HNNM and Minister for Immigration and Border Protection (Migration)
[2016] AATA 761
•30 September 2016
HNNM and Minister for Immigration and Border Protection (Migration) [2016] AATA 761 (30 September 2016)
Division
GENERAL DIVISION
File Number(s)
2016/1460
Re
HNNM
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Professor R Deutsch, Deputy President
Date 30 September 2016 Place Sydney The decision under review is affirmed.
...........................[sgd].............................................
Professor R Deutsch, Deputy President
Catchwords
IMMIGRATION – decision to not revoke a mandatory cancellation of Applicant’s Class BF Transitional (permanent) visa – character test – substantial criminal record – primary considerations – protecting the Australian community from harm – the seriousness and nature of the conduct – the risk that the conduct may be repeated – strength, duration and nature of ties to Australia – other considerations – effect on members of family – decision under review affirmed
Legislation
Migration Act 1958, ss 499(1), (2A), 501(3A), (6), 501CA(4)
Cases
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Tuimaseve and Minister for Immigration and Border Protection [2016] AATA 317
Secondary Materials
Direction no. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Professor R Deutsch, Deputy President
30 September 2016
FACTUAL BACKGROUND
The Applicant was born in South Africa in 1967 but came to Australia as a young child.
Between late 1985 and early 1993 he was charged and convicted in relation to a number of criminal offences almost all of which involved, to varying degrees, the use and abuse of alcohol.
Nonetheless in 1994 he was granted a Class BF Transitional (Permanent) Visa by operation of law.
Between 1996 and 2014 he was charged and convicted of a litany of criminal offences including knowingly dealing with the proceeds of crime, supplying commercial quantities of prohibited drugs, aggravated break and enter, an offence in relation to possession of anabolic steroids and dishonestly obtaining possession by deception.
In 2007, the Respondent cancelled the Applicant’s visa under s 501(2) of the Migration Act 1958 (Cth) (the Act) but that decision was set aside by this Tribunal.
In 2009, the Respondent also refused the Applicant’s application for Australian citizenship on the basis that the relevant Minister was not satisfied that the Applicant was at the relevant times a person of good character.
In August 2015, the Respondent cancelled the Applicant’s visa under s 501(3A) of the Act.
The Applicant submitted a request for revocation of the decision but this request was turned down in March 2016, whereupon the Applicant applied to this Tribunal for a review of the decision by the Respondent not to revoke the decision to cancel the Applicant’s visa.
The Applicant asserted that he has never been violent. The record of the Applicant indicates a substantial string of serious offences but it must be said that while the offences are clearly serious, violence does not appear to be a feature of any of them. Having said that, there were at least two attempts to take out Apprehended Violence Orders (AVO) against the Applicant. The Applicant at the hearing asserted that this was largely the work of one vexatious person who was deliberately utilising the AVO process to secure certain advantages over him. The veracity or otherwise of these explanations were not fully investigated at the hearing and the position in relation to these AVOs remain unclear. However, in this context it is worth noting that certain apprehended domestic violence orders which allegedly occurred in July 2010 were dismissed by the Parramatta Local Court.
THE LEGISLATION
The relevant legislative provisions are sections 501 and 501CA of the Act.
Section 501 of the Act relevantly provides as follows:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a),(b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving child); and
(b) the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
(6)For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined in subsection (7)); or…
(7) for the purposes of the character test, a person has a substantial criminal record if….
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or….
Section 501CA(4) relevantly provides as follows:
(4)The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
INTERPRETING THE LAW
In considering the operation of section 501CA(4), the Respondent had at first contended that s 501CA(4)(b)(ii) gives rise to a two-stage test:
(a)is there another reason why the original decision (i.e. the Visa cancellation decision) should be revoked; and
(b)if the Tribunal is satisfied that there is another reason, should the Tribunal exercise its discretion to revoke the cancellation decision.
Having made that contention, the Respondent subsequently sought to withdraw it because the Respondent now considers it to be an erroneous construction of the relevant section.
In particular, the Respondent submitted that properly construed, s 501CA(4) requires that once the Minister is satisfied of either of the preconditions (namely that the person passes the character test or that there is another reason why the cancellation decision should be revoked) the Minister must revoke the cancellation decision.
In other words, the Respondent submits that if the Minister is satisfied of either of the matters in s 501CA(4)(b), no discretion is enlivened as to whether or not to revoke the cancellation decision. In this particular statutory context, the word ‘may’ in s 501CA(4) should be read as meaning ‘must’.
In this regard it is worth noting that if an applicant were to make representations that cause the Minister to be satisfied that the applicant passed the character test, it would be inconceivable that the Minister could choose, notwithstanding his satisfaction that the applicant passes the character test, not to revoke the Visa cancellation decision on the basis that the Minister still retained a residual discretion in the matter. Accordingly, there would appear to be no good reason why this underlying logic should apply only in respect of the good character test and not in respect of the ‘other reason’ test.
The result is that if the Minister is satisfied that there is another reason such that s 501CA(4)(b)(ii) is satisfied, there is no further residual discretion.
However, in determining whether the Minister is satisfied that there is another reason, section 499(2A) of the Act requires compliance with Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction), which “guides decision-makers performing functions or exercising powers under section 501 of the Act”. See in particular; Tuimaseve and Minister for Immigration and Border Protection [2016] AATA 317 and Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301. The effect is that subsumed with the analysis of whether there is another reason why the original decision should be revoked, the Tribunal must also have regard to the relevant factors referred to in the Direction.
THE CHARACTER TEST
As mentioned previously, the Applicant has been convicted of knowingly dealing with the proceeds of crime for which he was sentenced to four years imprisonment, supplying commercial quantities of prohibited drugs for which he was sentenced to four years imprisonment, aggravated break and enter and serious indictable offences for which he was sentenced to 12 months imprisonment. There were numerous other serious offences which form part of his criminal record.
As such it is clear, and this is acknowledged by the Applicant, that the Applicant does not pass the character test.
CONTENTIONS OF THE PARTIES
The Applicant raised a number of arguments asserting why the original decision should be revoked, including in particular the following:
·Non-revocation of the original decision would result in indefinite detention;
·if the Applicant was sent back to South Africa he would not be afforded much-needed psychological treatment and ongoing counselling and would as a result relapse into depression and drug reliance which may become life-threatening; and
·the Applicant is a ‘police asset’ as he works undercover as an informant, the result of which will be serious arrests in relation to drug trafficking. As a result his life could be in danger in South Africa where there is no protection available of the kind which is provided in New South Wales.
In relation to the first two matters raised above, the Tribunal has not been provided with any tangible concrete evidence to suggest that the non-revocation of the Original Decision would result in indefinite detention. In particular, report of the forensic psychologist, Dr Ashkar dated 9 July 2013 does not indicate that the Applicant suffers from health conditions that would prevent the return of the Applicant to South Africa. Further, there is nothing to suggest that the Applicant could not seek such psychological treatment and ongoing counselling in South Africa. Again, there was no evidence presented to the Tribunal in relation to this point.
The third point raised above is however a matter in relation to which substantial evidence was provided to the Tribunal including the sworn testimony of two senior police officers who provided substantial evidence in support of the Applicant.
The Respondent accepts that the Applicant’s past and current assistance to police and any risk which flows to the Applicant as a result should be taken into account in weighing up the considerations.
In particular, the Respondent submits that the assistance provided by the Applicant to police is heavily outweighed by:
(a) his extensive frequent and serious offending history;
(b) the fact that he continued offending after an official warning from the Department in 1997, and after being allowed by the Tribunal in 2007 to remain in Australia, and that with time, his offending became increasingly more serious;
(c) the fact that the assistance was only provided once the Applicant was under arrest or facing possible deportation; and that the Applicant received significant benefits from that assistance including a substantial reduction in his sentence;
(d)the fact that the Applicant was in a position to provide assistance in 2009 – 2010 was largely because he was already an active drug supplier;
(e)the fact that after providing assistance to police in 2009 – 2010 he continued to commit further serious offences, including aggravated break and enter and fraud offences;
(f)the fact that he has the relevant knowledge and connections to be in a position to approach police and to offer relevant information assistance about the supply of prohibited drugs which indicates that he may still have some connections to people involved in the supply of those drugs;
(g) the lack of evidence that the Applicant has otherwise ever contributed positively to Australia;
(h) the lack of evidence that the Applicant has strong friendships or connections to people residing in Australia;
(i) the lack of any evidence presented to demonstrate that the Applicant has been rehabilitated and will not offend again;
(j) the lack of any evidence to show that the Applicant would be at risk if he is deported to South Africa; and
(k) the lack of evidence to show that he would be more at risk in South Africa than he would be in Australia.
In reference to the issue as to the lack of any genuine rehabilitation the following matters should be noted:
·the Applicant failed a prescribed urine test while in custody in August 2013;
·the Applicant declined to participate in an intensive drug and alcohol treatment program in September 2014 even though he continues to contend that his offending stemmed largely from his drug addiction;
·it appears that the applicant did not fully disclose the extent of his criminal history to the character witnesses who gave evidence at the hearing on 27 May 2016. Both indicated that they are unaware of the detail of his offending history apart from the drug-related offence in 2010;
·the Applicant admits to having signed a citizenship application form in 2009 in which he provided false and misleading information. He has indicated that he only signed the form but someone else completed the form and accordingly he takes no responsibility for the errors made.
DIRECTION NO. 65
In exercising the discretion, section 499 of the Act requires the decision maker (here, the Tribunal), to comply with a written direction by the Minister. The relevant direction here is Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501(CA) (the Direction).
The Direction provides, at paragraph 7(1), that a decision maker:
(b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Part C, clause 13 of the Direction sets out the primary considerations that the decision maker must take into account when deciding whether to revoke the mandatory cancellation of a non-citizen’s visa:
i.Protection of the Australian community from criminal or other serious conduct (cl. 13.1);
ii.The best interests of minor children in Australia (cl. 13.2); and
iii.Expectations of the Australian community (cl. 13.3).
Clause 14 outlines ‘other considerations’ that must be taken into account, where relevant. These other considerations include, but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I will now turn to the primary considerations as they apply to the facts in this case.
Primary considerations
(i) Protection of the Australian community
In considering the detail of the primary considerations referred to in the Direction, the Tribunal views the relevant offences as being very serious, particularly since they involve the offence of supplying commercial quantities of prohibited drugs and that the sentences imposed by the courts in relation to the Applicant’s offences have involved imprisonment for terms between one and four years. Furthermore, there is a high frequency of the Applicant’s offending and the trend is one of increasing seriousness as time has passed.
Notwithstanding the assistance which he has provided to law enforcement in recent times, the Tribunal concludes that the Australian community’s expectation that he will obey the laws of this country cannot be met. This is all the moreso having regard to the fact that in 2007 this Tribunal reached a decision in which the Applicant was given a further opportunity to remain in Australia and he has clearly failed to take advantage of that opportunity.
Therefore, I conclude that the protection of the Australian community is a key factor in this case and is a factor which weighs strongly against the Applicant.
(ii) Best interests of minor children in Australia
The Applicant does not have any children. Further, there are no minor children in Australia that would be affected by the Tribunal’s decision, and so, this consideration need not be addressed further.
(iii) Expectations of the Australian community
Clause 13.3 provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-maker should have due regard to the Government’s views in this respect.
Again, for the reasons referred to above, this factor counts strongly against the Applicant.
Other considerations
Clause 14 of the Direction outlines a non-exhaustive list of ‘other considerations’ which must be taken into account, where relevant.
(a) International non-refoulement obligations
There are no relevant international non-refoulement obligations in this case.
(b) Strength, nature and duration of ties
It is recognised that the Applicant first arrived in Australia in 1979 at the age of 11 and has resided in Australia ever since. He also has some close relatives and friends who live in Australia. It must also be acknowledged that relocation to South Africa would not be easy for the Applicant.
However, the Applicant speaks fluent English which is one of South Africa’s official languages and it is possible that he could engage in employment in South Africa.
(c) Impact on Australian business interests
There are no relevant impacts on Australian business interests.
(d) Impact on victims
There are no relevant impacts on victims.
(e) Extent of impediments if removed
This is not a relevant factor in this case.
CONCLUSION
On balance having regard to all the relevant considerations referred to in the Direction, the Tribunal concludes that the original decision should not be revoked.
The decision under review is affirmed.
I certify that the preceding 47 (forty-seven) paragraphs are a true copy of the reasons for the decision herein of Professor R Deutsch, Deputy President ...............................[sgd]...........................................
Associate
Dated 30 September 2016
Date(s) of hearing 26 & 27 May 2016 Final submissions received 17 June 2016 Solicitors for the Applicant Cedric Spencer Lawyers Solicitors for the Respondent Clayton Utz
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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