Dalzell and Minister for Immigration and Multicultural Affairs

Case [2024] ARTA 17

Applicant/s:  Brian David Dalzell

Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number:                2024/8105

Tribunal:General Member Gallagher

Place:Perth

Date:31 December 2024

Decision:The Reviewable Decision, being the decision of the Delegate dated 9 October 2024, to exercise the discretion not to revoke the mandatory cancellation of the Applicant’s Special Category (Temporary) (Class TY) (Subclass 444) visa under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) is affirmed.

...............................................[SGD].........................

General Member

CATCHWORDS

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct  – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 62 year old citizen of New Zealand – extent of impediments if returned to New Zealand – Non-Revocation Decision is affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 5, 15, 32(2)(a)(ii), 189, 196, 197C, 198, 499(1), 499(2A), 500(1)(b), 500(6B), 501, 501E, 501F, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 503, 5001

CASES

HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Lal and Minister for Immigration and Multicultural Affairs [2024] AATA 3504
Tahuriorangi and Minister for Immigration and Border Protection [2018] AATA 2158
FYBR v Minister for Home Affairs [2019] FCAFC 185
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
Siu Kuk Tam and Minister for Immigration and Multicultural Affairs (Decision) (Administrative Review Tribunal, File No 2024/7124, 10 December 2024).
Cowgill and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 729
Singh v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] FCA 1273
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003
NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1
Leo'o Olo and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 2774
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Minister for Home Affairs v HSKJ [2018] FCAFC 217

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

SECONDARY MATERIALS

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Dalzell and Minister for Immigration and Multicultural Affairs [2024] ARTA 17
Case
[2024] ARTA 17
Decision Date

CaseChat Overview and Summary

The case of Dalzell versus the Minister for Immigration and Multicultural Affairs involved a 62-year-old citizen of New Zealand, who had his visa cancelled under section 501(3A) of the Migration Act due to a substantial criminal record. The applicant sought revocation of the cancellation decision under section 501CA of the Migration Act. The central issues before the court were whether the applicant passed the character test and, if not, whether there was another reason for revoking the cancellation decision. The Tribunal considered the primary and other considerations outlined in Direction no. 110, issued by the Minister, which guided the exercise of powers under sections 501 or 501CA of the Migration Act.

The Tribunal concluded that the applicant did not pass the character test, as he had been sentenced to a term of imprisonment of 12 months or more. As the statutory power to revoke the cancellation decision is only activated if there is 'another reason' for revocation, the Tribunal then assessed the primary and other considerations in Direction no. 110 to determine if there was a valid reason to revoke the decision. These factors included the nature and seriousness of the criminal offending, the risk to the Australian community if the applicant were to commit further offences, the strength and nature of the applicant's ties to Australia, the best interests of any children involved, and the expectations of the Australian community.

After reviewing the evidence and considering the primary and other considerations in Direction no. 110, the Tribunal found that there was no 'another reason' to revoke the cancellation decision. The decision of the delegate not to revoke the mandatory cancellation of the applicant's visa was affirmed.

The court's decision highlights the importance of considering all relevant factors, including those outlined in Direction no. 110, when deciding whether to revoke a visa cancellation based on character grounds. It also underscores the need for decision-makers to have a correct understanding of the law and to comply with any relevant directions issued by the Minister.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[23] [23] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, p 136 at [66].THE HEARING AND THE EVIDENCE The hearing was held on 17 December 2024 at the Tribunal’s Perth Registry. The Applicant was represented by Mr Hamish Glenister, of William Gerard Legal. The Respondent was represented by Mr Ashley Burgess of the Australian Government Solicitor. All parties appeared in person. At the hearing, the Applicant gave evidence and was cross-examined. No other witnesses were called. The Tribunal admitted the following documents into evidence:(a)Letter from Applicant dated 10 October 2024 and filed 17 October 2024 (Exhibit A1);(b)Applicant’s Statement of Facts, Issues and Contentions dated and filed 15 November 2024 (Exhibit A2);(c)Applicant’s Parole Plan dated 12 August 2024 and filed 15 November 2024 (Exhibit A3);(d)Letter from Karnet Prison Farm dated 13 August 2024 and filed 10 December 2024 (Exhibit A4);(e)ASETS transcript of the Applicant dated 15 August 2024 and filed 10 December 2024 (Exhibit A5);(f)Applicant’s Parole Order dated 10 October 2024 and filed 10 December 2024 (Exhibit A6);(g)Respondent’s Statement of Facts, Issues and Contentions dated and filed 2 December 2024 (Exhibit R1);(h)Chronology of Applicant’s offending filed 2 December 2024 (Exhibit R2);(i)Respondent’s Section 501G Documents, comprising 145 pages, filed 2 December 2024 (Exhibit R3);(j)Respondent’s Tender Bundle, comprising 249 pages, filed 2 December 2024 (Exhibit R4). The Tribunal has taken into account the additional letters of support from the Applicant’s relatives, friends and community contacts.[24] At hearing, the Tribunal provided the opportunity for the parties to respond to matters put by the Member, directed at matters relevant to ‘Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction no. 110), in their oral closing submissions.[24] See A4 and R3, G5, Attachments H, J, K, L, M and N.DOES THE APPLICANT PASS THE CHARACTER TEST? As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case, a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[25] Failure to pass the character test arises as a matter of law.[26][25] Migration Act, s 501(7)(c).[26] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].

Decision

Reasons for decision

On 19 June 2023, the Delegate cancelled the Applicant’s visa under s 501(3A) of the Migration Act on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act 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 a Territory[13] (the Cancellation Decision). The Applicant was notified by letter of the same date, which he received by hand delivery to Karnet Prison Farm.[14][13] R3, G5, Attachment E.[14] R3, G5, Attachment E, page 57. On 26 June 2023,[15] the Applicant made a request for revocation of the Cancellation Decision and made representations to the Delegate in support of his request for revocation of the Cancellation Decision under s 501CA of the Migration Act.[16][15] Received 3 July 2023 (R3, G5, Attachment F, p 58). [16] R3, G5, Attachment F. On 9 October 2024, the Delegate found that they were not satisfied that there was ‘another reason’ to revoke the Cancellation Decision, therefore the power under s 501CA(4) was not enlivened and the Delegate made the Reviewable Decision.[17] The Applicant was notified of the Reviewable Decision on the same day.[18][17] See [1] above.[18] R3, G8(a) and G9(a). On 14 October 2024, the Applicant lodged an application for review in the Tribunal, for review of the Reviewable Decision.[19][19] R3, G1. On 6 November 2024, the Applicant was released on parole.[20][20] A2, [17]. The Applicant is currently detained at Yongah Hill Immigration Detention Centre.ISSUES The issues before the Tribunal are:(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked.[21]LEGISLATIVE FRAMEWORK[21] See s 501CA(4) of the Migration Act.Migration Act The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision. These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked. The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:(6)For the purposes of this section, a person does not pass the character test if:(a)the person has a substantial criminal record (as defined by subsection (7)); …(Original emphasis.) A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:(7)For the purposes of the character test, a person has a substantial criminal record if: …(a)the person has been sentenced to a term of imprisonment of 12 months or more; …(Original emphasis.)

Ratio Decidendi

Legal Principle Established

Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[29][29] See Migration Act s 501CA(4)(b)(i).CONSIDERATION OF REVOCATION As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction no.110, there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[30] [30] s 501CA(4)(b)(ii) of the Migration Act. The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the Cancellation Decision should be revoked, reasonably and on a correct understanding of the law. By reason of section 499(2A) of the Migration Act, in doing so, the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to section 499(1) of the Migration Act.[31][31] See [38] to [44] below.Direction no. 110 The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[32] By reason of s 499(2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act. [32] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119]. On 7 June 2024, the Minister made Direction no. 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024. This Direction replaced the previous Direction no. 99.[33][33] Direction no. 110, paras 2-3. An objective of Direction no. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[34] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction[34] Direction no. 110, para 5.1(4). [35] Direction no. 110 at [6]. no. 110 where relevant to the decision.[35] Paragraph 5.1 of Direction no. 110 sets out ‘[o]bjectives’ including para 5.1(3) which provides that: Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full­time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.