NTCV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 4092

NTCV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4092 (10 November 2023)
Division:GENERAL DIVISION
File Number: 2023/6502
Re:NTCV
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Rebecca Bellamy
Date of decision: 10 November 2023
Date of reasons: 8 December 2023
Place:Brisbane

On 10 November 2023, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal set aside the decision dated 4 September 2023 made by the Respondent's delegate and substituted it with a decision to revoke the mandatory cancellation of the Applicant's visa.
...................................[SGD].....................................
Senior Member R Bellamy
CATCHWORDS
MIGRATION – revocation of mandatory cancellation of a Class Subclass 155 Resident Return visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – intentionally sexually touching two children between 10 and 16 years old – no other offending history – low risk of re-offending – over 50 years of positive contribution to Australian community – elderly and in poor health – disabled adult child – decision under review set-aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Uelese v Minister for Immigration and Border Protection [2015] HCA 15 (6 May 2015)
SECONDARY MATERIAL
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member R Bellamy
8 December 2023

The Applicant is a 77 year old citizen of the United Kingdom of Great Britain and Northern Ireland (“United Kingdom”) who came to Australia in 1972 when he was 26 years old. The most recent visa held by him was a Class Subclass 155 Resident Return visa (“visa”). His visa was recently cancelled due to his criminal offending, and he asked the Tribunal to revoke that cancellation.
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); or
·paragraph 6(e); 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”.
In August 2022, the Applicant was sentenced to 12 months imprisonment…

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

AGLC: NTCV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4092
Case: [2023] AATA 4092
Decision Date: 10 November 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of NTCV and the Minister for Immigration, Citizenship and Multicultural Affairs concerning the mandatory cancellation of the Applicant's Resident Return visa. The Applicant did not pass the character test due to serious sexual offences committed against a child. The central dispute was whether there was "another reason" to revoke the mandatory cancellation decision, despite the Applicant failing the character test.

The Tribunal was required to determine the weight to be given to various considerations under Ministerial Direction No. 99, particularly the primary considerations of protecting the Australian community and the best interests of minor children, as well as other considerations. The Applicant's offending involved intentionally sexually touching a child between 10 and 16 years old on multiple occasions. The Tribunal had to balance the seriousness of these offences against factors such as the Applicant's age, poor health, long-standing positive contributions to the Australian community, and his responsibility for a disabled adult child.

In its reasoning, the Tribunal acknowledged the inherent seriousness of sexual offences against children. However, it also noted that the specific offences, while abhorrent, did not involve elements such as coercion, penetration, or physical injury. The Tribunal considered the Applicant's limited offending history outside the specified period, his lack of a trend of increasing seriousness, and his efforts at rehabilitation through psychological counselling in detention. Crucially, the Tribunal found that while the application of Ministerial Direction No. 99 generally favoured revocation of the visa cancellation, there was "another reason" to set aside the decision.

Ultimately, the Tribunal set aside the decision under review. Instead of upholding the mandatory cancellation of the Applicant's visa, the Tribunal revoked the cancellation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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. FACTS The Applicant is an only child who was born in Scotland. His father died when he was a child. He married an Australian woman and they both moved to Australia when he was 26 years old. His mother died when he was 27 years old. He and his wife had three children. When his wife was in her forties and the children were still young, she passed away from cancer. That was 35 years ago. Around 30 years ago the Applicant formed a relationship with Mrs A. The Applicant worked in Scotland from his teens and he always worked in Australia, never relying on social welfare, until after he retired. He worked in the steel works and at an abattoir. He owned and operated a grocery store, he worked as a farm hand, and he was a handyman at a hotel. The Applicant’s eldest son, Mr G, has had a cognitive disability since childhood. Before the Applicant’s wife died, he promised her he would aways look after Mr G. Mr G always lived with the Applicant, until the Applicant’s incarceration. The Applicant and Mrs A established a business in the rural district where they lived. They operated it together until, due to his poor health, the Applicant had to retire in 2012 at the age of 65. He employed both his sons in the business with Mr G being supervised. A few years after he retired, the Applicant did some volunteer work at a local museum, setting up displays, collecting entrance fees and showing people around. During his time in Australia, he did other voluntary work, including planting over 200 trees in his local community. After retiring he did not access the age pension until he had exhausted the proceeds of the sale of his business. Through Mrs A, the Applicant had some step-grandchildren. He had a close relationship with the step-granddaughter who was the victim of his first offence (“Victim 1”). He considered them to be “mates” and he denies ever having had any sexual attraction to her. Around the time of the offending, he had experienced some health problems and a cancer scare that required extensive testing. Until cancer was ruled out, the Applicant thought he was going to die and it brought up emotions and grief that he had “blocked away”. He was unable to stop thinking about the deaths of his parents and his wife. He became overwhelmed with sadness and he felt extremely lonely. This was not put forward as an excuse for his offending, however it is the only thing he can think of that might go some way to explain it. As unbelievable an explanation as it may seem at first blush, Dr Yoxall thought it most likely did contribute to the offending, and I will come to her evidence about that later in these reasons. Victim 1 was 10 years old when the first offence occurred. On a weekend between July 2021 and January 2022, she and her two younger brothers had a sleepover at the home the Applicant shared with Mrs A. The children were watching television in the lounge room. Mrs A left to go to the chemist and Victim 1’s brothers went to play in another room. The Applicant entered the lounge room. He sat next to Victim 1, lent in towards her, touched and rubbed the top of her legs above her knees, her stomach and her chest using his hand for around a minute. She could not recall if he touched her under or over her clothing. He stopped when one of her brothers entered the room.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I am now required to weigh all of the Considerations in accordance with the Direction. Against revocation of the cancellation of the Applicant’s visa, I have allocated moderate weight under Primary Consideration 1, added a small uplift under Primary Consideration 2, and allocated moderate weight under Primary Consideration 5. In favour of revocation, I have allocated heavy weight to both Primary Consideration 3 and Other Consideration (b). Application of the Direction therefore favours revocation. There is another reason to revoke the cancellation of the Applicant’s visa. DECISION The decision under review is set-aside and the Tribunal instead revokes the cancellation of the Applicant’s visa.

Ratio Decidendi

Legal Principle Established

Since his incarceration, the Applicant has sought psychological help. His low-risk classification meant he did not qualify for a sex offender program, but he has sought counselling about his offending and other things. He said that in prison he was told that the problems he caused would last “for a while” and that he is so sorry. The Applicant sees a psychologist and a mental health nurse regularly in detention. In these sessions he has learned about depression and mental health and illness. PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. The Direction provides that “serious conduct” includes behaviour or conduct that does not constitute a criminal offence. In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires me to give consideration to:a)The nature and seriousness of the Applicant’s conduct to date; andb)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.The Nature and Seriousness of the Applicant’s Conduct to Date When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to certain matters. One is that sexual crimes against children are viewed very seriously. Another is that offences committed against vulnerable members of the community are viewed seriously. I must also have regard to the frequency of the offending, whether there is a trend of increasing seriousness and any cumulative effect of repeated offending, and I can have regard to any other relevant matter. (The other mandatory factors mentioned in this part of the Direction do not apply to this matter) The Applicant’s criminal offending is, by its nature, very serious. Its repetition adds to the seriousness, and the cumulative effect of the repeated offending against Victim 1 was that she thought the Applicant was trying to have sex with her which frightened her to the extent of giving her nightmares. In fairness to the Applicant, I acknowledge that the actual offences, while abhorrent in their nature, were relatively mild as they did not involve elements like coercion, removal of clothing, penetration or physical injury. If one looks at the period within which the offences were committed, being July 2021 to March 2022, the offending was reasonably frequent, however outside that period there was no offending. I do not think there was a trend of increasing seriousness. The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct