Leone and Minister for Home Affairs (Migration) - [2018] AATA 3363

Leone and Minister for Home Affairs (Migration) [2018] AATA 3363 (10 September 2018)
Division: General Division
File Number(s): 2018/3419
Re:Francesco Leone
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:Member Richard West
Date:10 September 2018
Place:Melbourne

The Tribunal affirms the decision under review.
...........................[sgd].............................................
Member
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of the child – expectations of the Australian community – other considerations – decision under review affirmed.
Legislation
Migration Act 1958
Cases
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273
Re Do and Minister for Immigration and Border Protection [2016] AATA 390
Re Gordon and Minister for Immigration and Border Protection [2018] AATA 39
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Re Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction 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 – paras 6.1, 6.2, 6.3, 6.2(1), 7(1), 8, 13(2), 13.1(1), 13.1(2), 13.1.1(1), 13.1.2(1), 13.2(4), 13.3(1), 14(1), 14.2(1), 14.2(1)(a)(ii), 14.2(1)(b), 14.5(1) – Part C
United Nations, Convention on the Rights of the Child, New York, 20 November 1989
REASONS FOR DECISION
Member R West
10 September 2018
INTRODUCTION

On 13 May 2016 the Applicant’s Class BF Subclass C Transitional (Permanent) visa was subject to mandatory cancellation under s.501(3A)(b) of the Migration Act 1958 (the Act).
On 18 June 2018 a delegate of the Minister for Home Affairs decided not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s.501CA(4) of the Act.
Pursuant to s.500(1)(ba) of the Act, the Applicant sought a review of the delegate’s decision of 18 June 2018 by this Tribunal.
The Tribunal conducted a hearing of the application on 31 August and 3 September 2018. The Applicant was represented by Ms Georgina Costello of counsel, instructed by WLW Migration Lawyers. The Respondent was represented by Mr Ned Rogers, solicitor of the Australian Government Solicitor.
For the reasons that follow, I have decided to affirm the decision of the delegate.
BACKGROUND
The Applicant was born in Calabria, Italy on 24 October 1960. He migrated to Australia with his family when he was 12 years old, arriving in Melbourne on 8 January 1973. The Applicant has lived in Australia continuously since that time and has not returned to Italy. He has not obtained Australian citizenship and has remained in…

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

Case: [2018] AATA 3363
Decision Date: 10 September 2018

CaseChat Overview and Summary

This matter concerned an application for review of a mandatory visa cancellation decision made under section 501(3A)(b) of the Migration Act 1958 (Cth). The applicant, who had been a permanent resident of Australia since 1973, had his visa mandatorily cancelled following a conviction in the County Court of Victoria for trafficking heroin, cocaine, and amphetamines in commercial quantities, for which he received a sentence of imprisonment of 6 years and 3 months. The applicant conceded that he did not pass the character test as defined in section 501 of the Act.

The sole legal issue before the Tribunal was whether there was "another reason" why the mandatory cancellation of the applicant's visa should be revoked, pursuant to section 501CA(4)(b)(ii) of the Act. This required the Tribunal to consider the relevant Ministerial Direction No. 65, which outlines the considerations for exercising the discretion to revoke a mandatory cancellation. The primary considerations under the Direction included the protection of the Australian community from criminal or other serious conduct, the best interests of the child, and the expectations of the Australian community.

The Tribunal considered the applicant's extensive criminal history, which commenced in 1975 and included multiple drug trafficking offences, culminating in the serious conviction that triggered the mandatory cancellation. While acknowledging the applicant's ties to Australia, including his long residence and family, the Tribunal found that these factors were outweighed by the paramount consideration of protecting the Australian community. The Tribunal noted that the applicant's drug trafficking offences were of significant seriousness and demonstrated a disrespect for Australian law. Ultimately, the Tribunal was not satisfied that there was another reason why the cancellation should be revoked.

The Tribunal affirmed the decision under review, meaning the mandatory cancellation of the applicant's visa was upheld.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that follow, I have decided to affirm the decision of the delegate. BACKGROUND The Applicant was born in Calabria, Italy on 24 October 1960. He migrated to Australia with his family when he was 12 years old, arriving in Melbourne on 8 January 1973. The Applicant has lived in Australia continuously since that time and has not returned to Italy. He has not obtained Australian citizenship and has remained in Australia on a permanent resident visa. The Applicant grew up in the western suburbs of Melbourne. He left school at the end of Year 10. He worked at Toyota as a storeman and forklift driver for seven years. He worked at various jobs in cafes and a pizza restaurant and later for 17 years as a security officer/crowd controller. In the early 1990’s he purchased a café business and later operated a number of cafes, restaurants and pool halls. In 1988 he commenced a relationship with Ms Tamara Sims with whom he had three daughters. He remained with Ms Sims for around 10 years but eventually the relationship ended in 1998. Ms Sims was a heroin addict and the Applicant successfully applied to the Court for sole custody of his three daughters following the end of his relationship with Ms Sims. The Applicant also had another daughter from a different relationship in 1991. That daughter has been living with her mother, although with the support of the Applicant. In 1998 the Applicant commenced a relationship with Ms Dianne Galileos and together they raised the Applicant’s three daughters. In 2007 the Applicant and Ms Galileos had a daughter together, Alexia. In the period prior to 1990 the Applicant had a number of relatively minor criminal convictions for unrelated offences, including driving while disqualified, using threatening words in a public place, failing to answer bail and discharging a firearm in a public place. In the period after 1990 he had several further convictions for minor offences but his principal offending was drug-related. In July 1990 he was convicted of trafficking heroin and fined $700. He was charged with possession offences in 1990 but the charges were adjourned without conviction and he was placed on a good behaviour bond. He was convicted of trafficking heroin in 1992 and sentenced to 1 year and 9 months in prison with a minimum parole period of 12 months. He was convicted of possession of cannabis and failure to answer bail in 1997 and fined $4,000. He was again convicted of possession of cannabis in 2001. In April 2002 he was convicted of trafficking amphetamines and sentenced to 2 years and 6 months in prison, with 2 years of the sentence suspended for 3 years. He was again convicted of possession of cannabis in 2005 and fined $1,000. On 15 December 2011 the Applicant was convicted in the County Court of Victoria on three counts of trafficking heroin, cocaine and amphetamines in commercial quantities from January to July 2009. He was sentenced to a term of imprisonment of 6 years and 3 months with a minimum parole period of 4 years and 6 months[1]. As a result of this conviction, the Applicant’s Class BF Subclass C Transitional (Permanent) visa was subject to mandatory cancellation under s.501(3A)(b) of the Act. At the completion of his sentence the Applicant was taken into immigration detention.[1] A complete record of the Applicant’s criminal history is in evidence at G34-35.EVIDENCE

Evidence

Evidence Before The Court

On 15 December 2011 the Applicant was convicted in the County Court of Victoria on three counts of trafficking heroin, cocaine and amphetamines in commercial quantities from January to July 2009. He was sentenced to a term of imprisonment of 6 years and 3 months with a minimum parole period of 4 years and 6 months[1]. As a result of this conviction, the Applicant’s Class BF Subclass C Transitional (Permanent) visa was subject to mandatory cancellation under s.501(3A)(b) of the Act. At the completion of his sentence the Applicant was taken into immigration detention.[1] A complete record of the Applicant’s criminal history is in evidence at G34-35.EVIDENCE In conducting the review I have had regard to: ·the documents produced to the Tribunal by the Respondent pursuant to s.500(6F) of the Act, being three bundles of documents sequentially numbered from 1 to 833 (the G Documents)[2]:·the oral evidence and written statements of the Applicant, Paula Marafioti (the Applicant’s sister), Diana Galileos (the Applicant’s partner), Sara Leone (the Applicant’s daughter) and John Leone (the Applicant’s brother); and·the expert reports and oral evidence of Angela Kay (psychologist) and Pamela Matthews (forensic psychologist).[2] In referring to the G Documents in this decision the relevant page numbers are cited, for example, G343 refers to the document at page 343 of the G Documents as filed.LEGISLATIVE FRAMEWORK Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:(i) the Applicant passes the character test as defined in s.501; or(ii) there is another reason why the cancellation should be revoked. The Applicant has conceded that he does not pass the character test in s.501. So the sole issue before the Tribunal in these proceedings is whether under s.501CA(4)(b)(ii) there is another reason why the mandatory cancellation should be revoked. The existence or otherwise of ‘another reason’ should be established on the balance of probabilities[3].[3] Re Gordon v Minister for Immigration and Border Protection [2018] AATA 39 at [57]. Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the directions[4]. [4] Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591. Direction 65 The relevant direction under s.499 of the Act, which applies to the revocation of mandatory visa cancellation decisions, is Ministerial Direction No. 65 (the Direction). The relevant part of Direction 65 is Part C, which identifies the considerations relevant to determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa.General Guidance The Preamble to Direction 65 sets out objectives and general guidance for the decision-maker and relevantly provides as follows:6.1 Objectives(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.(2)…(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against the law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. When the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case. (4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499. 6.2 General Guidance(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once the decision-maker is satisfied that a person does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.(3) The principles provide a framework within which decision-makers should approach their task of deciding … whether to revoke a mandatory cancellation under section 501CA ...

Decision

Reasons for decision

I am not satisfied that there is another reason why cancellation should be revoked as contemplated by s.501CA(4)(b)(ii).DECISION The Tribunal affirms the decision under review.

Ratio Decidendi

Legal Principle Established

Paragraph 14(1) of Part C of the Direction requires that other considerations be taken into account, where relevant, including (but not limited to): (a) international non-refoulement obligations; (b) strength, nature and duration of ties;(c) impact on Australian business interests; (d) impact on victims;(e) extent of impediments if removed.Protection of the Australian community from criminal or other serious conduct Paragraph 13.1(1) of Part C of the Direction provides that: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. In doing so a decision-maker is required by paragraph 13.1(2) to consider the seriousness of the person’s conduct to date and the risk to the Australian community should the person commit further offences or engage in other serious conduct.Nature and seriousness of the person’s conduct to date The Applicant’s police records were in evidence as part of the G Documents, and included records produced on summons from Victoria Police on 25 July 2018[5]. The Applicant objected to the admissibility of those records in so far as they referred to a matter listed in the County Court at Melbourne on 23 August 1984 which was subject to a nolle prosequi direction. The Respondent did not oppose the objection and did not seek to refer to that part of the record. I upheld the objection and that part of the record was not accepted into evidence. I have not had regard to it.[5] G646-658. The police records[6] show that the Applicant has a criminal record commencing in 1975. Of particular concern to the Tribunal are the multiple offences related to the possession and trafficking of drugs. The Applicant’s other offences include traffic violations (including a period of imprisonment for 3 months in 1987), discharge of a firearm, failing to answer bail, using threatening words in a public place, possession and use of gaming machines, possession of a weapon and failing to keep a register. I do not disregard these offences. Cumulatively, they evidence a lifestyle punctuated by various breaches of the law and suggest a general disrespect for the Australian community on the Applicant’s part. However, in assessing the primary consideration of protecting the Australian community from criminal and other serious conduct, I regard the Applicant’s involvement in drug trafficking as being of paramount importance.[6] G34-35. In assessing the nature and seriousness of the Applicant’s conduct I have had regard to the matters set out in paragraph 13.1.1 of the Direction. This paragraph gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person's criminal conduct. Of those matters the most relevant to the Applicant’s application are those in paragraphs (c), (d), (e) and (g). Paragraph (c) - the sentence imposed by the court for a crime or crimes