Hall Infante and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Case [2024] AATA 1485

Hall Infante and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1485 (6 June 2024)

Division:GENERAL DIVISION

File Number:2024/1809          

Re:HALL INFANTE, Esteban Alejandro  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Hon J Rau SC

Date:6 June 2024

Place:Adelaide

The decision under review is affirmed.

.........................[sgnd]..................................
            Senior Member Hon J Rau SC

CATCHWORDS

MIGRATION – mandatory cancellation of Class AS Subclass 801 Spouse visa under section 501(3A) - where Applicant does not pass the character test– Applicant has substantial criminal record – Applicant’s visa had been cancelled previously – Applicant disregarded warnings from the Department – Applicant understands that if engaged in further criminal or other serious conduct, this may again result in his visa being cancelled on character grounds – Applicant has committed robbery – Applicant has committed acts of family violence – resulting in family violence restraining orders – Applicant has been a serial traffic offender – dangerous driving – property damage – driving without a license – Applicant has not been a primary caregiver of his son since birth – Applicant’s son is in care of the Department of Communities (WA) – Applicant has been in Australia since 5 years old – Applicant’s immediate family are Australian citizens – Applicant no longer speaks Spanish – Applicant has no practical or social connection to Chile – Applicant suffers from mental health and substance abuse issues – whether the discretion to revoke the visa cancelation under section 501CA(4) should be exercised – consideration of Ministerial Direction No. 99 - decision under review is affirmed.

LEGISLATION

Migration Act 1958 (Cth)

CASES

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

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

Afu v Minister for Home Affairs [2018] FCA 1311

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

FYBR v Minister for Home Affairs [2019] FCA 50

Jones v Dunkel 101 CLR 298

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

SECONDARY MATERIAL

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).

REASONS FOR DECISION

Senior Member Hon J Rau SC
6 June 2024

INTRODUCTION

  1. The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) on 15 March 2024, not to revoke the mandatory cancellation of his Class AS Subclass 801 Spouse visa (“the Visa”). His visa was cancelled on 27 September 2022 under section 501(3A) on the basis that he did not pass the character test.[1]

    [1] Exhibit 3, G-Documents, G2, Attachment 1: Delegate’s Decision Record, 10; G3: Statement of Reasons for Refusal, 11-26.

  2. Sections 501(6)(a) and 501(7)(c) of the Act provide…

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AGLC
Hall Infante and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1485
Case
[2024] AATA 1485
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Esteban Alejandro Hall Infante (the Applicant) for review of a decision to refuse to revoke the mandatory cancellation of his Class AS Subclass 801 Spouse visa. The cancellation was based on the Applicant failing to pass the character test due to having a substantial criminal record, including robbery and acts of family violence. The Applicant had previously had a visa cancellation revoked after providing assurances and warnings, but subsequently reoffended. The Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) was the respondent. The decision was made by Senior Member Hon J Rau SC of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the discretion to revoke the visa cancellation under section 501CA(4) of the *Migration Act 1958* (Cth) should be exercised. This required the Tribunal to consider various primary and other considerations, including Ministerial Direction No. 99, to determine if the Applicant's circumstances warranted the revocation of the cancellation. The Tribunal also had to assess the weight to be given to the Applicant's past conduct, his assurances of reform, and the potential impact of his removal from Australia.

The Tribunal reasoned that the Applicant's failure to call a critical witness, B.R., raised serious questions about the reliability of his evidence, particularly concerning his future plans. The Tribunal noted that the Applicant had been warned on a previous occasion that further criminal conduct could lead to visa cancellation, and that this warning had been disregarded. The Applicant's history of offending, including family violence and drug use, was considered significant. Despite the Applicant's claims of reform and participation in programs, the Tribunal found that his assurances carried little weight given his past conduct, particularly his immediate resumption of drug use and offending after a previous release. The Tribunal concluded that the primary considerations weighed heavily against revocation, and that other considerations, such as the impediments to removal, weighed heavily in favour of revocation.

The Tribunal affirmed the decision to refuse to revoke the visa cancellation. The discretion under section 501CA(4) was not exercised in favour of the Applicant.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This is a case in which the Applicant’s unexplained failure to call a critical witness, B.R, raises serious questions about the reliability of much of his evidence. In the Applicant’s narrative, B.R is central in his future plans, if he were to be released into the community. His failure to call her denied the Tribunal an opportunity to have that evidence tested in the hearing. In the case of this crucial witness, his unexplained reliance only on received, untested statements, is unsatisfactory. It gives rise to a reasonable inference that she may not have assisted him if she had been called.[3][3] Jones v Dunkel 101 CLR 298.BACKGROUND FACTS The Applicant was born on 30 May 1990, in Santiago, Chile. He is now 34 years old. The Applicant’s mother was a Chilean. His father is Australian citizen born, in Tasmania.[4] They met when he was working in Chile. His mother is now also an Australian citizen.[5] The Applicant has not obtained Australian citizenship by descent.[4] Ibid Attachment O3: Statement of Mr Esteban Alejandro HALL INFANTE, 149 at para [1][5] Ibid. On 26 June 1995, the Applicant arrived in Australia with his mother and his younger brother.[6] He was 5 years old. They initially lived in Somerville, Victoria.[6] Ibid Attachment R: Applicant’s Movement Record, 175. On 20 May 1997, the Applicant was granted the Visa, as a dependant to his mother.[7][7] Ibid Attachment U: Notice of Visa Cancelation (dated 27 September 2022), 184. On 8 August 1999, the Applicant left Australia for a period of 4 weeks.[8] He visited Chile.[8] Ibid Attachment R, 175. On 5 September 1999, the Applicant returned to Australia.[9] He has lived here ever since.[9] Ibid. The Applicant has immediate family members in Australia. These include his mother, his father[10], his younger brother J. Hall Infante and his younger sister A. Hall Infante. He also has an older half-brother and half-sister. They are all Australian citizens.[10] His father is presently living overseas and is separated from his mother. The Applicant also has other relatives in Australia on his father’s side.[11][11] Exhibit 7, Respondent’s Tender Bundle, 284, 427. The Applicant has always had a distant relationship with his father who now works overseas. In about 2002, when the Applicant was about 12, his mother was diagnosed with leukemia. The Applicant attended [Primary School 1] in Australia. He says that he was teased and bullied because of his skin colour and for his brother’s autism. As a result, his mother moved him to [Primary School 2].[12] He described that there has always been a ‘distance’ in their relationship and ‘especially when I started using drugs’.[13][12] Exhibit 3, G-Documents, Attachment O3, 149 at para [5].[13] Ibid Attachment F4: Pre-Sentencing Support Report from The Whitehaven (dated 04.08.2022), 87. The Applicant says he began drinking alcohol when he was around 12 years old.[14][14] Ibid Attachment O3, 149 at para [6]. The Applicant says he started using marijuana when he was around 16 years old.[15][15] Ibid.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The application of the Other Considerations in the present matter can be summarised as follows:(a)legal consequence of decision under s 501 or s 501CA, is neutral. (b)extent of impediments if removed: weighs heavily in favour of revocation. (c)impact on victims is neutral. (d)the impact on Australian business interests is neutral. CONCLUSION It is necessary to weigh up all of the primary and other considerations. Primary consideration 1 weighs very heavily against revocation. Primary consideration 2 weighs very heavily against revocation. Primary consideration 3 weighs in favour of revocation. Primary consideration 4 weighs at best, slightly in favour of revocation. Primary consideration 5 weighs heavily against revocation Other considerations (a), (c) and (d) are neutral. Other consideration (b) weighs heavily in favour of revocation. The Tribunal now must evaluate the ascribed weight of the Primary and Other Considerations to determine whether the discretion to revoke the visa cancelation under section 501CA(4) of the Act, should be exercised.[206][206] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138. It is particularly concerning that the Applicant has had his visa validly cancelled, as discussed above, on 2 occasions. On the first of these occasions, it was reinstated only after his representations and promises.[207] [207] See para [98] above. He signed an acknowledgement of a formal warning at this time. I regard the fact of a previous visa cancellation and a formal warning having been given, and practically ignored, as carrying very significant weight. On the second occasion the cancellation, was rendered invalid by a subsequent Federal Court decision. I give this cancellation as such no weight, but the submissions made by and on behalf of the Applicant at this time are illuminating. These proceedings are a review of the third cancellation. The Applicant has been under no illusions as to the consequences of reoffending, at least since 22 January 2019, when his first mandatory visa cancellation was revoked.[208][208] See para [104] above. This close brush with deportation, did not deter him. He continued to offend. Indeed, his conduct became worse. His present assurances to be reformed, must be considered in the light of his past conduct. His assurances demonstrably carry little weight. His psychological counsellor said that the Addiction Recovery Process Program sessions will help the Applicant focus on self-awareness, and by the time of his release, the Applicant “will be aware of ‘his red flags’ to remain healthy and drug free” including having a relapse management plan in place.[209] [209] See para [208] above. When he was last tested in an uncontrolled environment, he immediately resumed drug taking and offending. He has not been tested again in an uncontrolled environment, since his most recent imprisonment. He stated in his Personal Circumstances Form regarding the risk of him reoffending that “if I had to say a risk is me relapsing & go on drugs & after awhile I mite do some thing”.[210][210] See para [224] above.

Ratio Decidendi

Legal Principle Established

On 22 January 2019, a delegate of the Minister decided to revoke the first visa cancellation.[79] On the same day, the Applicant signed an acknowledgement of the revocation, which relevantly stated: ““I, Mr Esteban Alejandro HALL INFANTE, acknowledge that I have received the Notice of decision to revoke visa cancellation under s 501CA(4) of the Migration Act 1958. I understand that if I engage in further criminal or other serious conduct, this may again result in any visa I hold being cancelled on character grounds, and in this case my past conduct and previous relevant information held by the Department can also be considered.Signature [Applicant signed]Date 22/1/19”[80][79] Exhibit 3, G-Documents, Attachment T, 181-3.[80] Ibid 183. It is apparent from the Delegate’s decision that the perceived interests of Child A, and the Applicant’s assurances, including that there was a “low probability of him reoffending”[81] were significant factors in reaching the revocation decision.[82] [81] Exhibit 7, Respondent’s Tender Bundle, 282[82] Ibid 369-74. The Applicant was in prison or detention from 22 April 2017 until 22 January 2019. During this time the Applicant says that he did various courses and abstained from drug use. He had plenty of time to reflect on the consequences of his actions and the then immediate prospect of removal to Chile. He told the Tribunal that he understood that if he reoffended, he may be sent back to Chile. On 13 July 2019, the Applicant was involved in an incident of family violence against his then girlfriend - C.M. The police record states:“Victim: C.M [DOB]Perpetrator: Esteban Alejandro HALL-INFANTE 30/05/2019The victim rents an apartment in Northbridge with the lease signed in her name only.The perpetrator has no permanent residence but stays with the victim.There are no children or pets involved in this relationship.The victim made contact with police to report the following:At about 8.00pm on Saturday 13 July 2019, the victim was at her home address, [address], Northbridge. The suspect was also at the address with the victim.An argument took place between the victim and the suspect, causing the suspect to choke the victim with his hands. According to the victim, the suspect then prevented the victim from leaving her apartment for a period of about two to three hours.During the two to three hour period, the suspect was begging the victim not to terminate the relationship, hugging and holding the victim, not allowing her to leave.During this time, the victim was in possession of her mobile phone, and told the suspect that she would call the police. The victim did not ring the police or anyone else to ask for help, as she feared that the suspect might be deported out of Australia.The perpetrator also held a knife to his own wrist and threatened to self-harm in front of the victim.After a while, the suspect eventually left the apartment. The victim then left the apartment and went to her friend’s house where she rang the police.Perth City Dets – Crime Car reviewed incident, spoke to the victim face to face at the Perth Police Station and found no evidence to support the offence of deprivation of liberty. A running Sheet and the Cad Job will be updated by the crime car to reflect their critical decision.The victim made contact with police to report the following:Perpetrator has stangled the victim twice in the last 6 months.…Summary of BEHAVIOURAL/RISK factors indicated on FVIRs Verbal. Physical. Financial. Emotional. BEHAVIOURAL FACTORS Control Y Esteban would threaten to self-harm if the relationship ended. Esteban calls [C.M] via various social media platforms and will continue to do so until she answers the phone. Esteban would call [C.M] derogatory names. Jealousy Y Esteban would monitor her movements and review messages on her phone along with social media accounts. Stalking Threaten hurt/kill victim Y Esteban had made claims to self-harm if [C.M] ends the relationship. Holding a knife to his wrist as he made the claims. Threaten hurt/kill child Threaten hurt/kill family Strangle / Choke / Suffocate / Drown Y [C.M] claims Esteban has strangled her twice since Feb 2019 – July 2019. Prior FVIR stated that Esteban had strangled ex-partners requiring family members to intervene and pull Esteban off her. RISK FACTORS Victim frightened Y [C.M] is fearful of Esteban due to his acts of violence (strangle) and preventing her from leaving her unit for a few hours. Esteban’s behaviour is unpredictable, [C.M] is fearful to even make eye contact with him (July 2019 – Statement) Drugs Y Esteban claims they are both heavy meth users. Review of prior FVIRs and IRs reflect that drugs are a large part of their lives, leading to several criminal offences and break down in family relationships. Alcohol Mental health Y Both have self-harm attempts. Esteban placed a steak knife on his wrist and made threats to self-harm that has occurred two or three times previously. Esteban has made other self-harm claims however did not specify how he would carry it out. Esteban’s behaviour was confusing to [C.M] and would shift suddenly from violent to loving and caring (e.g., strangled her then asked her to marry him, when down on one knee) [July 2091 – Statement]. Health/Vulnerability Esteban ex-partner lost her unborn baby was Esteban was on PBC. His ex-partner was in the hospital and refused medical treatment of Esteban could not be with her. As a result, she left the hospital and suffered an infection leading to the death of their child. Separated Y Early July 2019Attempts to leave Y Prior efforts to end the relationship made. The first attempt made in May 2019 due to his behaviour being disrespectful, abusive and violence (July 2019 – Statement) Isolation (Geo/Social) Y Reflected in FVIR, nil details available. Based on prior FVIR with other parties, both appear to have family and friends in Perth. Abuse more often Abuse worse Physical violence Y Esteban has a history of FV violence against various ex-partners involving high-level assaults against ex-partners and family members. Ever hurt child Ever hurt pet/animal Sexualised behaviour Y [C.M] is a victim of two sexual related offences where drugs were involved and consumed by both parties.Weapons/objects used Firearm access Cultural/Religious Financial issues Y Esteban has nowhere to live and needs to declare bankruptcy due to owing money for a car crash. [C.M] appeared to have been homeless for an extended period staying various associate homes. Child contact issues Most recent FVIRs [number]”[83][83] Exhibit 7, Respondent’s Tender Bundle, 547-550 (as written in the original document).