Campbell (Migration)

[2023] AATA 2278

Campbell (Migration) [2023] AATA 2278 (31 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rongo Allan David Campbell

REPRESENTATIVE:  Mr Nigel Irvine (MARN: 1805638)

CASE NUMBER:  2011454

HOME AFFAIRS REFERENCE(S):          BCC2020/1738812

MEMBER:Deputy President J.L Redfern PSM

DATE:31 July 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review.

Statement made on 31 July 2023 at 11:39am

CATCHWORDS

Migration – Special Category (Temporary) (Class TY) Visa – Subclass 444 (Special Category) – Refusal of visa – Behaviour Concern Non-Citizen – Criminal History – Ministerial Intervention – Decision under review affirmed – Recommendation for consideration of intervention

LEGISLATION

Migration Act 1958, ss 5(1), 32(2)(a)(ii), 32(b), 32(c), 65
Migration Regulations 1994, r 5.15A

SECONDARY MATERIALS

Procedural Advice Manual 3 (PAM3) ‘Act – Ministerial powers – Minister’s guidelines on Ministerial powers (s 351, s 417, and s 501J)’

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 Home Affairs on 29 June 2020 to refuse to grant the visa applicant a Special Category (Temporary) (Class TY) Subclass 444 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant, Mr Rongo Allan David Campbell, who prefers to be called David Campbell, applied for the visa on 12 June 2020. 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 convictions in 1991.

3. Mr Campbell appeared before the Tribunal on 26 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Henrietta Campbell. Prior to the hearing, the Tribunal was provided with statutory declarations and statements of support from Mrs Campbell, Mr Campbell’s four children, his son-in-law, one of his grandchildren, and his current employer. He was represented by his registered migration agent, Mr Nigel Irvine, in relation to the review.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. This is the case because, even though Mr Campbell has lived and worked in Australia for many years, has travelled to and from Australia continuously from 2005 and his wife, four children and a number of his grandchildren reside and work in Australia, he does not satisfy the requirements for a Special Category visa and cannot do so because of his prior convictions.

5. I have been asked to consider referring this matter to the Minister for intervention. Having considered the circumstances of this case, I have decided to do so.

6. My reasons for affirming the decision under review and for making the referral are set out below.

   RELEVANT LAW

7. Non-citizens from New Zealand may obtain permission to travel to and stay in Australia under a Special Category (Subclass 444) visa. The criteria for a Special Category (Subclass 444) visa are set out in s 32 of the Act and reg 5.15A of the Migration Regulations 1994 (the Regulations). Relevantly, cl 444.2 of Schedule 2 to the Regulations provides that this is the only criteria for a Special Category visa. The Special Category visa is a temporary visa and ceases to have effect if it is cancelled or if the visa holder leaves Australia: ss 82(1) and (8) of the Act.

8. Given the significance of the requirements of s 32 and the critical issues that require determination, this provision is extracted in its entirety as follows:

   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 in 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.

9. To be eligible for a Special Category visa, an applicant must not be a ‘behaviour concern non-citizen nor a health concern non-citizen’ or, in the alternative, must be a person or in a class of persons declared by the Regulations to be a person for whom any other visa would be inappropriate.

10. There are no declared persons for the purposes of s 32(2)(b). Regulation 5.15A refers to the declared classes of New Zealand citizens for the purposes of s 32(2)(c) and relevantly provides:

    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 visa 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.[1]

    …

    [1][1] Reg 5.15A(3) relates to the Minister having cancelled a visa held by the person under subsection 501(3A) of the Act (person serving sentence of imprisonment), and is not relevant to the circumstances of this case.

11. There is no evidence, nor are there submissions to this effect, that Mr Campbell is a person or a person in a class of persons declared for the purposes of s 32(2)(b) or (c) of the Act.

12. The expression ‘behaviour concern non-citizen’ is defined in s.5(1) of the Act and, relevant to the facts of this case, includes a non-citizen who has been convicted of a crime and has been sentenced to imprisonment for at least one year.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether Mr Campbell satisfies the requirements of section 32 of the Act for a Special Category visa.

14. There is no dispute that in May 1991 Mr Campbell was convicted of a crime and sentenced to a term of imprisonment for at least one year. He was convicted in New Zealand, and this is recorded in a document provided by New Zealand Police to the Australian Consulate General in Auckland. The record from the Australian Consulate is dated 2010 but is unclear when this information was provided to the Department. The offence related to the possession and selling of cannabis.

15. According to submissions and evidence provided by Mr Campbell, he has not been convicted of any other criminal offence since this date and there is no evidence to the contrary. I accept this evidence.

16. Mr Irvine provided submissions on Mr Campbell’s behalf on 18 July 2023. He also provided oral submissions during the hearing. According to Mr Irvine, Mr Campbell does not contest the fact that he ‘ran foul of the law’ and in May 1991 was sentenced to a term of imprisonment for a period of at least one year. It is conceded, properly in my view given the uncontested evidence, that Mr Campbell does not satisfy s 32 of the Act.

17. It is contended that it would be unreasonable for Mr Campbell to be refused a Special Category visa given the age of the convictions and having regard to the compassionate and compelling circumstances of Mr Campbell’s case. Mr Irvine was not able to refer me to any provision in the Act or the Regulations which would override the operation of s 32 of the Act. Nor does he submit that the requirement that Mr Campbell must not be a ‘behaviour concern’ can be waived. There is nothing in the definition that provides for an exemption nor does s 5(1) include a temporal element. As a ready noted, it is not submitted that Mr Campbell meets the alternative provisions contained in s 32 of the Act. As such, Mr Campbell does not meet the requirements of s 32 of the Act for a Special Category visa and the decision of the delegate must be affirmed.

18. Despite this, I accept that Mr Campbell and his family will face considerable hardship if he is not able to remain in Australia or if he is deported and unable to return. In these circumstances, Mr Irvine requested that I consider referral to the Minister for Ministerial Intervention under section 351 of the Act.

    MINISTERIAL INTERVENTION

    Guidelines

19. Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal under s.349 of the Act another more favourable decision if he or she thinks that it is in the public interest to do so. This discretion is broad and the Minister may make a more favourable decision, whether or not the Tribunal had the power to make that other decision

20. The guidelines relating to the Minister’s discretionary power under s.351 are set out in the Department’s Procedural Advice Manual 3 (PAM3) ‘Act – Ministerial powers – Minister’s guidelines on Ministerial powers (s 351, s 417, and s 501J)’.

21. In section 3 of the guidelines, under the heading Ministerial Intervention Principles, it is noted that consideration of a case for intervention is at the Minister’s discretion and is not an extension of the visa process. If a person has a visa pathway available to them, including an offshore pathway, it is noted that it is generally not appropriate for the Minister to intervene. It is also noted that it is expected that a person requesting the Minister’s intervention would be a lawful noncitizen if they are in the community when they make their intervention request and that they should remain a lawful non-citizen until the request is finalised.

22. Section 4 of the guidelines provides that cases that have one or more unique or exceptional circumstances, such as those described in the section, may be referred to the Minister for possible consideration of the use of intervention powers. There are seven matters listed within section 4, two of which may apply to Mr Campbell, being matters where there are:

    §circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case

    §compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious ongoing and irreversible harm and continuing hardship to the person

23. Section 7 sets out the cases where it would not be appropriate for the Minister to consider intervention. There are 19 matters listed in that section, none of which apply to Mr Campbell.

    Application and recommendation for referral

24. Mr Campbell works in the oil and gas industry. He’s been travelling to Australia to work on a regular basis since at least 2005. He currently works with TMS Technical Maintenance Support in Geraldton and according to the operations coordinator, who provided a letter of support dated 19 July 2023, Mr Campbell is a highly valued employee who had met and exceeded the expectations of the company over the previous 18 months that he had been working with them full-time. From about 2005, Mr Campbell spent extensive periods working in Australia and he has been residing and working in Western Australia continuously since about July 2020. Prior to this, Mr Campbell was permitted to enter and remain in Australia on either a subclass 456 Business (short stay) Temporary visa or a Special Category visa for extended periods.

25. According to Mr Campbell, with the exception of one occasion, he disclosed his prior convictions in his incoming passenger cards. He says that despite this disclosure, he was always permitted entry. The only incident he encountered was on one occasion when he was questioned at the airport about his prior convictions and then allowed entry. I am not able to verify whether this was the case, but it is clear from information in the Department file that Mr Campbell disclosed his previous convictions in the most recent incoming passenger card. It is also consistent with Department movement records that he was permitted to enter Australia pursuant to subclass 456 and 444 visas on numerous occasions. I accept Mr Campbell’s evidence on these matters, and I found him to be a credible and open witness.

26. Mr Campbell’s wife, Henrietta Campbell, and his daughter, Chloe, travelled to Western Australia to join him in about 2019. Both have worked in Western Australia since this time. Mr Campbell’s stepson, Jovan, relocated to Western Australia approximately seven years ago and has been working in the mining industry since this time. Jovan, who Mr Campbell has been raising since the age of two, provided a statutory declaration in support of Mr Campbell’s application. Statutory declarations were also provided by Mr Campbell’s three daughters, his son-in-law and a grandson. It is apparent from the statutory declarations and from evidence given at the hearing that all of Mr Campbell’s immediate family, being his wife, three daughters and stepson, their respective families and his grandchildren, reside in Western Australia. Many of his children are employed in the mining industry.

27. It is also apparent from the written statements provided by Mr Campbell’s wife, children, son-in-law and grandchild that the Campbell family is very close, and that Mr Campbell has been a significant support and mainstay for family members over the years. According to the statements provided, Mr Campbell has been instrumental in assisting his children in raising their families and it would be ‘devastating’ if he was forced to leave Australia to return to New Zealand.

28. Mrs Campbell said that her children and grandchildren have built their lives in Western Australia and proposed to permanently reside there. She said that this was also her intention. If Mr Campbell was unable to remain in Australia, she would return with him to New Zealand, but this would impose considerable hardship on the family because they would be separated from their children and grandchildren. I accept this evidence.

29. Mr Campbell is 61 years old and, while there is no evidence he is in poor health, I accept he would suffer significant psychological harm if he is forced to be separated from his family.

30. The legislation provides that a person will not be eligible for a Special Category visa if they are a ‘behaviour concern’. The intention of the provision is to ensure the protection of the Australian community. Non-citizens seeking to enter or remain in Australia should be accountable to a high standard. However, the consequences of imposing this requirement inflexibly in a case such as this is likely to have unfair or unreasonable consequences in the circumstances of this particular case. The criminal convictions were over 30 years ago and the offences were committed when Mr Campbell was in his late 20s. The term of imprisonment for the offences was 12 months and I accept Mr Campbell’s evidence, which is consistent with the material provided, that he has had no other criminal convictions since this time.

31. Mr Campbell has been allowed to enter and remain in Australia for extended periods, notwithstanding these convictions, and he has worked and contributed to the Australian community, particularly in the mining industry in Western Australia, for many years. As already noted, he is considered by his employer to be a highly skilled and valued employee. His family have moved to Western Australia where they are currently residing and working, in or in support of the mining industry.

32. I am satisfied, based on the written evidence provided and the oral evidence given at the hearing, that the Campbell family are very close, and it would have a significant impact on the family for him to be separated from them. This would be an unfair and unreasonable result when there is no evidence that Mr Campbell presents a risk.

33. Having regard to Mr Campbell’s circumstances, I recommend this case should be brought to the Minister’s attention for consideration of intervention because he appears to meet two of the unique or exceptional circumstances referred to in section 4 of the guidelines and is not excluded by any of the matters referred to in sections 3 or 7.

    DECISION

34. The Tribunal affirms the decision under review.

    J.L Redfern PSM
    Deputy President