on 17 August 2018, being the decision of the delegate of Minister for Home Affairs not to revoke the cancellation of Ms Smith’s Class TY Subclass 444 Special Category (Temporary) visa, is set aside.

In substitution, the decision to cancel Ms Smith’s visa, made on 18 January 2018, is revoked.

...........................[sgd]...........................................

Senior Member Chris Puplick AM

CATCHWORDS

MIGRATION - Class TY Subclass 444 Special Category (Temporary) visa - mandatory cancellation - non-revocation - failure to pass the character test - Ministerial Direction No 65 - criminal convictions - driving offences - drug offences - dishonesty offences - protection of the Australian community - expectations of the Australian community - strength, nature and duration of ties - impact on Australian business interests - extent of impediments if removed - decision set aside

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

CASES

Abebe v Commonwealth [1999] HCA 14

Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755
AFY18 v Minister for Home Affairs [2018] FCA 1566
Alam and Minister for Immigration and Border Protection [2017] AATA 1233
Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27
Ayache and Minister for Immigration and Border Protection [2018] AATA 310
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
BFXK and Minister for Immigration and Border Protection [2018] AATA 886
Bowdler and Minister for Immigration and Border Protection (Citizenship) [2018] AATA 347
Bushell v Repatriation Commission [1992] HCA 47
CHFQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198
Commonwealth v Twyman (1985) 8 ALD 554
Contreras v Minister for Immigration and Border Protection [2015] FCA 47
Dinkha and Minister for Home Affairs (Migration) [2018] AATA 3037
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re Drake and Minister for Immigration and Ethnic Affairs (No.2)(1979) 2 ALD 634
Do and Minister for Immigration and Border Protection [2016] AATA 390
Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Fu (Migration) [2018] AATA 732
G v Minister for Immigration and Border Protection [2018] FCA 1229
Re Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission (2000) 62 ALD 472
Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
KDSP and Minister for Immigration and Border Protection [2017] AATA 2169
Re KLGL and QCYY and Australian Prudential Regulation Authority [2008] AATA 452
LMYW and Minister for Immigration and Border Protection (Migration) [2016] AATA…

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AGLC
Smith and Minister for Home Affairs (Migration) [2018] AATA 4173
Case
[2018] AATA 4173
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Ms Smith for a review of the Minister for Home Affairs' decision to mandatorily cancel her Class TY Subclass 444 Special Category (Temporary) visa. The cancellation was based on Ms Smith failing to pass the character test due to criminal convictions, including driving, drug, and dishonesty offences. The review was heard by Chris Puplick AM SM.

The primary legal issues before the court were whether the mandatory cancellation of Ms Smith's visa should be revoked, and in doing so, to assess the weight and value of the material presented, including evidence of her ties to Australia, the potential impact of her removal, and any risk of harm if returned to New Zealand. The court was required to conduct a de novo review, standing in the shoes of the original decision-maker and making the correct and preferable decision based on all the material before it.

The court considered extensive third-party evidence supporting Ms Smith, including testimony from her fiancé's family regarding her positive influence on his rehabilitation from drug addiction and her integration into their family and business. Evidence was also presented regarding her fear of retribution from a New Zealand gang, which the court noted must be given attention as it could engage Australia's non-refoulement obligations. The court affirmed that the weighing of various pieces of evidence is a matter for the Tribunal, which must approach the review independently and make its own decision on the merits.

The decision ultimately set aside the mandatory cancellation of Ms Smith's visa.

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

Both in written and oral testimony he detailed his strong relationship with and love for the Applicant. He indicated that she had become a positive contribution to his life and was helping him deal with his drug problems. He asserted that the Applicant was very much accepted as a member of the Habeebeh family and that they were committed to a life together, marriage and the commencement of a family.THIRD PARTY EVIDENCE ON BEHALF OF MS SMITH The Applicant submitted a number of references in support of her application and called a number of witnesses to give direct testimony.(a)Written and Oral Testimony:oHabeebeh Family[45]: a letter was provided signed by five members of the Habeebeh family who are related to Mr Laith Habeebeh, the Applicant’s fiancé. The signatories are his mother (Nibal), his father (Zuhair), his two sisters (Janine and Lucinda) and his brother (Jacob). The gravamen of the letter is to the effect that the family is highly dependent upon Laith Habeebeh to run and manage one of their major sources of family income, a tobacconist and gift shop in Penrith. They attest that Alicia has made a positive contribution to Laith’s life and has been of help to him in overcoming his own problems of drug addiction and rehabilitation. In their letter they talk of the marginal financial nature of their business and state that they need Laith to manage the shop because “we cannot afford to employ anyone” to assist with this process.[45] Applicant’s Submission at [106-107], reference of Habeebeh family dated 10 October 2018.oZuhair Habeebeh[46]: He has known the Applicant for 3 to 4 years and occasionally visited her in Silverwater Women’s Prison, although not at Villawood. As a witness he stated that he knew something of the Applicant’s criminal history; was aware her daughter “had mental health problems”; was an active partner in the management of the family business and would certainly employ the Applicant, regardless of her criminal history. He reported that he and his wife were in the process of separating and that this imposes additional burdens on his son in relation to both care of his mother and management of the family business interests.[46] Written reference at Section 501 – G Documents, [70] and Applicant’s Submission at [81].oNibal Habeebeh[47]; She describes herself as “a very religious person of the orthodox faith” who has known the Applicant for 2 years and “see(s) her as my own daughter”. She reports that the Applicant has had a major impact on her son and has helped him “not to do drugs today”. When pressed by the Respondent about her willingness to employ the Applicant in the family business she evidenced some difficulty in reconciling her stated willingness to do so with the clear reference in the Family statement that the business could not afford any further employees.[47] Applicant’s Submission at [89].oLucinda Habeebeh: She is employed as a mortgage vendor at the Commonwealth Bank; she knew something of the Applicant’s criminal history but was anxious to stress the positive impact the Applicant had had on the rehabilitation of her brother, Laith.oJanine Habeebeh[48]: She is a solicitor recently admitted to practice. She provided testimony demonstrating that she knew a considerable amount about the personal background of the Applicant and some degree of her criminal history. Her testimony was of particular interest in that she indicated that her brother, Laith, had caused strained relationships in the family (especially with her) because of his drug use and offending and she was of the opinion that both the Applicant, and her brother were at risk of relapsing into drug offending behaviour in the absence of mutual support for each other. She confirmed that family’s intention of giving the Applicant employment in the family business and stated: “I believe that Alecia will immediately use a last chance granted to prove to herself and others that she can in fact be a productive member of our society.” She raised, in her written submission that the Applicant had expressed to her a fear that members of a New Zealand gang “are still looking for her”.[48] Applicant’s Submission at [90-91].oAlicia Tohi[49]: She is a family friend of the Applicant and got to know her through her daughter Marlene. She has kept in touch with the Applicant during the latter’s incarceration and regards her as a person who has genuinely come to understand her past behaviour and expresses genuine remorse about it. She believes that the Applicant would have a strong chance of rehabilitation because, “this would be the first time in her life that she has family support from her daughter and her fiancé and his parents.” She believes that the Applicant’s presence is important to Marlene “who suffers from mental health problems”; although in her oral testimony she confirmed that Marlene was living independently and managing her life quite well.oMalik Hallacoglu[50]: He is a former employer of the Applicant who provided two written references and gave oral evidence by telephone. It was clear from his evidence that he held the Applicant in this highest regard as an employee and found her to be highly motivated, competent and hard-working. He has known the Applicant over a 15 year period and although not fully aware of all her convictions, when they were put to him and when he was asked if he would employ her again, he showed no hesitation in stating that he would do so without qualification and do so immediately. He indicated that he generally supported government policies to cancel the visas of people who had committed serious crimes (gang violence, crimes against the vulnerable, armed offences) but in the Applicant’s case he stated “But as Australians, we are fair and reasonable people. We are a nation that sympathizes with people that have had a rough and traumatic childhood. The scourge of drugs is well known to break families down within our community and rather than being a threat, we need to help this young women (sic) find her feet.”(b)Written testimony onlyoVictoria Nicholson[51]: She met the Applicant when they were both in custody at Dillwynia Correctional Centre and writes now as a grandmother undergoing treatment for breast cancer. She wrote that she has known the Applicant for over a decade and finds that she is a reformed character with a commitment to keeping drug-free, building her personal relationships and caring for her daughter.oJoanne Kerr[52]: She is a member of “Hillsong United” and wrote that the Applicant “used to be a very active member of the church’s Sister Hood United program” and that when she participated she was a valuable member of that organisation.oGaspero Ladrov[53]: He is a former employer of the Applicant (Well Get You There) who wrote that she was a hard working employee who deserves a second chance to prove her worth to the community.oAxel Anthonisz[54]: He was the Applicant’s case manager at Guthrie House and wrote that the Applicant successfully completed their programme which is focussed upon transitioning women from custodial care back into the community. He was last in contact with her in January 2016 but during the period she was in their programme found her to be “stable, calm and motivated to achieve her goals.”oShop References[55]: Laith Habeebeh provided a series of pro-forma letters to be completed by people coming into his tobacconist at Windsor which asked them to state that they had known the Applicant during her period of employment there, that they knew of her offences and her period of incarceration but that they nevertheless believe that she should be given a chance to remain in Australia. There were seven such pro-forma letters.[49] Applicant’s Submission at [82-83].[50] Applicant’s Submission at [99-105].[51] Applicant’s Submission at [85-86].[52] Applicant’s Submission at [92].[53] Applicant’s Submission at [219].[54] Applicant’s Submission at [108-109].[55] Applicant’s Submission at [110-123].

Decision

Reasons for decision

In doing so it is important to note that the Tribunal must approach this matter de novo.THE TRIBUNAL IN THE SHOES OF THE DECISION-MAKER The Tribunal is established as a merits-review body. Its responsibility is to review administrative decisions (made under legislation conferring such powers upon it) taking into account the merits of the case in question, the need to reach the correct and preferable decision in each individual case and to promote the objectives of good government.[66][66] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307. It is important to state the general principles upon which the Tribunal must proceed in its own independent decision making. These may be summarised as including:“The Tribunal’s duty is to make the correct and preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”[67]“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct and preferable one on the material before the Tribunal.”[68]“The decision under review, as distinct from the reasons for it, must be given no weight by the AAT. The decision is to be reviewed for the correct and preferable decision reached: the original decision itself cannot influence the AAT in reaching its conclusion.”[69]“….in reviewing the Board’s decision, we must make the decision afresh and are not limited to a consideration of whether the Board’s decision was open on the evidence. We are not limited to the evidence before the Board.”[70]“The review undertaken by the Tribunal was in the nature of a de novo review on the merits. For that purpose, the Tribunal stood in the shoes of the original decision-maker (here the maker of the non-revocation decision) and was so obliged to apply the criteria governing the exercise of the power in s 501 CA of the Act at the time of its own decision.”[71]“Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the “material before the Tribunal”…….But ultimately, it was for the Tribunal to reach its own decision upon the relevant material, including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.”[72]“…. the A.A.T is an administrative decision-maker, under a duty arrive at the correct or preferable decision in the case before it according to the material before it.”[73][67] Re Drake and Minister for Immigration and Ethnic Affairs(No.2) [1979] 2 ALD 634 at [640].[68] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at [page 11].[69] Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworth, 4th edition, 2015) at page 301 citing Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198; Commonwealth v (1985) 8 ALD 554 and Re KLGL and QCYY Australian Prudential Regulation Authority [2008] AATA 452.[70] Re Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission (2000) 62 ALD 472 at [72].[71] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.[72] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.[73] Bushell v Repatriation Commission [1992] HCA 47 at [3] per Brennan J.

Ratio Decidendi

Legal Principle Established

It is up to the Tribunal to assess the material before it and to assign it the weight and value it thinks appropriate. This view is clearly stated in the authorities:“The weighing of various pieces of evidence is a matter for the Tribunal.”[74]“In the end the criticisms made by the applicant of the Tribunal’s reasoning are criticisms if the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.”[75][74] SZJSS and Others v Minister for Immigration and Citizenship [2010] HCA 48: unanimous decision of the High Court.[75] Abebe v Commonwealth [1999] HCA 14, 197 CLR 510 at [580] per Gummow and Hayne JJ.A NECESSARY PRELIMINARY CONSIDERATION In her written statement to the Tribunal, Ms Janine Habeebeh, who is a solicitor admitted to practice in NSW wrote:“Alecia would always tell me she could never forgive her biological mother for raising her in the ‘black power sister gang’ as it significantly affected her upbringing. Her purpose for moving to Australia was to escape this life and she believes that members of this gang are still looking for her.”[76][76] Applicant’s Submission at [90-91], statement of Janine Habeebeh dated 20 September 2018. In Ms Smith’s own Statutory Declarations there is only one brief mention of gang-related matters when she writes: “My biological mother Carla Maan was part of the Black Power sister gang Manukaha Sisters….”[77][77] Applicant’s Statutory Declaration, 27 September 2018 at [6]. Although the Applicant did not raise the issue of her fear of retribution or retaliation of some sort by members of a gang were she to be returned to New Zealand, the fact that the matter was put to the Tribunal by one of her witnesses, and raised in cross-examination requires the Tribunal to give it some attention. The Federal Court in BCR16 v Minister for Immigration and Border Protection made it clear:“That returning an individual to a country where there is a real possibility of significant harm, or a real chance of persecution, may contravene Australia’s non-refoulement obligations, is also a matter to be weighed in the balance of deciding whether to revoke a mandatory visa cancellation. Its place in an exercise of discretionary power is quite distinct, and is capable of playing a quite different role in the exercise of the statutory discretion.”[78][78] [2017] FCAFC 96 at [48] Similarly, the courts have held that, “consideration of the risk of harm to which an applicant might be exposed on return to the country of their nationality”[79] must be considered when raised before the Tribunal.[79] Steyn v Minister for Immigration and Border Protection [2017] FCA 1131 at [11] per Jagot J. Although directed to deal specifically with claims for protection visas (a matter not raised in this instance) Part 2 of Ministerial Direction No. 75, Refusal of Protection Visas Relying on section 36(1C) and section 36(2C)(b) issued on 5 September 2017 makes it clear that claims of serious potential harm and persecution must be assessed by decision-makers.