Irani and Minister for Immigration and Border Protection (Migration)

Case [2017] AATA 3051

Irani and Minister for Immigration and Border Protection (Migration) [2017] AATA 3051 (7 December 2017)

Division:GENERAL DIVISION

File Number(s):      2017/5847

Re:Shahzad Irani

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:7 December 2017

Date of written reasons:        22 December 2017

Place:Sydney

The Tribunal sets aside and remits the decision under review, which is the decision made by the delegate of the Respondent on 28 September 2017 with a direction that the visa applied for by the Applicant not be refused under s 501 of the Migration Act 1958 (Cth).

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

Bill Stefaniak AM RFD, Senior Member

CATCHWORDS

MIGRATION – visa refusal – character test – risk that person would engage in criminal conduct in Australia – whether unacceptable risk of harm – prospect of rehabilitation – primary and other considerations – decision set aside and remitted

LEGISLATION

Migration Act 1958 (Cth) ss 499, 501(1), 501(6)

CASES

Apire v Minister for Immigration and Border Protection [2014] AATA 193

Amer Muhammad v Minister for Immigration and Border Protection [2016] AATA 795

Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Intesir v Minister for Immigration and Border Protection [2017] AATA 503

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) FCR 422

Godley v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 774

Mliner and Minister for Immigration and Multicultural Affairs [1997] AATA 788

Sauvao v Minister for Immigration and Border Protection [2014] AATA 170

Wang and Minister for Immigration and Border Protection [2014] AATA 89

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

Bill Stefaniak AM RFD, Senior Member

22 December 2017

  1. The applicant, Mr Irani, seeks review of a decision by the Minister’s delegate to refuse the grant of a Skilled (Residence) (Class VB) subclass 886 visa pursuant to section 501(1) of the Migration Act 1958 (Cth) (the Act) as amended. That decision is dated 28 September 2017. The applicant is a citizen of India and he is married to an Australia citizen, Ms Maria Umar, who became a citizen, in 2011, having come out from Pakistan on a visa herself. The applicant initially applied for the visa on 17 June 2009 and there appears to be some controversy, which was not explained during the course of the hearing, in that, for some reason, consideration of his application kept being deferred.

  2. On 29 March 2016 the applicant was issued a formal advice letter informing him that it had come to the Department’s attention that he might not pass the character test because of his criminal history, but that upon consideration his visa application would not be refused and would continue to be assessed by the Department’s office in Adelaide. The applicant’s conviction on 17 February 2016 had not come to the attention of the Department at that stage. It subsequently…

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Details
AGLC
Irani and Minister for Immigration and Border Protection (Migration) [2017] AATA 3051
Case
[2017] AATA 3051
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Irani to set aside a decision by the Minister's delegate to refuse his visa application on character grounds. Mr Irani, a chef who had been in Australia since 2007, operated two businesses employing a total of approximately 40 people. He had experienced significant trauma in India prior to his arrival in Australia, leading to a diagnosis of Post-Traumatic Stress Disorder, which he had undergone treatment for. Despite his positive contributions to Australian business and his efforts at rehabilitation, he had a history of driving offences, including driving whilst suspended and driving under the influence of alcohol.

The Tribunal was required to determine whether Mr Irani met the character requirements for a visa under section 501 of the Migration Act 1958 (Cth). Specifically, the Tribunal had to consider whether there was an unacceptable risk of harm to the Australian community should Mr Irani commit further offences, and to weigh this against other considerations, including the best interests of minor children and the expectations of the Australian community, as well as other relevant factors.

The Tribunal found that Mr Irani did not pass the character test at that time, acknowledging the seriousness of his offending conduct. However, in applying Direction 65, the Tribunal considered the primary considerations, including the protection of the Australian community, and other considerations. The Tribunal noted that while Mr Irani's offending was characterised as frequent, there was no increasing trend of seriousness. Crucially, the Tribunal found that other considerations, particularly the impact on his family and Australian business interests, strongly favoured the applicant.

On balance, the Tribunal concluded that it was in the interests of Mr Irani, his family, and Australia that he be permitted to remain in the country. The decision of the Minister's delegate was set aside and remitted with a direction that the visa not be refused. The Tribunal expressed confidence that, with continued good conduct, Mr Irani would be unlikely to reoffend and would continue to make a positive contribution to Australia.

Orders

Orders of the court

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Background

Background to the litigation

The applicant came to Australia in 2007. He has worked in various capacities, he has studied, he has a Master’s degree, and he has TAFE certificates. He is a chef. He is running, or was until he entered immigration detention, a business where his wife was a director but he had put a substantial amount of money into the business. Relevant facts The businesses were a 7-Eleven on the Central Coast, which employs some 10 people. He and his partner, who is now his wife, also took over a business, a steakhouse, again on the Central Coast, in early 2016. It was owned by a professional woman before then, a pharmacist, who had let it run down. It appears it had about seven or eight employees, and that has been built up by the applicant and his wife in less than 2 years to about 30 current employees, mainly part-timers. The applicant was very active in that business, going there, it would seem, two or three hours a day and helping train the young employees, especially in the art of cooking. The applicant unfortunately experienced, in India, some rather traumatic events, including the Mumbai train bombings in 2006, and shortly thereafter a further terrorist event in Mumbai. These peripherally involved his sister who, it seemed, was on a train which narrowly missed out on being hit by the Mumbai bombers. The applicant was on a motorbike and he had to race to the train to see if his sister was alive, dead, missing, or otherwise. On the way he had to ride through bits and pieces of human remains as a result of the bomb blast, and lots of blood. Luckily his sister was on the next train and was unhurt. This was compounded sometime later by his sister also being in the vicinity of a further terrorist attack in Mumbai. He did not receive any treatment, but it became quite apparent that he was suffering from Post-Traumatic Stress Disorder and he was duly diagnosed with this in Australia. Both parties accept that as a fact. There were references in various documents before the Tribunal from 2012 in relation to the PTSD, and indeed he appears to have undergone a reasonable amount of treatment in relation to that condition. He spoke particularly highly of two of his treating health professionals. It was also accepted, and there was no evidence to dispute this, that his wife had been particularly helpful too in overcoming that trauma, to the stage that he can now take public transport, which he, in evidence, has now been taking since at least this time last year, (December 2016). It seemed to be a reasonably long process, with his wife having to initially take him to a train station, hold his hand if he got nervous. Then, having overcome his fears, go into the train station. Then they would progress to getting on a train. He would initially want to get off at each stop. She would hold his hand and stop him. It has gotten to a stage, according to the evidence, a bit further back than 12 months, but certainly in the last 12 months, where he is able to take public transport alone.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On a whole, the other considerations, in particular the impact on family members and to an extent , on Australian business interests, strongly favour the applicant. International non-refoulement obligations and impact on victims are not relevant. Conclusion In all of the circumstances, when one looks at the primary and the other considerations, there is a very strong inference from the evidence that it in his interests, his family’s interest and, indeed, might I say Australia’s interests that this man be given another go. What he has done was incredibly foolish. He has shown a blatant disregard for the law. It is reflected in my comments in relation to how he does not pass, at this stage, the necessary character requirements but certainly when one looks at Direction 65 and the primary considerations, and the other considerations, on balance I find that he should be permitted to remain in this country. Accordingly, the order of this tribunal will be that the decision of the Minister’s delegate d be set aside and the delegate’s decision be remitted with a direction that the visa applied for not be refused under section 501 of the Act. As was indicated to counsel at the conclusion of the hearing, I would also expect for that order to be carried out as soon as possible because for the reasons I have indicated already, the sooner this man gets back to his family, looks after his wife and child and looks after those 40 employees and, hopefully, grows his business, the better it is going to be for everyone. I close my comments with some observations I made to counsel for the applicant. Firstly, He has until March 2019 to prove that he is but a remote risk of reoffending. Secondly, if he were to be so irresponsible as to breach the law again, then clearly he would be putting his future and that of his family very much at risk. I think he appreciates that but it needs be reinforced to him and also the positive, that if nothing goes wrong between now and March 2019, he is going to get his license back . When that happens, I have every confidence that it is going to be highly unlikely (and certainly a very remote possibility) that the Australian community are going to see him before a court again and the community can look forward to the applicant and his wife growing on the current and not insignificant positive contribution they are currently making to this country.

Ratio Decidendi

Legal Principle Established

Accordingly, whilst I do regard him in all other aspects to be a fine man, I find that he does not pass the character test as set out in subsections 501(6)(d)(i).at this time. Primary Considerations The Tribunal now proceeds to consider the primary considerations (Direction 65, paragraph 11). These are:(a)Protection of the Australian community from criminal or other serious conduct;(b)The best interests of minor children in Australia;(c)Expectations of the Australian community. As an aside, this Tribunal was initially concerned that the Minister’s delegate had only considered these primary considerations when making the decision and not the other considerations. However, it is not particularly material in that I have to look at this case afresh by standing in the shoes of the decision maker. (a)Protection of the Australian community from criminal or other serious conduct In dealing with this consideration I have to have regard to the principle that the Government is committed to protecting our community from harm as a result of criminal activity or other serious conduct: There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. I have to give consideration to:(a) The nature and seriousness of the non-citizen’s conduct to date; and(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. I have to look at the nature and seriousness of the conduct and:(1) In considering the nature and seriousness of the non-citizen’s offending or other serious conduct to date, decision-makers must have regard to:(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously. That is not applicable here.(b) The principle that crimes committed against vulnerable members of the community (minors, elderly and disabled) or government representatives or officials are serious. That is not applicable here.(c) Where the non-citizen is in Australia, that a crime committed was in immigration detention or during an escape. That is not applicable here.(d) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass the subject limb of a character test is or is not of good character under section 501(6)(c) is considered to be serious. I found earlier that the applicant does not pass the character test, and that his offending conduct is considered serious.(e) The sentence imposed by the courts for a crime or crimes. Whilst the applicant has received a suspended jail sentence, he has not served a term of imprisonment. That is of relevance.(f) The frequency of the non-citizen’s offending and whether this is any trend of increasing seriousness. The applicant’s offending could be characterised as frequent. He committed four drive whilst suspended offences and one PCA between 2010 and 2016. However, it is equally evident that there is no increasing trend of seriousness.(g) The cumulative effect of repeated offending;