GJJF v Minister for Home Affairs (Migration)

Case [2019] AATA 930

GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019)

Division:GENERAL DIVISION

File Number:          2019/1152

Re:GJJF  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

Decision

Tribunal:Member T Eteuati

Date:17 May 2019

Place:Sydney

The decision under review is affirmed.

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

Member T Eteuati

Catchwords

MIGRATION – refusal of application for Bridging visa under section 501(1) – Applicant failed to pass the character test under section 501(6)(d)(i) - whether the discretion to refuse to grant the Bridging visa should be exercised - application of Direction No. 79 –decision under review affirmed

Legislation

Migration Act 1958 (Cth)

Cases

Afu v Minister for Home Affairs [2018] FCA 1311

Coker v Minister for Immigration and Border Protection[2017] FCA 929

DKXY v Minister for Home Affairs[2019] FCA 495

Doan and Minister for Home Affairs (Migration) [2019] AATA 169

DOB18 v Minister for Home Affairs [2019] FCAFC 63

Frazer (Migration) [2018] AATA 593

FYBR v Minister for Home Affairs[2019] FCA 500

Minister for Immigration and Border Protection v Le [2016] FCAFC 120

Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160

Omar v Minister for Home Affairs [2019] FCA 279

KLQF and Minister for Home Affairs (Migration) [2019] AATA

QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855

Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

TGXY and Minister for Home Affairs (Migration) [2019] AATA 757

Uelese v Minister for Immigration and Border Protection [2015] HCA 15

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Direction No 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

Explanatory Memorandum Migration Legislation Amendment (Strengthening of Provisions Related to Character and Conduct Bill 1998 (No.2)

Explanatory Memorandum Migration Amendment (Character and General Visa Cancellation) Bill 2014

REASONS FOR DECISION

Member T Eteuati

17 May 2019

background

  1. This is an application by GJJF (“the Applicant”) for review of a decision made by the delegate of the Minister for Home Affairs (“the Minister”) on 20 February 2019 to refuse to grant the Applicant a Bridging E (Class WE) visa, under section 501(1) of the Migration Act 1958 (Cth) (“the Act”).

  2. The Applicant arrived in Australia on 8 June 2013 by boat as an unauthorised maritime arrival. As such, he was prevented by section 46A of the Act from applying for a visa unless the Minister allowed him to do so.

  3. On 23 July 2013, the Applicant was granted a Class UJ Subclass 499 (Humanitarian Stay) temporary visa. He was granted a Bridging visa on the same day.

  4. On 7 July 2016, the section 46A bar was lifted in respect of applications for a temporary Protection visa or Safe Haven Enterprise…

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Details
AGLC
GJJF v Minister for Home Affairs (Migration) [2019] AATA 930
Case
[2019] AATA 930
Decision Date

CaseChat Overview and Summary

This matter concerned an application for a Bridging visa by the Applicant, who had failed to pass the character test under section 501(6)(d)(i) of the Migration Act 1958 (Cth). The Minister's delegate had refused to grant the visa, and the Applicant sought review of this decision. The Tribunal was required to determine whether the discretion to refuse to grant the Bridging visa should be exercised, having regard to the Applicant's failure to meet the character requirements.

The Tribunal considered the application of Direction No. 79, which mandates that decision-makers must give primary consideration to the protection of the Australian community from criminal or other serious conduct. The Direction outlines a low tolerance for visa applicants who have engaged in such conduct and requires consideration of the nature and seriousness of the applicant's past behaviour and the risk to the community if further offences were committed. The Tribunal was directed to assess various factors, including the seriousness of the offending, the frequency of offending, the cumulative effect of repeated offending, and whether the conduct was committed while in immigration detention.

In its reasoning, the Tribunal noted that the Applicant had provided a letter acknowledging his criminal behaviour as reckless and reprehensible, attributing his descent into drug use and subsequent offending to grief over his sister's death and a fear of returning to Iran. The Applicant expressed remorse and sought an opportunity to contribute positively to the community, noting his participation in a methadone program. However, the Tribunal found that the Minister's delegate's decision to refuse the Bridging visa was correct, affirming the decision under review. The Tribunal clarified that the Applicant was barred from applying for any other visa to remain in Australia and would be removed, with the Bridging visa only being granted for the purpose of facilitating his removal.

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

The Minister’s delegate relied solely on subparagraph 501(6)(d)(i) of the Act in finding that the Applicant did not pass the character test. Summary of evidence The Applicant provided no statement to the Tribunal. The Applicant did however provide a letter to the Department in reply to the NOIR. In that letter the Applicant described his criminal behaviour as reckless, reprehensible, and unacceptable. The Applicant stated that he was targeted in Iran for expressing his views. He said that he was shot in the bicep and was almost killed. He stated that this was the reason why he left Iran. The Applicant stated that he could not return to Iran because he may be killed there. The Applicant explained in his letter that his sister had passed away in 2016 in a car crash and that this had affected his psychological state. The Applicant said that he could not cope with his sister’s death and that his “life spiralled downhill after that.” After his sister passed away, the Applicant said that he started using marijuana to deal with his grief. The Applicant indicated that he then began using “more consequential drugs like methamphetamine.” The Applicant said that his judgement was altered, that he became isolated and oblivious to reality. He said that “Even pertinent issues as adhering to the laws turned into frivolous concepts. Inevitably, I became addicted to these drugs. I couldn’t go a day without using them, always in the streets looking for more to satiate my thirst. I was in the abyss that promised doom, this drugs would exacerbate the problems I was facing. I was deceiving myself that life was normal, I glossed over the consequences ensuing from my actions with crass indifference.” The Applicant indicated that prior to using drugs he had never offended and suggested that if he were granted a visa he would never reoffend. The Applicant said that he was regretful of his offences and was “genuinely contrite about my actions”. The Applicant asked for the chance to prove himself in the community. The Applicant has sought treatment for his drug addiction by being on a methadone program in immigration detention. The Applicant has given evidence that that treatment stopped four or five months ago. At the hearing, the Applicant said that he will not return to taking drugs as he decided some time ago that this was a negative in his life and that he wished to live a positive life and contribute to the community. He said that being in detention has given him the opportunity to break his cycle of drug dependence. Much of the Applicant’s evidence during the hearing was directed to his offending and his claims to fear harm in Iran. The Applicant’s offending behaviour is discussed below. The Applicant claimed that he feared being harmed by the government of Iran. He claimed that in 2009 or 2010 he had written a 20 page paper which was critical of the Iranian government and of Islam. He claimed that he was suspended from his university for a year as a result of the paper. The Applicant claimed that he was shot as a result of the paper that he wrote.

Decision

Reasons for decision

Therefore, the Tribunal finds that the Minister’s delegate’s decision, to refuse to grant the Applicant a Bridging visa, is the correct decision.DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

As mentioned above, these proceedings will not determine whether the Applicant is allowed to enter or to remain in Australia. In the present case, the Applicant was refused a Bridging visa. The Applicant is barred from applying for any visa to remain in Australia. The Applicant has been an unlawful non-citizen since October 2017 and he has been detention since April 2018. Whether or not the Applicant is granted a Bridging visa, he will be removed from Australia. Indeed, the only basis upon which the Applicant could be granted a Bridging visa is on the basis of preparation for the Applicant’s removal. Primary consideration A: Protection of the australian community from criminal or other serious conduct The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 11.1(1) of the Direction provides that there is a low tolerance for visa Applicants who previously engaged in criminal or other serious conduct. Paragraph 11.1(1) of the Direction also provides that decision-makers should give consideration to:(a)the nature and seriousness of the non-citizen’s conduct to date; and(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.The Nature and Seriousness of the Applicant’s Conduct to Date When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 11.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors including: (a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;(c)The principle that 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, are serious;(d)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence under section 197A of the Act;(e)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;(f)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;(g)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;(h)The cumulative effect of repeated offending;(i)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;(j)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.