Rewha v Minister for Immigration, Citizenship and Multicultural Affairs

LOGAN J: 1 Mr Phillip Rewha is a citizen of New Zealand. He came to Australia, at first, at about age 20, in 1991. However, his residence in Australia commenced some four years later, although he has entered and returned to Australia a number of times thereafter. In 2006 and also 2010, he was convicted of drink-driving offences. The offending conduct which provided the genesis for the present proceedings did not occur until 2021. That was a sequel to an overdose consequent to injecting heroin. 2 In March 2021, Mr Rewha's home was searched by police. The occasion for that search was that police were looking for Mr Rewha's nephew. However, in the course of that search, the police located a room which had been converted to cultivate cannabis. The police also located methylamphetamine in multiple clip seal bags, drug paraphernalia, cash, a flick-knife, a shotgun with a ground-off serial number and a rifle that had been stolen in a burglary, together with ammunition. They also located sandwich bags containing cannabis and other drugs and drug-related paraphernalia, more particularly described in paragraph 10 of reasons which, in circumstances I shall shortly describe, came to be delivered by the Administrative Appeals Tribunal (Tribunal). 3 In September 2021, Mr Rewha was convicted, on a plea of guilty, of offences of having access to weapons and illegal drugs, possession of stolen or unlawfully obtained property, and possession of a prohibited drug with intent to supply, namely methylamphetamine. The latter conviction attracted a sentence of two years imprisonment. 4 There were shorter terms of imprisonment to be served concurrently imposed in respect of the other offences. The following month, in October 2021, Mr Rewha was convicted of further drug-related offences. For most of these, he was fined, although two attracted short-term periods of imprisonment. 5 A sequel to these sentences of imprisonment is that Mr Rewha's then visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act). It has never been controversial that the occasion for satisfaction and the related requirement for cancellation existed as a result of, in particular, the two-year term of imprisonment. 6 As the Act required, Mr Rewha was given an opportunity to make a representation in respect of the revocation of the cancellation of his visa. He did this promptly, on 3 November 2021. It was not until 19 October 2022 that a decision was made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) in respect of this representation. On that day, a delegate of the Minister decided, pursuant to s 501CA(4) of the Act, not to revoke the cancellation of his visa. 7 Mr Rewha was notified of this decision on 24 October 2022. He acted promptly, very promptly indeed, to seek the review of this decision by the Tribunal. He applied for such review on 25 October 2022. On 13 January 2023, the Tribunal (constituted by Brigadier A.G. Warner AM LVO (Retd), member), for reasons published in writing that day, decided to affirm the delegate's decision not to revoke the cancellation of Mr Rewha's visa. Mr Rewha then sought the judicial review by this Court of the Tribunal's decision. As is appropriate and usual, the Tribunal has filed a submitting appearance save in respect of any issue as to costs. The only active party respondent is the Minister. 8 The grounds of the application as expressed in the originating application were as follows, and I will incorporate by reference that ground without reading it out. In the course of submissions concerning that ground, by Mr Glenister of counsel for Mr Rewha, attention came particularly to focus upon [60] of the Tribunal's reasons. It will be necessary to set out that paragraph shortly. Suffice it to say the way in which the case was originally conceived was that the Tribunal was alleged to have committed a like jurisdictional error or errors to that found in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 (Dranichnikov). That was on the basis that the Tribunal had allegedly misunderstood an integer of the representation which Mr Rewha had made as to why cancellation of his visa should be revoked. 9 As submissions progressed more attention was given to [60], as read in a context to which I shall turn also shortly. It became apparent that the point being agitated, whilst a procedural fairness one, which can be one basis of a jurisdictional error of the kind found in Dranichnikov, was not a failure to address an integer but rather, if it be any error at all, a failure to provide an opportunity to be heard in respect of a basis upon which a Department of Justice risk assessment was discounted, as said to be evident in [60]. In turn, as submissions further progressed, it became apparent that another alleged error was an absence of any evidentiary foundation in the material before the Tribunal for the basis for discounting. 10 This, in turn, generated an application for amendment of the grounds of the application so as to allege that the Tribunal had either denied the applicant procedural fairness by failing to afford an opportunity to be heard in respect of why the Department of Justice assessment should be discounted because it was an assessment which "… involves specific-to-purpose assessment tools, availability of programs, length of sentence, etcetera", or because the Tribunal lacked any evidence in the material before it that the assessment involved such matters. 11 The only notice which the Minister had of that particular application was when it emerged in the course of oral submissions, on the morning of the hearing. In those circumstances, it seemed to me that procedural fairness demanded that the case be stood down until the afternoon at least so that the Minister might have an opportunity to make submissions concerning the ground as sought to be amended. As it transpired, when the Court resumed for the afternoon sittings, the Minister addressed the proposed amended ground directly. 12 As proposed, the ground is a narrow one, which does not mean it is an unimportant one. 13 With that introduction, it is necessary to provide greater detail as to the context in which the ground is said to be meritorious by counsel for Mr Rewha. 14 A convenient starting point for that is a document found in the material before the Tribunal, which is a West Australian Government Department of Justice classification review generated in Acacia Prison in respect of Mr Rewha in March 2022. At para 1.31 of that classification review, the following statement appears: 1.31 Program performance No assessed program requirement/need Comments: A Risk of Reoffending - Prison Version (RoR-PV) assessment was administered by a Acacia Treatment Assessor. Mr Rewha is not recommended for criminogenic programs at this time due to low risk of reoffending. Addictions Affending: AOD Further Assessment - Not Currently Offered. 15 The statements made in para 1.31 of the classification review have some apparent association with a later part of the document headed Treatment and EVT Requirements. Under that heading is a table in the following terms: SOURCE DATE CATEGORY OUTCOME COURSE STATUS FACILITY EXP START DATE COMPL DATE TREA 01/10/21 ADDICTIONS REQUIRED AOD FURTHER ASSESSMENT NOT CURRENTLY OFFERED OFFENDING TREA 01/10/21 GENERAL OFFENDING NOT REQUIRED LOW RISK/ NEED EDUC 28/10/21 REQUIRED BUSINESS AND MANAGEMENT IDENTIFIED EDUC 28/10/21 REQUIRED INFORMATION TECHNOLOGY IDENTIFIED EDUC 28/10/21 REQUIRED CAREER COUNSELLING IDENTIFIED

At a glance

Court

Decision date

Before

Source

Judgment (3 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (12)