Barber and Minister for Home Affairs (Migration) - [2018] AATA 4304

Barber and Minister for Home Affairs (Migration) [2018] AATA 4304 (20 November 2018)
Division:General Division
File Number(s): 2018/5229
Re:Lee Barber
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Antoinette Younes
Date:20 November 2018
Place:Sydney

The Tribunal affirms the decision not to revoke the cancellation of the applicant’s Absorbed Person visa.
.......................[sgd].............................................
Senior Member Antoinette Younes
CATCHWORDS
MIGRATION – decision not to revoke section 501 visa cancellation – absorbed person visa – failure to pass character test – whether another reason why original decision should be revoked – Ministerial Direction No. 65 applied – protection of the Australian community – nature and seriousness of the conduct – long history of serious and repeated offending – risk to the Australian community – best interests of minor children in Australia – expectations of the Australian community – other considerations – strength, nature and duration of ties to Australia – impact on victims – extent of impediments if removed – decision not to revoke the cancellation of the applicant’s absorbed person visa affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 34, 499, 501(3A), 501(6), 501(7), 501CA(4)
CASES
Minister for Immigration and Citizenship v Obele [2010] FCA 1445
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention)
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT)
International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR)
REASONS FOR DECISION
Senior Member Antoinette Younes
20 November 2018
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the Minister) on 31 August 2018 not to revoke the cancellation of the applicant’s Absorbed Person visa.[1] The delegate found that the applicant did not meet the character requirements of s 501 of the Migration Act 1958 (Cth) (the Act).
[1] The applicant is taken to have been granted an Absorbed Person visa by operation of law on 1 September 1994, pursuant to s 34 of the Migration Act 1958.
For the following reasons, the Tribunal has concluded that the decision not to revoke the cancellation of the applicant’s visa should be affirmed.
RELEVANT LEGISLATION
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because that person has a substantial criminal record (s 501(6)(a)), and has been sentenced to a term of imprisonment of 12 months of more (s 501(7)(c)).
Section 501CA(4) of the Act provides that the Minister may revoke the original mandatory cancellation decision if the person makes representations in accordance with the invitation, and the Minister is satisfied 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 Barber and Minister for Home Affairs (Migration)

Details

AGLC: Barber and Minister for Home Affairs (Migration) [2018] AATA 4304
Case: [2018] AATA 4304
Decision Date: 20 November 2018

CaseChat Overview and Summary

The applicant, Barber, sought to have the cancellation of his absorbed person visa revoked, but the Minister for Home Affairs (Migration) refused to do so. The matter came before the Tribunal, which was required to consider whether there was another reason why the original decision to cancel the visa should be revoked.

The Tribunal was tasked with determining whether the applicant met the character test under section 501 of the Migration Act 1958 (Cth) and, if not, whether there was another reason to revoke the cancellation of his visa. In making this determination, the Tribunal was bound to apply Ministerial Direction No. 65, which outlines the considerations for such decisions, including the protection of the Australian community, the best interests of minor children, expectations of the Australian community, and the applicant's ties to Australia.

The Tribunal's reasoning focused heavily on the primary consideration of protecting the Australian community from criminal or other serious conduct. It noted that the applicant had an extensive criminal history, appearing before courts on approximately 40 occasions and being convicted of over 110 offences between 1987 and 2018. These convictions included serious violent offences and drug offences, with courts having previously described his record as "appalling" and "shocking." The Tribunal found that the nature and seriousness of the applicant's conduct, coupled with the likelihood of re-offending, presented an unacceptable risk to the Australian community. While other considerations were noted, the Tribunal gave greater weight to the primary considerations as mandated by Ministerial Direction No. 65.

Ultimately, the Tribunal affirmed the decision not to revoke the cancellation of the applicant's absorbed person visa, finding that he did not meet the character test and that there was no other reason to set aside the original decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the stated reasons, the Tribunal finds that the applicant does not meet the character test as defined in s 501 of the Act. In consideration of the evidence as a whole and given the Tribunal’s assessments of the Primary and Other Considerations in Direction No. 65, the Tribunal has decided to affirm the decision not to revoke the cancellation of the applicant’s Absorbed Person visa.DECISION The Tribunal affirms the decision not to revoke the cancellation of the applicant’s Absorbed Person visa.

Ratio Decidendi

Legal Principle Established

Of particular relevance to the exercise of discretion is the statement in the Direction that “primary considerations should generally be given greater weight than other considerations”.[11]THE PRIMARY CONSIDERATIONS:[11] Ibid at 8(4).a) Protection of the Australian community from criminal or other serious conduct: Paragraph 13.1.2 of Direction No. 65 states:1. In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.2. In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:(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 (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). Paragraph 13.1 of the Direction has two limbs to be considered by the Tribunal, namely, the nature and seriousness of the conduct to date and the risk to the Australian community in case the applicant commits further offences or engages in other serious conduct. The evidence before the Tribunal indicates that between August 1987 and April 2018, the applicant appeared before the Courts on approximately 40 occasions, two of which are related to appeals. He was found guilty and/or convicted of over 110 separate offences, including multiple and repeated offences. The convictions include violent offences such as assault occasioning actual bodily harm, assaulting a police officer in execution of duty, and common assault. The convictions also include drug offences such as possession of heroin and/or other prohibited drugs, failing to appear, using an offensive weapon, larceny, break and enter, stealing, obtaining money by deception, driving with high range of prescribed level of alcohol, negligent driving, driving while license suspended. The respondent contends that the applicant’s offences are objectively serious and that since being found guilty of his first criminal offence in August 1987, the applicant’s criminal offending has increased in seriousness. In the course of the hearing, the applicant accepted that a number of the offences are serious. The seriousness of the applicant’s conduct has been commented upon on numerous occasions by the Courts. On 7 June 2004, the New South Wales Court of Criminal Appeal referred to the applicant’s criminal history. The Court described his history as “an appalling record”.[12] On 6 August 2004, his Honour Acting Judge JX Gibson of the District Court of New South Wales referred to the applicant as having “a shocking record, as it had been agreed, and he is not entitled to a great deal of mitigation in relation to that record”.[13] [12] Exhibit A – G Documents, p. 54.[13] Ibid, p. 57.