VSGP and Minister for Home Affairs (Migration) - [2019] AATA 334

VSGP and Minister for Home Affairs (Migration) [2019] AATA 334 (1 March 2019)
Division:GENERAL DIVISION
File Number: 2018/7283
Re:VSGP
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:1 March 2019
Place:Brisbane

The decision under review is affirmed.
..........................[SGD]..............................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – non-revocation of mandatory cancellation of Refugee visa (class XB sub-class 200) – expedited matter – where visa was cancelled under s 501(3A) – applicant does not pass character test – 12 month imprisonment – whether discretion in s 501CA to revoke mandatory cancellation should be exercised – considerations in Direction No 79 decision under review affirmed
Legislation
Crimes Act 1958 (Vic)
Mental Health Act 2014 (Vic)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Greene v Assistant Minister for Home Affairs [2018] FCA 919
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68
Minister for Home Affairs v Buadromo [2018] FCAFC 151
R v Martin Tran; R v Van Nhan Tran [2006] VSCA 222
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Turay v Assistant Minister for Home Affairs [2018] FCA 1487
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 75 – Refusal of Protection Visas Relying on Section 36(1c) and Section 36(2c)(b)
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
1 March 2019
BACKGROUND

VSGP (“the Applicant”) arrived in Australia in March 2003 as the holder of a Refugee (Class XB, Subclass 200) visa. On 1 February 2017, his visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the grounds that he had been sentenced to a term of imprisonment of more than 12 months and was serving a full-time term of imprisonment. The Applicant subsequently applied for this cancellation to be revoked in 4 February 2017. On 6 December 2018, a delegate of the Minister for Home Affairs (“the Respondent”) refused to revoke the cancellation of the Applicant’s visa. On 12 December 2018, the Applicant applied to this Tribunal to reconsider…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] AATA 334
Decision Date: 1 March 2019

CaseChat Overview and Summary

This matter concerned an application by VSGP (the applicant) to revoke the mandatory cancellation of his Refugee visa (class XB sub-class 200). The visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) because the applicant did not pass the character test, having been sentenced to 12 months imprisonment. The decision was heard by Theodore Tavoularis SM in the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the discretion conferred by section 501CA of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the applicant's visa should be exercised. In determining this, the Tribunal was required to consider the considerations outlined in Direction No 79, specifically the protection of the Australian community from criminal or other serious conduct, including the nature and seriousness of the applicant's conduct to date and the risk to the community should further offences be committed. The Tribunal also had regard to evidence concerning the applicant's mental health, including a report and oral evidence from a forensic psychiatrist, Dr Nina Zimmerman.

The Tribunal considered the applicant's extensive criminal history, which included numerous convictions for serious offences such as assaults on police officers and emergency workers, robbery, and various property and bail-related offences. The Tribunal noted that while Dr Zimmerman's evidence indicated the applicant's mental state was stable on medication and that he received better psychiatric care in prison than in immigration detention, this did not outweigh the significant risk posed by his past conduct. The Tribunal found that the totality of the applicant's offending demonstrated a pattern of serious criminal behaviour.

Ultimately, the Tribunal concluded that it could not exercise the discretion to revoke the cancellation of the applicant's visa. Accordingly, the decision under review was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In the hearing before me, the primary, independent witness who provided evidence informing the above two factors was the forensic psychiatrist, namely, Dr Nina Zimmerman. Dr Zimmerman was engaged by the Applicant to provide a medico-legal report. Her report is dated 15 February 2019 and forms part of the written evidence[21] in this matter. Dr Zimmerman also gave oral evidence at the hearing. It is, I think, important at this juncture to review the totality of the evidence of Dr Zimmerman.Dr Zimmerman - Evidence in Chief:[21] Exhibit A(2), Report of Dr N. Zimmerman, forensic psychiatrist, dated 15th February, 2019. Dr Zimmerman was initially taken to paragraph [35] of her report wherein she mentions that the Applicant “…was regularly reviewed by a psychiatrist while in prison but this is no longer the case in detention.” Dr Zimmerman spoke about the difference in the levels of care that someone with the Applicant’s condition would receive in criminal custody compared to immigration detention. Specifically, she was asked about the comparative level which one receives in either of these two scenarios. Dr Zimmerman said that in the criminal custody scenario, if an inmate is identified as having a major mental disorder, such as schizophrenia (as this Applicant does), such an inmate/patient would be placed in an area of the prison where he would be able to receive adequate mental health care. She provided the example of Ravenhall Prison where there are a number of units that are staffed by full-time mental health professionals. According to Dr Zimmerman, there is good psychiatric care in the prisons depending on where a given inmate is located. In the opinion of Dr Zimmerman, the Applicant is clearly someone who would be noted as having to be placed in an area where there is good mental health care. According to Dr Zimmerman, in the immigration detention scenario, the Applicant told her that it is effectively up to him to approach the detaining authorities and request to be seen by a doctor if he realises he has a problem. In that scenario, Dr Zimmerman says a detainee with the Applicant’s diagnosed mental health issues would be directed to consult with a general practitioner provided, of course, that the Applicant had the necessary insight to indicate to the detaining authorities that he was experiencing mental health difficulties and that he needed to speak with someone about it. Dr Zimmerman agreed that the Applicant would receive greater psychological intervention in prison than he would in immigration detention. It was during his time in immigration detention that Dr Zimmerman saw the Applicant for the purposes of producing her above mentioned report. She said that upon her review of the Applicant, she assessed that: “… there was absolutely no evidence of psychotic illness. His mental state was very stable. He was taking an anti-psychotic medication. So what that indicates to me is that he is able to continue to take anti-psychotic medication and remain well despite the fact that he’s not getting any regular psychiatric care, oversight and reviews that I think would be ideal.”

Decision

Reasons for decision

Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.CONCLUSION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

I will now turn to addressing these considerations.Primary Consideration A The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision makers should also give consideration to:(a)the nature and seriousness of the non-citizen’s conduct to date; and(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s appalling offending can be readily gleaned from his National Police Certificate.[11] His offending is particularized into episodic categories in the Respondent’s Statement of Facts, Issues and Contentions.[12] Suffice it to say that the offending includes:[11] Exhibit R3(a), Section 501 G-Documents, G5, pages 24 – 30.[12] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 4, paragraph [17].·conduct for which the Applicant was convicted in 2007, 2011 and 2012 involving the assault of Police officers, including an incident wherein the Applicant violently struggled with Police officers who eventually subdued him with capsicum spray;·conduct for which the Applicant was convicted in September 2015 involving respective assaults against on-duty emergency workers and the Police were called to intervene following the Applicant’s violent assault on his sleeping father. Two things should be noted about this incident. First, the Applicant’s father suffered a debilitating stroke in the early 2000’s resulting in a significant restriction of his bodily function. Second, the Applicant kicked two of the intervening Police officers in the head while resisting arrest;·conduct for which the Applicant was convicted in April 2016 involving (1) assault whilst in company and (2) assault with a weapon;·conduct for which the Applicant was convicted in December 2017 for a further robbery offence that involved very serious conduct whereby the victim was accosted at an ATM with a demand for money and when that request was refused, the Applicant punched him above his right eye and stole his mobile telephone;·respective convictions in November 2016 comprising:otheft (two charges);ointentionally damaging property (two charges);ocommitting an indictable offence whilst on bail (two charges);ocontravening a conduct condition of bail following a shoplifting offence (two charges);owilful damage of property;otheft of a motor vehicle;orobbery;ofailure to stop motor vehicle on request of lawful authority;odriving whilst disqualified;opossession of cannabis;ostate false name when requested;ofailing to leave licensed premises;ocontravention of community corrections order;oassault in company (two charges);ounlawful assault (two charges);oassault with weapon;ofail to answer bail;·conduct for which the Applicant was convicted in March 2017 comprising the following offences:obreach of community corrections order;ocriminal damage with intent to damage/destroy (four charges);otheft from motor vehicle;oattempt to commit an indictable offence;ocommit indictable offence whilst on bail (two charges);oshoplifting;ounlawful assault;oresisting a Police officer;ohandle/receive/dispose of stolen goods;·conduct for which the Applicant was convicted in October 2017 comprising two shoplifting offences and robbery;·conduct for which the Applicant was convicted in December 2017 involving one charge of robbery.The Nature and Seriousness of the Applicant’s Conduct to Date