GTWS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Case [2020] AATA 695

GTWS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 695 (1 April 2020)

Division:GENERAL DIVISION

File Number:          2020/0269

Re:GTWS  

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:1 April 2020

Place:Sydney

The Reviewable Decision dated 7 January 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.

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

Senior Member Linda Kirk

CATCHWORDS
MIGRATION – mandatory cancellation of a Class BB (Subclass 155) Resident Return visa – substantial criminal record – character test – whether there is another reason to revoke the mandatory cancellation of the visa – Ministerial Direction No. 79 – primary considerations – protection of the Australian community – expectations of the Australian community – other considerations – where Applicant is at a medium-high risk of re-offending – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311
Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection[2018] FCA 594
Tuioti and Minister for Home Affairs (Migration) [2019] AATA 4423
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Australian Government Department of Home Affairs Removal from Australia – Post-removal support Procedural Instruction (dated 30 October 2018)

Migration Act 1958 – Direction No. 79 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)

REASONS FOR DECISION

Senior Member Linda Kirk

1 April 2020

  1. GTWS (‘the Applicant’), a citizen of the United Kingdom, was born in 1995.[1] He came to Australia with his parents and three brothers in June 1997 when he was two years old.[2] Prior to its cancellation, the Applicant held a Class BB (Subclass 155) Resident Return visa.[3]

    [1] Exhibit R1, G2, 12.

    [2] Exhibit R1, G19, 97; Transcript p30.

    [3] Exhibit R1, G2, 12.

  2. On 25 July 2016, the Applicant’s visa was mandatorily cancelled by a delegate of the Minister (‘the Respondent’) pursuant to section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). The Applicant made representations and on 11 October 2016, a delegate of the Respondent decided to revoke the cancellation.[4]

    [4] Exhibit R1, G17, 87.

  3. On 10 October 2017, the Applicant was convicted in the Local Court of New South Wales at Katoomba for the offences of larceny; reckless grievous bodily harm; assault occasioning actual bodily harm; and common assault; and was sentenced to six months, 21 months, 18 months and nine months imprisonment respectively for these…

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Details
AGLC
GTWS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 695
Case
[2020] AATA 695
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of GTWS and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute concerned the mandatory cancellation of the Applicant's Resident Return visa (Class BB, Subclass 155) due to his substantial criminal record, and whether there was another reason to revoke this cancellation.

The legal issues before the Tribunal were whether the Applicant had established that there was "another reason" why the mandatory cancellation decision should be revoked, and if so, whether the primary considerations under Ministerial Direction No. 79, specifically the protection of the Australian community and the expectations of the Australian community, weighed in favour of revocation. The Tribunal was required to assess the Applicant's conduct, his risk of re-offending, and other relevant factors in making its determination.

The Tribunal's reasoning focused on the primary considerations outlined in Ministerial Direction No. 79. It noted that the Applicant had a history of drug use and offending, including incidents of violence and possession of drugs while in custody and immigration detention. The Tribunal found that the Applicant presented a medium-high risk of re-offending. While acknowledging the Applicant's early life difficulties, including diagnosed Attention Deficit Disorder and Oppositional Defiance Disorder, and his struggles with bullying and drug addiction, the Tribunal concluded that these factors did not outweigh the need to protect the Australian community. The Tribunal found that the Applicant had not established that there was another reason to revoke the mandatory cancellation decision.

Consequently, the Tribunal affirmed the mandatory cancellation of the Applicant's visa.

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 years The Applicant arrived in Australia with his family in 1997. He attended primary and high school in Australia. Whilst at school, he was ‘constantly bullied’ by other students. He did not fit in at school and had learning difficulties due to his inability to concentrate for long periods.[12] [12] Exhibit R1, G11, 72; G15, 84. The Applicant’s mother took him to a paediatrician as a child and he was diagnosed with Attention Deficit Disorder (Hyperactive subtype), Oppositional Defiance Disorder and Obsessive Compulsive Disorder. He was medicated through primary school with Ritalin to address his hyperactivity, and when he entered high school his medication was altered to a slow release form.[13] He stopped taking this medication as it made him feel like a ‘zombie’.[14][13] Exhibit R1, G22 108.[14] Transcript p18. The Applicant left school in year 8 when he was 13 years old. He started ‘hanging out with the wrong crowd’.[15] He was introduced to drugs and alcohol and ‘resorted to violence’.[16] He began to spend nights away from home, sleeping on friend’s couches, although he did not move out of home.[17] His parents separated when he was 16 years old, after which he lived mainly with his mother.[18][15] Exhibit R1, G11, 72.[16] Exhibit R1, G11, 72.[17] Exhibit R1, G22, 107.[18] Transcript p31. The Applicant worked with his father in a landscaping business for a few months.[19] He was not employed in any other position, but did assist some friends on a voluntary basis doing labouring and bricklaying on and off for a couple of years.[20][19] Transcript p32.[20] Transcript p33.Drug and alcohol use The Applicant commenced substance use when he was 13 years old with alcohol and cannabis. In his early teens, he also took ‘pills’ such as ecstasy in social situations with his peers. He started using methamphetamine (ice) when he was around 16 years old.[21] By the age of 18 years he was using it on a daily basis.[22] At 19 years old he began using heroin intravenously.[23] By the age of 21, he was using ice two to three days a week and cannabis daily.[24] At the time of his offending in 2017 he was using ice every day, sometimes twice a day.[25] The Applicant was asked how he funded his drug habit. He said it was with his Centrelink payments and by stealing and selling alcohol.[26][21] Transcript p92.[22] Transcript p93.[23] Transcript p23-24; Transcript p93.[24] Transcript p94.[25] Exhibit R1, G22, 109.[26] Transcript p93. The Applicant was asked whether his mother was aware he was taking drugs. He said that his mother ‘would’ve known’ but he did not tell her he did.[27] [27] Transcript p95. In January 2014, the Applicant attended a rehabilitation facility where he stayed for two months.[28] When he left the program he started to use ice again within a week.[29] He believes his lack of success in the program was because he was not ready to change his lifestyle at the time.[30] [28] Exhibit R2, 254.[29] Transcript p94.[30] Exhibit R1, G22, 109.Criminal history

Decision

Reasons for decision

For these reasons, the Applicant cannot rely on section 501CA(4)(b)(i) for revocation of the Mandatory Visa Cancellation Decision.Is there ‘another reason’ why the Mandatory Visa 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:1When considering protection of the Australian community, decision­makers 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 non­citizens 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. Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:(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) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;(e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;(f) The cumulative effect of repeated offending;(g) …(h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);(i) …(a) Nature and seriousness of the Applicant’s conduct to date

Ratio Decidendi

Legal Principle Established

The Applicant entered incarceration on 25 June 2017 and remained there until 22 June 2019,[74] following which he was transferred to Villawood Immigration Detention Centre.[74] Exhibit R1, G8 49-50.Behaviour in custody and immigration detention During his period in criminal custody from June 2014 until November 2017, there were six recorded incidents of behaviour by the Applicant.[75] [75] Exhibit R1, G2, 18. In October 2017, the Applicant was placed into segregation following an act of indecency towards a senior psychologist.[76] In November 2017, he was found in possession of a drug, buprenorphine.[77] He told the Tribunal that he ‘got [the drug] off one of [his] mates’ in gaol and he was hiding it from the prison officers.[78] In January 2018, the Applicant was charged with damage, destroy or deface cell after he had written on the cell wall with a green whiteboard marker.[79] In June 2018, the Applicant disobeyed an order and swore at an officer when he was found searching through items that had been confiscated.[80] The Applicant told the Tribunal the items were magazines.[81][76] Exhibit R2, 173-175.[77] Exhibit R2, 180; Transcript p81.[78] Transcript p82.[79] Exhibit R2, 188-189.[80] Exhibit R2, 205-207.[81] Transcript p85. In July 2018, the Applicant was again found in possession of buprenorphine.[82] In January 2019 he was disciplined for disobeying three orders by an officer when returning to his cell from the external recreation yard.[83] In February 2018, the Applicant was charged with interfering with the emergency steno phone system in the cell by covering it with tape.[84][82] Exhibit R2, 213.[83] Exhibit R2, 221.[84] Exhibit R2, 222; Transcript p86-87. During the Applicant’s period in immigration detention there were a number of recorded incidents. The first occurred on 9 October 2019 when, during a targeted room search, a smoking implement (a straw attached to a small glass pipe) was located in the Applicant’s room. He admitted the implement belonged to him.[85] The Applicant told the Tribunal that he was not using it and it was not his, but he nevertheless admitted to owning it as this is the ‘gaol code’.[86] On 25 November 2019, the Applicant and another detainee were sighted looking through some books where there had previously been found three plastic bags containing an unknown white crystal substance.[87] The Applicant told the Tribunal he cannot read and was just looking at the pictures in the book.[88][85] Exhibit R2, 390.[86] Transcript p87.[87] Exhibit R2, 399.[88] Transcript p89. In December 2019, the Applicant was involved in an altercation with another detainee.[89] He told the Tribunal that he has had ‘arguments’ and ‘push and shoves’ with other detainees when they ‘have put it on me’.[90] In January 2020, the Applicant was involved in another altercation involving a broom handle.[91] The Applicant told the Tribunal that this was a fight between him and one of his mates. It happened because of ‘the stress of always being constantly around each other’. Afterwards they shook hands and were talking again.[92] In January 2020, a search was conducted of the Applicant’s room and a smoking implement of a plastic bottle with a tube was found.[93] The Applicant told the Tribunal that this did not belong to him.[94][89] Exhibit R2, 404.[90] Transcript p89.[91] Exhibit R2, 410.[92] Transcript p91.[93] Exhibit R2, 419.[94] Transcript p92.Remorse and responsibility for offending