DKXY and Minister for Home Affairs (Migration) - [2018] AATA 3779

DKXY and Minister for Home Affairs (Migration) [2018] AATA 3779 (10 October 2018)
Division:GENERAL DIVISION
File Number(s): 2018/4147
Re:DKXY
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member K Raif
Date:10 October 2018
Place:Sydney

The Tribunal affirms the decision of the delegate dated 18 July 2018, to not revoke the cancellation of the applicant’s visa.
......................[SGD]..................................................
Senior Member K Raif
CATCHWORDS
MIGRATION – Class CD Subclass 851 Resolution of status visa – mandatory cancellation – non-revocation – failure to pass the character test – Ministerial Direction No 65 – protection of the Australian community – expectations of the Australian community – international non-refoulement obligations – Ministerial Direction No 75 – protection claims – strength nature and duration of ties – hardship in the event of removal – North Korea – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 197C, 198, 499, 501, 501CA
Migration Regulations 1994 (Cth) Schedules 1, 4
CASES
Ali v Minister for Immigration and Border Protection [2018] FCA 650
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
Do and Minister for Immigration and Border Protection [2016] AATA 390
The Trustee for the Fuzzy Events Unit Trust v Minister for Home Affairs [2018] AAT 3273
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA
Direction No. 75, Refusal of Protection visa relying on section 36(1C) and section 36(2C)(b)
REASONS FOR DECISION
Senior Member K Raif
10 October 2018
BACKGROUND

This is an application for review of the decision of the delegate of the Minister for Home Affairs (“the Minister”) not to revoke the cancellation of a Class CD Subclass 851 Resolution of Status visa (“the visa”) held by the applicant.
The applicant is a national of North Korea born in May 1967. The last substantive visa that was granted to the applicant was issued in April 2011. In August 2008 the applicant was convicted of an offence ‘supply a prohibited drug’ and was given a two year and three months term of imprisonment. In June 2015 the applicant was convicted of an offence ‘supply prohibited drug’ and was given a six year term of imprisonment.
On 17 May 2017 a decision was made to cancel the visa held by the applicant under s. 501(3A) of the Migration Act 1958 (Cth) (“the Act”) because it was determined that the applicant did not pass the character test. The applicant was invited, and made representations about the revocation of the decision to cancel his visa. On 18 July 2018 a decision was made under s. 501CA(4) not to revoke visa cancellation. This is the decision under review.
The issues before the Tribunal are:
(a)does the applicant pass the character test, as defined by s. 501; and, if not,
(b)is there another reason why the…

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 DKXY and Minister for Home Affairs (Migration)

Details

AGLC: DKXY and Minister for Home Affairs (Migration) [2018] AATA 3779
Case: [2018] AATA 3779
Decision Date: 10 October 2018

CaseChat Overview and Summary

This matter concerned an application by DKXY for the revocation of a mandatory cancellation of his Resolution of Status (Class CD Subclass 851) visa. The applicant sought revocation on the grounds that he passed the character test, or alternatively, that there was another reason why the original decision should be revoked. The Administrative Appeals Tribunal considered the applicant's submissions and evidence in light of Ministerial Direction No 65, which guides decisions on visa cancellations and revocations.

The primary legal issue before the Tribunal was whether the applicant passed the character test, and if not, whether there were compelling reasons to revoke the cancellation decision. This involved assessing the protection of the Australian community against the applicant's circumstances, including the strength, nature, and duration of his ties to Australia, and any hardship he might face upon removal. The Tribunal was required to consider the applicant's criminal history, specifically two convictions for supplying a prohibited drug, with sentences of imprisonment exceeding 12 months, and other driving offences.

The Tribunal reasoned that the applicant did not pass the character test due to his substantial criminal record, which included two serious drug supply convictions and other offences over a significant period. The Tribunal found the nature and seriousness of the offending, particularly the cumulative effect and the increasing severity of the drug offences, weighed heavily against revocation. While acknowledging the applicant's claims of reform, remorse, and overcoming drug dependence, supported by psychiatric reports, the Tribunal noted that the risks of reoffending were assessed as "probably moderate." The Tribunal concluded that the protection of the Australian community was a paramount consideration and that the applicant's criminal conduct was a serious concern, outweighing other considerations.

The Tribunal affirmed the original decision to cancel the applicant's visa and therefore refused to revoke the cancellation.

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

The Tribunal finds that the applicant has been sentenced to terms of imprisonment of 12 months or more. He has a substantial criminal record as defined in s. 501(7)(c) and (d) of the Act. As the applicant has a substantial criminal record, he does not pass the character test. The applicant concedes that he does not pass the character test.IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED? The applicant made a request for revocation of the cancellation decision on 1 June 2017. The Tribunal has considered the applicant’s comments, in addition to the evidence subsequently provided to the Tribunal by the applicant and the respondent. The Tribunal’s considerations are set out below with regard to the Direction 65.Primary considerations Protection of the Australian community As noted above in paragraphs 2 and 15, in 2008 the applicant was convicted for supplying a prohibited drug and received a sentence of imprisonment of 2 years and 3 months. In 2015 the applicant was again convicted of supplying a prohibited drug and received a sentence of 6 years. The applicant has been convicted of two drug related offences over a period of seven years. Having served more than a year in prison following the conviction in 2008 for supplying a prohibited drug, the applicant reoffended in 2015. In his written submission to the Tribunal the applicant states that on that occasion, he had supplied 385.3 grams of methylamphetamine. The applicant has also been convicted of driving offences, having received several fines in November 2004 and a good behaviour bond in February 2007. The Tribunal considers the nature of the offending serious. The offences took place over a lengthy period of time. The two sentences indicate that the second offence was considered more serious by the court, with the applicant receiving a substantially lengthier sentence compared to the first conviction. The Tribunal finds that the frequency and cumulative effect of the applicant's criminal offending is a matter of serious concern. The nature and seriousness of his offending weighs heavily against him. The applicant would have recognised the significance of his offending and had the opportunity to reform following the earlier conviction. The applicant agrees in his written submission to the Tribunal that while not extensive, his offending is serious. The applicant also accepts that there was a general trend of increasing seriousness with respect to his criminality. The applicant agrees that cl. 13.1.1 of the Direction weighs against the revocation. The applicant also acknowledges that if he were to engage in further criminal conduct, this may result in harm to others. The applicant claims that he changed as a result of his imprisonment. He states that he no longer uses drugs and the main reason for his past drug offences was to finance his own drug habit. The applicant states that he is remorseful about his past conduct and has reformed. The applicant relies on the psychiatric reports by Dr Furst and Dr Elliot which refer to the applicant overcoming his dependence on drugs, accepting responsibility for the offending behaviour and his expression of remorse.

Ratio Decidendi

Legal Principle Established

The applicant made a request for revocation of the cancellation decision on 1 June 2017. The Tribunal has considered the applicant’s comments, in addition to the evidence subsequently provided to the Tribunal by the applicant and the respondent. The Tribunal’s considerations are set out below with regard to the Direction 65.Primary considerations Protection of the Australian community As noted above in paragraphs 2 and 15, in 2008 the applicant was convicted for supplying a prohibited drug and received a sentence of imprisonment of 2 years and 3 months. In 2015 the applicant was again convicted of supplying a prohibited drug and received a sentence of 6 years. The applicant has been convicted of two drug related offences over a period of seven years. Having served more than a year in prison following the conviction in 2008 for supplying a prohibited drug, the applicant reoffended in 2015. In his written submission to the Tribunal the applicant states that on that occasion, he had supplied 385.3 grams of methylamphetamine. The applicant has also been convicted of driving offences, having received several fines in November 2004 and a good behaviour bond in February 2007. The Tribunal considers the nature of the offending serious. The offences took place over a lengthy period of time. The two sentences indicate that the second offence was considered more serious by the court, with the applicant receiving a substantially lengthier sentence compared to the first conviction. The Tribunal finds that the frequency and cumulative effect of the applicant's criminal offending is a matter of serious concern. The nature and seriousness of his offending weighs heavily against him. The applicant would have recognised the significance of his offending and had the opportunity to reform following the earlier conviction. The applicant agrees in his written submission to the Tribunal that while not extensive, his offending is serious. The applicant also accepts that there was a general trend of increasing seriousness with respect to his criminality. The applicant agrees that cl. 13.1.1 of the Direction weighs against the revocation. The applicant also acknowledges that if he were to engage in further criminal conduct, this may result in harm to others. The applicant claims that he changed as a result of his imprisonment. He states that he no longer uses drugs and the main reason for his past drug offences was to finance his own drug habit. The applicant states that he is remorseful about his past conduct and has reformed. The applicant relies on the psychiatric reports by Dr Furst and Dr Elliot which refer to the applicant overcoming his dependence on drugs, accepting responsibility for the offending behaviour and his expression of remorse. Importantly, Dr Elliot states in his report of 25 September 2014 that the applicant “appears to have achieved psychological abstinence from methamphetamines with the enforced abstinence from the drug in a custodial sentence”. In the psychiatric report dated 28 February 2015 Dr Furst supports the applicant’s claim that his own use of methylamphetamine “probably contributed to the offences”, but also notes that “financial profit was probably the most significant motivating factor” [for the offences]. Dr Furst acknowledges that the applicant has accepted guilt and expressed remorse and appears motivated to engage in appropriate drug and alcohol counselling and / or rehabilitation but concludes that the risks of reoffending are “probably moderate”. Dr Elliot suggests outpatient drug and alcohol counselling to reinforce [the applicant’s] resolve although there is no evidence before the Tribunal that such counselling was offered or undertaken.