Taylor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 19
•14 January 2021
Taylor and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 19 (14 January 2021)
Division:GENERAL DIVISION
File Number: 2020/6682
Re:Julian Taylor
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:14 January 2021
Place:Melbourne
The Tribunal affirms the decision under review.
[sgd]........................................................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of United Kingdom – Class BB Subclass 155 Five Year Resident Return visa – multiple identities – summons objections – constitutionality submissions – jurisdiction – recusal application – prolonged dishonesty offending – failure to pass good character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Bail Act 1977 (Vic)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)Proceeds of Crime Act 1987 (Cth)
CASES
ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
Bahntoff v The Queen [1999] HCATrans 311
Director-General of Social Services v Chaney [1980] FCA 108
DPP v Taylor [2018] VCC 2026
DPP v Taylor [2018] VCC 2271
Ebner v Official Trustee in Bankruptcy (2000) 255 CLR 135
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gadzikwa v Comcare [2020] FCA 1205
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Isbester v Knox City Council (2015) 255 CLR 135
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
JRL; Ex Parte CJL (1986) 161 CLR 342
Love v Commonwealth of Australia [2020] HCA 3
Maxwell v The Queen (1996) 184 CLR 501
Michael Wilson & Partners v Nicholls (2011) 244 CLR 427
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Murphy v Minister for Home Affairs [2018] FCA 1924
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535PQSM v Minister for Home Affairs [2019] FCA 1540
R v Bahntoff [1998] VSC 314
Rana v Department of Defence [2018] FCA 1642
Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162
Re Patterson; Ex parte Taylor (2001) 207 CLR 391
Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
Taylor v The Queen (2019) 59 VR 163
Viane v Minister for Immigration and Border Protection (2018) 162 ALD 13
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117Weston v The Queen (2015) 48 VR 413
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501C
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
14 January 2021
The Applicant seeks review of a decision by a delegate of the Respondent, made under
s 501CA(4) of the Migration Act 1958 (Cth) (the Act), not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa (the visa).The hearing was held in Melbourne on 6 and 7 January 2021. The parties appeared by audio visual link in accordance with the Tribunal’s COVID-19 Special Measures Practice Direction. The Applicant was self-represented. The Minister was represented by Mr Aviram of Clayton Utz.
For the following reasons the Tribunal affirms the decision under review.
APPLICANT’S IDENTITY
A preliminary issue addressed at the initial Case Management Telephone Directions Hearing (CMTDH) on 5 November 2020 was the Applicant’s identity. He lodged his application as Julian Taylor but is known at the immigration detention centre he is being held at as Steven Robert Barr. This was also the name he was previously imprisoned under.[1] It became clear on later review of approximately 5000 pages of material tendered into evidence, that the Applicant has used multiple identities. In July 2019 the Victorian Court of Appeal noted he had registered ‘multiple changes of name in Victoria.’[2] In hearings before the Court of Appeal in 1998[3] and the High Court in 1999,[4] the Applicant was referred to as Julian Mark Bahntoff. On 8 February 2017, an official of the Victorian Registry of Births, Deaths and Marriages stated that the Applicant ‘is currently known to the Registry as David Stephen Sheehy as this was his last registered change of name in 1991.’[5]
[1] Exhibit R1, 1044.
[2] Ibid, 70; 78.
[3] R v Bahntoff [1998] VSC 314.
[4] Bahntoff v The Queen [1999] HCATrans 311.
[5] Exhibit R2, 2144 [8].
The Applicant accepts he previously used some different names, but disputes that all of those attributed to him in the evidence are past aliases.[6] He claimed many are names of ‘associates’ who allowed him to use their identities. When asked his name during the CMTDH on 5 November 2020, the Applicant stated it is Julian Taylor. The Tribunal will refer to him by that name but is unable to make a reliable finding about his current correct legal name. That follows in part from the nature of the Applicant’s past offending, which includes convictions for Perjury, Forgery, Uttering, Use copy of a false document, Attempted false pretences, and Make/Use/Supply Identification Information to Commit or Facilitate the Commission of an Indictable Offence.
[6] Ibid, 2; 913; 923-925; 933; 987; 1024; 1133; 1303; 1306; 1311; 1316; 2109; 2144; 2146; 2651; 2735-2736.
Given the facts of this case, certain information is redacted to protect the identity of the Applicant’s ex-wives, two children, and family members in Australia.
BACKGROUND
The Applicant was born in England in 1965. He arrived in Australia as a four-year-old with his parents and sibling in 1969.[7] His family settled in Adelaide where a second sibling was born. He eventually attended university and graduated in 1985 with an undergraduate degree in civil engineering.[8] The Applicant did not come from a disadvantaged or unstable background, having attended a private school and possessing considerable intelligence.[9] The evidence refers to him having subsequently completed multiple undergraduate degrees, including while imprisoned.[10]
[7] Exhibit R1, 53 [37]; 1115-116.
[8] Ibid, 37; 1358.
[9] Ibid, 37.
[10] Exhibit R2, 68 [10].
Submissions made at the Applicant’s 2018 trial referred to an unhappy childhood because of his parent’s purportedly stern and unemotional dispositions resulting from their hardships during World War II.[11] It was submitted this caused the Applicant to leave home at the age of 20.[12] He reportedly worked as an engineer in Albury and Melbourne, but lived a ‘very lonely life’ with ‘few friendships.’[13] He claimed to have ‘no real contact’ with his family thereafter, except for brief interaction following the death of his father in July 1990.[14]
[11] DPP v Taylor [2018] VCC 2026.
[12] Exhibit R2, 67 [7].
[13] Exhibit R1, 37.
[14] Ibid.
The Applicant agreed that on 5 May 1988 he acquired Australian citizenship by conferral as Steven Robert Barr.[15] He agreed that he renounced his citizenship on 19 April 1995,[16] claiming it was to protest the Hawke Government’s efforts to introduce the Australia Card.
[15] Annexure A to Respondent’s Statement of Facts, Issues and Contentions (RSFIC) dated 23 December 2020.
[16] Ibid.
In December 1990, the Applicant married his first wife and in March 1991 they had a child.[17] His family’s disapproval of the union resulted in estrangement from his parents and siblings that continues to the present day. He said this marriage ended in 1992 after he received divorce papers while on remand in 1991, notifying him his wife and son had returned to China. The Applicant claimed not to have ‘seen or heard from them since.’[18]
[17] Exhibit R1, 78 [56]; Exhibit R2, 1305; 1308.
[18] Ibid, 53 [39]; 613.
The Applicant was first arrested in 1991 at the age of 26.[19] Between May 1991 and February 1994 he pleaded guilty to and was convicted of 35 dishonesty offences at three court appearances. His convictions resulted in sentences including imprisonment for up to three years and six months, fines, compensation orders and suspended sentences.
[19] Ibid, 1358.
Soon after being released from prison, the Applicant reoffended by lodging multiple falsified income tax returns for financial years ending on 30 June 1994 and 30 June 1995. Some of the false returns were in the names of prisoners he was incarcerated with.[20] Others were in the names of prisoners who had died, or could have arisen from the Applicant’s ‘close reading of newspaper notices,’ or people he had ‘some prior innocent association with.’[21] The Applicant established an intricate array of more than 30 bank accounts in different names and multiple post office boxes to process refund cheques amounting to $322,945. The Court of Appeal described his conduct as a ‘large-scale, highly planned and most ingenious’ criminal enterprise, reflecting Mr Taylor’s ‘necessary formidable combination of intellectual power, criminal skills, diligent application and amorality to fit him to become the Professor Moriarty of Victorian crime’.[22]
[20] Ibid, 34.
[21] Ibid.
[22] Ibid, 38
A further $400,576 in fraudulent claims were detected ‘before the refund was sent, making a total of $723,521 in refunds which would have been paid had matters gone undetected.’[23] Despite restraining orders made in November 1995 under s 44 of the Proceeds of Crime Act 1987 (Cth), the Applicant acted in disregard of those orders by using a false name to open and operate a series of term deposits. He re-directed funds to discharge the mortgage on a property he then owned. He also lodged a caveat in the name of Michael John Taylor, over a property he purchased with the proceeds of the tax returns, in the name of Mark George Rodgers.[24] On each of the 46 counts of defraud or attempt to defraud the Commonwealth, the Applicant was sentenced to six years’ imprisonment to be served concurrently.[25] On each count of breaching a restraining order he received a sentence of 18 months’ imprisonment. He received a sentence of six months’ imprisonment for operating false name bank accounts. The total effective sentence was eight years, with a non-parole period of six years.[26] His appeal against that sentence was dismissed on 14 May 1998.[27] The appeal was lodged in the name of Julian Mark Bahntoff.
[23] Ibid, 35.
[24] Ibid, 35.
[25] Ibid, 34.
[26] Ibid, 34.
[27] Ibid, 32-39.
As Julian Mark Bahntoff, the Applicant sought special leave from the High Court of Australia in 1999, claiming his sentence was ‘manifestly excessive.’[28] In dismissing his application, the Court held that the Applicant’s offending was ‘the product of much ingenuity and planning,’ with several offences committed while the Applicant was ‘on bail for earlier offences,’ and within days of ‘being released from gaol for other crimes of dishonesty.’[29]
[28] Ibid, 1315-1317.
[29] Ibid, 1316.
In 2004, the Applicant married his second wife[30] and they had a child in 2005.[31] He subsequently commenced work as a teacher in Australia, having secured registration by using a false identity and without disclosing his criminal history. This was not discovered until approximately a decade later in 2015 and resulted in the Applicant’s most recent convictions.
[30] Exhibit R2, 1313.
[31] Exhibit R1, 1314.
On 23 August 2007, a formal counselling letter from immigration authorities was sent to the Applicant as Steven Robert Barr. At the current hearing the Applicant denied receiving it. This issue is addressed later in these reasons. The letter stated:[32]
It has come to the department’s attention that in 1994 you were convicted in the Queensland Brisbane District Court of a number of offences including "false pretences” and “forgery” for which you received a total sentence of three years and six months imprisonment.' In addition, you were convicted in 1999 in the High Court of Australia of “defraud public authority of commonwealth”, for which you received a sentence of six years imprisonment.
As you have been convicted of a criminal offence, I would like to advise you of the operation of section 501 of the Migration Act 1958 (the Act).
…
No consideration is currently being given to cancelling your Ex-Citizen (Permanent) visa, under section 501 of the Act. Your Ex-Citizen (Permanent) visa will therefore continue to provide you with permission to remain in Australia.
The purpose of this letter is to warn you that any other conduct on your behalf that comes within the scope of subsection 501(6), could result in the consideration of the cancellation of your visa or refusal of your application under section 501 of the Act. Please note that the consequences of visa cancellation under section 501 of the Act may include your removal from Australia and, in certain cases, bars on re-entering Australia.[33]
[32] Ibid, 111-112.
[33] Ibid, 603-604.
The Applicant stated that he lived and worked in the United Kingdom, the United Arab Emirates (UAE) and China between December 2012 and April 2015.[34] While residing in England he applied for and was granted the Five Year Resident Return Visa (RRV) that was cancelled in this matter. His wife and child remained in Australia during this time. On an Incoming Passenger Card (IPC) on his return to Australia on 26 April 2015, the Applicant responded to the question ‘Do you have any criminal convictions’ by crossing the ‘No’ box. He wrote ‘outside of Australia’ in small text under this box.[35] He also listed his country of residence as ‘England’ and claimed he was a visitor or temporary entrant intending to remain in Australia for one month in order to visit friends or relatives.
[34] Ibid, 912; 1117; 1359.
[35] Ibid, 116.
The Applicant submitted that the relationship with his second wife ended upon his arrest in November 2015, following which he had no contact with their child for some time. His ex-wife’s evidence is that she filed for divorce in August 2015.[36] The Applicant stated that his second wife has since sought to ‘prevent access in any form’ with her or their child.[37]
[36] Exhibit R2, 2105.
[37] Exhibit R1, 53.
After being arrested in November 2015 the Applicant was remanded in custody. He was bailed in September 2017, which was revoked at the end of his nine-day jury trial in the County Court of Victoria during July and August 2018.[38] The Court found he repeatedly misrepresented himself to the Victorian Institute of Teaching (VIT) and several schools he applied to teach at, without disclosing his true identity and criminal record.[39] He falsified official documents such as birth certificates and name change forms, using innocent parties to certify the veracity of the forged documents. He did so with the intention of getting provisional and then full registration as a teacher.[40] The Court also found the Applicant committed perjury.[41] He was sentenced for this offending on 20 November 2018, receiving a total effective sentence of two years’ and eleven months’ imprisonment.[42] He has been in prison or immigration detention since.[43]
[38] Ibid, 42 [1].
[39] Ibid, 42 [2].
[40] Ibid, 48 [21].
[41] Ibid, 43.
[42] Ibid, 41-67.
[43] Ibid, 609 [52]-[53].
On 21 December 2018, a delegate of the Minister decided that the Applicant did not pass the character test. He was then serving a full-time sentence of imprisonment and his visa was mandatorily cancelled under s 501(3A) of the Act (cancellation decision).[44] The Applicant acknowledged receipt of the cancellation decision on the same day.[45] In written submissions prior to the hearing, the Applicant contended that his visa was not properly cancelled by a delegate of the Minister, claiming it was instead a ‘generic computer algorithm [that] made this decision.’ He did not advance this submission during the hearing and it is not considered further.
[44] Ibid, 1215-1218.
[45] Ibid, 1218.
On 3 January 2019 the Applicant made representations in the name of Steven Robert Barr to have the cancellation decision revoked.[46] An extension of time was granted for him to make further representations,[47] which he did on 29 January 2019.[48] He provided multiple further submissions on 30 January 2019,[49] 1 February 2019,[50] 4 February 2019,[51] 12 February 2019,[52] 15 February 2019,[53] 18 February 2019,[54] 19 February 2019,[55] 26 February 2019,[56] 27 February 2019,[57] 1 March 2019,[58] 4 March 2019,[59] 8 March 2019,[60] 19 March 2019,[61] 15 May 2019,[62] 22 May 2019,[63] 18 June 2019,[64] 1 July 2019,[65] and 26 August 2019.[66]
[46] Ibid, 1033-1038;1220.
[47] Ibid, 1224.
[48] Ibid, 1227.
[49] Ibid, 1249.
[50] Ibid, 1229.
[51] Ibid, 1230.
[52] Ibid, 1233.
[53] Ibid, 1244-1246.
[54] Ibid, 1248.
[55] Ibid, 1251.
[56] Ibid, 1252-1257.
[57] Ibid, 1258.
[58] Ibid, 1262-1266.
[59] Ibid, 1259-1261.
[60] Ibid, 1268.
[61] Ibid, 1269-1272.
[62] Ibid, 1273-1282.
[63] Ibid, 1283-1286.
[64] Ibid, 1287-1290.
[65] Ibid, 1291-1295.
[66] Ibid, 1304-1308.
On 5 July 2019 the Victorian Court of Appeal upheld the Applicant’s convictions and sentences.[67] Immigration authorities sent the Applicant a further letter on 22 August 2019, inviting him to comment on the Court of Appeal decision, sentencing remarks from his 2018 trial, the High Court’s refusal of special leave on 10 September 1999, the Court of Appeal judgement in May 1998, a formal counselling letter dated 23 August 2007, an IPC dated 26 April 2015, and various media articles between 2016 and 2019.[68] The Applicant’s responses were received by the Department on 11 September 2019[69] and 13 September 2019.[70] He secured legal representation around this time[71] and provided additional written representations in January 2020[72] and February 2020.[73] He wrote to the Minister for Home Affairs in February 2020, and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs in April and July 2020.[74] He made further representations through his then authorised representative between June and September 2020.[75]
[67] Ibid, 68-110; 754; Taylor v The Queen (2019) 59 VR 163.
[68] Ibid, 1311-1314.
[69] Ibid, 1320-1336.
[70] Ibid, 1337-1346.
[71] Ibid, 1347-1357.
[72] Ibid, 1358-1365.
[73] Ibid, 1366; 1370; 1374; 1378.
[74] Ibid, 1382-1383; 1391-1393.
[75] Ibid, 1385-1390; 1394-1399.
On 26 October 2020 a delegate of the respondent declined to revoke the Applicant’s visa cancellation (non-revocation decision).[76] There is no dispute the Applicant was notified of the non-revocation decision on 26 October 2020.[77]
[76] Ibid, 10-11; 1400.
[77] Ibid, 1414-1415.
On 28 October 2020 the Applicant asked the Tribunal to review the non-revocation decision, stating as the reason for his application:
…The decision, based on the two legal decisions I have received, is bias (sic), prejudicial and incorrect.[78]
[78] Ibid, 4-9.
Consistent with s 500(6L) of the Act, the Tribunal must discharge its review function within 84 days of the Applicant being notified of the non-revocation decision. There is no dispute the Applicant was properly notified on 26 October 2020 by email to his then authorised representative, which means the Tribunal’s decision is required by 18 January 2020, or six working days after the hearing.
PROCEDURAL HISTORY
This matter has a lengthy procedural history that required several interlocutory hearings and multiple responses to the Applicant’s correspondence. Prior to the first CMTDH and the issuing of scheduling orders, the Applicant asked that I recuse myself from hearing his matter. Both parties also objected to each other’s summons requests. These issues were considered at two CMTDHs on 5 November 2020 and 12 November 2020, following which I gave ex tempore reasons. I undertook to provide written reasons for both matters when deciding the Applicant’s substantive application. These reasons now follow.
Objections to summons
Following the CMTDH on 5 November 2020 the Tribunal issued scheduling orders, including that any summons requests be submitted by no later than Thursday 12 November 2020. The Tribunal explained the summons application process to the Applicant, including that summons forms could be served by each party on the relevant person or organisation when approved by the Tribunal.
On Friday 6 November 2020 the Respondent requested the Tribunal issue summons for the Melbourne County Court, Melbourne Magistrates’ Court, Supreme Court of Victoria, Victoria Police, Australian Federal Police, Brisbane District Court, and Queensland Police Service.
On Sunday 8 November 2020 the Applicant lodged ten summons requests for the Melbourne County Court, Metropolitan Remand Centre, Registrar of Births Deaths and Marriages in South Australia, four summons requests to the Registrar of Births Deaths and Marriages in Victoria, and three summons requests to transcription agencies EpiqGlobal, Transcripts Plus, and Auscript.
On 10 November 2020 the Applicant objected to the Respondent’s summons request to Queensland Police in the following terms:
…I strongly oppose the summons issued to the Commissioner of the Queensland Police Service. I have not been in Queensland since 1994 - except for a three day car journey from NSW directly to Mt Isa and then on to the NT - and as such this is nothing more than a fishing expedition.
...
I also oppose the Subpoena Management Unit as this has nothing to do with any immigration matter and thus is also a fishing expedition and a waste of taxpayer's money.
Taxpayer's money to go on fishing expeditions and a complete abuse of power to stop my defence being properly and fairly presented. Braches (sic) of natural justice and procedural fairness.
Yours faithfully
Julian Taylor
On 10 November 2020 the Respondent objected to some of the Applicant’s summons requests in the following terms:
Dear District Registrar
We refer to the Applicant’s applications for the issuing of summons (attached). The Respondent makes the following contentions in relation to the Applicant’s applications:
· the G-Documents already contain the Birth Certificate of [child name redacted] (at G2, p 959), and therefore the Respondent contends that the Tribunal should consider exercising its discretion to refuse to issue summons ‘BDM Victoria 2’;
· in relation to the proposed summonses requesting various transcripts, the Respondent contends that it would be inappropriate for the Tribunal to issue a summons in circumstances where, if a transcript does exist, it is open to the Applicant to approach the transcription company to purchase a copy of it;
· similarly, in relation to the proposed summonses to obtain a marriage certificate, a death certificate and a birth certificate, the Respondent contends that (should the Applicant consider that these documents are relevant to the current proceeding) the Applicant should apply to obtain these by approaching the relevant government agencies and applying for and purchasing copies.
Kind regards
Prior to the Applicant’s summons requests being approved or the parties’ objections considered, the Tribunal received telephone and email communication suggesting that the Applicant had already sent several unapproved summons forms to the Metropolitan Remand Centre (MRC) and transcription agency EpiqGlobal. MRC advised the Applicant by return email that it would not respond to unapproved summons requests. On Monday 9 November 2020 the Tribunal received email correspondence from the Regional Operations Manager of EpiqGlobal stating that the Applicant had sought a transcript of the CMTDH conducted on 5 November 2020, asserting that the information was requested by the Tribunal. The following email exchanges between the Applicant and EpiqGlobal were discussed at the CMTDH on 12 November 2020 and subsequently taken into evidence at the hearing:[79]
[79] Exhibit A3.
From: Julian Taylor
Sent: 09 November 2020 07:04
To: Aatorders <[email protected]>Subject:
Good Morning
I have issued a summons for an item from Epiqglobal. Please see attached.
They are needed for an AAT migration matter and the Senior Member is asking for these documents to be presented by the 30th November 2020 and I need to respond to him ASAP.
I hope the time-frame is convenient - if not please advise so I can relay this information back to the AAT.
Regards
Julian Taylor
(Emphasis added)
On Monday, 9 November 2020, 10:13:48 am AEDT, <…@epiqglobal.com> wrote:
Good morning Julian,
Thank you for your email. I'm unsure as to the nature of the document you have attached, but if you'd like to place an order for a transcript, that can certainly be arranged.
…
Please be advised that the “estimated rate” is just an approximate and the total cost will vary depending on the amount of words transcribed.
Let me know how you'd like to proceed.
Kind Regards,
… Epiq | Administrator
From: Julian Taylor
Sent: 09 November 2020 10:34
To: <…@epiqglobal.com>
Subject: Re:Good Morning…
I am told that Epiq do all the transcripts for the AAT.
The document is a summons for you to produce this transcript to the AAT. It will be used as evidence in a migration hearing before the Senior Member. I am asking if the 30th November 2020 is a suitable time-frame for you to provide the transcript.
If not, I need to tell the Senior Member that you are unable to do so and to work out a suitable time for it to be produced.
Kind Regards
Julian Taylor
(Emphasis added)
On Monday, 9 November 2020, 12:12:29 pm AEDT, <…@epiqglobal.com> wrote:
Good morning Mr Taylor,
We do indeed organise transcripts for the AAT, that's correct - and certainly we are able to assist. Should you wish to order a copy of the transcript, we will require a completed order form, which I have attached for you here. Once you have provided us with the information on the form, that will allow us to locate the hearing, and we will then be able to provide you with a rough estimate of the costs involved in your order.
Let me know how you'd like to proceed.
…
Kind Regards,
… Epiq | Administrator
From: Julian Taylor
Sent: 09 November 2020 16:29
To: …@epiqglobal.com>
Subject: Re: Re:Dear Mr …
Thank you for replying.
As per previous email I need to confirm with the Senior Member that this transcript will be ready for the AAT by the 30 November 2020. This is a summons not a request for a transcript. If you wish to refuse to provide the transcript, which is your prerogative, then I will have to call you to the AAT hearing and I will let you explain why you are refusing to provide the transcript.
As I am in detention I have no access to money or funds but as I said this is a summons not a request.
Not supplying the transcript will have the affect of disadvantaging my case to remain in Australia and I will use it as a denial of natural justice and apply to the Federal court for a re-hearing.
Regards
Julian Taylor
...
(Emphasis added)
On Monday, 9 November 2020, 5:01:16 pm AEDT, [Epiq] wrote:
Good afternoon Mr Taylor,
We do not believe we are bound to produce a transcript under a summons unless it has been issued by a legal authority. However, I can follow up with the Tribunal to see if they would be willing to order the transcript for your matter under the circumstances. For completeness, can I please confirm the below details are correct for the transcript you’re seeking?
File number: 2020/6682
Matter name: Julian Taylor v MICMSMA
Location: Melbourne
Presiding Member: …
Date: 5/11/20Kind regards,
… Julian Taylor
To: [Epiq]
Subject: Re: Re:
Date: Monday, 9 November 2020 5:07:52 PMDear Sir
I am representing myself and thus I have the legal authority to issue a summons in the matter.
As I said you are very welcome to issue me an invoice and I will pay it when I can - all things being fair that will be at the end of January, however I will warn you that the AAT, or any court in Australia for that matter, is never fair - but we can hope this is the one exception.
If you wish to issue me an invoice then my address is, …
Julian Taylor
…I am not trying to avoid payment I am pointing out that payment may be delayed.
Regards
Julian Taylor
(Emphasis added)
Contrary to the Applicant’s claims the Tribunal had not ‘asked for these documents,’ namely a transcript of the 5 November 2020 CMTDH, to be produced. Nor did the Applicant ‘have the legal authority to issue a summons in the matter’ as he represented.
On 11 November 2020, the Respondent lodged a further request for material to be obtained under summons from the Supreme Court of Victoria, Court of Appeal, stating as the reason for the request:
The substantive proceedings relate to a decision of the Minister, made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act), to refuse to revoke the mandatory cancellation of the Applicant's visa.
The Applicant's criminal history shows that he was sentenced for multiple offences in the Supreme Court of Victoria. Subsequent correspondence with the Supreme Court has advised that relevant proceedings were heard before the Court of Appeal.
The Respondent accordingly considers that information held by the Court of Appeal in relation to these charges is likely to be relevant to the issue of whether there is "another reason" to revoke the mandatory cancellation of the Applicant's visa for the purposes of s 501CA(4) of the Act.
On 11 November 2020, the Applicant objected to the Respondent’s summons request, claiming he had ‘already given any information the respondent requires in previous submissions to the Department of Home Affairs… and this is nothing more than a fishing expedition….’
At the 12 November 2020 CMTDH the Tribunal asked the Applicant why he had claimed to EpiqGlobal that the request for a transcript of the 5 November 2020 CMTDH had come from the Tribunal, and the basis on which he claimed legal authority to issue a summons. The Applicant denied doing so, claiming he was aware only the Tribunal could authorise a summons and stated he was merely trying to ascertain how long the transcript production process would take. He claimed the representative at EpiqGlobal ‘misunderstood’ him. Based on the email exchanges between the Applicant and EpiqGlobal, the Tribunal does not accept this explanation and instead finds that the Applicant misrepresented the origins of the request for this material and his purported ‘legal authority to issue a summons.’ The Tribunal’s power to issue a summons pursuant to s 40(1A) of the Administrative Appeals Tribunal Act 1975 (AAT Act) was again explained to the Applicant, as was the need for some particularity around why a summons was being requested. The Tribunal noted that the mere assertion of relevance was insufficient. The parties’ objections to each other’s summons requests were then decided as follows:
(a)Melbourne County Court. The Tribunal approved the Applicant’s summons request for transcripts held by the Court regarding matters involving Mr Taylor;
(b)Metropolitan Remand Centre (MRC). The Tribunal approved the Applicant’s summons request for any x-rays held by MRC from his remand there in 2016-2017, because this could reasonably be expected to throw light on the health issues he claimed;
(c)Registry Births, Deaths and Marriages South Australia. The Applicant withdrew this summons request, stating he had accessed the required material elsewhere;
(d)Four summons requests to Registry of Births, Deaths and Marriages in Victoria. The Tribunal refused these summons requests for two marriage certificates and two birth certificates. This was because a birth certificate for the Applicant’s youngest child had already been lodged. It was also not contested by the Respondent that the Applicant had married twice and has an adult son from his first marriage;
(e)Transcript from EpiqGlobal. The Applicant’s request was refused because the requested document is not in existence and the Applicant sought to bring it into existence by falsely claiming the Tribunal had requested it;
(f)Transcripts from Auscript and Transcripts Plus. These summons requests were refused, because the Applicant stated he wished to use the transcripts from past remand hearings and trials to impugn certain convictions. The Tribunal explained to the Applicant that while he could discuss the contextual circumstances of his offending, he could not challenge essential findings and sentences of the courts. It was further explained that the Tribunal’s jurisdiction was limited to determining whether Mr Taylor passed the character test and if not, whether there was another reason to set aside the mandatory cancellation of his visa; not to re-hear his previous criminal matters; and
(g)Objections to summons to Queensland Police and Victorian Supreme Court, Court of Appeal. The Applicant’s objection to these summons requests, on the basis that he had already provided ‘any information the respondent requires,’ was dismissed. The Tribunal explained that the Applicant is not the originator of the requested information, which is prima facie relevant to the proceeding, particularly when considering the nature and seriousness of his offending.
Additional late application for summons
On 13 November 2020, the Applicant lodged three further summons requests seeking to obtain from the Supreme Court of Victoria:
(a)‘A copy of the transcript of my bail application before His Honour Justice Coghlin on the 8th February 2016;’
(b)‘A copy of the transcript of my bail application before Her Honour Justice Emerton late June and early July (two days) 2016;’ and
(c)‘A copy of the transcript of my bail application before Her Honour Justice Dixon 8 September 2017.’
These requests were lodged after the time allowed in the Tribunal’s scheduling orders dated 5 November 2020 but were nevertheless considered. On 13 November 2020 the Tribunal advised the Applicant by return email that these summons requests were declined. It was explained that the Court’s deliberations under the Bail Act 1977 (Vic) related to whether an accused person is granted bail or remanded in custody. The Tribunal noted that a person’s convictions and sentences are probative to the seriousness of their offending, not bail deliberations three or four years earlier. The Tribunal informed the Applicant his present application was not an opportunity to re-hear remand decisions or bail applications, which is properly the domain of the courts. Mr Taylor’s claim that he intended to appeal the denial of summons requests ignored Federal Court authority. In Gadzikwa v Comcare [2020] FCA 1205, for example, Collier J cited Justice Deane’s reasoning in Director-General of Social Services v Chaney [1980] FCA 108 at [593], that:
there is ample authority that a decision of the Tribunal refusing the issue of summonses is not a “decision” which can be the subject of an appeal in accordance with s 44(1) of the Act...
Recusal application
After lodging his application to the Tribunal on 28 October 2020, but prior to the initial CMTDH to agree scheduling orders and hearing dates, the Applicant emailed the Tribunal’s General Enquiries address on 2 November 2020 asking that I be removed from hearing his application. I instructed a Tribunal Officer to advise him on the same day that he could make that application at the CMTDH listed for 5 November 2020, and to provide any material he intended to rely upon. The Applicant subsequently particularised his claims in a four-page document lodged on 4 November 2020.[80]
[80] Exhibit A2
Asserted grounds
The Applicant elaborated upon his written submissions at the 5 November CMTDH, making clear that his application related to apprehended rather than actual bias. Broadly summarised, his asserted bases for my disqualification refer to implications arising from my birthplace and past employment as follows:
(a)My ‘mindset’ was ‘influenced [during] formative years in a Yugoslavian village under a communist regime.’ Because the ‘break up of Yugoslavia resulted in many horrific events of barbarity and inhumanity,’ it was ‘highly unlikely, if not impossible, actually inconceivable, that as a young boy that propaganda would not have influenced’ me;
(b)My ‘world view’ was ‘reinforced by…time in the Australian armed forces.’ The Applicant claimed that the views of people with careers in the Australian Defence Force were ‘insulated to a degree by needing to follow a certain group-think.’ He said it could be inferred that such experiences result in ‘rigid thought patterns,’ meaning that ‘one’s thought processes in the area are stunted and never develop past stubbornness;’
(c)Mr Taylor claimed that the combined effects of my ‘considerable military background,’ Christian faith, and because ‘terrorists are predominantly seen as Muslim,’ meant it was ‘inconceivable’ I would not view Muslims ‘in an unfavourable light.’ When asked to explain the relevance of this claim to his case, Mr Taylor said his second wife, who he separated from in 2015, is a Muslim. He felt this would inevitably result in my considering him sympathetic to terrorism because of my ‘subconscious encoding of…formative years,’ the ‘intense emotional feelings…experienced as a boy…[and]…military background…- all which portray Muslims in a bad light.’ Mr Taylor also referred to my purported responses to terrorism and the Marriage Legislation Amendment Bill 2015 (Cth) while a Member of the 44th Parliament, as giving rise to potential bias, including in respect of ‘mixed religion marriages;’
(d)Mr Taylor referred to my service in the Federal Parliament as giving rise to a breach of the separation of powers. He asserted that I had purportedly voted on a ‘Citizenship Bill,’ which precluded me from impartially deciding his case. When asked to explain why citizenship was a relevant issue in the present matter, Mr Taylor explained he previously held Australian citizenship in the 1980’s but renounced it in protest to the Hawke Government’s attempt to introduce the Australia Card. He stated that because of this he feared I would interpret his renouncement of citizenship as disloyalty or a ‘traitorous act.’ In written submissions he also asserted I was ‘judging, the judicial arm of the government, on the very same matter and legislation,’ which represented ‘a breach of the separation of powers;’
(e)Mr Taylor referred to a parliamentary speech I purportedly gave in support of education funding in 2016 as giving rise to apprehended bias. He explained that because his offending related to registration as a teacher and the VIT, this could result in my ‘subconscious’ bias in favour of the education system; and
(f)Mr Taylor felt I did not have the academic qualifications ‘to pass judgement on [his] case,’ because ‘this whole criminal conviction is wrong.’ He claimed his application revolved ‘around 50 legal points,’ and there were many ‘jurisdictional errors’ arising from the court’s previous findings against him. He did not think I could understand and give ‘sufficient weight’ to the legal points he made.
The Respondent submitted that Mr Taylor’s claims ‘did not come close’ to firmly establishing apprehended bias and opposed recusal. Mr Taylor responded that he did not need to establish his case ‘firmly,’ just to show ‘there is a reasonable apprehension of bias.’
Decision on recusal application
In Michael Wilson & Partners v Nicholls (2011) 244 CLR 427, the High Court explained at [67] that allegations of apprehended bias required:
…an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the [decision maker] might not bring an impartial mind to bear upon the issues that are to be decided.
In SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80, at [2], Allsop CJ said:
The question whether or not an administrative tribunal has conducted itself in a way that displays apprehended bias is assessed by reference to the hypothetical construct of the informed fair-minded observer. ...The words “fair-minded”, however, should be recognized for the central part they play in the assessment. Apprehended bias, if found, is an aspect of a lack of procedural fairness. The rules to assess whether apprehended bias was present form part of the body of principles, rooted in fairness, and directed to the necessity for executive power to be exercised fairly and to appear to be exercised fairly, in support of the maintenance of confidence in the administrative process, and judicial review of it. The relevant enquiry is directed not to the correctness of the outcome, but to the apparent fairness of the process(the process being part of the exercise of power, integral to the legitimacy of the outcome).
In Rana v Department of Defence [2018] FCA 1642, Charlesworth J referred at [112]-[114] to the High Court’s two-step test in Ebner v Official Trustee in Bankruptcy (2000) 255 CLR 135, when considering claims of apprehended bias:
112. The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that a decision-maker might not bring an impartial mind to the resolution of the issue he or she is to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Isbester v Knox City Council (2015) 255 CLR 135 at [12] (Kiefel, Bell, Keane and Nettle JJ). See also ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35] — [36] (Allsop CJ, Kenny and Griffiths JJ).
113. As the majority said in Ebner (at [8]), the application of the test involves two steps:
… First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
114. What must be shown is that the reasonable observer might apprehend that the Court, as presently constituted, might approach the determination of the legal and factual issues in the proceeding with a foreclosed mind. It is not sufficient to demonstrate that the observer may have “a vague sense of unease or disquiet”: Jones (as President of the Victorian Farmers Federation Chicken Meat Group) v Australian Competition and Consumer Commission and Another (2002) 76 ALD 424 at [100] (Weinberg J).
Once a Tribunal Member is constituted to hear a matter, their duty is to sit and only recuse themselves if a claim of bias is ‘firmly established.’[81] To do otherwise might encourage recusal requests for an inappropriate purpose, such as trying to find someone else considered more likely to determine an application in a particular way.
[81] JRL; Ex Parte CJL (1986) 161 CLR 342 at 352 (Mason J), 364 (Wilson J), 371 (Dawson J).
The Applicant’s submissions about apprehended bias invoke purportedly adverse personal characteristics based on factors like birthplace, ethnicity, military service, and past employment. These are based on the Applicant’s own research, assumptions, and bare assertion. For example, the Applicant’s claims about my childhood experiences have no basis in fact. His perceptions about the impact of military service on a person’s world view are speculative opinion at best. Some of the Applicant’s submissions about religion, Muslims and mixed marriages attribute racist or discriminatory views and are rejected.
The Applicant did not make any submission that I had performed a duty in a partial, biased, or prejudicial manner. He did not point to anything in the procedures adopted to prepare for the hearing about which he could reasonably be aggrieved. He did not establish that any interest, or conduct, association, extraneous information or other circumstance, would lead a fair-minded lay observer to apprehend that I could not bring a fair and impartial mind to resolving his application. As an applicant in person, the Tribunal sought to assist Mr Taylor during the pre-hearing process. This included offering contact details for potential sources of pro bono assistance and an example outline of submissions to assist his preparation. The Tribunal also took extra care to explain the procedure to be adopted and ensure the Applicant had opportunities to make submissions and ask questions.
The Applicant failed to establish a proper basis for recusal and his application was refused. During the remainder of the pre-hearing period the Applicant continued to advance his rejected recusal application, including in an email dated 23 November 2020 to senior office holders of the Tribunal, which stated:
Do I need to refuse to attend my hearing on 6, 7 January 2021 because the AAT insist on ignoring my fair and reasonable complaint…?
JURISDICTION QUESTION
In written submissions lodged on 4 December 2020, the Applicant contended that the Act did not apply to him because British citizens have a special status and are not ‘aliens’ or ‘immigrants’ under the Act or within the meaning of s 51 (xix) of the Constitution (constitutionality claims). This section of the Constitution is the source of the Commonwealth Parliament’s ‘power to make laws for the peace, order, and good government of the Commonwealth with respect to … naturalization and aliens.’ The Applicant submitted he has been absorbed into the Australian community, including through voting in elections, and cannot be subject to a cancellation or non-revocation decision by a ministerial delegate. He made extensive written submissions in support of that contention prior to the commencement of the hearing, which the Tribunal has considered.[82]
[82] Exhibit A1.
It is noteworthy that during the hearing on 6 and 7 January 2021 the Applicant did not advance these constitutionality claims despite making initial oral submissions of approximately three hours. He had multiple subsequent opportunities to highlight the issues he considered most relevant to his application and did not refer to this issue once.
The Tribunal is not a court and has no power to determine the constitutionality of legislative or executive action. It can form an opinion, however, about the interaction of the Act with the specific circumstances of an applicant’s case, including when addressing the threshold question of jurisdiction.
Section 25 of the AAT Act establishes the Tribunal’s jurisdiction to hear applications by persons disaffected by decisions made by Commonwealth government departments. Relevantly, it provides:
(1) An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
The relevant enactment in the present matter is s 500(1)(ba) of the Act. This provides that ‘Applications may be made to the Administrative Appeals Tribunal for review of:…(ba) decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa…’
In considering the Applicant’s claim that the Act does not apply within constitutional limits to the specific circumstances of his case, the Tribunal notes the following authorities:
(a)In Pochi v Macphee (1982) 151 CLR 101 at [111], the High Court held that alien status cannot be lost by ‘absorption’ into the Australian community;
(b)In Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 (Te), which was a unanimous judgement of the High Court, Gleeson CJ reasoned at [26] and [42]:
26. The concept of absorption into the Australian community, vague as it may be, has been developed as a method of indicating that the activity of immigration in which a person has engaged has come to an end. But it does not mean that the person has lost the status of an alien. Many immigrants become resident aliens. One of the aspects of the power given by par (xix) is a power in the Parliament to determine, by legislation, how an alien may alter that status. It includes, for example, a power to provide by legislation that a person who is an alien does not cease to be an alien otherwise than by going through a formal procedure which includes acknowledgment of the obligations and responsibilities of Australian citizenship. And, as I indicated in Patterson, whilst I accept that Parliament cannot, by some artificial process of definition, ascribe the status of alienage to whomsoever it pleases, par (xix) empowers the Parliament to decide who will be granted Australian citizenship, who will be treated as aliens, and by what process and upon what conditions persons may lose their status of alienage. The Australian community, through Parliament, decides who will be admitted to what the Australian Citizenship Act now describes as the formal membership of the community represented by citizenship, "a common bond, involving reciprocal rights and obligations", and the terms and conditions on which such admission will take place.
…
42. It is true that, in Patterson, Kirby J, with whom Callinan J agreed on this point, explicitly referred to the absorption into the Australian community of a class of persons (British subjects) as a reason for treating them as beyond the aliens power as well as beyond the immigration power…Treating absorption into the community as relevant to the status of alienage is inconsistent with earlier judicial views as to the width of par (xix) compared with par (xxvii), to which I have referred above. In my opinion, it is wrong in principle. For reasons already discussed, while absorption reflects the fact that an activity of immigration has come to an end, it may co-exist, and commonly co-exists, with a legal status of alienage. Resident aliens may be absorbed into the community, but they are still aliens.
(Emphasis added. Footnotes omitted)
(c)Justice Kirby in Te referred at [201] to the conduct of the applicants in that case as inconsistent with claims of allegiance or absorption:
Far from showing allegiance or being absorbed into the Australian body politic, the repeated conduct of the applicants constitutes a public renunciation of the norms of the community. Far from there being any long-term participation in the duties and obligations of civic life, that might conceivably in a particular case be treated as equivalent to a public demonstration of allegiance, commitment or adherence to the Australian community, each of the applicants has repeatedly broken this country’s laws.
(d)In Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28 (Shaw), the High Court considered whether the power of the Parliament conferred by s 51(xix) of the Constitution authorised the cancellation of Mr Shaw’s visa. Mr Shaw was born in the United Kingdom and had not applied for or become an Australian citizen during almost 30 years in Australia. In resolving the issue favourably to the Minister, their Honours Chief Justice Gleeson and Justices Gummow and Hayne held at [4], [7] and [10]:
4. That the applicant and his parents may have entered Australia under a Commonwealth programme of assisted passages…would not be inconsistent with his alien status.
…
7. In Cunliffe v The Commonwealth, Toohey J, referring to Nolan v Minister for Immigration and Ethnic Affairs, said that:
"an alien can generally be defined as a person born out of Australia of parents who were not Australian citizens and who has not been naturalized under Australian law or a person who has ceased to be a citizen by an act or process of denaturalization."
That statement would lead to the classification of the applicant as an alien at birth, when he entered Australia and at all times since.
…
10. However, contrary to the submissions for the applicant, the result of such a consideration of his position is his classification as an alien for the purposes of s 51(xix) of the Constitution. Much of the applicant's argument proceeded from the premise that, because the expression "British subject" could be applied to him, he was not an alien. That premise is flawed. First, "British subject" is not a constitutional expression; it is a statutory expression. Secondly, and more fundamentally, if "British subject" was being used as a synonym for "subject of the Queen", an expression which is found in the Constitution, that usage would assume that there was at the time of federation, and there remains today, a constitutional and political unity between the UK and Australia which 100 years of history denies.
(Emphasis added. Footnotes omitted)
Their Honours further held at [27]; [29] and [32], with Heydon J agreeing at [190], that:
27. Once it be decided that the text of the Constitution contemplates changes in the political and constitutional relationship between the United Kingdom and Australia, it is impossible to read the legislative power with respect to "aliens" as subject to some implicit restriction protective from its reach those who are not Australian citizens but who entered Australia as citizens of the UK and colonies under the 1948 UK Act. It was unnecessary to reach that conclusion in Re Patterson; Ex parte Taylor[33], but it should now be reached.
…
29. Moreover, it is readily apparent from a consideration of Joyce v Director of Public Prosecutions, which was decided before the 1948 legislation, that "[a]llegiance and alienage are not mutually exclusive". Thus aliens may owe a measure of allegiance, but aliens they nevertheless continue to be.
…
32. This case should be taken as determining that the aliens power has reached all those persons who entered this country after the commencement of the Citizenship Act on 26 January 1949 and who were born out of Australia of parents who were not Australian citizens and who had not been naturalised. The scope of any earlier operation of the power does not fall for consideration. However, it may be observed that, like the other powers of the Parliament, s 51(xix) is not to be given any meaning narrowed by an apprehension of extreme examples and distorting possibilities of its application in some future law.
…
(Footnotes deleted. Emphasis added)
More recently in Love v Commonwealth of Australia [2020] HCA 3, Gageler J held at [131]-[132]:
131. …Section 51(xix) is not to be read as admitting of the existence of a further category of non-aliens who are non-aliens by force of the Constitution itself, whose status is for that reason and to that extent off-limits to the Parliament, and who are consigned to inhabit a constitutional netherworld in which they are neither citizens, who are full and formal members of the body politic of the Commonwealth of Australia, nor aliens, who are not full and formal members of the body politic of the Commonwealth of Australia.
132. For reasons I have sought to make clear in explaining the nature of the power conferred by s 51(xix) of the Constitution as a power to determine who has and who does not have the legal status of alienage, I cannot countenance the existence of a constitutional category of "non-citizen non-aliens" any more than I could countenance the existence of a category of "constitutional citizens". That is so irrespective of the basis on which persons within such a category might be determined. Not to be forgotten is that we have been down a similar path before: between 2001 and 2003, when the notion was entertained that British citizens who migrated to Australia between 1948 and either 1986 or 1987 and who settled here as permanent residents without becoming Australian citizens were somehow not "aliens". It was a constitutional cul-de-sac.
Based on these authorities, the Applicant’s claims that he is not an ‘alien,’ ‘immigrant,’ or subject to the visa cancellation provisions of the Act are not accepted. He was born in the United Kingdom to parents who were not Australian citizens. He arrived in Australia in 1969, well after the commencement of the Citizenship Act on 26 January 1949. In 1988, he acquired Australian citizenship but renounced it in 1995. He has not since regained Australian citizenship and is therefore a ‘non-citizen’ within the meaning of s 5 of the Act. The extent to which he may have engaged in the life of the Australian community during his residence in Australia is not relevant to his status as an alien. He has no basis on which to contend that the visa cancellation and non-revocation decisions were not lawfully exercised. The Tribunal has jurisdiction to consider Mr Taylor’s application.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the AAT Act and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 501CA.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined at s 501(6) of the Act, with s 501(6)(a) stating:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or …
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including, at s 501(7)(c), if the person has been sentenced to a term of imprisonment of 12 months or more.
Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction). Section 499(2A) mandates that the Tribunal must comply with the Direction.[83]
[83] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9]; PQSM v Minister for Home Affairs [2019] FCA 1540, [22].
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 6.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, cl 6.2 of the Direction provides that:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to…revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered…in making a revocation decision are identified in Part C of this Direction.
The principles referred to in the Preamble of the Direction are reproduced below and constitute a framework within which relevant considerations are applied:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In other written evidence the Applicant submitted he is ‘very well-travelled.’[221] He has lived and worked in several countries, including England, for a period between 2012 and 2015. In his oral evidence he described England as ‘quite a beautiful country’ where if employed, the ‘standard of living was comparable to Australia.’ The Applicant referred to his four undergraduate degrees in Australia and a private pilot’s licence ‘among the many skills’ that he has ‘achieved throughout his years of extensive experience.’[222] He worked immediately prior to his most recent arrest as a ‘tyre engineer,’ stating that he also worked for years as a tutor and ‘structural engineer (both design and site).’[223] In terms of savings and investments, he said that he has approximately $400 in an Australian bank account, a half share in a plot of land in Australia valued at approximately $75,000 and accumulated superannuation of about $100,000 when he last checked the balance a year ago.
[221] Ibid, 1027.
[222] Ibid.
[223] Ibid.
In terms of his health, the Applicant submitted he has been a ‘severe asthmatic’ since early 1970 but this is controlled with access to a preventative inhaler (Seretide).[224] He also stated that he is on the waiting list for a hip replacement.[225] In his oral evidence the Applicant said he was previously scheduled for this operation in 2018 but had to delay it because of a court hearing. He believes that he is again scheduled for a hip operation later in 2021 but provided no corroborating evidence of this.
[224] Ibid, 132.
[225] Ibid.
The Tribunal has considered a Discharge Summary from St Vincent’s Hospital dated 25 September 2019, in which it states the Applicant’s medical history includes asthma, for which he was on an Asthma Care Plan requiring access to an inhaler.[226] The report also stated he had hip surgery in 2009 requiring ‘plates and screws.[227] The report referred to an x-ray in November 2018 that disclosed ‘advanced degenerative change of the right hip joint.’ The report said the Applicant had declined a Mental Health Care Plan, and there were no past admissions, treatments or family history of mental illness recorded.[228] Under medication history, the ‘Nil’ box is crossed and the report stated there were ‘No upcoming community appointments / referrals.’
[226] Ibid 724.
[227] Ibid, 723.
[228] Ibid, 724.
In pre-hearing submissions, the Applicant lodged results of an x-ray of his chest dated 21 October 2019, which stated that his heart is normal. He also lodged x-ray results of his pelvis and right hip dated November 2020, which stated:[229]
FINDINGS:
No prior examination available for comparison.
Dysplastic right femoral head.
Multiple surgical screws in right proximal femur.
Left hip shows more normal appearance.
[229] Exhibit A6.
Tribunal findings: Extent of impediments if removed
Clause 14.5(1) of the Direction provides that the extent of any impediments is considered in the context of what is generally available to other citizens of that country. The Applicant lived and worked in England while overseas between 2012 and 2015. He has demonstrated a capacity to relocate internationally, find employment and provide for his daily needs. There are no language or cultural barriers for him to overcome, given that the United Kingdom shares a similar culture and common heritage with Australia.
The Tribunal does not accept the Applicant’s claim that as a 56-year-old man he is too old to find work. He has multiple tertiary qualifications and refers to substantial work experience, particularly as an engineer. This included work prior to his most recent arrest. The Applicant also claimed his skills and knowledge as an engineer would be in high demand overseas.
There is no evidence that the Applicant could not access appropriate medical care in the United Kingdom to manage conditions like asthma or his right hip problem. As a citizen of the United Kingdom, there is no evidence he would not have the same access to social, medical and economic support as other citizens.
The Tribunal does not accept that the Applicant will be ‘destitute’ or ‘left to live in the street’ if removed. On his own evidence he has a half share in a plot of land and around $100,000 in accumulated superannuation.
On balance, the impediments confronting the Applicant are relatively few and are not insurmountable. Given his lengthy residence in Australia, however, coupled with the fact that he would be relocating to the United Kingdom following a period of imprisonment and detention, he is likely to experience hardship in re-establishing himself. On balance this consideration weighs moderately in favour of revocation.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining if there is ‘another reason’ why the mandatory cancellation of his visa should be revoked, the Tribunal has applied the considerations at Part C of the Direction to the specific circumstances of his case. The Tribunal’s consideration of the evidence is such that it is appropriate to give greater weight to the relevant primary considerations than the other considerations: cl 8(4) of the Direction.
The Applicant’s offending since 1991 is collectively very serious. He has failed to respond to various sentencing approaches and continues to impugn some convictions and minimise his culpability for others. His obdurate refusal to accept the reality of his criminal past reflects a disturbing lack of self-awareness for a man in his mid-50s. He continues to make self-congratulatory claims about his purported qualities as a teacher between 2005 and 2015, while disregarding the Court’s finding that ‘children simply would not have been given over to his care if he had revealed his true colours.’
The Tribunal rejects the Applicant’s misconceived claims of innocence and regards his prospects of rehabilitation as very poor. He is yet to overcome the anger arising from his perceived unjust treatment by police and the courts. Given the protracted nature of his dishonesty offending, unwillingness to accept the reality of his criminal record, and impenitent perspectives, there is an unacceptably high likelihood he will reoffend. The deemed community expectation is that his visa should remain cancelled.
In terms of the relationship with his child, others have performed the primary parental role since his departure overseas in 2012. There is no evidence from the Applicant’s child, who is approaching adulthood, her caregivers, or other experts, to corroborate the Applicant’s claims that she currently wants to resume contact with him or would accept the prominent parental role he aspires to play. The Applicant’s desire to do so is aspirational at best and depends on an IVO re-evaluation at the end of January 2021 and efforts to secure court orders. Although it can be accepted there is a limited continuing relationship with his child, the Tribunal’s concerns about the Applicant’s unacceptable recidivism risk, and fractious relationship with his ex-wife, suggests he will have a limited opportunity to play a positive parental role before the child reaches adulthood.
Although he has lived predominantly in Australia since the age of four, the strength of the Applicant’s community ties are weak and the extent of his community contribution scant. He renounced his Australian citizenship in 1998 and has been estranged from his mother and siblings for 30 years. The few friends he referred to during the hearing are his current partner and a small number of work colleagues from his most recent employment. He did not call any witnesses at the hearing and except for his current partner, the precise nature of the Applicant’s relationships in Australia and the veracity of the dated supportive statements in evidence could not be tested.
In terms of impediments, the Tribunal acknowledges that removal would not be without its challenges for the Applicant after a lifetime in Australia and following a period of imprisonment and detention. But the Applicant lived and worked in the United Kingdom for a period between 2012 and 2015. He has four undergraduate degrees and has worked as an engineer, tutor and in other roles. Both he and his most recent employer refer to the desirability of his skillset in certain foreign economies. There are no language or cultural impediments to overcome, or evidence that the Applicant would not have access to social, medical and economic support generally available to other British citizens. On his own evidence he has assets to draw upon, including a half share in land and around $100,000 in accumulated superannuation.
Having weighed all the relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to mandatorily cancel the Applicant’s visa should be revoked. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ each weigh very substantially against revocation. These substantially outweigh the primary consideration ‘Best interests of minor children’, which weighs slightly in favour of revocation, and the other considerations of ‘Strength, nature and duration of ties,’ which weighs slightly in favour of revocation, and ‘Extent of Impediments if removed,’ which weighs moderately in favour of revocation.
DECISION
It follows that the Tribunal affirms the decision under review.
I certify that the preceding 198 (one hundred and ninety eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
[sgd]………………………………….
AssociateDated: 14 January 2021
199. Dates of hearing:
200. 6 and 7 January 2021
201. The Applicant:
202. Self-represented
203. Advocate for the Respondent:
204. Mr Tal Aviram
205. Solicitors for the Respondent:
206. Clayton Utz
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