DXTG and Minister for Home Affairs (Migration) - [2019] AATA 151

DXTG and Minister for Home Affairs (Migration) [2019] AATA 151 (14 February 2019)
Division:GENERAL DIVISION
File Number: 2018/7001
Re:DXTG
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:The Hon. Matthew Groom, Senior Member
Date:14 February 2019
Place:Melbourne

The Tribunal affirms the decision under review.
......[sgd].............................................
Senior Member
Catchwords
MIGRATION – visa refusal – citizen of Vietnam – failure to pass the character test – serious criminal offending – where offences committed whilst unlawful – where protection and expectations of Australian community outweigh other considerations – decision under review affirmed
Legislation
Migration Act 1958
Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
Greene v Assistant Minister for Home Affairs [2018] FCA 919
Turay v Assistant Minister for Home Affairs [2018] FCA 1487
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Ministerial Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
National Drug Strategy 2017-2026 – Publications Number: 11814
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
14 February 2019
INTRODUCTION

This is an expedited review of a decision made by a delegate of the respondent to refuse an application for a Bridging E (Class WE) visa under s 501(1) of the Migration Act 1958 (the Act).
The delegate’s decision was made on 19 November 2018.
The applicant sought a review by the Administrative Appeals Tribunal of the delegate’s decision on 29 November 2018, within the timeframe provided for in s 500(6B) of the Act.
The Tribunal must make its decision by 14 February 2019 otherwise the delegate’s decision is taken to be affirmed.[1]
[1] Section 500(6L) of the Act.
The hearing in this matter was conducted on 4 February 2019. The respondent was represented by Ms Katherine Whittemore and the applicant was represented by Ms Joey Tran. In reaching its decision, the Tribunal has carefully considered the oral testimony of the applicant and the applicant’s youngest sister, as well as all of the documentary evidence before it.
BACKGROUND
General background
The applicant is a 32 year old citizen of Vietnam who arrived in Australia on 14 February 2011 as the holder of a family sponsored visitor visa.[2] The evidence before the Tribunal was that the applicant’s visa expired after three months and he has been living in Australia without a valid visa since that date.
[2] G Documents (GD) 12, p77.
The applicant married an Australian citizen in July 2014.
On 23 September 2015, the applicant was convicted in the Melbourne County Court on two counts of theft and single counts of “cultivate narcotic plant commercial quantity – cannabis” and “traffic drug of dependence”. The applicant was sentenced to an accumulative term of imprisonment of three years and six months.[3] Following his release from prison the applicant was placed back into immigration detention.
[3] GD 3.
On 10 July 2017 the applicant…

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 DXTG and Minister for Home Affairs (Migration)

Details

AGLC: DXTG and Minister for Home Affairs (Migration) [2019] AATA 151
Case: [2019] AATA 151
Decision Date: 14 February 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of a 32-year-old citizen of Vietnam who had overstayed his visa and subsequently committed serious criminal offences. The applicant had arrived in Australia in 2011 and remained in the country unlawfully after his visitor visa expired. In 2015, he was convicted of theft, cultivating a commercial quantity of cannabis, and trafficking a drug of dependence, receiving a sentence of three years and six months imprisonment. Following his release, he was placed in immigration detention.

The Tribunal was required to determine two key issues: first, whether the applicant passed the character test as defined in section 501(6) of the Migration Act 1958 (Cth), and second, if he failed the character test, whether to exercise the discretion under section 501(1) of the Act to refuse his visa application. In considering the exercise of this discretion, the Tribunal was mandated to apply the principles outlined in Ministerial Direction No. 65.

The Tribunal found that the applicant failed the character test because he had a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more. In exercising its discretion under section 501(1), the Tribunal applied Ministerial Direction No. 65, which requires consideration of the protection of the Australian community from criminal or other serious conduct. The Tribunal acknowledged the serious nature of the applicant's past offending and the significant risk his release could pose to the community. While recognising that granting the visa might serve the best interests of the applicant's Australian nieces and considering the potential impact of refusal on his family and his concerns about returning to Vietnam, the Tribunal concluded that the overall balance of considerations favoured refusing the visa.

Consequently, the Tribunal affirmed the decision under review, which was the refusal of the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

The hearing in this matter was conducted on 4 February 2019. The respondent was represented by Ms Katherine Whittemore and the applicant was represented by Ms Joey Tran. In reaching its decision, the Tribunal has carefully considered the oral testimony of the applicant and the applicant’s youngest sister, as well as all of the documentary evidence before it.BACKGROUNDGeneral background The applicant is a 32 year old citizen of Vietnam who arrived in Australia on 14 February 2011 as the holder of a family sponsored visitor visa.[2] The evidence before the Tribunal was that the applicant’s visa expired after three months and he has been living in Australia without a valid visa since that date.[2] G Documents (GD) 12, p77. The applicant married an Australian citizen in July 2014. On 23 September 2015, the applicant was convicted in the Melbourne County Court on two counts of theft and single counts of “cultivate narcotic plant commercial quantity – cannabis” and “traffic drug of dependence”. The applicant was sentenced to an accumulative term of imprisonment of three years and six months.[3] Following his release from prison the applicant was placed back into immigration detention.[3] GD 3. On 10 July 2017 the applicant applied for a protection visa. The application was subsequently refused and that decision is the subject of a current merits review application before the Administrative Appeals Tribunal in a separate proceeding. The applicant’s mother and youngest sister migrated to Australia from Vietnam in 2005. Another sister has also previously migrated to Australia. The applicant has an older brother as well as his father, from whom he is estranged, still living in Vietnam. He also has a third, adopted, sister currently living in Japan.ISSUES The Tribunal is required to determine two issues in making its decision. It must first determine whether the applicant passes the character test under s 501(6) of the Act. If satisfied that the applicant does not pass the character test, it must then consider whether to exercise the discretion under s 501(1) of the Act to refuse his application for a visa. The Tribunal is required to apply the relevant considerations in Ministerial Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction) in determining whether the discretion should be exercised.CONSIDERATIONThe Character Test In accordance with s 501(1) of the Act, the Minister may refuse to grant a visa to a person if the person does not pass the “character test” as defined in s 501(6). A person will not pass the character test under s 501(6)(a) if the person has a substantial criminal record. The term ‘substantial criminal record’ is defined in s 501(7) of the Act. Relevantly, under the section, a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more. The fact that the applicant was sentenced to a term of imprisonment exceeding 12 months for his offences in 2015 is consistent with the evidence before the Tribunal and was not in contention between the parties. Accordingly, the Tribunal finds that the applicant has a substantial criminal record for the purpose of s 501(7) of the Act and that he therefore fails the character test under s 501(6).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal recognises the serious nature of the applicant’s prior offending. The Tribunal acknowledges the significant risk the applicant’s release could pose to the Australian community. The Tribunal recognises that the best interests of the applicant’s Australian nieces would be served by granting the visa although this is mitigated by a number of factors. The Tribunal has had particular regard to the impact a refusal of the applicant’s visa may have on the applicant’s family members and also the concerns the applicant has raised in respect of his return to Vietnam. Having very carefully weighed all of the considerations, the Tribunal is satisfied that the overall balance falls in favour of a decision to refuse the visa.DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Having determined that the applicant does not pass the character test, the Tribunal must determine whether to exercise the discretion to refuse the applicant’s visa under s 501(1). In so doing, the Tribunal must consider the guidance provided in the Direction. The relevant part of the Direction to be applied in these circumstances is Part B. Each of the relevant considerations is dealt with below. Primary ConsiderationsProtection of the Australian community from criminal or other serious conduct Paragraph 11.1(1) of Direction 65 provides that when decision-makers are considering the protection of the Australian community they:…should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision‑makers should also 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. Section 11.1.1(1) of Direction 65 further provides:In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to: a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously; b)The principle that crimes committed against vulnerable members of the community (such as minors, 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; c)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; 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; d)The principle that any conduct that forms the basis for a finding that a non‑citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious; e)The sentence imposed by the courts for a crime or crimes; f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; g)The cumulative effect of repeated offending; h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending; i)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia. A decision-maker should also have regard to the following principle, described in paragraph 11.1.2(1) of Direction 65 as follows:In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.