HSKJ and Minister for Immigration and Border Protection (Migration)

Case [2017] AATA 1802

HSKJ and Minister for Immigration and Border Protection (Migration) [2017] AATA 1802 (19 October 2017)

Division:GENERAL DIVISION

File Number:           2017/4728

Re:HSKJ  

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President Dr Christopher Kendall

Date:19 October 2017

Place:Perth

The decision under review is affirmed.

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

Deputy President Dr Christopher Kendall

CATCHWORDS

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – expectations of the Australian community – other considerations – non-refoulement obligations – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed

LEGISLATION

Migration Act 1958 – s 499(2A), s 501(3A), s 501(6), s 501(7)(c), s 501CA(4)

Administrative Appeals Tribunal Act 1975 – s 35(3)

CASES

Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96

SECONDARY MATERIALS

Direction No 65: Migration Act 1958 – Direction under Section 499 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA – paras 6.2, 6.3, 7(1), 8(1), 13(2), 13.1(1), 13.1(2), 13.1.1(1), 13.1.2(1), 13.3(1), 14(1)(a), (b) and (e), 14.1, 14.2(1), 14.4, 14.5(1)

REASONS FOR DECISION

Deputy President Dr Christopher Kendall

19 October 2017

INTRODUCTION

  1. Pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal (the “Tribunal”) can restrict the publication of the names of a party to proceedings and allocate a pseudonym to a party if the Tribunal deems it appropriate to do so.

  2. The Tribunal determined that it was appropriate to restrict the identification of the Applicant in these proceedings.  Accordingly, the Applicant will be referred to below by the pseudonym “HSKJ”.  The Tribunal has also determined that it should not disclose the names of any of HSKJ’s family members, witnesses or those who provided support references. 

  3. By application dated 9 August 2017 (G1), HSKJ seeks review of a decision of a delegate of the Respondent, made on 25 July 2017 (G4), refusing, pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the “Migration Act”), to revoke the mandatory cancellation of HSKJ’s visa. HSKJ’s visa had previously been cancelled pursuant to s 501(3A) of the Migration Act because it was found that he does not pass the character test by reason of his substantial criminal record and because he was serving a term of imprisonment for a crime against a law of the Commonwealth or a state.

  4. HSKJ is a 26 year old citizen of Iraq.  He first arrived in Australia in 2010 at the age of 20 and was granted a Class XB Subclass 200 (Refugee) visa (SG5).  He arrived in Australia with his mother and sister (SG5).  A second sister was granted a visa in the United States.

  5. Shortly…

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AGLC
HSKJ and Minister for Immigration and Border Protection (Migration) [2017] AATA 1802
Case
[2017] AATA 1802
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by HSKJ against the mandatory cancellation of his visa by the Minister for Immigration and Border Protection. The dispute arose because HSKJ did not pass the character test due to having a substantial criminal record, specifically having been sentenced to a term of imprisonment of 12 months or more. The court was required to determine whether the discretion to revoke this mandatory cancellation should be exercised in HSKJ's favour.

The legal issues before the Tribunal were twofold: first, whether HSKJ passed the character test as defined in section 501(6) of the Migration Act, and second, if he did not pass the character test, whether the discretion under section 501CA(4) of the Migration Act should be exercised to revoke the mandatory visa cancellation. In considering the second issue, the Tribunal was bound to comply with Ministerial Direction No. 65, which outlines the principles and factors to be applied when deciding whether to revoke a mandatory visa cancellation.

The Tribunal found that it was common ground that HSKJ had a substantial criminal record and therefore did not pass the character test, and that his visa was subject to mandatory cancellation under section 501(3A) of the Migration Act. The Tribunal then considered whether there was "another reason" to revoke the cancellation, as required by section 501CA(4)(b)(ii). In applying Ministerial Direction No. 65, the Tribunal noted the importance of protecting the Australian community from harm, the expectation that non-citizens who commit serious crimes should generally forfeit the privilege of remaining in Australia, and that Australia has a sovereign right to determine who may remain in the country. The Tribunal also considered factors such as the strength, nature, and duration of ties to Australia and the extent of impediments if removed, as well as non-refoulement obligations. Ultimately, the Tribunal affirmed the decision to cancel HSKJ's visa, finding that the mandatory cancellation should not be revoked.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

To determine this broad issue, the Tribunal must decide:(a)whether HSKJ passes the “character test” as that term is used in s 501(6) of the Migration Act; and(b)if not, whether the discretion in s 501CA(4) of the Migration Act should be exercised in HSKJ’s favour such that the mandatory decision to cancel his visa is revoked.EVIDENCE This matter was heard in Perth on 13 October 2017. HSKJ, who was recently moved from prison to a detention facility, appeared in person and was self-represented. HSKJ was assisted by a qualified Iraqi interpreter, although HSKJ spoke fluent English. The Minister was represented by Mr Gerrard of the Australian Government Solicitor. The evidence before the Tribunal consisted of:·the Minister’s Statement of Facts, Issues and Contentions dated 4 October 2017 (R1);·the Minister’s submissions in relation to international non-refoulement obligations dated 4 October 2017 (R2);·a Department of Foreign Affairs and Trade country information report in relation to Iraq dated 26 June 2017 (R3);·a 165 page set of G-Documents (G1 to G28) (R4);·a set of supplementary G-documents (SG1 to SG5) (R5);·a “Departmental Warning” to HSKJ regarding possible deportation dated 7 May 2012 (R6); and·outgoing and ingoing passenger cards dated 13 April 2014 (R7). Although HSKJ did not provide the Tribunal with a written witness statement or any documentation in support of his case, the Tribunal has noted and treated as HSKJ’s written evidence the following documents that appear in the G Documents:·Request for Revocation of a Mandatory Visa Cancellation under s 501(3A) (G9);·HSKJ’s personal circumstances form dated 15 February 2017 (G10);·An undated letter from HSKJ (G11); and·A letter from HSKJ dated 21 June 2017 (G12). The Tribunal also heard oral evidence from HSKJ and his mother. CONSIDERATION(i) Does HSKJ pass the character test? The Tribunal must first consider whether HSKJ passes the “character test” as that term is defined in s 501 of the Migration Act. Section 501 of the Migration Act deals with refusals or cancellations of visas on character grounds. Subsection 501(3A) provides that 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 ... 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 Territory. Section 501(6) of the Migration Act provides that a person does not pass the character test if:(a)the person has a substantial criminal record (as defined by subsection (7)). [Emphasis added]. Section 501(7) of the Migration Act relevantly provides: (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.

Decision

Reasons for decision

On the evidence before it, the Tribunal finds that HSKJ does not pass the character test as defined in the Migration Act. (ii) Should the Tribunal Revoke the Decision to Cancel HSKJ’s Visa? Having determined that HSKJ does not pass the character test and was liable for the mandatory cancellation of his visa, the Tribunal must now consider whether the mandatory cancellation of HSKJ’s visa should be revoked by the Tribunal standing in the Minister’s shoes. Section 501CA(4) of the Migration Act provides that the Minister (and the Tribunal) may revoke the mandatory cancelation of an applicant’s visa 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. [Emphasis added]. The central question before the Tribunal is whether there is “another reason” to revoke the decision to cancel HSKJ’s visa. When considering HSKJ’s request to revoke the decision to cancel his visa, the Tribunal must comply with Ministerial Direction No. 65 (“Direction No. 65”) (as per s 499 (2A) of the Migration Act). Direction No. 65 was issued by the Minister on 22 December 2014 and is binding on the Tribunal from that date. Paragraph 6.2 of Direction No. 65 provides “general guidance” to the Tribunal in relation to the character test and the exercise of the Tribunal’s discretion to revoke a decision to cancel a visa. It provides:6.2General Guidance(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501 CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction. Paragraph 6.3 of Direction No. 65 then sets out a number of “Principles” to be applied by the Tribunal, including the following:6.3Principles(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age....(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

Ratio Decidendi

Legal Principle Established

The Tribunal also heard oral evidence from HSKJ and his mother. CONSIDERATION(i) Does HSKJ pass the character test? The Tribunal must first consider whether HSKJ passes the “character test” as that term is defined in s 501 of the Migration Act. Section 501 of the Migration Act deals with refusals or cancellations of visas on character grounds. Subsection 501(3A) provides that 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 ... 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 Territory. Section 501(6) of the Migration Act provides that a person does not pass the character test if:(a)the person has a substantial criminal record (as defined by subsection (7)). [Emphasis added]. Section 501(7) of the Migration Act relevantly provides: (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. It is common ground that:·as a consequence of receiving a sentence of imprisonment in excess of 12 months, HSKJ has a “substantial criminal record” and, as a result, does not pass the character test in s 501(6) of the Migration Act; and·as HSKJ was serving a sentence of imprisonment, on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act. On the evidence before it, the Tribunal finds that HSKJ does not pass the character test as defined in the Migration Act. (ii) Should the Tribunal Revoke the Decision to Cancel HSKJ’s Visa? Having determined that HSKJ does not pass the character test and was liable for the mandatory cancellation of his visa, the Tribunal must now consider whether the mandatory cancellation of HSKJ’s visa should be revoked by the Tribunal standing in the Minister’s shoes. Section 501CA(4) of the Migration Act provides that the Minister (and the Tribunal) may revoke the mandatory cancelation of an applicant’s visa 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. [Emphasis added]. The central question before the Tribunal is whether there is “another reason” to revoke the decision to cancel HSKJ’s visa. When considering HSKJ’s request to revoke the decision to cancel his visa, the Tribunal must comply with Ministerial Direction No. 65 (“Direction No. 65”) (as per s 499 (2A) of the Migration Act). Direction No. 65 was issued by the Minister on 22 December 2014 and is binding on the Tribunal from that date.