Latchman and Minister for Immigration and Border Protection (Migration)
[2016] AATA 608
•15 August 2016
Latchman and Minister for Immigration and Border Protection (Migration) [2016] AATA 608 (15 August 2016)
| Division | GENERAL DIVISION |
| File Number(s) | 2016/2886 |
| Re | Gyaneshwar Latchman |
| APPLICANT | |
| And | Minister for Immigration and Border Protection |
| RESPONDENT |
DECISION
| Tribunal | Professor M McGrowdie, Senior Member |
| Date | 15 August 2016 |
| Place | Sydney |
The Tribunal decides that the reviewable decision is set aside. In substitution, the Tribunal decides that the discretion in section 501(1) of the Migration Act 1958 (Cth) to refuse the Applicant’s application for a Partner (Temporary) (Class UK) visa on character grounds should not be exercised.
.......................[sgd].................................................
Professor M McGrowdie, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – visa refusal – application for partner visa – failure to pass character test – substantial criminal record – discretion to refuse applicant's visa – Ministerial Direction no 65 applied – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – expectations of Australian community – impact on victims of applicant’s criminal conduct – impact on applicant’s family – evidence of rehabilitation achieved by time of the decision – applicant a positive force in the community – impact on family members – Tribunal satisfied that discretion should not be exercised – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 ss 499, 501
CASES
Labi and Minister for Immigration and Border Protection [2016] AATA 316
SECONDARY MATERIALS
Direction no. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Professor M McGrowdie, Senior Member
15 August 2016
INTRODUCTION
By application dated 23 May 2016, the applicant seeks a review of a decision of a delegate of the Minister to refuse to grant a visa under s 501(1) of the Migration Act 1958 (“the Act”).
That application is made under s 500(1)(b) of the Act and is opposed.
The applicant is a citizen of Fiji and first came to Australia on 21 December 1985, aged 18.
Initially he had been granted a Visitor Visa which subsequently expired and has since remained in Australia unlawfully.
He applied in 1994 for a Temporary Business (Long Stay) Visa and later for a Protection Visa, with both applications refused.
On 2 February 2013 the applicant applied for a Partner Visa which was refused with the applicant being notified of the decision on 23 May 2016. This has led to the current application for review before the Tribunal.
A National Police Certificate recorded the applicant’s criminal record.
The first of these offences was in August 1993. The last recorded offences were in 2003 resulting in a conviction with a prison term. The offences are set out in detail in the Respondent’s Statement of Facts, Issues and Contentions.
The applicant does not satisfy the character test as referred to in s 501(1) because of his substantial criminal record, and does not argue otherwise.
Under s 501(1) of the Act, the Minister may refuse to grant a visa if the applicant does not pass the character test, as defined in s 501(6) of the Act.
The Applicant concedes that he does not pass the character on account of his ‘substantive criminal record’ as defined in s 501(7), which includes a term of imprisonment of 12 months or more.
However, the applicant submits that it is appropriate, having regard to the facts and circumstances, not to exercise the discretion in s 501(1) to refuse him a visa.
GENERAL BACKGROUND
The Applicant was imprisoned as a result of charges dealt with in 2003 and there entered into a drug rehabilitation programme. He also actively engaged in employment training and was engaged in work as a curtain cutter whilst in prison.
He was released from prison in February 2006 and met and began a relationship with his Australian partner, Rachelle Bevcich, with whom he has been living in the home of her father, who travels frequently.
Subsequent to his release from prison he saw a psychologist who was of considerable assistance to the applicant. He keeps in touch with the psychologist.
Before prison, the applicant had considerable problems with drugs and alcohol. He had an unsettling childhood in Fiji and was the subject of some abuse.
In the applicant’s Statement of Facts and Contentions filed on 8 July 2016 it is stated that:
3. The applicant’s offending behaviour was largely driven by unresolved psychological trauma arising out of physical and sexual abuse experienced as a minor.
4. The applicant’s addiction to illegal drugs coupled with the unresolved psychological trauma drove the offending behaviour…
Since undergoing rehabilitation in prison, subsequent psychological counselling and the formulation of a deep and trusting relationship, the applicant appears to have overcome these problems of the past.
Further, he has entered into secure employment. Evidence was given by Mr Barry Klass, the CEO of Stegbar Office Furniture Pty Limited, as to the applicant’s employment. The applicant has been employed as a store person/assembler from February 2010 on a continuous basis and is in charge of the chair department. The evidence of Mr Klass was to the effect that the applicant is a valued and trustworthy employee and is valued in terms of his contribution to the business and that it would be a great loss if the applicant was not able to continue.
The business is one of some scale with 50 different models of chairs to process. These chairs require assembly under quality control conditions and the applicant has acquired considerable skill and expertise in this process, particularly with regard to quality issues.
The applicant’s Australian partner gave evidence as did her father and mother (who live separately) as to how the applicant has become an integral part of the family. Other family members gave evidence as to the applicant’s standing, reliability and present nature.
A cousin of the applicant, Princess Latchman, a Student Services Officer of Study Group Australia Pty Ltd gave evidence in support of the applicant saying that she regarded the applicant as her big brother. She attested to the applicant’s difficult childhood and his subsequent transformation following his release from prison.
Jessica Morr, a Project Manager within the Business and Law Schools of the University of Australia, provided evidence of her long friendship and association with the applicant and the supportive presence of the applicant in her life.
She expressed the opinion that the loss to the applicant and others close to him were he not to have the opportunity of continuing to reside in Australia would be substantial, particularly when viewed alongside the plans of the applicant and his Australian partner to continue building a future together for themselves.
Considerable weight can be given to these statements.
The applicant has an adult daughter in Australia. The applicant reconnected with her in October 2014, after 13 years. This has been a significant event in the applicant’s life.
The applicant could only be considered to have led a largely responsible and forward looking life since his release from prison in February 2006. It is now more than 10 years on.
Despite the applicant’s remarkable and long-standing transformation/rehabilitation there are other matters that must be taken into account when considering the exercise of the discretion.
DIRECTION NO. 65
The Ministerial Direction issued pursuant to s 499 of the Act provides mandatory guidance to the exercise of the discretion. As a matter of general guideline, the protection of the Australian community from harm against is paramount. This is against a background of Australia having a sovereign right to determine whether non-citizens are allowed to enter and/or remain in Australia. The commission of crime, or the risk of it, is an important consideration.
Clause 6.3 provides:
6.3 Principles
(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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The Direction provides that there are both primary and other considerations to take into account, that weight must be given to each consideration where relevant (clause 8.3) and that primary considerations should generally be given more weight than other considerations (clause 8(4)).
PRIMARY CONSIDERATIONS
Protection from the Australian community from criminal or other serious conduct
The nature and seriousness of the conduct
The offences committed by the applicant were serious, and included breach of apprehended violence order in 1997 and an assault in 1999. There was nothing recorded in 2000, 2001 or 2002. The offences in 2003 for which the applicant was given a prison sentences were not related to physical violence. The most significant charge in 2003 related to obtaining money by deception.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
In considering the risk of harm to the Australian community in respect of a person who has offended it is relevant to have regard to, in accordance with Clause 11.1.2:
(3) b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
…
(ii) Evidence of rehabilitation achieved by the time of the decision….
Not relevant in this particular case is the consideration of the best interests of minor children in Australia affected by the decision, as outlined in Clause 11.2.
Clause 11.3 is concerned with the expectations of the Australian community where, relevantly, the non-citizen has been convicted of offences in Australia, and this has to be considered.
As stated by D.P. McCabe in Labi and Minister for Immigration and Border Protection [2016] AATA 316 (13 May 2016):
The Direction points out the Australian community expects non-citizens will obey Australian laws while they remain in this country. But the Direction implicitly acknowledges the community is not completely intolerant of risk …
In the present case I consider that, based upon the applicant’s conduct over the past ten years or so and given the support of those around the applicant, there is no real threat or risk posed by the applicant to the community in this regard.
Further, over that period, the applicant has been a positive force in the community.
It should not be ignored however that the applicant’s presence in Australia has for a considerable time been without authority.
This is something that needs to be weighed alongside the positive aspects and attributes of the applicant’s presence in Australia.
Whilst that is a matter of concern I take into consideration the fact that the applicant has been seeking to obtain a visa in one form or another over a period of time.
Best interests of minor children in Australia affected by the decision
There are no minor children involved.
Expectation of the Australian Community
I am satisfied that the applicant is in a genuine partner relationship endorsed by both his partner’s parents and by other family members. The impact upon the applicant’s partner if he were to be refused would be substantial.
On balance, the Australian community would not in my view, seek to reject the applicant remaining in Australia given his importance to others in the community.
There is a low tolerance for visa applicants who have engaged in criminal conduct, regard should be had, according to the Clause, to the nature and seriousness of the non-citizen’s conduct to date, and the risk to the Australian community should the non-citizen commit further offences.
For all offences the applicant was punished in accordance with the law. He would appear to have been given the opportunity to rehabilitate and in the course of justice that opportunity given was successful.
I consider, for the reasons given, that the applicant have the opportunity of remaining in the Australian community under a Partner Visa and such would meet the expectations of the Australian community.
OTHER CONSIDERATIONS
In dealing with the exercise of the discretion I must also have regard to the “other considerations” in Clause 12.
One is related to international non-refoulment obligations. There are no international non-refoulment obligations involved.
Another is the impact on family members.
There is evidence that the applicant has re-established contact with his daughter who lives in Australia but no evidence of what impact a refusal to grant a visa would have on her. The fact that contact has been re-established is at least an indication that there may be an impact upon the applicant’s daughter if the opportunity of forging a bond between father and daughter could not be easily pursued.
There is also the effect on the applicant’s partner.
Further, there is the consideration of the impact on victims. There is no evidence as to what impact there may or may not be on any “victims” of the applicant’s past criminal activities. Given the effluxion of time, it is unlikely that there would be any real impact on “victims”.
There is also the consideration of the impact on Australian’s business interests. There would be an adverse impact on Australian business interests if the applicant was not in the position of continuing his role as an employee of the furniture importing business that employs him and where his services are relied upon and valued by his employer. This is not to say, however, that there would be significant compromise in the delivery of a major project or delivery of an important service.
CONCLUSION
In weighing up all of the considerations, and being mindful of concerns, I conclude that it is appropriate that the discretion in section 501(1) of the Migration Act 1958 (Cth) to refuse the applicant’s application for a Partner (Temporary) (Class VK) visa on character grounds should not be exercised.
| I certify that the preceding 55 (fifty-five) paragraphs are a true copy of the reasons for the decision herein of Professor M McGrowdie, Senior Member |
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Associate
Dated 15 August 2016
| Date of hearing | 21 July 2016 |
| Solicitors for the Applicant | Christopher Levingston and Associates |
| Solicitors for the Respondent | Sparke Helmore |
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Remedies
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