FEDERAL COURT OF AUSTRALIA

VPKY v Minister for Home Affairs [2019] FCA 1767

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed, with costs to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

O’CALLAGHAN J:

The application

1    By an amended originating application dated 5 July 2019, the applicant seeks judicial review of a decision by the second respondent (the tribunal), which affirmed a decision by a delegate of the first respondent (the Minister) made under s 501CA(4) of the Migration Act 1958 (Cth) (the Act), not to revoke the cancellation of the applicant’s visa under s 501(3A) of the Act.

2    There are two grounds, namely:

1.    The Tribunal fell into jurisdictional error in that it failed to take account of relevant considerations.

Particulars

(a)    The Tribunal did not consider as required under the First Respondent’s (the Minister’s) Direction 79 – Migration Act 1958 – Direction under section 499 Visa refusal and cancelation under s501 and revocation of mandatory cancellation of a visa under s501CA (the Direction), the considerations of Protection of the Australian community (including the risk to the Australian Community), Expectations of the Australian Community, Impact on family members, Impediments if removed, and under the global weighing of the considerations, that it was almost certain that a decision not to revoke the cancellation of the Applicant’s visa would mean that:

     (i)    she would never see her parents again;

     (ii)    she would be excluded from being present in their last years;

(iii)    she would be excluded from caring for them as well as them being prevented from receiving her care as a daughter and as a nurse and a person with experience working with the elderly; and

     (iv)    her parents would die without her being able to be present.

(v)    She may never see other members of her closely knit family again, including her sisters, daughter, grandchild, nieces, nephews and great niece and nephew who live in Australia.

(b)    The Tribunal did not consider the grave distress which would be suffered by the Applicant, her parents and all members of her closely knit family by reason of the factors set out in Particular 1(a).

(c)    The Tribunal did not consider the significance of the prospects of the Applicant not re-offending, of the combined effect of her present age, and her release plans, together with the length of time the applicant had been free from serious offending after her release from prison after conviction in 2002.

2.    The Tribunal fell into jurisdictional error in that it was unreasonable.

Particulars

(a)    The Tribunal was unreasonable in assessing the considerations under the Direction of:

(i)    Protection of the Australian community (including the risk to the Australian Community),

    (ii)    Expectations of the Australian Community,

    (iii)    Impact on family members, and

    (iv)    Impediments if removed.

(b)    The Tribunal was unreasonable because of the matters set out in the Particulars to Ground 1.

(c)    The Tribunal was unreasonable in determining that the balance of all relevant considerations weighed in favour of cancellation.

The facts

3    The applicant is a British citizen born in 1961. She emigrated to Australia with her immediate family in 1969. She has lived in Australia ever since. Almost all her family members live in Australia, including her elderly parents, sibling, daughter, grandson, grandniece and nephew.

4    On 7 September 2017, the applicant’s visa was cancelled under s 501(3A) of the Act.

5    The applicant has a “substantial criminal record” within the meaning of s 501(3A)(a)(i) (read with s 501(6)(a) and (7)(c)). That record dates back decades.

6    Most recently in March 2017, the applicant was sentenced by the Supreme Court of Queensland to 6 years’ imprisonment for trafficking in dangerous drugs. (The applicant was paroled in August 2018 and is currently being held in immigration detention).

7    By reason of that sentence, the applicant was at relevant times serving a full-time sentence of imprisonment in a custodial institution for an offence against State law within the meaning of s 501(3A)(b).

8    The applicant requested revocation of the cancellation decision, made a statement in August 2018, and through her representative provided representations in September 2018.

9    On 14 December 2018, a delegate of the Minister decided not to revoke the cancellation decision.

10    On 18 December 2018, the applicant sought review of the delegate’s decision in the tribunal.

11    The applicant filed contentions, together with supporting documents. The applicant also filed a list of witnesses and a response to the Minister’s submission.

12    The Minister filed contentions dated 12 February 2019.

13    The tribunal conducted a hearing on 25 February 2019, and on 8 March 2019, affirmed the decision under review.

14    The tribunal weighed in the balance, on the one hand, the serious nature of the applicant’s prior offending; that the risk of her reoffending remains real with a potential for further harm to the community should that occur, and on the other hand the impact on her family; the length of time she has lived in Australia; the very significant ties the applicant has to the Australian community, as well as the challenges she may face if she were to return to the United Kingdom. It concluded that “[h]aving very carefully weighed all of the considerations, [it was] satisfied that the overall balance weighs slightly in favour of a decision to not revoke the mandatory cancellation of the applicant’s visa”.

15    The reasons of the tribunal about the impact on the applicant’s family, which is the subject of ground 1, are as follows:

59.    The Australian community would … expect careful consideration [to be] given to the potential impact [that] not revoking the mandatory cancellation of the applicant’s visa could have on the applicant’s other family members including her elderly parents, sisters and daughter. This is particularly so having regard to the health concerns of the applicant’s ageing parents.

…

Impact on family members (and strength, nature and duration of ties more broadly)

63.    The applicant has lived in Australia from seven years of age. At the date of the hearing she was 57 years of age. Her parents, sisters, daughter, grandchild, nieces and nephews and great niece and nephew all live in Australia. The applicant also has one other adult niece who lives in overseas (sic).

64.    A significant number of witness statements were provided in support of the applicant. These statements were submitted by family members, friends, support workers and other acquaintances. They demonstrate that the applicant has strong ties to the Australian community that have been established over a long life in Australia. The applicant’s parents, sister and daughter all gave oral testimony before the Tribunal regarding their relationship with the applicant and were all clearly concerned about her potential deportation.

65.    The applicant’s daughter gave evidence of their previous estrangement telling the Tribunal that she had wanted to stay away from her mother for a period in order to teach her a lesson. However she told the Tribunal that they had now reconnected. It was very clear to the Tribunal that despite the daughter not approving of her mother’s drug use and offending there was a strong bond between them and that the daughter would be significantly impacted if the applicant were to be deported from Australia.

66.    The applicant’s sister gave evidence of her relationship with the applicant telling the Tribunal that she tries to maintain regular contact with the applicant and would do so around once a fortnight. The applicant’s sister was very critical of the applicant’s offending but clearly very concerned about her future wellbeing.

67.    The applicant’s parents both gave evidence to the Tribunal. They are both elderly and in declining health. The applicant’s mother is legally blind and has survived three bouts of cancer. The applicant’s mother spoke of the important role her daughter could play in caring for her and her husband as they got older and also the opportunity that would present for them to care for her. She told the Tribunal “we can all care for each other”. She told the Tribunal she would be “heartbroken” if her daughter was removed from Australia. The applicant’s father spoke of his strong commitment to helping his daughter and his concern about her returning to the United Kingdom telling the Tribunal “there is no one for her there”.

68.    It was clear from the evidence that the applicant is a member of a relatively close and very loving family and that the applicant is a valued member of that family.

69.    It was clear from the oral testimony of both the applicant and her parents that the applicant has a strong connection to her parents. The non-revocation of the mandatory cancellation of her visa would impact on them significantly both in terms of the stress it would cause them and also because it would prevent her from caring for them as their health continues to decline.

70.    Direction 79 acknowledges a higher tolerance towards offending in respect of visa holders who have strong ties to the Australian community and where they have lived in Australia for most of their life. That is certainly the case with respect to the applicant. The Tribunal is satisfied that over her life, she has made a significant contribution to the Australian community through her hard work in retail, as a nurse, in aged care and as a farm hand. There was evidence before the Tribunal of the applicant being quite industrious and earning a reputation for hard work during the periods she was not taking drugs. There was also evidence of the applicant’s significant contribution to community groups including in particular in relation to animal welfare and the elderly. The applicant’s contribution through her strong ties and work history in Australia must of course [be] tempered by her criminal offending.

71.    Direction 79 requires that the Tribunal discount the level of tolerance for offending when the applicant has committed offences at an early stage after having arrived in Australia. The Tribunal recognises that the applicant offended during her teens. However her more serious offending occurred later in life and there have been very significant periods of her life where the applicant has not offended.

72.    On balance, the Tribunal finds that the impact on the applicant’s family and the applicant’s significant and long standing ties to Australia weigh heavily in favour of revoking the mandatory cancellation of the visa.

…

Extent of impediments if removed

75.    …

76.    The Tribunal accepts that given the applicant’s age, health concerns, the difficulties she may face in seeking to avoid a relapse back into drugs, and the absence of close family or personal support networks would make a return to the United Kingdom challenging for the applicant. The Tribunal also recognises that in light of her age, her health concerns and also her serious criminal record securing reliable work may be challenging although her history in Australia would suggest that the applicant has an aptitude for work and a capacity to find it provided that she is able to remain drug free.

77.    The Tribunal finds that this consideration should weigh slightly in favour of revoking the mandatory cancellation of the visa.

…

CONCLUSION

78.    The Tribunal is satisfied that the applicant does not pass the character test set out in s 501(6) of the Act. Therefore, the Tribunal is required to exercise the discretion in s 501(1) of the Act in accordance with Direction 79 – Part C. The Tribunal has carefully assessed each of the considerations of Direction 79 as set out above.

79.    The Tribunal recognises the serious nature of the applicant’s prior offending. The Tribunal acknowledges that the risk of reoffending remains real with a potential for further harm to the community should that occur. However, this needs to be weighed against the impact on her family, the length of time she has lived in Australia, the very significant ties the applicant has to the Australian community, as well as the challenges she may face if she were to return to the United Kingdom. Having very carefully weighed all of the considerations, the Tribunal is satisfied that the overall balance weighs slightly in favour of a decision to not revoke the mandatory cancellation of the applicant’s visa.

The applicant’s submissions

16    The applicant submits that the tribunal did not, in having regard to Direction 79, consider :

that it was almost certain that a decision not to revoke the cancellation of the Applicant’s visa would mean that:

(i)    she would never see her elderly and ill parents again;

(ii)    she would be excluded from being present in their last years,

(iii)    she would be excluded from caring for them as well them being prevented from receiving her care as a daughter and as a nurse and a person with experience working with the elderly;

(iv)    her parents would die without her being able to be present; and

(v)    she may never see other members of her closely knit family again, including her sisters, daughter, grandchild, nieces, nephews and great niece and nephew who live in Australia.

17    It is next submitted that the tribunal did not consider the “grave distress” which would be suffered by the applicant, her parents and all members of her closely knit family by reason of the matters alleged in [16].

18    It is further submitted that the tribunal did not consider the significance for the prospects of the applicant not re­offending of the combined effect of her present age, and her release plans, together with the length of time that the applicant had been free from serious offending after her release from prison after conviction in 2002. Although the applicant concedes that the tribunal “mentioned a number of factors relating to the risk of future offending”, “it did not consider the applicant’s age as one of these factors, and thus did not take these factors into account in combination. Her age was a relevant factor, given her numerous letters and submissions relating to her having learned and determined to stay clear of drugs, because it was a bad thing, and because it would affect others, including her parents and family”. (Emphasis in original).

19    Ground 2 (the tribunal’s decision was unreasonable) and the particulars thereto are variations of the same points raised by ground 1.

Consideration

20    The central question posed by ground 1 that was the subject of debate during the course of oral submissions is whether the tribunal was required specifically to have regard to the fact that it was almost certain that a decision not to revoke the cancellation of the applicant’s visa would mean that she would never see her elderly and ill parents again and that her parents would die without her being able to be present, whether those considerations were implicitly considered, and whether implicit consideration is sufficient.

21    In my view, it was not necessary for the tribunal to spell out in the detail contended for by the applicant the self-evident consequence of the tribunal’s acceptance of the following facts, namely that:

    the applicant’s parents are both elderly and in declining health;

    the applicant’s mother is legally blind and has survived three bouts of cancer;

    the applicant could play an important role in caring for her mother and her father as they got older;

    the mother would be “heartbroken” if her daughter were removed from Australia; and

    deportation would mean that the applicant would be prevented from caring for her parents as their health continued to decline.

22    It seems to me, with respect, that it goes without it being needed to be said in terms, that the tribunal therefore must be taken to have accepted that, as a consequence, the applicant would never see her parents again (because they would pass away before she could do so).

23    As to the other matters, namely that the applicant would be excluded from being present in their last years, excluded from caring for them as well them being prevented from receiving her care as a daughter and as a nurse and a person with experience working with the elderly, these matters were explicitly dealt with. See, by way of example, the tribunal’s reasons at [37] (where the Tribunal accepted that the applicant could provide “the support they required given their old age and poor health and that her skills as a nurse and working with the elderly would be particularly helpful in that context”); and at [69] (“The non-revocation of the mandatory cancellation of [the applicant’s] visa would impact on [her parents] significantly both in terms of the stress it would cause them and also because it would prevent her from caring for them as their health continues to decline”).

24    It is also contended that the tribunal did not consider the fact that “[the applicant] may never see other members of her closely knit family again, including her sisters, daughter, grandchild, nieces, nephews and great niece and nephew who live in Australia”. But that is not so. The tribunal referred specifically to the testimony of the applicant’s sister and daughter ([65]-[66]), and to the fact that the applicant is a member of a relatively close and loving family and is a valued member of that family ([68]). The tribunal also acknowledged that it would be challenging for the applicant to return to the UK without any close family ([76]).

25    The tribunal considered therefore both the effect of deportation on the applicant’s family ([72]), and on her.

26    It is next submitted that the tribunal did not have regard to the “grave distress” that would be suffered by the applicant, her parents and her family. I am unsure about the provenance of, or the particular significance said to be attached to, that phrase, but the tribunal not only referred specifically to the “stress” that deportation of the applicant would cause the parents ([69]), but it recognised the “heartbreak” that the applicant’s mother would suffer. And it was precisely because of those findings that the tribunal concluded that the impact on the applicant’s family and her ties to the community “weigh[ed] heavily” in favour of revoking the mandatory cancellation ([72]).

27    As to the submission that the tribunal did not consider, in assessing the risk of the applicant re-offending, the combined effect of her present age, her release plans, and the length of time she had been free of serious offending after her release in 2002, that is simply not so. The tribunal considered carefully the risk of the applicant re-offending at [25]-[44]. In particular, the tribunal considered the reasons for the most recent offending ([26]), and the link between the applicant’s offending and the trauma she had experienced ([27]-[31]).

28    The tribunal then considered the steps that the applicant had taken to understand her offending ([33]-[36]), the applicant’s relapse prevention plan, and the weaknesses in that plan (which was similar to a plan she had had after leaving prison in 2002) ([38]-[41]).

29    The tribunal summarised its main findings as follows:

42.    In assessing the level of risk of reoffending the Tribunal accepts that:

(a)    the applicant has demonstrated a level of remorse and insight into her offending. This is qualified to a degree by the applicant seeking to downplay her level of responsibility and culpability for her offending at various times during the course of her evidence. There is no question in the mind of the Tribunal that the applicant regrets her offending and the pain it has caused her personally and also her family. There is also no question that the applicant considers the ongoing threat of deportation to be a significant incentive to avoid reoffending.

(b)    the applicant is a fundamentally decent person who has engaged at various times in her life in serious drug use that can fairly be described as addiction and that, as a consequence of that drug use, has engaged in serious offending. The Tribunal also accepts that the applicant’s use of drugs is in large part emotionally driven, either as a consequence of past trauma, troubled relationships, or other emotional stresses. It has also been associated with poor choices in respect of partners and friendship groups. However, as the respondent contended, the applicant is likely to be confronted with similar circumstances again in the future and that this presents a genuine risk in terms of her potential to relapse back into serious drug use.

(c)    the applicant has previously made efforts to better understand her offending and drug use and to develop tools and skills to reduce the potential for relapse in the future. This has included both various intervention programs and also counselling. However, the Tribunal was concerned that the arrangements the applicant had in place to ensure this type of support was available on her release did not appear well developed.

(d)    the applicant will have the benefit of other support structures to ensure the prospect of relapse is minimised including her loving family, friends, her church and associated religious support networks. However, the Tribunal accepts the respondent’s contentions that these same support structures were available to the applicant on her previous release from prison and yet despite them she relapsed back into drug use and offending.

(e)    the applicant has behaved well while in custody and had significant period of abstinence while in the community previously. However, despite this there can be no denying that the applicant has been a repeat offender in the past and that her offending has increased in seriousness over time.

(f)    notwithstanding the applicant’s stated determination to not reoffend and let her family down again and also acknowledging the very significant incentive she feels to not reoffend given the overhanging threat of future deportation, the applicant’s current resolve has not yet been tested in the community.

43.    Of particular concern to the Tribunal in assessing the level of risk was the applicant’s stated intention to return to the coastal city in Queensland to live with her parents. While the Tribunal accepts the applicant’s stated motive as being the obligation she feels to be able to care for her ageing parents, the applicant herself has acknowledged the importance of her avoiding old social networks associated with her previous drug use many of whom are located in and around the coastal city in Queensland in preventing relapse back into drug use. The applicant’s father also acknowledged that there were risks associated with the applicant’s proposed return to the coastal city in Queensland although he told the Tribunal that he believed the applicant’s interests would be best served by living with her parents rather than living by herself. The reports from both Associate Professor F and Ms P also noted risks associated with the applicant’s potential exposure to old social networks involved in drug use.

30    As to the other points that the applicant says the Tribunal did not take into account – the applicant’s age, her prison release plan, and the time since which she has not offended – again, it did. As the Minister submitted:

39.    Applicant’s age: First, the AAT implicitly rejected the Applicant’s age as a significant factor to her re-offending. To the contrary, the psychologists stated that the risk of reoffending was linked to the Applicant’s ability to avoid drug networks ([43]; [41]). Further, the Applicant’s criminal history suggested drug-related offending (albeit of a less serious nature) in 2007 and 2015, between her release in 2002 after her earlier trafficking conviction and her conviction in 2017 for trafficking. The AAT referred to this other offending, and the Applicant’s attempt to downplay its significance, ([22]-[23]).

40.    Release plan: Second, the AAT expressly considered the Applicant’s relapse prevention plan. However, the Applicant conceded that this plan was similar to the plan she had after her release in 2002, when she had relapsed into reoffending. The Applicant also conceded that an important part of this plan was avoiding old networks ([38]). The AAT summarised the relevant psychiatric comments on this plan at [39]-[41], and stated that it was of “particular concern” that the Applicant was intending to return to the same coastal city in Queensland where her old social networks are located ([43]).

41.    Period without serious offending: Third, the AAT expressly considered the Applicant’s period without serious offending, referring to a “significant period of abstinence”. However, the AAT found that the Applicant was a repeat offender in the past and her offending has increased in seriousness over time ([42](e)). As noted, the Applicant was convicted for less serious drug-related offending in 2007 and 2015.

42.    The Applicant weighed up all the Applicant’s circumstances at [44]. There is no failure to consider these factors, either individually or in combination.

(Court book references omitted).

31    Ground 2 is that the Tribunal’s decision was unreasonable. There is no substance to this ground. The tribunal found that the protection of the Australian community (a primary consideration) should weigh “very heavily” in favour of not revoking the cancellation decision ([46]). That finding, in itself, would be sufficient to base a conclusion that the cancellation decision should not be revoked. The tribunal also found that the expectations of the community (another primary consideration) weighed in favour of not revoking the cancellation decision ([61]).

32    On the other hand, the impact on the applicant’s family “weigh[ed] heavily” in favour of revoking the mandatory cancellation ([72]). The extent of impediments weighed “slightly” in favour of revocation ([77]).

33    There is no error demonstrated in that process of reasoning and weighing matters in the balance, fine though the balance was. There is a clear, intelligible justification for the tribunal’s decision.

34    The application must therefore be dismissed, with costs.

Associate:

Dated:    6 November 2019