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

Case [2020] AATA 2647

FHND and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2647 (4 August 2020)

Division:GENERAL DIVISION

File Number:          2020/2933

Re:FHND

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date:4 August 2020

Place:Melbourne

The Tribunal affirms the decision under review.

.....................[sgd]..............................................

Senior Member A. Nikolic AM CSC

MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – failure to pass character test – whether another reason for revocation – protection of Australian community – interests of minor child – expectations of Australian community – whether non-refoulement obligations owed due to fear of gangs – interests of victims – strength, nature and duration of ties – extent of impediments if removed - decision affirmed

LEGISLATION

Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

Ali v Minister for Home Affairs [2020] FCAFC 109
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
Director of Public Prosecutions v Aitchison [2015] VCC 225
Enfield City Council v Development Assessment Commission (2000) 199 CLR 135
Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs [2020] HCATrans 056
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hili v The Queen (2010) 242 CLR 520
Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141
HVLC v Minister for Home Affairs [2019] FCA 616
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Ibrahim v Minister for Home Affairs [2019] FCAFC 89
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Maxwell v R (1996) 184 CLR 501
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358
Murphy v Minister for Home Affairs [2018] FCA 1924
Minister for Home Affairs v Omar (2019]373 ALR 569
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535
RZSN v Minister for Home Affairs [2019] FCA 1731
Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155
SZTAL v Minister for Immigration and Border Protection & Anor (2017) 262 CLR 362
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Viane v Minister for Immigration and Border Protection (2018) 162 ALD 13

WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501C
Direction No.…

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AGLC
FHND and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2647
Case
[2020] AATA 2647
Decision Date

CaseChat Overview and Summary

This matter concerned an application by FHND for review of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' decision not to revoke the mandatory cancellation of his visa. The dispute centred on whether there was "another reason" under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) why the visa cancellation should be revoked. The Administrative Appeals Tribunal was required to determine if the circumstances, particularly a successful County Court appeal against a previous sentencing, constituted such a reason.

The legal issues before the Tribunal were twofold. Firstly, whether FHND's successful appeal to the County Court, which resulted in an aggregate sentence of less than 12 months imprisonment, meant that the original basis for the visa cancellation under section 501(3A) of the Act no longer existed. Secondly, if the original cancellation basis was still valid or if other factors were to be considered, whether there was "another reason" of sufficient weight to warrant the revocation of the visa cancellation, notwithstanding the primary considerations of community protection and community expectations.

The Tribunal considered the evidence, including sentencing remarks from the Magistrates' Court and the County Court appeal outcome. It noted that the County Court had set aside the original sentence of 12 months imprisonment and imposed an aggregate sentence of 350 days, meaning the applicant was not sentenced to a term of imprisonment of 12 months or more as required for the mandatory cancellation under section 501(3A)(7)(c). However, the Tribunal found that despite this, the primary considerations of protecting the Australian community and the expectations of the Australian community weighed very substantially against revocation. These considerations outweighed the best interests of minor children, the strength of ties to Australia, and the impediments to removal.

Ultimately, the Tribunal affirmed the decision not to revoke the visa cancellation. It concluded that while the basis for the original cancellation may have been affected by the County Court appeal, the significant weight of the primary considerations against revocation meant there was no "another reason" of sufficient significance to justify revoking the 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

It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory visa cancellation should be revoked. The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Federal Court of Australia in Viane v Minister for Immigration and Border Protection [2018] 162 ALD 13 per Colvin J at [64]: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.EVIDENCE The following was tendered into evidence:(a)A volume of documents lodged by the respondent titled ‘G’ Documents, numbering 357 pages;[16](b)A certificate of completion and four statements of results dated between September 2019 and December 2019;[17](c)County Court Result of Appeal dated February 2020;[18] and(d)Various Media reports from New Zealand dated in 2007, 2008 and 2009.[19][16] Ibid.[17] Exhibit A1.[18] Exhibit A2.[19] Exhibit R2.Witnesses FHND, Ms A and FHND’s church pastor gave oral evidence at the hearing and were cross-examined.National Criminal History and sentencing remarks With the exception of the County Court appeal results dated February 2020, FHND does not dispute the accuracy of the sentencing remarks from the Sunshine Magistrates’ Court dated in September 2019 (“2019 sentencing remarks”).[20] These state in part:[20] Exhibit R1, 24-50.‘HER HONOUR: …there are then two exercises: one is the contravention of the community corrections order. It's the second chance at that order and the contravention report sets out what was not done on the second occasion. There were some limited inroads…but obviously what's before the court is now the second contravention, where still the lion's share of the community development remains outstanding.There were some small number of hours done in this second version of the order but of course…we have the reality that there were a vast number of charges that have occurred…after the imposition of that community corrections order… There are a number of theft charges which are not quantified, Mr Brown, but the vast number are and it's over $120,000. Those are significant charges. What did you want to put on behalf of [FHND] in regard to those two exercises - the contravention of the community corrections order and the now much larger consolidation…?MR BROWN: Your Honour, there is no denying they are serious charges. There is no denying that the compliance with the corrections order has been unsatisfactory…[FHND’s] offending, as your Honour is no doubt aware from previous hearings, has largely been in the context of drug use. He has experienced extended periods of homelessness and this offending occurred in that context also…He has had some supports from Melbourne City Mission since 2017, has engaged with a local church. He has a support worker…and some church involvement but, your Honour - I should add…he does have a partner by ·the name of [Ms A], and a three year-old son.HER HONOUR: …When your client commenced to appear in front of me, alcohol was equally an important cause of concern. So there are a number of issues he has to attend to. That's why the court gave him the second opportunity of a community corrections order, but obviously that went as well as the contravention report and the further commission of…offences shows. There is a very serious concern here in regard to the limitation of sentencing, [FHND], because the court has tried a community corrections order once. We've tried a community corrections order twice. Now [FHND] finds himself before the court for a pre-existing consolidation where I hadn't yet sentenced him, which now has to be tagged on to a huge volume of fresh charges which are, in their own right, far more serious than even the most serious charges I had in the pre-existing consolidation…I wouldn't be entertaining any further community corrections order. I've gone down that path twice.…MS PETROVSKI: Your Honour, if I can indicate - this is the fourth opportunity on that current order. This is the fourth time it's been contravened.HER HONOUR: Thank you, Ms Petrovski. I had thought it was only two.MS PETROVSKI: No, this is the fourth time.HER HONOUR: But in any event, Mr Brown, the reality is there have been contravention proceedings before these contravention proceedings. That's always an unhelpful starting point and it's obviously entirely unhelpful when there is such a vast amount of offences that occur in breach. [FHND] well understands that when I made the original version of the consolidation I had left the sentencing for that in abeyance to give [FHND] this further opportunity on the community corrections order with the indication and clear understanding held by [FHND] that if he were to successfully complete the order ultimately then I would consider on the original charges that I had before me - a far lesser number and of a very different nature to the Templeton matters - then perhaps a further community corrections order with hours alone could be imposed to complete that outstanding sentencing. What has transpired, unfortunately, in the meantime is [FHND] (a) hasn't completed the order, the community corrections order, in its fullness but further, there have been the offences…which are of a very, very serious nature. I don't consider that there can appropriately be any engagement further with corrections in terms of further community corrections on this re sentencing.HER HONOUR: …You may or may not recall, [FHND], what I discussed with you when I gave you this opportunity on the community corrections order…I indicated to you I will give you a chance on that community corrections order again: do the remainder hours of the hours you had not previously done on the various previous impositions of that community corrections order. Then if you got your way through that successfully I would entertain some further community work hours potentially in regard to those charges…[FHND], you then ultimately did not engage as well as you could have with the community corrections order…Then you had subsequently gone into custody…So it is fair to say, [FHND], that the complexion of this matter has changed very, very significantly since it commenced before me now some substantial time ago…I have found the contravention proven. I have cancelled that order. What it does, [FHND], is it brings back before the court the original charges you got the community corrections order for, for a re-sentencing exercise. I note that ultimately you did do some small number of hours of this version of the order but still well over 163 hours outstanding in regard to the community corrections order requirements…Now I move on to the second set of matters and sadly, they are far more serious than the matters in the contravention of the community corrections order. The reality of the summaries and the charges themselves in regard to the burglaries and attendant thefts, [FHND], is a value well in excess of $120,000, so not in anybody's language insignificant or other than very serious.…[FHND], that is a total effective sentence of 15 months' imprisonment and I fix in relation the sentence a non-parole period of nine months. [FHND], I have made a clear note in terms of the court's orders, that but for the plea of guilty I would have imposed a sentence of a 21-month sentence with a 15-month non-parole period. …[FHND]: So basically I'm doing what, 15 months?HER HONOUR: You're doing one year and three months as the head sentence, with a non-parole period of nine months in regard to the fresh consolidation; two charges attracting fines, for one charge you've been convicted and discharged.’FHND’s evidence

Decision

Reasons for decision

Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel FHND’s visa should be revoked. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ each weigh very substantially against revocation. These considerably outweigh the other primary consideration ‘Best interests of minor children,’ which weighs slightly in favour of revocation, and the relevant other considerations ‘Strength, nature and duration of ties,’ and ‘Extent of Impediments if removed,’ which each weigh moderately in favour of revocation.DECISION It follows that the Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

On 22 July 2020, two business days prior to the scheduled commencement of the hearing, Ms Shelley Burchfield, a solicitor from Refugee Legal, contacted the Tribunal to raise two issues on FHND’s behalf as follows:Additional statement and hearing preparations(a)FHND had instructed that following his transfer from prison to the Melbourne Immigration Transit Accommodation (MITA) on 17 July 2020, he was ‘unable to access his property,’ including ‘material relevant to this review application.’ It was submitted this caused him ‘considerable stress’ and hampered ‘his ability to prepare for this review;’ and County Court appeal(b)Ms Burchfield submitted that because of FHND’s County Court appeal in February 2020,[12] his offending ‘no longer falls within the operation of s501(3A)(i) or (ii) of the Act. Ms Burchfield stated ‘the Tribunal ought to set aside the original decision and substitute a decision to revoke the cancellation,’ and that this point ‘should be given dispositive weight.’ Ms Burchfield explained:[12] Ms Burchfield provided a copy of the appeal outcome, which was already contained in the G-documents at 180-181, and referred to in the Respondent’s Statement of Facts, Issues and Contentions (“RSFIC”) [7.4].‘…[FHND’s]…visa was cancelled under section 501(3A) of the Migration Act 1958…on the basis that the decision-maker was satisfied that [FHND] did not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record) on the basis of paragraph (7)(c) (sentenced to a term of imprisonment of 12 months or more)... The cancellation notice referred to [FHND’s] conviction and sentence to an aggregate term of 12 months imprisonment on 23 September 2019 for Attempted Burglary (two counts) and Burglary (12 counts). .... [In] February 2020 [FHND] successfully appealed to the County Court of Victoria at Melbourne against the sentence of 12 months imprisonment recorded at the Magistrates Court of Victoria [in] September 2019 for the Attempted Burglary (two counts) and Burglary (12 counts). [In] February 2020 [the County Court] set aside the orders made at the Magistrates Court of Victoria [in] September 2019…In relation to those 14 charges…[Her Honour] convicted and sentenced the Applicant to an aggregate term of imprisonment of 350 days. As per the County Court Appeal Orders attached, other charges for which the Applicant was convicted and sentenced at the Magistrates Court of Victoria [in] September 2019 were also appealed and dealt with by [Her Honour] on the same day. It is noted on page 2 of the County Court Result of Appeal Case…that the total effective sentence is 1 year, 2 months and 2 weeks. To ensure no confusion, on appeal, the applicant was not sentenced to a term of imprisonment of 12 months or more. The period of 1 year, 2 months and 2 weeks refers to the total of the various individual sentences of imprisonment imposed by Her Honour [in] February 2020 when added together. None of those sentences was for a term of 12 months or more, and none of the sentences of imprisonment imposed on that day fall within the definition of s501(3A)(a)(i) or (ii).The basis for the cancellation of the Applicant’s visa under S501(3A) of the Act set out in the cancellation notice dated 15 November 2019, does not now exist because the sentence of the Magistrates Court of Victoria referred to in that Notice has been set aside by the County Court and an aggregate sentence of less than 12 months imposed (350 days). The decision of the Respondent’s Delegate to refuse to revoke the cancellation under S501CA (4) of the Act, relied on the information in the cancellation notice. At the time of the refusal to revoke decision, the sentence referred to as attracting s501(3A) of the Act had been set aside.The operation of s501(3A) (i) and (ii) of the Act is restricted to specific types of offending by way of sentence and type of crime, - namely where a non-citizen has a substantial criminal record under s501(6)(a) on the basis of paragraph (7)(a) (sentenced to death), (b) (sentenced to imprisonment for life), or (c) (sentenced to a term of imprisonment of 12 months or more) or paragraph (6)(e) (sexually based offences involving a child). ...The original decision to cancel under s 501(3A) would not have been effected but for an invalid (now impugned) decision by a lower court, and as such, it would be unreasonable to allow the cancellation to remain in effect. If the Tribunal does not accept our primary submission on behalf of the Applicant, it is submitted that the Tribunal ought to set aside the decision not to revoke and remit with the direction that the reduction of sentence be considered by the primary decision maker.The Tribunal ought to do this as,i) it would allow the primary decision maker to consider this important fact and,ii) following this consideration, the Applicant will have time to properly present his case without the constraints of the 84 day statutory time-limit.