Pettigrew and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Case [2024] ARTA 39

Pettigrew and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 39 (13 November 2024)

Applicant/s:  Dywayne Harry Archie Pettigrew

Respondent:  Minister for Immigration, Citizenship and Multicultural Affairs

Tribunal Number:                2024/6181

Tribunal:General Member Gallagher

Place:Perth

Date:13 November 2024

Decision:The Reviewable Decision, being the decision of the Delegate dated 20 August 2024, to exercise the discretion not to revoke the mandatory cancellation of the Applicant’s Special Category (Temporary) (Class TY) (Subclass 444) visa under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) is affirmed.

.................[SGD].......................................................

General Member Gallagher

CATCHWORDS

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct  – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 36 year old citizen of New Zealand – extent of impediments if returned to New Zealand – Non-Revocation Decision is affirmed/set aside

Legislation

Migration Act 1958 (Cth) ss 15, 189, 196, 197C, 198, 499(1), 499(2A), 500(6B), 501, 500(1)(b), 501(6), 501(6)(a), 501(7)(c), 501(3A), 501CA(3), 501CA(4), 501F, 501E, 503

Cases

AJL20 v Commonwealth of Australia [2020] FCA 1305
Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 421
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gage and Minister for Home Affairs [2020] AATA 326
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Harris and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 753
Hughes and Minister for Immigration, Citizenship, and Multicultural Affairs [2024] AATA 3158
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Leo'o Olo and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 2774
Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
Nyemah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2107
Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5165
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Short and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3037.
SLNY…

Continue reading Pettigrew and Minister for Immigration, Citizenship and Mult...

Sign in free to access the full text

Details
AGLC
Pettigrew and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 39
Case
[2024] ARTA 39
Decision Date

CaseChat Overview and Summary

Pettigrew, the applicant, sought review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to not revoke the cancellation of their visa. The case was heard by the Migration Review Tribunal in Perth. The main issues were whether the applicant passed the character test and, if not, whether there was another reason to revoke the cancellation decision. The Tribunal found that the applicant did not pass the character test because they had a substantial criminal record. As a result, the Tribunal then considered if there was another reason to revoke the cancellation decision. The Tribunal examined the relevant legislative framework and the Minister’s Direction No. 110. Ultimately, the Tribunal concluded that there was no other reason to revoke the cancellation decision and dismissed the application.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Making a revocation decision under s 501CA of the Migration Act requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[25] [25] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].THE HEARING AND THE EVIDENCE The hearing was held on 30 October 2024 at the Tribunal’s Perth Registry. The Applicant was self-represented. Mr Ashley Burgess appeared for the Respondent, instructed by Ms Maggie Woollett, both of the Australian Government Solicitor. Both parties appeared in-person. At hearing, the Applicant made submissions, gave evidence and was cross-examined. The Tribunal also took evidence from Mr Kyle Hinton by telephone. The Tribunal admitted the following documents into evidence:(a)Applicant’s Statement of Facts, Issues and Contentions dated 18 October 2024 (Exhibit A1);(b)Applicant’s letter dated 23 October 2024 (Exhibit A2);(c)Letter from Mr Hinton (the Applicant’s friend) dated 25 October 2024 (Exhibit A3);(d)Letter from Ms Naomi Wilson (the Applicant’s sister), undated (Exhibit A4);(e)Letter from Ms HK (the Applicant’s ex-partner), dated 10 October 2024 (Exhibit A5);(f)Letter from Mr Steen Robert Twyman (the Applicant’s friend), dated 19 October 2024 (Exhibit A6);(g)Letter from Mr CP (the Applicant’s son), undated, filed 22 October 2024 (Exhibit A7);(h)Letter from Ms LP (the Applicant’s (daughter), undated, filed 25 October 2024 (Exhibit A8); (i)Letter from Ms Tamara Morrison (the Applicant’s friend), dated 23 October 2024 (Exhibit A9);(j)Respondent’s Section 501G Documents, being a set of documents numbered G1-G3, filed 5 September 2024 (Exhibit R1);(k)Respondent’s Tender Bundle, being a set of documents numbered TB1-TB3 (Exhibit R2);(l)Respondent’s Supplementary Tender Bundle, being a set of documents numbered STB1-STB2 (Exhibit R3); and(m)Respondent’s Statement of Facts, Issues and Contentions, dated 23 September 2024 (Exhibit R4). The Tribunal has taken into account the additional letters of support from the Applicant’s relatives, friends and community contacts. At hearing, the Tribunal provided the opportunity for the parties to respond to matters put by the Member, directed at matters relevant to ‘Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction No. 110), in their oral closing submissions.DOES THE APPLICANT PASS THE CHARACTER TEST? As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case, a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[26] Failure to pass the character test arises as a matter of law.[27][26] Migration Act s 501(7)(c).[27] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].

Decision

Reasons for decision

On 6 February 2023 the Minister again cancelled the Applicant’s visa under section 501(3A) of the Act on the basis that the Applicant had a substantial criminal record within the meaning of section 501(6)(a) of the Migration Act and was 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 (the Cancellation Decision).[15] The Applicant was notified of the Cancellation Decision by letter dated 6 February 2023 and hand delivered at Albany Regional Prison.[16][15] R1, G2, p 187.[16] R1, G2, p 187. On 6 February 2023, the Applicant made a request for revocation of the Cancellation Decision.[17][17] R1, G2, pp 92 to 93. On 2 March 2023 the Applicant made representations to the Delegate in support of his request for revocation of the Cancellation Decision under s 501CA of the Migration Act.[18][18] R1, G2, pp 92 to 153. See R1, G2, p 32 at [3]. On 20 August 2024, the Delegate found that they were not satisfied that there was ‘another reason’ to revoke the Cancellation Decision, therefore the power under s 501CA(4) was not enlivened and the Delegate made the Reviewable Decision.[19][19] See [1] above. The next day, the Applicant was notified of the Reviewable Decision[20] and on 22 August 2024, he lodged an application in the General Division of the Tribunal,[21] for review of the Reviewable Decision.[22][20] R1, G3, p 222.[21] As it was then known.[22] R1, G1. The Applicant is currently being detained at Yongah Hill Immigration Detention Centre.ISSUES The issues before the Tribunal are:(a)Whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and(b)If the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked.[23]LEGISLATIVE FRAMEWORK[23] See s 501CA(4) of the Migration Act.Migration Act The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision. These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked. The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:(6)For the purposes of this section, a person does not pass the character test if:(a)the person has a substantial criminal record (as defined by subsection (7)); …(Original emphasis.) A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:(7)For the purposes of the character test, a person has a substantial criminal record if: …(c)the person has been sentenced to a term of imprisonment of 12 months or more; …(Original emphasis.)

Ratio Decidendi

Legal Principle Established

Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[30][30] See Migration Act s 501CA(4)(b)(i).CONSIDERATION OF REVOCATION As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No.110, there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[31] [31] s 501CA(4)(b)(ii) of the Migration Act. The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the Cancellation Decision should be revoked, reasonably and on a correct understanding of the law. By reason of section 499(2A) of the Migration Act, in doing so, the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to section 499(1) of the Migration Act.[32][32] See [38] to [44] below.Direction No. 110 The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[33] By reason of s 499(2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act. [33] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119]. On 7 June 2024, the Minister made Direction No. 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024. This Direction replaced the previous Direction No 99.[34][34] Direction No. 110 paras 2-3. An objective of Direction No. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[35] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No. 110 where relevant to the decision.[36][35] Direction No. 110 para 5.1(4). [36] Direction No. 110 para 6. Paragraph 5.1 of Direction No. 110 sets out ‘[o]bjectives’ including para 5.1(3) which provides that: Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker 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 non-citizen is serving a sentence of imprisonment, on a full­time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.