Barton and Minister for Home Affairs (Migration)

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Barton and Minister for Home Affairs (Migration) [2018] AATA 3261 (6 September 2018)

Division:GENERAL DIVISION

File Number(s):      2018/3483

Re:Daena Barton

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:6 September 2018

Place:Sydney

The decision under review is affirmed

.........................[sgd]...............................................

Chris Puplick AM, Senior Member

CATCHWORDS

MIGRATION – mandatory visa cancellation – character test – discretion to revoke mandatory visa cancellation – substantial criminal record – sentence of imprisonment –  driving offences – domestic violence offences  – repeated breaches of apprehended violence orders – drug misuse –– mental health issue –  protection of the Australian community –  best interests of minor children in Australia affected by the decision – expectations of the Australian community – decision affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

Mental Health Act (NSW) s 33

CASES

Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755

Ahori v Minister for Immigration and Border Protection [2017] AATA 601

BFXK and Minister for Immigration and Border Protection [2018] AATA 886

Darwich and Minister for Immigration and Citizenship [2007] AATA 2106

Do and Minister for Immigration and Border Protection [2016] AATA 390

Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409

G v Minister for Immigration and Border Protection [2018] FCA 1229

Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774

Mahu and Minister for Immigration and Border Protection [2018] AATA 161

Mendoza v Minister for Immigration and Border Protection Citizenship) [2018] AATA 686

Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] 33 ALD 13

Nevistic v Minister for Immigration and Ethnic Affairs [1981] 34 ALR 639

Oluwafemi and Minister for Home Affairs [2018] AATA 690

Prasad v Minister for Immigration and Border Protection [2017] AATA 1506

Re Drake and Minister for Immigration and Ethnic Affairs (No.2)[1979] 2 ALD 634

Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306

Rowe v Minister for Home Affairs [2018] AATA 2708

Sharma v Minister for Immigration and Border Protection[2015] AATA 608

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNYQ 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

REASONS FOR DECISION

Chris Puplick AM, Senior Member

6 September 2018

BACKGROUND

  1. Daena Barton is a citizen of New Zealand. He is 37 years old and arrived in Australia on 3 November 2002[1] holding a Subclass 444 (Special Category) visa.

    [1] Section 501- G Documents at [74].

  2. At the time of his arrival (aged 21) he already had several convictions for offences in New Zealand. These involved possession of cannabis and drug equipment; improper use of a document (unspecified); breach of a periodic detention order and burglary. He was ordered to pay…

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Details
Case
[2018] AATA 3261
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by Mr Barton against a decision to affirm the mandatory cancellation of his visa. Mr Barton's visa was cancelled under the character provisions of the *Migration Act 1958* (Cth) due to his substantial criminal record, which included driving offences, domestic violence offences, repeated breaches of apprehended violence orders, and drug misuse. The primary dispute before the Administrative Appeals Tribunal (AAT) was whether there was another compelling reason to revoke the mandatory visa cancellation, despite Mr Barton failing the character test.

The legal issues before the AAT were whether Mr Barton had established "another reason" why the mandatory visa cancellation should be revoked, as contemplated by section 501CA(4)(b)(ii) of the *Migration Act 1958* (Cth). In determining this, the AAT was required to consider various factors, including the strength, nature, and duration of Mr Barton's ties to Australia, the best interests of any minor children affected by the decision, the expectations of the Australian community, and the protection of the Australian community. The AAT was also bound to follow the requirements set out in Direction No. 65, which guides the exercise of discretion in such matters.

The AAT reasoned that while Mr Barton had significant ties to Australia, including lengthy residence and long-term employment in the construction industry, these were outweighed by other considerations. The Tribunal noted that Mr Barton would be eligible for government support and welfare in New Zealand, where he was born and raised, and would have access to comparable health services. Furthermore, the AAT found that Mr Barton's submissions did not establish any specific impediments to his return to New Zealand. The Tribunal concluded that none of the "other considerations" operated so as to favour Mr Barton's application for revocation, and therefore, the mandatory cancellation of his visa was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Once the original decision has been made the Minister must notify the person and give them an opportunity to respond to it. Section 501CA of the Act outlines the process:(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. (2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for making the original decision; and (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (3)As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. It is up to the individual concerned to place before the Minister whatever information they think relevant for the Minister’s consideration. Upon receipt of such representations, the provisions of sections 501CA(4) and (5) come into effect as follows:(4)The 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.(5)If the Minister revokes the original decision, the original decision is taken not to have been made. A decision on such an application is, in most circumstances, made by a delegate of the Minister. In the Applicant’s case, this review decision, as noted above, resulted in a determination that the mandatory revocation should not be set aside. This is the reviewable decision now before the Tribunal. In coming to their decision, the Delegate noted that since the Applicant had, by definition, failed the character test, it was required that the Delegate consider whether there was “another reason” for the revocation to be set aside. In doing so the Delegate followed the requirements set out in Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (the Direction) (discussed below) in coming to their conclusion. This is because under s 499(1) of the Act the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (s 499(2A) of the Act).

Ratio Decidendi

Legal Principle Established

Mr Barton’s strength, nature and duration of ties consist of lengthy residence in Australia and long-term participation in the workforce. In relation to this matter the Tribunal notes that Mr Barton worked in the construction industry for many years until such time as problems with his wrists made this impossible. He was scheduled for surgery but this did not take place due to his incarceration. Indeed it appears that Mr Barton was fully employed in various construction and supervisory roles from 2002 to January/February 2016 when he was forced to stop work due to the wrist problems. When he ceased work he took on a more active role in the care of his family and he claimed, in oral evidence, that he stopped using drugs, although this is not entirely consonant with other evidence from other sources. He does not appear to have any other ties with things such as local community groups or churches and has made no obvious contribution to other forms of community welfare or development. There would be some impediments if Mr Barton were removed. However the proposed removal would be to New Zealand where Mr Barton was born and raised and has lived more than half his life. In New Zealand he would be eligible for various forms of government support and welfare (as a citizen) which are not available to him in Australia. He would have access to health services at no lesser level or standard than is the case in Australia, and were his daughters ever to join him there they would be fully eligible for such levels of support as both are New Zealand citizens themselves.[79][79] Section 501- G Documents at [47]. Once problems with his wrists are addressed there is no reason to believe that Mr Barton would be unable to find employment in New Zealand. He is relatively young and fit and his work history in Australia demonstrates that he enhanced his skills over a period of years and did so in an industry (construction) which is always in need of skilled workers. In his own submission to the Department seeking revocation of the visa cancellation Mr Barton that he had no diagnosed medical conditions, current medical treatment regimes[80], the prospect of criminal charges pending or fears for his safety, or other problems should he be returned to New Zealand.[81][80] See this Tribunal’s comments in Rowe v Minister for Home Affairs [2018] AATA 2708 at [99].[81] Section 501- G Documents at [52]. The Tribunal notes, with interest, that on his incoming passenger card dated 3 November 2002 he gave his “Nationality as shown on passport” as “Maori.”[82] It may well be that if Mr Barton regards this identification as an important part of his self-definition then return to his community in New Zealand may be potentially beneficial, although that must be taken as only a matter of speculation.[82] Section 501- G Documents at [70] It cannot be concluded that any of the “other considerations” operate so as to favour Mr Barton’s application.CONCLUSION Mr Barton’s visa was cancelled under mandatory provisions of the Act and the revocation of this cancellation can only be made if there is “another” compelling reason to do so.