Fiodorov and Minister for Home Affairs (Migration)

[2019] AATA 117

Fiodorov and Minister for Home Affairs (Migration) [2019] AATA 117 (11 February 2019)

Division:GENERAL DIVISION

File Number:           2018/6980

Re:Andrej FIODOROV

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:11 February 2019

Place:Sydney

The decision under review is affirmed.

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

Senior Member M Griffin QC

Catchwords

MIGRATION – decision not to revoke mandatory cancellation of visa – character test – substantial criminal record – Ministerial Direction no. 65 – primary and other considerations- decision under review affirmed.

Legislation

Migration Act 1958 (Cth) ss 116, 499, 501, 501CA

Migration Regulations 1994 (Cth) r 2.43

Secondary Materials

Direction No. 65—Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member M Griffin QC

11 February 2019

1. This is an application to review a decision of a delegate of the Minister dated 22 November 2018. The delegate refused to grant the Applicant a Bridging E (Class WE) visa.

2. The Applicant is a male citizen of Lithuania, born on 30 October 1972.

   HISTORY OF VISA APPLICATIONS

3. The Applicant arrived in Australia as the holder of an eVisitor (subclass 651) visa, granted to him on 20 May 2012. He has remained in Australia since his arrival on 6 June 2012.

4. The Applicant was granted a Bridging (subclass 010) visa on 26 August 2012, a Tourist (subclass 676) visa on 20 September 2012, a Bridging (subclass 010) visa on 28 November 2012, a Criminal Justice Stay (subclass 951) visa on 4 September 2013 (which was cancelled), a Bridging (subclass 030) visa on 14 May 2015 and a further subclass 030 visa on 14 September 2015 (this visa was also cancelled).

5. On 13 May 2015, the Applicant applied for a combined Partner (subclass 820/801) visa (which was refused on 22 November 2018).

6. On 14 September 2015 the Applicant was granted a Bridging (subclass 030) visa in association with his (then pending) application for a partner visa.

7. Based on his Australian criminal convictions, the Applicant's bridging visa was cancelled under section 116(1)(g) of the Migration Act 1958 (Cth) (the Act) and regulation 2.43(1) of the Migration Regulations 1994 (Cth) (the Regulations) (the visa holder has been convicted of an offence against a law of the Commonwealth or a State or Territory). The Applicant has sought review by this Tribunal of the decision to cancel his bridging visa pursuant to section 116 of the Act.

8. On 8 June 2018, the Applicant applied for a bridging visa in connection with his review application (relating to the cancellation of his bridging visa).

   CONTENTIONS

9. The issues for determination by the Tribunal are:

   (a)does the Applicant pass the character test as defined by section 501(6) of the Act and, if he does not;

   (b)should the visa application be refused?

   Does the Applicant pass the character test?

10. The Applicant does not pass the character test because of his substantial criminal record. According to his police certificate from Chicago, Illinois, in the United States of America (the US), on 3 March 2006 the Applicant was convicted of 'Meth Manufacturing', for which he was sentenced to 12 years imprisonment.

    Should the visa application be refused?

11. In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is required by section 499(2A) to have regard to the Minister's Direction relevant to section 501CA, Direction No. 65—Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65).[1]

    [1] Exhibit E3, G documents, page 91.

12. The issue for the Tribunal is whether to refuse the visa application in the exercise of its discretion having regard to Direction 65.

13. The Tribunal concludes that, relevant to the instant matter, are clause 6.3(6)  ('Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia'), and 8(1) ('a visa Applicant should have no expectation that a visa application will be approved') of Direction 65.

14. Part B of Direction 65 concerns visa applicants. In deciding whether to refuse a non-citizen’s visa, the following are primary considerations:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia; and

    (c)Expectations of the Australian community.

15. It is not in dispute that the second primary consideration (best interests of minor children) is not relevant on the facts of this case.

    Protection of the Australian community from criminal or other serious conduct

16. The Applicant's criminal conviction in the US is extremely serious. It involves the manufacture of an illicit drug and its seriousness is highlighted by the 12 year term of imprisonment that was imposed.[2].

    [2] see Direction 65 at 11.1.1(e).

17. Methamphetamine is a drug that has caused and continues to cause significant harm to the Australian community. In addition to the direct harm caused by users of the drug, there is also the potential for harm to arise from the presence of 'meth labs' and the production of the substance itself.

18. As to the risk to the community should the Applicant re-offend, this is a case, in the Tribunal’s opinion, in which the conduct of the Applicant is so serious that any likelihood of recidivism may be unacceptable. Further, the Tribunal is required to have regard to the principle that Australia has a low tolerance of criminal conduct by visa applicants.[3].

    [3] Direction 65 at 11.1.2 (1) and (2).

19. Furthermore, the Applicant has US convictions for possession of cocaine, for which he was sentenced to two years special probation, and four years gaol, in 2001 and 2006. On 18 August 2016 the Applicant was convicted in the Brisbane Magistrates Court of 'enter premises and commit indictable offence' (seven charges) and stealing. For each charge, the Applicant was sentenced to eight months imprisonment, which was suspended to be of good behaviour for two years concurrent, and ordered to pay a total restitution of $2,568.

20. Therefore, there is evidence, of a history of recent offending relating to offences of dishonesty.

21. In considering the Applicant's risk of re-offending, the Applicant failed to declare his convictions on his incoming passenger card dated 5 June 2012.[4] In evidence, the Applicant acknowledged that the omission was deliberate and calculated to deceive authorities concerning the state of his criminal history. This is indicative of deliberate dishonesty in an official context.

    [4] see Direction 65 at 11.1.1(h).

22. A psychologist, Mr Cohen, provided a report to the Tribunal on behalf of the Applicant which was favourable to him. The report advanced the proposition that the Applicant had rehabilitated. This, in the Tribunal’s view, is contrary to the objective evidence, particularly the offences dealt with in the Brisbane Magistrates Court in 2016. Surprisingly, Mr Cohen advanced the view that it was “unwarranted and unconscionable” to deport the Applicant.[5] This statement, presented as part of his report is, of course, contrary to the behaviour of a properly informed and acceptable expert. Furthermore, although there were some difficulties at the hearing because the witness appeared by mobile phone, the Tribunal is nonetheless satisfied that both parties and the Tribunal itself, fully appreciated his evidence. Mr Cohen’s evidence disclosed a palpable lack of detail and/or recollection of salient facts (for example, he believed the Applicant to have committed the drug offences at the age of 22. This was contradicted by the Applicant’s evidence who said the drug offence of production was committed at the age of 33). It is apparent that Mr Cohen did not have any material with him at the time of giving evidence. This is both surprising and unusual, in the Tribunal’s opinion, for an expert to give evidence in this way but furthermore, it is unclear whether he was ever provided the usual primary materials on which to base his opinion. The Tribunal views Mr Cohen’s evidence overall, as entirely unsatisfactory. The Tribunal prefers, without reservation, the objective evidence of the 2016 convictions which it accepts, demonstrate that the Applicant has not rehabilitated and therefore, is an unacceptable risk of further offending.

    [5] Exhibit E3, G documents, page 70.

23. This primary consideration favours the refusal of the visa application.

24. The Applicant undertook drug rehabilitation programs while in custody. However, the Tribunal does not accept, on all the evidence related to offending, that the Applicant has reasonably demonstrated rehabilitation. Rather, the opposite conclusion is suggested. The Tribunal is satisfied that the Applicant is an unacceptable risk of re-offending.

    Expectations of the Australian community

25. Direction 65 at 11.3[1] states relevantly that:

    [v]isa refusal may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa.

26. It is the Tribunal’s view that the Applicant's drug offence in the US is of such seriousness that the community would expect his visa application to be refused. This primary consideration favours the refusal of the visa application.

    Other considerations – visa applicants

27. Part B of Direction 65 states that other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    (a)International non-refoulement obligations;

    (b)Impact on family members;

    (c)Impact on victims; and

    (d)Impact on Australian business interests.

28. The relevant other considerations are impact on family members, and impact on Australian business interests.

    Impact on family members

29. The Applicant has been married for four years to his Australian citizen wife. The Applicant and his wife have a mortgage.

30. The Applicant's personal circumstances form dated 5 September 2018 relevantly states that the Applicant's wife cannot return to Lithuania with the Applicant as surrendered her Lithuanian citizenship to take up Australian citizenship.[6]

    [6] Exhibit E3, G documents, page 82.

31. The Applicant’s wife, it is accepted, is suffering severe stress, mental anguish and is being treated for mental health issues. This appears, to the Tribunal, to be largely (but not entirely) due to the issues surrounding the Applicant’s visa application and consequent emotional and financial concerns should the Applicant be deported.

32. If the visa is refused, the Applicant and his wife will experience financial and emotional hardship. This favours a decision to grant the Applicant’s visa application.

    Impact on Australian business interests

33. The Applicant’s wife owns a cleaning business in which the Applicant is employed. The threshold for impact on Australian business interests is not met with respect to this business. Direction 65 at clause 12.4(1) states that:

    employment links will ‘generally’ only be given weight if the visa refusal would significantly compromise the delivery of a major protect or delivery of an important service in Australia.

34. The impact on Australian business interests therefore carries limited weight in the Applicant’s favour.

35. Direction 65 contains a non-exclusive list of considerations. The Tribunal considers, in this case, that it is relevant to consider because the Applicant has been resident in Australia for a number of years, the impediments to his removal from Australia should a visa be refused. The impact on family members will, it is accepted, have a reciprocal and like effect on the Applicant should he be deported. Those effects include emotional, physical and financial stress, including separation from his wife, and consequently substantial financial issues both in a domestic and business setting. This consideration favours a decision to grant the Applicant’s visa application.

    CONCLUSION

36. The Tribunal is comfortably satisfied that the overwhelming considerations should be the protection of the Australian community and the expectations of the Australian community. In particular, the Applicant’s past offending, especially in relation to the offense of producing methylamphetamine, is so serious that weighed against all other consideration in the Applicant’s favour, it alone overwhelmingly calls for refusal of the visa application. Taking this consideration with the other considerations referred to above and which weigh against the Applicant, the visa should be refused.

37. The decision under review is affirmed.

I certify that the preceding 37 (thirty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

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

Associate

Dated: 11 February 2019

Date of hearing:	4 February 2019
Solicitors for the Applicant:	Parish Patience Legal & Migration Services
Solicitors for the Respondent:	Minter Ellison