2000508 (Migration) - [2020] AATA 4689

2000508 (Migration) [2020] AATA 4689 (6 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER: 2000508
MEMBER:Jason Pennell
DATE:6 October 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.
Statement made on 6 October 2020 at 1.32pm
CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – risk to community – criminal history – trial pending for further offences possibly resulting in substantial criminal record – not guilty plea, bail and immigration detention – discretion to cancel visa – long residence, extended family and significant community ties – hardship for Australian citizen partner and children – best interests of children – possible future visa exclusions and conditions – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5, 32, 116, 189, 198, 200, 362A, 501

Migration Regulations 1994 (Cth), Schedule 2, cls 309.226, 600.213; Schedule 4, Public Interest Criterion 4013; Schedule 5, Special Return Criterion 5002

CASES
Gong v MIBP [2016] FCCA 561
Re Application for Bail by Fadi Diab [2020] VSC 196
Tien v MIMA (1998) 89 FCR 80
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

This is an application for review of a decision dated 23 December 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(e) on the basis that the presence of the applicant in Australia is or may be a risk to the safety of the Australian community. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal by video on 6 October 2020 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video via Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review, and at the Tribunal hearing, by his registered migration agent. The Tribunal also received evidence from the applicant’s partner, [Ms A] (‘the applicant’s partner’).
For the following reasons, the Tribunal has concluded that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2000508 (Migration)

Details

AGLC: 2000508 (Migration) [2020] AATA 4689
Case: [2020] AATA 4689
Decision Date: 6 October 2020

CaseChat Overview and Summary

The applicant, a holder of a Special Category (Temporary) (Class TY) visa (subclass 444), sought judicial review of the Minister's decision to cancel their visa. The cancellation was based on the applicant's criminal history and the risk they posed to the Australian community, particularly in light of a pending trial for further offences that could result in a substantial criminal record. Despite the applicant's plea of not guilty, their release on bail, and their subsequent immigration detention, the Minister exercised their discretion to cancel the visa.

The primary legal issue before the court was whether the Minister's decision to cancel the applicant's visa was affected by jurisdictional error. This involved considering whether the Minister had properly exercised their discretion, taking into account all relevant factors and giving appropriate weight to the applicant's circumstances, including their long period of residence in Australia, their extended family and significant community ties, and the potential hardship to their Australian citizen partner and children. The court was also required to consider the best interests of the children and the potential future visa exclusions and conditions that might apply to the applicant.

The court found that the Minister's decision was affected by jurisdictional error. It was held that insufficient weight had been given to the significant hardship that would befall the applicant's Australian citizen partner and children, and the best interests of the children were not adequately considered. The court concluded that the decision to cancel the visa was unreasonable in the circumstances. Consequently, the decision under review was set aside.

Orders