BBFD and Minister for Home Affairs (Migration) - [2018] AATA 4479

BBFD and Minister for Home Affairs (Migration) [2018] AATA 4479 (3 December 2018)
Division:GENERAL DIVISION
File Number: 2018/5365
Re:BBFD
APPLICANT

Minister for Home Affairs And
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:3 December 2018
Place:Brisbane

The Tribunal affirms the decision under review
...........................[SGD].............................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – refusal of protection visa pursuant to s 501(1) - applicant does not pass the character test – considerations in Ministerial Direction N0. 65 – whether there is another reason for the discretion to refuse to grant the visa to not be applied – offences committed in New Zealand – offences committed in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB [2013] FCAFC 33
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Ministerial Direction No. 65
New Zealand 2016 Human Rights Report, Country Reports on Human Rights Practices for 2016, United States Department of State, Bureau of Democracy, Human Rights and Labor.
REASONS FOR DECISION
Senior Member Theodore Tavoularis
3 December 2018
INTRODUCTION

This is an application for review of the decision by a delegate of the Minister for Home Affairs (the “Minister” or “Respondent”) to refuse BBFD (“the Applicant”) a Protection (Class XA) visa, pursuant to s 501(1) of the Migration Act 1958 (Cth) (“the Act”).
Under s 500(1)(b) of the Act, this Tribunal has jurisdiction to review the decision made by the Minister’s delegate.
BACKGROUND
The Applicant was born in New Zealand and entered Australia for the ninth time on a fraudulently obtained passport on 19 March 2009.[1] On 3 October 2017, this Tribunal affirmed a decision of the delegate to refuse the Applicant’s Bridging visa application because she did not satisfy the character test.[2] This decision is not in relation to that visa. Rather, it is in relation to a decision of the delegate to refuse the Applicant’s Protection visa pursuant to section 501 of the Act because, as occurred with the Applicant’s Bridging visa application, it was found that the Applicant did not satisfy the character test. On

17 September 2018, the Applicant filed an application for review of the Delegate’s decision.[3]
[1]           Exhibit 4, G documents, G3, p. 175; p. 322.
[2]           Ibid, pp. 320 – 339.
[3]           Ibid, G1, pp. 1 -2.
The Tribunal heard this matter on 22 November 2018.
ISSUES
Under s 501(1) of the Act, the Minister – or his delegate – “…may refuse to grant a visa to a person if the person does not satisfy the Minister that the person…

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 BBFD and Minister for Home Affairs (Migration)

Details

AGLC: BBFD and Minister for Home Affairs (Migration) [2018] AATA 4479
Case: [2018] AATA 4479
Decision Date: 3 December 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a delegate's decision to refuse a protection visa to the applicant, BBFD. The applicant, born in New Zealand, had a history of dishonesty and drug offences in both New Zealand and Australia, and had previously entered Australia using a fraudulent passport. The delegate's decision to refuse the visa was based on the applicant failing to satisfy the character test under section 501(1) of the Migration Act 1958 (Cth).

The Tribunal was required to determine two key issues. Firstly, whether the applicant satisfied the character test. Secondly, if the applicant did not satisfy the character test, whether the discretion to refuse the visa under section 501(1) of the Act should be exercised. This latter determination was to be guided by Ministerial Direction No 65, which outlines primary and other considerations to be taken into account.

The Tribunal found that the applicant had not discharged the onus of demonstrating that she passed the character test, noting her lengthy and persistent offending history which displayed a lack of respect for law enforcement. In considering the discretion to refuse the visa, the Tribunal acknowledged the applicant's arguments regarding the low risk of future offending, the best interests of her child and husband, and Australia's non-refoulement obligations. However, the Tribunal concluded that these factors did not outweigh the seriousness of her conduct and the need to protect the Australian community. The Tribunal affirmed the delegate's decision to refuse the protection visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Under s 500(1)(b) of the Act, this Tribunal has jurisdiction to review the decision made by the Minister’s delegate. BACKGROUND The Applicant was born in New Zealand and entered Australia for the ninth time on a fraudulently obtained passport on 19 March 2009.[1] On 3 October 2017, this Tribunal affirmed a decision of the delegate to refuse the Applicant’s Bridging visa application because she did not satisfy the character test.[2] This decision is not in relation to that visa. Rather, it is in relation to a decision of the delegate to refuse the Applicant’s Protection visa pursuant to section 501 of the Act because, as occurred with the Applicant’s Bridging visa application, it was found that the Applicant did not satisfy the character test. On 17 September 2018, the Applicant filed an application for review of the Delegate’s decision.[3] [1] Exhibit 4, G documents, G3, p. 175; p. 322. [2] Ibid, pp. 320 – 339.[3] Ibid, G1, pp. 1 -2. The Tribunal heard this matter on 22 November 2018.ISSUES Under s 501(1) of the Act, the Minister – or his delegate – “…may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test”. Importantly, there are two stages to this enquiry. First, there is an onus on the applicant to satisfy the decision-maker that they pass the character test. If the decision-maker is not so satisfied, a decision-maker must progress to the next stage of the enquiry. That is, whether the discretion to refuse to grant the visa should be applied. This latter enquiry is informed by a direction of the Minister under s 499(1) of the Act, specifically: Ministerial Direction No 65 (“the Direction”). The Tribunal is bound to comply with the Direction.[4] In addition to setting out some guiding principles, discussed in more detail below, the Direction enumerates three primary considerations and four other considerations which a decision-maker must take into account in determining whether to exercise the discretion to refuse to grant a visa. It is important to recognise that although the second class of considerations are described as being “other” considerations, this does not mean that they necessarily take on secondary importance when compared to the “primary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[5] Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[6][4] Migration Act 1958 (Cth), s 499(2A).[5] [2018] FCA 594.[6] Ibid at [23].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I revert to the two stages of the enquiry applicable to determination of this application: (a)First, I am satisfied that the Applicant has not discharged the onus to demonstrate that she passes the character test;(b)Second, I am of the view that the discretion to refuse to grant the Protection (Class XA) visa pursuant to s 501(1) of the Act should be exercised such that the subject visa should not be granted.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Paragraph 8(1) of the Direction provides that a decision-maker must take into account the primary and other considerations relevant to the individual case. The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 12 of the Direction. These considerations are:(a)International non-refoulement obligations;(b)Impact on family members;(c)Impact on victims; and(d)Impact on Australian business interests.Primary Consideration A The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 11.1(1) 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.The Nature and Seriousness of the Applicant’s Conduct to Date The Respondent contends that the Applicant’s offending history is lengthy and that it involves a number of dishonesty and drug offences both in Australia and New Zealand.[17] That contention is fairly and correctly made. The history cannot be construed in any other way. The Applicant’s history of offending has two primary themes: first, it is persistent and second, it portrays a lack of respect for the authority of law enforcement. For reasons that follow, I do not think that the Applicant’s contentions justify exercising the Tribunal’s discretion to not refuse the grant of the Applicant’s Protection (Class XA) visa. [17] Exhibit 3, Respondent’s SIFC, p. 9, para [15]. While the Applicant has not sought to deny the extent and nature of her offending either in her oral testimony before me or in any of the written submissions filed on her behalf, she has nevertheless sought to explain away or ameliorate her conduct in a way that is simply not sustainable. While she agrees she does not pass the character test, she nevertheless contends she is entitled to a Protection visa because, according to her, the risk of her offending resulting in harm to the Australian community is apparently quite low. She also contends that the best interests of her infant child and husband militate in favour of the visa she seeks. Her additional contention is that Australia has non-refoulment obligations to her. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 11.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes) amongst those factors are: (a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;(b)…(d)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention but before the non-citizen was taken into immigration detention again is serious, as is an offence against s 197A of the Act.(e)The principle that any conduct forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under s 501(6)(c), is considered to be serious; (f)The sentence imposed by the courts for a crime or crimes;(g)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;(h)The cumulative effect of repeated offending;(i)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;(j)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.