CVA and MINISTER FOR IMMIGRATION AND CITIZENSHIP - [2011] AATA 742

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 742
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/3101

GENERAL ADMINISTRATIVE DIVISION )

Re CVA

Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe
Date 24 October 2011
Place Brisbane

Decision
1. The Tribunal sets aside the decision and remits it for reconsideration pursuant to s 43(1)(c)(ii) of Administrative Appeals Tribunal Act 1975 so that further evidence can be obtained about (a) the stalking conviction; (b) the risk of the applicant re-offending; and (c) the relationship with his step-daughter.

2. Pursuant to s 35 of the Administrative Appeals Tribunal Act 1975, the Tribunal vacates the directions under s 35 made on 3 October 2011 and now directs (a) the reasons for decision in this case be published under a pseudonym; (b) the identity of the applicant not be published to any person apart from the parties and their legal representatives and the Tribunal’s staff; and (c) documents provided to the Tribunal under summons not be published to any person apart from the parties and their representatives and the Tribunal staff.

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Senior Member

CATCHWORDS
CITIZENSHIP AND IMMIGRATION — immigration — section 501 visa cancellation — substantial criminal record — character test — protection of Australian community — insufficient evidence on risk of reoffending — insufficient evidence on risk to step-daughter — public attitude — decision set aside and remitted
Administrative Appeals Tribunal Act 1975, ss 33, 35, 43
Migration Act 1958, ss 499, 501
Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690
REASONS FOR DECISION

24 October 2011 Senior Member Bernard J McCabe

1.      The applicant has a substantial criminal record within the meaning of s 501 of the Migration Act 1958. On that basis, the Minister for Immigration and Citizenship has properly concluded the applicant does not pass the character test imposed under that section. It follows the discretion in s 501(2) to cancel the applicant’s visa has been enlivened. The Minister decided the visa should be cancelled. That decision was communicated to the applicant in a letter dated 26 July 2011. The applicant has asked the Tribunal to reconsider the matter.
2. I have decided to set the decision aside and remit the matter for reconsideration pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975. I explain my reasons (including the terms of the remittal) below.
Cancelling a visa under s 501 of the Migration Act 1958
3.      The applicant in this case has a substantial criminal record within the meaning of s 501(7) because he has been convicted and sentenced to a term of imprisonment of more than 12 months. He is therefore unable to satisfy the character test set out in s 501(6). Having failed that test, the power to cancel the visa is enlivened. But the power to cancel is discretionary.
4.      The Minister has prepared a direction that is intended to guide the exercise of the discretion. It is…

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: CVA and MINISTER FOR IMMIGRATION AND CITIZENSHIP [2011] AATA 742
Case: [2011] AATA 742
Decision Date: 24 October 2011

CaseChat Overview and Summary

The applicant, a non-citizen, challenged the decision of the Minister for Immigration and Citizenship to cancel his visa under section 501 of the Migration Act 1958 on the grounds of a substantial criminal record. The dispute was brought before the Administrative Appeals Tribunal (AAT). The primary issue before the Tribunal was whether the Minister's decision to cancel the visa was lawful and supported by sufficient evidence. Specifically, the Tribunal had to consider whether the Minister appropriately assessed the risk of the applicant reoffending and the risk to his step-daughter, and whether the decision adequately protected the Australian community.

The Tribunal found that the decision lacked sufficient evidence to support the Minister's conclusion that the applicant posed a risk of reoffending. There was also insufficient evidence regarding the risk to the applicant's step-daughter. The Tribunal emphasised that the Minister needed to consider public attitudes and provide adequate reasons for the decision. The evidence provided did not sufficiently address these concerns. Consequently, the Tribunal determined that the decision did not meet the statutory requirements and was flawed.

Accordingly, the Tribunal set aside the decision and directed that it be remitted for reconsideration. The Tribunal required further evidence on several points: the nature of the stalking conviction, the risk of reoffending, and the relationship with the step-daughter. Additionally, the Tribunal issued directions under section 35 of the Administrative Appeals Tribunal Act 1975 to ensure the applicant's anonymity and to control the publication of sensitive information. The decision was to be published under a pseudonym, and the applicant's identity was to be protected from public disclosure, except to the parties, their legal representatives, and the Tribunal's staff.

Orders

Orders of the court

1. The Tribunal sets aside the decision and remits it for reconsideration pursuant to s 43(1)(c)(ii) of Administrative Appeals Tribunal Act 1975 so that further evidence can be obtained about (a) the stalking conviction; (b) the risk of the applicant re-offending; and (c) the relationship with his step-daughter.

2. Pursuant to s 35 of the Administrative Appeals Tribunal Act 1975, the Tribunal vacates the directions under s 35 made on 3 October 2011 and now directs (a) the reasons for decision in this case be published under a pseudonym; (b) the identity of the applicant not be published to any person apart from the parties and their legal representatives and the Tribunal’s staff; and (c) documents provided to the Tribunal under summons not be published to any person apart from the parties and their representatives and the Tribunal staff.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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