Carr (Migration) - [2018] AATA 731

Carr (Migration) [2018] AATA 731 (29 March 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ryan Damian Carr
CASE NUMBER:  1727446
DEPARTMENT REFERENCE:                 ADF2017/122925
MEMBER:Jan Redfern
DATE:29 March 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 29 March 2018 at 5.44pm
CATCHWORDS
MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – cancellation under s.116(1)(e)(ii) of the Migration Act 1958 - whether applicant is or may be, or would or might be, a risk to the health, safety of an individual or individuals – where applicant has been convicted of various criminal offences – relevant time for consideration – statutory interpretation – ground for cancellation established – whether the power to cancel the visa should be exercised – exercise of discretion where pervious cancellation revocation decision under s.501CA of the Migration Act 1958 and applicant has voluntarily departed Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, ss. 5, 32, 42(2A), 48(1), 82(1), 82(8), 109, 116, 116(3), 116(1)(e), 140, 336N, 338(3), 338(3A), 338(4), 348, 409, 411(1)(d), 414, 496, 499, 501, 501(3A), 501CA(4), 501CA(5), 501BA(2)
Migration Regulations 1994, reg. 5.15A; cl.444.511 and 444.6 of Schedule 2
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Gong v Minister for Immigration and Border Protection [2016] FCCA 561
Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273
Re Drake v Minister for Immigration and Ethnic Affairs (Re Drake No 2) (1979) 2 ALD 634
Shi v Migration Agents Registration Authority [2008] HCA 31
Tarrant v Australian Securities and Investments Commission [2013] AATA 926
W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55
Cheryala v Minister for Immigration and Border Protection [2018] FCAFC 43
Kim v Minister for Immigration and Citizenship [2008] FCAFC 73
SECONDARY MATERIALS
Explanatory Memorandum, Migration Amendment (Character and General Visa Cancellation) Bill 2014
Administrative Appeals Tribunal – President’s Direction –Allocation of Business to Divisions in the AAT (9 October 2017)
International Convention on Civil and Political Rights 1996
Procedures Advice Manual – PAM3 ‘General visa cancellation powers’
UN Convention on the Rights of the Child 1989
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 1 November 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s.116 of the Migration Act 1958 (the Act). The delegate cancelled the visa under s.116(1)(e) of the Act on the basis that the applicant is or may be, or would or might be, a risk to the health or safety of an individual or individuals.
The issue for the Tribunal on review is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the following reasons, the decision to cancel the applicant’s visa should be affirmed.
BACKGROUND FACTS
The…

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

Case: [2018] AATA 731
Decision Date: 29 March 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the Special Category (Subclass 444) visa held by Mr Ryan Damian Carr, a New Zealand citizen. Mr Carr had been in Australia since childhood and had Australian-born children. The cancellation was based on the ground that his presence in Australia was, or might be, a risk to the health or safety of individuals, pursuant to s 116(1)(e)(ii) of the *Migration Act 1958* (Cth). This followed a previous mandatory cancellation of his visa under s 501(3A) of the Act due to a substantial criminal record, which had later been revoked under s 501CA(4). The current cancellation consideration was based on Mr Carr's convictions for unlawful possession of weapons in November 2017.

The primary legal issue before the Tribunal was whether the ground for cancellation under s 116(1)(e)(ii) was established. A related question concerned the relevant time for assessing the facts and circumstances when determining if this ground existed. The Tribunal also had to consider whether, if the ground was established, the power to cancel the visa should be exercised as a matter of discretion.

The Tribunal reasoned that for a cancellation ground under s 116(1)(e)(ii), the assessment of whether the applicant's presence would or might pose a risk to safety should be made at the time of the Tribunal's decision, not solely at the time of the delegate's decision. This interpretation was based on the wording of the provision, which contemplates intervening events and does not contain a specific temporal limitation. The Tribunal considered all available information, including events occurring after the delegate's decision. Having assessed the matter afresh, the Tribunal concluded that the ground for cancellation was established. Furthermore, the Tribunal found that the discretionary matters weighed in favour of cancellation.

Consequently, the Tribunal affirmed the decision to cancel Mr Carr's Special Category (Subclass 444) visa.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the decision to cancel the applicant’s visa should be affirmed.BACKGROUND FACTS The applicant, Mr Ryan Damian Carr, is a 43 year old New Zealand citizen. He first arrived in Australia as a four year old child together with his immediate family. Mr Carr’s current Special Category (Subclass 444) visa was granted on 1 September 1994. He has remained in Australia since that time. The applicant has eight Australian born children from three relationships, including a six year old and five year old with his current partner who is an Australian citizen. The applicant claims, and there is no evidence to the contrary, that he was subjected to a traumatic experience when he was a child which he says led to substance abuse, the development of a mental illness and his criminal offending in later life. He has been charged with, and convicted of, several criminal offences. Those offences range in seriousness. On 18 July 2016, Mr Carr’s visa was mandatorily cancelled under s.501(3A) of the Act on the basis that he had a ‘substantial criminal record’ and, as such, did not pass the ‘character test’ as that term is defined in the Act. Specifically, the delegate of the Minister found that he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment, on a full-time basis, in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory. The decision to cancel the visa was subsequently revoked by a delegate under s.501CA(4) of the Act. Subsection 501CA(4) provides that the Minister may revoke the cancellation decision if satisfied that the person passes the character test or that there is another reasons why the original cancellation decision should be revoked. There is no information before the Tribunal about why the cancellation decision was revoked but where a cancellation decision has been revoked by the Minister or his or her delegate, the original decision is taken ‘not to have been made’: s.501CA(5) of the Act. On 1 November 2017, Mr Carr was convicted of various offences including two counts of unlawful possession of weapons. Mr Carr was sentenced to a cumulative period of 6 months in respect of those offences. Notably, he was given a 6 month sentence in respect of one of the two unlawful possession of weapons offences, which was fully suspended. Time spent in per-sentence custody was deemed as time already served in respect of the other offences. A delegate of the Minister issued the applicant a Notification of Intention to Consider Cancellation (NOICC), advising him that the Department of Immigration and Border Protection (the Department) intended to cancel his visa under s.116(1)(e)(ii) of the Act as he is or may be, or would or might be, a risk to the health or safety of an individual or individuals. The grounds for the notice were the November 2017 convictions and penalties. The delegate properly, having regard to s.501CA(5), did not raise or consider the convictions which formed the basis of the 2016 cancellation and revocation decision as a ground for cancellation.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Considering the circumstances as a whole, I am of the view that the discretionary matters weigh in favour of cancellation. I therefore conclude that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Special Category (Subclass 444) visa.Jan RedfernDeputy President

Ratio Decidendi

Legal Principle Established

The letter from the community legal service appears to have been provided in support of the Applicant’s earlier revocation request. It confirms that Mr Carr had sought support and assistance in relation to his participation in the Royal Commission into Institutional Responses to Child Sexual Abuse.CONSIDERATION Does the ground for cancellation exist? The applicant’s visa was cancelled under s.116(1)(e)(ii) of the Act. Subsection 116(1)(e)(ii) provides that a decision maker may cancel a visa if satisfied that the applicant’s presence in Australia is or may be, or would or might be, a risk to the health or safety of an individual or individuals. In this case, the delegate concluded that grounds for cancellation existed. The task of the Tribunal on review is to make the correct and preferable decision, and in so doing, it considers matters afresh based on the material put before it. The Tribunal is not bound by the findings of the delegate.[5] In determining if the ground for cancellation exists, a question arises as to whether the Tribunal is limited to consideration of the facts and circumstances as they existed at the time of the delegate’s decision, or whether it is to consider the facts and circumstances at the time of its own decision. This question is determined by reference to the relevant legislative provision and their statutory context.[6][5] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, also referred to in Shi v Migration Agents Registration Authority [2008] HCA 31 at [98] per Hayne and Heydon JJ. [6] Shi v Migration Agents Registration Authority [2008] HCA 31. In respect of a review of a cancellation decision under s.116, the relevant time at which the facts and circumstances are to be assessed depends on the precise terms of the particular cancellation ground that is relied upon. Relevantly, s.116(1)(e)(ii), provides that the ground is established if the decision maker is satisfied the visa holder would be a risk. The words would be contemplate that circumstances could be altered by intervening events and invites consideration of the factual matters at the time of the Tribunal’s decision[7]. The wording of the provision does not contain a temporal element that confines the Tribunal’s consideration to the circumstances as they existed at the time of the delegate’s decision. Information about circumstances and events that occurred after the delegate’s decision will be relevant.[7] Compare Shi v Migration Agents Registration Authority [2008] HCA 31 at [49] per Kirby J. Accordingly, the question of whether the ground for cancellation exists under s.116(1)(e)(ii) must be assessed at the time of the Tribunal’s decision having regard to all information available to the Tribunal at that time. Subsection 116(1)(e) is engaged where the applicant’s presence in Australia ‘is, or may be, would or might be a risk’. The first limb of the provision (‘is, or may be’) is addressed to circumstances where the applicant is present in Australia and the second (‘would or might be’) where the applicant is outside of Australia.[8] Given the assessment as to whether the ground for cancellation exists is to be determined as at the time of the Tribunal’s decision and that the applicant has left Australia, the grounds for cancellation are established if the applicant’s presence would or might pose a risk to the safety of an individual or individuals.[8] Gong v Minister for Immigration and Border Protection [2016] FCCA 561 at [39] per Judge Smith.