Gaspar v Minister for Immigration and Border Protection

1. The application for review of the decision of the Minister for Immigration and Border Protection not to revoke the cancellation of the applicant's visa on 17 March 2016 is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NORTH ACJ: 1 The applicant applies for judicial review of a decision of the Minister for Immigration and Border Protection made on 17 March 2016. The Minister decided not to revoke the cancellation of the applicant's Class BB Subclass 155 Resident Return (Permanent) visa. 2 The applicant is a citizen of Japan born in June 1970. She came to Australia in 1993 and has lived here for 23 years. 3 On 10 August 2011, the applicant was sentenced to nine years imprisonment for 15 offences involving fraud. 4 On 3 March 2015, the applicant's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) which relevantly requires the mandatory cancellation of a visa of a person serving a term of imprisonment with a substantial criminal record as defined in ss 501(3A) (7)(c), namely, that the person has been sentenced to a term of imprisonment of 12 months or more. 5 The applicant applied for revocation of the cancellation under s 501CA(4) which provides: (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. 6 The Minister refused to revoke the cancellation and provided reasons for his decision. 7 The Minister considered the question raised by s 501CA(4)(b)(i) of the Act, namely, whether or not he was satisfied that the applicant passed the character test as defined by s 501 of the Act. The Minister noted that the applicant accepted that she did not pass the character test. The Minister concluded that he was satisfied, by reference to the applicant's convictions for fraud, that the applicant did not pass the character test. 8 The Minister then considered the question raised by s 501CA(4)(b)(ii) of the Act, namely, whether or not he was satisfied that there is another reason why the original decision should be revoked. The Minister considered the strength, nature and duration of the applicant's ties to Australia and the extent of the impediments which the applicant would face if returned to Japan. There is no challenge to the Minister's treatment of these issues. 9 Then, the Minister had regard to the protection of the Australian community. On this issue he first referred to the nature of the criminal conduct of the applicant and characterised it as serious. He said: 27. I note that Ms GASPAR's offending occurred over several years, during which she fraudulently obtained approximately $1.9 million from clients and friends from whom she borrowed money but did not repay it. I note and endorse the court's acceptance of the prosecution's submission that the victims were particularly vulnerable as they were people from Japan who were living in a foreign country. I also share the Court's concerns about the large number of victims, the amount of financial loss they suffered which cannot be repaid, and the lengthy period of Ms GASPAR's offending. I find that the nature of this offending is serious. 10 Next, under the heading "Risk to the Australian Community" he said: 30. I note that the Court heard professional medical evidence that Ms GASPAR's offending was linked to a gambling addiction and that she was "a pathological gambler". She was also diagnosed as suffering from mental health issues. 31. I took into account the court's view that Ms GASPAR appeared to have an insight into the enormity of her gambling addiction and had completed a program in relation to that addiction, although she had "a long way to go in relation to treating that". Her Honour also noted that Ms GASPAR was receiving counselling and medication and had shown signs of improvement with her mental health, motivation and focus for the future. Her Honour mentioned Ms GASPAR's very early plea of guilty and her significant cooperation with police, which I acknowledge as an indication of remorse by Ms GASPAR for her offending. 32. I note that Ms GASPAR has stated that she has "learnt from" her experience, and it is her intention to prove that she is "no longer a threat to Australian society". I note also the comments from two persons who know Ms GASPAR that she "has made the most of her time in prison" and has the ability and determination to make a successful and positive life for herself. I further note that both persons wish to assist Ms GASPAR with her re-integration into the community. 33. I note that Ms GASPAR has no record of adverse behaviour in prison or immigration detention. 34. I consider that, as Ms GASPAR has been in custody since February 2010, her rehabilitation and risk of recidivism remain untested in an unsupervised environment. While noting that if I revoke Ms GASPAR's visa cancellation decision, she would be subject to supervision and parole orders until the expiry of her sentence on 16 February 2019, I cannot be confident that she would be able to avoid further gambling, which previously led to her criminal offending, if living in the general community. 35. If Ms GASPAR was to engage in further criminal conduct of a similar nature, such offending could cause significant financial and psychological harm to a member or members of the Australian community. I find that although the risk that Ms GASPAR will re-offend is lower than it was at the time of her original offending, if that risk were to eventuate, great harm could flow to a member or members of the Australian community. 11 The Minister concluded: 39. In considering whether, in light of Ms GASPAR's representations, I was satisfied that there is another reason why the original cancellation decision should be revoked, I have considered the length of time Ms GASPAR has contributed to the Australian community by being engaged in productive employment. However I also note that it was during this time and partly through this employment that she committed the offences of which she was convicted. 40. In considering whether I was satisfied that there is another reason why the original decision should be revoked, I gave significant weight to the serious and repeated nature of the crimes committed by Ms GASPAR and their impact on the victims. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the privilege of remaining in Australia. 41. Further, I find that the Australian community could be exposed to great harm should Ms GASPAR re-offend in a similar fashion. I could not rule out the possibility of further offending by Ms GASPAR. 42. I am cognisant that where great harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the decision to cancel the visa, even applying a higher tolerance of criminal conduct by Ms GASPAR, than I otherwise would, because she has lived in Australia for several years. 43. In reaching my decision about whether I am satisfied that there is another reason why the original decision should be revoked, I concluded that Ms GASPAR represents an unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed any other considerations as described above, including her lengthy residence, employment, social ties to Australia and difficulties Ms GASPAR may face in returning to live in Japan after many years away. 12 The applicant relies on two broad challenges to the Minister's decision. One challenge is that the Minister constructively failed to exercise jurisdiction in the assessment of the risk to the Australian community, and the other challenge is based on a particular construction of s 501CA(4).