Lam and Minister for Home Affairs (Migration) - [2018] AATA 2005

Lam and Minister for Home Affairs (Migration) [2018] AATA 2005 (2 July 2018)
Division:GENERAL DIVISION
File Number(s): 2018/1876
Re:Mr Le Vu Lam
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:2 July 2018
Place:Melbourne

The Tribunal affirms the decision of the delegate of the Minister dated 9 April 2018 not to revoke the decision made on 17 February 2017 to cancel Mr Lam’s Class BB Subclass 155 Five Year Resident Return Visa
[sgd]........................................................................
Ms Anna Burke, Member
Catchwords
MIGRATION –– Vietnamese citizen – non-revocation of mandatory cancellation of visa – 12 month term of imprisonment – applicant does not pass character test in s 501(6)(a) – applicant an unacceptable risk to the Australian community – strong ties to Australia – impediments if applicant removed – decision under review affirmed
Legislation
Migration Act 1958 (Cth); ss 499, 500, 501, 501CA
Migration Regulations 1994 (Cth); reg 2.52
Cases
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Secondary Materials
Minister for Immigration and Border Protection (Cth), Ministerial Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014
REASONS FOR DECISION
Ms Anna Burke, Member
2 July 2018
BACKGROUND

On 17 February 2017 a delegate of the Minister for Immigration and Border Protection (the Minister) cancelled Mr Le Vu Lam’s Class BB Subclass 155 Five Year Resident Return Visa under s 501(3A) of the Migration Act 1958 (Cth) (the Act). This was a mandatory cancellation as the delegate was satisfied Mr Lam did not pass the character test because of the operation of s 501(6)(a) of the Act. This cancellation was on the basis of s 501(7)(c) of the Act as he was found to have a substantial criminal record by virtue of a 15-month term of imprisonment he had received on 9 February 2017 and was serving a sentence of imprisonment on a full time basis. A notice dated 17 February 2017 was sent to Mr Lam outlining the mandatory cancellation of his visa and inviting him to make representations to the Minister about the revocation of the mandatory cancellation (see ss 501CA(3)(b) & 501CA(4)(a) of the Act).
On 1 March 2017 Mr Lam lodged an application under s 501CA(4) seeking revocation of the decision to cancel his visa. On 9 April 2018 a delegate of the Minister made a decision not to revoke the mandatory cancellation of Mr Lam’s visa because the delegate was not satisfied that Mr Lam passed the character test and there was no reason why the original decision should be revoked.
On 11 April 2018 the Administrative Appeals Tribunal (the Tribunal) received an application from Mr Lam for a review of…

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.

Continue reading Lam and Minister for Home Affairs (Migration)

Details

AGLC: Lam and Minister for Home Affairs (Migration) [2018] AATA 2005
Case: [2018] AATA 2005
Decision Date: 2 July 2018

CaseChat Overview and Summary

This matter concerned an application by Mr Lam, a Vietnamese citizen, for the non-revocation of a mandatory visa cancellation. The cancellation was triggered by a 12-month term of imprisonment, which resulted in Mr Lam failing to pass the character test under section 501(6)(a) of the Migration Act 1958 (Cth). The Minister for Home Affairs argued that Mr Lam posed an unacceptable risk to the Australian community. The Administrative Appeals Tribunal was required to determine whether to affirm or revoke the mandatory cancellation.

The Tribunal was tasked with considering several primary considerations as outlined in the relevant Direction. These included the protection of the Australian community from criminal or other serious conduct, the best interests of any minor children in Australia, and the expectations of the Australian community. The Tribunal had to assess the nature and seriousness of Mr Lam's conduct, the risk of future offending, and the impact of his conduct on any children.

In its reasoning, the Tribunal noted that the protection of the Australian community from harm due to criminal activity is a fundamental principle. It considered the nature and seriousness of Mr Lam's offending, the sentence imposed, and the risk of re-offending. The Tribunal found that Mr Lam had no parental responsibilities for minor children in Australia, rendering that consideration irrelevant. Furthermore, the Tribunal considered the community's expectation that non-citizens obey Australian laws and that serious offenders should not hold a visa.

The Tribunal concluded that Mr Lam's conduct and the significant risk he posed to the Australian community weighed heavily against revoking the mandatory visa cancellation. Consequently, the Tribunal affirmed the decision to cancel Mr Lam'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

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Decision

Reasons for decision

Having regard to the nature and seriousness of Mr Lam’s conduct as well as the significant risk he poses to the Australian community should he re-offend, the primary consideration of the protection of the Australian community weighs very heavily against revoking the mandatory cancellation decision.Best interests of minor children in Australia affected by the decision Paragraph 13.2(1) requires decision-makers to make a determination about whether revocation is, or is not, in the bests interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made. In considering the best interests of the child, paragraph 13.2(4) provides:“In considering the best interests of the child, the following factors must be considered where relevant:a) The nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;e) Whether there are other persons who already fulfil a parental role in relation to the child;f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; andh) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.” Mr Lam indicated to the Tribunal that he is not a father nor does he have any parental responsibilities of any minor children in Australia and as such this consideration is not relevant to Mr Lam circumstances.Expectations of the Australian community Paragraph 13.3(1) states:“The Australian community expects non-citizens to obey Australia’s laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”

Ratio Decidendi

Legal Principle Established

Part C begins with three considerations that are characterised as primary considerations: the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Each of these considerations is developed in paragraph 13 of the Direction.PRIMARY CONSIDERATIONSProtection of the Australian community The first primary consideration relating to the protection of the Australian community begins with the general statement:“When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is determined.” That statement makes clear that the person’s conduct, past and future, is relevant. That is stated expressly in paragraph 13.1(2), when decision-makers are told that they:“… should also 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 conduct Paragraph 13.1.1 goes on to expand on the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:“a) The principle that, without limiting the range of offences that may be considered serious, violent and/ or sexual crimes are viewed very seriously;b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;c) The sentence imposed by the courts for a crime or crimes;d) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;e) The cumulative effect of repeat offending;f) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;g) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour); h) Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act;”.