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

Case [2024] AATA 120

FCFF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 120 (6 February 2024)

Division:                  GENERAL DIVISION

File Number(s):      2022/7816

Re:FCFF

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr Linda Kirk

Date:6 February 2024

Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the Reviewable Decision dated 20 September 2022 to refuse to revoke the Mandatory Visa Cancellation Decision and, in substitution, decides that the cancellation of the Applicant’s visa is revoked.

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

Senior Member Dr Linda Kirk

CATCHWORDS

MIGRATION – visa cancellation – mandatory cancellation under section 501(3A) of the Migration Act 1958 (Cth) – where the Applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Ministerial Direction No. 99 – protection of the Australian community – links to the Australian community – the best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – impediments to removal – decision under review set aside

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

CASES

Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646

Bugmy v The Queen (2013) 248 CLR 571

CRNL and Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870

DMDD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1993

FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775

FYBR and Minister for Home Affairs (2019) 272 FCR 454 per Charlesworth J

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126

Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461

Jal v Minister for Immigration and Border Protection [2016] AATA 789

Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Minister for Immigration v HSRN [2023] FCAFC 68

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37

PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235

PNLB and Minister for Immigration and Border Protection [2018] AATA 162

Poi-ilaoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 587

Saleh and Minister for Immigration and Border Protection [2017] AATA 367

Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545

Viane v The Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13

SECONDARY MATERIALS

Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation…

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Details
AGLC
FCFF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 120
Case
[2024] AATA 120
Decision Date

CaseChat Overview and Summary

This matter concerned an application by FCFF (the Applicant) to review a mandatory visa cancellation decision made under section 501(3A) of the *Migration Act 1958* (Cth). The Applicant did not pass the character test, leading to the cancellation of his visa. The core of the dispute was whether there was "another reason" to revoke this cancellation, as contemplated by section 501CA(4)(b)(ii) of the Act. The decision was made by Linda Kirk SM in the Administrative Appeals Tribunal.

The Tribunal was required to determine if there was a sufficient "another reason" to revoke the mandatory visa cancellation, notwithstanding that the Applicant failed the character test. This involved a careful consideration of the primary and other considerations outlined in Ministerial Direction No. 99, which guides decision-makers in such matters. The central legal issue was the proper application of the "weighing and balancing" exercise required by the Direction, and the significance to be attributed to various factors in determining whether the cancellation should be revoked.

The Tribunal's reasoning emphasised that the task of identifying "another reason" is not a mathematical exercise but an evaluative one, requiring persuasion of the decision-maker. It applied the principles established in cases such as *Demir v Minister for Immigration, Citizenship and Multicultural Affairs* and *Viane v The Minister for Immigration and Border Protection*, which highlight that a reason must carry sufficient weight or significance to warrant revocation. The Tribunal considered the primary consideration of protecting the Australian community, the nature and seriousness of the Applicant's conduct, and the risk of future offending. It also considered other relevant factors, including the Applicant's difficult early life experiences, his links to the Australian community, and the best interests of minor children in Australia. The Tribunal ultimately found that there was indeed another reason to revoke the mandatory visa cancellation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

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 TRIBUNALEarly years in Iraq and Iran The Applicant was born in Iraq in December 1980 and is the youngest of 14 children born to his parents’ union.[18] Both his parents died when he was aged approximately 12 months. He is unsure of the circumstances surrounding their deaths. At the time, Saddam Hussein was the President of Iraq, and the Applicant believes that his parents’ deaths may have been politically/religiously motivated. He and his family identified with the (minority) Shiite community, and at this time the Sunni dominated Iraq.[19][18]Exhibit R1, G18, 127.[19]Ibid, G18, 127. After his parents died, the Applicant and his second youngest brother lived with their paternal uncle and his wife and their children.[20] When the Applicant was about two years old, he and his relatives were forced by the Iraqi government to relocate to Iran where they resided until the Iran/Iraq war ended in 1989.[21] He did not have any documents which permitted him to live lawfully in Iran. The Applicant and his brother were emotionally and physically abused by his uncle and aunt, and they were sometimes hit with a belt.[22] He did not attend school and, as a consequence, he is illiterate. He was forced to work from when he was eight years old[23] cleaning a bakery and then in a mechanic shop.[24] [20]Ibid, G18, 127.[21]Ibid.[22]Ibid, G18, 128.[23]Ibid.[24]Ibid, G18, 129. The Applicant’s eldest four brothers were sent to fight in the Iran/Iraq war and did not return[25]. A further four of his siblings, including one sister, were captured, tortured and placed into an Iranian gaol after being considered by the regime to be ‘political activists’.[26] Following the war, one of the Applicant’s siblings fled to Denmark and another to France while some remained in Iran.[27][25]Ibid, G18, 128.[26]Ibid.[27]Ibid.Travel to Australia At the age of 17, the Applicant left Iran and flew alone to Malaysia using a fraudulent passport arranged by ‘people smugglers’.[28] He remained there for approximately 12 to 18 months, and then travelled through Indonesia on a refugee boat before attempting to travel to Australia some 18 months later. His brother and uncle provided him with some money to start this journey, and he worked for the smugglers to assist in managing the 100 refugees on board. During the journey, the boat was ‘attacked by pirates’ who took everything on board, including the clothes that the passengers were wearing.[29] During the attack, the ‘boat broke and [the passengers] were almost about to drown before the Australian Navy came to rescue’ them.[30] The Applicant was transported to Ashmore Island and then transferred to the Adelaide Immigration Transit Accommodation where he remained for nine months. His protection claims were assessed, and he was released and settled in Sydney.[31][28]Ibid.[29]Ibid.[30]Ibid.[31]Ibid.Employment

Decision

Reasons for decision

The Applicant accepts that he does not pass the character test because of section 501(7)(c).[100] The Tribunal is satisfied that the Applicant does not satisfy the character test, and accordingly it finds that section 501CA(4)(b)(i) cannot be invoked to revoke the Mandatory Visa Cancellation Decision.[100] ASFIC, [41].2) Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked? In determining whether pursuant to section 501CA(4)(b)(ii) of the Act there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must, in accordance with paragraphs 8 and 9 of the Direction, take into account the relevant ‘primary considerations’ and ‘other considerations’. The existence or otherwise of ‘another reason’ is to be established on the balance of probabilities. The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Federal Court of Australia in Viane v The Minister for Immigration and Border Protection:[101]There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.[101] [2018] FCAFC 116; 162 ALD 13 per Colvin J, [64]. In their joint judgment in Jagroop v Minister for Immigration and Border Protection and Another, Kenny and Mortimer JJ noted that in ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under section 501’.[102] [102](2016) 241 FCR 461, [57]. The Full Court recently described the weighing or balancing process that the Direction requires in CRNL and Minister for Immigration, Citizenship and Multicultural Affairs:[103]It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some considerations set out in the Direction, where relevant, may weight in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.[103][2023] FCAFC 138 at [35].

Ratio Decidendi

Legal Principle Established

In Demir v Minister for Immigration, Citizenship and Multicultural Affairs, Kennett J explained that the weighing of considerations is an evaluative task not a mathematical exercise:[105]The metaphor of “weighing” relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is “another reason” for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision-maker’s personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered.PRIMARY CONSIDERATIONS[105][2023] FCA 870 at [21].Primary Consideration 1 – Protection of the Australian community Paragraph 8.1 of the Direction provides that, when decision-makers are considering the protection of the Australian community, they:(1) … should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non- citizens 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.(2)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.1) Nature and seriousness of the conduct Paragraph 8.1.1 of the Direction provides:(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:i.violent and/or sexual crimes;ii. crimes of a violent nature against women or children, regardless of the sentence imposed;iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;ii.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;iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));iv.where the non-citizen is in Australia, 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, or an offence against section 197A of the Act, which prohibits escape from immigration detention;c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;e)the cumulative effect of repeated offending;f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;g)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).h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.