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

Background 6 Mr Kerry is a citizen of the United Kingdom, born on 18 October 1984. On 24 November 1996, he migrated to Australia with his parents and siblings. The most recent visa he was granted was a Class AT Subclass 126 (visa). His visa was cancelled under s 501(3A) the Migration Act on 12 June 2019. 7 Mr Kerry has a lengthy criminal history commencing in 2003. The Tribunal noted that Mr Kerry's criminal history is seven pages long, contains some 70 offences, and that he has been brought before the courts, convicted and sentenced on at least 22 occasions. The submissions of the Minister summarised some of those offences: (a) protection orders in 2003 and 2004 recording that the applicant had punched, with a closed fist, a female person he lived with and threatened her when armed with a steel bar and then baseball bat; (b) contravention of a domestic violence order in December 2003; (c) causing damage to his parents' home on numerous occasions up to January 2004; (d) between 2006 and 2011, various offences relating to illicit drugs, possession of unlawful weapons, breaching bail, breaching community service orders, breaching a probation order, and breaching suspended sentences; (e) imprisonment in November 2011 for concurrent periods of six, three and two months (with automatic parole in January 2012). He was further sentenced to 18 months imprisonment in August 2014 in relation to possession of drugs. He was convicted of various offences in the sentencing period, including possession of dangerous drugs, disqualified driving, and breach of bail conditions; (f) breach of parole by committing further offences in October 2014, remaining at large while continuing to offend; and (g) in August 2015, he was convicted of further offences including possession of dangerous drugs, receiving tainted property, failing to appear in accordance with a bail undertaking, counts of breaching bail, and assaulting or obstructing police. With the exception of the sentence for breaching bail, all were to be served concurrently. 8 Shortly after this, Mr Kerry was notified of a decision to cancel his visa. That decision was revoked in April 2016. Mr Kerry was notified that the decision to revoke the original cancellation did not mean he could not be reconsidered for cancellation on character grounds. Notwithstanding this, Mr Kerry's offending continued: (a) in July 2016, the police found cannabis in a hire car that the applicant was driving; (b) after having been investigated in relation to drug trafficking since 2017, the police searched the applicant's parents' house (where the applicant lived), seized drugs and a stolen vehicle. A later search warrant at the applicant's parents' home led to the discovery of cash, a telephone containing messages evidencing the applicant's trafficking in methylamphetamine, drug related paraphernalia, tasers and stolen goods (in the Applicant's car) (among other things); and (c) on 26 April 2019, the applicant was convicted of various offences, including trafficking in dangerous drugs (with a sentence of five years and six months imprisonment), unlawful possession of a motor vehicle with intent to deprive (18 months' imprisonment), and possession of suspected stolen property (12 months' imprisonment). 9 On 12 June 2019, the applicant's visa was cancelled under s 501(3A) of the Act. On 17 June 2019, the applicant requested revocation of the cancelled of his visa. Mr Kerry made a number of representations in support of his request that included: • His family, being his parents, [mother] and [father], and siblings, [brother] and [sister] all reside in Australia and are Australian citizens. They have all settled in Australia permanently and do not have any plans of returning to the United Kingdom. • His mother is in poor health, suffering from diabetes and depression. She has been hospitalised several times and has suffered a heart attack. The stress of the prospect of the Applicant's removal from Australia is affecting her health and all aspects of her life. It would be devastating to her health and wellbeing were the Applicant to be removed. Her health would prevent her from travelling to the United Kingdom to visit the Applicant. She needs the support of her family as her health continues to deteriorate. • The prospect of his removal is causing extreme stress to his sister and her children. • Removing the Applicant from Australia will have serious financial and emotional consequences for the Applicant's family and would cause them significant hardship. 10 Notwithstanding the challenge to the revocation decision, on 13 October 2019, security staff in immigration detention found methamphetamine and Suboxone (a drug that treats opioid addiction) hidden in a speaker owned by Mr Kerry in his room. He was subsequently convicted of two offences of possession of dangerous drugs. 11 On 17 January 2020, a delegate of the Minister refused to revoke the cancellation of Mr Kerry's visa. On 20 January 2020, Mr Kerry was notified of the delegate's decision. 12 On 28 January 2020, Mr Kerry applied to the Tribunal for review of the delegate's decision.

Decision of the Tribunal 13 The reasons of the Tribunal in considering Mr Kerry's application are detailed and lengthy. 14 The Tribunal noted at [45] that the applicant had been sentenced to a term of imprisonment of five years and six months, which included a non-parole period of 18 months, and therefore did not pass the character test as defined in s 501(6) and 501(7)(c) of the Migration Act. The Tribunal then considered whether there was another reason why the cancellation of the applicant's visa should be revoked under s 501CA(4) of the Migration Act, and noted that pursuant to s 499(2A) of the Migration Act the Tribunal was bound to comply with Direction No 79 - visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (Direction No 79). In respect of the considerations identified by Direction No 79 the Tribunal found as follows. 15 In relation to Primary Consideration A, being protection of the Australian community, at [57] the Tribunal noted that paragraph 13.1.1(1) of Direction No 79 specified that decision-makers must have regard to a number of factors in assessing the nature and seriousness of a non-citizen's criminal offending or other conduct, relevantly: a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously; b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed; c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious; d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes; e) The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness; f) The cumulative effect of repeated offending; g) … h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour); i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act; 16 In relation to factors (a) and (b), the Tribunal found that in late 2003 Mr Kerry was violent toward a female partner, and although no conviction was entered in relation to reported incidents of domestic violence concerning Mr Kerry para 13.1 required an evaluation not only of offences but also of conduct. It followed that his violent conduct towards a domestic partner was relevant to the Tribunal's assessment of the nature and seriousness of his conduct. 17 The Tribunal noted that, referable to factor (c) of para 13.1.1(1), the applicant had twice been convicted of "assault or obstruct police". The Tribunal was satisfied that with respect to one of the offences that the applicant was not violent, however in relation to the other offence the applicant was violent. The Tribunal concluded at [65] that the offences demonstrated an antagonistic and disrespectful attitude to the lawful authority that governs the community, and that factor (c) weighed moderately in favour of non-revocation. 18 In relation to factor (d) the Tribunal noted at [66] that the imposition of custodial term was normally a measure of last resort in the hierarchy of sentencing options available to a sentencing court, and in the applicant's case there was no doubt about that. The Tribunal concluded at [67] that the applicant's second custodial sentence (in 2014 for a period of 18 months, concurrent with periods of 12 months, three months and two months), and his fourth custodial sentence (being five years and six months imprisonment with a non-parole period of 18 months, concurrent with periods of 18 months, 12 months and 6 months), indicated that the sentencing court considered his offending to be very serious. 19 In relation to factor (e) the Tribunal noted at [68] that the applicant had committed some 70 offences and 52 traffic infringements in 16 years, and that "[h]is offending is certainly frequent." The Tribunal examined in detail the history of the applicant's offending, and concluded: 73. Considering the frequency of the Applicant's offending and the increase in the seriousness of his drug elated offending, this factor (e) weighs heavily in favour of non-revocation. 20 At [74] the Tribunal referred to factor (f) of para 13.1.1(1) which referred to the cumulative effect of repeated offending, and then observed: 75. In 2017 and 2018, the Applicant promoted and circulated methylamphetamine in the community over an extended period to more than 70 people. Every time he supplied drugs he committed an offence although he was ultimately convicted of one offence of trafficking (that encapsulated multiple instances of supplying) rather than multiple offences of supplying. Methylamphetamine is a drug of dependence as the Applicant well knows. Dependence on illicit drugs is harmful to the health and well-being of the addict and it often leads to drug related crime. Again the Applicant well knows this as he was accepting stolen goods as payment for the drugs he supplied. The more methylamphetamine that is circulated in the community, the greater the potential for harm to members of the community. Further, by accepting stolen goods as payment, he encouraged theft. The cumulative effect of his repeated drug related offending is very serious. 21 The Tribunal at [78] said that the cumulative effect of the applicant's repeated offending, particularly his drug offending, weighed heavily in favour of non-revocation. 22 In relation to factor (h) the Tribunal observed that: 80. The Applicant ran a drug trafficking business after (1) he was notified of a decision to cancel his visa (2) he asked the Respondent to revoke that decision, and (3) he was notified that the decision had been revoked, and given [a] warning… 81. The Applicant signed acknowledgment that he had received the letter containing the warning. He does not dispute having received the letter or claim not to have understood its contents. 23 The Tribunal found that factor (h) weighed extremely heavily in favour of non-revocation. 24 In relation to factor (i), the Tribunal noted that the applicant was found with two types of dangerous drugs in a speaker belonging to him while he was in immigration detention, that he admitted responsibility at that time and he was duly convicted of two offences of dangerous drugs. The Tribunal found that this conduct weighed convincingly in favour of non-revocation. 25 In summary, the Tribunal concluded that the relevant sub-paragraphs of para 13.1.1(1) of Direction No 79 combined weighed heavily against revocation of the reviewable decision. 26 The Tribunal then turned to the issue of risk to the Australian community should the applicant commit further offences or engage in other serious conduct. In summary the Tribunal concluded: The applicant ran a business distributing an illicit drug of dependence in the community, potentially resulting in addiction, poor health and crimes committed against innocent members of the community (at [90]). The applicant's traffic offences included serious speeding offences and one racing offence, as well as driving under the influence. While the evidence indicated that his driving offences had not resulted in harm to any person, the risk of harm was real and substantial (at [91]). The fact that the applicant held an array of weapons created the potential for serious harm to individuals or the Australian community (at [92]). The applicant had demonstrated a defiant attitude towards police, including in one case injuring a police officer (at [93]). 27 The Tribunal concluded that the nature of harm to individuals or the Australian community were the applicant to engage in further criminal conduct included harm that was very serious. 28 The Tribunal noted: 95. The persistence of the Applicant's offending is extreme. He has continued to offend over many years despite increasingly severe interventions by the courts including lengthy periods of imprisonment and the threat of deportation. 29 The Tribunal noted the submission that the applicant had mental health problems, but further noted that the applicant had never sought, nor had, a diagnosis. The Tribunal accepted that the applicant was on medication to help him manage cravings for methylamphetamine, but noted that for him the urge to consume the drug was not only physical but related to lifestyle and social influences. At [104] the Tribunal noted assertions by the applicant of a wish to rehabilitate, but noted at [105] that the applicant had made similar statements the previous time his visa had been cancelled and he then went on to establish a drug trafficking operation. The Tribunal agreed with the Minister that the applicant showed little insight or remorse, and was in denial about his previous offending. 30 The Tribunal had regard to evidence given by the applicant's family members at the hearing. It also noted that the applicant did not have a clear plan going forward. 31 The Tribunal considered that there was a very high risk that the applicant would re-offend if he were returned to the wider community. The one qualification to this view concerned the applicant's traffic offences, in respect of which the Tribunal was not satisfied of a high risk that the applicant would commit further traffic offences if he were returned to the community. 32 In relation to Primary Consideration A, the Tribunal found that the applicant's offending and other conduct was, in its totality, very serious, that apart from traffic offending there was a high risk the applicant would re-offend, and that the harm to the community from further offending by the applicant included very serious harm. 33 In relation to Primary Consideration B: The Best Interests of Minor Children in Australia, the Tribunal noted that the applicant did not have any minor children of his own, but claimed to have a "very special bond" with his sister's five children aged between four and 17 years old. After considering the evidence before the Tribunal the Tribunal concluded that revocation of the reviewable decision would be in the best interests of those minor children. 34 In relation to Primary Consideration C: The Expectations of the Australian Community, the Tribunal noted that the concept of community expectations was not a matter to be measured as a provable fact, rather the government's views in relation to community expectations were to be found in the Direction (at [133]). Materially the Tribunal continued: 135. In assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters: • The Applicant arrived in Australia on a final basis when he was 12 years old and he has lived in Australian [sic] continuously for 23 years; • He committed his first offence six years after relocating to Australia; • He has committed some 70 offences that include trafficking in dangerous drugs, unlawful possession of weapons, receiving stolen goods and obstruct police; • He has committed over 50 traffic offences including speeding at very high speeds; • He has been brought before the courts for sentencing some 22 times and has breached the conditions of multiple community based orders; • Some of his offending involved a risk of serious harm to members of the Australian community; • His offending overall reflects a disrespect for the laws that govern the community that he wishes to re-enter and a lack of regard for the safety of the members of that community; • There is a high risk that if he is returned to the wider Australian community he will engage in the supply of illicit drugs which carries a very real risk of serious harm to individuals and the community, and I consider this to be an unacceptable risk; • He was bullied at school in the United Kingdom and in Australia, and he suffered from poor self-confidence. At one point he was suicidal. He has had some mental health issues over the years that have never been the subject of a diagnosis and appear to be unresolved. It may be that these issues have made him susceptible to drug dependency however there is no clinical or expert evidence in that regard; • He claims, and I accept, that he had gainful employment between 2000 and 2012. It is contended on his behalf that he used to help at an animal shelter although it is not apparent how often or when he did that. I accept that he has made a modest positive contribution to the Australian Community; • His parents and sister will plainly be very saddened and worried if the Applicant is deported. His eldest niece will worry for the wellbeing of the Applicant and her grandmother if he is deported, and his other nieces and nephews will miss him; and • There is evidence before me, which I accept, that his mother's underlying illness (Type 1 Diabetes) is already adversely impacted by his incarceration and the cancellation of his visa. The stress has resulted in her not being able to manage her blood sugar levels which resulted in her losing consciousness recently. The Applicant's deportation will likely add to her stress with consequent negative impacts on her health. Conclusion: Primary Consideration C 136. The Applicant has repeatedly breached the trust of the Australian community by committing serious offences, by his repeated offending and by re-offending after being given the benefit of having a decision to cancel his visa revoked. It is highly likely that he will, again, breach the trust of the Australian community by engaging in further offending. The Applicant's mother's poor health and the impact that his deportation is likely to have on her and his other family members evokes sympathy. However, even taking that, and the other matters in the Applicant's favour into account, I am satisfied that the Australian community would expect that the Applicant should not hold a visa, and that this consideration warrants a high degree of weight. 137. Primary Consideration C weighs heavily in favour of non-revocation of the decision under review. 35 Finally, the Tribunal examined Other Considerations, and at [138] to [156] found in summary International non-refoulement obligations - not relevant. Strength, nature and duration of ties - weighed moderately in favour of revocation. In particular the Tribunal observed: • On account of his youth when he arrived in Australia and the fact that he did not commence offending immediately on arrival, he was entitled to some measure of weight in his favour; • The applicant had an offer of employment should he be returned to the Australian community, which weighed in his favour; • The applicant had spent 23 years in Australia, and had strong ties to his immediate family including his sister's children, all of whom were Australian citizens. This weighed in his favour. Impact on Australian businesses - not relevant; Impact on victims - neutral; and Extent of impediments if removed - weighed slightly in favour of revocation. 36 The Tribunal concluded the following: Primary Consideration A weighed very heavily in favour of non-revocation; Primary Consideration B weighed heavily in favour of non-revocation; Primary Consideration C weighed slightly in favour of revocation; and To the extent that Primary Consideration B and Other Considerations (b) and (e) weighed in favour of revoking the mandatory visa cancellation decision, they did not, even when combined, outweigh Primary Considerations A and C. 37 The Tribunal determined that application of Direction No 79 favoured non-revocation of the cancellation of the applicant's visa, and accordingly it could not exercise its discretion to revoke the cancellation of the visa. The decision under review was affirmed.

Application to this Court 38 On 19 February 2021 I made consent orders granting leave to the applicant to file, serve and rely upon an amended application. The amended application contained a single ground of review as follows: 1. The Tribunal made a jurisdictional error by failing to consider the effect of non-revocation on the Applicant's immediate family as required by s 499 of the Migration Act 1958 (Cth) and paragraph 14.2(1)(b) of Direction 79. Particulars a. The Applicant made clearly articulated and significant representations about the effect of non-revocation on his immediate family. b. The Tribunal's reasons do not appear to deal with or give appropriate weight to the effect of non-revocation on the Applicant's immediate family. 39 The applicant sought that: 1. The decision of the Second Respondent be quashed. 2. The matter be remitted to the Second Respondent, differently constituted, for determination according to law. 3. The First Respondent pay the Applicant's costs.

Submissions of the Parties 40 In summary, the applicant submitted the following: The Tribunal was required to take into account the effect of non-revocation on the applicant's immediate family in Australia if it considered it relevant and material to the review: Minister for Home Affairs v HSKJ [2018] FCAFC 217, [44]. It is not in dispute that the applicant had an immediate family in Australia. The absence of any express findings about the effect of non-revocation on the applicant' mother and the absence of any weight being accorded to this accepted effect gives rise to a strong inference that this part of the strength, nature and duration of ties consideration was overlooked by the Tribunal. It simply would not make sense for the Tribunal to fail to mention the effect of non-revocation on the applicant's mother if it had in fact considered it in the appropriate sense. Given the significance of the representations made about the applicant's mother's health, this consideration could realistically have been a reason to revoke the cancellation of the applicant's visa. The Tribunal's failure to consider the effect of non-revocation was material to the outcome of the review and thereby a jurisdictional error. The applicant is entitled to the relief sought. 41 In summary the first respondent submitted: It is common ground that the applicant did not pass the character test. The Tribunal properly assessed whether there was another reason why the cancellation of the visa should be revoked by reference to Direction No 79, and in particular Primary Considerations A, B and C. The Tribunal noted the applicant has strong ties to his "immediate family" and observed that the removal of the applicant from Australia would cause them distress, however concluded that the Australian community would expect that the applicant should not hold a visa. Ultimately, after summarising the findings regarding the various considerations, the Tribunal concluded that application of Direction No 79 favoured non-revocation of the cancellation of the visa, and the Tribunal affirmed the decision under review (Reasons at [158] to [161]). It is clear that the Tribunal engaged in an active intellectual process with the impact of non-revocation on the applicant's immediate family, including the impact on the applicant's mother's health. The application should be dismissed with costs

Consideration 42 The applicant submitted that non-compliance by the Tribunal with Direction No 79 can constitute jurisdictional error. This is undoubtedly the case: Uelese v Minister for Immigration and Border Protection [2015] HCA 15; 256 CLR 203 at [64], Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [179], PQSM v Minister for Home Affairs [2020] FCAFC 125 at [37]. Fundamentally, the applicant contends that notwithstanding the notable representations made by the applicant, the Tribunal failed to comply with Direction 79 by failing to take into account the effect of non-revocation of Mr Kerry's visa on his immediate family in Australia, and in particular the deleterious impact on his mother's health that non-revocation would have. The applicant also submitted that the absence of specific findings about the effect of non-revocation on the applicant's mother gave rise to a strong inference that this part of the strength, nature and duration of ties consideration was overlooked by the Tribunal, when it could realistically have been a reason to revoke the cancellation of the applicant's visa. 43 I am not persuaded that the Tribunal erred in the manner alleged by the applicant. I reject the proposition that the Tribunal missed consideration of the strength, nature and duration of Mr Kerry's ties to Australia, and in this context the strength of his relationship with his mother. Rather, it is plain from the reasons of the Tribunal that the Tribunal actively engaged in considering the strength, nature and duration of the applicant's ties, including the effect of non-revocation of his visa on his immediate family (and in particular his mother who had suffered ill-health from the stress of the applicant's prospective deportation). Materially I note: The Tribunal's acceptance at [140]-[142] of the applicant's strong ties to Australia, including his immediate family; At [133] of its reasons where the Tribunal specifically adverted to the evidence before it of the health condition of Mr Kerry's mother, that her health was adversely impacted by his incarceration and the cancellation of his visa, that the stress had resulted in further impacts on her health, and in particular that Mr Kerry's deportation would likely add to the stress of his mother with consequent negative impacts on her health; At [135] of its reasons where the Tribunal specifically referred to the emotional impact on the applicant's parents, sister, nieces and nephews if the applicant were to be deported; At [136] of its reasons where the Tribunal noted that the deportation of the applicant would likely have effect on the applicant's mother and other family members, and that his mother was of poor health; At [108] of its reasons where the Tribunal noted the submission of the applicant that his deportation would adversely impact his mother's health; and At [104] of its reasons where the Tribunal referred to his mother's health condition, and the submission of the applicant that the cancellation of the applicant's visa had made her condition worse and caused her to suffer a heart attack. 44 I note again the well-known principle that the Court should not construe the reasons for decision under review minutely with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30]. The Tribunal recognised the distress Mr Kerry's family - in particular, his mother - would feel on his deportation, and the fact that his mother had experience - and potentially would experience in future - detrimental effects to her health as a result of the prospect of his deportation. However it is equally plain that the Tribunal considered that other factors referable to the high risk of the applicant reoffending, and the resultant risks to members of the Australian community if he did, outweighed factors relevant to the strength, nature and duration of his ties to Australia, including the effect on his family of his deportation. 45 It was open to the Tribunal to so find, as the finder of facts in this matter. 46 The tenor of the applicant's case is that the Tribunal should have given more weight to the deleterious effect on his mother's health of the applicant's deportation. This argument is, however, an invitation to inappropriate merits review by this Court, and should be rejected. 47 In my view the findings of the Tribunal do not involve jurisdictional error. The amended application for review before me should be dismissed. Costs ought to follow the event. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier.