DZHK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Case [2020] AATA 2634

DZHK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2634 (16 July 2020)

Division:GENERAL DIVISION

File Number(s):      2020/2563

Re:DZHK  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:16 July 2020

Date of written reasons:         3 August 2020

Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review, being the decision of the Respondent dated 22 April 2020 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

............................[SGD]............................................

Senior Member Linda Kirk

CATCHWORDS

MIGRATION – Class TY subclass 444 Special Category (Temporary) visa – citizen of New Zealand – failure to pass character test – affray offences – assault offences – behaviour in criminal and immigration detention – whether discretion to revoke mandatory visa cancellation should be exercised – considerations under Direction No. 79 – primary considerations – other considerations –  decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

Dalley and Minister for Home Affairs  [2019] AATA 3738
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 116; (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tuioti and Minister for Home Affairs [2019] AATA 4423
Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

WRITTEN REASONS FOR DECISION

Senior Member Linda Kirk

3 August 2020

  1. Ms DZHK (‘the Applicant’), a citizen of New Zealand, was born in 1997.[1] She first arrived in Australia on 7 December 1999 when she was two years old.[2] Prior to its cancellation, the Applicant held a Class TY Subclass 444 Special Category (Temporary) visa (‘the visa’).[3]

    [1] G-documents, G14, 87.

    [2] Ibid.

    [3] Ibid G2, 9.

  2. On 30 June 2016, the Applicant’s visa was cancelled by a delegate of the Minister (‘the Respondent’) under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘2016 visa cancellation’)[4] after being convicted of Affray by the Maitland Local Court on 24 March 2016, for which she was sentenced to 12 months’ imprisonment.[5] On 16 July 2016, the Applicant made representations in support of her request for revocation of the visa cancellation,[6] and on 4…

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AGLC
DZHK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2634
Case
[2020] AATA 2634
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of DZHK, a New Zealand citizen, and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute concerned the mandatory cancellation of DZHK's Special Category (Temporary) visa (subclass 444) due to her failure to pass the character test, stemming from affray and assault offences, and her behaviour in criminal and immigration detention. The Tribunal was tasked with determining whether the discretion to revoke this mandatory cancellation should be exercised.

The primary legal issue before the Tribunal was whether there was "another reason" why the mandatory visa cancellation decision should be revoked, as contemplated by the Migration Act 1958 (Cth). In making this determination, the Tribunal was required to consider the criteria set out in Direction No. 79, which outlines primary and other considerations relevant to such decisions. Specifically, the Tribunal had to assess the protection of the Australian community, the nature and seriousness of DZHK's conduct, and the risk of future offending.

The Tribunal reasoned that DZHK could not rely on certain grounds for revocation. In assessing whether "another reason" existed, it applied the principles in Direction No. 79. The Tribunal considered the nature and seriousness of DZHK's conduct, noting that violent crimes, particularly against women or children, and crimes against vulnerable individuals or government officials, are viewed very seriously. It also had regard to the frequency of offending and the cumulative effect of repeated offences. The Tribunal's analysis of DZHK's behaviour in custody and immigration detention, including numerous incidents of aggression and violence towards officers and other detainees, was central to its assessment of the risk to the Australian community. The Tribunal also noted DZHK's admission to drug use in gaol and immigration detention.

Ultimately, the Tribunal affirmed the mandatory visa cancellation decision. It found that DZHK had not established "another reason" why the decision should be revoked, concluding that the primary consideration of protecting the Australian community weighed heavily against revocation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.EVIDENCE BEFORE THE TRIBUNALBackground and family The Applicant migrated to Australia from New Zealand with members of her family, including her mother and father, two brothers and two sisters, including her twin sister.[15] The Applicant’s family all reside in Australia with the exception of her older brother, Justin, who was recently deported to New Zealand,[16] and her paternal grandparents.[17] [15] G-documents, G10, 67.[16] Ibid G9, 65.[17] Ibid G10, 72. In her statement dated 9 June 2020, the Applicant wrote that as a child her family unit was supportive and encouraging. She did well at school and succeeded in sports, particularly touch football. The Applicant’s family relocated from Sydney to the Central Coast so that her father could be closer to his work. Following this move, the Applicant’s parents’ relationship quickly deteriorated.[18][18] Statement of Applicant dated 9 June 2020 (‘Statement of Applicant’), 1. In her letter to the Department dated 1 July 2019, the Applicant wrote that as a child she ‘endured and experienced extreme ongoing and repeated trauma at the hands of my father which had a profound and detrimental impact on my psycho-socio development.’[19] She stated that her father was ‘physically abusive’ towards her mother, often in front of her. Further, her father ‘was often physically, emotionally and mentally violent towards me as a child which led to me feeling alone, worthless and… like the black sheep of the family’.[20][19] G-documents, G13, 83.[20] Ibid. As a child, the Applicant experienced bullying and negative feedback from her teachers, other students and parents.[21] In her letter to the Department in support of her request for revocation, the Applicant wrote:As I was going all through primary school I had experienced bullying from a number of students due to my sexuality and being gay also my eyesight. I was often bullied about and still to this day have trouble dealing and coping with, as a result my education was significantly disrupted and I was unable to complete high school.[22][21] Statement of Applicant, 1. [22] G-documents, G13, 84. The Applicant was expelled from school in year 7 and attended a transitional centre until year 9 and then completed a year 10 workplace certificate at TAFE.[23] She was selected to play for ‘Sydney North State and regionals… throughout multiple years’.[24] The Applicant struggled to understand why her family split up, and turned to her friends who accepted her as she is, which made her ‘feel like a normal person again.’[25] [23] Ibid G2, 24.[24] Statement of Applicant, 1.[25] Ibid 1-2. As a consequence of the trauma and confusion she was suffering and ‘being an outcast’, the Applicant began drinking and smoking cannabis ‘to numb the pain and erase all feelings of hurt, frustration, anger and sadness’ of her childhood and teenage years.[26] At the age of 13 years, the Applicant ran away from home to escape the ‘negative environment’ to which she was subjected.[27] Eventually her father left the family home and the violence against her and her mother then ceased.[28][26] Ibid 2; Transcript, 23.[27] Statement of Applicant, 1; Transcript, 31.[28] Statement of Applicant, 1.

Decision

Reasons for decision

For these reasons, the Applicant cannot rely on subparagraph 501CA(4)(b)(i) for revocation of the Mandatory Visa Cancellation Decision.Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked? In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.PRIMARY CONSIDERATIONSPrimary Consideration A – Protection of the Australian community Primary Consideration A of Part C of the Direction is the Protection of the Australian Community. Paragraph 13.1(1) provides:When considering protection of the Australian community, decision­makers 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. Remaining in Australia is a privilege that Australia confers on non­citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved. Paragraph 13.1(2) directs that 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.(a) Nature and seriousness of the Applicant’s conduct to date Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. 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) …(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) …

Ratio Decidendi

Legal Principle Established

In her Personal Circumstances Form, the Applicant wrote that she feels like this is her ‘last chance’ to become a better person, and has ‘attended several programs while in prison, which has given me the tools to help me deal with the issues I will face if I am released’. These include the young offenders program and ‘all aggression courses’. She stated that she was unable to provide evidence such as certificates or completion reports at the time of her request due to the holiday period.[77][77] G9, 73.Behaviour in custody and immigration detention The Applicant’s customised report dated 23 May 2020 provided by NSW Police records that during the Applicant's incarceration in gaol, she assaulted, intimidated and verbally abused both correction officers and other inmates on multiple occasions.[78] Documentation from the NSW Department of Corrective Services includes incident reports detailing at least 10 instances of the Applicant behaving aggressively or violently in custody.[79] In her oral evidence at the hearing, the Applicant accepted that she was engaged in aggressive behaviour in gaol. She told the Tribunal that in custody the environment is such that it is ‘either kill or be killed’.[80] When she finds herself in a situation where she cannot remove herself from a confrontation, she will fight.[81] If she reports the behaviour of another inmate to the guards it only creates more problems for her.[82][78] Supplementary documents – Volume 1, S5, 104-106.[79] Ibid S27, 304-313.[80] Transcript, 35-36.[81] Ibid 36.[82] Ibid 36-37. SERCO Incident Detail Reports record numerous instances when the Applicant verbally assaulted and displayed abusive and aggressive behaviour towards officers, including the manager DSM, and other detainees in Villawood Immigration Detention Centre.[83] The most recent incident was recorded on 10 June 2020.[84] The Applicant told the Tribunal that she knows that this behaviour is unacceptable and that most often the fights that have occurred have been because she has been trying to stand up for someone else.[85][83] Respondent’s supplementary documents – Volume 2 (‘Supplementary documents – Volume 2’), S1, 1-52.[84] Ibid S1, 21.[85] Transcript, 40. The Applicant confirmed that she started using drugs in gaol and was smoking about three or four times a week.[86] She agreed that she also has been smoking cannabis in immigration detention but denied that she has used ice.[87] She has not consumed any alcohol since she has been incarcerated.[88] She undertook drug and alcohol counselling in gaol and also completed a positive lifestyle program through the chaplain service in custody.[89][86] Ibid 41.[87] Ibid 43.[88] Ibid.[89] Ibid 44. The Applicant told the Tribunal that when she was notified of the cancellation of her visa the second time in November 2017, she attempted to take her own life by slicing her throat. She only survived because there was a doctor at the correctional centre who was able to give her stitches.[90][90] Ibid 40-41.Risk of re-offending