Giving weight to the serious of offending is important in character cancellation matters but double counting is easy to do and not permissible.
Mr Jama was a NZ citizen who arrived in Australia as a 17 year old in 2008. His visa was cancelled in 2019 after a conviction for aggravated armed robbery. Needless to say his 444 visa was cancelled.
Clearly the seriousness of his offending and how it was considered in the context of Direction 65 was an important factor in his challenge to the cancellation.
Mr Jama’s argument was that the Tribunal was double counting the weight it attributed to the seriousness of his offending: first by weighing it against the “strength, nature and duration of ties”; and secondly, by concluding that the factors in favour of revocation (including the “strength, nature and duration of ties”) were outweighed by the seriousness of his offending.
In Ali v Minister [2018] FCA 1895, Bromwich J found that the Tribunal could assess the strength and nature of ties to Australia holistically and to examine how the quality of those ties was affected by the offending. However, in Jama v Minister for Immigration [2023] FCAFC 148, the Full Court found that this is not how the decision maker had approached the issue. The Full Court found:
[31]….. [the decision maker] applied a discount to the weight to be given to the evident strength, nature and duration of Mr Jama’s ties by reason of the nature and seriousness of his offending. That discount was then applied again in the Tribunal’s evaluation of the weight of the primary and other considerations at Reasons
[32] With respect to the primary judge, it is difficult to accept that the Tribunal’s reasoning at Reasons [197] can be read other than as recording that the Tribunal had already found that the strength, nature and duration of ties had been found to weigh only slightly because the Tribunal had already discounted that “other circumstance”, at [175], on account of the seriousness of Mr Jama’s offending. It is readily apparent from a reading of the Reasons as a whole that the Tribunal did indeed “double count” the seriousness of Mr Jama’s offending.
In other words, Mr Jama was successful.
The Ministerial Directions on cancellations and revocations can be more nuanced than they first appear. It is certainly worthwhile reading Ali and also BOE21 which are referred to in the Jama judgment.
Creative commons acknowledgment for the photograph.
