Panattu (Migration)

[2020] AATA 3945

Panattu (Migration) [2020] AATA 3945 (31 July 2020)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr George Panattu

CASE NUMBER:  1935940

DIBP REFERENCE(S):  BCC2019/4851379

MEMBER:Michael Cooke

DATE:31 July 2020

PLACE OF DECISION:  Sydney

DECISION:  The Tribunal affirms the decision under review.

Statement made on 31 July 2020 at 10:35am

CATCHWORDS
MIGRATION –Special Category (Temporary) (Class TY) – Subclass 444 visa –applicant was removed from Australia over 20 years ago – 'behavioural concern non-citizen' – 1999 cancellation– procedural fairness –Ministerial Intervention– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 32, 65, 103
Migration Regulations 1994, r 5.15

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 December 2019 to refuse to grant the visa applicant (the applicant) a Special Category (Temporary) (Class TY) Subclass 444 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 September 2019. The delegate refused to grant the visa on the basis that the applicant was removed from Australia in 1999 and, therefore, the applicant was found to be a 'behavioural concern non-citizen' pursuant to s 5(1)(d). For this reason, the delegate refused the application as the applicant did not, subsequently, satisfy s.32(2)(a) or s 32(2)(c) of the Act.

3. The applicant appeared before the Tribunal on 28 July 2020 to give evidence and present arguments by telephone.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. The applicant has forwarded through his representative a comprehensive history of his dealings with the Department since 1999 and appeals to the Minister for his personal Intervention in his case.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is entitled to a Special Category (Temporary) (Class TY) Subclass 444 visa.

   The Applicant’s Submission

   1999 Cancellation

8. We refer the attention of the Tribunal to the relevant facts related to the Applicant being removed from Australia in 1999. We acknowledge this occurred a significant time ago, however, the sequence of events are relevant to the present submission.

9. The Applicant (and his spouse) applied for and were granted a subclass 126 visa on 6 July 1999. The Applicant's visa was cancelled (consequential cancellation) for breach of s 103 (bogus documents) on 14 September 1999. Department records indicate cancellation notifications were produced on this date and issued (to) the Applicant and the Applicant's wife (the primary applicant of the subclass 126 visa). There are no Department records which indicate (as) to when the notification of cancellation was sent to the Applicant.

10. We submit that had the Applicant (and his wife) received the notice of cancellations prior to them departing their home country they would not have ever departed. We submit the fact the Applicant and his family departed their home country and arrived in Australia without a valid visa supports the statement made by the Applicant's wife that they did not receive the visa cancellation notice until 29 September 1999.

11. It does not accord with logic, reason or common sense for the Applicant and his family to pack up their personal effects to get on a plane to start their new life in Australia had they been made aware of the fact they did not have a valid visa to enter Australia and would be denied entry should they arrive.

12. We note the cancellation notification makes such a position very clear. It clearly states "you are not entitled to travel to Australia. If you do you will be refused immigration clearance and will be removed from Australia". As educated individuals, it simply does not accord with reason that the Applicant or his wife would have mistaken this statement for anything other than it is.

13. The cancellation notification also made clear that relevant posts had also been made aware of the visa cancellation. The notice stated, "Relevant posts in Australia have been advised that your visa has been cancelled". Despite this, the Applicant and his family were still able to depart from Dubai and then again so from Kuala Lumpur on their journey to Australia. Although we accept that technology and procedure has vastly evolved since 1999, we submit that had the Applicant and his family been stopped at either Dubai or Kuala Lumpur and advised of their visa cancelation they would not have travelled to Australia.

14. The Applicant's representative wrote in response to the visa cancellation notice on 18 October 1999 that that "...it was too late to inform the applicants on their cancellation of their visas". This position was later reinforced when the Applicant's wife submitted the notification of cancellation was not received until 29 September 1999; approximately two weeks' after the cancellation notice was issued.

15. Although dating back to 1999, this information remains central to the present submission. The Applicant and his family were removed from Australia in September 1999 for reasons which they had little to no control over. The removal has had a significant impact on the life of the Applicant, his wife and his family approximately 20 years later. The Applicant is regarded to be a 'behavioural concern non-citizen' and held in the same regard as individuals who have a significant criminal record. Such company is unfair when the relevant facts as illustrated above are clearly articulated.

    1999 Procedure

16. We wish to draw the Tribunal's attention to two other procedural matters related to the visa cancellation and removal of the Applicant from Australia in 1999. There is no indication of a notice of intention to cancel which was issued to the Applicant. Although procedural fairness requirements have evolved within the Act, it is nonetheless a matter of contention that such a notice was not provided.

17. The Department relied on the information attained by an immigration officer on a visit to the Applicant's wife's purported employer. There is no demonstration that the information attained in this visit was put to the Applicant or his wife in order to make submissions prior to the cancellation. Had this occurred then the Applicant and his wife could have provided the information which they later submitted to the Department for consideration.

    Summary

18. We respectfully submit the Tribunal use its powers to refer this matter to the Minister and make a statement reflecting the same. It our submission that this matter fits within the Ministerial Guidelines.

19. We further respectfully request the Tribunal hear from the Applicant, his wife and children themselves in the hearing scheduled on 28 June 2020.

    The Hearing

20. The applicant whilst acknowledging his case was hopeless (due to the lack of a waiver provision) appealed to the Tribunal to request the Minister for his personal intervention in the case. He said that the case was complicated and had involved what he and his wife thought were failures of procedural fairness at an early stage in their migration history. These failures propelled them into moving to Australia from New Zealand when if he had been adverted to his parlous migration situation (being a ‘behavioural concern non-citizen’) they would not have embarked on the decision to move to Australia with their children. Having done so and, being law abiding model non-citizens (and compliant with migration protocols), he had left and re-entered Australia a number of times. Unfortunately (he alleged) having been told years earlier on a separate arrival occasion that his issue (grant and re-entry on a Subclass 444 visa) was resolved - he then found himself in his present invidious situation – on his last arrival in Australia.

21. He pointed out that (bizarrely) his wife has been granted a Subclass 444 visa whilst he was refused. Yet she was the person involved in the initial cancellation. His children all live with them and are students and two are applicants, presently, for Australian permanent residency. He had exited Australia on business trips and re-entered Australia. He enjoys an enviable reputation amongst his employer and work colleagues. He advised that he had not been charged or convicted of any criminal conduct and has not been removed or deported from any country since arriving in Australia.

22. He informed he is an active member of his church and assists those in need with food and assistance despite - never being a rich person – in the monetary sense. His three children insist he has helped them emotionally, financially and spiritually in being the young adults they now are and is a proper father to them and fine husband to his wife.

23. The Tribunal (having had the benefit of an excellent submission from his representative) noted that it had had the opportunity to apprise itself of the full gamut of the case. It observed that the testimonials of friends and long-standing colleagues spoke very highly of the applicant. The Tribunal noted that, in its opinion, he had been the victim of long-ago circumstances that have been (unfortunately) inescapable and have proved fatal - in the visa sense.

24. The Tribunal further noted his submission that Regulation 5.15 which is powered by s 32(2)(c) does not provide a waiver procedure for exclusion, limitation or otherwise of individuals who are ‘behavioural concern non-citizens’ for reasons of removal from Australia (s 5(1)(d)).

    The Applicant’s Request for Ministerial Intervention

25. The applicant (in his submission) has put his Request for Ministerial Intervention as follows:

    The unfairness of the present circumstances

    We draw the Tribunal’s attention to the travel history of the Applicant since he was removed from Australia in 1999. We submit the inconsistency in the approach taken by the Department has been at the very least unfair. The Applicant was able to enter Australia in 2014 despite the removal in 1999. Then again in five separate instances, the Applicant was able to depart and then return to Australia. It was on the fifth and most recent trip to India (to visit his ailing mother) the Applicant was refused his current subclass 444 SCV.

    We submit the Department should be estopped from relying on the provisions of s 32(2)(a) and (c) for reasons of their conduct in this situation. The Department had ample opportunity to enforce the provisions of s 32(2)(a) and (c) but failed to do so. The Department not only allowed the Applicant to enter Australia in 2014 and set up his life here, but then went on to fail to enforce the provisions it seeks to rely on in this instance on four further occasions.

    Recently, when asked to complete a form by the Department Delegate the Applicant did so. The Department Delegate informed the Applicant that by completing the form he would have no further issues in the future. The Applicant relied on this information in good faith.

    The Applicant is now placed in a situation where the life he and his family have created in Australia is threatened. Consistent with the scope of the subclass 444 SCV, the Applicant, his wife and his children have all created a life in Australia. They have lived for 16 years without incident being nothing less than model citizens. Assets have been purchased, friends have been made and professional lives been pursued. The Applicant, his wife and their children all consider themselves to be part of the Australian fabric and members of Australian society.

    The Applicant's overall conduct since arriving in Australia 16 years' ago warrants a deeper analysis against the definition of 'behaviour concern non-citizen' outlined in s 5(1). The Applicant has not been charged or convicted of any criminal conduct. The Applicant has not been regarded as unfit to stand trial for reasons of mental impairment. The Applicant has not been removed or deported from any country since arriving in Australia.

    The Applicant has however been an active member of his church. The Applicant has also been active in helping members of his community and congregation. The Applicant has been meaningfully employed in a senior position. The Applicant has supported his three children emotionally, financially and spiritually in being the young adults they now are.

    An outcome which is unfair

    In principle, the capacity for the Department to refuse a subclass 444 SCV application for reasons of 'behavioural concern' is warranted. However, the application of the principles in the present circumstances has led to a situation which is unfair and arguably not envisaged by the authors of the Act.

    Such an argument is demonstrated by way of comparison. Say the Applicant had his visa refused for character reasons or general refusal provisions, the Applicant would still have some capacity to seek re-entry in Australia after a number of years. This is because the Delegate is given limited discretion in which to consider the specific circumstances of each case. No such discretion is provided in the present framework. The Delegate is duty bound to refuse a subclass 444 SCV application irrespective of the circumstances which may be before them.

    The Applicant was removed from Australia over 20 years ago. The Applicant has no right to seek a waiver of the provisions which have led to the visa being refused. Irrespective of the good work and positive contribution the Applicant makes to Australian society, the Applicant cannot ask the Delegate to use their discretion in applying the s 32 legal framework. For this reason, we submit the application of s 32 leads to a result which is unfair and not intended by the original authors.

26. The Minister has provided guidance on the types of ‘unique and exceptional circumstances’ that could be brought to his attention when Ministerial Intervention is proposed.

27. Importantly, the Tribunal notes the following elaborated circumstances:

    In particular because of circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in the applicant’s case

    Exceptional economic, scientific, cultural or other benefit that would result from the applicant being permitted to remain in Australia

28. The Tribunal has decided to accede to the request of the applicant to request Ministerial Intervention in his case for humanitarian reasons based on the above circumstances.

29. The Tribunal finds the applicant is a 'behavioural concern non-citizen' pursuant to s 5(1)(d) of the Act.

30. The Tribunal finds, as a result, that the applicant does not meet the criteria for grant of a Special Category (Temporary) (Class TY) Subclass 444 visa as he does not meet s.32(2)(a) or 32(2)(c) of the Act.

    DECISION

31. The Tribunal affirms the decision under review.

    Michael Cooke
    Senior Member