Baruchi (Migration)

[2021] AATA 200

Baruchi (Migration) [2021] AATA 200 (29 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mahendra Baruchi

CASE NUMBER:  1933407

DIBP REFERENCE(S):  BCC2019/4369968

MEMBER:Nicole Burns

DATE:29 January 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Special Category (Temporary) (Class TY) Subclass 444 visa.

Statement made on 29 January 2021 at 10:35am

CATCHWORDS

MIGRATION – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – behaviour concern non-citizen – visa history, including two deportations and one removal – no evidence of reason for first deportation – other visas granted and time as resident – no criminal record or character concerns – Australia citizen or resident children and grandchildren – no exclusion period specified or discretion to take into account passage of time – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1)(d), 32(2)(a)(ii), (c), 42(2A), 65

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 November 2019 to refuse to grant the visa applicant a Special Category (Temporary) (Class TY) Subclass 444 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 31 August 2019. The delegate refused to grant the visa on the basis that they were satisfied the applicant was a ‘behaviour concern non-citizen’ (defined in s.5(1) of the Act) given he had been deported from Australia before. He therefore did not satisfy s.32 of the Act.

3. The applicant appeared before the Tribunal on 4 December 2020 via teleconference (from New Zealand) to give evidence and present arguments related to the issues in his case. The Tribunal also received oral evidence from his daughter (and representative for the purposes of the review), Ms Rina Seth.

4. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The hearing proceeded without any notable communication problems.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5. The Tribunal notes on 4 December 2020, after the hearing, it received a handwritten letter from the applicant asking for more time to obtain legal advice.  The Tribunal agreed to  adjourn the review, indicating in a letter[1] to the applicant that it will not decide the case until after 13 January 2021 during which time he could provide further submissions.  However, in subsequent email correspondence from the applicant and Ms Seth they indicated that they were no longer pursuing this for several reasons, including because obtaining legal advice at that time of the year was hard, they had done some research themselves (addressed later in the decision record), Ms Seth wanted her parents to be able to visit for Christmas (or thereabouts) and she would rather save money for their airfares.  The applicant stated in an email dated 18 December 2020 that it was ‘ok’ for the Tribunal to decide before Christmas, or the end of year, and if not, by mid-January 2021.

   [1] Dated 9 December 2020.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

7. Under s.42(2A) of the Act, a New Zealand citizen can travel to Australia without a visa if he or she holds and produces a current New Zealand passport. Section 32 of the Act provides that New Zealand citizens are eligible to be granted a Special Category (Subclass 444) visa if they hold a New Zealand passport that is in force and, among other things, they are not a health or ‘behaviour concern non-citizen’.  

8. The expression ‘behaviour concern non-citizen’ is defined in s.5(1) of the Act and essentially includes a non-citizen who has been convicted of one or more crimes and is sentenced to imprisonment for at least one year, or to periods that add up to at least one year. It also includes a non-citizen who has either been found guilty or acquitted of a crime committed while of unsound mind or has been removed or deported from Australia or another country or has been excluded from another country in certain circumstances.  Extracts of the relevant law are attached to this decision.

9. Eligibility under s.32 of the Act for a Special Category visa may arise even if the non-citizen is of behaviour concern but for reasons that do not warrant exclusion from Australia (consideration of an exclusion against circumstances prescribed in r.5.15 and r.5.15A(c)).  However, this does not apply in the applicant’s case as he was deported from Australia, not excluded (or from a country other than Australia).   

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant is a ‘behaviour concern non-citizen’ as defined in s.5(1) of the Act. 

11. Departmental records, as set out in the delegate’s decision, indicate the following relevant information about the applicant’s immigration history:

    ·He was deported from Australia on 31 August 1985.

    ·He returned to Australia on 16 November 1985 under the name ‘Mahendra Khatri’.  He applied for permanent residence on 31 August 1987 which was refused.  He was deported on 13 February 1988.

    ·The applicant arrived in Australia on 20 December 2000 as the holder of a New Zealand passport.  Given on arrival it was noted he had previously been deported he met the definition of ‘behaviour concern non-citizen’ and was not eligible for the grant of a Special Category visa. He was granted a Border visa and advised to obtain a visa prior to future arrival in Australia.  He arrived in Australia on 3 December 2003 without a visa and was refused entry.  He was removed from Australia on 4 December 2003.

    ·He arrived in Australia most recently on 9 June 2019 with his New Zealand passport as the holder of a Visitor (Subclass 600) visa.  He lodged a Special Category visa application on 31 August 2019 (the subject of this review).

12. At the Tribunal hearing the applicant confirmed these aspects of his immigration history.  He gave evidence from New Zealand where he currently resides with his first wife (Jaitun) who holds a Special Category visa (both he and his wife are New Zealand citizens). 

13. The applicant said he was born in India, moved to Fiji with his parents when young where he grew up and was a Fijian national.  He married Jaitun in Fiji and they divorced.  He then married an Australian citizen (Damyanti) in 1991 and moved to Australia where he lived from the early nineties until around 1994/95 before moving to New Zealand and resuming his relationship with Jaitun.  He obtained permanent residency in Australia through his marriage to Damyanti.  His three adult children[2] reside in Australia: two are citizens and the other is a permanent resident of New Zealand, residing here as the holder of a Special Category visa.  Several of the applicant’s grandchildren also reside in Australia and are citizens. 

    [2] Whose mother is Jaitun.

14. The applicant said he applied for the Special Category visa for ease of frequent travel between Australia and New Zealand in order to spend time with his children and grandchildren here, without the cost and hassle of applying for visitor visas each time.   

15. The applicant said he is not exactly sure why he was deported from Australia in 1985, noting it was so long ago, but thought it may have been because his visa had expired.   He returned to Australia later that year on a passport with a different name (which is actually his birth name[3]), given his earlier passport had expired.  He acknowledges that he made mistakes at these times but argued such mistakes were minor, he has already been punished, he has not repeated such mistakes or done anything to be classified as a major criminal with a substantial criminal record.  In fact, he has no criminal record, in Australia or New Zealand.   He also urged the Tribunal to consider many subsequent examples of his good character.

    [3] The applicant submitted a copy of his Indian birth certificate to the Tribunal.

16. In her oral evidence to the Tribunal, Ms Seth submitted that her father is no longer a ‘behaviour concern non-citizen’, noting he was deported 35 years ago and has not done anything ‘bad’ for decades.  She said he simply wants to be able to come and go – including being present at key family events – without restrictions, including being ‘interrogated’ by customs officials at the airport each time.  She said her father has always abided by relevant (visitor) visa conditions when visiting Australia. 

17. Ms Seth emphasised that her father is not a criminal, even though he made some mistakes in the past, and is of good character who provides ongoing support to his family.  She said he might have overstayed in the past, but that he does not have a ‘substantial criminal record’.  She also questioned why his past history of deportation is an issue in respect of the Special Category visa yet was not when he was granted a Partner visa years ago (subsequent to his deportation). 

18. The applicant and Ms Seth provided written statements and several supporting documents to the Tribunal in support of the review application both pre and post hearing.  These included letters of support from the applicant’s three children who reside in Australia as well as photographs of the applicant and what appears to be his grandchildren.

    Is the applicant a ‘behaviour concern non-citizen’?

19. It is not in dispute that the applicant was deported from Australia in 1985 and 1988 and ‘removed’ from Australia in 2003.  Departmental records indicate as such and the applicant confirmed that was the case in his written submission and oral evidence to the Tribunal.  The Tribunal does not have before it any documentation pertaining to the initial (or subsequent) deportation decision (and reasons), the applicant does not appear to have such documentation, and it remains unclear why he was deported in 1985.  The applicant believes it was for visa related reasons, possibly overstaying.  He is adamant it was not for any serious criminal matters, distinguishing his case from others who do not meet the ‘behaviour concern non-citizen’ definition.  In a post hearing submission, he was critical of the delegate who failed to consider the reasons for his deportation, seriousness and how long ago the deportation took place, as well as whether he has shown remorse or reformed, or if continuation of visa restrictions was still necessary or justified (among other things).

20. Despite the lack of clarity regarding the specific reasons and circumstances surrounding the applicant’s deportation (and removal), the Tribunal notes it is not necessary to be cognisant of the reasons for the deportation, only to be satisfied that deportation occurred.  The Tribunal’s task is to consider whether or not the applicant meets the definition of a ‘behaviour concern non-citizen’, which is defined in s.5(1)(d) the Act and includes someone who ‘has been removed or deported from Australia or removed or deported from another country’.  Based on the evidence before it, the Tribunal is satisfied the applicant was deported (and removed) from Australia in the past and therefore meets the definition of a ‘behaviour concern non-citizen.’

21. In a post hearing email to the Tribunal, the applicant questioned whether his deportation was relevant, noting advice from his own research undertaken[4] indicating deportation can occur if convicted of serious crimes which leads to 12 months or more imprisonment.  Whilst there is no indication before the Tribunal that the applicant was deported for a serious crime, the fact remains that he was deported and therefore meets the definition of ‘behaviour concern non-citizen’.  

    [4] Including from the NSW Council for Civil Liberties (NSWCCL).  

22. At hearing and in a post hearing submission, the applicant criticised the delegate for failing to take into account how long ago the deportation took place, and questioned whether there was a time period in which one’s past deportation was no longer an impediment to be granted a Special Category visa, noting he was first deported 35 years ago.  In his written submission he states that the deportation exclusion period is normally up to five or 10 years maximum and should have therefore been eased years ago in his case.  The applicant has submitted that his own research into deportation indicates that deportation can be of a certain period and may be permanent but not that it must be permanent.

23. The Tribunal accepts the applicant was first deported from Australia 35 years ago, which is a reasonably long time ago.  However s.5(1)(d) of the Act does not specify a time period in which the deportation (or removal) must have taken place, and the Tribunal has no discretion to take into account the passage of time since deportation when determining whether or not the applicant is a ‘behaviour concern non-citizen’, as discussed at hearing. 

24. Such contentions have been expanded upon, along with several other arguments put forward by the applicant and Ms Seth in their written and oral submissions to the Tribunal about why the applicant should be granted the Special Category visa despite being deported many years ago, summarised as follows:

    a.The applicant’s deportation was the result of visa violations, not any serious criminal matters, in contrast to other parts of the definition of ‘behaviour concern non-citizen’ (a, b, c and e).  It is unreasonable and unjustified to keep holding the deportation history against the applicant.  Results of research into deportation reveal it is generally for serious crimes which require 12 months or more imprisonment.  Furthermore, the deportation has served its purpose of deterrent and punishment, and the applicant has been punished enough.

    b.The applicant did not enter Australia fraudulently in November 1985 on a passport with the name ‘Mahendra Khatri’ as that is his name on his Indian birth certificate (a copy of which was provided to the Tribunal) and page 3 of his Fijian passport indicates that he has also been known as ‘Baruchi’ (a copy of which was provided). The applicant thought it was his birth certificate name so therefore there was nothing wrong in using it.  He acknowledged that he also may have thought his previous passport had some ‘bad records’, so it may have been easier to get the visa and travel overseas with a new passport.  He apologised, stating it was a bad idea though he never wanted to misuse the passport for any major criminal activities or ‘fraudulently acquire fortune’.

    c.When he was refused re-entry into Australia in 2003 the applicant did not realise he was breaking the law and apologised for the (unintentional) mistake.  He just wanted a short stay in Australia whilst travelling from India to New Zealand and felt being a former Australian resident and holding a New Zealand passport, he was entitled to enter Australia.

    d.The applicant was an Australian permanent resident from 1991 to 1994/5, during which time he was an honest taxpayer without any issues.  He withdrew his application to become an Australian citizen in 1993/94, around the time he left for New Zealand.  He became a New Zealand citizen after leaving Australia because of problems he had sponsoring his children, claiming he had to ‘sacrifice’ his Australian permanent residency.  Later, when he enquired about his status at the Australian consulate in Auckland, he received written advice[5] that he could return to Australia once he had a New Zealand passport.  On the basis of this advice he did not apply for a resident return visa after leaving Australia to New Zealand, and arrived in Sydney on 20 December 2000, thinking he could temporarily visit Australia given he was a permanent resident in Australia, based on this advice, and because he had travelled to Australia in the late nineties twice with no problems.  The assurances from staff from the Australian consulate general should have been honoured.

    e.He has not breached any visa conditions or broken any Australian laws for 20 years; he is no longer a behaviour concern non-citizen and is not and never was a threat to the people of Australia.  He does not have any criminal record let alone a substantial criminal record (copies of police clearance certificates have been provided showing no criminal records in Australia or New Zealand), and he would pass the character test.  The ‘spent conviction rule’ should apply in the applicant’s case.

    f.He is very close to his three adult children and grandchildren (most of whom are Australian citizens[6]) who reside in Australia.  The delegate failed to take into consideration the social and psychological impact on him and his Australian relatives if the visa is refused.  The continued restrictions deny his basic human rights and are not fair or just.

    g.Travelling overseas has become so hard and expensive in the time of COVID-19  and as such the applicant may not be able to afford to travel to Australia more than once a year.

    h.The applicant used to donate blood in Australia from time to time.

    [5] A copy of a letter from the Australian Consulate General, Auckland dated 15 April 1999 was submitted.

    [6] Citizenship approval certificates for Devan and Rita were provided to the Tribunal.

25. The Tribunal has had regard to these submissions and accepts many of the contentions put forward, including that the applicant does not have a substantial criminal record, his reasons for wanting the Special Category visa, and the potential impact on his children and grandchildren if he is unable to travel easily between Australia and New Zealand.  However, as explained at hearing, the Tribunal does not have discretionary power to consider these factors and considerations, including the reasons and context surrounding his past deportation and removal.  Nor can the Tribunal consider the positive aspects of the applicant’s subsequent immigration history and character and the potential impact of a negative decision on his Australian citizen children and grandchildren, among other things. 

26. The applicant and Ms Seth questioned why there is no discretionary power to consider such matters in this case.  They also asked why his deportation history was not an issue when the applicant was granted a spouse visa in 1991 or when the former Migration Review Tribunal approved his visitor visa application in 2005.  As noted at hearing, spouse visa applications and visitor visa applications have different criteria than the Special Category visa.

27. The Tribunal notes in a post hearing email Ms Seth stated that her father was a ‘small but regular’ donor to an animal welfare society in Australia, and some charities in Fiji and indicated they could provide character references for him from Australia, New Zealand, and Fiji.  Given the Tribunal has no discretion to consider such factors in determining whether or not the applicant is a ‘behaviour concern non-citizen’, the Tribunal considers provision of such character references unnecessary.  They would not alter its findings and facts of the case, as set out above.

28. The Tribunal also notes several requests have been made by the applicant’s children including to ‘pardon’ him, ‘waive’ his re-entry ban and to deal with his case with compassion.  The Tribunal understands their concerns and desire for their father to be able to obtain the visa.  However, the Tribunal does not have the power to ‘pardon’ or ‘waive’ the visa requirements in this case.  As noted, its task is to determine whether or not the applicant is a ‘behaviour concern non-citizen’ as defined in the Act in order to satisfy s.32(2), a key criterion for a Special Category visa.

1. At hearing the applicant said even a conditional visa of three to six months should be ‘ok’, noting he is well settled in New Zealand and has no intention of staying in Australia longer than necessary.  Additionally, in a post hearing email Ms Seth asked that the Tribunal consider approving at least a three-month visitor visa for her father, noting that there is already a valid application in place.  However, the Tribunal can only review and decide on the matter before it – that is in respect of the Special Category visa, not in relation to visitor visas (or other visas).

2. For the reasons set out earlier, the Tribunal is satisfied the applicant is a ‘behaviour concern non-citizen’ under paragraph (d) of the s.5(1) definition.  It follows that he cannot meet the s.32(2)(a)(ii) or s.32(2)(c) requirements for a Special Category visa.

   DECISION

3. The Tribunal affirms the decision not to grant the applicant a Special Category (Temporary) (Class TY) Subclass 444 visa.

   Nicole Burns
   Member

   ATTACHMENT – extract of relevant law:

   Section 32 Special category visas

   (1)  There is a class of temporary visas to be known as special category visas.

   (2)  A criterion for a special category visa is that the Minister is satisfied the applicant is:

   (a)  a non-citizen:

   (i)  who is a New Zealand citizen and holds, and has presented to an officer or an authorised system, a New Zealand passport that is in force; and

   (ii)  is neither a behaviour concern non-citizen nor a health concern non-citizen; or 

   (b)  a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or

   (c)  a person of a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.

   (3)  A person may comply with subparagraph (2)(a)(i) by presenting a New Zealand passport to an authorised system only if:

   (a)  the New Zealand passport is of a kind determined under section 175A to be an eligible passport for the purposes of Division 5 of Part 2; and

   (c)  before the person is granted a special category visa, neither the system nor an officer requires the person to present the passport to an officer.

   3)  In this section:

   acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution. 

   behaviour concern non-citizen means a non-citizen who:

   (a)  has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or

   (b)  has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:

   (i)  any period concurrent with part of a longer period is disregarded; and

   (ii)  any periods not disregarded that are concurrent with each other are treated as one period;

   whether or not:

   (iii)  the crimes were of the same kind; or

   (iv)  the crimes were committed at the same time; or

   (v)  the convictions were at the same time; or

   (vi)  the sentencings were at the same time; or

   (vii)  the periods were consecutive; or

   (c)  has been charged with a crime and either:

   (i)  found guilty of having committed the crime while of unsound mind; or

   (ii)  acquitted on the ground that the crime was committed while the person was of unsound mind;

   (d)  has been removed or deported from Australia or removed or deported from another country; or

   (e)  has been excluded from another country in prescribed circumstances;

   where sentenced to imprisonment includes ordered to be confined in a corrective institution.