Allen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Allen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 436 (11 March 2020)
Division:GENERAL DIVISION
File Number(s): 2019/8522
Re:Dion Allen
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member M Griffin QC
Date:11 March 2020
Place:Sydney

The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 19 December 2019 not to revoke the mandatory cancellation of the Applicant’s visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s visa is revoked.
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Senior Member M Griffin QC
CATCHWORDS
MIGRATION – permanent residency visa – citizen of New Zealand – failure to pass character test – offending history – whether discretion to revoke mandatory cancellation should be exercised – considerations under Direction No. 79 – primary considerations – other considerations – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) s 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185, 42
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, 76
SECONDARY MATERIALS
Migration Act 1958 – Direction no. 79 – direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)
REASONS FOR DECISION
Senior Member M Griffin QC
11 March 2020
BACKGROUND

The Applicant is a New Zealand citizen, born 19 May 1976, who arrived in Australia on 21 August 1986, aged 10 years. The Applicant seeks review of a decision made on 19 December 2019 refusing to revoke mandatory cancellation of his permanent residency visa.
The Applicant has a substantial criminal history, referred to below. The basis of the cancellation being a prison sentence imposed on 1 November 1996 of 18 months imprisonment.
The mechanism of the Migration Act 1958 (Cth) has been complied with for the purpose of this hearing.
ISSUES
The issue in this review is whether the original decision to cancel the Applicant’s visa should be revoked pursuant to s 501 of the Migration Act 1958 (Cth) (the Act). The Tribunal may revoke the original decision if the Tribunal is satisfied:
(a)That the Applicant passes the character test as defined by section 501 of the Act; or
(b)
There is another reason why the original decision should be revoked

(s 501CA(4)(b)).
RELEVANT LEGISLATION AND POLICY
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).
Subsection 501CA(4) provides that:
4The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation;
and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Subsection 501(6)(a) relevantly provides that a person does not pass the "character test" if the person has "a substantial criminal record". Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction no. 79 which commenced on 28 February 2019). The relevant paragraphs of which are set out below and describe the framework within which the Tribunal’s discretion is to be exercised.
The Preamble of Direction no. 79 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly include that:
(a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens;
(b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere;
(c)a non-citizen who has committed a serious crime, including of a violent nature, and particularly against vulnerable members of the community such as minors, should generally expect to forfeit the privilege of staying in Australia;
(d)in some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa;
(e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period time, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age; and
(f)the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
Part C of Direction no. 79 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.
Pursuant to Part C of Direction no. 79, the Tribunal must, to the extent that they are relevant to this case, take into account three primary considerations and other considerations. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. These principles are of course dependent upon the facts and circumstances of each case.
The three primary considerations are:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Primary Consideration 1 – Protection of the Australian community
Paragraph 13.1 of Direction no. 79 provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The two limbs of paragraph 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below.
The nature and seriousness of the conduct
Sub-paragraph 13.1.1 of Direction no. 79 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes, in summary:
a)the principle that violent and/or sexual crimes are viewed very seriously;
b)the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)the principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)the sentence imposed by the courts for a crime or crimes, subject to (b) above;
e)the frequency of the non-citizen's offending and 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)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status; and
i)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious.
The risk to the Australian community
Paragraph 13.1.2 of Direction no. 79 states that decision-makers must have regard, cumulatively, to the following:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.
Primary Consideration 2 – Best interests of minor children in Australia affected by the decision
Decision-makers must make a determination in respect of each relevant child under 18 years about whether revocation is in the best interests of that child.
In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Primary Consideration 3 – Expectations of the Australian community
Paragraph 13.3 of Direction no. 79 provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.
The principles to be applied, as set out in para 6.3 of Direction no. 79, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes.
The length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of the visa refusal or cancellation for minor children and other immediate family members in Australia are relevant considerations.
Other Considerations
The Tribunal must also take into account other considerations insofar as they are relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties to Australia;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
International non-refoulement obligations
The considerations at para 14.1 of Direction no. 79 include (but are not limited to):
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations;
(b)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa;
(c)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled);
(d)Where a non-citizen makes claims which may give rise to international nonrefoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked;
(e)Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated.
Strength, nature and duration of ties
The considerations at para 14.2 include:
how long the non-citizen has resided in Australia, including the age of arrival in Australia, the period of offending and positive contributions to the Australian community;
(b)the strength, duration and nature of any family or social links with Australian citizens, including the effect of non-revocation on the non-citizen’s immediate family.
Impact on Australian business interests
Direction no. 79 notes an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia (para 14.3(1)).
Impact on victims
Paragraph 14.4 of Direction no. 79 provides:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
Extent of impediments if removed
The extent of impediments if removed requires consideration of the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: age and health; whether there are substantial language or cultural barriers; and the availability of any social, medical and/or economic support.
DISCUSSION
Character Test
It is clear according to the Act that because the Applicant has a ‘substantial criminal record’ (s 501(6)(a) of the Act) he does not pass the character test.
The question for the Tribunal is whether it is satisfied that there exists another reason for revoking the cancellation decision.
Protection of the Australian community (past conduct and future risk)
The Applicant has lived in Australia since he was 10 years of age and commenced offending about the age of 14 years. A complete history of the Applicant’s offending is to be found in the G Documents at pages 20 to 25.
It is instructive to analyse carefully the history of the Applicant’s offending. Most of the offending is of a relatively minor nature when assessed against the scale of seriousness of offences. Many of the offences involved property-related crimes, assaults and petty offences, together with traffic offences. A serious offence was committed in 1996 of breaking, entering and stealing for which the Applicant was sentenced to 18 months imprisonment. Further offences of a relatively minor nature were committed up until 2002 when the Applicant was sentenced effectively to 3 months imprisonment. Of significance is the fact that the period from 2002 to 2016 does not reveal convictions for any offence.
Apart from some relatively minor offences from then until 2018, the most serious offence was committed in 2018 and dealt with in March of that year, again for property offences which lead to imprisonment with a head sentence of 8 months.
The Tribunal views as significant the fact that the Applicant, it should be assumed, refrained from any type of problematic behaviour for a period of approximately 14 years. This, the Tribunal concludes, is some evidence that the Applicant is capable of behaving in a manner which does not represent any risk to the public.
Furthermore, the Tribunal accepts the Applicant’s assertions that the period in custody, and more importantly the period in immigration detention, has keenly focused the Applicant’s attention on the likelihood of his visa revocation and the real potential to be returned to New Zealand.
The offences viewed in total do not present, overall, as being particularly serious, although the Tribunal recognises that cumulatively, the Applicant’s offending has been prolonged. On the other hand, it cannot be said that the offences have increased in seriousness. They are merely relentless without any apparent benefit so far having been gained by various orders relating to the Applicant’s rehabilitation and preventative measures.
The evidence, however, which the Tribunal accepts, is that since the Applicant’s last incarceration he has undertaken (yet again) forms of preventative treatment. The Tribunal, based upon the Applicant’s evidence, is prepared to accept that the Applicant appreciates that his offending is drug-related and that the Applicant has insight and now has the psychological tools to act in a preventative way.

The Tribunal also accepts that there is now a mature realisation on the part of the Applicant that any future offending will lead to visa withdrawal. The Tribunal, on the Applicant’s evidence, also accepts that the Applicant did not appreciate that his permanent residency status meant that, upon conviction, he was likely to be deported. This, the Tribunal notes, is supported by the fact that no action was taken against the Applicant when the offences in 1996 were committed.
The Tribunal‘s view is that the cumulative offending by the Applicant overall, although not insignificant, is towards the lower end of the scale of seriousness. As to the risk of re-offending in the future, although the Applicant commenced offending at a young age, the maturity with which he spoke suggests an appreciation of the position he now finds himself in, that is, the cancellation of his visa. The Applicant’s desire to play a protective role with his two young daughters, together with the (as yet untried) voluntary treatment undertaken whilst in custody, the Tribunal recognises, are some protective factors against the risk of future offending.
The Applicant gave evidence that during the course of his incarceration and period in immigration detention he stopped taking drugs voluntarily, although it is clear enough within both prison and immigration systems that drugs are freely available. In the Tribunal’s view, this demonstrates some evidence of the Applicant becoming drug-free. Furthermore, it is the Tribunal’s view, that this is some positive evidence of rehabilitation and a real protective factor against future offending.
The risk of any future offending, as a generalisation, can never be the subject of precise mathematical assessment. The Tribunal concludes that the Applicant is although at some risk of re-offending, it is overall not a high degree of risk and the type of offending is most likely to be in the category of the more minor offending of the Applicant’s past.
The Tribunal concludes that although this consideration weighs against the Applicant, it should be regarded as carrying limited weight.
Best interests of minor children in Australia
The Applicant has two female children who reside in Australia whose ages are 14 and 13. The Tribunal is satisfied that he has enjoyed, prior to incarceration and immigration detention, a satisfactory relationship as a father with his two daughters. They have provided a statement that likewise collectively speaks of an appropriate relationship with their father.
It is perfectly obvious that, if he is removed from Australia, the children’s relationship with their father will suffer although, of course, there are various means of electronic digital communication available. Furthermore, the father asserts that he and his female partner have pursued a mutually destructive and tumultuous relationship over the years, and she has in the past been a drug user. The Applicant asserts that he wishes to remain in Australia, in part, to be present physically and to support his daughters.
Both parents should be able to have a satisfactory relationship with their children for the sake of those children. That proposition cannot be questioned. It applies to this case.
Although the children were removed from the home and the mother’s care for some time and placed into state care, they presently reside again with their mother.
The relationship between the Applicant and his partner has been tumultuous to say the least and there is every possibility that it will not endure in the future.
The Applicant’s relationship, as it has been described above, taking his children to school and to the swimming pool and various other appropriate father-daughter social activities demonstrates a proper and loving relationship. The Tribunal acknowledges, however, failings in the past by the father in his parental role, most probably the result of his own drug use.
The evidence which the Tribunal accepts is that the best interests of the children are undoubtedly served by the Applicant remaining in Australia and this consideration weighs heavily in the Applicant’s favour.
Expectations of the Australian Community
This consideration is the statement of the government’s view as to the expectations of the Australian community, the purpose being to determine whether or not to revoke the cancellation of the visa. It is, of course, not for the Tribunal to determine its own “expectations” of the Australian community‘s attitude by reference to the Applicant’s circumstances.[1]
[1] FYBR v Minister for Home Affairs [2019] FCAFC 185, 42.
The Tribunal accepts the Respondent’s submissions that “the norm” should in ordinary circumstances relating to a consideration of the evidence be applied. The Tribunal concludes that this is such a case[2].
Other considerations
[2] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, 76
International non-refoulement obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
There is nothing in the material to demonstrate that the Applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is satisfied that there are no grounds for concluding that there is a real risk that the Applicant will suffer significant harm if removed from Australia.
Strength, nature and duration of ties
The Applicant is 43 years of age and has spent approximately 33 years in Australia. The Applicant has family in Australia, two children and a sister. Although the Applicant commenced committing offences within a relatively short time of his arrival in Australia, nonetheless, he spent the majority of his life here in Australia.
The fact that the Applicant has spent his formative years and all his adult life in Australia and the fact that his children and sister are living in Australia undoubtedly, in the Tribunal’s view, weigh strongly in this consideration being in the Applicant’s favour.
Impact on Australian business interests
There is no evidence currently available to suggest that the Applicant is involved in the delivery of a major project or of an important service in Australia. Accordingly, this consideration is not relevant to the Applicant's circumstances.
Impact on victims
There is nothing in the material which suggests that this consideration is relevant to the Applicant’s case.
Extent of impediments if removed
The Applicant has lived for a large part of his life in Australia. Although he commenced offending at a relatively early age, on the evidence, the Applicant is able-bodied and is able to pursue work. It is clear that he has made some contribution to Australian society by his work but this is diminished somewhat by the repeated offending. Nonetheless this contribution is a relevant consideration. There is unlikely to be any specific difficulties in terms of language and in a general sense culturally, however, the Tribunal recognises that returning the Applicant to his country of birth, having lived so long a period in Australia, will undoubtedly have an unsettling effect on him and generally may present difficulties for him, although culturally there is little difference in both societies.
Clause 14(1) makes it clear that the considerations referred to above are not exclusive. The Tribunal considers that a relevant factor either considered within this consideration or regarded separately is the fact that the Applicant was the subject of indecent sexual assault by a relative. In evidence, the Applicant stated that he was likely to be traumatised by having to return to New Zealand, the place where the offence against him occurred. In fact, the reason for his coming to Australia with his family was, he said, that he was taken away from the place of offending. The Tribunal accepts that the Applicant’s evidence, in this regard, was honest. Therefore, the Tribunal regards this either as a relevant factor to be taken into account under this consideration or alternatively to be regarded as a separate special consideration in this case. This factor weighs in the Applicant’s favour.
CONCLUSION
Although the Applicant has been guilty of consistent criminal conduct, the Tribunal is of the view that there is acceptable evidence of recent reform, referred to above, and the consequential diminution of the likelihood of further offending. The Tribunal places significant weight on the consideration of the best interests of the two children and the length of time that the Applicant has resided in Australia. Further, the accepted trauma to the Applicant of being returned to the country where as a young child he was assaulted is a further factor Tribunal takes into account which weighs in the Applicant’s favour.
The Tribunal therefore finds that there is another reason why the Delegate’s decision should be reversed.
DECISION
The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 19 December 2019 not to revoke the mandatory cancellation of the Applicant’s visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s visa is revoked.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

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Associate
Dated: 11 March 2020

Date(s) of hearing: 27 February 2020

Applicant: In person

Solicitors for the Respondent: Mr M. Gao, Australian Government Solicitor

[2020] AATA 436

11 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice

Date(s) of hearing:	27 February 2020
Applicant:	In person
Solicitors for the Respondent:	Mr M. Gao, Australian Government Solicitor