Galuvao and Minister for Home Affairs (Migration)
[2019] AATA 2425
•22 July 2019
Galuvao and Minister for Home Affairs (Migration) [2019] AATA 2425 (22 July 2019)
Division: GENERAL DIVISION
File Number(s): 2019/2801
Re:Puipuiomaota Galuvao
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member M Griffin QC
Date:22 July 2019
Date of written reasons: 07 August 2019
Place:Sydney
The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 13 May 2019 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. In substitution, the Tribunal decides the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.
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Senior Member M Griffin QC
CATCHWORDS
MIGRATION - mandatory cancellation of visa - failure to pass character test - substantial criminal record - whether the discretion to revoke the cancellation should be exercised - Ministerial Direction No. 79 - primary considerations - protection of the Australian community from criminal or other serious conduct – best interests of minor children in Australia – expectations of the Australian Community – other considerations – strength, nature and duration of ties – impediments to removal – dangerous driving occasioning death – dangerous driving occasioning grievous bodily harm – set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
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 s501CA
WRITTEN REASONS FOR ORAL DECISION
Senior Member M Griffin QC
07 August 2019
What follows are reasons for the oral decision I delivered on 22 July 2019 revoking cancellation of the Applicant’s visa.
The Applicant seeks review of a decision of a delegate of the Minister on 13 May 2019 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (visa).
The application is made pursuant to s 500(1)(ba) of the Migration Act 1958 (Cth) (Act).
The Applicant, a citizen of New Zealand, has resided in Australia since March 1998. She is presently 31 years of age.
The Applicant was convicted on 18 March 2016 of the offences of dangerous driving occasioning death, dangerous driving occasioning grievous bodily harm and other minor associated offences. The offences occurred on 15 September 2014. The Applicant was sentenced to imprisonment for 4 years 6 months with a non-parole period of 2 years and 9 months.
On 8 November 2017, the Applicant’s visa was cancelled under s 501(3A) of the Act because she failed the character test as a result of having a substantial criminal record within the meaning of s 501(6)(a) of the Act.
On 15 November 2017, the Applicant made representations seeking revocation of the cancellation decision.
On 13 May 2019, the delegate decided under s 501CA(4) of the Act not to revoke the mandatory cancellation.
On 20 May 2019, the Applicant applied to the Tribunal for review of the decision.
It is common ground that the Applicant does not pass the character test as defined.
The issues for the Tribunal are therefore whether there is another reason why the cancellation decision should be revoked under s 501CA(4) of the Act, having regard to the considerations prescribed by ‘Direction No 79 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA’ (Direction 79).
RELEVANT LAW
Legislation
Relevantly, the Tribunal must therefore decide whether there is another reason why the original decision should be revoked: s 501CA(4)(b)(ii).
This involves an assessment and evaluation of the factors for and against revoking the cancellation.
A determination under s 501CA(4) must be carried out in accordance with any written directions under the Act: s 499(2A). In considering a request for revocation of a mandatory s 501(3A) cancellation, the Tribunal must comply with Direction 79.
Direction 79
Direction 79 provides that the decision is to be approached within the framework of the principles in paragraph 6.3 of Direction 79 (Principles).
Informed by the Principles, the Tribunal must take into account the primary considerations in Part C of Direction 79, in deciding whether to revoke a mandatory cancellation. The primary considerations are:
(a)protection of the Australian community from criminal and other serious conduct of non-citizens;
(b)the best interest of minor children in Australia affected by the decision; and
(c)expectations of the Australian Community.
The Tribunal must also take into account other considerations insofar as they are relevant. These include but are not limited to:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties to Australia;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed from Australia.
ANALYSIS
THE PROTECTION OF THE AUSTRALIAN COMMUNITY
This factor involves a consideration of (a) the nature and seriousness of the Applicant’s conduct to date and (b) the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
Nature and seriousness of conduct
Paragraph 13.1.1 of Direction 79 prescribes factors to which decision-makers should have regard in considering the nature and seriousness of the Applicant’s criminal offending.
Risk to the Australian community
Paragraph 13.1.2 of Direction 79 provides that in considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the Applicant re-offending.
The driving offence was serious and was attended by particularly serious consequences. The Applicant chose to drive a motor vehicle having neither a driver’s licence nor any experience driving motor vehicles. She was, however, pressured by her companion to an extreme extent and gave in to that pressure. The Applicant drove the motor vehicle for a short distance, lost control of it and mounted the footpath, careering through the store front of a chemist shop. The entirely foreseeable consequences which flowed included a death and serious injury to two people.
The driving was not, however, attended by speed or alcohol and the Applicant, I find, was doing her incompetent best. The sentence imposed is a recognition of the seriousness of the offence but, in my opinion and experience, it is not at the higher end of the catalogue of seriousness for offences of this type.
Much of the Respondent’s submissions were devoted to the protection of the Australian public and the risk that the Applicant likely poses should she remain in Australia.
There is ample evidence, in my opinion, to accept that the Applicant is at such a low risk of re-offending that that risk is virtually negligible.
I accept the evidence of the forensic psychologist, Dr Peter Ashkar, without reservation. That opinion, itself, is supported by objective evidence including the fact that the Applicant had never, before 15 September 2014, been convicted. Nor was it suggested that she had ever involved herself in any illegal or unsavoury activity before the driving offence.
Furthermore, her conduct whilst in custody and immigration detention gave rise to an opinion that she was effectively a “model prisoner”.
Furthermore, the Applicant undertook a number of courses to attempt rehabilitation. I find that the rehabilitation has been successful. The Applicant has insight into her previous offending behaviour. I had the advantage of listening to her give evidence which I accept was truthful, genuine and realistic.
Overall, I find that the Applicant, in considering the protection of the Australian community, is a minimal risk of re-offending and this consideration weighs heavily in her favour.
BEST INTERESTS OF MINOR CHILDREN
The Applicant has two sons, C who is aged 10 and S who is aged eight. They reside with the Applicant’s parents and brother.
I am satisfied on all the evidence that she has been a loving and caring mother and that her two children aged eight and ten, who live in Australia and may be, on the evidence, Australian citizens, have an appropriate and loving relationship with their mother. And she likewise on all the evidence has an appropriate loving nurturing relationship with her children.
In considering, therefore, the best interests of those children, this consideration, in my opinion, weighs heavily in the Applicant’s favour.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Direction 79 prescribes at paragraph 6 that the Australian community expects non- citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non- citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa.
As to the expectations of the Australian Community, the Applicant has seriously breached an Australian law. This consideration is to be weighed and considered in relation to all other considerations. It cannot be said that this consideration weighs in favour of the Applicant.
OTHER CONSIDERATIONS
There are no relevant business obligations or known impact on victims to consider in this case. The Applicant has not raised any claims that would enliven consideration of international non-refoulement obligations.
STRENGTH, NATURE AND DURATION OF TIES
IMPEDIMENTS TO REMOVAL
As to the other considerations which are relevant, the impact on family members suggests, on the evidence in this case, that the Applicant’s family members will be negatively impacted should the Applicant be returned to New Zealand. It is relevant to say that the Applicant has lived in Australia since she was 11 years of age, returning to New Zealand only briefly. I accept, on the evidence, that her life and that of her children is a life experienced as an Australian in Australia.
The Tribunal accepts, as the Minister submits, that the Applicant would not be unable to maintain contact with her family members from New Zealand.
There is little evidence as to any impediments that the Applicant might face, should she be removed to New Zealand. In particular, the Applicant would not face any significant linguistic or cultural barriers upon return.
There is nothing to suggest that the Applicant would be unable to maintain a standard of living commensurate with that of other citizens of New Zealand or access the same social and mental health services as other New Zealanders.
Further, the Applicant has a significant number of extended family members in New Zealand.
The Applicant may face some difficulty in re-establishing herself in New Zealand due to her period of residence in Australia.
On the totality of the evidence, however in relation to both of these considerations, the Tribunal finds that these considerations favour the Applicant’s case.
CONCLUSION
Despite the fact that the expectations of the Australian community may weigh against the Applicant, on all the other evidence, taking into account all factual matters and the relevant considerations, I am thoroughly satisfied that the Delegate’s decision should be set aside. The correct and preferable decision is to revoke the cancellation.
DECISION
The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 13 May 2019 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. In substitution, the Tribunal decides the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.
I certify that the preceding 43 (forty - three) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC
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Associate
Dated: 07 August 2019
Date(s) of hearing: 22 July 2019 Counsel for the Applicant: Ms N Laing Solicitors for the Applicant: Ms S Blaker, Legal Aid New South Wales Solicitors for the Respondent: Ms M Donald, Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Remedies
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Statutory Construction
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