MIGRATION – non-revocation of mandatory cancellation of visa – visa mandatorily cancelled under s 501(3A) – Applicant did not pass character test and was serving a term of imprisonment - whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – Considerations in Direction No. 65 - discretion should not be exercised to revoke visa cancellation – decision under review affirmed.
Legislation Migration Act 1958 (Cth), ss 499, 500, 501, 501CA
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (the “Direction”)
REASONS FOR DECISION
Senior Member T. Tavoularis
28 September 2017
INTRODUCTION
This matter relates to an application for review filed by Michael William Bartlett (“the Applicant”) on 18 July 2017. The decision under review is the decision of a delegate of the Minister for Immigration and Border Protection (“the Minister” or “the Respondent”) dated 7 July 2017. The delegate’s decision, pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), was to not revoke the original decision.[1]
[1] The original decision being the mandatory visa cancellation by virtue of s 501(3A) of the Migration Act 1958 (Cth).
The Tribunal has jurisdiction to review the decision of the delegate under section 500(1)(ba) of the Act.
BACKGROUND
The Applicant is a citizen of New Zealand. He first arrived in Australia on 1 March 1982 when he was 16 years old.[2] He has since returned to New Zealand twice.
[2] See Exhibit 3, ‘Section 501 – G documents’, G15, p 88.
The Applicant last re-entered Australia on 25 February 1996 and was granted a Class TY Subclass 444 Special Category (Temporary) visa (“the visa”) upon arrival.[3] He has been here since.
[3] See Exhibit 3, G15, p 87.
This matter concerns the circumstances surrounding the mandatory cancellation of the Applicant’s visa and the subsequent refusal of the Minister’s delegate to revoke that cancellation.
The Applicant has accumulated quite an extensive history of criminal offending in Australia that is reflected in his eight page National Police Certificate.[4] I will summarise his offences later in my consideration but most relevantly for the purposes of this matter, the Applicant was convicted and sentenced for 32 offences on 13 June 2013 relating to: fraud, forgery, utter forged document, obstructing a police officer, serious assault of a police officer, stealing, burglary and commit indictable offence, possess cannabis, and breach of bail (to name a few). For these offences…
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
Bartlett v The Minister for Immigration and Boarder Protection (Migration) [2017] AATA 1561
Case
[2017] AATA 1561
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal to the Administrative Appeals Tribunal by a New Zealand citizen against the mandatory cancellation of his visa and the subsequent refusal by the Minister's delegate to revoke that cancellation. The applicant had resided in Australia since 1996 and held a Special Category (Temporary) visa. His visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) on the grounds that he did not pass the character test due to a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more.
The Tribunal was required to determine whether to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation. In doing so, the Tribunal had to consider the principles outlined in Direction No. 65, particularly the primary consideration of protecting the Australian community from criminal or other serious conduct. This involved assessing the nature and seriousness of the applicant's past conduct, the risk to the community should he re-offend, and the cumulative effect of his repeated offending.
The Tribunal found that the applicant's criminal history was extensive and serious, encompassing a range of offences including fraud, forgery, assault of a police officer, and drug offences, resulting in multiple custodial sentences totalling over 52 months. The Tribunal noted that the applicant had continued to offend despite receiving warnings and concessions from sentencing courts. Applying the principles of Direction No. 65, the Tribunal concluded that the primary consideration of protecting the Australian community weighed heavily in favour of not revoking the visa cancellation. Other considerations did not sufficiently outweigh this primary concern.
Consequently, the Tribunal affirmed the decision under review, meaning the mandatory cancellation of the applicant's visa was upheld.
Orders
Orders of the court
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Background
Background to the litigation
The Tribunal has jurisdiction to review the decision of the delegate under section 500(1)(ba) of the Act. BACKGROUND The Applicant is a citizen of New Zealand. He first arrived in Australia on 1 March 1982 when he was 16 years old.[2] He has since returned to New Zealand twice. [2] See Exhibit 3, ‘Section 501 – G documents’, G15, p 88. The Applicant last re-entered Australia on 25 February 1996 and was granted a Class TY Subclass 444 Special Category (Temporary) visa (“the visa”) upon arrival.[3] He has been here since. [3] See Exhibit 3, G15, p 87. This matter concerns the circumstances surrounding the mandatory cancellation of the Applicant’s visa and the subsequent refusal of the Minister’s delegate to revoke that cancellation. The Applicant has accumulated quite an extensive history of criminal offending in Australia that is reflected in his eight page National Police Certificate.[4] I will summarise his offences later in my consideration but most relevantly for the purposes of this matter, the Applicant was convicted and sentenced for 32 offences on 13 June 2013 relating to: fraud, forgery, utter forged document, obstructing a police officer, serious assault of a police officer, stealing, burglary and commit indictable offence, possess cannabis, and breach of bail (to name a few). For these offences he was sentenced to a total effective sentence of two years imprisonment. While committing these offences, the Applicant simultaneously breached earlier bail conditions and was returned to custody a number of times. At the time of sentencing on 13 June 2013 he was granted a parole release date of 30 July 2013. However, on 7 November 2013 he breached those parole conditions by committing the offences of: (1) failure to properly dispose of needle and syringe, and (2) possess property suspected of having been used in connection with the commission of a drug offence. He was then sentenced for these offences at the Cleveland Magistrates Court on 5 December 2013, receiving a conviction and fine of $200.[4] See Exhibit 3, G10, pp 57 - 64. It should also be noted that the parole granted to him on 30 July 2013 was suspended on 10 October 2013 and he was returned to custody on 7 November 2013. He received the benefit of various re-releases on Court Ordered Parole. His parole was cancelled on 9 March 2015 and he was later returned to custody. His sentence was fully discharged on 25 April 2017. On 1 February 2017 the Applicant was notified that his visa has been cancelled pursuant to the provisions of s 501(3A) of the Act.[5] The Minister was satisfied that the Applicant did not pass the character test as he had a ‘substantial criminal record’ as defined by s 501(7)(c) of the Act, having been sentenced to a term of imprisonment of 12 months or more. The Minister was also satisfied that at the time the Applicant was serving a sentence of imprisonment on a full time basis in a custodial institution. [5] See Exhibit 3, G3, p 16. The Applicant was invited to make representations to seek revocation of the mandatory cancellation decision in accordance with sections 501CA(3)(b) and 501CA(4)(a) of the Act.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
There is no doubt that on the basis of his offending, the Applicant does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in Direction No. 65. Primary considerations A and C weigh heavily in favour of non-revocation. I have assigned very little, if any, weight to Primary Consideration B. I do not consider that any of the ‘Other Considerations’, alone or combined, assist the Applicant to any sufficient degree, certainly not to the extent they would outweigh the Primary and Other Considerations which favour non-revocation.DECISION For the reasons outlined above, I affirm the decision under review.
Ratio Decidendi
Legal Principle Established
Paragraph 6.3 of the Direction sets out at a number of principles that should inform the decision maker’s consideration. I note that these principles have been accurately cited at paragraph [22] of the Respondent’s SFIC.Primary Consideration A: Protection of the Australian Community from Criminal or Other Serious Conduct. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that 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.(a) The Nature and Seriousness of the Applicant’s Conduct to Date When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1 of the Direction specifies that decision-makers must have regard to a number of factors. Relevantly, amongst those factors are: (a) the principle that violent crimes are viewed very seriously; (b) the principle that crimes committed against vulnerable members of the community, or government representatives or officials due to the position they hold, or in the performance of their duties, are serious; (c) the sentence imposed by the courts for a crime or crimes; (d) the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; and (e) the cumulative effect of repeated offending. The Applicant’s conduct to date is clearly of a serious nature. After some initial cavilling, the Applicant eventually conceded the seriousness of his offending at the hearing. In my view, his history of offending is both serious and appalling. Putting aside for a moment the repeated nature of the offending, the Applicant has contrived to continue his offending in circumstances where he has received multiple warnings and/or concessions from the sentencing courts in the form of community service orders, grants of bail, probation and previous terms of imprisonment. There is no escaping the seriousness of his criminal history. We are talking about – in custodial sentences alone – a total period that is easily in excess of 52 months of custodial time.[18] It is not clear from the sentencing record whether some of the custodial sentences were ordered to be served concurrently or were otherwise suspended. The salient point is that the offences were committed in the first place and that they subsequently attracted a sentencing regime of custodial time.[18] With reference to the sentences handed down on 12 February 2002, 12 March 2008, 13 June 2013, if one has regard to the highest or “head sentence” imposed on each of those three dates the custodial time comes to 52 months calculated as follows 16 months, 12 months and 24 months respectively. Of course, if a concurrent regime of sentencing does not in fact apply, and each individual sentence appearing in this Applicant’s criminal history was added the total custodial time would be at least twice this figure.