Cockram and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2024] AATA 1210

Cockram and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 1210 (24 May 2024)
Division:GENERAL DIVISION
File Number:2024/0346
Re:COCKRAM, Jessica Katherine
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Hon J Rau SC
Date:24 May 2024
Place:Adelaide

The decision under review is set aside and substituted with a decision that the visa not be refused under s 501(1) of the Act.
...............................[sgnd].........................................
Senior Member Hon J Rau SC
CATCHWORDS
MIGRATION – refusal to grant a Visitor visa (Class FA) under section 501(1) – where Applicant does not pass the character test – Applicant has substantial criminal record –whether the discretion to refuse to grant the visa under section 501(1) should be exercised – consideration of Ministerial Direction No. 99 – decision under review is set aside and substituted with a decision that the visa not be refused under s 501(1) of the Act.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
SECONDARY MATERIAL
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
REASONS FOR DECISION
Senior Member Hon J Rau SC
24 May 2024
INTRODUCTION

Jessica Katharine Cockram (“The Applicant”) seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501(1) of the Migration Act 1958 (Cth) (“the Act”) on 21 December 2023, to refuse to grant a Visitor (Class FA) visa (“the Visa”) to her father, Martin Christopher Sampson Hick (“Mr Hick”).[1] Mr Hick’s application for the visa has been refused by a delegate of the Minister, on the basis that he does not pass the character test (“the Decision”).[2]
[1] Exhibit 3, G-Documents, T3: Letter from the Department to Applicant – Notice of visa refusal, 27.
[2] Ibid 14.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. Mr Hick fails the character test on account of him being convicted of “Theft by employee”, for which he was sentenced to 32 months of imprisonment, on 16 September 2013.[3]
[3] Ibid T4 - Attachment B: Police Certificate (UK) (dated 06.01.2017), 28; T6 - Attachment C: Sentencing Remarks from Liverpool Crown Court 30-2.
The Applicant and Mr Hick concede that he does not pass the character test.
The issue…

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: Cockram and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 1210
Case: [2024] AATA 1210
Decision Date: 24 May 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Visitor visa (Class FA) made by Mr Martin Hick, which had been refused by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on character grounds under section 501(1) of the *Migration Act 1958* (Cth). Mr Hick possessed a substantial criminal record, having been convicted in the United Kingdom for theft by an employee, involving the misappropriation of nearly £159,000 from client accounts over approximately seven years. The Tribunal was required to determine whether the discretion to refuse the visa under section 501(1) should be exercised, having regard to Ministerial Direction No. 99.

The central legal issue was the application of Ministerial Direction No. 99, specifically Primary Consideration 1 concerning the protection of the Australian community. The Tribunal had to assess the nature and seriousness of Mr Hick's past conduct and the risk he posed to the Australian community should he commit further offences. This involved evaluating factors such as the protracted, premeditated, and deceptive nature of his fraud, which constituted a serious breach of trust, and considering whether his offending behaviour indicated a propensity for future criminal activity.

Senior Member Hon J Rau SC reasoned that while Mr Hick's offending was serious, involving a significant breach of trust over an extended period, the proper application of Ministerial Direction No. 99 favoured not exercising the discretion to refuse the visa. The Tribunal found that there was "another reason" to depart from the refusal. Consequently, the decision under review was set aside and substituted with a decision that the visa not be refused under section 501(1) of the Act.

Orders

Orders of the court

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Background

Background to the litigation

Mr Hick gave evidence by telephone from the United Kingdom (UK). He also presented as a credible witness.BACKGROUND FACTS Mr Hick was born on 10 December 1960 in South Hampton, UK. He is 63 years of age. Mr Hick was employed by the “Specter Partnership” as a “Legal Executive”,[5] for approximately 21 years. During his employment, he stole almost £159,000.00 from his employer’s clients’ accounts, over a period of about 7 years.[6] He told the Tribunal that he did this to manage his financial commitments which had become overwhelming, partly due to a house renovation that was unexpectedly expensive, and partly due to interest rates.[5] Not a lawyer.[6] Exhibit 3, G-Documents, T6 - Attachment C: Sentencing Remarks from Liverpool Crown Court 31. On 16 September 2013, Mr Hick was convicted of “Theft by employee”. Judge Brown of the Liverpool Crown Court, sentenced him to 32 months imprisonment.[7][7] Ibid 30-2; T5 - Attachment B: Police Certificate (dated 06.01.2017), 29. Mr Hick’s offending is set out in the sentencing remarks of Judge Brown as follows:“JUDGE BROWN: Martin Hick, for a period of about 21 years you were employed by the Specter Partnership as a qualified Legal Executive. You dealt with probate and conveyancing work and over a period of about seven years you stole almost £159,000 from clients’’ accounts. Mr Linskill rightly describes the fraud as a ‘practised and multi-layered deception’. The fact is it went on for a long period of time, you were in a position of significant trust, a great deal of money is involved and in certain instances false documents were created so that the fraud could be carried out. I am told that the money went into eight different accounts that you held and in total there were some 20 clients of the firm from whom money was taken from their accounts. It is self-evident that this is a very serious case. I am satisfied that when I apply, as I must, the definitive guidance of the Sentencing Guidelines Council in relation to offences of theft involving the breach of trust that this is a category 1 case. That guideline provides a starting point of three years with a range of two to six years but the guideline is upon the basis that either amounts in excess of £125,000 were stolen or amounts in excess of £20,000 where there was a high or significant degree of trust. I am satisfied you fall into that category in the sense that you were a professional person discharging professional duties on behalf of clients, that the clients trusted you implicitly and what is more and equally significant in this case, so did your employers. It is clear from the victim personal statement of Mr Patel that your fraud has had a significant impact upon the firm, an impact in various ways. Staff have been horrified to learn of the extent of your deception, at first simply not believing that you were capable of carrying it out but, more than that, the firm itself have been put to a great deal of trouble and, no doubt, expense in unravelling the fraud and putting matters right. I am told that clients themselves have not suffered so it seems to me the true victims in this case is the firm. They have had the enigmae, the embarrassment of the involvement of the Solicitors’ Regulatory Authority and also the fact that their integrity has been called into question. As I made clear to Mr Linskill, professional bodies, professional firms such as the Specter Partnership depend to a very large extent upon their standing for integrity and honesty and when fraud such as this take place that that is bound to have an impact insofar as the confidence that clients will have in them.Martin Hick, there must clearly be a sentence of imprisonment and a relatively significant sentence. The best point of mitigation you have available to you is the fact you have pleaded guilty. You have done so under the early guilty plea and in view of that I am prepared to give you a full one third discount for it. I also take into account all that has been said on your behalf by Mr Linskill, if I may say so, very eloquently and very realistically. He has said all that could reasonably be said on your behalf and has sought to explain how it came about that you started off committing these offences and then how the situation developed from that. I am mindful that you are of previous good character. I am mindful that the impact of the case is wider than simply the fact you are now facing sentence today. It has obviously had a significant impact on your family life, you are now divorced from your wife and you are not sure how your children are, as it were, going to come to terms with your criminality.Martin Hick, in some respects it is a tragedy to see an individual such as you in this Crown court dock today facing sentence on such a serious matter but punished you must be and, taking into account all of these factors, I have come to the view the appropriate sentence is one of two years and eight months’ imprisonment. [8] Exhibit 3, G-Documents, T6 - Attachment C, 31-2 (corrections have been made and underscored as suggested in the original document).Take him down please.”[8]

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view, the proper application of the Direction favours the Tribunal not exercising discretion to refuse to grant the Visa. I find that there is “another reason” to revoke the original decision.DECISION The decision under review is set aside and substituted with a decision that the visa not be refused under s 501(1) of the Act.

Ratio Decidendi

Legal Principle Established

Mr Hick has been convicted of one very serious offence, that was in 2013. The pattern of conduct underlying that conviction was however, spread over an extended period from 2005 to 2012. The conduct was deliberate, elaborately camouflaged and premeditated.Primary Consideration 1 – Protection of The Australian Community In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.The Nature and Seriousness of the Applicant’s Conduct to Date When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community. Mr Hick’s offending is very serious. It was perpetrated over an extended period of time. It was pre-meditated. It was the subject of elaborate attempts at camouflage. It was only after the Applicant was made redundant, that his protracted fraud was detected. Had he not been made redundant, there is nothing to suggest that the fraud would not have continued. The fraud involved a very serious breach of trust. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;(ii)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;(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.