Hillard and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2023] AATA 4840

Hillard and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 4840 (4 December 2023)
Division:GENERAL DIVISION
File Number(s): 2023/6914
Re:Asa William Edward Hillard
APPLICANT

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

DECISION
Tribunal:Senior Member K Millar
Date:4 December 2023
Date of written reasons: 21 December 2023
Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that cancellation of the Applicant’s visa is revoked under s 501(CA)(4) of the Migration Act 1958 (Cth).
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Senior Member K Millar
CATCHWORDS
MIGRATION – mandatory cancellation of Subclass 444 Special Category (Temporary) (Class TY) visa under section 501(CA)(4) – where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancelation under section 501(CA)(4) should be exercised – consideration of Ministerial Direction No. 99 – decision under review is set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
SECONDARY MATERIALS
Minister for Immigration, Citizenship 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 K Millar
21 December 2023
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs not to revoke the cancellation of the applicant’s Subclass 444 Special Category (Temporary) (Class TY) visa under the Migration Act 1958 (‘the Act’).
On 4 December 2023, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.
STATEMENT OF DECISION AND REASONS
INTRODUCTION
SENIOR MEMBER: You are a citizen of the United Kingdom who migrated to Australia with your parents in 1995 when you were four years old. Until your visa was cancelled you held a Resident Return or subclass 155 visa. You married in 2014 and you have two children who are Australian citizens. Your son is 12 years old, and your daughter is 10 years old.
On 18 October 2021 you were sentenced to a term of imprisonment of over two years for family violence related offences. As a result, your visa was cancelled under section 501(3A) of the Act. You sought revocation of the cancellation of your visa. On 14 September 2023, a delegate of the Minister declined to revoke the cancellation. You have applied for a review of this decision.
The hearing of this matter was adjourned for one day to allow written submissions to be made by you before the hearing. In hearing this matter oral evidence was taken from you, from your…

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: Hillard and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 4840
Case: [2023] AATA 4840
Decision Date: 4 December 2023

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse to revoke the mandatory cancellation of the applicant's Subclass 444 Special Category (Temporary) visa. The applicant, a citizen of the United Kingdom who had resided in Australia since the age of four, had his visa cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to having a substantial criminal record and serving a full-time custodial sentence of over two years for family violence related offences. The applicant sought a review of the delegate's decision to decline revocation, which was heard by Senior Member K Millar of the Administrative Appeals Tribunal.

The Tribunal was required to determine two primary issues: firstly, whether the applicant passed the character test, and secondly, if he did not pass the character test, whether there was another reason why the cancellation of his visa should be revoked. In considering the latter issue, the Tribunal was bound by Ministerial Direction No. 99, which outlines the considerations for exercising the power to revoke a mandatory visa cancellation.

In its reasoning, the Tribunal found that the applicant did not pass the character test due to his substantial criminal record. However, it then proceeded to consider whether there were other reasons to revoke the cancellation, applying the principles in Ministerial Direction No. 99. The Tribunal gave significant weight to the applicant's strong and long-standing ties to Australia, having lived there for most of his life, and the detrimental impact the cancellation would have on his two Australian citizen children, particularly his daughter who has type 1 diabetes. The Tribunal also considered the applicant's supportive parents, one of whom is an Australian citizen and provides care for his seriously ill stepmother, noting that the applicant's presence would assist in this care. While acknowledging some connections through school and work, the Tribunal found minimal impact on other family members.

Ultimately, the Tribunal determined that the strength of the applicant's ties to Australia and, crucially, the best interests of his minor children, weighed heavily in favour of revoking the visa cancellation. Consequently, the Tribunal set aside the delegate's decision and revoked the 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

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Decision

Reasons for decision

On 4 December 2023, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.STATEMENT OF DECISION AND REASONSINTRODUCTION SENIOR MEMBER: You are a citizen of the United Kingdom who migrated to Australia with your parents in 1995 when you were four years old. Until your visa was cancelled you held a Resident Return or subclass 155 visa. You married in 2014 and you have two children who are Australian citizens. Your son is 12 years old, and your daughter is 10 years old. On 18 October 2021 you were sentenced to a term of imprisonment of over two years for family violence related offences. As a result, your visa was cancelled under section 501(3A) of the Act. You sought revocation of the cancellation of your visa. On 14 September 2023, a delegate of the Minister declined to revoke the cancellation. You have applied for a review of this decision. The hearing of this matter was adjourned for one day to allow written submissions to be made by you before the hearing. In hearing this matter oral evidence was taken from you, from your parents Mr Ian Hillard and Ms Karen Hillard, and clinical psychologist Dr Lisa Chantler.The legislative framework Section 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if satisfied the person does not pass the character test because he or she has a substantial criminal record and is serving a sentence of imprisonment on a fulltime basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory. According to paragraph 501(6)(a) of the Act a person does not pass the character test if he or she has a substantial criminal record. That is defined in paragraph 501(7)(c) as including where the person has been sentenced to a term of imprisonment of 12 months or more. Under section 501CA(4) of the Act, the Minister, and the Tribunal in the place of the Minister, may revoke the cancellation of the visa if the person makes representations in accordance with an invitation, and the Minister or the Tribunal is satisfied that either you pass the character test or there is another reason why the original decision should be revoked. In looking at whether there is another decision to revoke the cancellation, I am bound by written directions given by the Minister under section 499 of the Act. The Minister has made written directions about the exercise of the power to revoke the cancellation of the visa in Direction No 99- Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.[1] I will call that ‘the Direction’.[1] Minister for Immigration, Citizenship 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). The issues to be decided in this matter are whether you pass the character test and if you do not pass the character test, whether there is another reason the cancellation of the visa should be revoked. Does Mr Hillard pass the character test?

Ratio Decidendi

Legal Principle Established

This consideration weighs moderately against revoking the cancellation of your visa.Strength, nature and duration of ties to Australia Primary consideration 3 is the strength, nature, and duration of ties to Australia. You have lived in Australia since you were four years old, during your formative years, and you are now 30 years old. This attracts significant weight in favour of your ties to Australia. Your parents are permanent residents of Australia and your stepmother is an Australian citizen. Despite having a tense relationship at times, your parents are very supportive of you and both attended to give evidence. You have a strong and longstanding relationship with both parents which has been sustained despite the disruption caused by your reaction to the breakdown of your marriage and your drug use. Their distress at your circumstances and willingness to assist you and your children is apparent. Your stepmother has suffered a significant stroke and your father now provides her care, which includes cooking, showering and shopping. Your father has sold his business to care for your stepmother. They do not have any other carers who provide care, and your father says if you remain in Australia and live with him this will assist him in caring for your stepmother. Apart from his distress at you leaving Australia, he would also lose support for the care of your stepmother and your stepmother will lose the benefit of your presence to assist her. It will cause both your parents considerable distress if you are unable to remain in Australia. You want to increase your contact with your children, and this will assist your mother in caring for your children. If your visa remains cancelled your mother will need to manage both the distress of your children and an increased responsibility for their care. You have a stepbrother and stepsister in Australia, however, you said you do not have much contact with your step-siblings and I find there would be minimal effect on them if you leave. You had difficulty naming your nieces and I find there would also be little effect on your nieces if your visa is cancelled. I accept it will be highly detrimental to your children if the cancellation of your visa is not revoked. In the case of your daughter this is compounded by her type 1 diabetes, which is exacerbated by stress. You have some connections through school friends and previous workmates and have arranged employment, if the cancellation of your visa is revoked. You have a friend who’s a godfather to your children and also named another friend from school. You’ve obtained a qualification in civil construction plant operations in Australia and some weight is given to your connection to the community through your work and school friends. Overall, given your arrival as a young child and the strength of your ties with family in Australia this consideration weighs heavily in favour of revoking the cancellation of your visa. The best interests of minor children in Australia