Miller and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Case [2024] ART 19

Miller and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 19 (17 October 2024)

Applicant/s:  Joseph Miller

Respondent:  Minister for Immigration, Citizenship and Multicultural Affairs

Tribunal Number:                2021/1720

Tribunal:Deputy President K Millar

Place:Adelaide

Date:17 October 2024

Decision:The Tribunal affirms the decision under review.

CATCHWORDS

MIGRATION – mandatory cancellation of applicant’s visa – applicant does not satisfy character test – whether another reason for the cancellation decision to be revoked – Direction no. 110 – lengthy history of family violence – cumulative effect of repeat offending – conduct whilst in immigration detention – high likelihood of reoffending – applicant has strong and extensive ties to his immediate family and lesser ties to the community – best interests of the children – decision under review affirmed 

LEGISLATION

Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)

CASES
Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd [2015] HCA 7
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13

SECONDARY MATERIALS

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)

Statement of Reasons

  1. Mr Miller is a citizen of Fiji who first arrived in Australia in 1991 when he was 10 years old, and most of his family live in Australia.

  2. Mr Miller was granted a Resident Return (Subclass 155) visa in 1994. This visa was cancelled on 4 March 2020 under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) because he was convicted of offences that resulted in a sentence to a term of imprisonment of 12 months. Mr Miller sought revocation of the decision to cancel his visa, and on 15 March 2021, a delegate of the Minister for Immigration refused to revoke the cancellation. Mr Miller applied for a review of the decision not to revoke the cancellation of his visa.

  3. Mr Miller has had a lengthy path in seeking review of the decision not to revoke the cancellation of his visa.  This Tribunal (differently constituted) affirmed the decision not to revoke the cancellation.  This decision was quashed by the Federal Court, which found the Tribunal did not have jurisdiction to review the decision because Mr Miller’s application for review did not include a reason he applied for review.  This decision was affirmed by the Full Federal Court.  The effect of this decision was that Mr Miller’s visa remained cancelled and he could not seek review of the decision not to revoke the cancellation of his visa. 

  4. Following a decision of the Full Federal Court[1] that a single aggregate sentence imposed for more than one offence, such as the sentence imposed on Mr Miller, did not trigger the automatic cancellation provisions, Mr Miller’s visa was reinstated and he was released from immigration detention on 24 December 2022. 

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Details
AGLC
Miller and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 19
Case
[2024] ART 19
Decision Date

CaseChat Overview and Summary

In the case of Miller and Minister for Immigration, Citizenship and Multicultural Affairs, the Federal Court was called upon to determine whether the visa of Mr Miller should be cancelled due to his failure to meet the character test and whether there were other reasons for the cancellation decision to be revoked. Mr Miller, an Australian resident with a lengthy history of family violence and criminal activity, was facing visa cancellation under the Migration Act. The primary considerations for this decision included the protection of the Australian community, the nature and seriousness of Mr Miller’s conduct, the strength of his ties to Australia, the best interests of minor children affected by the decision, and the expectations of the Australian community.

The court examined whether Mr Miller’s past and present conduct constituted family violence and the risk he posed to the Australian community if not deported. It also assessed the strength, nature, and duration of Mr Miller’s ties to Australia, considering his immediate family connections and his lesser ties to the broader community. Additionally, the court focused on the best interests of the minor children affected by the decision, weighing factors such as the nature of the relationship between Mr Miller and the children, the impact of his prior and potential future conduct on the children, and the views of the children themselves.

The court concluded that while Mr Miller had strong and extensive ties to his immediate family, his past conduct and the risk he posed to the Australian community were significant factors. The cumulative effect of his repeat offending and the high likelihood of reoffending weighed heavily against him. Furthermore, the court found that the best interests of the minor children in Australia were best served by the cancellation of Mr Miller’s visa. Consequently, the decision to cancel Mr Miller’s visa was affirmed, and no other reasons for revoking the cancellation decision were found.

Orders

Orders of the court

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Background

Background to the litigation

In reconsidering this matter, I must decide if Mr Miller passes the character test; and, if he does not, whether there is another reason the cancellation of his visa should be revoked. BACKGROUND Mr Miller is the eldest of seven children. His parents live in NSW, and his siblings are all in Australia. His mother’s siblings in Fiji are now deceased, and his father has three brothers and a sister who live in Fiji. He has numerous cousins in Fiji who are considerably younger than him. Mr Miller has a daughter from a relationship when he was 17 years old, however he had little contact with her while she was growing up. He estimates she is now 24 or 25 years old and has a son who is approximately one year old. He has not had any contact with her son but has seen photographs. Mr Miller was in a relationship with Ms X from early 2000, and they lived together in regional NSW. Ms X had a child from another relationship when they met, and there are three children of Mr Miller and Ms X’s relationship; Ms A, who is now 20 years old, Ms B who is who is 17 years old and Mstr C who is 13 years old. Mr Miller and Ms X separated in 2018. A parenting plan dated in 2019 allows Mr Miller to contact the children on their own telephone number and have contact with them at any time with two hours’ notice and on alternate Christmas and Easter. He undertakes not to contact Ms X other than for pick up or drop off arrangements or in an extreme emergency. He also undertakes not to consume alcohol within 12 hours of having access to the children or in the presence of the children. Ms A has a child who is now approximately one year old. After this relationship broke down in 2018, Mr Miller lived with friends and then on his own for six months. He said that there was an attempt at reconciliation, and he moved back in with Ms X and the children for 3 - 4 months after which he again stayed with friends. Mr Miller was in a relationship with Miss Y for approximately two years, and lived with her for approximately six months before he went to prison. Miss Y has five children, and originally supported Mr Miller’s application to have his visa reinstated; supplying statements and items from her children in support of Mr Miller. This relationship ended in approximately 2021 and Mr Miller now has no contact with Miss Y or her children. On his release from immigration detention on 24 December 2022 Mr Miller lived with a friend in town N. He was re-detained on 1 April 2023, having been in the community for approximately 12 weeks. A relationship with Ms Z commenced after this time, however this ended 5 – 6 months ago, and he now describes Ms Z as a good friend. LEGISLATIVE FRAMEWORK Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if, among other things:(a)the person does not pass the character test because of a substantial criminal record; and (b)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 Territory.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Miller has strong and extensive ties to his immediate family and lesser ties to the community. The strength, nature and duration of the Mr Miller’s ties to Australia weigh moderately in favour of revoking of the decision to cancel his visa. Best interests of minor children in Australia affected by the decision Clause 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under cl 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 of the Act, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ. Clause 8.4(4) of the Direction goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors which include:[57]·the nature and duration of the relationship between the child and the non-citizen, noting less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;·the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;·the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;·whether there are other persons who already fulfil a parental role in relation to the child; ·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);·evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and·evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.[57] The Direction, cl 8.4(4)(a)-(h). Mr Miller has two minor children, Miss B and Mstr C and two minor grandchildren M and N. He has nieces and nephews who are minors in Australia. While he previously relied on the best interests of the minor children of Miss Y, he no longer has contact with them and acknowledges that their interests are not affected by this decision. I consider the interests of his two minor children and his grandchildren differ from each other and also differ from the interests of his nieces and nephews and I have considered his children and grandchildren separately.Mr Miller’s children

Ratio Decidendi

Legal Principle Established

Since his arrest he claims that he has not breached the AVO or any bail conditions and has tried to change and become a better man and father for his children and family. He said that he has not had a drink in eight months, and has been seeing a drug and alcohol counsellor and a doctor to get help for his mental health, and left behind friends he drank with regularly. He states that his dream for the future is to remain in Australia with his three children, six stepchildren, parents, siblings, aunts, uncles, nieces and nephews and to return to his job so he can provide for his children. He states he wants to show his children and the Australian Government that he is a good man with a good heart and a hard worker who has made some bad decisions and questionable actions during a bad time in his life.[7] [7] Ibid.THE PRIMARY CONSIDIERATIONS The Direction contains five primary considerations, which are:(1) protection of the Australian community from criminal or other serious conduct;(2) whether the conduct engaged in constituted family violence;(3) the strength, nature and duration of ties to Australia;(4) the best interests of minor children in Australia;(5) expectations of the Australian community.[8][8] The Direction, cl 8. I have considered each one in turn, keeping in mind the principles in cl 5.2 of the Direction.The protection of the Australian community The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.[9] [9] Ibid cl 8.1(1). The Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[10][10] Ibid. Decision-makers should consider 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 or engage in other serious conduct.[11][11] Ibid cl 8.1(2).Nature and seriousness of the conduct The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[12][12] Ibid cl 8.1.1(1)(a).) In this matter, both Mr Miller’s criminal offending and other conduct is relevant to this assessment. Criminal offending Mr Miller’s criminal record commences with convictions in 2000 for failure to appear and assault occasioning actual bodily harm. In 1999, when he as 18 years old, Mr Miller was charged with these offences after he punched a bus driver. In 2001, he was charged with offences relating to an attempt to steal a person’s bike and assault and was convicted of demanding property with menaces with intent to steal and assault in 2002.