FEDERAL COURT OF AUSTRALIA

Rosson v Minister for Immigration and Citizenship[2011] FCA 194

THE COURT ORDERS THAT:

1.    The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This is an application to set aside a decision of the Administrative Appeals Tribunal that affirmed the decision of a delegate of the Minister to cancel the Australian visa of Darrin Rosson, a citizen of New Zealand.

2    At the time of the tribunal’s decision, Mr Rosson was 41 years old. He had been born in New Zealand, and was a citizen of that country. He migrated to this country when aged 35 and has lived here since his arrival in December 2004. During that time he had been convicted of a number of offences. It was not an issue before the tribunal that Mr Rosson failed the character test prescribed in s 501 of the Migration Act 1958 (Cth). The issue before the tribunal was whether, in the exercise of the discretion given to the Minister, Mr Rosson’s visa should have been cancelled.

The Issues

3    Mr Rosson contended that the tribunal made two jurisdictional errors namely, that first, it misconstrued and misapplied cll 10.2 and 10.3 of Direction No 41: Visa Refusal and Cancellation under s 501 made by the Minister under s 499 of the Act, on 3 June 2009, and secondly, that it failed to consider the entirety of his case.

The Scheme of Direction 41

4    Direction 41 set out its objective as being to regulate, in the national interest, the coming into and presence in Australia of non-citizens (cl 5.1(1)). That objective recognised that, in order to safeguard the community, and to enable the government, effectively, to discharge its duties and responsibilities to the Australia people, the government sought to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens (cl 5.1(2)).

5    The Direction stated that, in order to facilitate those objectives, it sought to provide direction to decision-makers for the performance of their functions in the exercise of their powers under s 501 of the Act, and that it was binding on all decision-makers. The direction required a decision-maker to consider the nature of any harm the person concerned may cause to the Australian community and the risk of that harm occurring, in reaching a decision on whether to refuse or cancel a visa, as well as a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person had been ordinarily resident in Australia, and any relevant international law obligations (cll 5.2(1)-(3)). In particular, clause 5.2(5) provided:

“Among other matters, therefore, this Direction provides direction on the relevant factors that must be considered in making a decision under section 501 of the Act.”

6    Part B of Direction 41 dealt with the exercise of the discretion to refuse to grant or cancel a visa where the person did not satisfy the decision-maker that he or she passed the character test (cl 8). A decision-maker was required in every case to take into account the primary considerations set out in cl 10(1). Other considerations, defined in cl 11, were to be taken into account where relevant, and decision-makers were required only to take into account directly relevant considerations (cl 9). Critically, cl 10(1) provided as follows:

“10.    The primary considerations

(1)    In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:

(a)    the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b)    whether the person was a minor when they began living in Australia;

(c)    the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d)    relevant international obligations, including but not limited to:

(i)    the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii)    the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”

7    This was followed by a series of provisions numbered 10.1-10.4 that appear, in turn, to relate to each of the primary considerations in cl 10(1)(a)-(d). Clause 10.1 dealt with factors relevant to assessing the level of risk of harm to the community of a person’s entry, or continued stay. Clause 10.1.1 set out a number of examples of offences and conduct that were considered serious, including assault. Clause 10.1.2(1) provided that a person’s previous general conduct and total criminal history would be considered highly relevant to assessing any risk of re-offending, and cl 10.1.2(2) provided that:

“(2)    The following factors are to be considered as particularly relevant to this assessment:

(a)    a recent history of convictions, which should be considered as indicating an increased risk of re-offending;

(b)    evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation ...;

(c)    evidence that that person has breached judicial orders, including parole, bail, bonds, suspended sentences, and any other relevant undertakings or conditions imposed by the courts.”

Critically, cll 10.2 and 10.3 provided:

“10.2    Whether the person was a minor when they began living in Australia

(1)    If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.

(2)    Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.

Note:    For example, if the person was between 17 and 18 years old on arrival.

10.3    The length of time that a person has been ordinarily resident

(1)    Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.

Note:    For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.” (emphasis added)

8    Next, cl 10.4 dealt with Australia’s international obligations, including, in cl 10.4.1, the best interests of the child. Clause 11 dealt with other considerations that were to be taken into account where relevant, but, as provided in cl 11(2), generally, they were to be given less weight than primary considerations.

The Tribunal’s Decision

9    The tribunal considered Mr Rosson’s recent criminal history in Australia. This included convictions for common assault, contravening apprehended violence orders, resisting police officers, including resisting a police officer in the execution of his or her duty, maliciously destroying or damaging property, possessing prohibited drugs and assault. When sentenced on 5 June 2009, the last occasion on which he was imprisoned, he received sentences of 18 months imprisonment concurrently on two counts of contravening a prohibition or restriction in an apprehended violence order and for assault, 12 months imprisonment for maliciously destroying or damaging property, 9 months for common assault and 6 months for resisting a police officer in the execution of his or her duty.

10    The substantial issue before the tribunal was the impact that cancellation of the visa would have on Mr Rosson’s ability to continue what, at the time of the hearing before the tribunal, was a healthy relationship with his 14 year old son who lived with a former partner of his, Ms Linda Solomon. Ms Solomon gave evidence to the tribunal that their previously troubled relationship had been repaired. She was the person in respect of whom the apprehended violence orders had been granted against Mr Rosson and to whom most of his violent offending had been directed. Ms Solomon told the tribunal, as recorded in its reasons, that she hoped that he could stay in the country for his son’s sake as well as for her own, and that it would be very traumatic for their son for his father to be unable to remain here. By the time of the tribunal’s hearing, Mr Rosson was in a committed relationship with another person who also had urged, and given evidence in support of, his being allowed to stay in Australia.

11    The tribunal recounted circumstances in which much of Mr Rosson’s relevant offending took place. It noted that all the offences for which he had been convicted in Australia occurred during a period of heavy amphetamine use by him, together with other drugs, including heroin and marijuana. The tribunal noted that Mr Rosson had undertaken, but not completed, three drug and alcohol programs while in prison. It took into account expert evidence about his risk of recidivism at the time of the hearing. That risk was described by a social worker, Ms Mary Jelen, as “low” and by a psychologist, Ms Leah Vircoe, as “low to moderate”. The tribunal noted that each professional believed that the risk of his re-offending would increase if he were to use drugs or alcohol.

12    The tribunal recorded inconsistencies in histories and evidence given by Mr Rosson as to his alcohol consumption in recent times, together with inconsistencies of other witnesses’ evidence of that. It noted that Mr Rosson had given evidence to it that he had not used the drug “ice” since he had been in prison in 2009, and then only on one occasion. He claimed at the tribunal that he had last used cannabis in early 2010, on the occasion that resulted in the revocation of his parole and readmission into custody. The tribunal noted his account that his use of cannabis on that occasion was a one-off incident triggered by feelings of stress and depression that he experienced following a bike accident that had left him injured and incapacitated for a short period. The tribunal referred to the evidence of Ms Jelen that Mr Rosson had not disclosed to her that he had been readmitted into custody after failing a drug test, and of Ms Vircoe who had recorded a history that suggested that he had been motivated to cease using all drugs, but had encountered a few lapses following his incarceration in January 2009.

13    In arriving at its ultimate conclusion, the tribunal considered each of the four primary considerations set out in cl 10(1) of Direction 41. The tribunal found, in respect of primary consideration (a) that, given the nature of Mr Rosson’s criminal conduct, and the risk that his offending conduct might be repeated, the protection of the Australian community favoured the cancellation of his visa. It said that primary consideration (b) was a factor that did not favour Mr Rosson, as he was an adult when he started living in Australia. In relation to primary consideration (c), the tribunal noted that Mr Rosson’s first offence, for which he was convicted, had occurred just under two years after his arrival in Australia, and that he had lived in Australia for less than six years. It found that this factor, as well, did not weigh in his favour. Finally, in relation to primary consideration (d), the tribunal gave detailed consideration to Mr Rosson’s relationship with his 14 year old son. It found that the son’s interests would be best served by Mr Rosson remaining in Australia, and that that factor weighed heavily in favour of him retaining his visa.

14    After considering a number of other matters, the tribunal summarised its position by noting that the hardship caused to his former partner, Ms Solomon, his son and his current partner, were he to move to New Zealand, weighed strongly against visa calculation. The tribunal also took into account the hardship to Mr Rosson himself as weighing against cancellation, not only because of the emotional wrench of being separated from his partner and son, but his loss of support available to him in Australia, such as secure accommodation and a supportive environment provided by his family and friends. It then said the remaining factors addressed by it were neutral as to whether his visa should be cancelled. Those factors were other children whom he had with other partners and his links to his New Zealand family.

15    When explaining its decision, the tribunal noted that, in exercising the discretionary power to cancel the visa, it had to take into account the four primary considerations and any other relevant factor, and undertake a balancing exercise. The tribunal said that, in doing so, it had to be guided by the overarching principles set out in the objective to Direction 41, namely the protection of the Australian community. It then said:

“95.    Three of the four primary factors favour cancelling Mr Rosson’s visa – his age when he commenced living in Australia, the relatively short period he has resided in Australia, and the protection of the Australian community. These factors must be balanced against the best interests of his son, which as noted I believe weigh heavily in Mr Rosson’s favour, together with the hardship he, his partner and his son’s mother will suffer if he were forced to return to New Zealand.”

16    The tribunal observed that the most powerful consideration favouring Mr Rosson’s continuing to hold a visa was plainly the best interests of his 14 year old son. It noted there was no doubt that his commitment to his son was genuine. The tribunal was also confident that, were Mr Rosson to return to New Zealand, he would not abandon his son and would endeavour to maintain regular contact, and while phone contact was not ideal, it could be used to maintain the relationship. The tribunal was also confident that if he did return to New Zealand, Ms Solomon would actively encourage the maintenance of the relationship between Mr Rosson and the son, and concluded:

“98.    While there a number of factors that strongly weigh in favour of not cancelling Mr Rosson’s visa, these are, in my view, outweighed by those that favour cancellation, in particular the protection of the Australian community. I acknowledge in making that decision that the son’s best interests lie with Mr Rosson remaining in Australia and that Ms Hunter, Ms Solomon and Mr Rosson himself will suffer hardship if he were to leave.

99.    For these reasons, I must affirm the decision under review.” (emphasis added)

Mr Rosson’s argument as to the Application and Construction of cll 10.2 and 10.3

17    The first ground of challenge to the tribunal’s decision making process was that the tribunal erred when it came to undertaking the balancing exercise in [95] of its reasons, because it considered that three of the four primary factors favoured cancelling Mr Rosson’s visa. He argued that earlier in its reasons the tribunal had correctly observed that its considerations of Mr Rosson’s age when he began living in Australia and the length of time he had been resident in Australia prior to engaging in any criminal activity that bore negatively on his character did not weigh in his favour, as distinct from weighing against him. He argued that this demonstrated that the tribunal had misused, or misunderstood the commands in cll 10.2 and 10.3 of Direction 41. He referred to observations made by Marshall J in Minister for Immigration and Citizenship v JSFD (2010) 185 FCR 288 at 298 [52]-[55], a case of a person who had come to Australia when a minor. There, Marshall J observed that the extent to which reliance could be placed on cl 10.2 as a primary consideration would depend on when the person commenced to live in Australia and the then age of that person on arrival in Australia, saying: “This consideration could be neutral especially if a person arrives in Australia shortly before attaining 18 years. But that is not this case.”

18    I am of opinion that no jurisdictional error has been shown in the way in which the tribunal engaged in the weighing process for the purposes of dealing with the primary considerations that the decision-maker is required to take into account in every case, being the four considerations specified in cl 10(1)(a)-(d). In addition, the decision-maker must consider relevant factors identified in cll 10.1-10.4 in its assessment of the primary considerations. But those factors are not primary considerations in themselves, although, where relevant, they will need to be taken into account by the decision-makers in the course of deliberating on the relevant primary consideration.

19    The provisions of cll 10.1-10.4 are not intended or expressed to be exhaustive. So much is evident from the expression of primary consideration (d), which identifies “relevant international obligations including but not limited to the Convention on the Rights of the Child” and a number of other conventions that it sets out. Likewise, cl 10.1(2) refers to factors relevant to assessing the level of risk as including two particular ones that are set out. Clause 10.1.1(2) sets out a collection of examples of offences and conduct that are considered to be serious; again, not being expressed as an exhaustive or exclusive collection of matters to which a decision-maker must have regard.

20    Mr Rosson argued that cl 10.2 controlled the entirety of the consideration that a decision maker could give to the primary consideration in cl 10(1)(b); namely “whether the person was a minor when they began living in Australia.” He argued that cl 10.2 required favourable consideration to be given to such a person if they were a minor when they began living in Australia, with that favourable weight being variable depending on the length of time of the minority of the person. He contended, however, that the decision maker could only give favourable or neutral consideration, but not adverse consideration, to the fact that the person was not a minor at the time when they began living in Australia. I reject that construction.

21    In my opinion, a decision-maker was entitled to take into account the fact that a person who arrived in Australia as an adult, did so with the knowledge, duties and responsibilities of an adult in the position of the visa holder, at that time for the purposes of assessing what, if any, weight ought be given to that factor in the deliberative process. A decision-maker was entitled to take into account the fact that the person was not a minor. Indeed, a decision-maker was bound to have regard to that consideration by force of cl 10(1)(b). No direction is provided in the balance of Direction 41 as to the weight that should be given to the fact that the visa holder was not a minor under cl 10(1)(b).

22    No jurisdictional error was made by the tribunal, to the extent it may have done so, in having regard, to Mr Rosson’s age and adult status at all relevant times, or in its determination that his being an adult at the time he began living in Australia, was a primary factor unfavourable to him, if in fact that is what the tribunal did when it referred to his age when he commenced living in Australia, as being a factor that favoured cancelling his visa. Reading the tribunal’s reasons as a whole, I cannot see that the tribunal made a jurisdictional error in its consideration of the primary consideration in cl 10(1)(b).

23    Nor do I accept Mr Rosson’s argument that cl 10.3 prevented the tribunal from giving unfavourable consideration to the length of time Mr Rosson had been ordinarily resident in Australia prior to his commencing to engage in his criminal activity or other relevant conduct for the purposes of cl 10(1)(c). There does not seem to be any legal or other reason why, in weighing a person’s entitlement to be granted or refused a visa, a decision-maker should not have regard, in considering the primary consideration in cl 10(1)(c), to the fact that the person had been ordinarily resident in Australia for a short period prior to engaging in the criminal or other relevant activity as an unfavourable, rather than a favourable, or neutral matter. Indeed, common sense would suggest that it might be a particularly relevant factor that a person had embarked upon criminal activity very shortly after arriving in this country, in determining whether it was in the national interest that that person be allowed to remain here with a visa granted by the government of the country under the Act. I reject the first round of review.

Mr Rosson’s argument that the Tribunal failed to deal with the entirety of his case

24    The second ground argued was that in dealing with the primary consideration in cl 10(1)(a), the tribunal failed properly to consider the entirety of Mr Rosson’s case. First, he argued that the tribunal failed to address his submission to it that all of the violent offending in evidence had been directed against Ms Solomon. That argument must fail its threshold since, to begin with, he had been convicted twice of resisting a police officer, including on one occasion while in the execution of his or her duty. Secondly, the tribunal found that the son was probably adversely affected as a result of witnessing the conflict between his parents, namely Mr Rosson and Ms Solomon, although it went on to hold that it was demonstrably in the son’s best interest that the visa not be cancelled. A child who witnesses violent behaviour by one parent, or member of the household, to another has been placed in a situation by that violence that is relevant for the purposes of a decision-maker considering the impact on a person’s claim for an entitlement to retain his or her visa for the purposes of Direction 41. That would appear to be a matter, among others, that goes to the best interests of the child in this case, under cl 10.1(d)(i) and was open to consideration by the tribunal in Mr Rosson’s case.

25    Thirdly, the tribunal had before it (but did not refer in its reasons to) a report from a New South Wales Community Offender Services Probation and Parole Service Court Duty Officer that referred to the circumstances of Mr Rosson’s conviction for maliciously destroying or damaging property, for which he received a sentence of 12 months imprisonment, with a six month non-parole period, on 5 June 2009. The officer reported that during the preparation of his report it became clear it would not be safe for Court staff to remove Mr Rosson from the Court cells. The officer said that he observed Mr Rosson repeatedly kick the cell door in what appeared to be a clam but violent manner. The officer observed that other inmates who were within Mr Rosson’s cell appeared to be intimidated by him, to have had fearful expressions on their faces and to have demonstrated subdued behaviour. The officer recorded that the significance of Mr Rosson’s calmness and absence of rage, while kicking the door, was common amongst men who were intrinsically violent rather than violent only when enraged. He described Mr Rosson as an untreated violent offender who was unlikely to engage safely or in good faith in supervision in the community.

26    Despite accepting that Mr Rosson appeared to have significantly transformed his behaviour in the period subsequent to his most recent sentences, the tribunal took into account the fact that by January 2010 he had breached his parole by taking cannabis, and had resumed his custodial sentence. It noted that at that time of that breach of his parole he had been aware of the link between his drug use and his propensity to offend, that he was in a supported relationship with his current partner, whom he knew did not condone his drug use, and enjoyed secure accommodation with her. The tribunal also had regard to the fact that Mr Rosson by then had repaired his relationship with Ms Solomon and was enjoying regular contact with his son. It noted that Mr Rosson’s stated reason for using drugs on the occasion in January 2010 was to self-medicate, because he felt depressed. It found that this echoed his stated reasons for his earlier amphetamine use, namely, to take away his negative thoughts. The tribunal found that since that incident occurred at a time when Mr Rosson was subject to the supervision of the Probation and Parole Service, this conduct suggested that his supervision, and the undertakings he had given to the Court, were insufficient to curb his drug use. It noted that cannabis was generally considered less problematic than amphetamines and that, as Ms Vircoe had opined, occasional relapse incidents were not uncommon. Nonetheless, the tribunal found that the circumstance in which the relapse occurred suggested that Mr Rosson’s battle with his addiction was far from over.

27    It also found that it was troubling that Mr Rosson had failed to complete any drug or alcohol rehabilitation course and had vague plans about the assistance he might seek if allowed to remain in Australia, despite both experts (Ms Jelen and Ms Vircoe) having agreed that it was necessary for him to seek such assistance to minimise the risk of his relapsing. The tribunal concluded that it was not confident that, were he to remain in Australia, Mr Rosson would participate in a suitable rehabilitation or educative program. It then found:

“57.    I accept that Mr Rosson’s offending conduct must be seen in the context of his then-dysfunctional relationship with Ms Solomon. While I am satisfied that that relationship has been repaired and the prospect that it will disintegrate is remote, there nonetheless remains a risk that if Mr Rosson were to again face significant stressors in his life, he might relapse into drug use. Coupled with his poor record of complying with judicial orders, his lengthy criminal history (including his New Zealand offending) and the relatively short period spent in the community since his last offence was committed, leads me to conclude that there is a real and material risk that Mr Rosson’s criminal conduct will be repeated.” (emphasis added)

28    Mr Rosson complained that his argument to the tribunal that he had only been violent with respect to Ms Solomon, and that that relationship had subsequently been repaired to the point where she did not regard him as a threat and was supporting his application to stay in Australia, had not been properly taken into account.

Consideration

29    I reject that argument. In my opinion, the tribunal gave thoughtful and, indeed, sympathetic consideration to Mr Rosson’s plight, and took into account what it described as a remote, but nonetheless, real and material risk that his criminal conduct would be repeated. It took into account, as, indeed, it was entitled to do, the risk that if he were to face significant stressors in his life, just as he had in January 2010, which resulted in his taking cannabis he might relapse into drug use. It also took into account his lengthy criminal history, his poor record of compliance with court orders, and the relatively short period he had been back in the community, since he had served the balance of his custodial sentence, in forming the view that such a risk existed. I am unable to see any jurisdictional error that the tribunal made in taking this approach.

30    Far less am I able to perceive any failure by the tribunal to properly consider his submission that only Ms Solomon was the victim of his violence. In my opinion, that submission was doomed to fail and the fact that the tribunal did not refer to it expressly was not an error. This submission was misconceived. The criminal history and effect on Mr Rosson’s son of witnessing his father’s earlier violent relationship with Ms Solomon demonstrate that such a submission had no prospect of being successfully accepted and was safely able to be put to one side, to the extent that it did not need to be expressly rejected. The tribunal stated its reasons for finding that there was a real and material risk of his repeating his offending. There was no jurisdictional error in how it arrived at that conclusion.

Conclusion

31    For these reasons I am of opinion that the application should be dismissed.

Associate:                        Dated: 11 March 2011