Gray and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Case [2024] AATA 3363

Gray and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3363 (13 September 2024)

Division:GENERAL DIVISION

File Number(s):2024/4253      

Re:Floyd Stanton Gray  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President O'Donovan

Date of Decision:               13 September 2024

Date Reasons Published:      23 September 2024

Place:Sydney

The decision under review is affirmed.

.....................[SGD]...................................................

Deputy President O’Donovan

Catchwords

MIGRATION – mandatory cancellation of applicant’s visa – applicant is not a citizen of Australia – arrived in Australia at very young age – long history of criminal offending – driving offences – property offences – violent offences – drug offences  –  failure to pass the character test – whether there is another reason to revoke the visa cancellation – Direction No. 110 – protection of the Australian community –best interests of minor children – expectations of the Australian community – strength, nature and duration of ties – extent of impediments if removed – protection of Australian community government’s highest priority – clear risks to Australian community  – decision under review affirmed

Legislation

Migration Act 1958 ss 501, 501(3A), 499, 501CA

Cases
Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155
NZYQ v Minister for Immigration Citizenship and Multicultural Affairs [2023] HCA 37

Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497

Secondary Materials

Direction No 110: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (7 June 2024)

REASONS FOR DECISION

Deputy President O'Donovan

23 September 2024

  1. The Applicant was born in Calgary, Canada in 1965. He arrived in Australia with his family in 1969. He has lived in Australia ever since but never became an Australian citizen. Until last year he held a Class BF Transitional (Permanent) visa.

  2. During his time in Australia, the Applicant has committed a very long list of criminal offences. Despite serving a number of lengthy prison sentences the Applicant’s visa status was never scrutinised by the Respondent. In 2023 the Applicant’s luck ran out. On 21 April 2023, the Applicant’s visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (Migration Act). The delegate was satisfied that the Applicant did not pass the character test because he had a substantial criminal record. The delegate was obliged to cancel the Applicant’s visa because he was…

Continue reading Gray and Minister for Immigration, Citizenship and Multicult...

Sign in free to access the full text

Details
AGLC
Gray and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3363
Case
[2024] AATA 3363
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal against the mandatory cancellation of the applicant's visa. The applicant, who arrived in Australia at a very young age and was not an Australian citizen, had a long and serious history of criminal offending, including driving, property, violent, and drug offences. The Minister for Immigration, Citizenship and Multicultural Affairs had cancelled the applicant's visa under section 501(3A) of the *Migration Act 1958* (Cth) for failing to pass the character test. The applicant sought to have the visa cancellation revoked, arguing there was "another reason" to do so.

The court was required to determine whether there was another reason to revoke the mandatory visa cancellation, considering the principles outlined in Direction No. 110. This involved weighing various factors, including the protection of the Australian community, the best interests of minor children, community expectations, the strength, nature, and duration of the applicant's ties to Australia, and the extent of impediments he might face if removed from Australia. The court also had to consider the nature and seriousness of the applicant's conduct and the risk he posed to the Australian community.

In its reasoning, the court acknowledged the applicant's belief that he was an Australian citizen and the significant shock the prospect of deportation would cause. However, it affirmed that the applicant was a non-citizen subject to deportation. The court found that while the applicant's long ties to Australia and the potential difficulties he would face upon removal weighed in favour of revocation, the paramount consideration was the protection of the Australian community. The applicant's criminal history, which included violent offences and a pattern of escalating seriousness over more than 30 years, presented a clear and serious risk to the community. Despite the applicant's extensive history in Australia, the court concluded that affirming the visa cancellation was necessary to protect the Australian community from risks of serious harm, as this was the government's highest priority.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

So, notwithstanding that there are incidents reported to the police where the Applicant had engaged in family violence, I have made no affirmative findings that he did. I have assessed his case on the basis that the Family Violence consideration is neutral because I am not satisfied that he ever engaged in conduct meeting that description. Facts My findings of fact are set out below. Where a finding is controversial, I have referenced the evidence on which the finding is based. As noted above, the applicant was born in Calgary, Canada in 1965. He arrived in Australia with his family in 1969. He arrived by boat which had departed from Genoa in Italy. Ireland was identified as the country of most recent permanent residence on the incoming passenger card. The Applicant believes that his mother was an Australian citizen and that his father may have been a US citizen. The parties are in agreement that the Applicant is not an Australian citizen. There is however no consensus about what citizenship the applicant actually holds. When he arrived, the Applicant’s family consisted of his mother and father and three siblings. By the time the applicant was six years old his parents had separated. His mother was awarded custody of the children. However, his father never respected the court orders. As a consequence, the children were often removed from their mother’s care by the father and taken to live somewhere else until the police caught up with them. The result was an extremely chaotic childhood which resulted in the Applicant attending multiple schools in various parts of Australia. The Applicant’s father was a strict disciplinarian who used forms of corporal punishment that would leave welts on the Applicant. The Applicant’s mother appears to have limited interest in her children after she re-partnered. The Applicant left school in year 9. When he was 16, for reasons which I haven’t explored, the Applicant was placed in Mount Penang Training School. The Applicant was sexually abused there. When he was released from Mount Penang the applicant was 17. He returned to Sydney and got a job painting ships at Cockatoo Island. He lived with his girlfriend at her father’s house. Soon after his release he began using marijuana, and shortly after that began using heroin. At age 18 he had his first child with his first long term partner Sharen. His second child was born when he was aged 20. The Applicant’s criminal offending as an adult began on 12 September 1983. He was convicted of driving without a licence and speeding and fined a total of $400 and disqualified from driving for 12 months. Multiple driving offences were committed over the course of 1983 and 1984. None were terribly serious but showed a disregard for the law that could not be tolerated by the courts. The Applicant was sentenced to four months imprisonment on 7 August 1984 for driving while disqualified. On the same day, he was sentenced for being in possession of property likely to have been stolen (described as ‘goods in custody’ and abbreviated to GIC in the Criminal History) and sentenced to four months in prison to be served concurrently with his driving offence. He was also fined for using a prohibited drug (heroin).

Evidence

Evidence Before The Court

My reasons for that decision are set out below.Evidence before the Tribunal The following material was taken into evidence in the course of the hearing:(a) G-Documents filed with the Tribunal on 12 July 2024 (G-Docs);(b) Applicant’s tender bundle filed with the Tribunal on 7 August 2024 (Exhibit A1;(c) Applicant’s Supplementary Tender Bundle field with the Tribunal on 19 August 2024 (Exhibit A2);(d) Respondent’s Tender Bundle filed with the Tribunal on 15 August 2024 (Exhibit R1);(e) Respondent’s Chronology of Events, as colour coded filed with the Tribunal on 15 August 2024 (Exhibit R2); and(f) Respondent’s Supplementary Tender Bundle filed with the Tribunal on 27 August 2024 (Exhibit R3). The following witnesses gave oral evidence and were cross-examined:(a) The Applicant;(b) Ms Kellie West;(c) Mr Marcus Andrews; and(d) Mr Guy Coffey (Clinical Psychologist). Fact finding principles In reaching my findings on the primary facts I must apply the principle, clarified by the Full Court of the Federal Court in HZCP v Minister for Immigration and Border Protection (HZCP),[5] that '…relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error'. The Court made clear that a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as 'another reason' why the original decision to cancel should be revoked. [5] [2019] FCAFC 202 at [68]. I do note however that the Applicant is entitled, subject to some qualifications, to seek different findings from the Tribunal in relation to any criminal convictions which did not form the basis of the decision to cancel his visa. The principles to be applied by the Tribunal when considering evidence of this nature were comprehensively summarised by Justice Bromberg in HZCP. The principles are stated concisely in the following passage from Secretary to the Department of Justice and Regulation v LLG, cited with approval by Justice Bromberg:The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal's jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the convictions are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.[6][6] [2018] VSCA 155, at [42]. In this matter I am therefore bound by the essential findings made in relation to the stealing offence, that led to the sentence which became the foundation of the visa cancellation. In relation to the Applicant’s other convictions, I do have some freedom to depart from the findings made in relation to the many other crimes which the applicant has been convicted of, but it would be unusual to do so.

Decision

Reasons for decision

The evidence of the Applicant and his sister Lisa is that they both thought they were Australian citizens. I do not doubt that the prospect of deportation came as a significant shock to the Applicant as a consequence of that belief. However, whether he knew it or not the Applicant is a non-citizen and subject to the risk of deportation. Removal of the applicant to a country where he has never lived and has no connections, where he will be far away from his family is very tough. To suffer that removal in his late 50s with limited prospects of any visits from relatives is especially tough. These kinds of considerations are relevant and weigh heavily in favour of the applicant being allowed to stay.CONCLUSION Informed by the principles in paragraph 5.2 of the Direction, I have taken into account the considerations identified in sections 8 and 9 of the Direction which are relevant to this decision. I have also considered the other matters raised by the Applicant. The following considerations weigh very heavily against a decision to revoke the cancellation:(a)Protection of the Australian community from criminal or other serious conduct;(b)The expectations of the Australian community. The following considerations weigh in favour of revocation of the cancellation:(a)The strength, nature and duration of the Applicant’s ties to Australia – this consideration weighs very heavily in favour revocation. (b)The legal consequences of the decision are significant given that the Applicant will remain in immigration detention pending determination of his country of citizenship and then be removed from Australia, which he regards as his home. He will be permanently excluded from living here again. This weighs in favour of revocation.(c)There are impediments which the applicant may face in establishing himself and maintaining basic living standards when he is deported. This consideration weighs strongly in favour of revocation of the cancellation. The family violence consideration and the best interests of minor children consideration are both essentially neutral. This decision is a difficult one. The applicant does pose a very real risk of causing death or serious injury to a member of the Australian community. Accordingly there is a very strong community interest in having him removed. On the other hand, Australia may afford a higher level of tolerance of criminal conduct by a non-citizen who has lived in the Australian community for most of their life or from a very young age. this recognises that removing a person who has never known any other country and has genuine close ties to his family in Australia is extremely harsh and will be difficult for the Applicant and the members of his family to bear. While in many cases, given the applicant’s almost exclusive association with Australia would have the result that the visa cancellation is set aside, in this case, I have taken very seriously the inclusion in the Direction the principle that the safety of the Australian Community is the highest priority of the Australian Government. While the matter is finely balanced, there is no doubt that affirming the visa cancellation will protect the Australian community from risks of serious harm.

Ratio Decidendi

Legal Principle Established

In immigration detention he has attended the Smart Recovery Program on several occasions and has also had some treatment for his PTSD with a psychologist. The applicant had undertaken the Smart Recovery Program in 2010 but without success.CONSIDERATIONPrimary considerationsProtection of the Australian Community When examining this consideration I am required to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, 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. I need also to give specific consideration to:(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 the conduct In considering the nature and seriousness of the conduct there are factors to which I must have regard specified in paragraphs 8.1.1(1)(a)-(h). When these factors are applied to the Applicant’s circumstances, the result is that I must approach the applicant’s case on the basis that his crimes are viewed very seriously by the Australian Government and the Australian Community. His crimes include violent crimes and one of those crimes was an assault against a child resulting in a substantial sentence being imposed by the courts (factor (a)). The Applicant has also committed crimes against government officials in the performance of their duties by resisting arrest which I must treat as a serious crime (factor (b)). The Applicant has had custodial sentences imposed for many of his offences. On 8 occasions he has been sentenced to more than two years in prison which indicates the seriousness with which the courts regard the offending (factor (c)). There is no evidence before me concerning the impact of the Applicant’s offending on his victims (factor (d)). Further, the Applicant’s offending has persisted over a long period of time and increased in seriousness over time. The Applicant’s most violent crimes (the 2016 assault in company and the 2019 assault of a juvenile) occurred relatively recently in the context of a criminal history of more than 30 years. His most deliberate dangerous driving offence, the high speed police pursuit, took place in 2021 - again more than 30 years after his first adult driving offence. I am satisfied that the Applicant’s offending has increased in seriousness over time (factor (e)). I have also given attention to the cumulative effect of the Applicant’s repeated offending. Over time he has stolen regularly from other members of the Australian community. His repeated offending has left sentencing judges with no alternative but to impose jail sentences, repeatedly absorbing community resources in the management of his behaviour. Over time he has had many different victims who have been cumulatively harmed in a variety of different ways (factor (f)).