Ah-San and Minister for Immigration and Multicultural Affairs (Migration) - [2024] AATA 3389

Ah-San and Minister for Immigration and Multicultural Affairs (Migration) [2024] AATA 3389 (20 September 2024)
Division:GENERAL DIVISION
File Number: 2023/8729
Re:Shane Ah-San
APPLICANT

AndMinister for Immigration and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Rebecca Bellamy
Date of Decision: 20 September 2024
Date of Reasons: 25 September 2024
Place:Brisbane

On 20 September 2024, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal set aside the decision made by the Respondent's delegate dated 14 November 2023 and instead revoked the cancellation of the Applicant’s visa.
…..............[SGD]...................
Senior Member R Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 – very serious offending – strong evidence of rehabilitation – strong ties to the community – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296
SECONDARY MATERIAL
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member R Bellamy
25 September 2024

The Applicant is a 35-year-old citizen of New Zealand whose Class TY Subclass 444 Special Category (Temporary) visa (“visa”) was cancelled due to his criminal offending. He asked a delegate of the Minister (“the Respondent”) to revoke the cancellation, and that request was denied. He then asked the Tribunal to review that decision and, instead, revoke the cancellation.
The Ministerial Direction that applies to this decision provides that a non-citizen who engages in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia.[1] The Applicant’s offending, which includes drug trafficking and the supply of firearms, is so serious that he should expect to forfeit the privilege of staying in Australia. However, the Direction also mandates that certain other factors be taken into account as far as they are relevant. In this case, there are other relevant factors that, taken together, justify the revocation of the cancellation of the Applicant’s visa, despite his serious offending. This decision was finely balanced and was influenced by my acceptance that, since the Applicant’s most recent offence, he has genuinely reformed, and he now poses a very low risk of harm to the Australian community.
[1] Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”), paragraph 5.2(3).
The four witnesses called by the Applicant were particularly helpful to his case, especially as his own evidence was problematic in parts. The Applicant’s wife, his counsellor, a long-term friend, and a mentor from his local church impressed me as honest witnesses who gave authentic evidence and balanced, considered opinions. I was…

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 Ah-San and Minister for Immigration and Multicultural Affair...

Details

AGLC: Ah-San and Minister for Immigration and Multicultural Affairs (Migration) [2024] AATA 3389
Case: [2024] AATA 3389
Decision Date: 20 September 2024

CaseChat Overview and Summary

This matter concerned an application to revoke the mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa. The applicant, who was born in New Zealand and moved to Australia at age 12, faced the cancellation of his visa due to failing the character test. The dispute centred on whether there was "another reason" to revoke this mandatory cancellation, as required by the relevant migration legislation.

The court was required to determine if the applicant's circumstances constituted "another reason" to revoke the mandatory cancellation of his visa, notwithstanding his failure to pass the character test. This involved a detailed consideration of Ministerial Direction No. 110, which outlines the framework for assessing such cases. Specifically, the court had to weigh the seriousness of the applicant's offending against evidence of his rehabilitation and his ties to the Australian community.

In its reasoning, the court acknowledged the seriousness of the applicant's offending, particularly his involvement in a violent robbery and wilful damage in 2008, which resulted in physical injury to a vulnerable victim and the theft of property. The court also noted the applicant's history of traffic infringements, which demonstrated a disregard for road safety regulations. However, the court found that there was strong evidence of rehabilitation, including the absence of further offending since 2008 and the applicant's successful completion of Year 12. Furthermore, the court considered the applicant's significant ties to the Australian community, including his long-term residence since childhood and his role in raising Ms Telesi's daughter. Applying the principles of Ministerial Direction No. 110, the court concluded that these factors, taken together, constituted "another reason" to revoke the mandatory cancellation.

Consequently, the court set aside the decision under review and revoked the cancellation of the applicant's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

It was conceded by the Respondent, and I accept, that the Applicant has never committed any act of family violence, so Primary Consideration 2 does not apply.[3] It was conceded by the Applicant, and I accept, that Other Considerations (a) and (c) do not apply.[4] [3] Exhibit R1, page 12, paragraph 45.[4] Transcript, page 85, lines 31 to 44. Exhibit A1, page 35, paragraph 124.BACKGROUND The Applicant was born in June 1989 in New Zealand. In September 2001, at the age of 12, he moved with his family to Australia. His father had been a harsh, physical disciplinarian. He did not accompany the family to Australia although he came here for a brief period in an unsuccessful effort to save the marriage. The Applicant got into trouble at school and was suspended on several occasions for fighting. However, he completed Year 12 in 2006. At the age of 14 or 15, he started smoking tobacco and drinking alcohol socially. He was introduced to cannabis at the age of 17 years through friends in high school. He used it in social settings “to fit in” for approximately one to two years. In early 2007, when the Applicant was 17 years old, he met Ms Telesi. She had an 11-month-old daughter whose father was not in her life. The Applicant and Ms Telesi commenced a relationship, and they raised her daughter together, who has recently turned 18. The Applicant’s first transgression occurred later that year when he rode a bicycle without a helmet. There were many more traffic infringements after that, mostly arising from him driving as though he had an open license when he only had a learner’s permit. He was caught on four occasions between November 2007 and April 2008. He described that behaviour as “I was just on my learners permit and I was just driving around… Just being silly”.[5][5] Transcript, page 27, lines 29 to 35 In May 2008, the Applicant was involved in violent robbery in company and wilful damage. The victim was a man who had recently lost his accommodation and was sleeping in the driver’s seat of his car in a rest area along the highway. In the early morning, the Applicant and three of his friends went out with the intention to rob people. In the hearing, the Applicant said he did not know of an intention to rob people,[6] however his previous evidence about that has been inconsistent and he was convicted on the basis that he did know, so I am satisfied that he knew. [6] Transcript, page 24, lines 4 to 31. The Applicant was driving the car. He pulled up beside the victim’s car. A co-offender opened the victim’s driver’s side and punched his head around ten times. Another offender entered by the passenger side door, punched the victim, and looked through front console and glove compartment. A third approached with a baseball bat. The Applicant kicked the rear of the car causing a large dent in the rear quarter panel. The group then got into their car and left. They had stolen the victim’s car keys, a basketball, Nike sunglasses and an MP3 player. The victim was left with pain and around his jaw and face, and swelling that caused discomfort for approximately a week.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

There is another reason to revoke the cancellation of the Applicant’s visa. DECISION The decision under review is set-aside and the cancellation of the Applicant’s visa is revoked.

Ratio Decidendi

Legal Principle Established

There have not been any other instances of poor behaviour in detention. PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. The Direction provides that “serious conduct” includes behaviour or conduct that does not constitute a criminal offence. In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires me to give consideration to:a)The nature and seriousness of the Applicant’s conduct to date; andb)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.The Nature and Seriousness of the Applicant’s Conduct to Date When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the following relevant matters:(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:(i)violent and/or sexual crimes;(ii)…;(iii)…;(b)…:(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;(d)the impact of the offending or other conduct on any victims and their family(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;(f)the cumulative effect of repeated offending;(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;(h)…;(i)… While the Applicant has not inflicted violence on anybody, he was a party to a violent crime. That offence is, therefore, very serious. The victim was in a vulnerable position, asleep in his vehicle, without accommodation. He suffered the loss of several of his belongings, including the keys to that vehicle which was his home at that time, and he suffered physical injury. The Applicant’s traffic infringements are serious when considered as a whole. The system of licensing seeks to ensure that only people who meet certain standards are operating vehicles on the roads, in the interests of road safety. The Applicant persistently undermined that system. On top of that, he drove above the speed limit, sometimes by over 30 kmph. Fortunately, he did not hurt anyone, but he engaged in conduct that tends to increase the risk of a collision. He showed disregard for the safety of others.