Marson (Hanley) and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2114 (27 May 2024)
Division:GENERAL DIVISION
File Number: 2024/1514
Re:Mark Marson (Hanley)
APPLICANT
Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Member D. Cosgrave
Date:27 May 2024
Date of written reasons: 27 June 2024
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 4 March 2024 not to revoke the cancellation of Mr Marson’s visa.
.............[SGD].............
Member D. Cosgrave
Catchwords
MIGRATION – mandatory visa cancellation – failure to pass character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – Class BS Subclass 801 Partner visa – United Kingdom (UK) Citizen – Tribunal finding risk of reoffending unacceptable – where Applicant has limited ties in Australia – Tribunal finding factors in favour of revocation outweighed by those against revocation – Tribunal finding there is not another reason to revoke the mandatory cancellation decision – decision under review affirmed
[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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AGLC
Marson (Hanley) and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2114
Case
[2024] AATA 2114
Decision Date
CaseChat Overview and Summary
This matter concerned an application for review by Mr Marson, a United Kingdom citizen, of the Minister's decision not to revoke the mandatory cancellation of his visa. Mr Marson's visa was cancelled under section 501(3A) of the *Migration Act 1958* (Cth) due to his substantial criminal record, stemming from convictions for domestic violence and assaulting a police officer, for which he received concurrent sentences of 12 months' imprisonment. The Administrative Appeals Tribunal was tasked with determining whether there was "another reason" why the mandatory cancellation should be revoked, as required by section 501CA(4)(b)(ii) of the Act.
The Tribunal was required to consider whether Mr Marson passed the character test and, if not, whether there was another reason to revoke the visa cancellation. In assessing whether another reason existed, the Tribunal was bound to comply with Ministerial Direction No. 99. This Direction outlines various considerations, including Australia's sovereign right to determine who remains in the country, the expectation that non-citizens will be law-abiding, and the community's expectation that those who engage in serious conduct will forfeit their privilege to remain. The Direction also specifies that a higher level of tolerance for criminal conduct may be afforded to non-citizens who have lived in Australia for most of their lives or from a very young age, with tolerance increasing with the length of time spent in the community.
The Tribunal found that Mr Marson did not pass the character test. In applying Direction No. 99, the Tribunal weighed the factors presented by Mr Marson against the seriousness of his offending conduct. The Tribunal noted that Mr Marson had limited ties to Australia and that his offending, particularly the serious assault on a police officer and contraventions of domestic violence orders, weighed heavily against revocation. Despite considering Mr Marson's representations, the Tribunal concluded that the factors in favour of revocation were outweighed by those against it, and therefore, there was not another reason to revoke the mandatory cancellation decision.
Consequently, the Tribunal affirmed the decision not to revoke the mandatory visa cancellation.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.FACTS Mr Marson is a 48-year-old[5] citizen of the United Kingdom (UK) who first arrived in Australia on 24 April 2015.[6][5] Exhibit R1: G2, page 25.[6] Exhibit R1: G5, page 232. On 7 September 2023, Mr Marson's Visa was cancelled under s501(3A) of the Migration Act 1958 (Cth) (the Act) [7] because he did not pass the character test given his ‘substantial criminal record’.[8][7] Exhibit R1: G2, page 7.[8] As defined in ss 501(6)(a) and 501(7)(c) of the Act. Section 501(7)(c) of the Act provides that for the purposes of the character test a person has a 'substantial criminal record' if the person has been sentenced to a term of imprisonment of 12 months or more. On 20 April 2023, Mr Marson was convicted of four offences (the Index Offences) and sentenced to 12 months’ imprisonment for each offence, the sentences running concurrently.[9][9] Exhibit R1: G2, page 26.OFFENDING HISTORY Mr Marson’s Index Offences are:·Contravention Of Domestic Violence Order (On 5 December 2022)·Obstruct Police Officer (On 6 December 2022)·Serious Assault Police Officer Whilst Pretending / Is Armed With A Weapon (On 6 December 2022)·Contravention Of Domestic Violence Order (On 6 December 2022).[10][10] Exhibit R1: G2, page 26.LEGISLATIVE FRAMEWORK Section 501(3A) of the Migration Act 1958 (Cth) (the Act) relevantly provides that the Minister must cancel a visa that has been granted to a person if:·the Minister 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); and ·the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. Under s 501(6)(a) of the Act, a person will not pass the character test if they have ‘a substantial criminal record’. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have ‘been sentenced to a term of imprisonment of 12 months or more’. On 20 April 2023, Mr Marson was sentenced to imprisonment for four concurrent terms of 12 months. On 4 October 2023 Mr Marson made written representations to the Respondent requesting revocation of the cancellation of his visa (revocation request). Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which provides:The Minister may revoke the original decision if:(a)the person makes representations in accordance with the invitation; and (b)the Minister is satisfied:(i) that the person passes the character test (as defined by section 501); or(ii) that there is another reason why the original decision should be revoked. The Respondent decided not to revoke the cancellation (the reviewable decision). Mr Marson lodged an application in the Tribunal for review of that decision. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(BA) of the Act.
Evidence
Evidence Before The Court
The following is an overview of the evidence tendered or adduced before the Tribunal. The evidence referred to below includes documentary evidence collated for the purposes of section 501G of the Act, documents tendered by the Respondent and Mr Marson and testimony given by Mr Marson, his former wife, M, and his mother, Mrs Dodson.Documentary Evidence The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A’. The Tribunal’s assessment of the witnesses As noted above, the Tribunal heard oral testimony from Mr Marson, his former wife, M, and his mother, Mrs Dodson.Mrs Dodson Mrs Dodson gave responsive, careful, and considered evidence. The absence of an express and unambiguous declaration of support on her part relative to M’s allegations about the events on 22 June 2022 in the UK is consequently of some weight.Mr Marson and M The Tribunal finds it necessary to assess the credit and reliability of both Mr Marson and M circumspectly. Their respective testimony showed that they have different views of events. This situation is aggravated by the absence at many points of either contemporaneous documentary evidence or testimony from more impartial witnesses. As to reliability, the Tribunal must not only take account of the well-known general features of human memory, but also the mental state of both Mr Marson and M in what were likely times of great stress for both of them. Before stating its finding on the credibility and reliability of Mr Marson and M as witnesses, the Tribunal notes the following examples of oral testimony that it considered in particular regarding each of Mr Marson and M, as well as their separate views on events they shared, before making its findings. Mr Marson testifying about his 27 March 2016 trespass charge:[30][30] Exhibit R6: SM1, pages 7 – 8.·In examination-in-chief:‘Tribunal: Could you tell the tribunal the background to the 2016 trespassing offence in Brisbane?Mr Marson: Yes, I had been walking around Brisbane – I think there’s a pool near there that I used to go to. Witness M used to go to it as well. It’s a 50-metre pool. And there was a big, abandoned house, which I was quite baffled by, because it had been abandoned for a long time. So I was just – I was hanging out there, and I don’t know, just trying to figure out what was happening, and the police turned up. Yes. Tribunal: The police alleged that you told them that you knew the owner or that you were there to do a job for the owner?Mr Marson: Well, I have spoken to some guy about it, but that wasn’t I think – that came to nothing. Tribunal: Right. And you had the key to the padlock on the back door?Mr Marson: Yes. I mean, it was completely abandoned. It was baffling. And deteriorating. Yes. They took that off me without asking.’[31][31] Transcript, page 12, line 42 – page13, line 10.·In cross-examination:‘Mr Zhang: Were you actually asked to fix things at the house?Mr Marson: The guy in question, I can’t remember what I said to him but I don’t think he had – in hindsight, I don’t think he had anything to do with the owner. That’s why they brought the trespass charge. But they had to drop it. They had to …Mr Zhang: So were you asked by anyone to fix up things inside the house?Mr Marson: I’m assuming it was by the guy I spoke to, but I can’t remember what exactly we said. It was a long time ago. But I don’t think he had any connection with the owner, that’s why…Mr Zhang: So you’re suggesting that someone who had no connection with the owner asked you to go inside and fix things inside the house. Is that what you’re saying?Mr Marson: I think that’s what happened. If that’s what they’re saying – like I said, it was a long time ago, I don’t remember what we said exactly to each other, yes. Yes, but they had to drop the charge; they were going to lose. Mr Zhang: You had a key to the padlock?Mr Marson: Yes. Mr Zhang: How did you acquire the key to the padlock?Mr Marson: I screwed the padlock onto the door. Mr Zhang: You screwed the padlock onto the door?Mr Marson: Yes. It was abandoned. It was derelict. I mean, at the hasp – it’s called a hasp. That’s the thing that I …Tribunal: It’s the metal device that goes over a little metal loop and you - - -?Mr Marson: That’s it. … Tribunal: put the padlock through the loop once the hasp is shut, is that correct?Mr Marson: Correct, yes. They – yes. like I said, they had to drop that charge; there was a fundamental flaw in their case. They don’t – they wouldn’t have said what that was. They wouldn’t explain that. Mr Zhang: So initially you said you were walking around in Brisbane, you were trying to figure out what was happening in this house. Did you also just have a lock with you at the time that you were able to fix onto the property whilst you were just walking around?Mr Marson: No. Mr Zhang: No, okay. So were you actually just walking around or did you have some purpose in mind that you were coming to this house to fix a lock onto the house?Mr Marson: After the – after I met that guy, you know, it was a very brief conversation but it was – it happened after that. Mr Zhang: So were you just walking around casually with a lock and some tools to fix the lock?Mr Marson: Are you asking if I took possession of the property? Mr Zhang: No, no, no. The question was were you just walking around with the lock?Mr Marson: No. I don’t think it all happened on the same day, yes. I don’t know why I gave that impression. But they don’t say why they dropped the charges, that’s the thing, yes. They were going to lose. Mr Zhang: Was your intention to just take possession of the property, is that why you affixed the lock?Mr Marson: It was an investigation. You know, it was completely baffling. This house was very derelict, yes. That’s the best word for it, an investigation.’[32][32] Transcript, page 56, line 24 – page 57, line 30.
Decision
Reasons for decision
The Respondent decided not to revoke the cancellation (the reviewable decision). Mr Marson lodged an application in the Tribunal for review of that decision. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(BA) of the Act. The Tribunal is satisfied that Mr Marson made the representations required by s 501CA(4)(a) of the Act and that he does not pass the character test. Thus, the sole issue is whether there is another reason to revoke the mandatory cancellation of Mr Marson’s visa. If there is, the Tribunal should set aside the original decision.[11] [11] Minister for Home Affairs v Buadromo [2018] FCAFC 151. In applying s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) applies. For the purposes of deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several guiding principles. Those principles, as far as they relate to this matter, follow:1Australia 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.2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) [sic] (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Ratio Decidendi
Legal Principle Established
Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.MATTERS FOR CONSIDERATION Mr Marson’s Visa was cancelled on the basis that he had failed the character test once the delegate considered and then applied section 501(6)(a). The first issue for the Tribunal to consider is whether Mr Marson fails to pass the character test. If Mr Marson fails the character test, then the second issue for the Tribunal to consider under section 501CA(4)(b)(ii) of the Act is whether the Tribunal is satisfied of there being another reason to revoke the cancellation decision.[12] The Tribunal ‘stands in the shoes of the original decision-maker’ but with regard for the situation as at the time of its consideration.[13] [12] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).[13] Nathanson v Minister for Home Affairs [2022] HCA 26 (‘Nathanson’); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ). To assist its assessment, the Tribunal has created the following chronology of events, including Mr Marson’s convictions, visa cancellations and rehabilitation efforts: When considering whether there is another reason, the Tribunal must comply with the Direction.[25] In doing so, the Tribunal has regard to the Federal Court’s identification of principles in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [27], approving the reasoning in Viane.[26][25] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, [38].[26] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).THE DIRECTION The Direction, as referenced above, contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[27] [27] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45]. The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on each matter’s specific circumstances.[28] The weighing process is substantively left to the individual decision maker exercising the relevant power under section 501 of the Act.[29][28] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.[29] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].EVIDENCE