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[2018] AATA 40
General information, not legal advice.
Administrative Appeals Tribunal of Australia
2018-01-19
Original judgment source is linked above.
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MIGRATION - refusal of visa on character grounds - identification of question to be answered on review - decision set aside and remitted.
Alexandra Private Geriatric Hospital Pty Ltd v Blewett [1984] FCA 223; (1984) 2 FCR 368; 56 ALR 265
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Harman v Home Department State Secretary [1983] 1 AC 280; [1982] 1 All ER 532; [1982] 2 WLR 338
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125; 248 ALR 609; 82 ALJR 1259
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349
Re Smith and Minister for Immigration and Border Protection [2013] AATA 687
Williams v Minister for Immigration and Citizenship [2013] FCA 702; (2013) 136 ALD 299
Refusal under section 501 of the Migration Act
7. Section 501(1) provides that:
"The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6)."
The Minister may refuse to grant a visa if he reasonably suspects that the person does not pass the character test and he is satisfied that the refusal is in the national interest.[10]
8. The character test is set out in s 501(6). Only s 501(6)(a) is relevant:
"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));
"The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens."[16]
The objectives are followed by passages described as "General Guidance" and "Principles". The latter set the framework within which the individual considerations set out in Parts A, B and C of Direction No. 65 are set. They give those considerations their form and pattern and raison d'être. The Principles set out in paragraph 6.3 are:
"(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that noncitizen's visa should be cancelled, or their visa application refused."
"Informed by the principles in paragraph 6.3 above, a decision-maker:
"... Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved."
" The reasoning process which the Tribunal adopted was, first, to address the factors listed in respect of the two primary considerations and the other considerations as stipulated by the Direction. The Tribunal then made a judgment as to whether each of the considerations favoured or told against cancellation of the applicant's visa. At the end of the process the Tribunal placed those assessments into the balance to determine the question which it had posed for itself, namely, "Should the discretion to cancel the visa be exercised?"
This is not however the process contemplated by [7] of the Direction. The question which the Tribunal is required to determine is stated in [7(1)(b)]. That question is 'whether the risk of future harm by a non-citizen is unacceptable'. This is a different question than the question whether by balancing the considerations for and against cancellation, the applicant's visa should be cancelled. It is a narrower question which focuses on a particular reason why the visa should be cancelled. The Tribunal made a passing reference to [7] of the Direction but the relevant question was not asked by the Tribunal. Further, the process of considering and weighing the primary and other considerations does not necessarily produce an answer to the relevant question. It is, of course, not to the point that the Tribunal might have answered the relevant question in the same way as it answered the question which it in fact considered.
It was accepted by the first respondent that if the Court determined that the Tribunal had failed to ask the right question it will have made a jurisdictional error and that relief should be granted. This concession was correct. Consequently, the decision of the Tribunal will be quashed and the matter remitted for determination according to law."
" To understand the process as explained by North J, it is necessary to go back to the words of cl 7(1) as a whole and the particular words of cl 7(1)(a) as well as those in cl 7(1)(b). The question to be decided is that in cl 7(1)(b) but it is only answered after taking into account the considerations set out in Part A or B as appropriate and being informed by the principles in cl 6.3.
It may be thought that there is some overlap between the question asked in [7(1)(b)] and the considerations found, for the purposes of this case, in Part A but, as is implicit in his Honour's judgment, there is not. I will take as an example, the primary consideration set out in cl 9.1.2, which I set out in full below. For the moment, it is enough to note that the clause is headed 'The risk to the Australian community should the person commit further offences or engage in other serious conduct'. It goes on to state that 'In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community ...' (emphasis added), decision-makers 'should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. ...'. The clause goes on to require that, 'In making this assessment, decision-makers must have regard to, cumulatively ...' considerations that are then set out."[22]
"Informed by the principles in paragraph 6.3 above, a decision-maker:
"Informed by principles in paragraph 6.3 above, a decision-maker:
" On the view taken of the operation of [7(1)(b)] of the Direction a question might arise whether the Direction is inconsistent with the Act and hence invalid
(s 499(2)) because it fetters the discretion to cancel the visa under s 501(2) by limiting the ground for the exercise of the discretion to circumstances where the risk of future harm by a non-citizen is unacceptable. That argument was not raised and hence this is not the occasion to consider it further."[23]
Direction No. 65: Part B and refusal of application for visa
"a) Protection of the Australian community from criminal or other serious conduct;
Served approximately three months after remission for good behaviour etc and release on parole.
Mr Maikantis's brother died following a motor vehicle accident during the course of the Ash Wednesday bushfires in February 1983. He felt that his brother's death had a major impact on his life.
Between 1989 and 1991, Mr Maikantis and his whole family travelled to, and remained in, Greece.
Temporary Melbourne Casino opened on 30 June 1994.
"Offender is part owner in premises, premises in an amusement café with machines for use by public, machine located and seized whilst being used without licence label displayed."[30]
Mr Maikantis's father, who was an Australia citizen, died in 1999.
Mr Maikantis and his family travelled to Thailand in 2001 for a holiday.
Offence occurred on 29 March 2011 at Glen Waverley.[31]
Offence occurred on 12 May 2011 at Keysborough.[32]
Mr Maikantis was granted a social security pension in 2012.
In or about February 2009, Mr Maikantis had substantial gambling debts and needed, on his evidence, approximately $150,000. His friend needed $10,000 but did not want to pay high interest rates. Mr Maikantis undertook to obtain a loan for him and did so after asking his friend for the title deeds to his house. Relying on that title deed, he arranged a loan through a third party that left his friend with either $5,000 or $14,000 in hand and a debt of $240,000. The mortgage documents were forged although Mr Maikantis denies forging them and states that he signed documents without reading them because he was told to do that by the third party. The loan was obtained from a finance company, which would not have made it had it known that the loan application contained fraudulent documents and information.[34]
Sentence suspended for 24 months under s 27 of Sentencing Act 1991.
On 6, 9, 10, 19, 20 and 21 January 2013, Mr Maikantis would select iPhones and other phones and accessories and sign plans with Telstra or other businesses relating to those phones in the name of a legitimate business but one who had not authorised him to purchase the phones. In all, the phones were worth $22,656.00. He would then sell the phones for $500 each.[35]
Undergo a Problem Gambling Program and any other treatment and rehabilitation as directed.
Medical report submitted providing details of Mr Maikantis's health issues. Those details had not been available at the time of sentencing.[36]
Variation of Community Correction Order to delete unpaid community work.
Cultivate narcotic plant in commercial quantity: cannabis
1 year imprisonment. 9 months of sentence concurrent
Breach of sentence re convictions on 30 September 2013 for obtain financial advantage by deception
12 months' imprisonment with 9 months of sentence concurrent.[37]
Sentencing remarks of Judge Allen in relation to cannabis related offences
"5. In relation to the charges concerning the cultivation of cannabis, for which each of you have pleaded guilty to, it can be said, by way of introduction, that between July 2014 and January 2015 the three of you, together with others, were engaged in what can be described as a business of cultivating and trafficking cannabis on a very large scale. There is no actual evidence before me of trafficking, per se; although you, Mr Tran, have pleaded guilty to a charge of trafficking, as I understand it, on the basis that the cultivation in which you were involved was for the purpose of trafficking. This cannabis was cultivated as part of a joint criminal enterprise, in which each of you had separate and distinct roles. The joint criminal enterprise included the following activities:
I emphasise that not each of you three men were involved in all of those activities. ...
6. In relation to your particular roles ... Mr Chung and Mr Maikantis, you became involved at a later stage, sometime in August 2014. The three of you were involved in procuring the rental properties ...
7. Mr Maikantis, your main role was in procuring the rental properties. ... There were various managers and crop sitters engaged by you, Mr Tran, as I've said, and with whom you, Mr Maikantis, had some involvement. .... As far as the rental properties were concerned, each of you had pleaded guilty on the basis that you were, each of you separately, directly involved in the 12 properties. It should be noted that those are not the same 12 properties in each case. There is a certain amount of overlap. No one has actually calculated how many properties, all together, are involved between the three of you.
8. Police eventually searched each of the rental properties in question. The police found, either, hydroponic cannabis cultivations underway; or, evidence that the property in question had previously been used for such purposes. Each of the properties exhibited limited signs of habitation and, in each of them, all or at least most of the rooms in the buildings had been set up for highly sophisticated hydroponic cultivation. Each property in question included storage facilities for hydroponic equipment and supplies, and the like. This was clearly a carefully planned and manage, sophisticated hydroponic cultivation business. Investigations eventually revealed that each of the properties had been leased for this purpose, for periods ranging between six and 12 months. Nearly all of the properties were residential properties throughout the suburbs of Melbourne. ... Mr Maikantis, in relation to the 12 properties in which you were involved, the police seized 901 cannabis plants weighing a total of just under 294 kilograms.
9. 'The summary of prosecution opening', which was tendered and marked Exhibit A, sets out in comprehensive detail the particular role each of you played and the details of evidence gleaned by investigation; particularly, the analysis of the relevant telephone intercept material. ... Exhibits C, D and E, respectively, were synopses in relation to the involvement or particular role that each of you carried out in the business. ...
12. In relation to your role, Mr Maikantis, Exhibit D confirms that the Crown case against you is that your main role was as the procurer of the rental properties, which Mr Tran sought for the purpose of growing cannabis. You were named on the rental agreements for each of these properties. The telephone intercept material reveals that you were involved in collecting the rent for some of those properties and in the clean-up of the properties before they were returned to the landlords. The Crown conceded, as they were bound to do, that your involvement means that you are significantly less culpable than Mr Tran.
13. In relation to Charge 2 on your indictment, Mr Maikantis, this involved an agreement you made to sell 20 pounds of dried cannabis to Mr Fortakis for $2,450 per pound. The telephone intercept evidence revealed that Xuan Phuc Ha was to supply you with dried cannabis for $2,400 a pound. You were to make a very minor profit from this proposed arrangement; further evidence of your desperation to obtain money to gamble. As it turned out there is no evidence that your arrangement was ever concluded, or that the sale ever took place. You pleaded guilty to trafficking on the basis that you agreed to sell those drugs to Mr Fortakis.
15. As far as the arrests and chronology of the proceedings are concerned, as I understand it, Mr Maikantis, you were the first of the three offenders to be arrested. On 8 January 2015, the police executed a search warrant at your home in Wheelers Hill. It must have been a most distressing experience for your wife and your mother. They also searched your car and various items were seized. They searched other premises that were significant in your life; the Sports Bar in Clayton, where you spent your day's playing cards and gambling; and, the offices of City Wide Real Estate, through which the premises had been rented and the gambling records of Crown Casino were obtained. These records revealed that, in the year 2014 alone, apart from any money that you wasted at the Sports Bar in Clayton, you lost $210,331 at the casino. You were interviewed by the police later that day, on 8 January 2015, after you had been arrested. To your credit, you made significant admissions throughout the course of the interview and expressed remorse. You were totally cooperative with the police. Amongst other things, you admitted renting all of the houses. You admitted that they had been rented, or re-rented, in connection with Mr Tran and Mr Chung. You claim that you were initially unaware that they were going to be used for cultivating cannabis, but admitted that you became aware of that and continued to remain involved. You admitted organising and paying for the clean-up of properties and paying the rent for the houses. You said to the police that your motive for being involved in this way was, quote, '... to make a bit of money.' You told them that you received somewhere between $800 and $2,000 a month for what you did. You admitted that you had, quote, '... done the wrong thing', and explained that you were, quote, 'desperate for money because I'm a gambler.' ...
27. In relation to your [Mr Maikantis's] prior convictions, I accept Mr Saunders' submission that they must be seen in the context of dishonesty and gaming. It is noted that you have no prior convictions in relation to drug offending and that your prospects of rehabilitation, in relation to any offending, are of course dependent upon you finally, at this late stage of your life, curing your gambling addiction.
28. Mr Saunders conceded that your offending was serious, in light of the fact that it took place over approximately six months and involved a large quantity of cannabis. He conceded that sentencing principals [sic] of general deterrence, just punishment, and denunciation were important factors which resulted in an inevitable sentence of imprisonment.
29. Mr Saunders referred to the psychological report of Mr Newton ... I have considered that report carefully and I accept, on the whole, Mr Newton's findings and observations. Mr Newton found, upon testing you carefully, as he always does, that you are experiencing what he describes as 'noteworthy anxiety', and that you also reported 'noteworthy depressive symptoms'. Mr Newton reported that that these symptoms were significantly worse by September 2016, than when he had previously seen you in May 2015. As I understand it, it would seem that your symptoms of anxiety and depression are situational. I must say, for a man of your background, your health problems, and your family circumstances, to find yourself where you are, it is no surprise at all that you are extremely anxious and depressed; so would I be. I do not mean to play down the severity of those symptoms by saying that. I acknowledge that they are serious. Not surprisingly, Mr Newton also found that you have a, 'history of uncontrolled gambling behaviour, dating from the early 1970s'. Mr Newton referred to your medical problems, your physical problems, your physical illnesses, which I will refer to in a moment, and your psychological difficulties and said:
'Mr Maikantis' chronic medical problems and psychological difficulties which he suffers are of such severity that they have already resulted in significant difficulties coping with the custodial environment. ... The rigors of a custodial penalty would continue to weigh upon Mr Maikantis in a particularly onerous fashion, and would continue to cause him considerable distress over and above the usual hardship that would be experienced by an individual in custody.'
I accept and take into account Mr Newton's findings.
30. Mr Saunders relied upon the medical report of your general practitioner, Dr Kounnas. Dr Kounnas says that your medical problems which include type 2 diabetes, otherwise known as myelitis, which has been difficult to control. Dr Kounnas had referred you to an endocrinologist for specialist treatment. Dr Kounnas says that your other major problem is that of rheumatoid arthritis; arthritis which is zero positive, and which requires various forms of medication to control. This medication has an adverse effect on the control of your diabetes. Finally, your general practitioner describes you as suffering from recurrent infections in your legs and right leg ulcer. By way of summary, your general practitioner, who knows not you only but your wife and your mother, and has treated you for 35 years, stated the following:
'The stress of being in a prison setting would exacerbate both his type 2 diabetes, as well as his rheumatoid arthritis. It would also make his complication of diabetes, such as neuropathy, and the neuropathy more unstable because of the stress factors involved in him being in a hospital system.'
I believe what is meant by 'hospital system' is 'prison system'. I also received the medical evidence of your 93-year of mother's serious health difficulties.
31. Mr Saunders informed me of your personal history, of which I will summarise. You are now 69 years of age; you will turn 70 in April. You were born in rural Greece. You grew up on a small farm in circumstances of poverty. You had limited education, leaving school at grade 5 because you needed to help your parents on the family farm. Mr Newton has described your level of literacy as rudimentary literacy in Greek, and basic rehabilitation skills, you obtained employment originally in an automobile factory where you remained for some years. Afterwards, you undertook various forms of factory work. Until most recently, you were engaged as a delivery driver. You retired about six years ago and have since then been on the pension. You were married in 1968. This period of incarceration represents the first time you and your wife have been separated. You have two adult children. As I understand it, your elderly 93-year old mother had been living with you and your wife, and you significantly involved in her care and management.
32. Mr Maikantis, your counsel asked me to take into account the following matters by way of mitigation. First, your plea of guilty, I accept that it has substantial weight in the circumstances of this case. It has avoided a lengthy and expensive trial. I regard it as being an early plea. I accept that it is evidence of general remorse on your part, an acceptance of responsibility, as well as, your willingness to facilitate the course of justice. I take into account what the authorities say about the sentencing of elderly prisoners, particularly where they suffer ill health. I accept, as was indicated in the case of Gordon_, that, in particular, those circumstances justify a more substantial gap between the non-parole period and the head sentence that I might have otherwise imposed in the objective circumstances of this case. [1]_
[1] R v Gordon [2012] QCA 334 at [40]
33. I accept, consistent with the principles at paragraph 20 in Markovic_, that whilst the circumstances of your family are not exceptional, imprisonment will weigh more hardly upon you; that is, it will be an additional burden for you to sit in gaol, knowing that your wife and mother struggle in your absence, without you being there to assist them in the way that you normally do. [2]_
[2] Markovic v R [2010] VSCA 105; 30 VR 589; 200 A Crim R 510
34. I accept that you have excellent prospects of rehabilitation, in relation to being involved in further drug offending. Having served what will be a lengthy prison sentence for someone your age, I am satisfied, in relation to the principle of specific deterrence, that you will be deterred from engaging in this sort of conduct again. I can only hope, however, that your prospects of avoiding crime altogether will be minimised by you putting an end to your gambling addiction."[38]
"When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision-makers should also give consideration to:
A.1 The nature and seriousness of Mr Maikantis's conduct to date
A.2 Risk to the Australian community should the non-citizen commit further offences or engage in serious conduct
"(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In addition, decision-makers should have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(3) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(4) Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short stay visa."
"The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. Decision-makers should have due regard to the Government's views in this respect."
"Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely".
"Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal."
I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie and Mr A Maryniak QC, Member
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[1] A non-citizen is a person who is not an Australian citizen: Migration Act; s 5(1).
[2] Migration Act; ss 5 and 29(1)
[8] Migration Act; ss 47(1) and (3)
[12] Alexandra Private Geriatric Hospital Pty Ltd v Blewett [1984] FCA 223; (1984) 2 FCR 368; 56 ALR 265 at 375; 272 per Woodward J and see also Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; Gibbs CJ, Mason, Brennan, Deane and Dawson JJ at 39-40; 308-309 per Mason J with whom Gibbs CJ and Dawson J agreed
[19] Direction No. 65 at [8(4)] and [8(5)]
[20] [2013] FCA 702; (2013) 136 ALD 299 at [42]- [44]; 311
[21] [2013] AATA 687; Deputy President Forgie
[22] [2013] AATA 687 at [19]- [20]
[23] [2013] FCA 702; (2013) 136 ALD 299 at [42]- [44]; 311
[24] [2015] FCAFC 47; Kenny, Wigney and Beach JJ
(1984) 2 FCR 368
(2008) 235 CLR 125
(1986) 162 CLR 24
(1999) 91 FCR 234