Brady (Migration)

[2018] AATA 809

Brady (Migration) [2018] AATA 809 (14 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Albert Vincent Brady

CASE NUMBER:  1708143

DIBP REFERENCE(S):  BCC2017/1145080

MEMBER:K. Chapman

DATE:14 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 14 February 2018 at 3:14pm

CATCHWORDS

Migration – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – Behaviour concern non-citizen – Criminal history – Disclosure on an incoming passenger card

LEGISLATION

Migration Act 1958, ss 5(1), 13, 32, 65, 359, 359A, 501

Migration Regulations 1994, r 5.15

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 29 March 2017 to refuse to grant the applicant a Special Category (Temporary) (Class TY) Subclass 444 visa under s.65 of the Migration Act 1958 (‘the Act’).

2. The applicant applied for the visa on 21 March 2017. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of s.32(2)(a)(ii) of the Act, as he was a ‘behaviour concern non-citizen’ due to his criminal antecedents. On 13 April 2017, the applicant applied for review of the visa refusal decision, providing a copy of that decision with his application.

3. On 10 November 2017, the Tribunal wrote to the applicant pursuant to sections 359A and 359(2) of the Act inviting him to respond to information concerning his criminal history, in New Zealand and Queensland, and also to provide further information concerning whether he has ever been excluded from a country other than Australia. Following the grant of an extension of time to respond, on 8 December 2017 the Tribunal received correspondence enclosing a Statutory Declaration from the applicant dated 8 December 2017, Queensland Birth Certificate for [Ms A], school identity card for [Ms A], character reference from [Mr B] dated 4 April 2017, employment reference from [Mr C] dated 5 April 2017, letter from [Mr D] dated 27 March 2017, and a letter from Deputy Principal [Ms E] dated 29 March 2017. The Tribunal notes that documentation was also submitted by the applicant in relation to a Fee Reduction Request, which was ultimately granted. The aforementioned material has been duly considered by the Tribunal, as has the material contained in the Departmental file.

4. The review applicant appeared before the Tribunal in person on 13 February 2018 to give evidence and present arguments. He was assisted by his registered migration agent, who is a solicitor.

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

   ISSUES AND LAW

6. The issues in this case are whether the applicant is a ‘behaviour concern non-citizen’, or is in a class of persons declared for the purposes of s.32(2)(c) of the Act. The Special Category visa, Subclass 444, is a temporary visa enabling New Zealand citizens to be lawful non-citizens (as defined in s.13 of the Act) while in Australia. Section 32 of the Act sets out a requirement for the visa as follows:

   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.

7. An application for this visa is made by completing an incoming passenger card. Where a non-citizen has a criminal conviction, this is relevant to whether the person is a ‘behaviour concern non-citizen’. The term ‘behaviour concern non-citizen’ is defined in s.5(1) of the Act as follows:

   "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.

   crime includes any offence.

8. In respect of s.32(2)(b) of the Act, there are no supporting Regulations and this provision currently has no effect. In respect of s.32(2)(c) of the Act, the supporting regulation is set out in r.5.15A and provides as follows:

   Reg 5.15A Special category visas – declared classes of New Zealand citizens

   (1)  For paragraph 32(2)(c) of the Act, a person is in a class of persons for whom a visa of a class other than a special category visas would be inappropriate if the person:

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

   (b)  is not a health concern non-citizen; and

   (c)  is covered by subregulation (2) or (3).​

   (2)  A person is covered by this subregulation if the person is a behaviour concern non-citizen only because of having been excluded from a country other than Australia in circumstances that, in the opinion of the Minister, do not warrant the exclusion of the person from Australia.

   (3)  A person is covered by this subregulation if:

   (a) the Minister has, under subsection 501(3A) of the Act (person serving sentence of imprisonment), cancelled a visa held by the person; and

   (b) the person has made representations to the Minister in accordance with the invitation given by the Minister under subsection 501CA(3) of the Act; and

   (c) the decision to cancel the visa is revoked under subsection 501CA(4) of the Act; and

   (d) the Minister has not, under subsection 501BA(2)​ of the Act, set aside the decision to revoke the cancellation of the visa; and

   (e) since the person made the representations to the Minister mentioned in paragraph (b), no new grounds have arisen for the person to fall within the definition of behaviour concern non-citizen in subsection 5(1) of the Act, unless the only new ground that has arisen is the person’s removal or deportation from Australia because of the decision to cancel the visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant’s criminal history record from New Zealand and a Queensland Police Service Person History were put to him prior to the review hearing for comment or response, in the correspondence dated 10 November 2017 pursuant to s.359A of the Act. Those documents reveal that on 13 September 1991 the Court at Rotorua, New Zealand convicted the applicant of ‘Sells Cannabis’ and sentenced him to imprisonment for one year. Further, he was convicted on 17 June 1997 by the Court at Whakatane of ‘Driving Whilst Disqualified 2nd/Sub Offence’ and sentenced to imprisonment for one year. Additionally, the applicant was convicted on 23 January 2006 by the District Court at Ipswich, Queensland of ‘Enter Premises and Commit Indictable Offence by Break’, ‘Common Assault’, and ‘Assaults Occasioning Bodily Harm’ for which he was sentenced to imprisonment for eighteen months (suspended for two years after serving six months imprisonment). The applicant was also convicted of other offences in New Zealand and Queensland for which he received lesser sentences.

10. At the review hearing, the applicant accepted that he had received the sentences of imprisonment referred to above and conceded he was a ‘behaviour concern non-citizen’. The applicant also gave oral evidence to the Tribunal confirming that he has never been excluded from a country other than Australia. He also agreed that he failed to disclose his criminal convictions upon entry to Australia in 1998, however he maintained that he did disclose them upon his most recent entry in 2017. Following careful consideration, the Tribunal finds that the applicant has been convicted of a crime and sentenced to imprisonment for at least one year, and accordingly he is a behaviour concern non-citizen as defined in s.5 of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the requirements of s.32(2)(a)(ii) of the Act.

11. As referred to previously, there are no supporting Regulations in relation to s.32(2)(b) of the Act. Regarding s.32(2)(c) of the Act, there is no evidence that the applicant has been excluded from a country other than Australia, or that he has been subject to the provisions of s.501 of the Act, in the circumstances provided by r.5.15A. Accordingly, he does not satisfy the requirements of s.32(2)(c) of the Act. It follows that the applicant does not satisfy the requirements of s.32 of the Act and therefore he cannot be granted a Special Category (Temporary) (Class TY) Subclass 444 visa. The Tribunal so finds.

12. For completeness, the Tribunal notes that the Departmental delegate’s visa refusal decision of 29 March 2017 refers to the applicant failing to declare his criminal convictions in his incoming passenger card. The Tribunal obtained from the Department a copy of the card dated 18 March 2017 which indicates the applicant did declare that he had criminal convictions on that occasion. Accordingly, considering the available evidence, the Tribunal finds that the applicant did in fact properly declare his convictions as required when seeking entry to Australia on 18 March 2017. However, as was admitted in oral evidence, the applicant failed to disclose his convictions upon initial entry into Australia in 1998.  

13. The applicant gave evidence that he and his family, including his six children and eight grandchildren, would face hardship if his visa application were refused. Documentary evidence was before the Tribunal in support of this contention. The applicant submitted he has compelling and compassionate circumstances in support of granting him the visa. The Tribunal has duly considered the aforementioned evidence. However, as previously outlined, the evidence demonstrates he does not satisfy the legislative requirements for the grant of the visa.

    DECISION

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

    K. Chapman
    Member