MNLR and Minister for Home Affairs (Migration)

Case [2019] AATA 61

MNLR and Minister for Home Affairs (Migration) [2019] AATA 61 (25 January 2019)

Division:GENERAL DIVISION

File Number:           2018/6577

Re:MNLR  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:25 January 2019

Place:Brisbane

The decision under review is affirmed.

.............................[sgd]...........................................

Senior Member Theodore Tavoularis

CATCHWORDS

MIGRATION – non-revocation of mandatory cancellation of Global Special Humanitarian visa (class XB sub-class 202) – expedited matter – where visa was cancelled under s 501(3A) – applicant does not pass character test – 12 month imprisonment – whether discretion in s 501CA to revoke mandatory cancellation should be exercised – considerations in Direction No 65 – consideration in Direction No 75 – applicant committed serious sexual offence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

Ali v Minister for Immigration and Border Protection [2018] FCA 650

Allan and Minister for Immigration and Border Protection [2016] AATA 1077

BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 2 ALD 60

ETWK and Minister for Immigration and Border Protection [2017] AATA 228

Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166; (2016) 153 ALD 337

Greene v Assistant Minister for Home Affairs [2018] FCA 919

Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66; 250 FCR 548

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Turay v Assistant Minister for Home Affairs [2018] FCA 1487

Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No 65

Direction No 75

REASONS FOR DECISION

Senior Member Theodore Tavoularis

25 January 2019

BACKGROUND

  1. MNLR (“the Applicant”) arrived in Australia in May 2011 on a refugee (class XB, subclass 202) Global Special Humanitarian visa.[1] In November 2016, his visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the grounds that he had been sentenced to a term of imprisonment of more than 12 months and was serving a full-time term of imprisonment.[2] The Applicant subsequently applied for this cancellation to be revoked in December 2016. In October 2018, a delegate of the Minister for Home Affairs (“the Respondent”) refused to revoke the cancellation of the Applicant’s visa.[3] On 12 November 2018, the Applicant applied to this Tribunal to reconsider this decision.

    [1] Exhibit 8, G-Documents,G11, page 88.

    [2] Ibid, G3, page 26.

    [3] Ibid. G4, page 29.

    ISSUES

  2. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

    (4) The Minister may revoke the original decision if:

    (a)the person makes representations in accordance with the…

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Details
AGLC
MNLR and Minister for Home Affairs (Migration) [2019] AATA 61
Case
[2019] AATA 61
Decision Date

CaseChat Overview and Summary

The applicant, MNLR, sought to have the mandatory cancellation of his Global Special Humanitarian visa revoked. The visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) because the applicant did not pass the character test, having been sentenced to 12 months imprisonment. The matter was heard by Theodore Tavoularis SM in the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the discretion conferred by section 501CA of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the applicant's visa should be exercised. This required the Tribunal to consider the relevant Ministerial Directions, specifically Direction No 65 and Direction No 75, which outline the factors to be taken into account when making such a decision, with a particular focus on the protection of the Australian community from criminal or other serious conduct.

The Tribunal's reasoning centred on the serious nature of the applicant's offending conduct, which involved a sexual offence. Crucially, the Tribunal found that the applicant demonstrated a significant lack of insight into his offending. This was evidenced by his inconsistent statements regarding his culpability, including his assertion to an expert that he was convicted for something he never did and that the alleged victim consented, despite a jury finding him guilty and his appeals being unsuccessful. The Tribunal considered that violent and sexual crimes are viewed very seriously, and the applicant's apparent failure to comprehend the cultural differences relevant to interpersonal relationships with women, coupled with the gravity of his conviction, weighed heavily against the exercise of discretion.

Consequently, the Tribunal concluded that it could not exercise the discretion to revoke the cancellation of the applicant's visa. The decision under review, which affirmed the mandatory cancellation, was therefore affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Given that response, the Applicant was taken to specific portions of Ms Fernandes’ report:(a)Ms Fernandes noted that “[the Applicant] informed me that he could speak and understand English.”[31] This observation, to my mind, casts doubt upon the Applicant’s earlier but consistently maintained evidence about not understanding a number of things germane to what others have said or written about his conduct. (b)Ms Fernandes noted “[the Applicant] reported that about a year later in 2014, he received a call from the NSW Police and both his cousin and he were charged with sexual assault. Following a trial [the Applicant] said: ‘In 2015, I was convicted for something I never did. The jury found me guilty. She had no bruises. There was no evidence.’”[32] (c)Ms Fernandes noted “[the Applicant] claims that he is innocent as the alleged victim consented to having sex with him, and believes he was convicted even though there was insufficient evidence to support the charges against him.”[33][my underlining][31] Exhibit 5, Psychological Assessment Report of the Applicant by Ms P Fernandes, clinical psychologist, page 6, item 3.1.[32] Ibid, page 9, item 3.3.[33] Ibid, page 13, item 4.0. Ms Fernandes’ observations in the immediately preceding sub-paragraphs (b) and (c) are particularly concerning. The Applicant now purports to accept responsibility for his criminal conduct, yet barely two weeks before this hearing, the Applicant is obviously denying any responsibility or culpability for the criminality of his conduct. This is, to my mind, clearly demonstrative of the reality that this Applicant has minimal insight into his offending. He was convicted by judge and jury at first instance. He was unsuccessful in an appeal to the NSW Court of Criminal Appeal. An application for special leave to the High Court has either been heard and determined unsuccessfully for him, or is pending. For him to now say that he was “…convicted for something [he] never did” and that there was “insufficient evidence to support the charges against him” is both surprising and astonishing. The Applicant’s representative sought to ameliorate this seriously concerning aspect of the Applicant’s evidence by re-asking him about whether he took responsibility for his conduct. His response was quite telling and, to my mind, even more damaging. He said that he thought the episode between the victim, himself and his co-offender was “consensual”. He said that the victim “invited him to the bed and that everyone was happy.” He said that with regard to young females such as his victim, they are “from school years…teaches them to call triple zero if anything happened.” I find this evidence both appalling and very damaging for the Applicant. In matters like this, decision makers often speak of an Applicant having or not having insight into what they have done. The more critical aspect of insight for the purposes of the Applicant involves him understanding the very critical cultural differences that exist with specific reference to the treatment of women and, more particularly, interpersonal relationships with women. Having regard to (1) the totality of the Applicant’s evidence, (2) the trajectory of his criminal matter after his conviction at first instance before judge and jury, and (3) what he has said to independent experts, I am not at all certain that the Applicant’s insight extends to an adequate comprehension of the cultural differences to which I have referred.

Decision

Reasons for decision

Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.CONCLUSION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

I will now turn to addressing these considerations.Primary Consideration A The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision makers should also give consideration to:(a)the nature and seriousness of the non-citizen’s conduct to date; and(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. In making these assessments, it is first necessary to summarise the Applicant’s criminal history. The National Police Certificate[13] discloses the following offences (and resulting sentencing outcomes).[13] Exhibit 8, G-Documents, G7, page 49. The Respondent contended that the Applicant’s offending conduct are of a very serious nature.[14] I am inclined to agree. The factual circumstances comprising the Applicant’s offending and eventual conviction is clearly of a serious nature involving a direct and deliberate act of interference with, and subjugation of, the personal rights of the victim of his offending. Of equal concern and seriousness is the Applicant’s apparent lack of insight into his offending, as can be seen by his repeated challenges of his conviction through other fora over and above him being found guilty by a jury of his peers in October 2015. [14] Exhibit 7, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 6, [33]. As has been noted in the material, the Applicant sought to appeal his conviction. A majority of the New South Wales Court of Criminal Appeal dismissed his appeal on 29 June, 2018.[15] As was also noted by the Delegate, “On 12 July 2018, [the Applicant’s] agent advised that as one [appeal] Judge dissented, [the Applicant] is seeking to apply for special leave to the High Court of Australia…”[16][15] ibid, page 2, [10].[16] Exhibit 8, G Documents, G5, page 31, paragraph [8]. The Applicant has not sought to deny the seriousness of his offending. The Applicant concedes that the “…offence of aggravated sexual assault in company is serious. That any sexual assault is a significant invasion of the privacy, dignity of the victim.”[17] [17] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), page 3, paragraph [3]. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;…c) The sentence imposed by the courts for a crime or crimes;… Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a sexual nature (which must surely include aggravated sexual assault) are to be viewed very seriously.