Davies and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2024] AATA 66

Davies and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 66 (25 January 2024)
Division:GENERAL DIVISION
File Number:2023/8358
Re:Toni-Michelle DAVIES
APPLICANT

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

DECISION
Tribunal:Senior Member Hon J Rau SC
Date:25 January 2024
Place:Adelaide

The Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the Applicant’s visa be revoked.
..............................[sgnd]..........................................
Senior Member Hon J Rau SC
CATCHWORDS
MIGRATION – mandatory cancellation of Absorbed Person visa under section 501(3A)- where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancelation under section 501CA(4) should be exercised – consideration of Ministerial Direction No. 99 – strong links to the Australian community decisive - decision under review is set aside.
LEGISLATION
Migration Act 1958 (Cth)
Commonwealth Electoral Act 1918 (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
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
25 January 2024
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA (4) of the Migration Act 1958 (Cth) (“the Act”) on 6 November 2023, not to revoke the mandatory cancellation of her Absorbed Persons visa (“the Visa”). Her visa was cancelled on 24 August 2023 under s 501(3A) on the basis that she did not pass the character test.[1]
[1] Exhibit 3, G3 Letter from Department to applicant – Notification of decision not to revoke visa cancellation decision, 11-28.
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. The Applicant fails the character test on account of being sentenced to imprisonment for 3 years, 4 months and 25 days on 17 March 2022.[2]
[2] Ibid, G4 Attachment A: National Criminal History Check (dated 29.08.23), 30.
The Applicant concedes that she does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The hearing was held on 18 January 2024. The Applicant was self-represented, and the Respondent was represented by Mr Alex Chan of Sparke Helmore.
The Applicant gave evidence in person. Her evidence was generally given in a straightforward manner. There were however some…

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.

Continue reading Davies and Minister for Immigration, Citizenship, Migrant Se...

Details

AGLC: Davies and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 66
Case: [2024] AATA 66
Decision Date: 25 January 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Ms. Davies, who sought to have the mandatory cancellation of her visa revoked. The dispute arose because Ms. Davies did not pass the character test due to a substantial criminal record, leading to the cancellation of her visa under section 501(3A) of the *Migration Act 1958* (Cth). The Tribunal was tasked with determining whether there was another reason why the original decision to cancel her visa should be revoked under section 501CA(4) of the Act.

The Tribunal was required to assess whether the discretion to revoke the visa cancellation should be exercised, having regard to Ministerial Direction No. 99. This involved considering various factors, including the nature and seriousness of Ms. Davies' conduct, the risk to the Australian community, and the strength of her ties to Australia. A key principle guiding the Tribunal's decision was the expectation that non-citizens who have lived in the Australian community for most of their lives, particularly from a young age, may be afforded a higher level of tolerance for criminal or serious conduct.

In its reasoning, the Tribunal acknowledged Ms. Davies' substantial criminal record, including a conviction for a serious offence. However, it placed significant weight on the fact that Ms. Davies arrived in Australia as a young child and had resided in the country for the vast majority of her life. The Tribunal found that her strong links to the Australian community were a decisive factor in exercising its discretion. Consequently, the Tribunal ordered that the decision under review be set aside.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Applicant did not call any witnesses.Background Facts The Applicant was born in the United Kingdom (UK) on 4 November 1967. She is now 56 years of age. She arrived in Australia with her family on 12 September 1971, when she was a two and a half-year-old child.[3] They initially lived in Western Australia.[4][3] Ibid G5: Attachment B: Sentencing remarks of the District Court of South Australia at Adelaide (dated 17.03.23), 32; G10 Attachment D: Personal Circumstances Form (dated 01.09.23), 51. [4] Ibid G11: Attachment E: Letter from Ms Toni-Michelle Davies (dated 20.09.23), 63; G15 Attachment I: Incoming Passenger Card (dated 12.09.71), 73. When she was 12 years old, her parents divorced. Her father returned to the UK. She says in a statement dated 20 September 2023 that she has had no contact with him for over 20 years. She is unsure if he is still alive.[5] This is inconsistent with the information that she provided to Dr Lim on 23 November 2021:“Around 1978 or 1979, Ms Davies reported that her parents made the decision to separate in the context of her mother’s suspected affair with another man. Her father subsequently returned to the UK permanently while Ms Davies and her younger brothers remained in their mother’s care. She stated that her father has remarried and that she was in constant touch with him via the telephone up until about 5 to 6 years ago, when they both changed their phone numbers around the same time and consequently lost contact with each other. Ms. Davies reported that she has recently learnt from an aunt back in the UK that her father is still alive and is wanting to re-establish contact with her, which she is also keen to do but she intends to wait until after her legal matters are resolved and her emotional state is "less stressed" before she does so...” [6][5] Ibid G11, 63.[6] Exhibit 4, Applicant’s Tender Bundle, Forensic Psychological Report, 28. The Applicant was unable to explain how this discrepancy arose. In her evidence, she stuck to the version in her statement of 20 September 2023. It is inconceivable that Dr Lim simply fabricated the Applicant’s history of contact with her father. This reflects poorly on her reliability as a witness. When she was 15 ½ she moved to Adelaide with her mother and 2 younger brothers. Halfway through year 10 she left school and worked in a snack bar. At about the age of 16, she became a cannabis user. She has been a regular user ever since. Her mother remarried when she was about 17. She has had a poor relationship with her stepfather and has had issues with her stepsiblings. At about 18 years of age, she moved out of home and lived with friends. She returned home periodically. She had a good relationship with her mother.[7] Her mother passed away on 3 October 2023.[8][7] Ibid.[8] Exhibit 3, G7 Attachment B.2: Adelaide Women's Prison report from Department of Correctional Services (dated 09.10.23), 39. In October 1987 (when she was 19 years old), the Applicant’s oldest daughter (A.D) was born.[9] A. D’s biological father did not remain on the scene. She is now 36 years old with 2 sons, Child A (aged 17) and Child B (aged 9).[9] Ibid G3, 23.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, she does not pass the character test. This is not disputed by the Applicant. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.Is there another reason why the original decision should be revoked under section 501CA(4)? In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[31] [31] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90, this in turn was replaced by Direction 99 on 3 March 2023. For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

Ratio Decidendi

Legal Principle Established

The Applicant’s serious offending began later in her life. Her first conviction occurred when she was 48 years old. She has been convicted on only one occasion of a very serious offence. That was the subject of the custodial sentence imposed on 17 March 2022.[34] She was however, deeply entrenched in a drug using subculture in Murray Bridge, for many years. Her associates and even her oldest daughter A.D. were drug users and/or street level dealers. She was a street level dealer for some time before she was apprehended. Despite her protestations, it is questionable whether she was dealing only to fund her own addiction.[34] Exhibit 3, G4, 29-30. 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. The Applicant’s conviction on 17 March 2022 is in respect of a very serious offence, as noted by the sentencing Judge.[35] She was characterised as a “street level dealer”. I accept that in the hierarchy of drug supply, the Applicant occupied a relatively minor position.[35] Ibid G5, 31-35. 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.