Pillay and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 270

Pillay and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 270 (21 February 2022)
Division:GENERAL DIVISION
File Number: 2021/9225
Re:Damien Pillay
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Rebecca Bellamy
Date:21 February 2022
Place:Brisbane

The decision under review is affirmed.
..............................[SGD]..........................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class BW Subclass 857 – Regional Sponsored Migration Scheme- where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – where receiving country is South Africa – frequent offending and traffic infringements – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth).
CASES
Bugmy v the Queen [2013] HCA 37
Deng v Minister Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v Buadromo [2018] FCAFC 151
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member Rebecca Bellamy
21 February 2022
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 34 year old citizen of South Africa. In November 2008, when he was 21 years old, he moved to Australia. The most recent visa granted to him was a Class BW Subclass 857 – Regional Sponsored Migration Scheme visa (“visa”).[1]
[1] Exhibit G1, G29, page 109.
On 4 August 2020, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[2] On 5 August 2020, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 26 November 2021 the Respondent decided not to revoke the cancellation.[4]
[2]     Exhibit G1, G30, page 110 to 116.
[3]     Exhibit G1, G15 pages 68 to 72.
[4]     Exhibit G1, G3, page 15.
The Applicant subsequently lodged an application for review in this Tribunal on 29 November 2021.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[5] Exhibit G1, G1 pages 1 to 7.
The hearing of this application took place on 3, 4 and 9 February 2022. The Applicant gave evidence via videoconference. The Applicant’s mother, brother-in-law, cousin and two of his aunts gave evidence at the hearing by videoconference. Professor James Freeman, forensic psychologist, gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
The Minister may…

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: Pillay and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 270
Case: [2022] AATA 270
Decision Date: 21 February 2022

CaseChat Overview and Summary

The applicant, Mr Pillay, sought to have a mandatory cancellation of his visa revoked. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs opposed the revocation. The matter came before Rebecca Bellamy M in the Administrative Appeals Tribunal.

The Tribunal was required to determine whether there was "another reason" to revoke the mandatory cancellation of the applicant's visa, having regard to Ministerial Direction No. 90. This involved assessing the weight to be given to various primary and other considerations, particularly concerning the protection of the Australian community and the applicant's character.

The Tribunal considered the applicant's extensive history of traffic infringements, including multiple instances of drink-driving, drug-driving, unlicensed driving, and speeding, as well as criminal offences such as property damage. The Tribunal found that the applicant had not been truthful in his accounts of some of his offending and that his conduct demonstrated a disregard for the law and a pattern of repeated offending. While acknowledging that some considerations might weigh in favour of revocation, the Tribunal concluded that these could not outweigh the primary considerations of protecting the Australian community and the applicant's character.

Ultimately, the Tribunal affirmed the decision to not revoke the mandatory cancellation of the applicant's visa, finding that there was no other reason to do so.

Orders

Orders of the court

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Background

Background to the litigation

I note that 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. BACKGROUND AND OFFENDING The Applicant was born in 1987. In November 2008, he relocated from South Africa to Australia with his mother, step-father, brother and sister. The Applicant’s biological father had been killed by a drunk driver in a motor vehicle accident before he was born.[9] He completed school to grade 12 and worked for around five years in South Africa before moving to Australia.[9] Exhibit A10 page 3. The Applicant has an extensive traffic history in Australia, starting with drink-driving in May 2009, only six months after he arrived in Australia. According to the Applicant he was engaging in some binge drinking around that time.[10] Nine days later, he was caught failing to display L plates and not having a person with an open license seated beside him. The very next day he was caught doing exactly the same thing, and for the third time ten days after that.[11] When asked about this in the hearing, the Applicant said he did not take the rules seriously and he thought he would get away with it, and that in South Africa it would not have been a big thing.[12][10] Transcript, page 12, lines 1 to 8.[11] Exhibit R2, page 291. [12] Transcript, page 12, line 37 to page 13, line 30. The balance of the Applicant’s traffic offences includes a further drink-driving offence, a drug-driving offence, unlicensed driving, disqualified driving, speeding (some 26 separate infringements including exceeding the speed limit by more than 30kmph), failing to display P plates, failing to stop at a stop sign, tailgating and failing to comply with license conditions. The Applicant’s license has been subject to periods of good behaviour and night-time time driving restrictions, which he breached multiple times, and his license has been suspended and disqualified on multiple occasions for periods of up to two years. In the hearing the Applicant admitted, in relation to an unlicensed driving infringement in 2010 that he committed around two weeks after being caught driving unlicensed, he had not been truthful when he told the police he did not know his license had been cancelled, and he did it thinking he would get away with it.[13] He committed over 60 traffic offences between 2009 and 2020.[13] Transcript, page 14, line 45 to page 15, line 23. The first group of criminal offences that the Applicant committed arose from an incident that occurred on 18 February 2012. The police records state the Applicant had attended a brothel at about 3.00am. He engaged in an argument over the services offered, a disturbance occurred, he went to his car and got a tyre iron, then he approached the entrance doors and smashed them with the tyre iron. He also smashed the lights that illuminated the doorway and the car park, damaging both the doors and lights. The female staff inside the brothel were afraid for their safety and they called the police.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

To the extent that Primary Consideration 3 and Other Considerations (b) and (d) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations 1 and 4. Accordingly, there is not another reason to revoke the cancellation of the Applicant’s visa. DECISION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

The Applicant was paroled to immigration detention on 19 May 2021.[78][78] Exhibit A2, page 126.PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY In considering this Primary Consideration 1, 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. Decision-makers 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. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.The Nature and Seriousness of the Applicant’s Conduct to Date When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction, relevantly, specifies that decision-makers must have regard to the following:(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:(i) …;(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;(iii) …;(b)…(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;(e)the cumulative effect of repeated offending;(f)…;(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour). There are some differences between the allegations recorded in the police records and the accounts given by the Applicant. The Applicant admitted that he lied to several victims of his crimes and to the police on various occasions. He also minimised some of his offending when he spoke with Professor Freeman and in the hearing. While he was frank about some things in the hearing, I do not consider him to be a sufficiently reliable witness to accept his word where it differs from the allegations contained in contemporaneous police records in circumstances where the Applicant was ultimately convicted of an offence arising from those allegations. With respect to the offences of which the Applicant was convicted, I accept that he was guilty, and I accept the factual basis of those convictions contained in the police records and the court’s sentencing remarks.