Campbell and Minister for Immigration and Border Protection (Migration) - [2018] AATA 383

Campbell and Minister for Immigration and Border Protection (Migration) [2018] AATA 383 (5 March 2018)
Division:GENERAL DIVISION
File Number(s): 2017/7445
Re:Tony Campbell
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:5 March 2018
Place:Sydney

The decision under review is set aside. The Tribunal decides in substitution that the cancellation decision is revoked.
.....................[sgd].......................................
Senior Member A Poljak
Catchwords
MIGRATION – mandatory visa cancellation – character test – substantial criminal record – whether there is another reason why the original decision should be revoked – Direction 65 – protection of the Australian community – nature and seriousness of the relevant conduct – the risk conduct may be repeated – evidence of rehabilitation – expectations of Australian community – decision under review set aside – decision in substitution that cancellation decision revoked
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
LMYW and Minister for Immigration and Border Protection (Migration) [2016] AATA 936
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member A Poljak
5 March 2018

The applicant, Mr Campbell, is a citizen of New Zealand. The applicant lived in Australia as a child between August 2000 and January 2004 and subsequently visited on a number of occasions prior to his last arrival in Australia on 18 October 2009, when he was granted a Class TY Subclass 444 Special Category (Temporary) Visa (“visa”).
On 29 November 2016, the Department of Immigration and Border Protection (“the Department”) issued the applicant a notice that his visa had been cancelled pursuant to section 501(3A) of the Migration Act 1958 (Cth) (“the Act”).
On 1 December 2016, the applicant submitted a request for revocation of the mandatory cancellation decision pursuant to section 501CA of the Act and on 31 March 2017, a delegate of the Minister for Immigration and Border Protection (“Minister”), decided not to revoke the decision to cancel the applicant’s visa. This is the decision under review in these proceedings (“the reviewable decision”).
The issues to be determined in these proceedings are whether the applicant meets the character test as defined in s 501(6) the Act, and if not, whether there is another reason why the mandatory cancellation should be revoked (s 501CA(4)(b)(ii)).
RELEVANT LEGISLATIVE PROVISIONS
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of sections 501(6) and 501(7).
Section 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a substantial criminal record as defined by subsection 501(7).
Section 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of…

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.

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Details

AGLC: Campbell and Minister for Immigration and Border Protection (Migration) [2018] AATA 383
Case: [2018] AATA 383
Decision Date: 5 March 2018

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr. Campbell, against a mandatory visa cancellation decision made by the Minister for Immigration and Border Protection. The dispute centred on whether there was "another reason" why the original decision to cancel Mr. Campbell's visa should be revoked, as contemplated by the Migration Act 1958 (Cth). The decision was made by A Poljak SM in the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the applicant's criminal conduct, specifically drug supply offences and traffic offences, warranted the mandatory cancellation of his visa. This involved assessing the primary considerations outlined in Direction 65, which include the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal also had to consider the applicant's rehabilitation and his ties to the Australian community.

In reaching its decision, the Tribunal found that while the applicant's drug supply offences were serious, his traffic offences were not particularly serious and did not demonstrate a deliberate disregard for the law. The Tribunal noted that the applicant had significant ties to the Australian community. Weighing these factors, the Tribunal concluded that the primary considerations did not weigh heavily against exercising the discretion to revoke the cancellation decision, and in fact, some considerations weighed in favour of revocation.

Consequently, the Tribunal set aside the original decision to cancel Mr. Campbell's visa and substituted a decision that the cancellation be revoked.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, I consider that this factor favours non-revocation.CONCLUSION As I have explained, the first primary consideration does not count heavily against the exercise of the discretion. The third primary consideration actually weighs in favour of the exercise of the discretion. In regards to the other considerations, the applicant’s significant ties to the Australian community weigh heavily in his favour. On balance, I am satisfied the discretion should be exercised in the applicant’s favour. In those circumstances, I set aside the decision under review and decide in substitution that the cancellation decision should be revoked.

Ratio Decidendi

Legal Principle Established

The three primary considerations that the Tribunal must take into account are set out in paragraph 13(2) of the Direction as follows:(a) Protection of the Australian community from criminal or other serious conduct;(b) The best interests of minor children in Australia;(c) Expectations of the Australian Community.PRIMARY CONSIDERATION (A) – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT In determining this primary consideration, I note that I must have regard to matters set out in paragraph 13.1, namely:(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…(2) 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.(a) The nature and seriousness of the applicant's conduct to date The applicant accepts that his conduct to date should be viewed as serious. His criminal history in Australia is detailed in the National Police Certificate dated 25 March 2017 and includes three offences of driving while license cancelled or suspended and most significantly, the offences of ‘supply prohibited drug >indict. Quantity (not cannabis)’, for which he was sentenced to an overall term of 2 years and 2 months imprisonment. The details of the applicant’s offending are explored below. In respect of the applicant’s driving offences, his recollection of the circumstances surrounding his first conviction for driving while disqualified on 1 April 2013 is very limited. As such, he cannot dispute the version of events contained in the COPS Records of NSW Police. In regards to the second offence on 31 August 2013, the applicant was caught driving whilst his licence was cancelled. The applicant states that his disqualification period had ended on 24 July 2013 and he was unaware that he needed to obtain a new licence from the RMS before driving. It appears that this explanation was accepted by the Magistrate and he received a section 10 good behaviour bond for the offence. The applicant’s third traffic offence on 2 August 2014 was for drive while licence suspended. The circumstances surrounding the offence were that the applicant’s license was suspended as a result of a fine default. At hearing, the applicant advised that prior to the offence he knew his license was suspended as a result of a fine default and had contacted the State Debt Recovery Office (“SDRO”) and arranged a payment plan. He said that he assumed that because he had reached an agreement with the SDRO, the suspension of his driver’s license would be automatically lifted. The applicant’s evidence in regards to this traffic offence is substantially supported by the version of events recorded in the COPS reports. Having regard to the particular circumstances of the applicant’s traffic offences, I am not satisfied that they are particularly serious. I am not convinced that they demonstrate a deliberate flouting and/or disregard of the law.