MXFR and Minister for Home Affairs (Migration) [2019] AATA 705 (5 April 2019)
Division:GENERAL DIVISION
File Number: 2019/0183
Re:MXFR
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:5 April 2019
Place:Melbourne
The Tribunal decides to:
(1)set aside the decision made by a delegate of the Minister on 9 January 2019 refusing under s 501CA(4) of the Migration Act 1958 to revoke the cancellation of MXFR’s Class BB, Subclass 155 Five Year Resident Return visa on 10 November 2016 under s 501(3A); and
(2)substitute a decision that the cancellation of MXFR’s Class BB, Subclass 155 Five Year Resident Return visa under s 501(3A) be revoked under s 501CA(4).
........[sgd]..........................................................
S A FORGIE
Deputy President
Catchwords
MIGRATION – application for revocation of mandatory cancellation of visa – where applicant fails the character test – where substantial criminal record under Migration Act 1958 – risk of reoffending – other reason why cancellation decision should be revoked – decision set aside.
Legislation
Administrative Appeals Tribunal Act 1975 ss 2A, 29, 33, 33(1)(a), 33(1)(b), 33(1)(c), 33A(1), 33A(2), 35, 36, 36B, 39(1), 39A and 43(1)
Migration Act 1958 ss 5J(1)(a), 197A, 499, 499(1), 499(2), 499(2A), 500, 500(6F), 500(6J), 501, 501(3A), 501(3A)(a)(i), 501(3A)(b), 501(6), 501(6)(a), 501(7), 501(7)(c), 501(12), 501CA, 501CA(1), 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii) and 501G(2)
Cases
Alexandra Private Geriatric Hospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; 141 ALR 618
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission and Others (2000) 203 CLR 194; 174 ALR 585
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 46 FLR 409; 2 ALD 60
Edwards v Police (1998) 71 SASR 493
Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 276; (2003) 135 FCR 306; 78 ALD 65; 203 ALR 320
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
General Medical Council v Spackman [1943] AC 627
Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318; (2001) 111 FCR 378
Goundar v Minister for Immigration and Border Protection [2016] FCA 1203
Jones v Hyde [1989] HCA 20; (1989) 85 ALR 23; 63 ALJR 349
Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875
Lokanc v Secretary, Department of Social Services [2016] FCA 1134
MacPherson v Beath (1975) 12 SASR 174
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
McPherson v Brown (1975) 12 SASR 184
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441; 42 ALR 209
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313; 62 ALR 673
Minister for Immigration and Multicultural Affairs v Daniele (1981) 61 FLR 354; 39 ALR 649
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- Case
- [2019] AATA 705
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether MXFR had established "other reasons" sufficient to warrant the revocation of the mandatory visa cancellation. This required the court to assess the weight to be given to various factors, particularly MXFR's ties to Australia and the potential impact of his removal on his family, in accordance with Direction No. 79. The court had to consider how long MXFR had resided in Australia, the strength and nature of his family and social links, and the effect of non-revocation on his immediate family members who were Australian citizens or permanent residents.
Deputy S A Forgie P reasoned that while MXFR's history of drug use and offending had diminished his ties to Australia, he had resumed contact with his partner, Ms P, and their children. The court found that MXFR's engagement with his children had been positive when he was present in their lives, and that his partner and sons had noticed a positive change in him due to coursework undertaken in prison. Furthermore, the court considered MXFR's long-standing friendship with Ms A, who provided evidence of MXFR's supportive role in her son's life during a difficult period. The court concluded that these factors, particularly the renewed family relationships and the positive impact on his children, constituted "other reasons" that justified the revocation of the visa cancellation.
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
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Ratio Decidendi
Legal Principle Established
Paragraph 14.2(1) of Direction No. 79 states:“… Reflecting the principles at 6.3, decision-makers must have regard to:a)How long the non-citizen has resided in Australia, including whether the non‑citizen arrived as a young child, noting that:i.less weight should be given where the non-citizen began offending soon after arriving in Australia; andii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).”B.1 Consideration MXFR’s ties with Australia date from 1990 when he came to Australia with two of his brothers and all three lived with their uncle and his wife. Initially, MXFR felt that it was a happy household. He was happy and attending school as were his brothers. The family unit fell apart after they moved from Perth to Melbourne. I do not know the reasons for that apart from MXFR’s understanding that his uncle’s wife did not want them. The unfortunate outcome of that is that he and his younger brother were left without a permanent home and effectively couch surfed while still attending school. MXFR’s history of drug use and offending have left him with only a small number of ties in Australia. His older brother lives in Australia but he has not had contact with him. He has resumed contact with his partner, Ms P, and with his children. The level of their communication has increased as the relationship between MXFR and Ms P has renewed in response to the insights that he has gained into himself through the course work he has undertaken in prison. Ms P and their two older sons have noticed the change in him and are anxious to resume and develop a much closer relationship than they have had in recent times. On the basis of the evidence of those sons, their mother and of a friend whom I will call Ms A, I find that the boys and their father enjoyed a much closer relationship when they were younger. When he was home, he was always engaged in family life, taking the children to school, cleaning and maintaining the yard. He would play with them and read to them. The other close contact that MXFR has in Australia is with Ms A. MXFR and Ms A first met through their siblings when they were much younger. They reconnected in the early 2000s when MXFR and Ms P had met and were in a relationship. The three of them would often spend time together and their children were close. They all took their children out to dinner, on outings and visiting family friends. Ms A gave evidence that she and her son lived with MXFR and Ms P and their children for about ten months when she was separated from her son’s father. She spoke about the care and attention that MXFR showed her son and helped him to deal with his anger about his parents’ separation. Ms A’s son was aged 9½ years when she separated from his father but MXFR’s support was particularly valuable when he was about 12 years of age and again when he was about 14 years. MXFR made her son feel better about himself.