FNSM and Minister for Home Affairs (Migration)

Case [2019] AATA 6896

FNSM and Minister for Home Affairs (Migration) [2019] AATA 6896 (14 October 2019)

Division:GENERAL DIVISION

File Number:          2019/4460

Re:FNSM  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:14 October 2019

Place:Sydney

The reviewable decision made on 19 July 2019, being the decision of the delegate of the Minister for Home Affairs not to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident visa, is set aside.

In substitution, it is decided that the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa made under s 501(3A) of the Migration Act 1958 (Cth) should be revoked under s 501CA(4) of that Act.

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

Senior Member Linda Kirk

CATCHWORDS

MIGRATION – refusal of Resident Return (Subclass 155) visa – failure to pass the character test – substantial criminal record – whether discretion to set aside the delegate’s decision should be exercised – whether there is any risk of the applicant engaging in future criminal conduct – whether the applicant poses a risk of harm to the Australian community – Direction No. 79 – primary considerations – protection of the Australian community – expectations of the Australian community – other considerations – international non-refoulement obligations – strength, nature and duration of ties –  extent of impediments if removed – decision under review set aside

LEGISLATION

Mental Health (Criminal Procedure) Act 1990 (NSW) ss 24, 27

Mental Health (Forensic Provisions) Act 1990 (NSW) s 32

Migration Act 1958 (Cth) ss 48A, 48B, 195A, 197C, 198, 499, 500, 501, 501CA

CASES

Afu v Minister for Home Affairs [2018] FCA 1311
AXT19 v Minister for Home Affairs [2019] FCA 1423
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
Dalley and Minister for Home Affairs [2019] AATA 3738
DKXY v Minister for Home Affairs [2019] FCA 495
DMH16 v Minister for Immigration and Border Protection [2017] FCA 448
FYBR v Minister for Home Affairs [2019] FCA 500
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
LQZW and Minister for Home Affairs [2019] AATA 93
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Border Protection v Le (2016) 244 FCR 56
NLGV and Minister for Home Affairs [2019] AATA 3646
NLJV and Minister for Home Affairs [2019] AATA 3846
Omar v Minister for Home Affairs [2019] FCA 279
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
TGXY and Minister for Home Affairs [2019] AATA 757
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Department of Foreign Affairs and Trade, ‘Country Information Report on Bangladesh’, 22 August 2019

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

INTERNATIONAL MATERIALS

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into…

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AGLC
FNSM and Minister for Home Affairs (Migration) [2019] AATA 6896
Case
[2019] AATA 6896
Decision Date

CaseChat Overview and Summary

This matter concerned an application by FNSM for the revocation of a mandatory visa cancellation decision made by the Minister for Home Affairs. The applicant had failed to pass the character test due to a substantial criminal record. The dispute before the Administrative Appeals Tribunal (AAT) was whether there was "another reason" why the mandatory cancellation decision should be revoked, requiring the Tribunal to consider the applicant's circumstances in light of Direction No. 79.

The Tribunal was required to determine whether to exercise its discretion to set aside the delegate's decision to cancel the applicant's visa. This involved assessing whether the applicant posed a risk of harm to the Australian community and whether there was any risk of future criminal conduct. The Tribunal was directed to consider the primary considerations outlined in Direction No. 79, including the protection of the Australian community, the expectations of the Australian community, and other considerations such as international non-refoulement obligations, the strength of the applicant's ties to Australia, and the impediments to removal.

In its reasoning, the Tribunal applied the principles set out in Direction No. 79, particularly concerning the protection of the Australian community. It noted that remaining in Australia is a privilege contingent on law-abiding behaviour. The Tribunal considered the nature and seriousness of the applicant's past conduct, which included larceny, fraud, and a violent crime of a sexual nature, noting that this offending was linked to his psychiatric condition and alcohol abuse. Despite the seriousness of the past offending, the Tribunal ultimately found that there was another reason to revoke the mandatory visa cancellation decision, leading to the decision under review being set aside.

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 must be revoked.EVIDENCE BEFORE THE TRIBUNALEarly life in Bangladesh and study in Ukraine The Applicant was born in Dhaka in 1978 to a well off middle class family. He was the youngest of five children and had a trouble free childhood. His father was an executive engineer and his mother a medical practitioner. The family are devout Muslims. The Applicant attended an exclusive primary and secondary school where he performed well. He acquired an arts degree and became involved in political activities in Bangladesh. As a result he was imprisoned in 1991 and tortured. This brought shame upon the family who did not take steps to obtain his release.[13] [13] Facts stated in judgment of Court of Criminal Appeal dated 2 September 2009 (Exhibit R1, G7, p. 42). In his oral evidence the Applicant told the Tribunal that he went to the Ukraine to study medicine when he was aged 17.[14] He started drinking alcohol and would drink about half a bottle of vodka on weekends. The Applicant remained in the Ukraine for a period of 18 months and did not complete his studies.[15] He did not enjoy life in the Ukraine and he was robbed several times as there was a significant amount of crime in the country.[16] [14] Transcript at p.17 and p. 84.[15] Ibid.[16] Transcript at p. 85. The Applicant told the Refugee Review Tribunal that when he was at school he had engaged in sexual conduct with some male fellow students and he also did so when he was studying in the Ukraine. When he returned to Bangladesh in 1993 he had been afraid that if he revealed himself as a homosexual he would have problems. He said he feared this would have been used by his political opponents as a justification to cause him further problems, and that if he came to the attention of the authorities he would lose his political standing and his political companions would have nothing further to do with him. He had heard stories of people being assaulted and blackmailed by the police on account of their homosexual activity, and he had feared that he would have no prospect of obtaining a job if it were known widely that he was homosexual. His elder brother told him that he had heard reports that he was homosexual and had told him that he was a disgrace to the family and that they wanted him to leave Bangladesh.[17] The Applicant was persuaded by a gay friend, who had been living in Australia, to go to Australia with him. The Applicant obtained a visitor visa in September 1995.[18][17] Exhibit R2, TB7, pp. 491-492.[18] Exhibit R2, TB2, p. 44.Arrival in Australia The Applicant arrived in Australia on 5 December 1995 on a Class TR subclass 676 Visitor visa.[19] He initially settled in Melbourne and then moved to Sydney where he and his friend had a two month relationship. The Applicant decided he would lodge an application for a visa on the basis of a de-facto relationship with his then partner. Three days after this decision, the Applicant’s partner was murdered in Kings Cross.[20][19] Exhibit R3.[20] Exhibit R2, TB2, p. 45.

Decision

Reasons for decision

For these reasons, the Applicant cannot rely on s 501CA(4)(b)(i) for revocation of the Mandatory Cancellation Decision.Is there another reason why the Mandatory 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 is the Protection of the Australian Community. Paragraph 13.1(1) of the Direction provides:1) When considering protection of the Australian community, decision-makers 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 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. 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. Nature and seriousness of the Applicant’s conduct to date In assessing the seriousness of the Applicant’s past criminality and the risk posed should he commit further offences, the Tribunal notes that the Applicant committed offending in 1998 shortly after he arrived in Australia. The Applicant’s offending includes a violent crime of a sexual nature and his offending is closely linked to his psychiatric condition and alcohol abuse. Larceny and fraud offences The Applicant’s early offending involved the following larceny and fraud offences:· January 1998 – he stole $6,300 in cash from a fruit shop, where he was previously employed.[40]· 10 March 2000 - whilst in a bar he stole a wallet and a handbag containing a mobile phone.[41]· May 2000 – he entered a building with intent to commit a felony and stole a mobile phone.[42]· 24 May 2000 - he stole a jacket valued at $129.95 from a shop and a knit top valued at $119.00 from another shop.[43]· 29 May 2000 – he was found in possession of five travellers cheques which were reasonably suspected of being stolen.[44]· 30 May 2000 - he used five travellers cheques which he knew to be false, with the intention of inducing another person to accept the cheques as genuine.[45][40] Exhibit R2, TB1, p.4[41] Exhibit R2, TB1, pp. 8 - 11.[42] Exhibit R2, TB1, pp. 18-20.[43] Exhibit R2, TB1, pp. 35-36.[44] Exhibit R2, TB1, p. 27.[45] Exhibit R2, TB1, p. 26.

Ratio Decidendi

Legal Principle Established

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 is the Protection of the Australian Community. Paragraph 13.1(1) of the Direction provides:1) When considering protection of the Australian community, decision-makers 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 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. 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. Nature and seriousness of the Applicant’s conduct to date In assessing the seriousness of the Applicant’s past criminality and the risk posed should he commit further offences, the Tribunal notes that the Applicant committed offending in 1998 shortly after he arrived in Australia. The Applicant’s offending includes a violent crime of a sexual nature and his offending is closely linked to his psychiatric condition and alcohol abuse. Larceny and fraud offences The Applicant’s early offending involved the following larceny and fraud offences:· January 1998 – he stole $6,300 in cash from a fruit shop, where he was previously employed.[40]· 10 March 2000 - whilst in a bar he stole a wallet and a handbag containing a mobile phone.[41]· May 2000 – he entered a building with intent to commit a felony and stole a mobile phone.[42]· 24 May 2000 - he stole a jacket valued at $129.95 from a shop and a knit top valued at $119.00 from another shop.[43]· 29 May 2000 – he was found in possession of five travellers cheques which were reasonably suspected of being stolen.[44]· 30 May 2000 - he used five travellers cheques which he knew to be false, with the intention of inducing another person to accept the cheques as genuine.[45][40] Exhibit R2, TB1, p.4[41] Exhibit R2, TB1, pp. 8 - 11.[42] Exhibit R2, TB1, pp. 18-20.[43] Exhibit R2, TB1, pp. 35-36.[44] Exhibit R2, TB1, p. 27.[45] Exhibit R2, TB1, p. 26. For these offences the Applicant was sentenced to a number of s 9 bonds and terms of imprisonment, which were suspended. Other offences