1935996 (Migration)

[2020] AATA 4605

1935996 (Migration) [2020] AATA 4605 (27 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1935996

MEMBER:Michael Cooke

DATE:27 August 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the decision under review for reconsideration and finds the applicant meets the following criteria for a Special Category (Temporary) (Class TY) Subclass 444 visa:

·s.32(2) of the Act

·Regulation 5.15A

Statement made on 27 August 2020 at 2:30pm

CATCHWORDS
MIGRATION – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – ‘behaviour concern non-citizen’ – criminal history – one historic offence – sentenced to imprisonment for at least one year – decision made by the National Character Consideration Centre at Ministerial level not to cancel applicant’s visa – compliance with requirements against further criminal offences – decision under review remitted           

LEGISLATION
Migration Act 1958, ss 5(1), 32, 65
Migration Regulations 1994, r 5.15A

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 December 2019 to refuse to grant the visa applicant a Special Category (Temporary) (Class TY) Subclass 444 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 24 April 2019. The delegate refused to grant the visa on the basis that the applicant was a ‘behaviour concern non-citizen’.

3. The applicant forwarded a personal submission addressing the finding of him being a ‘behaviour concern non-citizen’. It reads as follows:

   [In] March 2018 I was stopped from re-entering Australia by Border Force officers, initially leading officer [Officer A] and overseen by his supervisor who I can only identify by her, first name as " [Ms B]", this person did not  see  or speak to me  until after the interview some six hours later and that was only to  tell me  she did not  agree with her team decision and that  I should have   been denied  entry that night, she  was very threatening . During this time of being held, [Officer A] informed me that his supervisor “[Ms B]" contacted the  following law enforcement  agencies that night to  see if I was wanted or indeed had any outstanding charges, those contacted were...lnterpol, Australian Federal Police, Queensland Police, British Police, NZ Police, none of the agencies had any criminal records of myself and only the  New Zealand Police had the one and only historic offence  for which I was punished. I was sentenced to 3 years imprisonment and as it was classed as a non violent crime I was granted parole after 12 months of time served and was released. During my time of imprisonment  I was released on work  parole after the first 4 months where I worked as [an occupation] unsupervised in  the  community of  [Town 1 in]  NZ, I  was also permitted  to live in a house with 3 other inmates where we were classed as trustees and in "self care" I also drove the prison tractor and minibus outside  prison  grounds and  was  unsupervised. I have no wish to minimise the offence of which I am truly sorry but as my record shows it was the one and only offence in my nearly [age] years   of life where I have tried to live a good life.

   My wife [named] and I began our relationship when she came to me in NZ [in] 2002, we lived in Auckland, after a period of time her children came to visit  us individually they were  [Child C]  aged  about [age], [Child D], [age] and [Child E] aged [age] years. [Child C] and [Child D] missed Australia and their friends and  soon returned  home but continued  to  visit us in  NZ on occasion, [Child E] stayed  with us and went to school in NZ until we moved to Australia in July 2004.We arrived in Sydney where we stayed with family for several weeks and we then moved up to [Australian City 1] taking [Child E], [Child C] and his friend  with us. I found work with several companies over this time, spending 5 years with [Employer 1] as a shift supervisor, [Employer 2] as a [occupation], [Employer 3] as a [occupation] and so on, I have never claimed unemployment benefit or any other benefit in Australia.

   My now [wife] and I were married 10 years ago [at a named] Church, [in] April.2009. I have continued to support my wife with the upbringing of [Child E] and her siblings, I taught [Child E] and [Child D] to drive and helped in their schooling. Unfortunately for [Child D] shortly after giving birth to her daughter [Grandchild F] born on [date] at [named] Hospital she started using drugs, left her [partner] and moved back to Sydney leaving [Grandchild F] in her mothers care where she has remained and still is [age] years later, a beautiful granddaughter and this can be devastating to her, I continued working to support [my wife] and [Grandchild F] as best I could and we managed even though at times it was tough, we were/are a family. I retired at [age] years old after open heart surgery where I had a valve replaced and a bypass, my health is not a burden on the people of Australia.

   Just over 5 years ago I was assessed by the Australian Character Assessment team and was told that I  was permitted  to remain in Australia despite my one and only conviction, this  permission  was granted  at the time by [the previous Immigration Minister] my case was handled by a [named officer] of Homeland affairs. I was told I could stay on the proviso I committed no offences in Australia and if I did my visa could be cancelled...I HAVE BEEN OF GOOD CHARACTER AND HAVE NOT COMMITTED ANY OFFENCES. Then why is this a double jeopardy issue when I have done no wrong since that-one and only offence which happened in my life over 30 years ago and was punished over 20 years ago. I respect Australia and its values and I consider it a privilege to live here.

   In [year] whilst serving as a soldier in the [Country 1] Army I was posted to the United Nations Peace keeping force in [Country 2], one of my duties was be an armed escort to both the Australian Police and New Zealand Police contingents who were not permitted to carry weapons at all as they carried out mobile patrols of the "[disputed area]", So I have in my way always protected Australians.

   Since my open heart operation I had retired aged [age] years from the general workforce I have continued to work unpaid but with free rent overseeing the  business of  [Business 1], I continue to do this work to date for the owners, [named] who themselves work for the indigenous communities in and around [Australian Town 2]. This work also keeps me within close proximity of my family [wife] and [Grandchild F] should I be called upon or for family concerns.

   My step daughter [Child E] now aged [age] and living in [Country 1] was married recently and she wanted me to walk her down the aisle and give her away and it was my honour to do so, I did not expect this reversal of a decision on my visa after it had been approved, I trusted the integrity of the Australian Government, had I known this was to be my treatment I would not have left Australia and all this turmoil in the lives of my family and myself would not be happening now. Had I not gone to [Country 1] to help my step daughter I would not be undergoing this terrible decision made by Border Patrol officers who obviously did not fully know or care about my case or their country’s prior decisions, who then cancelled my [visa] and gave me 28 days to leave Australia and my family. At nearly [age] years of age I no longer have family or friends in either NZ or [Country 1] and I only have my age pension which is part supported by NZ and part by [Country 1],I do not  have an Australian age pension and never have. Why is this decision so draconian and contrary to the Australian way? I wish to appeal this decision made without compassion on [a date in] March 2019 at [named] Airport.

   In recent times my [wife] has been diagnosed with [a medical condition] and is no longer able to fly, she is listed as priority 1 with the [named] Hospital for surgery probably in the new year, she will then require myself as her fulltime carer as she has nobody else to do this for her and [Grandchild F]. A cancellation of my visa would split our family and separate us for life, my wife cannot fly. This can be verified by her GP, [Dr G] if required.

   I appeal to the governing bodies concerned that they honour their original decision which was ministerial approval to allow me to remain in Australia with my only family and who are Australian citizens generations repeated. I have never committed any other crimes here or anywhere else. I am a good person and form no threat to anyone.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the visa applicant is a ‘behaviour concern non-citizen’ as so defined.

   Legislation

   Section 32 Special category visas

   (1)       There is a class of temporary visas to be known as special category visas.

   (2)       A criterion for a special category visa is that the Minister is satisfied the applicant is:

   (a)       a non-citizen:

   (i)        who is a New Zealand citizen and holds, and has presented to an officer or an authorised system, a New Zealand passport that is in force; and

   (ii)       is neither a behaviour concern non-citizen nor a health concern non-citizen; or

   (b)       a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or

   (c)       a person of a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.

   (3)       A person may comply with subparagraph (2)(a)(i) by presenting a New Zealand passport to an authorised system only if:

   (a)       the New Zealand passport is of a kind determined under section 175A to be an eligible passport for the purposes of Division 5 of Part 2; and

   (c)       before the person is granted a special category visa, neither the system nor an officer requires the person to present the passport to an officer.

   Reg 5.15A Special category visas—declared classes of New Zealand citizens

   (1)       For paragraph 32(2)(c) of the Act, a person is in a class of persons for whom a visa of a class other than a special category visas would be inappropriate if the person:

   (a)       is a New Zealand citizen who holds, and has presented to an officer, a New Zealand passport that is in force; and

   (b)       is not a health concern non-citizen; and

   (c)       is covered by subregulation (2) or (3).

   (2)       A person is covered by this subregulation if the person is a behaviour concern non-citizen only because of having been excluded from a country other than Australia in circumstances that, in the opinion of the Minister, do not warrant the exclusion of the person from Australia.

   (3)       A person is covered by this subregulation if:

   (a)       the Minister has, under subsection 501(3A) of the Act (person serving sentence of imprisonment), cancelled a visa held by the person; and

   (b)       the person has made representations to the Minister in accordance with the invitation given by the Minister under subsection 501CA(3) of the Act; and

   (c)       the decision to cancel the visa is revoked under subsection 501CA(4) of the Act; and

   (d)       the Minister has not, under subsection 501BA(2) of the Act, set aside the decision to revoke the cancellation of the visa; and

   (e)       since the person made the representations to the Minister mentioned in paragraph (b), no new grounds have arisen for the person to fall within the definition of behaviour concern non-citizen in subsection 5(1) of the Act, unless the only new ground that has arisen is the person’s removal or deportation from Australia because of the decision to cancel the visa.

   (4)       For the purposes of paragraph 32(2)(c) of the Act, a declared class of persons for whom a visa of another class would be inappropriate is New Zealand citizens:(a)    who hold a New Zealand passport that:

   (i)  is in force; and

   (ii) is of a kind determined under section 175A of the Act to be an eligible passport for the purposes of Division 5 of Part 2 of the Act; and

   (b)       who have presented an image of their face and shoulders by presenting themselves to an authorised system and who, as a result, have been satisfactorily identified; and

   (c)       who are neither behaviour concern non-citizens nor health concern non-citizens.

   (5) In this regulation: authorised system means an automated system that is an authorised system for the purposes of section 32 of the Act.

   The term Behaviour Concern Non-citizen is defined in Section 5 of the Migration Act:

   behaviour concern non-citizen means a non-citizen who:

   (a)       has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or

   (b)       has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:

   (i)        any period concurrent with part of a longer period is disregarded; and

   (ii)       any periods not disregarded that are concurrent with each other are treated as one period;

   whether or not:

   (iii)      the crimes were of the same kind; or

   (iv)      the crimes were committed at the same time; or

   (v)       the convictions were at the same time; or

   (vi)      the sentencings were at the same time; or

   (vii)     the periods were consecutive; or

6. The applicant arrived in Australia most recently [in] March 2019 with his New Zealand passport. A criminal history check conducted by the delegate through New Zealand Police confirmed the applicant had a conviction [in] May 1999 for which he was sentenced to imprisonment for a period of three years. He was assessed by the delegate as meeting the definition of Behaviour Concern Non-citizen and was not eligible for the grant of a Special Category Visa. He was subsequently granted a Border Entry (Class TA) (Subclass 773) visa on [that day] for 30 days.

7. On 24 April 2019 the applicant lodged an application (the subject of this review) for a Special Category Visa class TY-444 by submitting the Incoming Passenger Card and presenting his passport to an officer at the [named] Office. Due to the client’s conviction [in] May1999 for which he was sentenced to imprisonment for a period of three years, the applicant was found to meet the definition of ‘Behaviour Concern Non-Citizen’. Therefore, the delegate found that the applicant did not meet Section 32 of the Migration Act. The applicant insists in his submission that the Minister had overturned the finding of ‘Behaviour Concern Non-Citizen’ years ago and that he had complied totally with the additional requirements of the Minister.

8. The Tribunal has accessed the Departmental document called ‘Decision not Cancel Visa under s. 501 of the Migration Act 1958’ pertaining to the applicant. It confirms that a decision was made by the National Character Consideration Centre at Ministerial level not to cancel the applicant’s Subclass 444 visa. However, attached to the revocation there is a separate document included (called a ‘formal warning’) concerning the commission of any possible further criminal offences by the applicant. The penalties applicable are elaborated. The Tribunal has verified the applicant’s signed agreement at the appropriate place.

9. The Tribunal is aware of no evidence on file, that, having signed this declaration, the applicant has then failed to comply with its requirements. The Tribunal is, therefore, satisfied that the applicant now meets s.5.15A and further s.32(2) of the Act.

10. The Tribunal finds the visa applicant is, therefore, now eligible for the grant of a Special Category (Temporary) (Class TY) Subclass 444 visa.

    DECISION

11. The Tribunal remits the decision under review for reconsideration and finds the applicant meets the following criteria for a Special Category (Temporary) (Class TY) Subclass 444 visa:

    · s.32(2) of the Act

    ·Regulation 5.15A

    Michael Cooke
    Senior Member