Jones and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 5184

Jones and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5184 (27 November 2020)

Division:GENERAL DIVISION

File Number(s):      2020/5620

Re:Benjamin Jack Jones

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:27 November 2020

Date of written reasons:        23 December 2020

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal dismisses the application for a review of the decision dated 1 September 2020.

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Senior Member M Griffin QC

CATCHWORDS

Refusal of application for a visa – Working Holiday (Temporary) (Class TZ) visa – whether the Applicant satisfies the character test – change in circumstances of the Applicant – Applicant not in Australia – Applicant previously has been in Australia as the holder of a Subclass 417 visa – if Applicant is in Australia at time of application, Applicant must be in Australia at time of grant – Applicant not in Australia at time of hearing – application dismissed

LEGISLATION

Migration Act 1958 (Cth) ss 116, 500

Migration Regulations 1994 (Cth) sch 2 cl 417.412

SECONDARY MATERIALS

Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA

WRITTEN REASONS FOR ORAL DECISION

Senior Member M Griffin QC

23 December 2020

1. On 15 September 2020, the applicant, Benjamin Jack Jones, made an application to the General Division of the Administrative Appeals Tribunal (the Tribunal) pursuant to section 500 of the Migration Act 1958 (Cth) (Migration Act), in which Mr Jones sought review of a decision of a delegate of the Minister to refuse to grant him a working visa, which is described as a Working Holiday (Temporary) (Class TZ) visa, or which I will refer to as a working holiday visa, on character grounds.

2. The Minister’s contention was that the delegate’s decision should be affirmed by this Tribunal because there was a risk that the applicant would reoffend and the protection of the Australian community and the expectations of the Australian community to different considerations under Direction No 79 weigh in favour of refusing the working holiday visa. The applicant was born in the United Kingdom in July 1997 and is therefore, on my calculations, 23 years of age. The applicant arrived, initially, in Australia on 11 April 2018 as the holder of a working holiday visa.

3. The history of the matter is that on 20 July 2018, the applicant’s visa was cancelled under section 116 of the Migration Act. On 25 January 2019, the Migration and Refugee Division of the Tribunal set aside the delegate’s decision and substituted it with a decision not to cancel the applicant’s visa. On 8 April 2019, the applicant made a further application for a working holiday visa and on 1 September 2020, a delegate of the Minister made a decision to refuse to grant the applicant the visa on character grounds. The applicant was notified of that refusal on 15 September 2020 and on the same date, the applicant applied to this Tribunal for a review of that decision.

4. On 12 September 2018, the applicant was convicted of recklessly causing serious injury as a result of an incident in a bar in Australia. The applicant accepted that there was a single punch to the head of the victim and his jaw was broken. Relevantly, the applicant was convicted and fined and ordered to pay both the fine and compensation. There was no order that he serve any or part of the time in prison. For the purpose of other hearings about this matter to which I have alluded earlier and for this hearing, there is a United Kingdom police certificate stating that the applicant has no trace within that system, which is explained to me as meaning that he has no, either convictions or cautions, warnings or reprimands.

5. The matter was to proceed on the basis of whether the applicant failed the character test because of that incident in 2018 and then, if he failed the character test, whether other aspects of Direction No 79, which apply to his case, should be considered. Had the applicant failed the character test, the Tribunal would have been required, that is mandated under Direction No 79, to consider certain other considerations which, for the purpose of this hearing today, it is unnecessary to go into.

6. Since the application was made, a change in circumstances of the applicant has occurred. It is unnecessary to determine why those circumstances occurred; it is sufficient to say that at the time of hearing, that is today, the applicant was not in Australia. He is presently in the United Kingdom. One infers that that presence in the United Kingdom is the result of a choice of the applicant, no matter under what circumstances. I have specifically not required the applicant to tell me as I consider that to be both irrelevant and perhaps, impertinent to enquire into in the circumstances.

7. At the hearing this morning, the respondent raised an issue which goes effectively to the jurisdiction to hear this matter today, that is to say, a circumstance which relates to the regulations pursuant to schedule 2 of the Migration Regulations 1994 (Cth) (Migration Regulations). As I have said, the applicant has, in the past, held a working holiday visa. In respect of that, because the applicant is now not in Australia, certain regulations pursuant to schedule 2 of the Migration Regulations apply.

8. Relevantly, clause 417.412 applies. That is, if the applicant is or has previously been in Australia as the holder of a Subclass 417 visa, according to subparagraph (b) of clause 417.412, if the applicant is outside Australia at the time of application, the applicant must be outside Australia at the time of the grant. It is probably relevant to note subparagraph (a) as well, to put this concept in context. Subparagraph (a) provides, if the applicant is in Australia at the time of the application, the applicant must be in Australia at the time of the grant. In this case, the applicant is outside Australia. The grant is being sought at the time of hearing, that is to say, as at today’s date.

9. The applicant being in Australia at the time of the application, but outside Australia at the time of the grant, means that it is not possible to run an application because of the applicant’s presence outside Australia at the time when an application had been made whilst he was in Australia. Effectively, and unfortunately for the applicant, he falls, as it were, between the cracks of these regulations. It is unnecessary at this stage to discuss, in terms of the reasons, why the regulations have been conformed in this way.

10. In the event, although there was, in my view, a strong argument for the applicant to resist the notion that he failed the character test, or to put it another way, that the applicant had strong grounds for arguing that he was not someone who was likely to commit offences or was at a risk of committing an offence in Australia, it is not possible to consider that on today’s application because the applicant is out of Australia. I find that I have no further right pursuant to the Migration Regulations to hear the matter and I must dismiss the application.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

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Associate

Dated: 23 December 2020

Date(s) of hearing:	27 November 2020
Applicant:	In person
Solicitors for the Respondent:	Mr L Dennis