Barghachoun and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 2492

Barghachoun and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2492 (8 August 2022)
Division:GENERAL DIVISION
File Number:2022/4150
Re:Imad Abdulkades Barghachoun
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member J Rau SC
Date:08 August 2022
Place:Adelaide

The decision under review is affirmed.
........................[sgnd]............................................
Senior Member J Rau SC
CATCHWORDS
MIGRATION – mandatory cancellation of Class BF Transitional (permanent) visa (“his visa”) under section 501 (3A) where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancelation under section 501CA (4) should be exercised – consideration of Ministerial Direction No. 90 - decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
MIEA V Singh (1997) FCR 288
Minister for Home Affairs v Omar (2019) FCAFC 188
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau SC
08 August 2022
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA (4) of the Migration Act 1958 (Cth) (“the Act”) on 12 May 2022, not to revoke the mandatory cancellation of his visa.
The Applicant’s visa was cancelled on 25 October 2016 under section 501 (3A) on the basis that he did not pass the character test.[1]
[1] Exhibit 4, G32, Attachment R, pp 261-267.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of a conviction on 13 December 2012, in the District Court of NSW. He was initially sentenced to eight and a half years imprisonment. He was to be eligible for parole on 19 February 2019.[2] He appealed the severity of the sentence. The NSW Court of Criminal Appeal reduced the sentence to 6 years imprisonment. (20 August 2013 until 19 August 2019). This made him eligible for parole on 20 February 2017.[3] The Applicant has been in Immigration Detention since that time. This is not the Applicant’s only sentence of imprisonment.[4]
[2] Ibid, G3, Attachment A, p 77 & G10, Attachment C, p 165.
[3] Ibid, G3, Attachment A, pp 76-77 & G9, Attachment B, 153.
[4] See “Attachment A” National Police Certificate (24 October 2016), pp 76-80, “Attachment B”, pp 81-91, Australian Criminal Intelligence Commission Reports (1 June 2020) and (6…

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.

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Details

AGLC: Barghachoun and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2492
Case: [2022] AATA 2492
Decision Date: 8 August 2022

CaseChat Overview and Summary

This matter concerned an application by Imad Barghachoun for review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to cancel his Class BF Transitional (permanent) visa under section 501(3A) of the *Migration Act 1958* (Cth) on character grounds, due to his substantial criminal record. The Administrative Appeals Tribunal was required to determine whether the discretion to revoke the visa cancellation under section 501CA(4) of the Act should be exercised.

The primary legal issue before the Tribunal was whether there was "another reason" within the meaning of section 501CA(4)(b)(ii) of the *Migration Act 1958* (Cth) to revoke the mandatory cancellation of Mr Barghachoun's visa. This required the Tribunal to consider Ministerial Direction No. 90, which sets out the framework for exercising this discretion, and to weigh the relevant factors in determining whether to revoke the cancellation.

The Tribunal's reasoning focused on the application of Ministerial Direction No. 90. It found that while the applicant had presented certain personal circumstances, including his family ties in Australia and his stated inability to return to Lebanon, these factors did not constitute "another reason" sufficient to revoke the cancellation. The Tribunal concluded that the proper application of the Direction favoured not exercising the discretion to revoke the cancellation.

Consequently, the Tribunal affirmed the decision to cancel Mr Barghachoun's visa.

Orders

Orders of the court

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Background

Background to the litigation

I note that the Applicant’s former partner Kylie Gunns and his biological son Bilal Gunns did not give evidence, nor did they provide any statement in support of the Applicant. Background Facts The Applicant was born on 11 March 1970. He is a citizen of Lebanon. The Applicant came to Australia in 1983. He came here with his father, mother and three brothers.[7] They joined his three sisters who were already in Australia. His father died in 2015. His mother is in her late 80’s and is terminally ill, suffering from heart disease and dementia.[8] [7] Exhibit 4, G59, Attachment AJ1, p 374.[8] Ibid, G99, Attachment BD, p 768 & G108, Attachment BM, p 1052. The Applicant spent 5 or 6 years at school in Lebanon. In Australia he attended Granville Boys High School leaving halfway through year 9.[9] He was badly behaved at school, getting into fights. He was suspended from school several times and was expelled when he was 14 years and 9 months old.[10] He did not tell his parents about this but commenced TAFE training as a mechanic. He did not complete his training due to incarceration for his criminal offending. He has since that time, whilst not incarcerated, had intermittent work. He has worked as a rigger, operating cranes, a truck driver and done other unskilled work.[9] Exhibit 9, p 605.[10] Exhibit 4, G91, Attachment AW2, p 730. The Applicant has an extensive criminal history, commencing as a juvenile in 1986, 3 years after his arrival in Australia. Between 1988 and 1994, the Applicant was convicted of multiple offences including road traffic offences, driving whilst disqualified, driving an unregistered and uninsured vehicle, breaking and entering, negligent driving, resist arrest, assault police and receiving.[11] A copy of an the Applicant’s offending history is attached and marked “Annexure C”.[12][11] Ibid, G4, Attachment A1, pp 84-85.[12] Ibid, G4, Attachment A1, pp 81-85 and G5, Attachment A2, pp 86-91. See also Exhibit 9, pp 1-41. On 22 May 1988 the Applicant was convicted of stealing a welder.[13] The fact sheet dated 24 May 1988, states:“At about 9.30pm 22.5.88 the defendant and co-offender (Bik TRAD) went to the Caltex Service Station, Fairfield Rd Wet Guildford. Both men then climbed onto the roof of the service station and the defendant removed several glass loovers from the windows with the assistance of the co-offender. He then lowered himself down into the main workshop area of the garage, where he removed a MigMate brand still on the roof, the two males then left the garage on foot carrying the welder in their hands. They walked across Fairfield road and were observed by a security guard who was making his rounds in guard then approached the two offenders, who were standing next to motor vehicle number JOM-878 owned by co-offender (TRAD). After being questioned by the security guard, the co-offender was grabbed by the security and the defendant left the scene in motor vehicle JOM-878. He later attended the Merrylands Police Station on Monday 23 May 1988.”[14][13] Ibid, p 567. [14] Ibid.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In my view, the proper application of the Direction favours the Tribunal not exercising the discretion to revoke the cancellation of the Applicant’s Visa. I find that there is not “another reason” pursuant to s501CA (4)(b)(ii) to revoke the original decision.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

On 21 May 2010, the Applicant was again advised that his visa may be cancelled on character grounds. After consideration he was issued with another warning in these terms:“On 21 May 2010 the Department of Immigration and Citizenship notified you that the visa which authorises your continued stay in Australia may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion. Your current Class BF transitional (permanent) visa will continue to provide you with permission to remain in and re-enter Australia. However the delegate decided that you are to be given the following formal warning. Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard if this warning will weight heavily against you if your case is reconsidered. Some Australian government forms (including the Incoming Passenger Card completed when entering Australia) contain questions about criminal convictions and outstanding charges. It is important that you answer these correctly, declaring all criminal convictions and outstanding charges, as failure to do so would breach the law and could have serious consequences, including:·refusal of entry to Australia;·refusal of citizenship;·cancellation of your visa;·removal from Australia, and ·criminal prosecution.I, Imad Barghachoun acknowledge that I have received the Notice of decision not to cancel visa under subsection 501 (2) of the Migration Act 1958. I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be considered.”[85][85] Exhibit 4, G18, Attachment J, pp 205-6. The Applicant says of this warning:“In relation to the 2010 warning, I attended the office of my solicitor John B Hajje for approximately half an hour. He told me “you won’t be deported” and made it out like it all a misunderstanding. He never really told me about how serious it was. To me permanent means permanent. I didn’t understand the difference between citizen and permanent resident. I gave him $2000 and I did no really hear from him much after that. I do not recall signing the notice of decision not to cancel my visa. This time is the only time that I’ve really realise how serious this matter is, and that I can get deported. I realise that this is my last chance. I can’t go back to Lebanon. I will kill myself before I go back there.”[86][86] Ibid, G58, Attachment AJ, p 371, paras 36-37. I note that the Applicant was represented by lawyers at this time and that he made extensive representations through them. He signed an acknowledgement of notice under s501 on 31 August 2010.[87] [87] Ibid, G68, Attachment AM, pp 601-605 and G69. Attachment AM1, p 606.