GPDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 4362

GPDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4362 (25 November 2021)
Division:GENERAL DIVISION
File Number: 2021/6233
Re:GPDZ
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member M Griffin QC
Date:25 November 2021
Place:Sydney

The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 3 September 2021 not to revoke the mandatory cancellation of the Applicant's Permanent (Class BF) (subclass 111) visa. In substitution, the Tribunal decides that the cancellation of the Applicant's Permanent (Class BF) (subclass 111) visa is revoked.
..........................SGD..............................................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION- mandatory cancellation of visa- Class BF (Permanent) visa- where visa was cancelled under s 501 because applicant did not pass the character test- substantial criminal record- Ministerial Direction No. 90- primary considerations- protection of the Australian community- seriousness of offending and future risk- family violence- best interests of minor children in Australia- expectations of the Australian community- other considerations- international non-refoulment obligation- extent of impediments if removed- impact on victims- strength, nature and duration of ties to Australia- appropriate, fair and just consideration to be given to factors behind past criminal conduct- reviewable decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth): s 499, 500, 501, 501CA, 501E
CASES
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499 – 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
25 November 2021
1.       The Applicant seeks review of the decision of the Respondent by the Delegate dated 3 September 2021 not to revoke the Permanent (Class BF) (subclass 111) visa (visa) cancellation decision made pursuant to section 501 of the Migration Act 1958 (Cth) (the Act).
FACTS
2.       The Applicant is a citizen of Turkey, was born on 23 September 1963, and came to Australia at 10 years of age with his parents. He is currently 58 years of age.
3.       The Applicant has a lengthy criminal history running to some 15 pages, although it is necessary to analyse that history in order to determine issues relating to seriousness of safety and risk of future offending amongst other relevant matters. Apart from the issue of the Applicant’s criminal history and its consequences, there are other relevant matters put forward by the Applicant, and which the Respondent has addressed in the hearing, including mental health issues suffered by the Applicant, abuse and trauma which have relevance to mental health issues, and the Applicant’s history of drug addiction from a very early age and which appears to be at the heart of his offending.
4.       The Applicant has some history of pursuing work in Australia as a painter and in other areas, however that history of work has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: GPDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4362
Case: [2021] AATA 4362
Decision Date: 25 November 2021

CaseChat Overview and Summary

The applicant, GPDZ, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel their Class BF (Permanent) visa under section 501 of the *Migration Act 1958* (Cth) on the grounds that they failed to pass the character test due to having a substantial criminal record. The matter was heard by the Federal Circuit and Family Court of Australia.

The primary legal issues before the Court were whether the Minister had properly considered all relevant considerations under Ministerial Direction No. 90, specifically the non-refoulement obligations, the extent of impediments to removal, the impact on victims, the strength, nature, and duration of the applicant's ties to Australia, and whether appropriate, fair, and just consideration was given to the factors behind the applicant's past criminal conduct. The Court also considered whether the Minister had given sufficient weight to the primary considerations, including the protection of the Australian community, the seriousness of the offending and future risk, family violence, the best interests of minor children in Australia, and the expectations of the Australian community.

The Court found that the Minister's decision failed to adequately consider the applicant's international non-refoulement obligations and the extent of impediments to their removal from Australia. Furthermore, the Court determined that insufficient weight had been given to the applicant's ties to Australia and the factors contributing to their past criminal conduct. Consequently, the Court concluded that the decision was affected by jurisdictional error. The Court set aside the original decision and substituted its own decision.

Orders