DFNM and Minister for Home Affairs (Migration) [2019] AATA 3769 (24 September 2019)
Division:GENERAL DIVISION
File Number(s): 2016/0331
Re:DFNM
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:24 September 2019
Place:Melbourne
The Tribunal decides to:
1.set aside the decision made by a delegate of the Minister on 14 January 2016 under s 501CA(4) of the Migration Act 1958 refusing to revoke the cancellation of DFNM’s Class BS Subclass 801 Partner (Residence) visa on 22 April 2015 under s 501(3A); and
2.substitute a decision that the cancellation of DFNM’s Class BS Subclass 801 Partner (Residence) visa under s 501(3A) be revoked under s 501CA(4).
[sgd]....................................................................
S A FORGIE
Deputy President
Catchwords
MIGRATION – mandatory visa cancellation due to substantial criminal record - refusal to revoke mandatory cancellation – decision set aside
Legislation
Administrative Appeals Tribunal Act 1975 ss 29, 43(1)
Australian Human Rights Commission Act 1986 Schedule 2
Migration Act 1958 ss 5(1), 5H to 5M, 36, 36(1A) to 36(7), 65, 84, 86, 197A, 197C, 499, 499(1), 499(2), 501, 501(1), 501(2), 501(3A), 501(3A)(a) and (b), 501(CA), 501CA(3), 501CA(4), 501CA(4)(b)(ii)
Cases
A v Minister for Immigration and Multicultural Affairs [1999] FCA 227
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83; (2015) 231 FCR 513
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; [2017] 248 FCR 456; (2017) 248 FCR 456
Betkoshabeh v Minister for Immigration and Multicultural Affairs [1998] FCA 934; (1998) 84 FCR 463; 157 ALR 95; 28 AAR 21; 51 ALD 328
CRI026 v Republic of Nauru [2018] HCA 19; (2018) 355 ALR 216
DKXY v Minister for Home Affairs [2019] FCA 495
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
GBV18 v Minister for Home Affairs [2019] FCA 1132
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Immigration and Border Protection v Le [2016] FCAFC 120; (2016) 244 FCR 56; 341 ALR 112; 154 ALD 104
Minister for Immigration and Citizenship v Anochie [2012] FCA 1440; (2012) 209 FCR 497; 299 ALR 280; 59 AAR 65; 133 ALD 100
Omar v Minister for Home Affairs [2019] FCA 279
Re QKVH and Minister for Home Affairs [2018] AATA 1855
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Uelese v Minister for Immigration [2015] HCA 15; (2015) 256 CLR 203; 319 ALR 181; 66 AAR 136; 151 ALD 107
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Direction No.65 made under s 499 of the Migration Act 1958
Direction No.79 made under s 499 of the Migration Act 1958
International Covenant on Civil and Political…
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- DFNM and Minister for Home Affairs (Migration) [2019] AATA 3769
- Case
- [2019] AATA 3769
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the decision-maker had properly considered the relevant factors when refusing to revoke the mandatory visa cancellation. Specifically, the court was required to determine if the decision-maker had adequately had regard to the nature and seriousness of DFNM's criminal offending, as outlined in paragraph 13.1.1 of the relevant ministerial directions.
The court's reasoning focused on the application of the factors listed in paragraph 13.1.1. While the decision-maker was required to consider these factors, the court found that the decision did not demonstrate a proper consideration of DFNM's circumstances in light of those factors. The court noted that DFNM had been in Australia for five years without prior police attention before committing the offences between May and December 2013. His offending occurred during a period of despondency following the breakdown of his marriage and meeting new associates. The court implied that the decision-maker had not adequately weighed these mitigating circumstances against the seriousness of the offending, particularly in the context of the factors provided for consideration.
Orders
Orders of the court
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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
Paragraph 13.1.1 goes on to expand on the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:“a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;c)The principle that 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, are serious;d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;f)The cumulative effect of repeated offending;g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour); i)Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act; [sic]”[22][22] Section 197A of the Migration Act states that “A detainee must not escape from immigration detention. Penalty: Imprisonment for 5 years.”A.1 Consideration When he came to Australia to marry his former wife in 2008, DFNM started work and lived his life without coming to the notice of police at all. Even when his marriage began to unravel later in 2008, he kept working and trying to keep his marriage together. He continued to work when his marriage came to an end but he allowed despondency and despair to overtake him in at approximately the end of 2011 or beginning of 2012. He blamed his doing so on his having met some “bad people” and being in a very dark place because of the breakdown of his marriage and the very “bad things” that his wife and her family had said to him. At about the same time, he had met Layla and fell in love with her. Despite his love for Layla, the need for the drugs became such that he committed offences. The offences he committed extended from May to December 2013. By then, he had been some five years in Australia without ever coming to police attention.