KMWC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 168

KMWC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 168 (9 February 2021)
Division:GENERAL DIVISION
File Number(s):2020/7616
Re:KMWC
APPLICANT

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

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:9 February 2021
Place:Sydney

The reviewable decision made on 17 November 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the applicant’s Class XE Subclass 790 Safe Haven Enterprise Visa, is set aside.
In substitution, it is decided that the mandatory cancellation decision of the applicant’s Class XE Subclass 790 Safe Haven Enterprise Visa on 10 February 2020, is revoked.
...........................[SGD].............................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether another reason why the visa cancellation should be revoked – Ministerial Direction No. 79 applied – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – expectations of the Australian community – strength, nature and duration of ties to Australia – international non-refoulement obligations – impediments to removal – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
VXKK and Minister for Home Affairs (Migration) [2018] AATA 3268
Do and Minister for Immigration and Border Protection [2016] AATA 390
FTYC and Minister for Immigration and Border Protection [2018] AAT 20
SECONDARY MATERIALS
Direction No. 79 – 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
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
INTRODUCTION

The applicant is a 35-year-old Iranian national. He has resided in Australia since 2013 from the age of 28.
On 11 September 2017, the applicant was granted a Class XE Subclass 790 Safe Haven Enterprise Visa (the visa), having been recognised as a refugee on the basis of his homosexuality and his Christian faith.
Since arriving in Australia, the applicant has been convicted of a number of offences between 2014 and 2020. Most significantly, on 29 January 2020, the applicant was convicted of ‘affray’ and ‘reckless wounding in company’ and was sentenced to 14 months’ imprisonment.
On 10 February 2020, the applicant’s visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act).
On 9 March 2020, the applicant made representations seeking revocation of the mandatory cancellation decision.
On 17 November 2020, a delegate of the Minister (the delegate) decided not to revoke the mandatory cancellation decision.
On 19 November 2020, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.
THE LAW
As the parties…

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: KMWC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 168
Case: [2021] AATA 168
Decision Date: 9 February 2021

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision not to revoke the mandatory cancellation of the applicant's visa. The applicant, KMWC, had failed to pass the character test, leading to the cancellation of his Class XE Subclass 790 Safe Haven Enterprise Visa. The dispute before the Administrative Appeals Tribunal (AAT) was whether there was "another reason" why the visa cancellation should be revoked under section 501CA(4) of the Migration Act 1958 (Cth).

The Tribunal was required to determine if the applicant had established "another reason" warranting the revocation of the visa cancellation, considering the factors outlined in Ministerial Direction No. 79. These factors included the nature and seriousness of the applicant's offending conduct, the risk of reoffending, the protection of the Australian community, the expectations of the Australian community, the strength, nature, and duration of the applicant's ties to Australia, and any international non-refoulement obligations or impediments to removal.

The Tribunal reasoned that while the applicant had a significant criminal record, including serious violent offences, the cumulative nature of his offending and the increasing seriousness over time were noted. However, the Tribunal also considered the applicant's evidence regarding his strong ties to family in Iran and Canada, his conversion to Christianity, and his stated fear of persecution in Iran due to his sexuality and faith. The psychologist's report highlighted the detrimental impact of prolonged detention on the applicant's mental wellbeing and the potential for persecution if deported to Iran. Weighing all the considerations under Direction 79, the Tribunal concluded that the balance favoured the revocation of the delegate's decision.

Consequently, the Tribunal set aside the delegate's decision and substituted a new decision revoking the mandatory cancellation of 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

The primary issue is therefore whether there is ‘another reason’ why the mandatory cancellation decision should be revoked under section 501CA(4) of the Act.THE EVIDENCEThe applicant’s evidence The applicant provided a statement dated 22 December 2020, which he confirmed was true and correct. The applicant was born in Tehran, Iran and has family who continue to reside in Iran, including his mother, brothers, sisters, sisters in law, nephews and their spouses, uncles, aunts and cousins. His father passed away in around 2003. The applicant also has a sister in Canada who he is close to and who provided evidence at the hearing. He said he stays in regular contact with his family in Iran and that he spoke to his mother the night prior to the hearing. He said he also communicates regularly with his siblings. The applicant grew up in a supportive family and continues to receive support both emotionally, on his mother’s side of the family, and financially through his sister who resides in Canada. The applicant identifies as a gay male but said that he has kept his sexuality a secret from his family in Iran due to the dangers of being homosexual in Iran. His sister who lives in Canada is the only family member who openly knows about the applicant’s sexuality since around 2006 or earlier. He said he thought that other family members were probably aware of his sexuality, but that they did not want to acknowledge it. He said that his sexuality was not something that his family in Iran can support or have ever discussed openly with him, and he said he would be treated differently if he was open about his sexuality. The applicant attended primary and middle school in Iran and said he left school between the ages of 15 and 17. He worked in wrestling with his brother, as well as later in a role with council and then in refrigeration. When asked if he could work with his brother again if he were returned to Iran, he said he hoped so, but there would be serious problems in relation to his Christian faith and his sexuality. The applicant said that when he was residing in Australia in the community, he attended Church with two pastors and that he occupied his time with some part time work as a handyman until receiving work rights in 2015 or 2016. When questioned about his faith, the applicant said that he converted to Christianity in 2013 when he was baptised, soon after his arrival in Australia. He said he converted because he had the experience of meeting other Christians in detention, was exposed to their ideology and saw how they behaved and viewed the world. He also became close to a pastor who was working at the detention centre. He said he currently practiced his Christian faith by observing the ten commandments and said that he had attended the Hillsong Church prior to his detention. In Villawood Immigration Detention Centre, he said he regularly attended Bible Study. When questioned further, the applicant said that he had been to the Hillsong Church at least four times and had also attended other churches in Paramatta. He was unable to recall the name of the church in Paramatta but said that it was near Fitness First and that the Church had provided free food after the services. The applicant had attended Bible Studies with a pastor and said that he had continued to attend services and Bible Study in prison. The applicant said that at Bible Study he tried to learn about humanity and that he also tried to teach other people about the Christian faith.

Decision

Reasons for decision

Overall, I am of the opinion that, in considering all the considerations in Direction 79, the balance weighs in favour of revocation of the delegate’s decision. DECISION The reviewable decision made on 17 November 2020, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the applicant’s Class XE Subclass 790 Safe Haven Enterprise Visa, is set aside. In substitution, it is decided that the mandatory cancellation decision of the applicant’s Class XE Subclass 790 Safe Haven Enterprise Visa on 10 February 2020, is revoked.

Ratio Decidendi

Legal Principle Established

The applicant’s psychologist also noted that prolonged detention was likely to have a long-term effect on the applicant’s mental wellbeing and as a gay Christian man he may face persecution if he were deported to Iran. She said that the threat of deportation “undoubtably weighs heavily on his mental health”.PRIMARY CONSIDERATION Protection of the Australian community There are two aspects of the first primary consideration regarding the protection of the Australian community. First, the nature and seriousness of the applicant’s conduct to date and second, the risk to the Australian community if the non-citizen commits further offences or engages in further serious conduct.Nature and seriousness of the applicant’s conduct The applicant has been convicted of 13 separate offences between 2014 and 2020, namely a number of traffic infringements, ‘enter enclosed land not presc premises w/o lawful excuse’, ‘goods in personal custody suspected of being stolen’, ‘destroy or damage property’, ‘fail to appear in accordance with bail acknowledgements, ‘assault police officer in execution of duty w/o abh’, ‘resist or hinder police officer in the execution of duty’ and ‘possess prohibited drug’. Most significantly, on 29 January 2020, the applicant pleaded guilty to the offences of ‘affray’ and ‘reckless wounding in company’ and was sentenced to 14 months’ imprisonment with a non-parole period of nine months. Violent offences are to be viewed very seriously. In this regard, I note that at the hearing the applicant disputed the level of the involvement, particularly in relation to the 29 January 2020 conviction of ‘affray’ and ‘reckless wounding in company’, which were the most serious convictions against him. The respondent, in my view, quite appropriately reminded the Tribunal that it cannot go behind the conviction in the criminal courts and the essential facts on which this is based (HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78]). During the course of the hearing, the applicant did accept that he had been convicted of serious offences, with one incident involving violence which should be viewed as particularly serious as it involved violence against the police in the execution of their lawful duties (clause 13.1.1(1)(c) of Direction 79). It is also relevant that there is a cumulative nature to the applicant’s offences and that the seriousness of the applicant’s offending also increased over time, as reflected in the length of the sentences that he received. In relation to his 2014 traffic offences, the applicant said that he was young and naïve at the time and that he did not know the law in Australia. I note, however, that he was 29 years of age and although he had recently arrived in Australia, he had spent some time in the country. I also take into account the fact that the applicant appeared to disregard the warning given to him after his bridging visa was cancelled as a result of his driving convictions in 2014. When the applicant was granted a further visa in 2015, he signed a set of conditions including that he “must obey the law and not engage in criminal activity”.