Case: Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238 ; (1999) 90 FCR 583
Outcome: cited
Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) mandates that the relevant person or body (which includes the Tribunal: see Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238 ; (1999) 90 FCR 583 at 591 (per Katz J)) must comply with such a direction. The power of the Minister under s 499(1) is limited by s 499(2), which provides that a direction must be consistent with the Act and regulations promulgated pursuant to it. 10 On 23 August 2001, pursuant to s 499(1), the Minister issued Direction No 21 entitled Visa Refusal and Cancellation under section 501 ("the Direction"). Part 2 of the Direction concerns the exercise of the discretion under s 501(2) once a decision has been made that the character test is not satisfied, a matter which is conceded by Mr Green in this case. Part 2 provides that, when exercising the discretion, "decision-makers must have regard to" three primary considerations, namely, the protection of the Australian community, the expectations of the Australian community and, if relevant, the best interests of any children involved. Other considerations, which are not "primary considerations" and are not mandatory, include the effects on the visa-holder's family, evidence of rehabilitation, the likelihood of breaching or evading obligations under a legal or other ongoing matter, the duration of the proposed stay in Australia and whether the visa is permanent or temporary. 11 Paragraph 2.5 of the Direction identifies three factors which are relevant to the protection of the Australian community. They are the seriousness and nature of the conduct, the likelihood of recidivism and whether visa cancellation would provide general deterrence. 12 Of importance to this case is the process laid down by the Direction for considering "the seriousness and the nature of the conduct of a non-citizen". Paragraph 2.6 outlines what the Minister views as serious offences, and paragraph 2.7 states that the sentence imposed for a crime is an appropriate indicator of the seriousness of the offender's conduct against the community. Paragraph 2.8 then provides that decision-makers must take into account certain mitigating considerations: 'When exercising discretion, decision-makers must also take the following factors into account as relevant considerations: (a) any relevant factors provided by the non-citizen as mitigating factors ; (b) the offence is not classified as an offence in Australia. ... (c) a lighter sentence would be incurred in Australia for a similar offence; or (d) the non-citizen has been pardoned' (Emphasis added.) 13 The Tribunal's reasons comprehensively set out at [10]-[76] the chronology of facts and the evidence relevant to this matter. The Tribunal summarised Mr Green's personal history, detailed his criminal record in Australia since 1978, and described the events leading up to the cancellation of his visa by the Minister and his detention on 16 August 2005. 14 The Tribunal's reasons summarised the evidence led by Mr Green, most of which pertained to Mr Green's explanation of his personal history, how and why he came to possess a criminal record, and also some mitigating circumstances. His reasons, in short, were that he had led a life of few opportunities, and that he had unfortunately been surrounded by "bad kids, then bad adults". The Tribunal described Mr Green's time in prison, and noted his evidence which stated that he was not a "vicious outlaw type of criminal", but rather more of the "Robin Hood" type. The Tribunal also discussed Mr Green's developing drug addiction, and the crimes he committed to support that addiction, as well as the rehabilitation which Mr Green had sought in art and family. 15 The Tribunal found Mr Green's evidence unsatisfactory in certain respects. It concluded at [53] that although Mr Green's evidence should not "be entirely discarded, his tendency towards exaggeration and opportunistic fabrication dictates a certain caution in evaluating it." An observation as to the need for caution in this context does not mean that Mr Green's evidence was rejected out of hand. 16 After making this finding, the Tribunal addressed the psychological and other evidence before it. Several psychological assessments of Mr Green were before the Tribunal and, although they appeared to "differ in material respects", the Tribunal found at [64]: 'It is difficult to derive much assistance from this part of the evidence, other than to conclude that the applicant has psychological problems, whether produced by drug abuse, incarceration, an unhappy childhood or a combination of all three. He has not to date been able to shake off anti-social or self-destructive patterns of behaviour but is not a hopeless case. He could be rehabilitated and his development of his artistic capacities, as well as his [drug rehabilitation] program are positive steps, as is the possibility of employment and of continuing his relationship with [a female friend].' 17 The Tribunal then summarised other evidence provided by friends and family of Mr Green, which detailed various matters of personal concern, including the likelihood of Mr Green obtaining employment after his release from prison, continuing an intimate relationship with a female friend, and succeeding in an artistic career.