KLQF and Minister for Home Affairs (Migration)

Case [2019] AATA 933

KLQF and Minister for Home Affairs (Migration) [2019] AATA 933 (16 May 2019)

Division:GENERAL DIVISION

File Number:           2019/0975

Re:KLQF

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Member Tigiilagi Eteuati

Date:16 May 2019  

Place:Sydney

The decision under review is affirmed.

........................................................................

Member Tigiilagi Eteuati

Catchwords

MIGRATION – mandatory cancellation of Applicant’s visa under s 501(3A) – Applicant failed to pass the character test - whether there is another reason why cancellation decision should be revoked - application of Direction No. 79 – consideration of Australia’s international non-refoulement obligations – decision affirmed

Legislation

Migration Act 1958 (Cth) – s 36, s 195A, s 197C, s 198, s 417, s 499, s 501, s 501CA, s 501J

Cases

Al-Kateb v Godwin [2004] HCA 37

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

Afu v Minister for Home Affairs [2018] FCA 1311

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

BKS18 v Minister for Home Affairs [2018] FCA 1731

Chol v Minister for Immigration & Anor [2018] FCCA 306

DKXY v Minister for Home Affairs [2019] FCA 495

DMH16 v Minister for Immigration and Border Protection [2017] FCA 448

Doan and Minister for Home Affairs (Migration) [2019] AATA 169

DOB18 v Minister for Home Affairs [2018] FCA 1523

FYBR v Minister for Home Affairs [2019] FCA 500

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

Goundar v Minister for Immigration and Border Protection [2016] FCA 1203

Greene v Assistant Minister for Home Affairs [2018] FCA 919

Marzano v Minister for Immigration & Border Protection [2017] FACFC 66

Minister for Immigration and Border Protection v Le [2016] FCAFC 120

Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263

Omar v Minister for Home Affairs [2019] FCA 279

Patto v Minister for Immigration and Multicultural Affairs [2000] FCA 1554

PRHR and Minister for Immigration and Border Protection (Migration) [2017] AATA 2782

Sowa v Minister for Home Affairs [2018] FCA 1999

Subasinghe and Minister for Home Affairs (Migration) [2019] AATA 751

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SZOQQ v Minister for Immigration and Citizenship [2012] FCAFC 40

TGXY and Minister for Home Affairs (Migration) [2019] AATA 757

Toki and Minister for Home Affairs (Migration) [2019] AATA 742

Turay v Assistant Minister for Home Affairs [2018] FCA 1487

Uelese v Minister for Immigration and Border Protection [2015] HCA 15

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

Direction No 75 – Refusal of Protection visas Relying on Section 36(1C) and Section 36(2C)(b)

Direction No 65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Member Tigiilagi Eteuati

16 May 2019

BACKGROUND

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Details
AGLC
KLQF and Minister for Home Affairs (Migration) [2019] AATA 933
Case
[2019] AATA 933
Decision Date

CaseChat Overview and Summary

This matter concerned an application to the Tribunal by KLQF (the Applicant) seeking to revoke the mandatory cancellation of his visa, which had been effected under section 501(3A) of the Migration Act 1958 (Cth) due to the Applicant failing to pass the character test. The Minister for Home Affairs (the Respondent) opposed the revocation. The Tribunal was required to determine whether there was another reason why the cancellation decision should be revoked, considering the application of Direction No. 79 and Australia's international non-refoulement obligations.

The primary legal issues before the Tribunal were whether the Applicant passed the character test, and if not, whether there were other compelling reasons to revoke the visa cancellation. The Tribunal had to assess the Applicant's offending history against the definition of a "substantial criminal record" under section 501(7) of the Act, which includes being sentenced to a term of imprisonment of 12 months or more. The Tribunal also had to consider the factors outlined in Direction No. 79, including the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the potential impact on international non-refoulement obligations.

The Tribunal found that the Applicant did not pass the character test, as his criminal history included convictions for which he was sentenced to terms of imprisonment exceeding 12 months, including a sentence of three years and three months for knowingly dealing with proceeds of crime. Despite considering evidence regarding the Applicant's close relationship with his eldest daughter and her concerns about his potential removal, the Tribunal determined that these factors, when weighed against the seriousness of his offending history and the risk to the Australian community, did not constitute another reason to revoke the cancellation decision. The Tribunal affirmed the decision to cancel the Applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

If the Tribunal is satisfied that the Applicant passes the character test or that there is another reason why the cancellation decision should be revoked the Tribunal must find in the Applicant’s favour. The appropriate decision in these circumstances would be for the decision refusing to revoke cancellation to be set aside and for a decision in substitution to be made revoking the cancellation decision. EVIDENCE The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents”), the documents tendered into evidence by the Applicant and marked as exhibits A1 to A7 and the documents tendered into evidence by the Respondent and marked as exhibits S1 to S43. The evidence contained in these documents is discussed throughout this decision: see ‘Annexure 1’ to this decision. The Tribunal is of course aware of the restrictions on the consideration of certain evidence contained in sections 500(6H) and (6J) of the Act. The Tribunal has not had regard to any evidence provided in support of Applicant’s case which was not provided to the Respondent at least two clear business days prior to the hearing. However, in accordance with the decision of the High Court in Uelese v Minister for Immigration and Border Protection [2015] HCA 15, the Tribunal has considered the evidence of witnesses provided in answer to questions in cross-examination by the Respondent and questions from the Tribunal. A summary of evidence of witnesses is provided below from paragraph 32 of these reasons.DOES THE APPLICANT PASS THE CHARACTER TEST? Section 501(6) relevantly provides:(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 by subsection (7)); or … Section 501(7) 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; or… The Applicant will be taken to have a substantial criminal record, and thus not pass the character test, if he has been sentenced to a term of imprisonment of 12 months or more. Section 501(12) of the Act provides that “imprisonment” includes any form of punitive detention in a facility or institution.Offending history An Australian Criminal Intelligence Commission (ACIC) Criminal History Check for the Applicant dated 21 November 2018 shows the following offences committed by the Applicant:(a)On 19 March 2018, the Applicant was convicted of the following offences: (i)Knowingly produce false/misleading document: state law, the Applicant was sentenced to 12 months imprisonment with a non-parole period of 8 months. (ii)Never licensed person drive vehicle on road - prior offence, the Applicant was sentenced to 6 months imprisonment.(iii)Use unregistered registrable Class A motor vehicle on road and fined $500.(b)The Applicant appealed the severity of his sentence and on 29 May 2018, the Applicant’s sentences were varied as follows:(i)Knowingly produce false/misleading document: state law, the Applicant was sentenced to 10 months imprisonment with a non-parole period of 5 months.(ii)Never licensed person drive vehicle on road - prior offence, the Applicant was sentenced to 4 months imprisonment.(c)On 8 November 2017, the Applicant was convicted of Never licensed person drive vehicle on road - prior offence, and fined $400. (d)On 4 July 2017, the Applicant was convicted of the following offences: (i)Driver or rider state false name or home address, with no other penalty.(ii)Knowingly produce false/misleading document: state law, the Applicant was subjected to a community service order: 50 hours property to owner.(iii)Driver never licensed person (section 53(5)) – first offence, with no further penalty. (iv)Goods in personal custody suspected of being stolen (m/v), and subjected to a community service order 50 hours property to owner.(e)On 17 January 2013, the Applicant was convicted of the following offences: (i)Knowingly deal with proceeds of crime, and sentenced to 3 years and three months imprisonment with a non-parole period of two years and two months.(ii)Goods suspected stolen in/on premises (not m/v), and taken into account on Form 1.(iii)Knowingly deal with proceeds of crime SI (48 Attempt), taken into account on Form 1.(iv)Deal with identity info to commit indictable offence, taken into account on Form 1.(v)Possess identity info to commit indictable offence, taken into account on Form 1.(f)On 23 June 2010, the Applicant was convicted of the following offences:(i)Never licensed person drive vehicle on road – 2nd+ offence, and fined $100 plus court costs of $76. (ii)Goods in personal custody suspected of being stolen (m/v), and subjected to a 2 year good behaviour bond.(g)On 17 June 2010, the Applicant was convicted of the following offences:(i)Never licensed person drive vehicle on road – 2nd+ offence, and subjected to a 12 month good behaviour bond.(ii)Use unregistered registrable Class A motor vehicle and fined $600.(h)On 21 January 2010, the Applicant was convicted of Use unregistered registrable Class A motor vehicle and fined $500.(i)On 17 September 2007, the Applicant was convicted of Never licensed person drive vehicle on road – 1st offence, and fined $600. (j)On 20 April 2006, the Applicant was convicted of the following offences: (i)four counts of make false instrument w/i – value <= $2000, and sentenced to 18 months imprisonment with a non-parole period of 12 months suspended on entering into a good behaviour bond for 18 months on each count.(ii)Use false instrument w/i and sentenced to 18 months imprisonment with a non-parole period of 12 months suspended on entering into a good behaviour bond for 18 months on each count.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Applicant’s eldest daughter’s evidence during the hearing for the most part echoed the evidence contained in her statement. She indicated that she had a very close relationship with her father and would be devastated if he had to return to the Congo. She also indicated that her father had a close relationship with her three half-siblings. She expressed some concern that if her father departed that this may affect her ability to continue to spend time with her half-siblings.PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction provides that decision-makers should 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