Bulivesi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Case [2020] AATA 3

Bulivesi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3 (3 January 2020)

Division:GENERAL DIVISION

File Number(s):      2019/6534

Re:Semi Bulivesi

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:3 January 2020

Place:Sydney

The Reviewable Decision dated 10 October 2019 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.

............................[SGD]............................................

Senior Member Linda Kirk

CATCHWORDS

MIGRATION – non-revocation of mandatory cancellation – where Applicant does not pass the character test – serial domestic violence offender – whether there is another reason to revoke the cancellation of the Applicant’s visa – application of Ministerial Direction 79 – decision under review affirmed

LEGISLATION

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

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738

DKXY v Minister for Home Affairs [2019] FCA 495

FYBR v Minister for Home Affairs [2019] FCA 500

FYBR v Minister for Home Affairs [2019] FCAFC 185

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66

Minister for Home Affairs v Buadromo  [2018] FCAFC 151

PNLB v Minister for Immigration and Border Protection [2018] AATA 162

Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367

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

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member Linda Kirk

3 January 2020

  1. Mr Semi Bulivesi (‘the Applicant’), a citizen of Fiji, was born in 1977.[1] He came to Australia in July 2008 when he was aged 31 years.[2] Prior to its cancellation, the Applicant held a Partner (Subclass 801) (Class BS) visa.[3]

    [1] Exhibit R1, G10, 42.

    [2] Exhibit R1, G28, 106.

    [3] Exhibit R1, G28, 106.

  2. On 14 February 2018, the Applicant was convicted in a Local Court of Common assault (DV) – T2, Contravene prohibition/restriction in AVO (domestic) and Assault occasioning actual bodily harm (DV) – T2 against his wife and sentenced to 18 months imprisonment.[4]

    [4] Exhibit R1, G6, 32.

  3. On 10 September 2018, the Department issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not satisfy the character test in s 501(6) of the Act by virtue of the term of imprisonment referred to above.[5] On this date, the Applicant was serving a sentence of full-time imprisonment.

    [5] Exhibit R1, G30, 109.

  4. On 5 October 2018, the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister in support of his revocation request.[6]

    [6] Exhibit R1, G9, 36-40.

  5. On 10…

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Details
AGLC
Bulivesi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3
Case
[2020] AATA 3
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr. Bulivesi (the Applicant) to revoke the mandatory cancellation of his visa, which had been cancelled because he did not pass the character test. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) was the respondent. The decision was made by Senior Member Linda Kirk of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether there was "another reason" to revoke the mandatory visa cancellation decision, as contemplated by section 501CA(4)(b)(i) of the *Migration Act 1958* (Cth). In determining this, the Tribunal was required to consider the factors outlined in Ministerial Direction 79, particularly those relating to the protection of the Australian community. This involved assessing the nature and seriousness of the Applicant's conduct, the risk of future offending, and other relevant considerations such as the frequency and cumulative effect of his offending.

The Tribunal found that the Applicant's criminal conduct, including domestic violence offences against his wife and an indecent act against a child, was very serious. The Applicant had been subject to multiple apprehended violence orders, which he had breached. The Tribunal considered that crimes of a violent nature against women and children are viewed very seriously, regardless of the sentence imposed. Given the gravity and repeated nature of these offences, the Tribunal concluded that the Applicant could not rely on section 501CA(4)(b)(i) for the revocation of the mandatory cancellation decision. The Tribunal affirmed the decision to cancel the Applicant's visa.

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

If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision must be revoked.EVIDENCE BEFORE THE TRIBUNALYears in Fiji The Applicant attended school in Fiji until year 10 and classes were in English. He had a good relationship with his parents and two brothers.[11][11]Transcript p79. He left school at the age of 16 years and undertook vocational training in welding fabrication for two years.[12] After completing this training he worked in a bus company doing fabrication for four years. Following this he went back to his family’s village and did farming until he came to Australia.[13][12] Transcript p80.[13] Transcript p81.Arrival in Australia and family members The Applicant arrived in Australia in July 2008[14] on a tourist visa at the age of 31 years.[15] [14] Exhibit R1, G28, 106.[15] Transcript p11. He met his wife, Fulori Bulivesi, in Sydney in 2010 and they started living together in the same year. They moved to Victoria that year and in 2013 they were married. He and his wife have three biological children together, ‘S’ born in 2012 (aged seven), ‘U’ born in 2013 (aged six), ‘I’ born in 2015 (aged four).[16] The Applicant also has a step-daughter, ‘L’ born in 2008 (aged 11) who is his wife’s child from another relationship.[17][16] Exhibit R1, G10, 45.[17] Exhibit R1, G10, 45. The Applicant has two other daughters, ‘A’ born in 2005 (aged 14) and ‘E’ born in 2006 (aged 13) both of whom reside in Fiji and live with his older brother.[18] [18] Exhibit R1, G10, 47. The Applicant was granted a Partner (Residence) (Class BS) visa on 18 April 2017[19] Prior to the grant of this visa, the Applicant was formally notified by the Department that because of his criminal history in Fiji he may not pass the character test.[20] [19] Exhibit R1, G30, 109. [20] Exhibit R1, G22, 88-89.Work history The Applicant worked as a farm worker in Victoria from 2008 to 2013. In 2013 he commenced work with New South Wales Rail as a welder and then with Sydney Water as a security guard. In 2017, he commenced working full-time for State Rail in Victoria.[21] When he was working in Victoria he would travel there for work and his family remained in Sydney. He worked a pattern of three weeks on and one week off.[22][21] Transcript p85.[22] Transcript p86.Criminal History A Nationally Coordinated Criminal History Check dated 7 March 2019 issued in respect of the Applicant shows that he has been convicted of a number of offences in Australia. [23] In his representations to the Department and the Tribunal, the Applicant did not dispute the convictions and sentences in the Nationally Coordinated Criminal History Check.[23] Exhibit R1, G5, 24-26. In September 2013, the Applicant was pulled over by the police in New South Wales and found to be driving without a license. In February 2014, he was convicted in the Wentworth Local Court of Drive motor vehicle during disqualification period and sentenced to a s 10 good behavior bond for two years.Domestic violence offences

Decision

Reasons for decision

For these reasons, the Applicant cannot rely on s 501CA(4)(b)(i) for revocation of the Mandatory Cancellation Decision.Is there ‘another reason’ why the Mandatory Cancellation Decision should be revoked? In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.Primary Consideration A – Protection of the Australian community Primary Consideration A of Part C is the Protection of the Australian Community. Paragraph 13.1(1) of the Direction provides:1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved. Paragraph 13.1(2) directs that decision-makers should also give consideration to: a) the nature and seriousness of the non-citizen's conduct to date; andb) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;(b) The principle that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed;(c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;(d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;(e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;(f) The cumulative effect of repeated offending;(g) …(h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);(i) …(a) Nature and seriousness of the Applicant’s conduct to date

Ratio Decidendi

Legal Principle Established

In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.Primary Consideration A – Protection of the Australian community Primary Consideration A of Part C is the Protection of the Australian Community. Paragraph 13.1(1) of the Direction provides:1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved. Paragraph 13.1(2) directs that decision-makers should also give consideration to: a) the nature and seriousness of the non-citizen's conduct to date; andb) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;(b) The principle that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed;(c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;(d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;(e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;(f) The cumulative effect of repeated offending;(g) …(h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);(i) …(a) Nature and seriousness of the Applicant’s conduct to date The Tribunal finds that the Applicant’s criminal offending, particularly the domestic violence offences against his wife and the indecent act against a child, is very serious. There have been numerous occasions on which the Applicant has been the subject of an apprehended violence order and he has breached its terms.