Bristowe v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2021-01-22|Before: Thawley J

Pursuant to Rule 1.34 of the Federal Court Rules 2011, compliance with the requirement in Rule 31.23(2)(b) requiring an application for an extension of time to be accompanied by a draft originating application be dispensed with.
A referral certificate for legal assistance be issued under Rule 4.12 in respect of the applicant, such certificate to include legal assistance of the following kind: (a) to advise the applicant on the prospects of success of an application for judicial review of the Administrative Appeal Tribunal's decision made on 7 May 2020 and whether or not to make such an application; (b) if appropriate in the circumstances, to prepare and file an originating application on behalf of the applicant; (c) if required, to appear on behalf of the applicant, including by remote access technology, at a first case management hearing and any subsequent hearing; (d) if required, to prepare and file an outline of submissions and any other document reasonably necessary for the proper conduct of any application for judicial review, on a timetable to be set by the Court in consultation with the parties.
Pursuant to s 477A(2) of the Migration Act 1958 (Cth), the time to file an originating application for judicial review of the Administrative Appeal Tribunal's decision made on 7 May 2020 be extended until 4.30pm AEDT on 26 February 2021.
Reserve liberty to the applicant to apply to extend the time within which to file an application for judicial review identified in order 3 hereof, provided such liberty is exercised before 4.30pm AEDT on 26 February 2021.
Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background 7 The applicant is a 21 year old citizen of New Zealand. He first arrived in Australia in December 2004 as a five year old child and has, for the most part, lived in Australia with his family since that time. 8 Between July 2016 and May 2018, the applicant faced court in relation to drug possession offences, driving related matters, larceny, possession of a knife in a public place and a property destruction offence. 9 On 8 August 2019, the applicant was convicted in the District Court of New South Wales of supplying a prohibited drug of greater than or equal to a commercial quantity. The applicant was sentenced to a term of imprisonment of two years and nine months. Further offences of "possess prohibited drug" and "deal with property proceeds of crime < $100000" were taken into account when sentencing. 10 On 26 September 2019, the applicant's visa was mandatorily cancelled under s 501(3A) of the Act as a delegate was satisfied that the applicant did not pass the character test because of the operation of s 501(6)(a) on the basis of s 501(7)(c) of the Act and because he was serving a term of full-time imprisonment at the South Coast Correctional Centre in New South Wales for a criminal conviction. 11 The applicant made representations about the revocation of the visa cancellation within the relevant period and in the manner specified. A delegate of the Minister was not satisfied that the applicant passed the character test as defined by s 501 of the Act or that there was another reason why the original decision should be revoked. 12 On 13 February 2020, the Department of Home Affairs notified the applicant of the delegate's decision not to revoke the visa cancellation decision made under s 501(3A) of the Act. 13 Section 501(3A) of the Act provides: (3A) The Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or (ii) paragraph (6)(e) (sexually based offences involving a child); and (b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. 14 Whether a person passes the "character test" is determined by reference to s 501(6) and (7) which include: Character test (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 … Otherwise, the person passes the character test. Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal record if: … (c) the person has been sentenced to a term of imprisonment of 12 months or more; or 15 Section 501CA of the Act provides the following: 501CA Cancellation of visa - revocation of decision under subsection 501(3A) (person serving sentence of imprisonment) (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. (2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for making the original decision; and (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (3) As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. (5) If the Minister revokes the original decision, the original decision is taken not to have been made. (6) Any detention of the person that occurred during any part of the period: (a) beginning when the original decision was made; and (b) ending at the time of the revocation of the original decision; is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention. (7) A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7. Note: For notification of decisions under subsection (4) to not revoke, see section 501G. 16 It was not disputed that the applicant did not pass the character test because, amongst other things, he had been sentenced to more than 12 months' imprisonment - see: s 501(7)(c) of the Act. The real issue before the Tribunal was whether, on the merits, the mandatory visa cancellation should be revoked.

THE TRIBUNAL'S DECISION 17 The Tribunal considered two factors favoured the revocation of the cancellation decision: (1) the applicant's ties to Australia including that he had spent the majority of his life in Australia and that his family and social supports were located in Australia: [119]-[130]; and (2) the potential impediments the applicant would face upon returning to New Zealand, including short-term hardship in resettling in New Zealand: [134]-[140]. In this respect, the Tribunal stated that there was no "contemporary, independent psychological or psychiatric opinion" that could reliably inform the Tribunal as to (a) the extent to which the applicant would suffer psychologically if removed to New Zealand or (b) the extent to which such symptoms would prevent him from resettling in New Zealand: [138]. 18 The Tribunal considered the following factors weighed against revocation: (1) the protection of the Australian community, having regard to the seriousness of the offending, concluding that the applicant presented a real risk to the community which weighed very heavily against revocation: [26]-[101]; and (2) the expectations of the Australian community, having regard to FYBR v Minister for Home Affairs (2019) 272 FCR 454, concluding this factor also weighed heavily against revocation: [105]-[116]. 19 The Tribunal also considered a number of other factors specified in Ministerial Direction No 79 "Visa Refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA", concluding that the other factors were either irrelevant or neutral: [102]-[104] (best interests of minor children); [118] (international non-refoulement obligations); [131] (impact on Australian business interests); and [132]-[133] (impact on victims). The Tribunal stated at [141]: With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C which, when combined, are of determinative weight in favour of revocation. The application of the Other Considerations in the present matter can be summarised as follows: • International non-refoulement obligations: not relevant; • Strength[,] nature and duration of ties: weighs moderately in favour of revocation; • Impact on Australian business interests: not relevant; • Impact on victims: not relevant; and • Extent of impediments if removed: weighs moderately in favour of revocation. 20 Having regard to all of the factors it discussed, the Tribunal concluded that a "holistic view" of the considerations in Direction 79 "favours the non-revocation of the cancellation of the Applicant's visa": [143]. 21 The Tribunal's decision is discussed further below where relevant to the submissions advanced by the applicant.

PROCEDURAL HISTORY 22 As mentioned, the application for an extension of time was lodged on 11 August 2020. I made orders on 25 August 2020, which, among other matters, provided for the applicant to file submissions no later than 10 business days before the hearing. On 14 September 2020, I made an order listing the application for hearing on 5 November 2020. The applicant did not file submissions in accordance with the orders made on 25 August 2020. On 29 October 2020, I granted leave to the applicant to file submissions by 12pm on 4 November 2020. The applicant did not file submissions pursuant to that leave. 23 On 5 November 2020, at the hearing, a solicitor appeared on behalf of the applicant to seek an adjournment. The solicitor indicated he was making inquiries of Legal Aid and of a legal practitioner with experience in migration matters. I made orders vacating the hearing listed for 5 November 2020 and listing the hearing for 11 November 2020. I also made orders requiring any application for an adjournment of the hearing on 11 November 2020 to be supported by an affidavit addressing the inquiries which had been made for legal representation and the possibility of securing legal representation. 24 On 11 November 2020, the applicant appeared without representation. The applicant made oral submissions and did not apply for an adjournment.

THE SUBMISSIONS 25 The Minister's written submissions were prepared without the benefit of any written submissions having been filed by the applicant and without the benefit of a draft originating application. The Minister noted that the applicant was represented before the Tribunal and that the applicant and the Minister had both filed a statement of facts, issues and contentions. The Minister submitted that there was no indication from the Court Book filed on this application that the applicant was not aware of the nature of, or the issues in, the proceedings before the Tribunal or that he was not given the opportunity to present evidence and arguments to the Tribunal on those issues. The Minister submitted that there was no suggestion of any denial of procedural fairness. 26 The Minister referred to Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [41] (Besanko, Barker and Bromwich JJ), where the Full Court explained that an applicant's representations "are a mandatory relevant consideration as a whole and not as to the individual statements contained in the representations"; see also: Minister for Home Affairs v Omar (2019) 272 FCR 589 at [34(e)]. The Minister submitted that the Tribunal was required to consider, where relevant, the considerations set out in Direction 79, and that the Tribunal's reasons indicated that it did so. The applicant had identified his separation from his family and his support in Australia as the predominant reason in favour of revoking the cancellation decision. The applicant had also identified fears about his work and life opportunities in New Zealand. The applicant also stated that he had reformed. On the Minister's submission, the Tribunal took these matters into account. The Tribunal considered the applicant's family ties and support ([121], [124], [128]-[129]) and also considered potential psychological issues arising from his removal ([138]). The Tribunal accepted that there may be some short term hardship to the applicant but did not accept that the applicant would be unable to access medical and other social support or that he would not be able to find work in New Zealand: [136], [139]. 27 The Minister submitted that the Tribunal's findings and conclusions were open on the material before it. The Minister submitted that the Tribunal's decision was not legally unreasonable or irrational and that there was no other arguable jurisdictional error. 28 In oral submissions, the applicant submitted that the Tribunal did not take into account a part of the oral evidence given to the Tribunal by the psychologist, Dr Jacqueline Yoxall, regarding his risk of reoffending. On the applicant's submission, she had given evidence to the effect that the applicant's risk of reoffending was closely related to relapse and that his risk of reoffending would be lowered by the applicant participating in full-time formal rehabilitation. The applicant submitted that the Tribunal did not consider this evidence together with his evidence that he had been accepted by Odyssey House Community Services South Western Sydney into a rehabilitation course should he be released into the community. 29 A transcript of the hearing before the Tribunal was not tendered at the hearing and was not otherwise available. In view of the submissions made by the applicant, and the fact that the applicant was unrepresented, I adjourned the hearing to facilitate the transcript of the hearing before the Tribunal to be provided to the Court. Orders were also made for the applicant to request a further oral hearing should he wish to be further heard after reviewing the transcript. The transcript was later provided to the Court. The applicant did not ask to be heard further.

CONSIDERATION 30 In her report dated 16 April 2020, Dr Yoxall described her findings from administering to the applicant a psychometric test called the 'Level of Service Inventory - Revised', the primary goal of which "is to identify dynamic risk/needs variables that can potentially be changed so as to reduce the risk of reoffending". She concluded that the applicant's risk of reoffending was low. 31 In her oral evidence before the Tribunal, Dr Yoxall corrected a mathematical error in her report in her calculations of the 'Level of Service Inventory - Revised'. The correction of this error resulted in an increase in the applicant's risk of reoffending from "low" to "low-moderate/moderate". 32 In her written report, Dr Yoxall made the following recommendations as to the most appropriate rehabilitation and treatment for the applicant (as corrected at hearing): Even though the risk of reoffending is [low-moderate/moderate] it is directly linked, and heavily dependent upon his ability to maintain remission from drug dependence, if and when he returns to [the] community. To this end, it is my view that Mr Bristowe requires the following rehabilitation and intervention. a. A residential drug rehabilitation program for treatment of methylamphetamine dependence and poly substance abuse including addressing of life skill deficits identified above. b. Vocational upskilling to increase likelihood of obtaining and maintaining employment. This may include completion of Grade 10 education and industry based qualifications. c. Continued support, monitoring and supervision, either informal (e.g. family members) or more formal. 33 Dr Yoxall was cross-examined on her recommendation of a residential rehabilitation program. She said the following (emphasis added): ...And then based on your findings, you recommend a residential rehabilitation program?---Yes. If the applicant doesn't want to do a residential drug rehabilitation program or a residential drug rehabilitation program isn't an option for him for whatever reason?---Yes. Does that mean that he would be at a higher risk of reoffending?---If he didn't do any rehabilitation at all, any formal rehabilitation, yes, I think he would be at high risk of reoffending. I recommended residential rehabilitation, as what I knew from a clinical opinion, as what's most appropriate for his needs. There are other forms of formal rehabilitation, as I mentioned before. Outpatient programs, day programs, one-on-one counselling[,] group programs, all within various frameworks, evidence based frameworks. My view is that the residential drug rehabilitation program is the best chance of success for somebody with his range of rehabilitation needs. It's quite possible that he won't be able to access that, both from a basic issue of demand on beds - in most states in this country there's a higher demand on beds than there is - there's less beds than there are people that need them. With COVID, I can't predict what that would potentially mean for some of these services, despite the fact that they would be essential. So if he engages in formal rehabilitation and adheres to that, then he's engaging in rehabilitation and the risk of reoffending reduces. So it's not so much what type he engages in, it's more that I've recommended a type - I think there's more likelihood of success. If he engages in no rehabilitation, I think the likelihood of reoffending is substantial. 34 By the time of the Tribunal hearing, the applicant had not completed Dr Yoxall's three recommendations. As the Tribunal recognised at [80], quoting from Dr Yoxall's report, "[a] key reason for this is limited access to [evidence based drug rehabilitation and substantial learning] from prison or detention". Dr Yoxall had stated in her report that "[o]n review of Mr Bristowe['s] records and what he revealed in interview, it appears that he is motivated to engage in recommended treatment to ensure that his risk of general reoffending is reduced". 35 The applicant gave evidence before the Tribunal regarding opportunities to participate in any drug-related courses whilst incarcerated. In a written statement provided to the Tribunal, the applicant said (emphasis added): Risk of Reoffending 74. I was not able to undertake rehabilitation courses while I was in jail, because I was on remand for 14 months. 75. The only thing I managed to get into in jail was Narcotics Anonymous. This is because I was on remand for the vast majority of my time in jail and it was only one of two possible courses. … 88. I have started rehabilitation efforts with Odyssey House, through Correctional Services, while I am in immigration detention. Because of the current COVID-19 health crisis, I can only access the Telephone Support Program, where I can speak with Odyssey House counsellors and get support for both mental health issues and substance abuse problems. I have the opportunity to speak to counsellors as often as I like during the week, and I plan to speak to them at least once a week. I am hoping that this will assist me to understand my triggers and prevent a relapse in the future. 89. I am also able to get involved in a SMART Recovery course, which provides online drop-in sessions through Zoom during COVID-19. I can go to as many of these sessions as I like and I intend to go to as many as I can. 90. If I am allowed to remain in the community, and when the COVID-19 situation improves, I intend to do a 4 to 6 week program directed to Alcohol and Other Drugs recovery. These programs are face-to-face, and have a specific course progression, so I am looking forward to getting this substantive help. 36 The applicant also relied on a letter from Ms Cordeiro of Odyssey House Community Services South Western Sydney dated 21 April 2020. The letter noted that Mr Bristowe had attended a "SMART recovery session". The brochure from Odyssey House indicated that the team administering the program consists of "[q]ualified counsellors and psychologists". 37 The Tribunal's reasons included (footnote omitted): [81] The reality to be taken from Dr Yoxall's report [after correction of the mathematical error identified in her oral evidence] is that she has assessed the Applicant as being within a cohort which has a 48.1% chance [of] re-offending and being re-incarcerated within a 12 month period of release back into the community. There is no other evidence before the Tribunal indicating the Applicant has a lower risk of recidivism than that, apart from the Applicant's own evidence. [82] While I accept that Dr Yoxall's assessment derives from the application of an assessment or statistical tool (the LSI-R), Dr Yoxall - on the basis of her professional experience and qualifications - assesses the Applicant as falling within that 48.1% cohort and, as such, it represents a quite significant risk of recidivism. I must take Dr Yoxall's evidence about the level of that risk into account as a result of the language of paragraph 13.1.2(b) of the Direction. That paragraph requires me to assess the likelihood of this Applicant engaging in further criminal or other serious conduct "…taking into account available information and evidence on the risk of the non-citizen reoffending…" The best evidence informing the Tribunal of that risk is that of Dr Yoxall. I prefer Dr Yoxall's evidence above any other evidence regarding recidivism presently before the Tribunal. [83] For the purposes of assessing the Applicant's risk of recidivism, it is also necessary to have regard to Dr Yoxall's three recommendations appearing at paragraph [8] of her report. First, she recommended the Applicant undergo "a residential drug rehabilitation program for treatment of methylamphetamine dependence and poly substance abuse including addressing of life skill deficits identified above." It is not the Applicant's evidence that he will engage in any such residential drug rehabilitation program … [84] Dr Yoxall made it clear that if the Applicant undertook a residential drug rehabilitation program, it would be an important element for lowering the risk of re-offending. The Applicant is nowhere near reaching that level of rehabilitation. His intention is to continue his engagement with Odyssey House. While Odyssey House offers "group counselling in our Alcohol & other Drugs program", it does not amount to a residential drug rehabilitation program. [85] Commendable though the Applicant's participation in Odyssey House may be, it falls well short of the necessary expert and independent clinical support needed to demonstrate that (1) the causative factors of the Applicant's offending have been identified, and (2) that those factors are under some kind of effective remedial treatment, management and control such that it can be reliably found that the Applicant's risk of re-offending is low. … [99] The state of the evidence confirms that he is nowhere near convincing this Tribunal that he has engaged, or is likely to engage, with a process demonstrative of any meaningful or effective treatment or other expert and clinical intervention-based therapies necessary to demonstrate that his risk of re-offending could somehow move downwards from its present and unacceptable low-moderate/moderate level. 38 The Tribunal made further relevant comments at [106] in a section of its reasons addressing 'Primary Consideration C: The Expectations of the Australian Community' (emphasis added, footnote omitted): In assessing the weight attributable to this Primary Consideration C, it is necessary to have regard to the following circumstances arising from this matter's factual matrix: … • Dr Yoxall places the Applicant within a cohort of 48.1% of offenders who are likely to re-offend and be re-incarcerated within 12 months of their release. Dr Yoxall has stipulated three specific rehabilitative requirements to be met by the Applicant in order for there to be any safe finding that he is at a low risk of re-offending. The evidence demonstrates that the Applicant has not met, and is not likely to meet, the first two of those three requirements, comprising: (1) participation in a residential drug rehabilitation program, and (2) vocational upskilling. • Dr Yoxall's third recommendation (continued support, monitoring and supervision) did not previously prevent the Applicant's offending conduct. There is no convincing evidence that it is likely to do so in future; • While there is reference in Dr Yoxall's report to the Applicant's feelings of "…genuine remorse and he appears to accept responsibility for his offending…", there is an absence of any current, independent expert evidence that the Applicant has (1) resolved his predisposition towards abusing illicit drugs; (2) formed a capacity to regulate his impulsivity towards illicit drugs, especially in the context of a negative peer group; and (3) any demonstrated a [sic] lack of insight into the causative effects behind his predisposition to offend; … • The state of the evidence is such that the Tribunal cannot be reasonably expected to form any definitive view about the Applicant's risk of reoffending other than that it remains as it was prior to his most recent removal from the Australian community in July 2018; • The state of the only independent or expert evidence (i.e. Dr Yoxall) before the Tribunal essentially is: (i) that the factors predisposing the Applicant to offend have never been, and are not likely to be, the subject of an externally imposed and monitored regime of remedial therapy, treatment and management, as specifically recommended by Dr Yoxall; and (ii) that the Applicant has not demonstrated any independently measured level of insight into his offending which makes it impossible for this Tribunal to find that his risk of re-offending is anything other than the low-moderate/moderate level assessed by Dr Yoxall. 39 The question of present relevance is not whether jurisdictional error has been established, but whether there is sufficient merit in the applicant's complaint to warrant an extension of time so that a judicial review application can be fully argued. It is arguable that the Tribunal proceeded on an incorrect understanding of Dr Yoxall's evidence, in two respects: first, in understanding her evidence as a whole to be that the risk of recidivism was only reduced by a rehabilitation program which was residential; secondly, in understanding her evidence to be that the applicant was unlikely to engage in a rehabilitation program such that his risk of recidivism might reduce. 40 As noted earlier, Dr Yoxall's evidence included: (1) oral evidence to the effect that a residential rehabilitation program was not the only form or rehabilitation program which could reduce the risk of recidivism; and (2) evidence that "[o]n review of Mr Bristowe['s] records and what he revealed in interview, it appears that he is motivated to engage in recommended treatment to ensure that his risk of general reoffending is reduced". 41 Whether or not the Tribunal did proceed on an incorrect understanding of Dr Yoxall's evidence and whether, if it did, there was jurisdictional error (which includes a question of whether any relevant error was material to the outcome) is a matter to be determined after full argument if an originating application for judicial review is ultimately filed. 42 It may be that there are other possible arguments. At [90], the Tribunal said of Dr Yoxall's second recommendation regarding vocational upskilling: The Applicant does not have an impressive work history. It is suggestive of him rapidly reaching a point of dissatisfaction and boredom in whatever work task he initially applies himself to. I have earlier outlined Dr Yoxall's second recommendation - that being vocational upskilling - that the Applicant should undertake in order to reduce his risk of reoffending. Nothing of what the Applicant has proposed for future employment (if released) remotely approaches Dr Yoxall's recommendation that he complete his grade 10 education and obtain industry-based qualifications. 43 In cross-examination, Dr Yoxall confirmed that completing an industry-based qualification in traffic control would constitute vocational upskilling: And you've also recommended vocational upskilling, and said, "This may include completion of Grade 10 education and industry based qualifications." The applicant has given evidence that he would like to (indistinct) as a traffic controller. Is that what you meant by vocational upskilling, or is there something more to that, or produced by (indistinct) documentation?---Yes. This comes back to the likelihood of somebody being able to obtain and maintain employment, because employment is one of the, if you like - a lack of employment is a risk factor and a maintenance of employment is a protective factor. It's one of those things that supports a pro-social, satisfying life. So the more opportunity the person can have to engage, to get employment and to get re-employed if that employment is lost for any reason, the better their chance of maintaining a stable life. So that could be - I mean Grade 10 education as a minimum is helpful for most people. However, it's not the only way that one could obtain opportunities for employment. Various tickets (5.10.05), various plant operation tickets, traffic controller, there's a short course on that, or an ability there. All of these things will improve employment. But it's about skilling oneself in a variety of ways to increase the chances of employment moving forward. At this point in time with his employment history, which is minimal, and his education history, these are clear areas that he could work on to address these risk factors. … So the traffic controller qualification, if that's a short course could potentially fit into that, yes. 44 The applicant has established at a reasonably impressionistic level that an application for judicial review of the decision not to revoke the visa cancellation decision has sufficient merit to warrant granting an extension of time. The Court will issue a certificate under Rule 4.12 referring the applicant for pro bono legal assistance. The Court will grant an extension of time until 4.30pm AEDT on 26 February 2021 to file an application for judicial review, with the intention of providing time to obtain pro bono legal assistance if possible. If pro bono assistance is not obtained, the applicant will still need to file an application for judicial review on or before 4.30pm AEDT on 26 February 2021. I reserve liberty to apply to extend the date for filing an originating application, provided that liberty is exercised before the extended time for filing an originating application has lapsed. I reserve costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley.

Migration Act 1958(Cth)ss 477A, 501, 501CA

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