Karaitiana and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2023] AATA 4236

Karaitiana and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 4236 (20 December 2023)
Division:GENERAL DIVISION
File Number:2023/7549
Re:Anaru Dylan Karaitiana
APPLICANT

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

DECISION
Tribunal:Senior Member Hon. J Rau SC
Date:20 December 2023
Place:Adelaide

The decision under review is affirmed
..........................[sgnd]........................................
Senior Member Hon. J Rau SC
CATCHWORDS
MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa under section 501(3A)- where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancelation under section 501CA (4) should be exercised – consideration of Ministerial Direction No. 99 - decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
SECONDARY MATERIAL
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 Hon. J Rau SC
20 December 2023
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA (4) of the Migration Act 1958 (Cth) (“the Act”) on 2 October 2023[1], not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“the Visa”). His visa was cancelled on 27 February 2023 under section 501 (3A) on the basis that he did not pass the character test.[2]
[1] Exhibit 8, Tender Bundle, 140.
[2] Ibid 98-9; Exhibit 3, G Documents, Attachment O, 164-169.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of his conviction on 3 August 2022 of various offences, and aggregate sentence of 16 months imprisonment, to be served by way of a Community Corrections Order.[3]
[3] Exhibit 3, G Documents, G4 Index to relevant material, Attachment A – National Criminal History Check, 25-32.
The Applicant accepts that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The hearing was held on 15 December 2023. The Applicant was represented by Mr Tanguy Mwilambwe of Taylor Rose and the Respondent was represented by Mr Tigiilagi Eteuati of the Australian Government Solicitor.
The Applicant gave evidence by way of Microsoft Teams form Yongah Hill…

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: Karaitiana and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 4236
Case: [2023] AATA 4236
Decision Date: 20 December 2023

CaseChat Overview and Summary

This matter concerned an application to revoke the mandatory cancellation of the Applicant's Special Category (Temporary) visa (Class TY Subclass 444). The visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) because the Applicant did not pass the character test due to having a substantial criminal record. The Applicant sought to have this cancellation revoked under section 501CA(4) of the Act. The decision was made by Senior Member Hon. J Rau SC of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether there was "another reason" why the original decision to cancel the Applicant's visa should be revoked. In determining this, the Tribunal was required to consider and apply Ministerial Direction No. 99, which sets out the framework for assessing applications for visa refusal, cancellation, and the revocation of mandatory visa cancellations. This involved weighing various considerations, including the protection of the Australian community, the Applicant's conduct, and the strength of his ties to Australia.

The Tribunal's reasoning focused on Primary Consideration 1: the protection of the Australian community. It noted that the Applicant had a history of family violence, including against his mother, and had committed acts of violence against a stranger. The Tribunal found that such conduct, particularly family violence, is viewed very seriously by the Australian Government and community, regardless of whether a conviction or sentence was imposed. While acknowledging the Applicant had spent most of his life in Australia, the Tribunal concluded that his serious criminal conduct outweighed other considerations, and therefore, there was no other reason to revoke the mandatory cancellation of his visa. The Tribunal affirmed the original decision to cancel the visa.

Orders

Orders of the court

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Background

Background to the litigation

The Applicant obtained a late psychologist’s report from Ms. Clare Fercher-Barrett on 13 December 2023.[11] This was admissible only by reason of the Respondent’s assistance, to overcome the constraints imposed by s 500(6J) of the Act. This was received on the basis that the Respondent did not require her to be called as a witness.[11] Exhibit 7, Psychologist Report of Ms Fercher-Barret.Background Facts The Applicant was born on 6 February 1998 in New Zealand. He is now 25 Years old. He first came to Australia on 11 October 2005, when he was 7 years old. He has returned to New Zealand on several occasions since then to visit relatives. He most recently returned to Australia on 30 January 2016.[12][12] Exhibit 3, G Documents, G4 Index to relevant material, Attachment N – Movement Records, 162 – 163. The Applicant was a victim of domestic violence as a young person at the hands of his father. He observed that violence being also directed at his mother. He became involved in drugs and gangs.[13] He became a heavy user of cannabis and methamphetamine. He denies having any problem with alcohol. He continued to use these drugs even when in Immigration Detention at Villawood in NSW. He told the Tribunal that he only stopped using some months ago, when he was moved to Yongah Hill.[13] Exhibit3, G-Documents, 91. On 8 March 2015, a NSW Police Fact Sheet records: [14]In February 2015, the Young Person has smashed a number of doors within the family home and the victim has contacted police. Police attended and arrested the Young Person. Police made application for a non-urgent Apprehended Domestic Violence Order and the Young Person was scheduled to be dealt with under the Young Offenders Act. This action was by way of a youth caution which is yet to be completed.On Sunday afternoon the 8th of March 2015, the victim returned home and was met by the Young Person who asked her for money. After being told that he couldn't have any money, the Young Person has become angry and taken a piece of timber from the front railing of the veranda. He has then entered the front door and gone into the lounge area. The victim stayed outside and heard smashing sounds coming from the within the house. The victim walked away and stayed at a relative’s house two doors away. At that time, the young person was the only person within the confines of the house.About 11.00am on Monday the 9th of March 2015, the victim returned home. She noticed that a buffet and hutch in the loungeroom had been smashed and numerous breakable items within it were also smashed and were strewn across the floor. The victim also noticed that her bedroom had been ransacked. The victim informs police that the damage to the buffet and hutch is a direct result of the young person smashing it with the piece of timber from the veranda.When the victim arrived home the young person was present and again asked the victim for money. The victim informed the young person that she didn't have any to give to him. Again, the young person became enraged and continued to ask for money. He then took another piece of timber from the railing and walked to the rear of the premises. The victim again heard smashing sounds and when she went to the rear of the house, saw the laundry window had been smashed. The young person walked to the front of the house and pulled a sliding screen door of the rails. Again, the victim walked away to the relatives’ house and called police.Police attended and arrested the young person. He was cautioned and searched and placed into the caged police vehicle. The victim provided a signed statement to police and claims that she is unable to control the young person. She added that she no longer wishes for him to reside at the premises as she fears for her safety and also fears further damage to her house. The victim claims that the young person is using cannabis and may also have access to methyl amphetamines in the form of "Ice".A support person was not able to be located at the time of arrest and as such, the young person was not interviewed in relation to the malicious damage offences. The adult cousin of the young person, Tremayne Singh has agreed to allow the young person to reside with him. He also agreed to act as a support person during an interview with the young person on Wednesday the 11 March 2015. Singh resides at 6 West Avenue Cessnock.Over the following weeks, police made numerous appointments for the Young Person to be interviewed. Each time the Young Person has claimed to be unable to attend. Police also visited the residential premises of the young person on a number of times with the intention of conducting the interview with him there. Each time the Young Person has not been at home. After speaking with the victim, police have formed the opinion that the Young Person has no intention of being interviewed and he is living a transient life between friends’ houses.As such, police have charged the Young Person with the matters before the Court. If interviewed, he would be eligible to be dealt with under the Young Offenders Act.[14] Exhibit 3, G Documents, G4 Index to relevant material, Attachment K – Further information relevant to decision under s 501CA(3) on whether to revoke the original decision to cancel your visa, 155 – 156.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As previously discussed, the Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. This is not disputed by the Applicant. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.Is there another reason why the original decision should be revoked under section 501CA(4)? In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[47] [47] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90, this in turn was replaced by Direction 99 on 3 March 2023. For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens 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 by non- citizens who have lived in the Australian community for most of their life, or from a very young age.(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

Ratio Decidendi

Legal Principle Established

The Applicant’s adult offending commenced in 2016, however his first recorded family violence occurred when he was still a minor in 2015. This is relevant “regardless of whether there is a conviction or a sentence imposed”.[51][51] see Direction 99 para 8.1.1(1)(a)(iii).PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:a)The nature and seriousness of the non-citizen’s conduct to date; andb)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.The Nature and Seriousness of the Applicant’s Conduct to Date When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community. The Applicant has a history of both family violence and random violence against a stranger. The Applicant’s mother has been abused, mistreated and assaulted by him. He has damaged and destroyed her property. He has repeatedly breached AVOs protecting her. She is a 54-year-old woman in poor health. His father has also been the victim of a brutal assault by him. He has had multiple opportunities, provided by the justice system to mend his ways, but he has proceeded to ignore these. He has acted in contravention of an AVO. He has assaulted a stranger. The Applicant’s conduct is appalling. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.