Larkins and Minister for Home Affairs (Migration)

Case [2019] AATA 210

Larkins and Minister for Home Affairs (Migration) [2019] AATA 210 (20 February 2019)

Division:GENERAL DIVISION

File Number:          2018/7238

Re:Ian Larkins

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date:20 February 2019

Place:Melbourne

The Tribunal affirms the decision under review, being

the decision of a delegate of the Minister for Home Affairs on 29 November 2018, not to revoke the cancellation of


Mr Larkins’ visa.

.......................[sgd].................................................

Senior Member A. Nikolic AM CSC

MIGRATION – Mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) Visa – request for revocation of visa cancellation – substantial criminal record – numerous violent offences – alcohol and illicit substance abuse – failure to pass character test – Ministerial Direction No. 65 applied to specific circumstances of case – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth)

Migration Regulations 1994 (Cth)

Cases

Adut and Minister for Home Affairs, Re [2018] AATA 4089
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
DPP v Larkins [2014] VCC
DPP v Larkins [2018] VCC 1339
Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
LCNB and Minister for Immigration and Border Protection, Re [2015] AATA 463
Letchford and Minister for Home Affairs, Re [2019] AATA 26
Rabino and Minister for Immigration and Border Protection, Re [2016] AATA 999
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68

Secondary Materials

Ministerial Declaration No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (dated 22 December 2014)

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

20 February 2019

INTRODUCTION

  1. The applicant, Mr Ian Larkins, is a 26-year-old citizen of New Zealand. He arrived in Australia when he was eight years old[1] and has not left Australia since. Mr Larkins seeks review of a decision by a delegate of the Minister for Home Affairs (“Minister”), made under s 501CA(4) of the Migration Act 1958 (“the Act”), not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) Visa (“the visa”).[2]

    [1] Exhibit R1, 157.

    [2] Ibid, 3-15.

  2. The hearing was held in Melbourne on 11 February 2019. Mr Larkins appeared via video-link and was self-represented. The Minister was represented by Mr Christopher Orchard, a solicitor from Sparke Helmore Lawyers. Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 21 February 2019.

  3. For the reasons that follow the Tribunal affirms the decision under review.

    BACKGROUND

    First visa cancellation and revocation

  4. The current visa cancellation process is not the…

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AGLC
Larkins and Minister for Home Affairs (Migration) [2019] AATA 210
Case
[2019] AATA 210
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Mr Larkins and the Minister for Home Affairs concerning the cancellation of Mr Larkins' visa. Mr Larkins' visa had been cancelled twice, with the first cancellation being revoked in 2016. However, following further convictions for violent and dangerous offences in 2017, his visa was mandatorily cancelled again in November 2018. Mr Larkins sought a review of this decision by the AAT, arguing that the decision was unfair.

The AAT was required to determine whether there was "another reason" to revoke the mandatory cancellation of Mr Larkins' visa, pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth). This involved an evaluative process of considering all factors for and against revocation. The Tribunal noted that Mr Larkins did not pass the character test due to a substantial criminal record, meaning the Minister was required to cancel his visa.

The Tribunal found that Mr Larkins was an unimpressive witness, providing implausible and unconvincing responses regarding his offending. His attempts to minimise his adult offending history were found to be false and self-serving, as the majority of his serious and violent offences occurred after he had turned 20 and even after his previous visa cancellation was revoked. The Tribunal concluded that the primary considerations of protecting the Australian community and the expectations of the Australian community substantially outweighed any considerations in favour of revocation, such as the best interests of minor children. Consequently, the Tribunal affirmed the Minister's decision not to revoke the visa cancellation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that follow the Tribunal affirms the decision under review.BACKGROUNDFirst visa cancellation and revocation The current visa cancellation process is not the first occasion Mr Larkins has come to the attention of immigration authorities. After learning that Mr Larkins had been convicted of armed robbery and other offences in early 2014, the National Character Consideration Centre (“NCCC”) of the then Department of Immigration and Border Protection (“Department”), wrote to Mr Larkins regarding the possible cancellation of his visa.[3] After considering Mr Larkins’ response, his visa was cancelled under s 501(3A) of the Act. [3] Ibid, 128. In accordance with an invitation extended to Mr Larkins, he made representations requesting that the visa cancellation decision be reversed. After considering those representations, a delegate of the Minister decided on 16 September 2016 to revoke the cancellation of his visa.[4] Mr Larkins formally acknowledged receipt of the revocation notice, signifying his understanding that his visa may again be considered for cancellation if he came to the attention of the Department in the future.[5] In that circumstance, his past conduct and previous relevant information could also be reconsidered.[4] Ibid, 154-155.[5] Ibid, 156.Second visa cancellation and non-revocation In the two years after Mr Larkins’ first visa cancellation was revoked, he continued to commit further violent and dangerous offences. Following further convictions in March and April 2017, his visa was again mandatorily cancelled in June 2017.[6] At that time Mr Larkins was serving a full time sentence of imprisonment.[7] He was again invited to make representations seeking to have the cancellation decision reversed and did so on 19 June 2017.[8] Further information was conveyed to Mr Larkins on 27 September 2018,[9] to which he responded on 4 October 2018.[10] After considering Mr Larkins’ representations, the Minister decided on 29 November 2018 not to revoke the cancellation of his visa.[11] [6] Ibid, 158-162.[7] Ibid, 164.[8] Ibid, 40-58.[9] Ibid, 59-60.[10] Ibid, 61.[11] Ibid, 3-15. By application dated 10 December 2018 Mr Larkins applied to the Administrative Appeals Tribunal (AAT) for a review of the Minister’s decision. In the section of the application that enables applicants to state why they consider the decision under review to be wrong, Mr Larkins stated: ‘Unfair decisions [sic].’ Relevantly, applying to the type of visa held by Mr Larkins, Senior Member Morris of the AAT noted in Letchford and Minister for Home Affairs, Re [2019] AATA 26 at [25]:… All temporary visas are inherently subject to the power of cancellation within the requirements of the Act… In addition, it is explicit that the Class TY Subclass 444 Special Category (Temporary) visa is, by operation of section 31(1) of the Act and Schedule 2 of the Migration Regulations 2004, a temporary visa.EVIDENCE BEFORE THE TRIBUNALHistory of criminal offending

Evidence

Evidence Before The Court

It is not necessary to itemise Mr Larkins’ entire criminal record. His criminal convictions during the last five years in particular include the following:(a)3 February 2014. Mr Larkins had just turned 20 when he committed Armed Robbery.[20] He was sentenced to two years and six months imprisonment. The reasons for sentence refer to him having a ‘considerable criminal record involving a pattern of drug use and aggressive behaviour fuelled by drug use.’[21] The court stated that Mr Larkins crime had ‘exposed an innocent employee who was just doing her job to a terrifying situation in which she was threatened with a firearm;’[22][20] Ibid, 40.[21] Exhibit R1, 34 [5].[22] Ibid, 35 [13].(b)10 February 2014. Burglary, Attempt theft, Criminal damage (Intent Damage / Destroy), Be disguised with unlawful intent, and Go equipped to steal / cheat;[23] [23] Ibid, 17.for which Mr Larkins was sentenced to an aggregate of six months imprisonment;(c)17 March 2014. Intentionally cause injury, and Theft; for which Mr Larkins was sentenced to three months imprisonment;(d)8 March 2017. Possess cartridge ammunition without licence / permit, and Possess controlled weapon without excuse; for which Mr Larkins was fined;(e)4 April 2017. Dangerous driving while pursued by police, Unlicensed driving, Fraudulently use registration label, Resist emergency worker on duty, and Possess / use / carry prohibited weapon,[24] for which Mr Larkins was sentenced to an aggregate of six months imprisonment. The sentencing judge described Mr Larkins’ efforts to escape apprehension while driving a vehicle and being pursued by police as a ‘horror story,’ warning that a repeat of such conduct would take Mr Larkins ‘down a terrible dark place.’[25] Mr Larkins’ legal representative accepted the following as a ‘fair summary’ tendered by the prosecutor:[26][24] Ibid.[25] Ibid, 30 [2]; [29].[26] Ibid, 27 [3].(i)After Mr Larkins bail had been revoked, police sought to intercept the vehicle he was driving by activating their lights and sirens; (ii)Mr Larkins failed to stop and a ten kilometre pursuit ensued, during which he drove on the wrong side of the road and at speeds of up to 130kph in an 80kph zone;[27] (iii)Mr Larkins drove through red traffic lights without slowing.[28] His dangerous driving caused a police vehicle and a number of oncoming civilian vehicles to take evasive action to avoid a collision; (iv)As police attempted to box in Mr Larkins’ vehicle, he caused damage to two more police vehicles before escaping on foot;[29] and(v)Mr Larkins was arrested three days later during the execution of a search warrant, after being located in a bathroom holding a large machete.[30] (f)27 August 2018. Possess drug of dependence, Possess drug of dependence for the purpose of trafficking, and Possess controlled weapon without excuse; for which Mr Larkins received an aggregate sentence of nine months imprisonment.[31] The sentencing judge observed that Mr Larkins was: [32]…no stranger to the criminal justice system…I am told that you have been drug free since your arrest, and that is the longest time you have been drug-free since you were a teenager.(g)7 November 2018. Unlawful assault against another detainee in immigration detention.[33][27] Ibid, 25 [18].[28] Ibid, 25 [15]-[16].[29] Ibid, 26 [12]-[13].[30] Ibid, 26 [21].[31] DPP v Larkins [2018] VCC 1339.[32] Exhibit R1, 20 [3]; [8].[33] Exhibit R2, 180.Evidence of Mr Larkins

Decision

Reasons for decision

The influential weight of evidence supports a finding that there is not another reason why the decision to cancel Mr Larkins’ visa should be revoked. That is because the primary considerations of Protection of the Australian community and Expectations of the Australian community, substantially outweigh the Best interests of minor children in Australia and any other considerations weighing in favour of revocation.DECISION It follows that the Tribunal affirms the reviewable decision, being the decision on 29 November 2018 not to revoke the cancellation of Mr Larkins’ visa.

Ratio Decidendi

Legal Principle Established

Paragraph 8(3) of the Direction states: ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of a visa, or whether or not to revoke a mandatory cancellation of a visa.’ Paragraph 8(4) states: ‘Primary considerations should generally be given greater weight than the other considerations.’ Paragraph 8(5) states: ‘One or more primary considerations may outweigh other primary considerations.’ As held in Schuster-McFadyen v Minister for Immigration and Citizenship,[77] however, the Tribunal can give equal or greater weight to any consideration.TRIBUNAL CONSIDERATION[77] (2011) 124 ALD 68, per Tracey J at [32], who held that it is open to the Tribunal to conclude ‘that the “other considerations”… carry more weight than…adverse primary considerations.’Does Mr Larkins pass the character test? Because of the operation of s 501(6)(a) of the Act (substantial criminal record), on the basis of s 501(7)(c), Mr Larkins does not pass the character test. He was serving a sentence of full-time imprisonment for a criminal conviction when the power under s 501(3A) of the Act to mandatorily cancel his visa was exercised. Under these circumstances, the Minister was required by law to cancel his visa.Issue to be resolved Given that Mr Larkins does not pass the character test, he cannot rely on the provisions of section 501CA(4)(b)(i). The determinative issue, therefore, is if there is ‘another reason’ to revoke the mandatory cancellation of his visa (s 501CA(4)(b)(ii) of the Act). This involves an evaluative process consistent with the reasoning of North ACJ in Gaspar v Minister for Immigration and Border Protection,[78] which the Tribunal adopts:The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…[78] (2016) 153 ALD 337 at [38].Mr Larkins’ evidence It must be said at the outset that Mr Larkins was an unimpressive witness, who at times provided implausible and unconvincing responses about his offending. That includes: his evidence in respect of the Aggravated burglary and Attempted theft of a restaurant in December 2012; his evidence about the circumstances of his arrest three days after evading police in the aftermath of a vehicle pursuit in February 2017; and his evidence about simply ‘helping a friend in need’ on 9 October 2016, which resulted in his August 2018 drug convictions. On other occasions the Tribunal found Mr Larkins evidence to be evasive, incomplete and self-serving. Mr Larkins’ attempt to characterise ‘a lot’ of his offending as occurring when he was a minor, and that his ‘adult history’ is ‘short but serious’[79] is false and self-serving. The evidence shows that the significant majority of Mr Larkins’ offending occurred when he was an adult. He was almost 24 years of age when a previous cancellation of his visa was revoked. Despite the potentially dire consequences for his visa status, Mr Larkins continued to commit serious, violent offences. His attempts to contextualise his offending as occurring predominantly when he was a minor detract from his credibility. [79] Exhibit R1, 61.