Macdonald (Migration) - [2022] AATA 4772

Macdonald (Migration) [2022] AATA 4772 (21 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Chi-Ang Justis Makesha Macdonald
CASE NUMBER:  2204374
HOME AFFAIRS REFERENCE(S):          BCC2018/4561635
MEMBER:Kira Raif
DATE:21 October 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 21 October 2022 at 1:41pm
CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – scope of Tribunal’s jurisdiction – non-citizen – ‘aliens’ power – Aboriginal descent – ground for cancellation – risk to safety of Australian community or individual – criminal history – history of drug and alcohol abuse – risk of further offending – consideration of discretion – presence of family in Australia – degree of hardship – decision under review affirmed
LEGISLATION
Australian Constitution, s 51(xix)
Migration Act 1958 (Cth), s 116
CASES
Gong v MIBP [2016] FCCA 561

STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision dated 8 March 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of New Zealand, born in January 1985. He was granted the Special Category visa in October 2004. In January 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) as the delegate formed the view that there are grounds for cancelling his visa under s. 116(1)(e) of the Act. It appears the applicant did not respond to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 30 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother Ms Crawford and his father Mr McDonald, as well as Aboriginal elder Mr Noa. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Scope of Tribunal’s jurisdiction
In his written submission to the Tribunal the applicant states that he is of Aboriginal descent (the applicant provided multiple documents referring to his Aboriginal descent) and he claims to be outside the ‘aliens’ power in s. 51(xix) of the Constitution. The applicant submits that he intends to commence court proceedings to obtain the declaration but setting aside the cancellation of his visa would save him and the taxpayers the expense of court proceedings.
The Tribunal acknowledges the applicant’s ability to seek a declaration from the court, which may effectively lead to his release from detention, but Constitutional determinations are not within the ambit of powers of this Tribunal. Neither is a declaration of the applicant’s Aboriginality. The Tribunal’s jurisdiction under the Migration Act is in relation to non-citizens and whether or not the applicant is an alien falling within the ambit of s51(xix) of the Constitution is not…

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 Macdonald (Migration)

Details

AGLC: Macdonald (Migration) [2022] AATA 4772
Case: [2022] AATA 4772
Decision Date: 21 October 2022

CaseChat Overview and Summary

This matter concerned an appeal by the applicant, Mr Macdonald, against the decision of the Department of Home Affairs to cancel his Subclass 444 (Special Category) visa. The cancellation was based on the ground that the applicant’s presence in Australia may be or might be a risk to the safety of individuals or to the safety of the Australian community, pursuant to s 116(1)(e) of the Migration Act 1958 (Cth). The applicant, who had been living in Australia since 2004, had a history of drug and alcohol abuse and a criminal history, which the Department considered indicated a risk of further offending.

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(e) was established and, if so, whether the applicant's visa should be cancelled, considering the exercise of discretion. The applicant contended that his Aboriginal descent, his desire to learn more about his heritage, and the presence of his immediate family, including a minor daughter, in Australia constituted compelling reasons for him to remain. He also stated that Australia offered better opportunities than New Zealand.

The Tribunal accepted that the applicant was fulfilling the purpose of his stay and acknowledged his desire to remain in Australia to learn about his background and be with his family. However, it found that his Aboriginal descent and family connections, including his daughter, did not constitute compelling reasons for him to remain, particularly as he was an adult capable of independence and relationships could be maintained from overseas. The Tribunal also found that the claim of better opportunities in Australia was not sufficiently substantiated. Ultimately, the Tribunal placed the greatest weight on the circumstances giving rise to the ground for cancellation and concluded that the visa should be cancelled. The Tribunal affirmed the decision to cancel 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

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Decision

Reasons for decision

Having considered and weighed all the circumstances of this case, the Tribunal has decided to place greatest weight on the circumstances in which the ground for cancellation arises. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelleddecision The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.Kira Raif Senior Member

Ratio Decidendi

Legal Principle Established

The Tribunal finds that the applicant’s presence in Australia may be or might be a risk to the safety of individuals or to the safety of the Australian community. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(e) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.Consideration of discretion There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia The applicant states in his written submission to the Tribunal that he has been living in Australia since 2004 and came to Australia to form a life here and live here permanently. He told the Tribunal in oral evidence that Australia has more opportunities and is better than living in New Zealand. The Tribunal accepts that the applicant is fulfilling the purpose of his travel and stay in Australia. The applicant told the Tribunal that he needs to stay in Australia because he is Aboriginal and wants to learn more. The applicant states that his immediate family is in Australia although he has a sister living in New Zealand. The Tribunal accepts that evidence and accepts that the applicant’s preference is to remain in Australia, to learn more about his background and to remain with his immediate family. With respect to family connections, the Tribunal is mindful that the applicant is an adult and, in the Tribunal’s view, capable of being financially and otherwise independent from his family and living independently from his family. In the Tribunal’s view, the geographical distance between the applicant and his family and community in Australia need not result in the cessation of these links and relationships. The Tribunal is also of the view that the applicant is able to learn about his heritage irrespective of his place of residence. Nevertheless, the Tribunal acknowledges the applicant’s evidence about his connection to the community and the land in Australia and his desire to strengthen that connection. The Tribunal also acknowledges that the applicant’s minor daughter lives in Australia but for the reasons set out below, the Tribunal is of the view that, given the nature of the applicant’s interactions with the daughter, the relationship could continue even if the applicant lives overseas. In the circumstances of this case, the Tribunal is not satisfied that the presence of the applicant’s family in Australia, including his daughter, and his Aboriginal descent constitute compelling reasons for the applicant to remain in Australia. Neither does the Tribunal accept that claiming better opportunities in Australia than in New Zealand is a compelling reason for the applicant to remain in Australia, as the applicant has not satisfied the Tribunal that he would not have meaningful opportunities in New Zealand (whether these are the same, better or worse than in Australia). The extent of compliance with visa conditions