NDBR and Minister for Home Affairs (Migration) - [2019] AATA 612

NDBR and Minister for Home Affairs (Migration) [2019] AATA 612 (8 March 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2018/7607
GENERAL DIVISION  )
Re: NDBR
Applicant

And: Minister for Home Affairs
Respondent
DIRECTION
TRIBUNAL:  Deputy President Boyle
DATE OF CORRIGENDUM:            1 April 2019
PLACE:            Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in this application at paragraph [122] to read as follows:
122.In his decision in Suleiman, which was followed by Banks-Smith J in HSKJ at [33], Colvin J held at [23]:
The use by the Tribunal of the term 'secondary' indicates that the 'other considerations' are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

...................................................................
Deputy President

Division:GENERAL DIVISION
File Number: 2018/7607
Re:NDBR
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:8 March 2019
Place:Perth

The Tribunal affirms the decision of the delegate of the Respondent made on
7 December 2018 refusing to grant the Applicant a Protection (Class XA) visa under
s 501(1) of the Migration Act 1958 (Cth).
.........[Sgd]...............................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – s 501(1) – decision of delegate of Minister to refuse application for a Class XA Protection visa – failure to pass character test –
s 501(6)(e) – sexually based offence involving a child – Direction 79 – primary and other considerations – international non-refoulement obligations – protection of the Australian community – expectations of the Australian community – Australia’s non-refoulement obligations breached if returned to Pakistan – weight to be given to the primary and other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 36(2)(a), 48A, 197C, 198, 499, 499(1), 499(2A), 500(1)(b), 500(6B), 501, 501(1), 501(6), 501(6)(e), 501E, 501G(1)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
BHKM and Minister for Immigration and Border Protection (Migration) [2018] AATA 3
CZCV and Minister for…

Grounds of appeal

[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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Details

Case: [2019] AATA 612
Decision Date: 8 March 2019

CaseChat Overview and Summary

This matter concerned an application for review of a delegate of the Minister's decision to refuse to grant a Protection (Class XA) visa to the applicant, a citizen of Pakistan. The applicant had arrived in Australia in 2012 and subsequently applied for the visa. Following a conviction for indecent treatment of a child under the age of 16, the delegate of the Minister refused to grant the visa under section 501(1) of the *Migration Act 1958* (Cth) on the basis that the applicant failed to pass the character test due to the nature of the offence under section 501(6)(e). The Tribunal was tasked with determining whether the discretion to refuse the visa should be exercised.

The legal issues before the Tribunal were whether the applicant passed the character test and, if not, whether the discretion under section 501(1) of the Act should be exercised to refuse the visa. The Tribunal found that the applicant did not pass the character test. Therefore, the sole issue was the exercise of the discretion. In considering this discretion, the Tribunal was required to weigh various considerations, including Australia's international non-refoulement obligations, the protection of the Australian community, and the expectations of the Australian community, as guided by Direction 79.

The Tribunal reasoned that while Australia's non-refoulement obligations weighed in favour of granting the visa, these considerations were outweighed by the need to protect the Australian community and the expectations of the Australian community. The Tribunal noted that the applicant's conviction for indecent treatment of a child under 16 was a serious offence, falling under paragraph 11.1.1(1)(a) of Direction 79, which categorises violent and/or sexual crimes as being viewed seriously. The Tribunal concluded that the discretion to refuse the visa under section 501(1) of the Act should be exercised.

Consequently, the Tribunal affirmed the delegate's decision of 7 December 2018 to refuse to grant the applicant a Protection (Class XA) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The sole issue therefore is to determine whether the discretion to refuse to grant the visa under s 501(1) of the Act should be exercised.BACKGROUNDThe decision to refuse the grant of the visa The Applicant is a citizen of Pakistan who arrived in Australia on 19 June 2012 (R2, G29/169). On 12 November 2012 he made an application to the Department for a Protection (Class XA) visa (R2, G8/58). The delegate of the Minister refused to grant the Applicant the visa on 27 September 2013. Upon review of the decision by the then Refugee Review Tribunal, that tribunal remitted the matter to the Department for reconsideration on 19 September 2014 with a direction that the Applicant satisfied s 36(2)(a) of the Act and was a person to whom Australia has protection obligations because he is a refugee (R2, G15). On 6 May 2015 the Applicant was convicted by a jury in the District Court of Queensland of one count of indecent treatment of a child under the age of 16 (R2, G9). On 1 October 2015 the Queensland Court of Appeals set aside his conviction and ordered a retrial (R2, G10). On retrial a jury found the Applicant guilty of the charge on 25 May 2016 (the conviction) and he was sentenced to be of good behaviour for one year (R2, G12/100). On 6 July 2016 the Applicant was sent a notice of intention to consider refusal of the grant of a Temporary Protection (Class XD) visa under s 501(1) of the Act (R2, G3/9). The notice stated that the Department held information about his criminal history which indicated that he may not pass the character test by virtue of s 501(6)(e) of the Act. On 8 December 2016 the Minister considered the matter personally and refused to grant the visa (R2, G4). On 16 May 2017 the Federal Court quashed the Minister’s decision and remitted the matter to the Department for reconsideration (R2, G32/175). On 7 December 2018 a delegate of the Minister refused to grant the visa under s 501(1) of the Act (R2, G6/44). There is no direct evidence as to when the Applicant was notified of the delegate’s decision to refuse to grant the visa, however, the letter by which the Applicant was notified of the delegate’s decision was dated 14 December 2018 (R2, G6/32). The Tribunal is satisfied that the Applicant received notification of the delegate’s decision by the letter of 14 December 2018 in accordance with s 501G(1) of the Act at some time on or after 14 December 2018. On 21 December 2018 the Applicant filed in the Tribunal the application for review of the delegate’s decision (R2, G2). The Tribunal is therefore satisfied that the application for review of the delegate’s decision was made within nine days after the day on which the Applicant was notified of the decision in accordance with s 501G(1) of the Act and that therefore the application was made within the time prescribed by s 500(6B) of the Act.The Applicant Based on the date of birth given by the Applicant in the application filed in the Tribunal (R2, G2/4), the Applicant is 31 years of age. He was born in [omitted] in [omitted] in Pakistan. The Applicant is ethnically Pashto from the [omitted] tribe and is a Shia Muslim.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The non-refoulement obligations owed to the Applicant weigh in favour of the grant of the visa. This consideration is, however, outweighed by the considerations of the protection of the Australian community and the expectations of the Australian community. In these circumstances the Tribunal is of the view that the discretion to refuse to grant the visa under s 501(1) of the Act should be exercised. DECISION The Tribunal affirms the decision of the delegate of the Respondent made on 7 December 2018 refusing to grant the Applicant a Protection (Class XA) visa under s 501(1) of the Migration Act 1958 (Cth).

Ratio Decidendi

Legal Principle Established

As noted above, both parties agree that the Applicant does not pass the character test. The Tribunal so finds. Therefore, the only issue for resolution is whether the discretion not to grant the visa under s 501(1) of the Act should be exercised.PRIMARY CONSIDERATIONSFirst primary consideration: Protection of the Australian Community (11.1) Paragraph 11.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:…should have regard to the principle 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. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision makers should also give consideration to:a)The nature and seriousness of the non-citizen’s conduct to date; andb)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.Nature and seriousness of the conduct (paragraph 11.1(1)(a)) Paragraph 11.1.1(1) of Direction 79 provides:(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other serious conduct to date, decision-makers must have regard to: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 of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;c)The principle that crimes committed against vulnerable members of the community (such as 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;d) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;e) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;f) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;g) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;h) The cumulative effect of repeated offending;i) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia. There is only one offence to consider in this case. The conviction for indecent treatment of a child under the age of 16 falls into paragraph 11.1.1(1)(a) of Direction 79 and is to be “viewed seriously”. At paragraph 46 of the Applicant’s SIFC, the Applicant had conceded that “this offence is viewed very seriously”. At paragraph 10 of the Applicant’s reply submissions, however, having received the Minister’s SFIC, the Applicant noted that the Minister did not contend that the offence of which the Applicant had been convicted was of a violent nature and that, therefore, paragraph 11.1.1(1)(b) of Direction 79 did not apply. It is paragraph 11.1.1(1)(b) of Direction 79 which categorises a crime of a violent nature against a child as being “viewed very seriously”. Paragraph 11.1.1(1)(a) categorises offences of a violent and/or sexual nature as being “viewed seriously”.