Mahu and Minister for Immigration and Border Protection (Migration) [2018] AATA 161 (2 February 2018)
Division:GENERAL DIVISION
File Number: 2017/6856
Re:Ramon Howard John Mahu
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President S Boyle
Date:2 February 2018
Place:Perth
The Tribunal sets aside the decision under review and substitutes the decision that the cancellation of the Applicant’s visa pursuant to section 501(3A) of the Migration Act 1958(Cth) be revoked.
....[sgd]................................................................
Deputy President S Boyle
Catchwords
MIGRATION – decision to revoke mandatory cancellation – where applicant is New Zealand citizen – where applicant has substantial criminal record – primary considerations weigh in favour of revoking cancellation – risk of reoffending – bests interests of minor children – expectations of the Australian community – other considerations – decision under review is set aside and substituted
Legislation
Acts Interpretation Act 1901 (Cth) – s 36(2)
Migration Act 1958 (Cth) – s 499 – s 500 - s 500(6B) – s 501(6) – s 501(7) - s501CA – s 501CA(3) – s 501(3A) – s 501CA(4)
Cases
Do v Minister for Immigration and Border Protection [2016] AATA 390
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
KDSP v Minister for Immigration and Border Protection [2017] AATA 2169
Labi v Minister for Immigration and Border Protection [2016] AATA 316
Rabino v Minister for Immigration and Border Protection [2016] AATA 999
Re Sharam v Minister for Immigration and Border Protection [2015] AATA 608
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583Waits v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Secondary Materials
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – paragraphs 6.1, 6.2, 6.3, 7, 8, 13, 13.1, 13.2, 13.3, 14, 14.2 and 14.5
REASONS FOR DECISION
Depty President S Boyle
2 February 2018
THE APPLICATION
This is an application for the review of a decision of the delegate of the Respondent (the Minister) made under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) on 30 October 2017 not to revoke the cancellation of the Applicant’s visa.
The application is made under s 500(1)(ba) of the Act.
The Applicant lodged an application for review of the delegate’s decision with the Tribunal on Monday 20 November 2017 (G1). Section 500(6B) of the Act requires applications for review of such decisions to be lodged within 9 days after the day on which the applicant was notified of the decision.
The Applicant was notified of the decision on 10 November 2017 (G42). The ninth day after that date was Sunday 19 November 2017. Pursuant to s 36(2) of the Acts Interpretation Act 1901 (Cth), the Applicant was entitled to lodge his application for review with the Tribunal on the next business day, being Monday 20 November 2017.
The Tribunal therefore finds that it has jurisdiction to review the delegate’s decision.
The application…
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- AGLC
- Mahu and Minister for Immigration and Border Protection (Migration) [2018] AATA 161
- Case
- [2018] AATA 161
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the delegate had erred in their assessment of the primary considerations under Part C of Direction 65 when determining whether to revoke the mandatory cancellation of the applicant's visa. Specifically, the court was required to consider the weight to be given to the protection of the Australian community from criminal conduct, the best interests of minor children in Australia, and the expectations of the Australian community, as well as other relevant considerations.
The court's reasoning focused on the application of Direction 65, particularly paragraphs 13 and 14. It examined the nature and seriousness of the applicant's criminal conduct, including assaults and possession of methylamphetamine with intent to sell or supply, noting the sentences imposed and the cumulative effect of his offending. The court also considered the risk of reoffending and the best interests of the applicant's minor children. Ultimately, the court found that, having regard to all the primary and other relevant considerations, the correct and preferable decision was to revoke the cancellation of the applicant's visa.
The decision under review was set aside and substituted with a decision that the cancellation of the applicant's visa pursuant to section 501(3A) of the *Migration Act 1958* (Cth) be revoked.
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
Ratio Decidendi
Legal Principle Established
Part C of Direction 65 (paragraphs 13 and 14) sets out considerations that are relevant when determining whether to exercise the discretion in s 501CA(4) of the Act.PRIMARY CONSIDERATIONS Pursuant to paragraph 13(2) of Direction 65, the following are “primary considerations” that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant’s visa:i.Protection of the Australian community from criminal or other serious conduct; ii.The best interests of minor children in Australia; andiii.Expectations of the Australian community. (i) Protection of the Australian Community Paragraph 13.1(1) of Direction 65 provides that decision-makers considering the protection of the Australian community should have regard to the principle in paragraph 6.2(1) (set out above). Paragraph 13.1(2) then identifies two other factors to which consideration should also be given:(a)The nature and seriousness of the person’s conduct to date; and (b)The risk to the Australian community should the person commit further offences or engage in other serious conduct. [Emphasis added](a)Nature and seriousness of the conduct Paragraph 13.1.1(1) of Direction 65 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. Relevantly, these include:13.1.1 The nature and seriousness of the conduct(1)In considering the nature and seriousness of the person's criminal offending or other conduct to date, decision-makers must have regard to factors including:(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed 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 court 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 repeated offending;…Possession of methylamphetamine with intent to sell or supply The Minister submits (Exhibit R2, paragraphs 23-26) that the Applicant’s conduct should be viewed as serious for the following reasons:23. …Taking into consideration the factors relevant to the present application, the applicant’s offences are serious as they involved violence, including two assaults (paragraph 13.1.1(1)(a)) (G16/51). Moreover, the escaping lawful custody offence shows a disregard for government representatives or officials in the performance of their duties (paragraph 13.1.1(1)(b)), and is a serious offence.24. The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him (paragraph 13.1.1(1)(c)). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and accordingly, any such sentence must be viewed as a reflection of the objective seriousness of the offence involved. In the present case, the applicant was sentenced to various terms of imprisonment ranging from 2 months to 15 months. In relation to the offence of possession of a prohibited drug with intent to sell or supply (methylamphetamine), the sentencing remarks of 10 February 2017 noted that the amount of methylamphetamine that the applicant was caught with wasn’t insignificant and that people caught with such amounts aren’t fined, “they go to gaol” (G19/67). The mandated imprisonment for such behaviour reinforces the serious nature of the applicant’s offending.25. Furthermore, in relation to the offences of unlawfully assault and thereby did bodily harm with circumstances of aggravation, the sentencing magistrate reiterated that, “these types of offences [are] extremely serious. Assaults within families and upon partners cause untold damage within the community and within those relationships. And partners in relationships need to be protected from those closest to them” (G18/57).26. Paragraph 13.1.1(1)(e) of Direction 65 requires the Tribunal to consider the cumulative effect of repeated offending. When looked at cumulatively, the applicant’s offences are serious and the most recent violent offences of unlawfully assault and thereby did bodily harm with circumstances of aggravation indicates a trend of increasing seriousness particularly in circumstances where the offences were committed whilst the applicant was on bail (paragraph 13.1.1(1)(f)).