Ash and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Case [2024] AATA 890

Ash and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 890 (24 April 2024)

Division:GENERAL DIVISION

File Number(s):      2024/1373

Re:Oliver George Ash

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Boyle

Date:24 April 2024  

Place:Perth

The decision of the delegate of the Minister dated 31 January 2024 under s 501CA(4) of the Act not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa is affirmed.

.......[Sgd]...........................................................

Deputy President Boyle

CATCHWORDS

MIGRATION – s 501CA(4) of Migration Act - decision not to revoke mandatory cancellation of visa - Applicant is a citizen of United Kingdom - Direction 99 considered - Applicant had lived in Australia for 15 years – arrived as a 16-year-old - extensive criminal record – repeated violent offences – family violence - serious driving record – long-standing methamphetamine addiction - risk of re-offending at high end of low to moderate - primary considerations of protection best interests of minor children and ties to the Australian community weigh in favour of revocation of cancellation – primary considerations of protection of the Australian community, family violence and expectations of the Australian community outweigh considerations in favour of revoking cancellation of visa - there is not another reason to revoke the decision to cancel the Applicant’s visa – reviewable decision affirmed

PRACTICE AND PROCEDURE – Administrative Appeals Tribunal Act 1975 – whether orders should be made under s 35 giving the Applicant a pseudonym and suppressing certain evidence - no evidence to support the Applicant’s assertion that he, his family or his children would face harm – information already in the public domain - no justification for the use of a pseudonym or the suppression of other information – orders refused.

LEGISLATION

Administrative Appeals Act 1975 (Cth) ss 35, 35(2), 35(3), 35(4), 35(5)

Federal Court of Australia Act 1976 (Cth) s 37AG(1)

Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(1)(ba), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1), 501G(1)(e)

CASES

Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125; (2022) 295 FCR 315

Australian Securities and Investments Commission v Administrative Appeals Tribunal (2008) 113 ALD 449

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

FYBR v Minister for Home Affairs [2019] FCA 500

FYBR v Minister for Home Affairs [2019] FCAFC 185

JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762

Kim v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 294

LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12

Minister for Home Affairs v HSKJ [2018] FCAFC 217; [2018] FCAFC 217; 266 FCR 591

Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68

Paewai and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2978

Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA…

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Details
AGLC
Ash and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 890
Case
[2024] AATA 890
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to revoke the mandatory cancellation of the Applicant's visa. The Applicant, a citizen of the United Kingdom who arrived in Australia as a 16-year-old and had resided there for 15 years, possessed an extensive criminal record including repeated violent offences, family violence, a serious driving record, and a long-standing methamphetamine addiction. The Administrative Appeals Tribunal was required to determine whether there was "another reason" why the decision to cancel the Applicant's visa should be revoked, pursuant to section 501CA(4)(b)(ii) of the *Migration Act 1958* (Cth).

The Tribunal considered the primary considerations outlined in Direction 99. While the best interests of the Applicant's minor children and his ties to the Australian community weighed in favour of revoking the cancellation, these were outweighed by the primary considerations of protecting the Australian community from criminal conduct, the seriousness of the Applicant's history of family violence, and the general expectations of the Australian community. The Tribunal assessed the Applicant's risk of re-offending as being at the high end of the low to moderate range.

The Tribunal reasoned that the Applicant did not pass the character test, meaning he could not rely on section 501CA(4)(b)(i) of the Act. The core of the determination therefore rested on whether there was "another reason" to revoke the cancellation under section 501CA(4)(b)(ii). Applying the principles from *Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs* and *Kim v Minister for Immigration, Citizenship and Multicultural Affairs*, the Tribunal found that the cumulative weight of the Applicant's serious criminal conduct, including violent offences and family violence, coupled with the risk of re-offending and the protection of the Australian community, meant there was no other reason to revoke the decision to cancel his visa. The Tribunal also refused the Applicant's request for a pseudonym and suppression orders, finding no evidence of harm to the Applicant, his family, or his children, and noting that the relevant information was already in the public domain.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 7 March 2024, the Applicant resubmitted his application for a review of the delegates decision. The application was made within the statutory time limit set out in s 500(6B) of the Act for a decision notice of which was provided to the Applicant on 6 March 2024. BACKGROUND The Applicant is a citizen of the United Kingdom (UK). He was born in London on 23 April 1992. The Applicant arrived in Australia representing Great Britain in a sporting competition on 24 August 2008. He was 16 years old. After his arrival in Australia, he lived with his aunt and uncle on a farm in Victoria. In January 2009 the Applicant’s mother arrived in Australia. The Applicant joined his mother and sister in Perth in January 2009 and has lived in Western Australia since then. In or around early 2011 the Applicant commenced a relationship with Ms K. In September 2012 Ms K gave birth to the Applicant’s first son who is an Australian citizen. A few months after the birth of that child, the Applicant and Ms K ended their relationship. In 2013 the Applicant became a member of the Rebels Outlaw Motorcycle Club (Rebels). The Applicant left the Rebels in 2015 by “handing in his patch”.[6] The Applicant started taking illicit drugs while a member of the Rebels (cocaine and ecstasy).[6] Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC) para 12. In or around late 2017 the Applicant was in a relationship with Ms B. In October 2018 Ms B gave birth to the Applicant’s second son who is an Australian citizen. The Applicant’s relationship with Ms B ended seven months after the birth of their son. This was, according to the Applicant, because of his “continued drug addiction”.[7][7] Applicant’s SFIC para 14. In 2019 the Applicant started work on a gold mine on a fly-in-fly-out (FIFO) basis. He used methamphetamine while not on site and his “addiction became progressively worse”.[8][8] Applicant’s SFIC para 15. On 10 November 2019, the Applicant committed the offence of grievous bodily harm (2019 offence). He was arrested, charged and taken to Bunbury Regional Prison. He was subsequently granted bail on 29 November 2019 and flew out soon after to resume his FIFO work. In or around February 2020, the Applicant began a relationship with Ms M. The Applicant said that this relationship featured heavy methamphetamine use by both parties. The Applicant’s employment ceased in or around March 2020 when the mine on which he was working shut down. He remained unemployed until he was taken into custody in December 2020. He said that during this time he resumed using methamphetamine, financed through the redundancy payout he had received from his previous job.[9][9] Applicant’s SFIC para 17. On 30 November 2020, the Applicant committed the offence of unlawful assault and thereby did bodily harm with circumstances of aggravation against Ms M (2020 offence). He was arrested and taken into custody on 19 December 2020. He was charged with the 2020 offence and refused bail.

Evidence

Evidence Before The Court

Paragraph 9 of Direction 99 is as follows:(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):a) Legal consequence of the decision;b) extent of impediments if removed;c) impact on victims;d) impact on Australian business interests.THE HEARING AND THE EVIDENCE The application was heard on 15 and 16 April 2024. The Applicant was represented by Ms A Graziotti, and the Minister was represented by Mr A Burgess. Oral evidence was given at the hearing by the Applicant, the Applicant’s mother and Mr Balfour, a psychologist called by the Applicant. The following documents were admitted into evidence:(a)Applicant’s Bundle of Evidence, received on 9 March 2024 (A1);(b)Applicant’s Further Bundle of Evidence, received 10 April 2024 (A2);(c)Minister’s Section 501G Documents (R1); and(d)Minister’s Tender Bundle, received 2 April 2024 (R2).THE ISSUE FOR DETERMINATION The substantive issue for determination is whether I should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the Applicant’s visa under s 501(3A). This will require determination of:(a)whether the Applicant passes the character test (as defined by s 501 of the Act); and(b)if he does not pass the character test, whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked.PRELIMINARY ISSUE: SHOULD THE APPLICANT BE GIVEN A PSEUDONYM? By an email sent on 10 April 2024, the Applicant, through his lawyers, requested the assignation of a pseudonym. The full relevant text of the request was as follows:The applicant requests a suppression order be issued to protect the identity of his children, his family and himself, given his past association with the Rebels OMCG and his fear of repercussions should his evidence regarding the club and its processes be made public.We also recommend that the name of the OMCG be redacted in the Tribunal’s published decision for the same reason.This can be discussed further at the hearing on Monday 15 April 2024. Section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) relevantly provides:Public hearing(1)Subject to this section, the hearing of a proceeding before the Tribunal must be in public.Private hearing(2) The Tribunal may, by order:(a) direct that a hearing or part of a hearing is to take place in private; and(b) give directions in relation to the persons who may be present.Orders for non - publication or non - disclosure(3) The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:(a) information tending to reveal the identity of:(i) a party to or witness in a proceeding before the Tribunal; or(ii) any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or(b) information otherwise concerning a person referred to in paragraph (a).…(5) In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:(a) that hearings of proceedings before the Tribunal should be held in public; and(b) that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and(c) that the contents of documents lodged with the Tribunal should be made available to all the parties.

Decision

Reasons for decision

As the Applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue for determination, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked (see Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[21] and Kim v Minister for Immigration, Citizenship and Multicultural Affairs.[22] As those cases make clear, the exercise to be undertaken by the Tribunal is not one of determining whether a discretion should be exercised,[23] but is rather determining whether there is another reason why the decision under s 501(3A) should be revoked.[24][21] [2022] FCAFC 125; (2022) 295 FCR 315.[22] [2024] FCA 294.[23] Both parties in their SFICs referred to the tribunal exercising “the discretion under s 501CA(4)”: Applicant’s SFIC para 28 and Minister’s SFIC para 11.[24] Note: that position may not be as clear as stated in Au and Kim given the High Court’s judgment in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 (10 April 2024) wherein at [33] and [35] the Court refers to “the exercise of the discretion under s 501CA(4)”.IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1) Paragraph 8.1 of Direction 99 provides that, when decision-makers are considering the protection of the Australian community, they:(1)... should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or 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.(2) Decision-makers should also give consideration to:a) the nature and seriousness of the non-citizen's conduct to date; andb) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.Nature and seriousness of the conduct (para 8.1.1) Paragraph 8.1.1 of Direction 99 relevantly provides:conduct to date, decision-makers must have regard to the following: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) crimes of a violent nature against women or children, regardless of the sentence imposed;(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:(i)...(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;...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 frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;e) the cumulative effect of repeated offending;...

Ratio Decidendi

Legal Principle Established

The Applicant conceded that the consideration identified in para 8.1.1 of Direction 99 weighs very strongly against the Applicant (see [58(e)] above). That concession is correctly made. That, coupled with my assessment of the Applicant’s risk of reoffending being at the high end of the range of low to moderate, causes me to consider that this first primary consideration, the protection of the Australian community, weighs very heavily against the revocation of the cancellation of the Applicant’s visa. Second primary consideration: Family violence committed by the non-citizen (para 8.2) Paragraph 8.2 of Direction 99 provides:(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).(2) This consideration is relevant in circumstances where:a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/orb) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.(3) In considering the seriousness of the family violence engaged in by the non­citizen, the following factors must be considered where relevant:a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;b) the cumulative effect of repeated acts of family violence;c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:i. the extent to which the person accepts responsibility for their family violence related conduct;ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);iii. efforts to address factors which contributed to their conduct; andd) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non­ citizen's migration status, should the non- citizen engage in further acts of family violence. Paragraph 4(1) of Direction 99 relevantly defines family violence as follows:family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:a) an assault; or...e) intentionally damaging or destroying property…(Original emphasis)