DND v Minister for Home Affairs (Migration) - [2018] AATA 2716

DND and Minister for Home Affairs (Migration) [2018] AATA 2716 (9 August 2018)
Division:GENERAL DIVISION
File Number(s): 2018/2828
Re:DND
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Mr P W Taylor SC, Senior Member
Date:9 August 2018
Place:Sydney

The delegate’s reviewable decision of 17 May 2018 decision is set aside.
In substitution for the 17 May 2018 decision, the 17 August 2017 decision to cancel the Special Category (Temporary) Class TY Subclass 444 (Special Category) visa is revoked.
......................[sgd]..................................................
Mr P W Taylor SC, Senior Member
Catchwords
MIGRATION – cancellation of Applicant’s visa – whether cancellation of the Applicant’s visa should be revoked – primary considerations – protection of the Australian community – nature and seriousness of the conduct – expectations of the Australian community – assault – shoplifting – robbery – mid range PCA – best interests of minor children in Australia – other considerations –- strength, nature and duration of ties to Australia – impact on victims – decision set aside
Legislation
Children (Criminal Proceedings) Act 1987 (NSW)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
Jagroop v Minister for Immigration & Border Protection [2016] FCAFC 48
Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140
Maioha v Minister For Immigration and Border Protection [2018] FCA 1016
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620
Rodchompoo v Minister for Immigration and Border Protection [2018] FCA 965
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014
REASONS FOR DECISION
Senior Member P W Taylor
9 August 2018

Twenty two year old Mr DND was born in New Zealand in 1996. He came to Australia (with his parents and three year old brother) in February 1997, a few days after his first birthday. Up until he was about 15 he went back to New Zealand for holiday visits, at roughly annual intervals. He also spent about three months in New Zealand in late 2010 and early 2011. Apart from those occasional visits, he has been raised and educated in Australia. Nevertheless, he is a New Zealand citizen and, as such, his entitlement to remain in Australia depends on his visa status:- see Migration…

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

Case: [2018] AATA 2716
Decision Date: 9 August 2018

CaseChat Overview and Summary

This matter concerned an application to revoke the cancellation of the applicant's visa. The applicant, Mr DND, had his visa cancelled due to his criminal conduct, which included assault, shoplifting, robbery, and mid-range drink driving. The dispute before the Senior Member of the Tribunal was whether the cancellation of Mr DND's visa should be revoked, considering various factors including the protection of the Australian community, the nature and seriousness of his conduct, community expectations, the best interests of his minor children in Australia, and his ties to Australia.

The Tribunal was required to determine the weight to be given to "primary" considerations in the context of visa cancellation and revocation. Specifically, it needed to assess the significance of the protection from harm consideration, the governmental commitment to protecting the community from criminal activity of non-citizens, and how to characterise the seriousness of Mr DND's offences. The Tribunal also had to consider the best interests of Mr DND's minor children, the strength and duration of his ties to Australia, and the impact of his conduct on victims, in deciding whether to revoke the visa cancellation.

The Tribunal reasoned that while "primary" considerations are generally given more weight, they are not necessarily determinative. The seriousness of offences, even those attracting custodial sentences, is not always a foregone conclusion and requires regard to factors such as frequency, number, and actual sentences imposed. The Tribunal noted that the actual circumstances of the offences and their sentences provide the best guide to their objective seriousness. In this case, the Tribunal found no evidence of significant impact on victims or specific harm resulting from Mr DND's offences. While protective concerns and community expectations favoured cancellation due to the number and diversity of offences, the Tribunal also acknowledged Mr DND's youth, Australian upbringing, and the limited evidence of significant physical harm, which permitted a degree of tolerance. Crucially, the best interests of Mr DND's three children strongly pointed towards the restoration of his visa, a proposition accepted by the Minister. The Tribunal considered that Mr DND's potential to contribute positively to his children's welfare and to assist CP with parental responsibilities and family income was a significant factor. The Tribunal also noted that a decision to revoke cancellation was not irreversible and that future cancellation remained a possibility if Mr DND re-offended.

The Tribunal ordered that the cancellation of Mr DND's visa be set aside.

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

There was no evidence pointing to any significant impact on any of the persons affected by Mr DND’s various offences. Nor was there a basis for any specific inferential finding that any of his personal conduct in relation to any of his offences had resulted in significant harm.CONCLUSION The protective concerns I have addressed, and the community expectation adumbrated in cl 13.3(1) of Direction no. 65 favour the cancellation of Mr DND’s visa. They do so to varying extents. The community expectation does so more strongly, given the number and nature and diversity of Mr DND’s offences. On the other hand, notwithstanding the significant risk of his re-offending, his youth, his Australian upbringing, and the limited evidence of significant physical harm from his offences, contemplate, and permit, a significant level of tolerance being extended to him. The best interests of JJD, MAFD and RL point towards the restoration of Mr DND’s visa. The Minister’s submissions expressly accepted that proposition. Although that acceptance was expressed as a matter of generality, it is a generality that can be given obvious practical content – in addition to the intangible, but none the less significant “father-child” relationship whose importance the Minister’s submissions accepted. If he were to be able to implement his currently asserted rehabilitative resolve, and take advantage of the employment that is immediately available to him, Mr DND would be in a position to make a significant positive contribution to his young children’s welfare. Such a contingency would also likely benefit CP. It would allow her to share her parental responsibilities, increase the family income, increase the prospect of being re-united with MAFD, and likely improve her prospects of obtaining employment. Those are prospects that merit, and to which I have given, anxious consideration. I have done so against the background of awareness that maintaining the visa cancellation decision has a likely permanent consequence, whereas visa restoration would not preclude future cancellation, if Mr DND were to re-offend. I have also proceeded on the basis that, notwithstanding CP’s willingness to entertain the possibility of ultimately moving to New Zealand, it is an unlikely outcome. She has no current plans to obtain MAFD’s care from her mother, and although she would entertain a future relocation, she is unlikely to accept a long term separation from MAFD. She also has her parental support in Australia, and no connection with New Zealand. The prospect of her moving to New Zealand is a mere, and unlikely, possibility. Having recognised the importance of the “father-child” relationship, and the large step involved in a visa decision that would likely involve permanent parental separation, the Minister’s submissions were to the effect that the “real possibility” of Mr DND’s future relapse into substance abuse, and re-offending would or could have a significant adverse effect on his children and on JJD. That possibility may be accepted, and it is a real concern given the reality of Mr DND’s risk of re-offending. On the other hand, it is clear and uncontentious that, as things presently stand, it is in the best interests of the three children (and especially MAFD and RLD) for Mr DND to remain. It is also the case that some real measure of tolerance is appropriate to be extended, given both that prospect and Mr DND’s long term Australian residence and upbringing. Finally, it is clear that any decision to revoke the visa cancellation decision is far from irreversible. If the contingency of re-offending occurs, with its apprehended potential to adversely affect the best interests of the three children, those interests, and the protective objects of the visa cancellation decision, will be capable of being furthered without emphasis on the tolerance that, in the current circumstances, is appropriate.

Ratio Decidendi

Legal Principle Established

The general guidance that “primary” considerations are to be given more weight than other considerations does not dictate that “primary” considerations must necessarily be accorded determinative weight:- Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28], [44]; HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013 at [34]-[41]. In any particular case, depending on the circumstances, one or more of any permissibly relevant considerations may be determinative of the exercise of the relevant discretion:- YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [59].THE PROTECTION FROM HARM CONSIDERATION The general guidance in cl 6.2(1) of Direction no. 65, and in the corresponding mandatory consideration in cl 13.1(1), emphasises the governmental commitment to protection from harm arising from the criminal activity of non-citizens. That commitment implies limited and, as the principles convey, generally low tolerance – especially in relation to “serious” offences. There is a sense in which all offences can be regarded as “serious”, and especially where they result in a custodial sentence:- see e.g., cl 6.2(1), 6.3(5), 6.3(6); 9.1(1), 9.1.2(2), 13.1(1), 13.1.2(2). But parts of Direction no. 65 implicitly disavow the inevitability of such a classification. Clause 13.1.1(1)(a), for example, contemplates that a wide range of offences “may” be considered serious. This permission implies a corresponding recognition that such a characterisation is neither mandatory, nor even appropriate, for some offences. Similarly, cl 13.1.1(c) to (e) require regard to the frequency and number of offences, as well as to the actual sentence imposed. Those obligations provide further context to the permission, and also tend against the conclusion that individual sentences, even of 12 month’s imprisonment, must necessarily be regarded as determinatively serious. Elsewhere, the statement of principles in Direction no. 65 cl 6.3(2)&(3) use, but do not define, the expression “serious crime”. Similar expressions (“serious” Australian and foreign offences) are defined in MigAct58 s 5. The general thrust of those definitions is that they mean offences that (i) involve violence, serious property damage or serious drug offences, and (ii) are punishable by imprisonment for three years or more. The exegesis in cl 13.1.1(a) & (b) of Direction no. 65 provides an analogous categorisation. It points to the likelihood that “serious crime” includes violent and sexual crimes, as well as crimes against officials and vulnerable victims. All of those matters provide insight into the exercise involved in determining whether one or more of the offences of which a particular individual has been convicted merit characterisation, for the purposes of the revocation discretion, as “serious”. But they ought not be regarded as the sole, or even the necessarily determinative, source of information relevant to the characterisation. As Buchanan J emphasised in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 (at [202] & [207]) a visa applicant / former visa holder is entitled to have their application assessed with proper regard to the merits of their particular circumstances. The best guide to the objective seriousness of a particular person’s offences comes from an understanding of the actual circumstances involved in the various offences and their sentences.MR DND’S JUVENILE OFFENCES